EX-10.24



 





Exhibit 10.24




[Form of Agreement of Limited Partnership]




AGREEMENT OF LIMITED PARTNERSHIP




OF




CVR PARTNERS, LP




 









 







TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	 	 	 	 	 
	ARTICLE I

	DEFINITIONS

	Section 1.1	 	Definitions
	 	 	1	 
	Section 1.2	 	Construction
	 	 	22	 
	ARTICLE II

	ORGANIZATION

	Section 2.1	 	Formation
	 	 	22	 
	Section 2.2	 	Name
	 	 	22	 
	Section 2.3	 	Registered Office; Registered Agent; Principal Office; Other Offices
	 	 	22	 
	Section 2.4	 	Purpose and Business
	 	 	23	 
	Section 2.5	 	Powers
	 	 	23	 
	Section 2.6	 	Power of Attorney
	 	 	23	 
	Section 2.7	 	Term
	 	 	25	 
	Section 2.8	 	Title to Partnership Assets
	 	 	25	 
	ARTICLE III

	RIGHTS OF LIMITED PARTNERS

	Section 3.1	 	Limitation of Liability
	 	 	25	 
	Section 3.2	 	Management of Business
	 	 	25	 
	Section 3.3	 	Outside Activities of the Limited Partners
	 	 	25	 
	Section 3.4	 	Rights of Limited Partners
	 	 	26	 
	ARTICLE IV

	CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS;

	REDEMPTION OF PARTNERSHIP INTERESTS

	Section 4.1	 	Certificates
	 	 	27	 
	Section 4.2	 	Mutilated, Destroyed, Lost or Stolen Certificates
	 	 	27	 
	Section 4.3	 	Record Holders
	 	 	28	 
	Section 4.4	 	Transfer Generally
	 	 	28	 
	Section 4.5	 	Registration and Transfer of Limited Partner Interests
	 	 	29	 
	Section 4.6	 	Registration and Transfer of the Special General Partner Interest
	 	 	30	 
	Section 4.7	 	Transfer of the Managing General Partner Interest
	 	 	31	 
	Section 4.8	 	Restrictions on Transfers
	 	 	32	 
	Section 4.9	 	Eligible Holders
	 	 	32	 
	Section 4.10	 	Redemption of Partnership Interests of Ineligible Holders
	 	 	33	 






 i 




 









 







	 	 	 	 	 	 	 
	ARTICLE V

	CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS

	Section 5.1	 	Contributions by the General Partners and their Affiliates
	 	 	35	 
	Section 5.2	 	Interest and Withdrawal
	 	 	35	 
	Section 5.3	 	Capital Accounts
	 	 	35	 
	Section 5.4	 	Issuances of Additional Partnership Securities
	 	 	38	 
	Section 5.5	 	Conversion of Special Units
	 	 	39	 
	Section 5.6	 	Conversion of Subordinated Units
	 	 	40	 
	Section 5.7	 	Conversion of Common GP Units and Subordinated GP Units into Common LP Units and Subordinated LP Units
	 	 	41	 
	Section 5.8	 	Preemptive Right
	 	 	41	 
	Section 5.9	 	Splits and Combinations
	 	 	42	 
	Section 5.10	 	Fully Paid and Non-Assessable Nature of Limited Partner Interests
	 	 	43	 
	ARTICLE VI

	ALLOCATIONS AND DISTRIBUTIONS

	Section 6.1	 	Allocations for Capital Account Purposes
	 	 	43	 
	Section 6.2	 	Allocations for Tax Purposes
	 	 	51	 
	Section 6.3	 	Requirement and Characterization of Distributions; Distributions to Record Holders
	 	 	53	 
	Section 6.4	 	Distributions of Available Cash from Operating Surplus
	 	 	54	 
	Section 6.5	 	Distributions of Non-IDR Surplus Amount
	 	 	56	 
	Section 6.6	 	Distributions of Available Cash from Capital Surplus
	 	 	57	 
	Section 6.7	 	Adjustment of Minimum Quarterly Distribution and Target Distribution Levels
	 	 	57	 
	Section 6.8	 	Special Provisions Relating to the Holders of Subordinated Units
	 	 	57	 
	Section 6.9	 	Entity Level Taxation
	 	 	58	 
	Section 6.10	 	Distributions in Connection with Initial Offering
	 	 	59	 
	Section 6.11	 	Limitation on Increases in Distributions
	 	 	59	 
	ARTICLE VII

	MANAGEMENT AND OPERATION OF BUSINESS

	Section 7.1	 	Management
	 	 	59	 
	Section 7.2	 	Certificate of Limited Partnership
	 	 	62	 
	Section 7.3	 	Restrictions on the Managing General Partner’s Authority; Approval Rights of Special General Partner
	 	 	62	 
	Section 7.4	 	Reimbursement of the Managing General Partner
	 	 	64	 
	Section 7.5	 	Outside Activities
	 	 	65	 
	Section 7.6	 	Loans from the Managing General Partner; Loans or Contributions from the Partnership or Group Members
	 	 	66	 
	Section 7.7	 	Indemnification
	 	 	67	 
	Section 7.8	 	Liability of Indemnitees
	 	 	68	 
	Section 7.9	 	Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties
	 	 	69	 






ii




 









 







	 	 	 	 	 	 	 
	Section 7.10	 	Other Matters Concerning the General Partners
	 	 	71	 
	Section 7.11	 	Purchase or Sale of Partnership Securities
	 	 	71	 
	Section 7.12	 	Registration Rights of the General Partners and their Affiliates
	 	 	71	 
	Section 7.13	 	Reliance by Third Parties
	 	 	74	 
	ARTICLE VIII

	BOOKS, RECORDS, ACCOUNTING AND REPORTS

	Section 8.1	 	Records and Accounting
	 	 	74	 
	Section 8.2	 	Fiscal Year
	 	 	75	 
	Section 8.3	 	Reports
	 	 	75	 
	ARTICLE IX

	TAX MATTERS

	Section 9.1	 	Tax Returns and Information
	 	 	75	 
	Section 9.2	 	Tax Elections
	 	 	75	 
	Section 9.3	 	Tax Controversies
	 	 	76	 
	Section 9.4	 	Withholding
	 	 	76	 
	ARTICLE X

	ADMISSION OF PARTNERS

	Section 10.1	 	Admission of Limited Partners
	 	 	76	 
	Section 10.2	 	Admission of Successor Managing General Partner
	 	 	77	 
	Section 10.3	 	Amendment of Agreement and Certificate of Limited Partnership
	 	 	77	 
	ARTICLE XI

	WITHDRAWAL OR REMOVAL OF PARTNERS

	Section 11.1	 	Withdrawal of the Managing General Partner
	 	 	78	 
	Section 11.2	 	Removal of the Managing General Partner
	 	 	79	 
	Section 11.3	 	Interest of Departing General Partner and Successor Managing General Partner
	 	 	80	 
	Section 11.4	 	Termination of Subordination Period, Conversion of Subordinated Units and Extinguishment of Cumulative Common Unit Arrearages
	 	 	81	 
	Section 11.5	 	Withdrawal of Limited Partners or Special General Partner
	 	 	81	 
	ARTICLE XII

	DISSOLUTION AND LIQUIDATION

	Section 12.1	 	Dissolution
	 	 	82	 
	Section 12.2	 	Continuation of the Business of the Partnership After Dissolution
	 	 	82	 
	Section 12.3	 	Liquidator
	 	 	83	 
	Section 12.4	 	Liquidation
	 	 	83	 
	Section 12.5	 	Cancellation of Certificate of Limited Partnership
	 	 	84	 
	Section 12.6	 	Return of Contributions
	 	 	84	 
	Section 12.7	 	Waiver of Partition
	 	 	84	 






iii




 









 







	 	 	 	 	 	 	 
	Section 12.8	 	Capital Account Restoration
	 	 	84	 
	ARTICLE XIII

	AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE

	Section 13.1	 	Amendments to be Adopted Solely by the Managing General Partner
	 	 	85	 
	Section 13.2	 	Amendment Procedures
	 	 	86	 
	Section 13.3	 	Amendment Requirements
	 	 	86	 
	Section 13.4	 	Special Meetings
	 	 	87	 
	Section 13.5	 	Notice of a Meeting
	 	 	88	 
	Section 13.6	 	Record Date
	 	 	88	 
	Section 13.7	 	Adjournment
	 	 	88	 
	Section 13.8	 	Waiver of Notice; Approval of Meeting; Approval of Minutes
	 	 	88	 
	Section 13.9	 	Quorum and Voting
	 	 	89	 
	Section 13.10	 	Conduct of a Meeting
	 	 	89	 
	Section 13.11	 	Action Without a Meeting
	 	 	89	 
	Section 13.12	 	Right to Vote and Related Matters
	 	 	90	 
	ARTICLE XIV

	MERGER

	Section 14.1	 	Authority
	 	 	90	 
	Section 14.2	 	Procedure for Merger or Consolidation
	 	 	91	 
	Section 14.3	 	Approval by Partners of Merger or Consolidation
	 	 	92	 
	Section 14.4	 	Certificate of Merger
	 	 	93	 
	Section 14.5	 	Amendment of Partnership Agreement
	 	 	93	 
	Section 14.6	 	Effect of Merger
	 	 	93	 
	ARTICLE XV
	RIGHT TO ACQUIRE LIMITED PARTNER INTERESTS
	Section 15.1	 	Right to Acquire Limited Partner Interests
	 	 	94	 
	ARTICLE XVI

	GENERAL PROVISIONS

	Section 16.1	 	Addresses and Notices
	 	 	95	 
	Section 16.2	 	Further Action
	 	 	96	 
	Section 16.3	 	Binding Effect
	 	 	96	 
	Section 16.4	 	Integration
	 	 	96	 
	Section 16.5	 	Creditors
	 	 	96	 
	Section 16.6	 	Waiver
	 	 	96	 
	Section 16.7	 	Counterparts
	 	 	96	 
	Section 16.8	 	Applicable Law
	 	 	96	 
	Section 16.9	 	Invalidity of Provisions
	 	 	96	 
	Section 16.10	 	Consent of Partners
	 	 	96	 
	Section 16.11	 	Facsimile Signatures
	 	 	97	 
	Section 16.12	 	Third Party Beneficiaries
	 	 	97	 






iv




 









 







AGREEMENT OF LIMITED

PARTNERSHIP OF CVR PARTNERS, LP




     THIS AGREEMENT OF LIMITED PARTNERSHIP OF CVR PARTNERS, LP dated as of                                   2007, is entered into by
and among CVR GP, LLC, a Delaware limited liability company, as the Managing General Partner, CVR
Special GP, LLC, a Delaware limited liability company, as the Special General Partner and CVR LP,
LLC, a Delaware limited liability company, as the Organizational Limited Partner, together with any
other Persons who become Partners in the Partnership or parties hereto as provided herein. In
consideration of the covenants, conditions and agreements contained herein, the parties hereto
hereby agree as follows:



ARTICLE I

DEFINITIONS




     Section 1.1 Definitions. The following definitions shall be for all purposes, unless otherwise clearly indicated to
the contrary, applied to the terms used in this Agreement.



     “Acquisition” means any transaction in which any Group Member acquires (through an asset
acquisition, merger, stock acquisition or other form of investment) control over all or a portion
of the assets, properties or business of another Person for the purpose of increasing the operating
capacity (or productivity) or capital base of the Partnership Group from the operating capacity or
revenues of the Partnership Group existing immediately prior to such transaction.



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



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



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



     “Additional Book Basis Derivative Items” means any Book Basis Derivative Items that are
computed with reference to Additional Book Basis. To the extent that the Additional Book
Basis attributable to all of the Partnership’s Adjusted Property as of the beginning of any
taxable period exceeds the Aggregate Remaining Net Positive Adjustments as of the beginning of such
period (the “Excess Additional Book Basis”), the Additional Book Basis Derivative Items for



1









 






such
period shall be reduced by the amount that bears the same ratio to the amount of Additional Book
Basis Derivative Items determined without regard to this sentence as the Excess Additional Book
Basis bears to the Additional Book Basis as of the beginning of such period.



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



     “Adjusted Operating Surplus” means, with respect to any period, Operating Surplus generated
with respect to such period (a) less (i) any net increase in Working Capital Borrowings (or the
Partnership’s proportionate share of any net increase in Working Capital Borrowings in the case of
Subsidiaries that are not wholly owned) with respect to such period and (ii) any net decrease in
cash reserves (or the Partnership’s proportionate share of any net decrease in cash reserves in the
case of Subsidiaries that are not wholly owned) for Operating Expenditures with respect to such
period not relating to an Operating Expenditure made with respect to such period and (b) plus (i)
any net decrease in Working Capital Borrowings (or the Partnership’s proportionate share of any net
decrease in Working Capital Borrowings in the case of Subsidiaries that are not wholly owned) with
respect to such period, and (ii) any net increase in cash reserves (or the Partnership’s
proportionate share of any net increase in cash reserves in the case of Subsidiaries that are not
wholly owned) for Operating Expenditures with respect to such period required by any debt
instrument for the repayment of principal, interest or premium. Adjusted Operating Surplus does not
include that portion of Operating Surplus included in clauses (a)(i) and (a)(ii) of the definition
of Operating Surplus.



     “Adjusted Property” means any property the Carrying Value of which has been adjusted pursuant
to Section 5.3(d)(i) or Section 5.3(d)(ii).



     “Affiliate” means, with respect to any Person, any other Person that directly or indirectly
through one or more intermediaries controls, is controlled by or is under common control with, the
Person in question. As used herein, the term “control” means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or otherwise.



2









 





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



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



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



     “Agreement” means this Agreement of Limited Partnership of CVR Partners, LP, as it may be
amended, supplemented or restated from time to time.



     “Associate” means, when used to indicate a relationship with any Person, (a) any corporation
or organization of which such Person is a director, officer or general partner or is, directly or
indirectly, the owner of 20% or more of any class of voting stock or other voting interest; (b) any
trust or other estate in which such Person has at least a 20% beneficial interest or as to which
such Person serves as trustee or in a similar fiduciary capacity; and (c) any relative or spouse of
such Person, or any relative of such spouse, who has the same principal residence as such Person.



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



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



     (b) the amount of any cash reserves (or the Partnership’s proportionate share of cash reserves
in the case of Subsidiaries that are not wholly owned) established by the Managing General Partner
to (i) provide for the proper conduct of the business of the Partnership Group (including reserves
for the satisfaction of obligations in respect of pre-paid fertilizer contracts,
future capital expenditures and for anticipated future credit needs of the Partnership Group)
subsequent to such Quarter, (ii) comply with applicable law or any loan agreement, security
agreement, mortgage, debt instrument or other agreement or obligation to which any Group Member is
a party or by which it is bound or its assets are subject or (iii) provide funds for distributions
under Section 6.4 or Section 6.6 in respect of any one or more of the next eight Quarters;
provided, however, that following the Initial Offering the Managing General Partner may not
establish cash reserves pursuant to (iii) above if the effect of such reserves would be that



3









 






the
Partnership is unable to distribute the Minimum Quarterly Distribution on all Common Units, plus
any Cumulative Common Unit Arrearage on all Common Units, with respect to such Quarter; and,
provided further, that disbursements made by a Group Member or cash reserves established, increased
or reduced after the end of such Quarter but on or before the date of determination of Available
Cash with respect to such Quarter shall be deemed to have been made, established, increased or
reduced, for purposes of determining Available Cash, within such Quarter if the Managing General
Partner so determines. In establishing cash reserves, the Managing General Partner shall take into
consideration the terms of, the obligations of the Partnership as a guarantor under, and the
restrictions on the Partnership as a credit party under, the Coffeyville Credit Agreement.



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



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



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



     “Book-Down Event” means an event that triggers a negative adjustment to the Capital Accounts
of the Partners pursuant to Section 5.3(d).



     “Book-Tax Disparity” means with respect to any item of Contributed Property or Adjusted
Property, as of the date of any determination, the difference between the Carrying Value of such
Contributed Property or Adjusted Property and the adjusted basis thereof for federal income tax
purposes as of such date. A Partner’s share of the Partnership’s Book-Tax Disparities in all of its
Contributed Property and Adjusted Property will be reflected by the difference between such
Partner’s Capital Account balance as maintained pursuant to Section 5.3 and the hypothetical
balance of such Partner’s Capital Account computed as if it had been maintained strictly in
accordance with federal income tax accounting principles.



     “Book-Up Event” means an event that triggers a positive adjustment to the Capital Accounts of
the Partners pursuant to Section 5.3(d).



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



     “Capital Account” means the capital account maintained for a Partner pursuant to Section 5.3.
The “Capital Account” of a Partner in respect of a Partnership Interest shall be the amount that
such Capital Account would be if such Partnership Interest were the only interest in the
Partnership held by such Partner from and after the date on which such Partnership Interest was
first issued.



4









 





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



     “Capital Improvement” means any (a) addition or improvement to the capital assets owned by any
Group Member, (b) acquisition of existing, or the construction of new, capital assets (including
assets for the production, transportation or distribution of fertilizer), or (c) capital
contribution by a Group Member to a Person that is not a Subsidiary, in which a Group Member has an
equity interest, to fund the Group Member’s pro rata share of the cost of the acquisition of
existing, or the construction of new, capital assets, in each case if such addition, improvement,
acquisition or construction is made to increase the operating capacity (or productivity) or capital
base of the Partnership Group from the operating capacity or asset base of the Partnership Group,
in the case of clauses (a) and (b), or such Person, in the case of clause (c), from that existing
immediately prior to such addition, improvement, acquisition or construction; provided however,
that any such addition, improvement, acquisition or construction that is made solely for investment
purposes shall not constitute a Capital Improvement under this Agreement.



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



     “Carrying Value” means (a) with respect to a Contributed Property, the Agreed Value of such
property reduced (but not below zero) by all depreciation, amortization and cost recovery
deductions charged to the Partners’ Capital Accounts in respect of such Contributed Property, and
(b) with respect to any other Partnership property, the adjusted basis of such property for federal
income tax purposes, all as of the time of determination. The Carrying Value of any property shall
be adjusted from time to time in accordance with Section 5.3(d)(i), Section 5.3(d)(ii) and Section
5.3(b)(v) and to reflect changes, additions or other adjustments to the Carrying Value for
dispositions and acquisitions of Partnership properties, as deemed appropriate by the Managing
General Partner.



     “Cause” means a court of competent jurisdiction has entered a final, non-appealable judgment
finding that the Managing General Partner, as an entity, has materially breached a material
provision of this Agreement or is liable for actual fraud or willful misconduct in its capacity as
a general partner of the Partnership.



     “Certificate” means a certificate in such form as may be adopted by the Managing General
Partner, issued by the Partnership evidencing ownership of one or more Partnership Securities.



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



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



     “Closing Date” means the date of this Agreement.



5









 





     “Closing Price” means, in respect of any class of Limited Partner Interests, as of the date of
determination, the last sale price on such day, regular way, or in case no such sale takes place on
such day, the average of the closing bid and asked prices on such day, regular way, in either case
as reported in the principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the principal National Securities Exchange on which the respective
Limited Partner Interests are listed or admitted to trading or, if such Limited Partner Interests
are not listed or admitted to trading on any National Securities Exchange, the last quoted price on
such day or, if not so quoted, the average of the high bid and low asked prices on such day in the
over-the-counter market, as reported by the primary reporting system then in use in relation to
such Limited Partner Interest of such class, or, if on any such day such Limited Partner Interests
of such class are not quoted by any such organization, the average of the closing bid and asked
prices on such day as furnished by a professional market maker making a market in such Limited
Partner Interests of such class selected by the Managing General Partner, or if on any such day no
market maker is making a market in such Limited Partner Interests of such class, the fair value of
such Limited Partner Interests on such day as determined by the Managing General Partner.
Notwithstanding the foregoing, the Closing Price for a Common GP Unit and a Subordinated GP Unit
shall be equal to the Closing Price for a Common LP Unit or Subordinated LP Unit, respectively.



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



     “Coffeyville Credit Agreement” means the Second Amended and Restated Credit and Guaranty
Agreement, dated as of December 28, 2006, between Coffeyville Resources, LLC, as the borrower, and
Coffeyville Refining & Marketing, Inc., Coffeyville Nitrogen Fertilizers, Inc., Coffeyville Crude
Transportation, Inc., Coffeyville Pipeline, Inc., Coffeyville Terminal, Inc., CL JV Holdings, LLC,
and certain of their subsidiaries, as guarantors, and Goldman Sachs Credit Partners L.P. and Credit
Suisse Securities (USA) LLC, as Joint Lead Arrangers and Joint Bookrunners, Credit Suisse, as
Administrative Agent, Collateral Agent, Funded LC Issuing Bank and Revolving Issuing Bank, Deutsche
Bank Trust Company Americas, as Syndication Agent, and ABN Amro Bank N.V., as Documentation Agent,
as such may be amended, supplemented or restated from time to time and any successor agreement.



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



     “Commences Commercial Service,” “Commenced Commercial Service” and “Commencement of Commercial
Service” shall mean the date a Capital Improvement is first put into service by a Group Member
following, if applicable, completion of construction and testing.



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



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



6









 





     “Common GP Unit” means a Unit representing, when outstanding, a fractional part of the Special
General Partner Interest, and having the rights and obligations specified with respect to Common GP
Units in this Agreement. The term “Common GP Unit” does not refer to, or include, any Subordinated
GP Unit prior to its conversion into a Common GP Unit pursuant to the terms hereof.



     “Common Unit” means a Common LP Unit or a Common GP Unit.



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



     “Conflicts Committee” means a committee of the Board of Directors of the Managing General
Partner composed entirely of one or more directors who are not (a) security holders, officers or
employees of the Managing General Partner, (b) officers, directors or employees of any Affiliate of
the Managing General Partner or (c) holders of any ownership interest in the Partnership Group
other than Common Units and who also meet the independence standards required of directors who
serve on an audit committee of a board of directors established by the Securities Exchange Act and
the rules and regulations of the Commission thereunder and by (i) the National Securities Exchange
on which any class of Partnership Interests are listed or admitted to trading or (ii) if no class
of Partnership Interests is so listed or traded, by the New York Stock Exchange, Inc.



     “Contributed Property” means each property or other asset, in such form as may be permitted by
the Delaware Act, but excluding cash, contributed to the Partnership. Once the Carrying Value of a
Contributed Property is adjusted pursuant to Section 5.3(d), such property shall no longer
constitute a Contributed Property, but shall be deemed an Adjusted Property.



     “Contribution Agreement” means that certain Contribution, Conveyance and Assumption Agreement,
dated as of the date hereof, among the Managing General Partner, the Special General Partner, the
Organizational Limited Partner, the Partnership, and Coffeyville Resources,
LLC, together with the additional conveyance documents and instruments contemplated or
referenced thereunder, as such may be amended, supplemented or restated from time to time.



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



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



7









 





     “Current Market Price” means, in respect of any class of Partnership Interests, as of the date
of determination, the average of the daily Closing Prices per Partnership Interest of such class
for the 20 consecutive Trading Days immediately prior to such date.



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



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



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



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



     “Eligible Holder” means a Person that satisfies the eligibility requirements established by
the Managing General Partner for Partners pursuant to Section 4.9.



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



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



     “Expansion Capital Expenditures” means cash expenditures for Acquisitions or Capital
Improvements. Expansion Capital Expenditures shall include interest (and related fees) on debt
incurred and distributions on equity issued, in each case, to finance the construction of a Capital
Improvement and paid during the period beginning on the date that the Partnership enters into a
binding obligation to commence construction of a Capital Improvement and ending on the earlier
to occur of the date that such Capital Improvement Commences Commercial Service or the date
that such Capital Improvement is abandoned or disposed of. Debt incurred or equity issued to fund
such construction period interest payments, or such construction period distributions on equity
paid during such period shall also be deemed to be debt or equity, as the case may be, incurred to
finance the construction of a Capital Improvement.



     “Fertilizer Restricted Businesses” has the meaning assigned to such term in the Omnibus
Agreement.



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



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



8









 





     “First Target Distribution” means $0.4313 per Unit per Quarter (or, with respect to periods of
less than a full fiscal quarter, it means the product of such amount multiplied by a fraction of
which the numerator is the number of days in such period, and of which the denominator is the total
number of days in such fiscal quarter), subject to adjustment in accordance with Sections 6.7 and
6.9.



     “Fully Diluted Basis” means, when calculating the number of Outstanding Units for any period,
a basis that includes, in addition to the Outstanding Units, all Partnership Securities and
options, rights, warrants and appreciation rights relating to an equity interest in the Partnership
(a) that are convertible into or exercisable or exchangeable for Units that are senior to or pari
passu with the Subordinated Units, (b) whose conversion, exercise or exchange price is less than
the Current Market Price on the date of such calculation, (c) that may be converted into or
exercised or exchanged for such Units prior to or during the Quarter immediately following the end
of the period for which the calculation is being made without the satisfaction of any contingency
beyond the control of the holder other than the payment of consideration and the compliance with
administrative mechanics applicable to such conversion, exercise or exchange and (d) that were not
converted into or exercised or exchanged for such Units during the period for which the calculation
is being made; provided, however, that for purposes of determining the number of Outstanding Units
on a Fully Diluted Basis when calculating whether the Subordination Period has ended or
Subordinated Units are entitled to convert into Common Units pursuant to Section 5.6, such
Partnership Securities, options, rights, warrants and appreciation rights shall be deemed to have
been Outstanding Units only for the four Quarters that comprise the last four Quarters of the
measurement period; provided, further, that if consideration will be paid to any Group Member in
connection with such conversion, exercise or exchange, the number of Units to be included in such
calculation shall be that number equal to the difference between (i) the number of Units issuable
upon such conversion, exercise or exchange and (ii) the number of Units that such consideration
would purchase at the Current Market Price.



     “General Partner” means each of the Managing General Partner and the Special General Partner.



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



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



     “Group Member Agreement” means the partnership agreement of any Group Member, other than the
Partnership, that is a limited or general partnership, the limited liability company agreement of
any Group Member that is a limited liability company, the certificate of incorporation and bylaws
or similar organizational documents of any Group Member that is a corporation, the joint venture
agreement or similar governing document of any Group Member that is a joint venture and the
governing or organizational or similar documents of any other



9









 






Group Member that is a Person other
than a limited or general partnership, limited liability company, corporation or joint venture, as
such may be amended, supplemented or restated from time to time.



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



     “Incentive Distribution Right” means the distribution rights associated with the Managing
General Partner Interest, which will confer upon the holder thereof only the rights and obligations
specifically provided in this Agreement with respect to Incentive Distribution Rights (and no other
rights otherwise available to or other obligations of a holder of a Partnership Interest).



     “Incentive Distributions” means any amount of cash distributed to the Managing General Partner
in respect of the Incentive Distribution Rights pursuant to Section 6.4.



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



     “Indemnitee” means (a) any General Partner, (b) any Departing General Partner, (c) any Person
who is or was a director, officer, fiduciary or trustee of any Group Member, a General Partner or
any Departing General Partner, (d) any Person who is or was serving at the request of a General
Partner or any Departing General Partner as a director, officer, fiduciary or trustee of another
Person owing a fiduciary duty to any Group Member; provided that a Person shall not be an
Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial
services, (e) any Person who controls a general partner and (f) any Person the Managing General
Partner designates as an “Indemnitee” for purposes of this Agreement.



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



     “Initial Common Units” means the Common Units sold in the Initial Offering.



     “Initial Offering” means the first to occur of the Initial Private Offering and the Initial
Public Offering.



     “Initial Private Offering” means the initial offering and sale of Common Units by the
Partnership pursuant to Rule 144A under the Securities Act where aggregate net proceeds to the
Partnership from the sale of such Common Units is at least $50,000,000.



     “Initial Public Offering” means the Partnership’s first underwritten public offering of Common
Units pursuant to a registration statement that is filed and declared effective under the
Securities Act.



     “Initial Unit” means (i) prior to the Initial Offering, the Special Units issued to the
Special General Partner and Organizational Limited Partner pursuant to the Contribution Agreement
and (ii) following the Initial Offering, the Initial Common Units



10









 





     “Initial Unit Price” means with respect to any class or series of Units, the price per Unit at
which such class or series of Units is initially sold by the Partnership, in each case adjusted as
the Managing General Partner determines to be appropriate to give effect to any distribution,
subdivision or combination of Units.



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



     “Investment Capital Expenditures” means capital expenditures expected by the Managing General
Partner, at the time of incurring such expenditures, to be of such a short term duration as not to
be appropriately categorized as Expansion Capital Expenditures or Maintenance Capital Expenditures.



     “IO Closing Date” means the first date on which Common Units are sold by the Partnership
pursuant to the Initial Offering.



     “Limited Partner” means, unless the context otherwise requires, the Organizational Limited
Partner, each additional Person that becomes a Limited Partner pursuant to the terms of this
Agreement and any Departing General Partner or Special General Partner upon the change of its
status from Managing General Partner or Special General Partner to Limited Partner pursuant to
Section 11.3 or Section 5.5, in each case, in such Person’s capacity as a limited partner of the
Partnership.



     “Limited Partner Interest” means the ownership interest of a Limited Partner in the
Partnership, which may be evidenced by Special LP Units, Common LP Units, Subordinated LP
Units or other Partnership Securities (other than Partnership Securities evidencing the
Managing General Partner Interest or the Special General Partner Interest) or a combination thereof
or interest therein, and includes any and all benefits to which such Limited Partner is entitled as
provided in this Agreement, together with all obligations of such Limited Partner to comply with
the terms and provisions of this Agreement.



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



11









 





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



     “Maintenance Capital Expenditures” means cash expenditures (including expenditures for the
addition or improvement to the capital assets owned by any Group Member or for the acquisition of
existing, or the construction of new, capital assets) made to maintain the operating capacity (or
productivity) or capital base of the Partnership Group. Maintenance Capital Expenditures shall
include interest (and related fees) on debt incurred and distributions on equity issued, in each
case, to finance the construction of a replacement asset and paid during the period beginning on
the date that the Group Member enters into a binding obligation to commence constructing a
replacement asset and ending on the earlier to occur of the date that such replacement asset
Commences Commercial Service or the date that such replacement asset is abandoned or disposed of.
Debt incurred to pay or equity issued to fund the construction period interest payments, or such
construction period distributions on equity shall also be deemed to be debt or equity, as the case
may be, incurred to finance the construction of a replacement asset.



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



     “Managing General Partner Interest” means the management and ownership interest of the
Managing General Partner in the Partnership (in its capacity as managing general partner without
reference to any Limited Partner Interest or Special general Partner Interest held by it), which
includes any and all benefits to which the Managing General Partner is entitled as provided in this
Agreement (including the Incentive Distribution Rights), together with all obligations of the
Managing General Partner to comply with the terms and provisions of this Agreement.



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



     “Minimum Quarterly Distribution” means $0.375 per Unit per Quarter (or, with respect to
periods of less than a full fiscal quarter, it means the product of such amount multiplied by a
fraction of which the numerator is the number of days in such period, and of which the denominator
is the total number of days in such fiscal quarter), subject to adjustment in accordance with
Section 5.4, 6.7 and 6.9.



     “National Securities Exchange” means an exchange registered with the Commission under Section
6(a) of the Securities Exchange Act and any other securities exchange (whether or not registered
with the Commission under Section 6(a) of the Securities Exchange Act) that the Managing General
Partner shall designate as a National Securities Exchange for purposes of this Agreement.



     “Net Agreed Value” means, (a) in the case of any Contributed Property, the Agreed Value of
such property reduced by any liabilities either assumed by the Partnership upon such contribution
or to which such property is subject when contributed and (b) in the case of any



12









 






property
distributed to a Partner by the Partnership, the Partnership’s Carrying Value of such property (as
adjusted pursuant to Section 5.3(d)(ii)) at the time such property is distributed, reduced by any
indebtedness either assumed by such Partner upon such distribution or to which such property is
subject at the time of distribution, in either case, as determined under Section 752 of the Code.



     “Net Income” means, for any taxable year, the excess, if any, of the Partnership’s items of
income and gain (other than those items taken into account in the computation of Net Termination
Gain or Net Termination Loss) for such taxable year over the Partnership’s items of loss and
deduction (other than those items taken into account in the computation of Net Termination Gain or
Net Termination Loss) for such taxable year. The items included in the calculation of Net Income
shall be determined in accordance with Section 5.3(b) and shall not include any items specially
allocated under Section 6.1(d); provided, that the determination of the items that have been
specially allocated under Section 6.1(d) shall be made as if Section 6.1(d)(xii) were not in this
Agreement.



     “Net Loss” means, for any taxable year, the excess, if any, of the Partnership’s items of loss
and deduction (other than those items taken into account in the computation of Net Termination Gain
or Net Termination Loss) for such taxable year over the Partnership’s items of income and gain
(other than those items taken into account in the computation of Net Termination Gain or Net
Termination Loss) for such taxable year. The items included in the calculation of Net Loss shall be
determined in accordance with Section 5.3(b) and shall not include any items specially allocated
under Section 6.1(d); provided, that the determination of the items that have been specially
allocated under Section 6.1(d) shall be made as if Section 6.1(d)(xii) were not in this Agreement.



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



     “Net Termination Gain” means, for any taxable year, the sum, if positive, of all items of
income, gain, loss or deduction recognized by the Partnership after the Liquidation Date. The items
included in the determination of Net Termination Gain shall be determined in accordance with
Section 5.3(b) and shall not include any items of income, gain or loss specially allocated under
Section 6.1(d).



     “Net Termination Loss” means, for any taxable year, the sum, if negative, of all items of
income, gain, loss or deduction recognized by the Partnership after the Liquidation Date. The items
included in the determination of Net Termination Loss shall be determined in accordance with
Section 5.3(b) and shall not include any items of income, gain or loss specially allocated under
Section 6.1(d).



     “Non-IDR Surplus Amount” means the Adjusted Operating Surplus for the period from the Closing
Date through June 30, 2009.



     “Nonrecourse Built-in Gain” means with respect to any Contributed Properties or Adjusted
Properties that are subject to a mortgage or pledge securing a Nonrecourse Liability,



13









 






the amount of
any taxable gain that would be allocated to the Partners pursuant to Sections 6.2(b)(i)(A),
6.2(b)(ii)(A) and 6.2(b)(iii) if such properties were disposed of in a taxable transaction in full
satisfaction of such liabilities and for no other consideration.



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



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



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



     “Omnibus Agreement” means that certain Omnibus Agreement, dated as of the Closing Date, among
CVR Energy, Inc., the Managing General Partner, the Special General Partner and the Partnership, as
such may be amended, supplemented or restated from time to time.



     “Operating Expenditures” means all Partnership Group expenditures (or the Partnership’s
proportionate share of expenditures in the case of Subsidiaries that are not wholly owned),
including taxes, reimbursements of expenses of the Managing General Partner, repayment of Working
Capital Borrowings, debt service payments and capital expenditures, subject to the following:



     (a) repayment of Working Capital Borrowings deducted from Operating Surplus pursuant to clause
(b)(iii) of the definition of Operating Surplus shall not constitute Operating Expenditures when
actually repaid;



     (b) payments (including prepayments) of principal of and premium on indebtedness other than
Working Capital Borrowings shall not constitute Operating Expenditures; and



     (c) Operating Expenditures shall not include (i) Expansion Capital Expenditures or Investment
Capital Expenditures, (ii) payment of transaction expenses relating to Interim Capital Transactions
or (iii) distributions to Partners. Where capital expenditures are made in part for Acquisitions or
for Capital Improvements and in part for other purposes, the Managing General Partner, with the
concurrence of the Conflicts Committee, shall determine the allocation between the amounts paid for
each.



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



     (a) the sum of (i) $60 million, (ii) all cash receipts of the Partnership Group (or the
Partnership’s proportionate share of cash receipts in the case of Subsidiaries that are not wholly
owned) for the period beginning on the Closing Date and ending on the last day of such period, but
excluding cash receipts from Interim Capital Transactions (iii) all cash receipts of the
Partnership Group (or the Partnership’s proportionate share of cash receipts in the case of
Subsidiaries that are not wholly owned) after the end of such period but on or before the date of



14









 






determination of Operating Surplus with respect to such period resulting from Working Capital
Borrowings and (iv) the amount of distributions paid on equity of the Partnership issued in
connection with the construction of a Capital Improvement or replacement asset and paid during the
period beginning on the date that the Partnership enters into a binding obligation to commence
construction of such Capital Improvement or replacement asset and ending on the earlier to occur of
the date that such Capital Improvement or replacement asset Commences Commercial Service or the
date that it is abandoned or disposed of (equity issued to fund the construction period interest
payments on debt incurred (including periodic net payments under related interest rate swap
agreements), or construction period distributions on equity issued, to finance the construction of
a Capital Improvement or replacement asset shall also be deemed to be equity issued to finance the
construction of a Capital Improvement or replacement asset for purposes of this clause (iv)), less



     (b) the sum of (i) Operating Expenditures for the period beginning on the Closing Date and
ending on the last day of such period, (ii) the amount of cash reserves (or the Partnership’s
proportionate share of cash reserves in the case of Subsidiaries that are not wholly owned)
established by the Managing General Partner to provide funds for future Operating Expenditures and
(iii) all Working Capital Borrowings not repaid within twelve months after having been incurred;
provided, however, that disbursements made (including contributions to a Group Member or
disbursements on behalf of a Group Member) or cash reserves established, increased or reduced after
the end of such period but on or before the date of determination of Available Cash with respect to
such period shall be deemed to have been made, established, increased or reduced, for purposes of
determining Operating Surplus, within such period if the Managing General Partner so determines.



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



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



     “Organizational Limited Partner” means CVR LP, LLC in its capacity as the organizational
limited partner of the Partnership pursuant to this Agreement.



     “Outstanding” means, with respect to Partnership Securities, all Partnership Securities that
are issued by the Partnership and reflected as outstanding on the Partnership’s books and records
as of the date of determination; provided, however, that if at any time following the Initial
Offering any Person or Group (other than any General Partner or their respective Affiliates,
including CVR Energy, Inc.) beneficially owns 20% or more of the Outstanding Partnership Securities
of any class (treating Common LP Units and Common GP Units as the same class of Partnership
Securities) then Outstanding, all Partnership Securities owned by such Person or Group shall not be
entitled to be voted on any matter and shall not be considered to be Outstanding when sending
notices of a meeting of Limited Partners to vote on any matter (unless otherwise required by law),
calculating required votes, determining the presence of a quorum or for other similar purposes
under this Agreement, except that Partnership Securities so owned shall be considered to be
Outstanding for purposes of Section 11.1(b)(iv) (such Partnership



15









 






Securities shall not, however, be
treated as a separate class of Partnership Securities for purposes of this Agreement); provided,
further, that the foregoing limitation shall not apply to (i) any Person or Group who acquired 20%
or more of the Outstanding Partnership Securities of any class then Outstanding directly from the
Managing General Partner or its Affiliates, (ii) any Person or Group who acquired 20% or more of
the Outstanding Partnership Securities of any class then Outstanding directly or indirectly from a
Person or Group described in clause (i) provided that the Managing General Partner shall have
notified such Person or Group in writing that such limitation shall not apply, or (iii) any Person
or Group who acquired 20% or more of any Partnership Securities issued by the Partnership with the
prior approval of the Board of Directors.



     “Over-Allotment Option” means an over-allotment option granted by the Partnership in
connection with the Initial Public Offering.



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



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



     “Partner Nonrecourse Deductions” means any and all items of loss, deduction or expenditure
(including any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with
the principles of Treasury Regulation Section 1.704-2(i)(1), are attributable to a Partner
Nonrecourse Debt.



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



     “Partnership” means CVR Partners, LP, a Delaware limited partnership.



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



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



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



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



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



     “Percentage Interest” means as of any date of determination (a) as to any Unitholder with
respect to Units, the product obtained by multiplying (i) 100% less the percentage applicable to



16









 






clause (b) below by (ii) the quotient obtained by dividing (A) the number of Units held by such
Unitholder, by (B) the total number of all Outstanding Units, and (b) as to the holders of other
Partnership Securities issued by the Partnership in accordance with Section 5.4, the percentage
established as a part of such issuance. The Percentage Interest with respect to the Managing
General Partner Interest shall at all times be zero.



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



     “Pro Rata” means (a) when modifying Units or any class thereof, apportioned equally among all
designated Units in accordance with their relative Percentage Interests and (b) when modifying
Partners or Record Holders, apportioned among all Partners and Record Holders in accordance with
their relative Percentage Interests.



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



     “Quarter” means, unless the context requires otherwise, a fiscal quarter of the Partnership,
or, with respect to the fiscal quarter of the Partnership including the Closing Date, the portion
of such fiscal quarter from and after the Closing Date.



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



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



     “Record Holder” means (a) with respect to Partnership Securities of any class of Partnership
Securities for which a Transfer Agent has been appointed, the Person in whose name a Partnership
Security of such class is registered on the books of the Transfer Agent as of the opening of
business on a particular Business Day, or (b) with respect to other classes of Partnership
Interests, the Person in whose name any such other Partnership Interest is registered on the books
that the Managing General Partner has caused to be kept as of the opening of business on such
Business Day.



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



17









 





     “Registration Statement” means the Registration Statement on Form S-1 (Registration No.
333-137588) as it has been or as it may be amended or supplemented from time to time, filed by CVR
Energy, Inc. with the Commission under the Securities Act to register the offering and sale of
Common Stock of CVR Energy, Inc.



     “Remaining Net Positive Adjustments” means as of the end of any taxable period, (i) with
respect to the Unitholders, the excess of (a) the Net Positive Adjustments of the Unitholders as of
the end of such period over (b) the sum of those Partners’ Share of Additional Book Basis
Derivative Items for each prior taxable period, and (ii) with respect to the Managing General
Partner, the excess of (a) the Net Positive Adjustments of the Managing General Partner (in respect
of the Incentive Distribution Rights) as of the end of such period over (b) the sum of the Share of
Additional Book Basis Derivative Items of the Managing General Partner for each prior taxable
period.



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



     “Residual Gain” or “Residual Loss” means any item of gain or loss, as the case may be, of the
Partnership recognized for federal income tax purposes resulting from a sale, exchange or other
disposition of a Contributed Property or Adjusted Property, to the extent such item of gain or loss
is not allocated pursuant to Section 6.2(b)(i)(A) or 6.2(b)(ii)(A), respectively, to eliminate
Book-Tax Disparities.



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



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



     “Second Target Distribution” means $0.4688 per Unit per Quarter (or, with respect to periods
of less than a full fiscal quarter, it means the product of such amount multiplied by a fraction of
which the numerator is the number of days in such period, and of which the denominator is the total
number of days in such fiscal quarter), subject to adjustment in accordance with Sections 6.7 and
6.9.



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



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



     “Share of Additional Book Basis Derivative Items” means in connection with any allocation of
Additional Book Basis Derivative Items for any taxable period, (i) with respect to the Unitholders,
the amount that bears the same ratio to such Additional Book Basis Derivative Items as the
Unitholders’ Remaining Net Positive Adjustments as of the end of such period bears to the Aggregate
Remaining Net Positive Adjustments as of that time, (ii) with respect to the



18









 






Managing General
Partner, the amount that bears the same ratio to such Additional Book Basis Derivative Items as the
Remaining Net Positive Adjustments of the Managing General Partner as of the end of such period
bears to the Aggregate Remaining Net Positive Adjustments as of that time.



     “Special Approval” means approval by a majority of the members or the sole member, as
applicable, of the Conflicts Committee.



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



     “Special General Partner Interest” means the management and ownership interest of the Special
General Partner in the Partnership, which is represented by Special GP Units and, following the
Initial Offering will be represented by Subordinated GP Units or Common GP Units or a combination
thereof, and includes any and all benefits to which the Special General Partner is entitled as
provided in this Agreement, together with all obligations of the Special General Partner to comply
with the terms and provisions of this Agreement.



     “Special GP Unit” means a Unit representing, when outstanding, a fractional part of the
Special General Partner Interest, and having the rights and obligations specified with respect to
Special GP Units in this Agreement.



     “Special LP Unit” means a Unit representing, when outstanding, a fractional part of the
Partnership Interests of all Limited Partners, and having the rights and obligations specified with
respect to Special LP Units in this Agreement.



     “Special Unit” means a Special LP Unit or a Special GP Unit.



     “Subordinated GP Unit” means a Unit representing, when outstanding, a fractional part of the
Special General Partner Interest, and having the rights and obligations specified with respect to
Subordinated GP Units in this Agreement. The term “Subordinated GP Unit” does not refer to, or
include, any Common GP Unit. A Subordinated GP Unit that is convertible into a Common GP Unit
shall not constitute a Common GP Unit until such conversion occurs.



     “Subordinated LP Unit” means a Unit representing a fractional part of the Partnership
Interests of all Limited Partners and having the rights and obligations specified with respect to
Subordinated Units in this Agreement. The term “Subordinated LP Unit” does not refer to, or
include, any Common LP Unit. A Subordinated LP Unit that is convertible into a Common LP Unit shall
not constitute a Common LP Unit until such conversion occurs.



     “Subordinated Unit” means a Subordinated LP Unit or a Subordinated GP Unit.



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



19









 





     (a) the second Business Day following the distribution of Available Cash to Partners pursuant
to Section 6.3(a) in respect of any Quarter, beginning with the Quarter in which the fifth
anniversary of the IO Closing Date occurs, in respect of which (i) (A) distributions of Available
Cash from Operating Surplus on each of the Outstanding Common Units and Subordinated Units and any
other Outstanding Units that are senior or equal in right of distribution to the Subordinated Units
with respect to each of the three consecutive, non-overlapping four-Quarter periods immediately
preceding such date equaled or exceeded the sum of the Minimum Quarterly Distribution on all
Outstanding Common Units and Subordinated Units and any other Outstanding Units that are senior or
equal in right of distribution to the Subordinated Units during such periods and (B) the Adjusted
Operating Surplus for each of the three consecutive, non-overlapping four-Quarter periods
immediately preceding such date equaled or exceeded the sum of the Minimum Quarterly Distribution
on all of the Common Units and Subordinated Units and any other Units that are senior or equal in
right of distribution to the Subordinated Units that were Outstanding during such periods on a
Fully Diluted Basis, with respect to such periods and (ii) there are no Cumulative Common Unit
Arrearages; and



     (b) the date all Subordinated Units convert to Common Units pursuant to Section 11.4.



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



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



     “Third Target Distribution” means $0.5625 per Unit per Quarter (or, with respect to periods of
less than a full fiscal quarter, it means the product of such amount multiplied by a fraction of
which the numerator is the number of days in such period, and of which the denominator is the total
number of days in such fiscal quarter), subject to adjustment in accordance with Sections 6.7 and
6.9.



     “Trading Day” means, for the purpose of determining the Current Market Price of any class of
Limited Partner Interests, a day on which the principal National Securities Exchange on which such
class of Limited Partner Interests are listed or admitted to trading is open for the transaction of
business or, if Limited Partner Interests of a class are not listed or admitted to



20









 






trading on any
National Securities Exchange, a day on which banking institutions in New York City generally are
open.



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



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



     “Unit” means a Partnership Security that is designated as a “Unit” and shall include Special
Units, Common Units and Subordinated Units but shall not include the Managing General Partner
Interest or the associated Incentive Distribution Rights.



     “Unitholders” means the holders of Units.



     “Unit Majority” means, (a) prior to the Initial Offering, at least a majority of the
Outstanding Units, voting as a single class, (b) during the Subordination Period, at least a
majority of the Outstanding Common Units (excluding Common Units owned by the Managing General
Partner and its Affiliates) voting as a class and at least a majority of the Outstanding
Subordinated Units voting as a class, and (c) after the end of the Subordination Period, at least a
majority of the Outstanding Common Units.



     “Unpaid MQD” has the meaning assigned to such term in Section 6.1(c)(i)(B).



     “Unrealized Gain” attributable to any item of Partnership property means, as of any date of
determination, the excess, if any, of (a) the fair market value of such property as of such date
(as determined under Section 5.3(d)) over (b) the Carrying Value of such property as of such date
(prior to any adjustment to be made pursuant to Section 5.3(d) as of such date).



     “Unrealized Loss” attributable to any item of Partnership property means, as of any date of
determination, the excess, if any, of (a) the Carrying Value of such property as of such date
(prior to any adjustment to be made pursuant to Section 5.3(d) as of such date) over (b) the fair
market value of such property as of such date (as determined under Section 5.3(d)).



     “Unrecovered Initial Unit Price” means at any time, with respect to a Unit, the Initial Unit
Price less the sum of all distributions constituting Capital Surplus theretofore made in respect of
an Initial Unit and any distributions of cash (or the Net Agreed Value of any distributions in
kind) in connection with the dissolution and liquidation of the Partnership theretofore made in
respect of an Initial Unit, adjusted as the Managing General Partner determines to be appropriate
to give effect to any distribution, subdivision or combination of such Units. The Unrecovered
Initial Unit Price will be reset to the Initial Unit Price upon the closing of the Initial
Offering.



     “Unrestricted Person” means each Indemnitee, each Partner and each Person who is or was a
member, partner, director, officer, employee or agent of any Group Member, a General



21









 






Partner or any
Departing General Partner or any Affiliate of any Group Member, a General Partner or any Departing
General Partner



     “U.S. GAAP” means United States generally accepted accounting principles, as in effect from
time to time, consistently applied.



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



     “Working Capital Borrowings” means borrowings used solely for working capital purposes or to
pay distributions to Partners, made pursuant to a credit facility, commercial paper facility or
similar financing arrangement; provided that when incurred it is the intent of the borrower to
repay such borrowings within 12 months from other than additional Working Capital Borrowings.



     Section 1.2 Construction. Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include
the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and
verbs shall include the plural and vice versa; (b) references to Articles and Sections refer to
Articles and Sections of this Agreement; (c) the terms “include”, “includes”, “including” and words
of like import shall be deemed to be followed by the words “without limitation”; and (d) the terms
“hereof”, “herein” and “hereunder” refer to this Agreement as a whole and not to any particular
provision of this Agreement. The table of contents and headings contained in this
Agreement are for reference purposes only, and shall not affect in any way the meaning or
interpretation of this Agreement.



ARTICLE II

ORGANIZATION




     Section 2.1 Formation. The Managing General Partner and the Organizational Limited Partner have formed the
Partnership as a limited partnership pursuant to the provisions of the Delaware Act. This Agreement
shall become effective on the date of hereof. Except as expressly provided to the contrary in this
Agreement, the rights, duties (including fiduciary duties), liabilities and obligations of the
Partners and the administration, dissolution and termination of the Partnership shall be governed
by the Delaware Act.



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



     Section 2.3 Registered Office; Registered Agent; Principal Office; Other Offices. Unless and until changed by the Managing General Partner, the registered office of the
Partnership in the State of Delaware shall be located at 1209 Orange Street, Wilmington, Delaware
19801, and the registered agent for service of process on the Partnership in the State of



22









 






Delaware
at such registered office shall be The Corporation Trust Company. The principal office of the
Partnership shall be located at 2277 Plaza Drive, Suite 500, Sugar Land, Texas 77479 or such other
place as the Managing General Partner may from time to time designate by notice to the Partners.
The Partnership may maintain offices at such other place or places within or outside the State of
Delaware as the Managing General Partner shall determine necessary or appropriate. The address of
the Managing General Partner shall be 2277 Plaza Drive, Suite 500, Sugar Land, Texas 77479 or such
other place as the Managing General Partner may from time to time designate by notice to the
Partners.



     Section 2.4 Purpose and Business. The purpose and nature of the business to be conducted by the Partnership shall be to
engage directly in, or enter into or form, hold and dispose of any corporation, partnership, joint
venture, limited liability company or other arrangement to engage indirectly in, any business
activity that is approved by the Managing General Partner, in its sole discretion, and that
lawfully may be conducted by a limited partnership organized pursuant to the Delaware Act and, in
connection therewith, to exercise all of the rights and powers conferred upon the Partnership
pursuant to the agreements relating to such business activity, and do anything necessary or
appropriate to the foregoing, including the making of capital contributions or loans to a Group
Member; provided, however, that the without the approval of Unitholders holding at least 90% of the
Outstanding Units (including Units held by the Managing General Partner and its Affiliates) voting
as a single class the Managing General Partner shall not cause the Partnership to take any action
that the Managing General Partner determines would cause the Partnership to be treated as an
association taxable as a corporation or otherwise taxable as an entity for federal income tax
purposes. To the fullest extent permitted by law, the Managing General Partner shall have no duty
or obligation to propose or approve, and may, in its individual capacity, decline to propose or
approve, the conduct by the Partnership of any business.



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



     Section 2.6 Power of Attorney.



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




     (i) execute, swear to, acknowledge, deliver, file and record in the appropriate public
offices (A) all certificates, documents and other instruments (including this Agreement and
the Certificate of Limited Partnership and all amendments or restatements hereof or thereof)
that the Managing General Partner or the Liquidator determines to be necessary or
appropriate to form, qualify or continue the existence or qualification of the Partnership
as a limited partnership (or a partnership in which the limited partners have



23









 






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 Managing General Partner or the Liquidator determines to be necessary or
appropriate to reflect, in accordance with its terms, any amendment, change, modification or
restatement of this Agreement; (C) all certificates, documents and other instruments
(including conveyances and a certificate of cancellation) that the Managing General Partner
or the Liquidator determines to be necessary or appropriate to reflect the dissolution and
termination of the Partnership pursuant to the terms of this Agreement; (D) all
certificates, documents and other instruments relating to the admission, withdrawal, removal
or substitution of any Partner pursuant to, or other events described
in, Article IV, X, XI or XII; (E) all certificates, documents and other instruments
relating to the determination of the rights, preferences and privileges of any class or
series of Partnership Securities issued pursuant to Section 5.4; and (F) all certificates,
documents and other instruments (including agreements and a certificate of merger) relating
to a merger, consolidation or conversion of the Partnership pursuant to Article XIV; and




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


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




     (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 Partner and the transfer of all or any portion of such Partner’s Partnership
Interest and shall extend to such Partner’s heirs, successors, assigns and personal
representatives. Each Partner hereby agrees to be bound by any representation made by the Managing
General Partner or the Liquidator acting in good faith pursuant to such power of attorney; and each
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 Managing General Partner or the
Liquidator taken in good faith under such power of attorney. Each Partner shall execute and deliver
to the Managing 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 Managing
General Partner or the Liquidator may request in order to effectuate this Agreement and the
purposes of the Partnership.




24










 





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



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



ARTICLE III

RIGHTS OF LIMITED PARTNERS




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



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



     Section 3.3 Outside Activities of the Limited Partners. Subject to the provisions of Section 7.5 and the Omnibus Agreement, which shall continue to
be applicable to the Persons



25









 






referred to therein, regardless of whether such Persons shall also be
Limited Partners, each Limited Partner shall be entitled to and may have any business interests and
engage in any business activities in addition to those relating to the Partnership, including
business interests and activities in direct competition with the Partnership Group. Neither the
Partnership nor any of the other Partners shall have any rights by virtue of this Agreement in any
business ventures of any Limited Partner.



     Section 3.4 Rights of Limited Partners.



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




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




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




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




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




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




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



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



26









 





ARTICLE IV

CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS;

REDEMPTION OF PARTNERSHIP INTERESTS




     Section 4.1 Certificates. Notwithstanding anything otherwise to the contrary herein, unless the Managing General
Partner shall determine otherwise in respect of some or all of any or all classes of Partnership
Interests, Partnership Interests shall not be evidenced by certificates. Certificates that may be
issued shall be executed on behalf of the Partnership by the Chairman of the Board, President or
any Executive Vice President or Vice President and the Secretary or any Assistant Secretary of the
Managing General Partner. If a Transfer Agent has been appointed for a class of Partnership
Interests, no Certificate for such class of Partnership Interests shall be valid for any purpose
until it has been countersigned by the Transfer Agent; provided, however, that if the Managing
General Partner elects to cause the Partnership to issue Partnership Interests of such class in
global form, the Certificate shall be valid upon receipt of a certificate from the Transfer Agent
certifying that the Partnership Interests have been duly registered in accordance with the
directions of the Partnership. Subject to the requirements of Section 6.8(b), if Common Units are
evidenced by Certificates the Record Holders of Subordinated Units, (i) may, if the Subordinated
Units are evidenced by Certificates, exchange such Certificates for Certificates evidencing Common
Units or (ii) if the Subordinated Units are not evidenced by Certificates, shall be issued
Certificates evidencing Common Units, in either case on or after the date on which such
Subordinated Units are converted into Common Units pursuant to the terms of Section 5.6.



     Section 4.2 Mutilated, Destroyed, Lost or Stolen Certificates.



     (a) If any mutilated Certificate is surrendered to the Transfer Agent (or the Managing General
Partner, if there is no Transfer Agent for the applicable class of Partnership Securities), the
appropriate officers of the Managing General Partner on behalf of the Partnership shall execute,
and, if applicable, the Transfer Agent shall countersign and deliver in exchange therefor, a new
Certificate evidencing the same number and type of Partnership Securities as the Certificate so
surrendered.



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




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




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




     (iii) if requested by the Managing General Partner, delivers to the Managing General
Partner a bond, in form and substance satisfactory to the Managing General



27









 






Partner, with
surety or sureties and with fixed or open penalty as the Managing General Partner may
direct, to indemnify the Partnership, the Partners, the Managing General Partner and the
Transfer Agent against any claim that may be made on account of the alleged loss,
destruction or theft of the Certificate; and




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



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



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



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



     Section 4.4 Transfer Generally.



     (a) The term “transfer,” when used in this Agreement with respect to a Partnership Interest,
shall mean a transaction (i) by which the Managing General Partner assigns its Managing General
Partner Interest to another Person, and includes a sale, assignment, gift, pledge, encumbrance,
hypothecation, mortgage, exchange or any other disposition by law or otherwise, (ii) by which the
Special General Partner assigns its Special General Partner Interest to another Person, and
includes a sale, assignment, gift, pledge, encumbrance, hypothecation, mortgage, exchange or any
other disposition by law or otherwise or (iii) by which the holder of a Limited Partner Interest
assigns such Limited Partner Interest to another Person who is or becomes a Limited Partner, and
includes a sale, assignment, gift, exchange or any other disposition by law or otherwise, including
any transfer upon foreclosure of any pledge, encumbrance, hypothecation or mortgage. The term
“transfer” shall not mean a transfer of the



28









 






Managing General Partner, the Special General Partner
or the holder of a Limited Partner Interest.



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



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



     Section 4.5 Registration and Transfer of Limited Partner Interests.



     (a) The Managing General Partner shall keep or cause to be kept on behalf of the Partnership a
register in which, subject to such reasonable regulations as it may prescribe and subject to the
provisions of Section 4.5(b), the Partnership will provide for the registration and transfer of
Limited Partner Interests.



     (b) The Partnership shall not recognize any transfer of Limited Partner Interests evidenced by
Certificates until the Certificates evidencing such Limited Partner Interests are surrendered for
registration of transfer. No charge shall be imposed by the Managing General Partner for such
transfer; provided, that as a condition to the issuance of any new Certificate under this Section
4.5, the Managing General Partner may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed with respect thereto. Upon surrender of a
Certificate for registration of transfer of any Limited Partner Interests evidenced by a
Certificate, and subject to the provisions hereof, the appropriate officers of the Managing General
Partner on behalf of the Partnership shall execute and deliver, and in the case of Certificates
evidencing Limited Partner Interests for which a Transfer Agent has been appointed, the Transfer
Agent shall countersign and deliver, in the name of the holder or the designated transferee or
transferees, as required pursuant to the holder’s instructions, one or more
new Certificates evidencing the same aggregate number and type of Limited Partner Interests as
was evidenced by the Certificate so surrendered.



     (c) By acceptance of the transfer of any Limited Partner Interests in accordance with this
Section 4.5 and except as provided in Section 4.9, each transferee of a Limited Partner Interest
(including any nominee holder or an agent or representative acquiring such Limited Partner
Interests for the account of another Person) (i) shall be admitted to the Partnership as a Limited
Partner with respect to the Limited Partner Interests so transferred to such Person when any such
transfer or admission is reflected in the books and records of the Partnership and such Limited
Partner becomes the Record Holder of the Limited Partner Interests so transferred, with or without
execution of this Agreement, (ii) shall become bound by the terms of this Agreement, (iii)
represents that the transferee has the capacity, power and authority to enter into this Agreement,
(iv) grants the powers of attorney set forth in this Agreement and (v) makes the consents and
waivers contained in this Agreement. The transfer of any Limited Partner Interests



29









 






and the
admission of any new Limited Partner shall not constitute and amendment to this Agreement.



     (d) Subject to (i) the foregoing provisions of this Section 4.5, (ii) Section 4.3, (iii)
Section 4.8, (iv) with respect to any series of Limited Partner Interests, the provisions of any
statement of designations establishing such series, (v) any contractual provisions binding on any
Limited Partner and (vi) provisions of applicable law including the Securities Act, Limited Partner
Interests shall be freely transferable.



     Section 4.6 Registration and Transfer of the Special General Partner Interest.



     (a) The Managing General Partner shall keep or cause to be kept on behalf of the Partnership a
register in which, subject to such reasonable regulations as it may prescribe and subject to the
provisions of Section 4.6(b), the Partnership will provide for the registration and transfer of
Special General Partner Interests.



     (b) The Partnership shall not recognize any transfer of Special General Partner Interests
evidenced by Certificates until the Certificates evidencing such Special General Partner Interests
are surrendered for registration of transfer. No charge shall be imposed by the Managing General
Partner for such transfer; provided, that as a condition to the issuance of any new Certificate
under this Section 4.6, the Managing General Partner may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed with respect thereto. Upon
surrender of a Certificate for registration of transfer of any Special General Partner Interests
evidenced by a Certificate, and subject to the provisions hereof, the appropriate officers of the
Managing General Partner on behalf of the Partnership shall execute and deliver, and in the case of
Certificates evidencing Special General Partner Interests for which a Transfer Agent has been
appointed, the Transfer Agent shall countersign and deliver, in the name of the holder or the
designated transferee or transferees, as required pursuant to the holder’s instructions, one or
more new Certificates evidencing the same aggregate number and type of Special General Partner
Interests as was evidenced by the Certificate so surrendered.



     (c) The Special GP Units, Common GP Units and Subordinated GP Units are transferable as
Special GP Units, Common GP Units and Subordinated GP Units only to Affiliates of the Special
General Partner. If the Special General Partner desires to transfer Special GP Units, Common GP
Units or Subordinated GP Units to Persons who are not Affiliates of the Special General Partner,
the Special General Partner shall give notice to the Managing General Partner prior to effecting
any such transfer. Each Special GP Unit, Common GP Unit and Subordinated GP Unit will
automatically convert into a Special LP Unit, Common LP Unit or Subordinated LP Unit, respectively,
on a one-for-one basis immediately prior to the transfer of such Unit to any Person who is not an
Affiliate of the Special General Partner. The transfer of such converted Special GP Units, Common
GP Units and Subordinated GP Units shall be governed by the provisions of this Agreement relating
to transfer of Limited Partner Interests as if such Special GP Units, Common GP Units and
Subordinated GP Units were Special LP Units, Common LP Units or Subordinated LP Units,
respectively. By acceptance of the transfer of any Special General Partner Interests (whether it
be represented by Special GP Units, Common GP Units or Subordinated GP Units) in accordance with
this Section 4.6 and except as provided in Section 4.9, each transferee of a Special General
Partner Interest (who, for



30









 






clarification, must be an Affiliate of the Special General Partner) (i)
shall be admitted to the Partnership as a Special General Partner with respect to the Special
General Partner Interests so transferred to such Person when any such transfer or admission is
reflected in the books and records of the Partnership and such Special General Partner becomes the
Record Holder of the Special General Partner Interests so transferred, with or without execution of
this Agreement, (ii) shall become bound by the terms of this Agreement, (iii) represents that the
transferee has the capacity, power and authority to enter into this Agreement, (iv) grants the
powers of attorney set forth in this Agreement and (v) makes the consents and waivers contained in
this Agreement. The transfer of any Special General Partner Interests and the admission of any new
Special General Partner shall not constitute and amendment to this Agreement. If the Special
General Partner transfers some, but less than all, of its Special General Partner to an Affiliate
who is admitted to the Partnership as a Special General Partner, such that there is more than one
Special General Partner, the Managing General Partner shall, with the advice of the Special General
Partners, amend this Agreement as the Managing General Partner determines necessary or appropriate
to allocate the rights and obligations of the Special General Partner Interest among the Special
General Partners, Pro Rata, and to provide for exercise of such rights by majority or individual
vote.



     (d) Subject to (i) the foregoing provisions of this Section 4.6, (ii) Section 4.3, (iii)
Section 4.8, (iv) with respect to any series of Special General Partner Interests, the provisions
of any statement of designations establishing such series, (v) any contractual provisions binding
on any Special General Partner and (vi) provisions of applicable law including the Securities Act,
Special General Partner Interests shall be freely transferable



     Section 4.7 Transfer of the Managing General Partner Interest.



     (a) Subject to Section 4.7(c) below, prior to the tenth anniversary of the Closing Date, the
Managing General Partner shall not transfer all or any part of its Managing General Partner
Interest to a Person unless such transfer (i) has been approved by (X) the prior written
consent or vote of the holders of at least a majority of the Outstanding Units (excluding Units
held by the Managing General Partner and its Affiliates) and (Y) the Special General Partner or
(ii) is of all, but not less than all, of its Managing General Partner Interest to (A) an Affiliate
of the Managing General Partner (other than an individual) or (B) another Person (other than an
individual) in connection with the merger or consolidation of the Managing General Partner with or
into such other Person or the transfer by the Managing General Partner of all or substantially all
of its assets to such other Person.



     (b) Subject to Section 4.7(c) below, on or after the tenth anniversary of the Closing Date,
the Managing General Partner may transfer all or any part of its Managing General Partner Interest
without Unitholder approval.



     (c) Notwithstanding anything herein to the contrary, no transfer by the Managing General
Partner of all or any part of its Managing General Partner Interest to another Person shall be
permitted unless (i) the transferee agrees to assume the rights and duties of the Managing General
Partner under this Agreement and to be bound by the provisions of this Agreement, (ii) the
Partnership receives an Opinion of Counsel that such transfer would not result in the loss of
limited liability under Delaware law of any Limited Partner or cause the Partnership to be treated



31









 






as an association taxable as a corporation or otherwise to be taxed as an entity for federal income
tax purposes (to the extent not already so treated or taxed) and (iii) such transferee also agrees
to purchase all (or the appropriate portion thereof, if applicable) of the partnership or
membership interest of the Managing General Partner as the general partner or managing member, if
any, of each other Group Member. In the case of a transfer pursuant to and in compliance with this
Section 4.6, the transferee or successor (as the case may be) shall, subject to compliance with the
terms of Section 10.2, be admitted to the Partnership as the Managing General Partner effective
immediately prior to the transfer of the Managing General Partner Interest, and the business of the
Partnership shall continue without dissolution.



     (d) The Incentive Distribution Rights are an inseparable part of the Managing General Partner
Interest and are not transferable apart from the Managing General Partner Interest.



     Section 4.8 Restrictions on Transfers.



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



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



     (c) The transfer of a Subordinated Unit that has converted into a Common Unit shall be subject
to the restrictions imposed by Section 6.8(b).



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



     Section 4.9 Eligible Holders.



     (a) If any Group Member is or becomes subject to any law or regulation that the Managing
General Partner determines would create a substantial risk of cancellation or forfeiture



32









 






of any
property in which the Group Member has an interest based on the nationality, citizenship or other
related status of a Partner, the Managing General Partner may amend this Agreement to impose
requirements for each Partner to be eligible to be a Partner in the Partnership. If the Managing
General Partner establishes any such requirement, the Managing General Partner may request any
Partner to furnish to the Managing General Partner, within 30 days after receipt of such request,
an executed Eligibility Certification or such other information concerning his nationality,
citizenship or other related status (or, if the Partner is a nominee holding for the account of
another Person, the nationality, citizenship or other related status of such Person) as the
Managing General Partner may request. If a Partner fails to furnish to the Managing General Partner
within the aforementioned 30-day period such Eligibility Certification or other requested
information or if upon receipt of such Eligibility Certification or other requested information the
Managing General Partner determines that a Partner is not an Eligible Holder, the Partnership
Interests owned by such Limited Partner shall be subject to redemption in accordance with the
provisions of Section 4.10. In addition, the Managing General Partner may require that the status
of any such Partner be changed to that of a Ineligible Holder and, thereupon, the Managing General
Partner shall be substituted for such Ineligible Holder as the Partner in respect of the Ineligible
Holder’s Partnership Interests.



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



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



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



     Section 4.10 Redemption of Partnership Interests of Ineligible Holders.



     (a) If at any time a Partner fails to furnish an Eligibility Certification or other
information requested within the 30-day period specified in Section 4.9(a), or if upon receipt of
such Eligibility Certification or other information the Managing General Partner determines, with
the advice of counsel, that a Partner is not an Eligible Holder, the Partnership may, unless the
Partner establishes to the satisfaction of the Managing General Partner that such Partner is an
Eligible Holder or has transferred his Partnership Interests to a Person who is an Eligible Holder
and who furnishes an Eligibility Certification to the Managing General Partner prior to the date



33









 






fixed for redemption as provided below, redeem the Partnership Interest of such Partner as follows:




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




     (ii) The aggregate redemption price for Redeemable Interests shall be an amount equal
to the Current Market Price (the date of determination of which shall be the
date fixed for redemption) of Partnership Interests of the class to be so redeemed
multiplied by the number of Partnership Interests of each such class included among the
Redeemable Interests. The redemption price shall be paid, as determined by the Managing
General Partner, in cash or by delivery of a promissory note of the Partnership in the
principal amount of the redemption price, bearing interest at the rate of 8% annually and
payable in three equal annual installments of principal together with accrued interest,
commencing one year after the redemption date.




     (iii) The Partner or his duly authorized representative shall be entitled to receive
the payment for the Redeemable Interests at the place of payment specified in the notice of
redemption on the redemption date (or, if later in the case of Redeemable Interests
evidenced by Certificates, upon surrender by or on behalf of the Partner at the place
specified in the notice of redemption, of the Certificate evidencing the Redeemable
Interests, duly endorsed in blank or accompanied by an assignment duly executed in blank).




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



     (b) The provisions of this Section 4.10 shall also be applicable to Partnership Interests held
by a Partner as nominee of a Person determined to be an Ineligible Holder.



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



34









 





ARTICLE V

CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS








     Section 5.1 Contributions by the General Partners and their Affiliates.












     (a)
In connection with the formation of the Partnership under the Delaware Act, the Managing
General Partner made an initial Capital Contribution to the
Partnership in the amount of $1,000, for
the Managing General Partner Interest in the Partnership and has been admitted as the Managing
General Partner of the Partnership, and the Special General Partner and Organizational Limited
Partner each made an initial Capital Contribution to the Partnership
in the amount of $1,000 and
have been admitted as the Special General Partner and Organizational Limited Partner, respectively,
of the Partnership. As of the Closing Date, the initial $1,000 contributed by each of the Special
General Partner and the Organizational Limited Partner shall be refunded as provided in the
Contribution Agreement.







     (b) On the Closing Date
and pursuant to the Contribution Agreement, Coffeyville Resources, LLC
conveyed: (i) 99.9% of its interest in Coffeyville Resources Nitrogen Fertilizer, LLC to the Partnership on behalf
of the Special General Partner, as a Capital Contribution in exchange for the issuance to the
Special General Partner of the 30,303,000 Special GP Units, subject to all of the rights,
privileges and duties of the Special General Partner under this Agreement; and (ii) 0.1% of its
interest in Coffeyville Resources Nitrogen Fertilizer, LLC to the Partnership on
behalf of the Organizational Limited Partner, as a Capital Contribution in exchange for the
issuance to the Organizational Limited Partner of 30,333 Special LP Units.



     Section 5.2 Interest and Withdrawal. No interest on Capital Contributions shall be paid by the Partnership. No Partner shall be
entitled to the withdrawal or return of its Capital Contribution, except to the extent, if any,
that distributions made pursuant to this Agreement or upon dissolution of the Partnership may be
considered as the withdrawal or return of its Capital Contribution by law and then only to the
extent provided for in this Agreement. Except to the extent expressly provided in this Agreement,
no Partner shall have priority over any other Partner either as to the return of Capital
Contributions or as to profits, losses or distributions. Any such return shall be a compromise to
which all Partners agree within the meaning of Section 17-502(b) of the Delaware Act.



     Section 5.3 Capital Accounts.



     (a) The Partnership shall maintain for each Partner (or a beneficial owner of Partnership
Interests held by a nominee in any case in which the nominee has furnished the identity of such
owner to the Partnership in accordance with Section 6031(c) of the Code or any other method
acceptable to the Managing General Partner) owning a Partnership Interest a separate Capital
Account with respect to such Partnership Interest in accordance with the rules of Treasury
Regulation Section 1.704-1(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of
all Capital Contributions made to the Partnership with respect to such Partnership Interest and
(ii) all items of Partnership income and gain (including income and gain exempt from tax) computed
in accordance with Section 5.3(b) and allocated with respect to such Partnership Interest pursuant
to Section 6.1, and decreased by (x) the amount of cash or Net Agreed Value of all actual and
deemed distributions of cash or property made with respect to such Partnership Interest and (y) all
items of Partnership deduction and loss computed in accordance with Section 5.3(b) and allocated
with respect to such Partnership Interest pursuant to Section 6.1.



     (b) For purposes of computing the amount of any item of income, gain, loss or deduction which
is to be allocated pursuant to Article VI and is to be reflected in the Partners’ Capital Accounts,
the determination, recognition and classification of any such item shall be the



35









 






same as its
determination, recognition and classification for federal income tax purposes (including any method
of depreciation, cost recovery or amortization used for that purpose), provided, that:




     (i) Solely for purposes of this Section 5.3, the Partnership shall be treated as owning
directly its proportionate share (as determined by the Managing General Partner based upon
the provisions of the applicable Group Member Agreement) of all property owned by any other
Group Member that is classified as a partnership or a disregarded entity for federal income
tax purposes.




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




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




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




     (v) In accordance with the requirements of Section 704(b) of the Code, any deductions
for depreciation, cost recovery or amortization attributable to any Contributed Property
shall be determined as if the adjusted basis of such property on the date it was acquired by
the Partnership were equal to the Agreed Value of such property. Upon an adjustment pursuant
to Section 5.3(d) to the Carrying Value of any Partnership property subject to depreciation,
cost recovery or amortization, any further deductions for such depreciation, cost recovery
or amortization attributable to such property shall be determined (A) as if the adjusted
basis of such property were equal to the Carrying Value of such property immediately
following such adjustment and (B) using a rate of depreciation, cost recovery or
amortization derived from the same method and useful life (or, if applicable, the remaining
useful life) as is applied for federal income tax purposes; provided, however, that, if the
asset has a zero adjusted basis for federal income tax purposes, depreciation, cost recovery
or amortization deductions shall be determined using any method that the Managing General
Partner may adopt.



36









 






     (vi) If the Partnership’s adjusted basis in a depreciable or cost recovery property is
reduced for federal income tax purposes pursuant to Section 50(c)(1) or 50(c)(3) of the
Code, the amount of such reduction shall, solely for purposes hereof, be deemed to be an
additional depreciation or cost recovery deduction in the year such property is placed in
service and shall be allocated among the Partners pursuant to Section 6.1. Any restoration
of such basis pursuant to Section 50(c)(2) of the Code shall, to the extent possible, be
allocated in the same manner to the Partners to whom such deemed deduction was allocated.



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




     (ii) Subject to Section 6.8(c), immediately prior to the transfer of a Subordinated
Unit or of a Subordinated Unit that has converted into a Common Unit pursuant to Section 5.6
by a holder thereof (other than a transfer to an Affiliate unless the Managing General
Partner elects to have this subparagraph 5.3(d)(ii) apply), the Capital Account maintained
for such Person with respect to its Subordinated Units or converted Subordinated Units will
(A) first, be allocated to the Subordinated Units or converted Subordinated Units to be
transferred in an amount equal to the product of (x) the number of such Subordinated Units
or converted Subordinated Units to be transferred and (y) the Per Unit Capital Amount for a
Common Unit, and (B) second, any remaining balance in such Capital Account will be retained
by the transferor, regardless of whether it has retained any Subordinated Units or converted
Subordinated Units (“Retained Converted Subordinated Units”). Following any such
allocation, the transferor’s Capital Account, if any, maintained with respect to the
retained Subordinated Units or Retained Converted Subordinated Units, if any, will have a
balance equal to the amount allocated under clause (B) hereinabove, and the transferee’s
Capital Account established with respect to the transferred Subordinated Units or Retained
Converted Subordinated Units will have a balance equal to the amount allocated under clause
(A) hereinabove.



     (d) (i) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), upon an issuance
of additional Partnership Interests for cash or Contributed Property, the issuance of Partnership
Interests as consideration for the provision of services or the conversion of the Managing General
Partner’s Combined Interest to Common Units pursuant to Section 11.3(b), the Capital Account of all
Partners and the Carrying Value of each Partnership property immediately prior to such issuance
shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable
to such Partnership property, as if such Unrealized Gain or Unrealized Loss had been recognized on
an actual sale of each such property immediately prior to such issuance and had been allocated to
the Partners at such time pursuant to Section 6.1(c). In determining such Unrealized Gain or
Unrealized Loss, the aggregate cash amount and fair market value of all Partnership assets
(including cash or cash equivalents) immediately prior to the issuance of additional Partnership
Interests shall be determined by the Managing General Partner using such method of valuation as it
may adopt; provided, however, that the Managing General Partner, in arriving at such valuation,
must take fully into account the fair market value of the Partnership Interests of all Partners at
such time. The Managing General Partner shall allocate such aggregate value among the assets of the
Partnership (in such manner as it determines) to arrive at a fair market value for individual
properties.



37









 






     (ii) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), immediately
prior to any actual or deemed distribution to a Partner of any Partnership property (other
than a distribution of cash that is not in redemption or retirement of a Partnership
Interest), the Capital Accounts of all Partners and the Carrying Value of all Partnership
property shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized
Loss attributable to such Partnership property, as if such Unrealized Gain or Unrealized
Loss had been recognized in a sale of such property immediately prior
to such distribution for an amount equal to its fair market value, and had been
allocated to the Partners, at such time, pursuant to Section 6.1(c). In determining such
Unrealized Gain or Unrealized Loss the aggregate cash amount and fair market value of all
Partnership assets (including cash or cash equivalents) immediately prior to a distribution
shall (A) in the case of an actual distribution that is not made pursuant to Section 12.4 or
in the case of a deemed distribution, be determined and allocated in the same manner as that
provided in Section 5.3(d)(i) or (B) in the case of a liquidating distribution pursuant to
Section 12.4, be determined and allocated by the Liquidator using such method of valuation
as it may adopt.



     Section 5.4 Issuances of Additional Partnership Securities.



     (a)








     (i) Subject to the provisions of Section 7.3(b) and to any prior approval required by
Section 7.3, the Partnership may issue additional Partnership Securities and options,
rights, warrants and appreciation rights relating to the Partnership Securities for any
Partnership purpose at any time and from time to time to such Persons for such consideration
and on such terms and conditions as the Managing General Partner shall determine, all
without the approval of any Partners.












     (ii) The Managing General Partner may, in its sole discretion but subject to any prior
approval required by Section 7.3, cause the Partnership to undertake the Initial Offering;
provided, that the Managing General Partner shall not cause the Partnership to undertake or
consummate the Initial Offering unless the Managing General Partner determines, after
consultation with the Special General Partner, that the Partnership
is likely to be able to:
(A) make distributions under Section 6.4 in respect of all
Common Units and Subordinated Units and any other Units that are
senior or equal in right of distribution to the Subordinated Units
that are expected to be Outstanding with respect to each of the two
consecutive, non-overlapping four-Quarter periods immediately
following the IO Closing Date in an amount equal to or greater
than the sum of the Minimum Quarterly Distribution on all of the
Outstanding Common Units and Subordinated Units and any other
Outstanding Units that are senior or equal in right of distribution
to the Subordinated Units during such periods; and (B) generate
Adjusted Operating Surplus for each of the two consecutive,
non-overlapping four-Quarter periods immediately following the IO
closing date in an amount equal to or greater than the sum of the
Minimum Quarterly Distribution on all of the Common Units,
Subordinated Units and any other Units that are senior or equal in
right of distribution to the Subordinated Units that are expected to
be Outstanding during such periods on a Fully Diluted Basis.












     (iii) If the Managing General Partner determines
that the Partnership is not likely to be able to satisfy the tests set forth in Section
5.4(a)(ii), the Managing General Partner may, in its sole discretion and effective upon closing
of the Initial Offering, reduce the Minimum Quarterly Distribution to an amount the Managing
General Partner determines to be an appropriate level such that the Partnership is likely to
be able to satisfy the tests set forth in Section 5.4(a)(ii) with the reduced Minimum Quarter
Distribution.







     (b) Each additional Partnership Security authorized to be issued by the Partnership pursuant
to Section 5.4(a) may be issued in one or more classes, or one or more series of any such classes,
with such designations, preferences, rights, powers and duties (which may be senior or junior to
existing classes and series of Partnership Securities), as shall be fixed by the Managing General
Partner, including (i) the right to share in Partnership profits and losses or items thereof; (ii)
the right to share in Partnership distributions; (iii) the rights upon dissolution



38









 






and liquidation
of the Partnership; (iv) whether, and the terms and conditions upon which, the Partnership may, or
shall be required to, redeem the Partnership Security (including sinking fund provisions); (v)
whether such Partnership Security is issued with the privilege of conversion or exchange and, if
so, the terms and conditions of such conversion or exchange; (vi) the terms and
conditions upon which each Partnership Security will be issued, evidenced by certificates and
assigned or transferred; (vii) the method for determining the Percentage Interest as to such
Partnership Security; and (viii) the right, if any, of each such Partnership Security to vote on
Partnership matters, including matters relating to the relative rights, preferences and privileges
of such Partnership Security.



     (c) The Managing General Partner shall take all actions that it determines to be necessary or
appropriate in connection with (i) each issuance of Partnership Securities and options, rights,
warrants and appreciation rights relating to Partnership Securities pursuant to this Section 5.4,
(ii) the conversion of the Managing General Partner Interest (including the associated Incentive
Distribution Rights) into Units pursuant to the terms of this Agreement, (iii) reflecting the
admission of such additional Partners in the books and records of the Partnership as the Record
Holder of such Partnership Securities, and (iv) all additional issuances of Partnership Securities.
The Managing General Partner shall determine the relative rights, powers and duties of the holders
of the Units or other Partnership Securities being so issued. The Managing General Partner shall do
all things necessary to comply with the Delaware Act and is authorized and directed to do all
things that it determines to be necessary or appropriate in connection with any future issuance of
Partnership Securities or in connection with the conversion of the Managing General Partner
Interest into Units pursuant to the terms of this Agreement, including compliance with any statute,
rule, regulation or guideline of any federal, state or other governmental agency or any National
Securities Exchange on which the Units or other Partnership Securities are listed or admitted to
trading.



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



     Section 5.5 Conversion of Special Units.



     (a) Effective immediately prior to the closing of the Initial Offering:




     (i) the lesser of (i) all of the Special Units and (ii) that number of Special Units
that will represent 40% of all Units immediately following the closing of the Initial
Offering (without giving effect to any over-allotment option granted by the Partnership in
connection with any Initial Public Offering) shall convert into Subordinated Units on a
one-for-one basis; and




     (ii) the balance of the Special Units, if any, shall convert into Common Units on a
one-for-one basis.



     (b) In the event that the Special Units convert into Subordinated Units or Common Units, or a
combination thereof, pursuant to Section 5.5(a), at a time when there is more than one holder of
Special Units, then, unless all of the holders of Special Units agree to a different allocation,
the Special Units that are converted into Subordinated Units shall be allocated among the holders
of Special Units pro rata based on the number of Special Units held by each.



39









 





     (c) Special GP Units shall convert into Common GP Units or Subordinated GP Units, or a
combination thereof, and Special LP Units shall convert into Common LP Units or Subordinated LP
Units, or a combination thereof.



     Section 5.6 Conversion of Subordinated Units.



     (a) A total of 25% of the Subordinated Units will convert into Common Units on a one-for-one
basis on the second Business Day following the distribution of Available Cash to Partners pursuant
to Section 6.3(a) in respect of any Quarter, beginning with the Quarter in which the third
anniversary of the IO Closing Date occurs, in respect of which:




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








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








     (iii) there are no Cumulative Common Unit Arrearages.



     (b) An additional 25% of the Subordinated Units (calculated without giving effect to any
conversion pursuant to Section 5.7(a)) will convert into Common Units on a one-for-one basis on the
second Business Day following the distribution of Available Cash to Partners pursuant to Section
6.3(a) in respect of any Quarter, beginning with the Quarter in which the fourth anniversary of the
IO Closing Date occurs, in respect of which:




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



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



40









 










Basis; and








     (iii) there are no Cumulative Common Unit Arrearages;


provided, however, that the conversion of Subordinated Units pursuant to this Section 5.6(b) may
not occur until at least one year following the end of the last four-Quarter period in respect of
which conversion of Subordinated Units pursuant to Section 5.6(a) occurred (i.e. the last
four-Quarter contained in the “three consecutive, non-overlapping four-Quarter periods” referenced
in this Section 5.6(b) may not include any Quarter included in the “three consecutive,
non-overlapping four-Quarter periods” referenced in Section 5.6(a).




     (c) Any Subordinated Units that are not converted into Common Units pursuant to Section 5.6(a)
or Section 5.6(b) shall convert into Common Units on a one-for-one basis on the second Business Day
following the distribution of Available Cash to Partners pursuant to Section 6.3(a) in respect of
the final Quarter of the Subordination Period.



     (d) Outstanding Subordinated Units may also convert into Common Units on a one-for-one basis
as set forth in, and pursuant to the terms of, Section 11.4.



     (e) Subordinated GP Units shall convert into Common GP Units and Subordinated LP Units shall
convert into Common LP Units.



     (f) A Subordinated Unit that has converted into a Common Unit shall be subject to the
provisions of Section 6.8(c).



     (g) In the event that any Subordinated Units convert into Common Units pursuant to Section
5.6(a) or Section 5.6(b) at a time when there is more than one holder of Subordinated Units, then,
unless all of the holders of Subordinated Units agree to a different allocation, the Subordinated
Units that are to be converted into Common Units shall be allocated among the holders of
Subordinated Units pro rata based on the number of Subordinated Units held by each such holder.



     Section 5.7 Conversion of Common GP Units and Subordinated GP Units into Common LP Units and
Subordinated LP Units. All of the Common GP Units and Subordinated GP Units shall convert into Common LP Units and
Subordinated LP Units, respectively, on a one-for-one basis if the Special General Partner ceases
to own at least 15% of all Outstanding Units. Immediately upon such conversion, the Special
General Partner shall become a Limited Partner and shall cease to have any of the rights and
obligations of rights specified with respect to the Special General Partner (or the Special General
Partner Interest) in this Agreement.



     Section 5.8 Preemptive Right. Except as provided in this Section 5.8 or as otherwise provided in an agreement by the
Partnership relating to a future issuance of Partnership Securities, no Person shall have any
preemptive, preferential or other similar right with respect to the issuance of any Partnership
Security, whether unissued, held in the treasury or hereafter created. The Managing General Partner
shall have the right, which it may from time to time assign in whole or in part to any of its
Affiliates, to purchase Partnership Securities from the Partnership whenever, and on the same terms
that, the Partnership issues Partnership Securities



41









 






to Persons other than the Managing General
Partner and its Affiliates, to the extent necessary to maintain the Percentage Interests of the
Managing General Partner and its Affiliates equal to that which existed immediately prior to the
issuance of such Partnership Securities. The Special General Partner shall have the right, which
it may from time to time assign in whole or in part to any of its Affiliates, to purchase
Partnership Securities from the Partnership whenever, and on the same terms that, the Partnership
issues Partnership Securities to Persons other than the Special General Partner and its Affiliates
and other than in connection with the Initial Offering, to the extent necessary to maintain the
Percentage Interests of the Special General Partner and its Affiliates equal to that which existed
immediately prior to the issuance of such Partnership Securities. For the purposes of this Section
5.8, the Managing General Partner and its controlling Affiliates, on the one hand, and the Special
General Partner and its controlling Affiliates, on the other hand, shall be deemed not to be
Affiliates, unless otherwise agreed by the Managing General Partner and the Special General
Partner.



     Section 5.9 Splits and Combinations.



     (a) Subject to Sections 5.9(d), 6.7 and 6.9, the Partnership may make a Pro Rata distribution
of Partnership Securities to all Record Holders or may effect a subdivision or combination of
Partnership Securities so long as, after any such event, each Partner shall have the same
Percentage Interest in the Partnership as before such event, and any amounts calculated on a per
Unit basis (including any Common Unit Arrearage or Cumulative Common Unit Arrearage) or stated as a
number of Units are proportionately adjusted retroactive to the beginning of the Partnership.



     (b) Whenever such a distribution, subdivision or combination of Partnership Securities is
declared, the Managing General Partner shall select a Record Date as of which the distribution,
subdivision or combination shall be effective and shall send notice thereof at least 20 days prior
to such Record Date to each Record Holder as of a date not less than 10 days prior to the date of
such notice. The Managing General Partner also may cause a firm of independent public accountants
selected by it to calculate the number of Partnership Securities to be held by each Record Holder
after giving effect to such distribution, subdivision or combination. The Managing General Partner
shall be entitled to rely on any certificate provided by such firm as conclusive evidence of the
accuracy of such calculation.



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



     (d) The Partnership shall not issue fractional Units upon any distribution, subdivision or
combination of Units. If a distribution, subdivision or combination of Units would result in the
issuance of fractional Units but for the provisions of Section 5.4(d) and this Section 5.9(d), each



42









 






fractional Unit shall be rounded to the nearest whole Unit (and a 0.5 Unit shall be rounded to the
next higher Unit).



     Section 5.10 Fully Paid and Non-Assessable Nature of Limited Partner Interests. All Limited Partner Interests issued pursuant to, and in accordance with the requirements
of, this Article V shall be fully paid and non-assessable Limited Partner Interests in the
Partnership, except as such non-assessability may be affected by Sections 17-607 or 17-804 of the
Delaware Act.



ARTICLE VI

ALLOCATIONS AND DISTRIBUTIONS




     Section 6.1 Allocations for Capital Account Purposes. For purposes of maintaining the Capital Accounts and in determining the rights of the
Partners among themselves, the Partnership’s items of income, gain, loss and deduction (computed in
accordance with Section 5.3(b)) shall be allocated among the Partners in each taxable year (or
portion thereof) as provided herein below.



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




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




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




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



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




     (i) First, 100% to the Unitholders, in accordance with their respective Percentage
Interests, until the aggregate Net Losses allocated pursuant to this Section 6.1(b)(i) for
the current taxable year and all previous taxable years is equal to the aggregate Net Income
allocated to such Unitholders pursuant to Section 6.1(a)(iii) for all previous taxable
years, provided that the Net Losses shall not be allocated pursuant to this Section
6.1(b)(i) to the extent that such allocation would cause any Unitholder to



43









 






have a deficit
balance in its Adjusted Capital Account at the end of such taxable year (or increase any
existing deficit balance in its Adjusted Capital Account);




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




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



     (c) Net Termination Gains and Losses. After giving effect to the special allocations set forth
in Section 6.1(d), all items of income, gain, loss and deduction taken into account in computing
Net Termination Gain or Net Termination Loss for such taxable period shall be allocated in the same
manner as such Net Termination Gain or Net Termination Loss is allocated hereunder. All allocations
under this Section 6.1(c) shall be made after Capital Account balances have been adjusted by all
other allocations provided under this Section 6.1 and after all distributions of Available Cash
provided under Sections 6.4 and Section 6.6 have been made; provided, however, that solely for
purposes of this Section 6.1(c), Capital Accounts shall not be adjusted for distributions made
pursuant to Section 12.4.




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




     if such Net Termination Gain is recognized prior to the Initial Offering:




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




     (B) Second, to all Unitholders, Pro Rata, until the Capital Account in respect
of each Unit then Outstanding is equal to its Unrecovered Initial Unit Price;




     (C) Third, to all Unitholders, Pro Rata, until the Capital Account in respect
of each Unit then Outstanding is equal to the sum of (1) its Unrecovered Initial
Unit Price, and (2) the excess of (aa) the First Target Distribution for each
Quarter of the Partnership’s existence over (bb) the cumulative per Unit amount of
any distributions of Available Cash that is deemed to be Operating Surplus made
pursuant to Section 6.4(a)(i) (the sum of (1) and (2) is, for the purpose of the
immediately succeeding clause (D), the “First Liquidation Target Amount”);



44









 






     (D) Fourth, (y) 13% to the Managing General Partner (in respect of the
Incentive Distribution Rights), and (z) 87% to all Unitholders, Pro Rata, until the
Capital Account in respect of each Unit then Outstanding is equal to the sum of (1)
the First Liquidation Target Amount, and (2) the excess of (aa) the Second Target
Distribution less the First Target Distribution for each Quarter of the
Partnership’s existence over (bb) the cumulative per Unit amount of any
distributions of Available Cash that is deemed to be Operating Surplus made pursuant
to Section 6.4(a)(ii) (the sum of (1) and (2) is, for the purpose of the immediately
succeeding clause (E), “Second Liquidation Target Amount”);




     (E) Fifth, (y) 23% to the Managing General Partner (in respect of the Incentive
Distribution Rights), and (z) 77% to all Unitholders, Pro Rata, until the Capital
Account in respect of each Unit then Outstanding is equal to the sum of (1) the
Second Liquidation Target Amount, and (2) the excess of (aa) the Third Target
Distribution less the Second Target Distribution for each Quarter of the
Partnership’s existence over (bb) the cumulative per Unit amount of any
distributions of Available Cash that is deemed to be Operating Surplus made pursuant
to Section 6.4(a)(iii); and




     (F) Thereafter, (y) 48% to the Managing General Partner (in respect of the
Incentive Distribution Rights), and (z) 52% to all Unitholders, Pro Rata.




     if such Net Termination Gain is recognized on or after the Initial Offering:




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




     (B) Second, to all Unitholders holding Common Units, Pro Rata, until the
Capital Account in respect of each Common Unit then Outstanding is equal to the sum
of (1) its Unrecovered Initial Unit Price, (2) the Minimum Quarterly Distribution
for the Quarter during which the Liquidation Date occurs, reduced by any
distribution pursuant to Section 6.4(b)(i) and Section 6.4(c)(i) with respect to
such Common Unit for such Quarter (the amount determined pursuant to this clause (2)
is hereinafter referred to as the “Unpaid MQD”) and (3) any then existing
Cumulative Common Unit Arrearage;




     (C) Third, if such Net Termination Gain is recognized (or is deemed to be
recognized) prior to the conversion of the last Outstanding Subordinated Unit, to
all Unitholders holding Subordinated Units, Pro Rata, until the Capital Account in
respect of each Subordinated Unit then Outstanding equals the sum of (1) its
Unrecovered Initial Unit Price, determined for the taxable year (or portion thereof)
to which this allocation of gain relates, and (2) the Minimum Quarterly Distribution
for the Quarter during which the Liquidation Date occurs, reduced by



45









 






any
distribution pursuant to Section 6.4(b)(iii) with respect to such Subordinated Unit
for such Quarter;




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




     (E) Fifth, (y) 13% to the Managing General Partner (in respect of the Incentive
Distribution Rights), and (z) 87% to all Unitholders, Pro Rata, until the Capital
Account in respect of each Common Unit then Outstanding is equal to the sum of (1)
the First Liquidation Target Amount, and (2) the excess of (aa) the Second Target
Distribution less the First Target Distribution for each Quarter of the
Partnership’s existence over (bb) the cumulative per Unit amount of any
distributions of Available Cash that is deemed to be Operating Surplus made pursuant
to Sections 6.4(b)(v) and 6.4(c)(iii) (the sum of (1) and (2) is, for the purpose of
the immediately succeeding clause (E), the “Second Liquidation Target
Amount”);




     (F) Sixth, (y) 23% to the Managing General Partner (in respect of the Incentive
Distribution Rights), and (z) 77% to all Unitholders, Pro Rata, until the Capital
Account in respect of each Common Unit then Outstanding is equal to the sum of (1)
the Second Liquidation Target Amount, and (2) the excess of (aa) the Third Target
Distribution less the Second Target Distribution for each Quarter of
the Partnership’s existence over (bb) the cumulative per Unit amount of any
distributions of Available Cash that is deemed to be Operating Surplus made pursuant
to Sections 6.4(b)(vi) and 6.4(c)(iv); and




     (G) Finally, (y) 48% to the Managing General Partner (in respect of the
Incentive Distribution Rights), and (z) 52% to all Unitholders, Pro Rata.




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




     if such Net Termination Loss is recognized prior to the Initial Offering:




     (A) First, to all Unitholders, Pro Rata, until the Capital Account in respect
of each Common Unit then Outstanding has been reduced to zero; and




     (B) Second, the balance, if any, 100% to the Managing General Partner.



46









 






     if such Net Termination Loss is recognized on or after the Initial Offering:




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




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




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



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




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




     (ii) Chargeback of Partner Nonrecourse Debt Minimum Gain. Notwithstanding the other
provisions of this Section 6.1 (other than Section 6.1(d)(i)), except as provided in
Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Partner Nonrecourse
Debt Minimum Gain during any Partnership taxable period, any Partner with a share of Partner
Nonrecourse Debt Minimum Gain at the beginning of such taxable period shall be allocated
items of Partnership income and gain for such period (and, if necessary, subsequent periods)
in the manner and amounts provided in Treasury Regulation Sections 1.704-2(i)(4),
1.704-2(i)(5) and 1.704-2(j)(2)(ii), or any successor provisions. For purposes of this
Section 6.1(d), each Partner’s Adjusted Capital Account balance shall be determined, and the
allocation of income or gain required hereunder shall be effected, prior to the application
of any other allocations pursuant to this Section 6.1(d), other than Section 6.1(d)(i) and
other than an allocation pursuant to Sections 6.1(d)(vi) and 6.1(d)(vii), with respect to
such taxable period. This Section



47









 






6.1(d)(ii) is intended to comply with the chargeback of
items of income and gain requirement in Treasury Regulation Section 1.704-2(i)(4) and shall
be interpreted consistently therewith.




     (iii) Priority Allocations.




     (A) If the amount of cash or the Net Agreed Value of any property distributed
(except cash or property distributed pursuant to Section 12.4) to any Unitholder for
a taxable year is greater (on a per Unit basis) than the amount of cash or the Net
Agreed Value of property distributed to the other Unitholders (on a per Unit basis),
then each Unitholder receiving such greater cash or property distribution shall be
allocated gross income in an amount equal to the product of (aa) the amount by which
the distribution (on a per Unit basis) to such Unitholder exceeds the distribution
(on a per Unit basis) to the Unitholders receiving the smallest distribution and
(bb) the number of Units owned by the Unitholder receiving the greater distribution.




     (B) After the application of Section 6.1(d)(iii)(A), all or any portion of the
remaining items of Partnership gross income or gain for the taxable period, if any,
shall be allocated to the Managing General Partner (in respect of the Incentive
Distribution Rights), until the aggregate amount of such items allocated to the
Managing General Partner pursuant to this Section 6.1(d)(iii)(B) for the current
taxable year and all previous taxable years is equal to the cumulative amount of all
Incentive Distributions made to the Managing General Partner from the Closing Date
to a date 45 days after the end of the current taxable year.




     (iv) Qualified Income Offset. In the event any Partner unexpectedly receives any
adjustments, allocations or distributions described in Treasury 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 Treasury Regulations
promulgated under Section 704(b) of the Code, the deficit balance, if any, in its Adjusted
Capital Account created by such adjustments, allocations or distributions as quickly as
possible unless such deficit balance is otherwise eliminated pursuant to Section 6.1(d)(i)
or (ii).




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



48









 






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




     (vii) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any taxable
period shall be allocated 100% to the Partner that bears the Economic Risk of Loss with
respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are
attributable in accordance with Treasury Regulation Section 1.704-2(i). If more than one
Partner bears the Economic Risk of Loss with respect to a Partner Nonrecourse Debt, such
Partner Nonrecourse Deductions attributable thereto shall be allocated between or among such
Partners in accordance with the ratios in which they share such Economic Risk of Loss. This
Section 6.1(d)(vii) is intended to comply with Treasury Regulations Section 1.704-2(i)(1)
and shall be interpreted consistently therewith.




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




     (ix) Code Section 754 Adjustments. To the extent an adjustment to the adjusted tax
basis of any Partnership asset pursuant to Section 734(b) or 743(b) of the Code is
required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken
into account in determining Capital Accounts, the amount of such adjustment to the Capital
Accounts shall be treated as an item of gain (if the adjustment increases the basis of the
asset) or loss (if the adjustment decreases such basis), and such item of gain or loss shall
be specially allocated to the Partners in a manner consistent with the manner in which their
Capital Accounts are required to be adjusted pursuant to such Section of the Treasury
Regulations.




     (x) Economic Uniformity. At the election of the Managing General Partner with respect
to any taxable period ending upon, or after, the termination of the Subordination Period,
all or a portion of the remaining items of Partnership gross income or gain for such taxable
period, after taking into account allocations pursuant to Section 6.1(d)(iii), shall be
allocated 100% to each Partner holding Subordinated Units that are Outstanding as of the
termination of the Subordination Period (“Final Subordinated Units”) in the
proportion of the number of Final Subordinated Units held by such Partner to the total
number of Final Subordinated Units then Outstanding, until each such Partner has been
allocated an amount of gross income or gain that increases the Capital Account maintained
with respect to such Final Subordinated Units to an amount equal to the product of (A) the
number of Final Subordinated Units held by such Partner and (B) the Per Unit Capital Amount
for a Common Unit. The purpose of this allocation is to



49









 






establish uniformity between the
Capital Accounts underlying Final Subordinated Units and the Capital Accounts underlying
Common Units held by Persons other than the Managing General Partner and its Affiliates
immediately prior to the conversion of such Final Subordinated Units into Common Units.
This allocation method for establishing such economic uniformity will be available to the
Managing General Partner only if the method for allocating the Capital Account maintained
with respect to the Subordinated Units between the transferred and retained Subordinated
Units pursuant to Section 5.3(c)(ii) does not otherwise provide such economic uniformity to
the Final Subordinated Units.




     (xi) Curative Allocation.




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




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




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




     (A) In the case of any allocation of Additional Book Basis Derivative Items
(other than an allocation of Unrealized Gain or Unrealized Loss under Section 5.3(d)
hereof), the Managing General Partner shall allocate additional



50









 






items of gross
income and gain away from the Managing General Partner (in respect of the Incentive
Distribution Rights) to the Unitholders, or additional items of deduction and loss
away from the Unitholders to the Managing General Partner (in respect of the
Incentive Distribution Rights), to the extent that the Additional Book Basis
Derivative Items allocated to the Unitholders exceed their Share of Additional Book
Basis Derivative Items. For this purpose, the Unitholders shall be treated as being
allocated Additional Book Basis Derivative Items to the extent that such Additional
Book Basis Derivative Items have reduced the amount of income that would otherwise
have been allocated to the Unitholders under this Agreement (e.g., Additional Book
Basis Derivative Items taken into account in computing cost of goods sold would
reduce the amount of book income otherwise available for allocation among the
Partners). Any allocation made pursuant to this Section 6.1(d)(xii)(A) shall be made
after all of the other Agreed Allocations have been made as if this Section
6.1(d)(xii) were not in this Agreement and, to the extent necessary, shall require
the reallocation of items that have been allocated pursuant to such other Agreed
Allocations.




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




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



     Section 6.2 Allocations for Tax Purposes.



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



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




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



51









 






same
manner as its correlative item of “book” gain or loss is allocated pursuant to Section 6.1.




     (ii)
(A) In the case of an Adjusted Property, such items shall (1) first, be allocated
among the Partners in a manner consistent with the principles of Section 704(c) of the Code
to take into account the Unrealized Gain or Unrealized Loss attributable to such property
and the allocations thereof pursuant to Section 5.3(d)(i) or 5.3(d)(ii), and (2) second, in
the event such property was originally a Contributed Property, be allocated among the
Partners in a manner consistent with Section 6.2(b)(i)(A); and (B) any item of Residual Gain
or Residual Loss attributable to an Adjusted Property shall be allocated among the Partners
in the same manner as its correlative item of “book” gain or loss is allocated pursuant to
Section 6.1.




     (iii) The Managing General Partner shall apply the principles of Treasury Regulation
Section 1.704-3(d) to eliminate Book-Tax Disparities.



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



     (d) The Managing General Partner may determine to depreciate or amortize the portion of an
adjustment under Section 743(b) of the Code attributable to unrealized appreciation in any Adjusted
Property (to the extent of the unamortized Book-Tax Disparity) using a predetermined rate derived
from the depreciation or amortization method and useful life applied to the Partnership’s common
basis of such property, despite any inconsistency of such approach with Treasury Regulation Section
1.167(c)-l(a)(6), Treasury Regulation Section 1.197-2(g)(3), the legislative history of Section 743
of the Code or any successor regulations thereto. If the Managing General Partner determines that
such reporting position cannot reasonably be taken, the Managing General Partner may adopt
depreciation and amortization conventions under which all purchasers acquiring Partnership
Interests in the same month would receive depreciation and amortization deductions, based upon the
same applicable rate as if they had purchased a direct interest in the Partnership’s property. If
the Managing General Partner chooses not to utilize such aggregate method, the Managing General
Partner may use any other depreciation and amortization conventions to preserve the uniformity of
the intrinsic tax characteristics of any Units, so long as such conventions would not have a
material adverse effect on the Record Holders of any class or classes of Partnership Interests.




52










 





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



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



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



     (h) Allocations that would otherwise be made to a Partner under the provisions of this Article
VI shall instead be made to the beneficial owner of Partnership Interests held by a nominee in any
case in which the nominee has furnished the identity of such owner to the Partnership in accordance
with Section 6031(c) of the Code or any other method determined by the Managing General Partner.



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



     (a) Within 45 days following the end of each Quarter commencing with the Quarter that includes
the Closing Date, an amount equal to 100% of Available Cash with respect to such Quarter shall,
subject to Sections 17-607 and 17-804 of the Delaware Act, be distributed in accordance with this
Article VI by the Partnership to the Partners as of the Record Date selected by the Managing
General Partner. All amounts of Available Cash distributed by the Partnership



53









 






on any date from any
source shall be deemed to be Operating Surplus until the sum of all amounts of Available Cash
theretofore distributed by the Partnership to the Partners pursuant to Section 6.4 equals the
Operating Surplus from the Closing Date through the close of the immediately preceding Quarter. Any
remaining amounts of Available Cash distributed by the Partnership on such date shall, except as
otherwise provided in Section 6.5, be deemed to be Capital Surplus. All distributions required to
be made under this Agreement will be made subject to Sections 17-607 and 17-804 of the Delaware
Act.



     (b) Notwithstanding Section 6.3(a), in the event of the dissolution and liquidation of the
Partnership, all cash received during or after the Quarter in which the Liquidation Date occurs,
other than from borrowings described in clause (a)(ii) of the definition of Available Cash, shall
be applied and distributed solely in accordance with, and subject to the terms and conditions of,
Section 12.4.



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



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



     Section 6.4 Distributions of Available Cash from Operating Surplus.



     (a) Prior to the Initial Offering. Available Cash with respect to any Quarter prior to the
Initial Offering that is deemed to be Operating Surplus pursuant to the provisions of Section 6.3
or Section 6.6 shall, subject to Sections 17-607 and 17-804 of the Delaware Act, be distributed as
follows, except as otherwise contemplated by Section 5.4(b) in respect of other Partnership
Securities issued pursuant thereto:




     (i) First, 100% to all Special Unitholders, Pro Rata, until there has been distributed
in respect of each Special Unit then Outstanding an amount equal to the First Target
Distribution;




     (ii) Second, (A) 13% to the Managing General Partner (in respect of the Incentive
Distribution Rights); and (B) 87% to all Special Unitholders, Pro Rata, until there has been
distributed in respect of each Special Unit then Outstanding an amount equal to the excess
of the Second Target Distribution over the First Target Distribution for such Quarter;




     (iii) Third, (A) 23% to the Managing General Partner (in respect of the Incentive
Distribution Rights); and (B) 77% to all Special Unitholders, Pro Rata, until there has been
distributed in respect of each Special Unit then Outstanding an amount equal to the excess
of the Third Target Distribution over the Second Target Distribution for such Quarter; and



54









 






     (iv) Thereafter, (A) 48% to the Managing General Partner (in respect of the Incentive
Distribution Rights); and (B) 52% to all Special Unitholders, Pro Rata;


provided, however, if the First Target Distribution, the Second Target Distribution and the Third
Target Distribution have been reduced to zero pursuant to the second sentence of Section 6.7(a),
the distribution of Available Cash that is deemed to be Operating Surplus with respect to any
Quarter will be made solely in accordance with Section 6.4(a)(iv); provided further that no
distributions will be paid to the Managing General Partner (in respect of the Incentive
Distribution Rights) for so long as any Group Member is a guarantor of the Coffeyville Credit
Agreement.




     (b) During Subordination Period. Available Cash with respect to any Quarter within the
Subordination Period that is deemed to be Operating Surplus pursuant to the provisions of Section
6.3 or 6.5 shall, subject to Sections 17-607 and 17-804 of the Delaware Act, be
distributed as follows, except as otherwise contemplated by Section 5.4(b) in respect of other
Partnership Securities issued pursuant thereto:




     (i) First, to all the Unitholders holding Common Units, Pro Rata, until there has been
distributed in respect of each Common Unit then Outstanding an amount equal to the Minimum
Quarterly Distribution for such Quarter;




     (ii) Second, to all Unitholders holding Common Units, Pro Rata, until there has been
distributed in respect of each Common Unit then Outstanding an amount equal to the
Cumulative Common Unit Arrearage existing with respect to such Quarter;




     (iii) Third, to all Unitholders holding Subordinated Units, Pro Rata, until there has
been distributed in respect of each Subordinated Unit then Outstanding an amount equal to
the Minimum Quarterly Distribution for such Quarter;




     (iv) Fourth, to all Unitholders, Pro Rata, until there has been distributed in respect
of each Unit then Outstanding an amount equal to the excess of the First Target Distribution
over the Minimum Quarterly Distribution for such Quarter;




     (v) Fifth, (A) 13% to the Managing General Partner (in respect of the Incentive
Distribution Rights); and (B) 87% to all Unitholders, Pro Rata, until there has been
distributed in respect of each Unit then Outstanding an amount equal to the excess of the
Second Target Distribution over the First Target Distribution for such Quarter;




     (vi) Sixth, (A) 23% to the Managing General Partner (in respect of the Incentive
Distribution Rights); and (B) 77% to all Unitholders, Pro Rata, until there has been
distributed in respect of each Unit then Outstanding an amount equal to the excess of the
Third Target Distribution over the Second Target Distribution for such Quarter; and




     (vii) Thereafter, (A) 48% to the Managing General Partner (in respect of the Incentive
Distribution Rights); and (B) 52% to all Unitholders, Pro Rata;



55









 




provided, however, if the Minimum Quarterly Distribution, the First Target Distribution, the Second
Target Distribution and the Third Target Distribution have been reduced to zero pursuant to the
second sentence of Section 6.7(a), the distribution of Available Cash that is deemed to be
Operating Surplus with respect to any Quarter will be made solely in accordance with Section
6.4(b)(vii); provided further that no distributions will be paid to the Managing General Partner
(in respect of the Incentive Distribution Rights) for so long as any Group Member is a guarantor of
the Coffeyville Credit Agreement.




     (c) After Subordination Period. Available Cash with respect to any Quarter after the
Subordination Period that is deemed to be Operating Surplus pursuant to the provisions of Section
6.3 or 6.5, subject to Sections 17-607 and 17-804 of the Delaware Act, shall be distributed as
follows, except as otherwise contemplated by Section 5.4(b) in respect of additional Partnership
Securities issued pursuant thereto:




     (i) First, 100% to all Unitholders, Pro Rata, until there has been distributed in
respect of each Unit then Outstanding an amount equal to the Minimum Quarterly Distribution
for such Quarter;




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




     (iii) Third, (A) 13% to the Managing General Partner (in respect of the Incentive
Distribution Rights); and (B) 87% to all Unitholders, Pro Rata, until there has been
distributed in respect of each Unit then Outstanding an amount equal to the excess of the
Second Target Distribution over the First Target Distribution for such Quarter;




     (iv) Fourth, (A) 23% to the Managing General Partner (in respect of the Incentive
Distribution Rights); and (B) 77% to all Unitholders, Pro Rata, until there has been
distributed in respect of each Unit then Outstanding an amount equal to the excess of the
Third Target Distribution over the Second Target Distribution for such Quarter; and




     (v) Thereafter, (A) 48% to the Managing General Partner (in respect of the Incentive
Distribution Rights); and (B) 52% to all Unitholders, Pro Rata;


provided, however, if the First Target Distribution, the Second Target Distribution and the Third
Target Distribution have been reduced to zero pursuant to the second sentence of Section 6.7(a),
the distribution of Available Cash that is deemed to be Operating Surplus with respect to any
Quarter will be made solely in accordance with Section 6.4(c)(v); provided further that no
distributions will be paid to the Managing General Partner (in respect of the Incentive
Distribution Rights) for so long as any Group Member is a guarantor of the Coffeyville Credit
Agreement.




     Section 6.5 Distributions of Non-IDR Surplus Amount. Notwithstanding anything to the contrary in this Agreement, no distribution shall be made
to the Managing General Partner Interest until the Non-IDR Surplus Amount has been distributed to
the Outstanding Units.



56









 





     Section 6.6 Distributions of Available Cash from Capital Surplus.



     (a) Prior to the IO Closing Date. Prior to the IO Closing Date, Available Cash that is deemed
to be Capital Surplus pursuant to the provisions of Section 6.3(a) shall, subject to Sections
17-607 and 17-804 of the Delaware Act, be distributed, unless the provisions of Section 6.3 require
otherwise, 100% to the Unitholders, Pro Rata, until the Minimum Quarterly Distribution has been
reduced to zero pursuant to the second sentence of Section 6.7(a). Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall
be distributed in accordance with Section 6.4.



     (b) On or after the IO Closing Date. Available Cash that is deemed to be Capital Surplus
pursuant to the provisions of Section 6.3(a) shall, subject to Sections 17-607 and 17-804 of the
Delaware Act, be distributed, unless the provisions of Section 6.3 require otherwise, 100% to the
Unitholders, Pro Rata, until the Minimum Quarterly Distribution has been reduced to zero pursuant
to the second sentence of Section 6.7(a). Available Cash that is deemed to be Capital Surplus shall
then be distributed to all Unitholders holding Common Units, Pro Rata, until there has been
distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative
Common Unit Arrearage. Thereafter, all Available Cash shall be distributed as if it were Operating
Surplus and shall be distributed in accordance with Section 6.4.



     Section 6.7 Adjustment of Minimum Quarterly Distribution and Target Distribution Levels.



     (a) The Minimum Quarterly Distribution, First Target Distribution, Second Target Distribution,
Third Target Distribution, Common Unit Arrearages and Cumulative Common Unit Arrearages shall be
proportionately adjusted in the event of any distribution, combination or subdivision (whether
effected by a distribution payable in Units or otherwise) of Units or other Partnership Securities
in accordance with Section 5.8. In the event of a distribution of Available Cash that is deemed to
be from Capital Surplus, the then applicable Minimum Quarterly Distribution, First Target
Distribution, Second Target Distribution and Third Target Distribution, shall be reduced in the
same proportion that the distribution had to the fair market value of the Common Units immediately
prior to the announcement of the distribution. If the Common Units are publicly traded on a
National Securities Exchange, the fair market value will be the Current Market Price before the
ex-dividend date. If the Common Units are not publicly traded, the fair market value will be
determined by the Board of Directors of the General Partner.



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



     Section 6.8 Special Provisions Relating to the Holders of Subordinated Units.



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



57









 






the conversion
of Subordinated Units into Common Units pursuant to Section 5.6, the Unitholder holding a
Subordinated Unit shall possess all of the rights and obligations of a Unitholder
holding Common Units hereunder, including the right to vote as a Common Unitholder and the
right to participate in allocations of income, gain, loss and deduction and distributions made with
respect to Common Units; provided, however, that such converted Subordinated Units shall remain
subject to the provisions of Sections 5.3(c)(ii), 6.1(d)(x) and 6.8(b).



     (b) A Unitholder shall not be permitted to transfer a Subordinated Unit or a Subordinated Unit
that has converted into a Common Unit pursuant to Section 5.6 (other than a transfer to an
Affiliate) if the remaining balance in the transferring Unitholder’s Capital Account with respect
to the retained Subordinated Units or Retained Converted Subordinated Units would be negative after
giving effect to the allocation under Section 5.3(c)(ii)(B).



     (c) A Unitholder holding a Subordinated Unit that has converted into a Common Unit pursuant to
Section 5.5 shall not be issued a Common Unit Certificate pursuant to Section 4.1, if the Common
Units are evidenced by Certificates, and shall not be permitted to transfer its converted
Subordinated Units to a Person that is not an Affiliate of the holder until such time as the
Managing General Partner determines, based on advice of counsel, that a converted Subordinated Unit
should have, as a substantive matter, like intrinsic economic and federal income tax
characteristics, in all material respects, to the intrinsic economic and federal income tax
characteristics of an Initial Common Unit. In connection with the condition imposed by this
Section 6.8(c), the Managing General Partner may take whatever steps are required to provide
economic uniformity to the converted Subordinated Units in preparation for a transfer of such
converted Subordinated Units, including the application of Sections 5.3(c)(ii), 6.1(d)(x) and
6.8(b); provided, however, that no such steps may be taken that would have a material adverse
effect on the Unitholders holding Common Units.



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



58









 






to the
application of this Section 6.9 times (b) the quotient obtained by dividing (i) Available Cash with
respect to such Quarter by (ii) the sum of Available Cash with respect to such Quarter and the
Estimated Incremental Quarterly Tax Amount for such Quarter, as determined by the Managing General
Partner. For purposes of the foregoing, Available Cash with respect to a Quarter will be deemed
reduced by the Estimated Incremental Quarterly Tax Amount for that Quarter.



Section 6.10 Distributions in Connection with Initial Offering.




     Notwithstanding any provision of this Agreement to the contrary, there shall be two Quarters
in the fiscal quarter in which the IO Closing Date occurs; one Quarter comprised of the period of
such fiscal quarter before the IO Closing Date and one Quarter comprised of the period of such
fiscal quarter from and after the IO Closing Date. With respect to the distribution for the fiscal
quarter in which the IO Closing Date occurs, (a) the amount of Available Cash distributed to the
Partners pursuant to Section 6.4(a) (and Section 6.6(a), if applicable), shall equal 100% of
Available Cash with respect to such fiscal quarter multiplied by a fraction, the numerator of which
is the number of days in such fiscal quarter before the IO Closing Date and the denominator of
which is the total number of days in such fiscal quarter; and (b) the amount of Available Cash
distributed to the Partners pursuant to Section 6.4(b) (and Section 6.6(b), if applicable) shall
equal 100% of Available Cash with respect to such fiscal quarter less the amount described in
clause (a).



Section 6.11 Limitation on Increases in Distributions.








     Following such time as (a) no Group Member is a guarantor of the Coffeyville Credit Agreement
and (b) the Non-IDR Surplus Amount has been distributed to the Outstanding Units, the Managing
General Partner shall not cause the Partnership to make a regular Quarterly distribution of
Available Cash that is deemed to be Operating Surplus at a per-Unit amount that represents an
increase from the per-Unit amount of the most regular Quarterly Distribution preceding the date of
determination unless the Managing General Partner determines that the increased per-Unit
distribution amount is likely to be sustainable for a period of at
least eight consecutive
Quarters from the date of increase. This Section 6.11 shall not apply to any special distributions
or any distribution in the nature of a liquidating distribution or partially liquidating
distribution.







ARTICLE VII

MANAGEMENT AND OPERATION OF BUSINESS




     Section 7.1 Management.



     (a) The Managing General Partner shall conduct, direct and manage all activities of the
Partnership, subject, however, to any prior approval required by Section 7.3. Except as otherwise
expressly provided in this Agreement, all management powers over the business and affairs of the
Partnership shall be exclusively vested in the Managing General Partner, and no
other Partner shall have any management power over the business and affairs of the
Partnership. In addition to the powers now or hereafter granted a general partner of a limited
partnership under applicable law or that are granted to the Managing General Partner under any
other



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provision of this Agreement, the Managing General Partner, subject to Section 7.3, shall have
full power and authority to do all things and on such terms as it determines to be necessary or
appropriate to conduct the business of the Partnership, to exercise all powers set forth in Section
2.5 and to effectuate the purposes set forth in Section 2.4, including the following:




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




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




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




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




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




     (vi) the distribution of Partnership cash;




     (vii) the selection and dismissal of employees (including employees having titles such
as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside
attorneys, accountants, consultants and contractors and the determination of their
compensation and other terms of employment or hiring (the matters described in this clause
(vii) being subject, however, to any prior approval required by Section 7.3(c));




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




     (ix) the formation of, or acquisition of an interest in, and the contribution of
property and the making of loans to, any further limited or general partnerships, joint
ventures, corporations, limited liability companies or other relationships (including the



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acquisition of interests in, and the contributions of property to, any Group Member from
time to time) subject to the restrictions set forth in Section 2.4;




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




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




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




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




     (xiv) the undertaking of any action in connection with the Partnership’s participation
in the management of any Group Member through its directors, officers, employees or the
Partnership’s direct or indirect ownership of Group Members; and




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



     (b) Notwithstanding any other provision of this Agreement, any Group Member Agreement, the
Delaware Act or any applicable law, rule or regulation, each of the Partners and each other Person
who may acquire an interest in Partnership Securities hereby (i) approves, ratifies and confirms
the execution, delivery and performance by the parties thereto of this Agreement and the Group
Member Agreement of each other Group Member, the Omnibus Agreement (without giving effect to any
amendments, supplements or restatements after the date hereof), the Contribution Agreement (without
giving effect to any amendments, supplements or restatements after the date hereof) and the other
agreements described in or filed as exhibits to the Registration Statement that are related to the
transactions contemplated by the Registration Statement; (ii) agrees that the Managing General
Partner (on its own or on behalf of the Partnership) is authorized to execute, deliver and perform
the agreements referred to in clause (i) of this sentence and the other agreements, acts,
transactions and matters described in or
contemplated by the Registration Statement on behalf of the Partnership without any further
act, approval or vote of the Partners or the other Persons who may acquire an interest in
Partnership Securities; and (iii) agrees that the execution, delivery or performance by the
Managing General Partner, any Group Member or any Affiliate of any of them of this Agreement or any
agreement authorized or permitted under this Agreement (including the exercise by the Managing
General Partner or any Affiliate of the Managing General Partner of the rights accorded pursuant to
Article XV) shall not constitute a breach by the Managing General Partner of any duty that the



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Managing General Partner may owe the Partnership or the Partners or any other Persons under this
Agreement (or any other agreements) or of any duty existing at law, in equity or otherwise.



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



     Section 7.3 Restrictions on the Managing General Partner’s Authority; Approval Rights of
Special General Partner.



     (a) Except as provided in Articles XII and XIV, the Managing General Partner may not sell,
exchange or otherwise dispose of all or substantially all of the assets of the Partnership Group,
taken as a whole, in a single transaction or a series of related transactions without the approval
of holders of a Unit Majority; provided, however, that this provision shall not preclude or limit
the Managing General Partner’s ability to mortgage, pledge, hypothecate or grant a security
interest in all or substantially all of the assets of the Partnership Group and shall not apply to
any forced sale of any or all of the assets of the Partnership Group pursuant to the foreclosure
of, or other realization upon, any such encumbrance. Without the approval of holders of a Unit
Majority, the Managing General Partner shall not, on behalf of the Partnership, except as permitted
under Sections 4.6, 11.1 and 11.2, elect or cause the Partnership to elect a successor general
partner of the Partnership.



     (b) The Managing General Partner may not cause the Partnership to take any of the following
actions without approval of the Special General Partner:




     (i) any merger or consolidation by the Partnership into another entity where:




     (A) if the Special General Partner owns 50% or more of the Outstanding Units
immediately prior to the merger or consolidation, less than 60% of the equity
interests of the resulting entity are owned by the pre-merger Unitholders of the
Partnership;




     (B) if the Special General Partner owns 25% or more of all units of the
Outstanding Units immediately prior to the merger or consolidation, less than



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50% of
the equity interests of the resulting entity are owned by the pre-merger Unitholders
of the Partnership; and




     (C) if the Special General Partner owns 15% or more of all units of the
Outstanding Units immediately prior to the merger or consolidation, less than 40% of
the equity interests of the resulting entity are owned by the pre-merger Unitholders
of the Partnership;




     (ii) any purchase or sale, exchange or other transfer of assets or entities by the
Partnership with a purchase/sale price equal to 50% or more of the current asset value of
the Partnership;




     (iii) any fundamental change in the business of the Partnership from that conducted by
the assets contributed to the Partnership pursuant to the Contribution Agreement;




     (iv) any incurrence of indebtedness by the Partnership or issuance of Partnership
Securities with rights to distribution or in liquidation ranking prior or senior to the
Common Units, in either case in excess of $125 million ($200 million in the case of the
Initial Offering, excluding any proceeds from any Over-Allotment Option), increased from
time to time by 80% of the purchase price for assets or entities whose purchase was approved
by the Special General Partner pursuant to Section 7.3(b)(ii).



     (c) The Managing General Partner may not appoint a Person performing the functions of the
chief executive officer or chief financial officer for the Partnership, either as an officer of the
Partnership or as an officer of the Managing General Partner or otherwise, and may not terminate or
substantially change the responsibilities of or make a change to the compensation of any such
Person without approval of the Special General Partner, such approval not to be withheld
unreasonably. If Person performing the functions of the chief executive officer or chief financial
officer for the Partnership is an executive officer of the CVR Energy, Inc., or its successor as
beneficial owner of the Special General Partner, or any of its Controlled Affiliates (other than a
Group Member), the Special General Partner shall be deemed to have consented to the appointment of
such executive officer by the Managing General Partner.



     (d) The Managing General Partner agrees that the Special General Partner has the right to
appoint one member to the Board of Directors. In addition, if the Partnership does not make
distributions per Unit equal to or exceeding the Minimum Quarterly Distribution for four
consecutive Quarters the Special General Partner shall have the right to appoint one additional
member to the Board of Directors until the Partnership has made distributions per Unit equal to or
exceeding the exceeding the Minimum Quarterly Distribution for four consecutive Quarters following
the applicability of the Special General Partner’s right to appoint an additional director.



     (e) The Special General Partner shall be deemed to have approved any matter specified in
Section 7.3(b), (c) or (d) if the Managing General Partner receives a written, facsimile or
electronic instruction evidencing such approval from the Special General Partner or if the Special
General Partner’s designees on the Board of Directors approve such matter.



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     Section 7.4 Reimbursement of the Managing General Partner.



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



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



     (c) The Managing General Partner and its Affiliates may charge any member of the Partnership
Group a management fee to the extent necessary to allow the Partnership Group to reduce the amount
of any state franchise or income tax or any tax based upon the revenues or gross margin of any
member of the Partnership Group if the tax benefit produced by the payment of such management fee
or fees exceeds the amount of such fee or fees.



     (d) The Managing General Partner, without the approval of the other Partners (who shall have
no right to vote in respect thereof) but subject to any prior approval required by Section 7.3, may
propose and adopt on behalf of the Partnership employee benefit plans, employee programs and
employee practices (including plans, programs and practices involving the issuance of Partnership
Securities or options to purchase or rights, warrants or appreciation
rights relating to Partnership Securities), or cause the Partnership to issue Partnership
Securities in connection with, or pursuant to, any employee benefit plan, employee program or
employee practice maintained or sponsored by the Managing General Partner or any of its Affiliates,
in each case for the benefit of employees of the Managing General Partner or its Affiliates, any
Group Member or their Affiliates, or any of them, in respect of services performed, directly or
indirectly, for the benefit of the Partnership Group. The Partnership agrees to issue and sell to
the Managing General Partner or any of its Affiliates any Partnership Securities that the Managing
General Partner or such Affiliates are obligated to provide to any employees pursuant to any such
employee benefit plans, employee programs or employee practices. Expenses incurred by the Managing
General Partner in connection with any such plans, programs and practices (including the net cost
to the Managing General Partner or such Affiliates of Partnership Securities purchased by the
Managing General Partner or such Affiliates, from the Partnership or otherwise, to fulfill options
or awards under such plans, programs and practices) shall be reimbursed in accordance with Section
7.4(b). Any and all obligations of the Managing General Partner under any employee benefit plans,
employee programs or employee practices adopted by the Managing General Partner as permitted by
this Section 7.4(c) shall constitute obligations of the Managing General Partner hereunder and
shall be assumed by any successor Managing



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General Partner approved pursuant to Section 11.1 or
11.2 or the transferee of or successor to all of the Managing General Partner’s Managing General
Partner Interest pursuant to Section 4.6.



     Section 7.5 Outside Activities.



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



     (b) CVR Energy, Inc. has entered into the Omnibus Agreement, which agreement sets forth
certain restrictions on the ability of CVR Energy, Inc. and its controlled Affiliates (other than
the Partnership) to engage in Fertilizer Restricted Businesses.



     (c) Except as specifically restricted by the Omnibus Agreement, each Unrestricted Person
(other than the Managing General Partner) shall have the right to engage in businesses of every
type and description and other activities for profit and to engage in and possess an interest in
other business ventures of any and every type or description, whether in businesses engaged in or
anticipated to be engaged in by any Group Member, independently or with others, including business
interests and activities in direct competition with the business and activities of any
Group Member, and none of the same shall constitute a breach of this Agreement or any duty
otherwise existing at law, in equity or otherwise, to any Group Member or any Partner.



     (d) Notwithstanding anything to the contrary in this Agreement, the doctrine of corporate
opportunity, or any analogous doctrine, shall not apply to any Unrestricted Person (including the
Managing General Partner). Except as specifically provided in the Omnibus Agreement, no
Unrestricted Person (including the Managing General Partner) who acquires knowledge of a potential
transaction, agreement, arrangement or other matter that may be an opportunity for the Partnership
shall have any duty to communicate or offer such opportunity to the Partnership, and such
Unrestricted Person (including the Managing General Partner) shall not be liable to the
Partnership, any Partner or any other Person for breach of any fiduciary or other duty by reason of
the fact that such Unrestricted Person (including the Managing General Partner) pursues or acquires
for itself, directs such opportunity to another Person or does not communicate such opportunity or
information to the Partnership.



     (e) Subject to the terms of Section 7.5(a), Section 7.5(b), Section 7.5(c) and the Omnibus
Agreement, but otherwise notwithstanding anything to the contrary in this Agreement, (i) the
engaging in competitive activities by any Unrestricted Person (other than the Managing General
Partner) in accordance with the provisions of this Section 7.5 is hereby approved by the
Partnership and all Partners, and (ii) it shall be deemed not to be a breach of any fiduciary duty
or any other duty or obligation of any type whatsoever of the Managing General Partner or of



65









 






any
other Unrestricted Person for the Unrestricted Person (other than the Managing General Partner) to
engage in such business interests and activities in preference to or to the exclusion of the
Partnership and the other Group Members.



     (f) The Managing General Partner and each of its Affiliates may acquire Units or other
Partnership Securities and, except as otherwise expressly provided in this Agreement, shall be
entitled to exercise, at their option, all rights relating to all Units or other Partnership
Securities acquired by them. The term “Affiliates” when used in this Section 7.5(f) with respect to
the Managing General Partner shall not include any Group Member.



     (g) Notwithstanding anything in this Agreement to the contrary, nothing herein shall be deemed
to restrict Goldman, Sachs & Co., Kelso & Company, L.P. or their respective Affiliates (other than
the Managing General Partner), or their respective successors and assigns as owners of interests in
either of the General Partners, from engaging in any banking, brokerage, trading, market making,
hedging, arbitrage, investment advisory, financial advisory, anti-raid advisory, merger advisory,
financing, lending, underwriting, asset management, principal investing, mergers & acquisitions or
other activities conducted in the ordinary course of their or their Affiliates’ business in
compliance with applicable law, including without limitation buying and selling Partnership
Securities or securities of any other Partner or Group Member, entering into derivatives
transactions regarding or shorting Partnership Securities or securities of any other Partner or
Group Member, serving as a lender, underwriter or market maker or issuing research with respect to
securities of any Partner or Group Member or acquiring, selling, making investments in or entering
into other transactions or undertaking any opportunities with companies or businesses in the same
or similar lines of business as any Partner or Group Member or any other businesses.



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



     (a) The Managing General Partner or any of its Affiliates may, but shall be under no
obligation to, lend to any Group Member, and any Group Member may borrow from the Managing General
Partner or any of its Affiliates, funds needed or desired by the Group Member for such periods of
time and in such amounts as the Managing General Partner may determine; provided, however, that in
any such case the lending party may not charge the borrowing party interest at a rate greater than
the rate that would be charged the borrowing party or impose terms less favorable to the borrowing
party than would be charged or imposed on the borrowing party by unrelated lenders on comparable
loans made on an arm’s length basis (without reference to the lending party’s financial abilities
or guarantees), all as determined by the Managing General Partner. The borrowing party shall
reimburse the lending party for any costs (other than any additional interest costs) incurred by
the lending party in connection with the borrowing of such funds. For purposes of this Section
7.6(a) and Section 7.6(b), the term “Group Member” shall include any Affiliate of a Group Member
that is controlled by the Group Member.



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



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     (c) No borrowing by any Group Member or the approval thereof by the Managing General Partner
shall be deemed to constitute a breach of any duty, expressed or implied, of the Managing General
Partner or its Affiliates to the Partnership or the Partners by reason of the fact that the purpose
or effect of such borrowing is directly or indirectly to (i) enable distributions to the Managing
General Partner in respect of the Incentive Distribution Rights or (ii) hasten the expiration of
the Subordination Period or the conversion of any Subordinated Units into Common Units.



     Section 7.7 Indemnification.



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



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



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



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



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



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



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



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



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



     Section 7.8 Liability of Indemnitees.



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



68









 






misconduct or, in the case
of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.



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



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



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



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



     (a) Unless otherwise expressly provided in this Agreement or any Group Member Agreement,
whenever a potential conflict of interest exists or arises between a General Partner or any of its
respective Affiliates, on the one hand, and the Partnership, any Group Member or any other Partner,
on the other, any resolution or course of action by the General Partner or any of its respective
Affiliates in respect of such conflict of interest shall be permitted and deemed approved by all
Partners, and shall not constitute a breach of this Agreement, of any Group Member Agreement, of
any agreement contemplated herein or therein, or of any duty hereunder or existing at law, in
equity or otherwise, if the resolution or course of action in respect of such conflict of interest
is (i) approved by Special Approval, (ii) approved by the vote of a majority of the Units
(excluding Units owned by the Managing General Partner and its Affiliates), (iii) on terms no less
favorable to the Partnership than those generally being provided to or available from unrelated
third parties or (iv) fair and reasonable to the Partnership, taking into account the totality of
the relationships between the parties involved (including other transactions that may be
particularly favorable or advantageous to the Partnership). The Managing General Partner shall be
authorized but not required in connection with its resolution of such conflict of interest to seek
Special Approval or Unitholder approval of such resolution, and the Managing General Partner may
also adopt a resolution or course of action that has not received Special Approval or Unitholder
approval. If Special Approval or Unitholder approval is not sought and the Board of Directors
determines that the resolution or course of action taken with respect to a conflict of interest
satisfies either of the standards set forth in clauses (iii) or (iv) above, then it shall be
presumed that, in making its decision, the Board of Directors acted in good faith, and in any



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proceeding brought by any Partner or by or on behalf of such Partner or any other Partner or the
Partnership challenging such approval, the Person bringing or prosecuting such proceeding shall
have the burden of overcoming such presumption. Notwithstanding anything to the contrary in this
Agreement or any duty otherwise existing at law or equity, the existence of the conflicts of
interest described in the Registration Statement are hereby approved by all Partners and shall not
constitute a breach of this Agreement.



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



     (c) Whenever a General Partner makes a determination or takes or declines to take any other
action, or any of its respective Affiliates causes it to do so, in its individual capacity as
opposed to in its capacity as the general partner of the Partnership, whether under this Agreement,
any Group Member Agreement or any other agreement contemplated hereby or otherwise, then the
General Partner, or such Affiliates causing it to do so, are entitled to make such determination or
to take or decline to take such other action free of any fiduciary duty or obligation whatsoever to
the Partnership, or any other Partner, and the General Partner, or such Affiliates causing it to do
so, shall not be required to act in good faith or pursuant to any other standard imposed by this
Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the
Delaware Act or any other law, rule or regulation or at equity. By way of illustration and not of
limitation, whenever the phrase, “at the option of the General Partner,” or some variation of that
phrase, is used in this Agreement, it indicates that the General Partner is acting in its
individual capacity. For the avoidance of doubt, whenever a General Partner votes or transfers its
Partnership Interest, or refrains from voting or transferring its Partnership Interest, it shall be
acting in its individual capacity. The organizational documents of each General Partner may
provide that determinations to take or decline to take any action in its individual, rather than
representative, capacity may or shall be determined by its members, if the General Partner is a
limited liability company, stockholders, if the General Partner is a corporation, or the members or
stockholders of the General Partner’s general partner, if the General Partner is a limited
partnership.



     (d) Notwithstanding anything to the contrary in this Agreement, the General Partners and their
respective Affiliates shall have no duty or obligation, express or implied, to (i) sell or
otherwise dispose of any asset of the Partnership Group other than in the ordinary course of
business or (ii) permit any Group Member to use any facilities or assets of the General Partner and
their respective Affiliates, except as may be provided in contracts entered into from time to



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time
specifically dealing with such use. Any determination by the General Partner or any of their
respective Affiliates to enter into such contracts shall be in its sole discretion.



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



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



     Section 7.10 Other Matters Concerning the General Partners.



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



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



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



     Section 7.11 Purchase or Sale of Partnership Securities. The Managing General Partner may cause the Partnership to purchase or otherwise acquire
Partnership Securities; provided that, except as permitted pursuant to Section 4.9, the Managing
General Partner may not cause any Group Member to purchase Subordinated Units during the
Subordination Period. As long as Partnership Securities are held by any Group Member, such
Partnership Securities shall not be considered Outstanding for any purpose, except as otherwise
provided herein. The General Partners or any of their respective Affiliates may also purchase or
otherwise acquire and sell or otherwise dispose of Partnership Securities for its own account,
subject to the provisions of Articles IV and X.



     Section 7.12 Registration Rights of the General Partners and their Affiliates.



     (a) Following the Initial Public Offering, if (i) a General Partner or any of its respective
Affiliates (including for purposes of this Section 7.12, any Person that is an Affiliate



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of a
General Partner at the date hereof notwithstanding that it may later cease to be an Affiliate of a
General Partner) holds Partnership Securities that it desires to sell and (ii) Rule 144 of the
Securities Act (or any successor rule or regulation to Rule 144) or another exemption from
registration is not available to enable such holder of Partnership Securities (the
“Holder”) to dispose of the number of Partnership Securities it desires to sell at the time
it desires to do so without registration under the Securities Act, then at the option and upon the
request of the
Holder, the Partnership shall file with the Commission as promptly as practicable after
receiving such request, and use all commercially reasonable efforts to cause to become effective
and remain effective for a period of not less than six months following its effective date or such
shorter period as shall terminate when all Partnership Securities covered by such registration
statement have been sold, a registration statement under the Securities Act registering the
offering and sale of the number of Partnership Securities specified by the Holder; provided,
however, that the aggregate offering price of any such offering and sale of Partnership Securities
covered by such registration statement as provided for in this Section 7.12(a) shall not be less
than $5.0 million; provided further, that the Partnership shall not be required to effect more than
two registrations pursuant to this Section 7.12(a) in any twelve-month period; and provided
further, that if the Managing General Partner determines that a postponement of the requested
registration for up to six months would be in the best interests of the Partnership and its
Partners due to a pending transaction, investigation or other event, the filing of such
registration statement or the effectiveness thereof may be deferred for up to six months, but not
thereafter. In connection with any registration pursuant to the immediately preceding sentence, the
Partnership shall (i) promptly prepare and file (A) such documents as may be necessary to register
or qualify the securities subject to such registration under the securities laws of such states as
the Holder shall reasonably request; provided, however, that no such qualification shall be
required in any jurisdiction where, as a result thereof, the Partnership would become subject to
general service of process or to taxation or qualification to do business as a foreign corporation
or partnership doing business in such jurisdiction solely as a result of such registration, and (B)
such documents as may be necessary to apply for listing or to list the Partnership Securities
subject to such registration on such National Securities Exchange as the Holder shall reasonably
request, and (ii) do any and all other acts and things that may be necessary or appropriate to
enable the Holder to consummate a public sale of such Partnership Securities in such states. Except
as set forth in Section 7.12(c), all costs and expenses of any such registration and offering
(other than the underwriting discounts and commissions) shall be paid by the Partnership, without
reimbursement by the Holder.



     (b) If the Partnership shall at any time propose to file a registration statement under the
Securities Act for an offering of Partnership Securities for cash (other than an offering relating
solely to an employee benefit plan but including the Initial Public Offering), the Partnership
shall use all commercially reasonable efforts to include such number or amount of Partnership
Securities held by any Holder in such registration statement as the Holder shall request; provided,
that the Partnership is not required to make any effort or take any action to so include the
Partnership Securities of the Holder once the registration statement becomes or is declared
effective by the Commission, including any registration statement providing for the offering from
time to time of Partnership Securities pursuant to Rule 415 of the Securities Act. If the proposed
offering pursuant to this Section 7.12(b) shall be an underwritten offering, then, in the event
that the managing underwriter or managing underwriters of such offering advise the Partnership and
the Holder that in their opinion the inclusion of all or some of the Holder’s



72









 






Partnership
Securities would adversely and materially affect the success of the offering, the Partnership shall
include in such offering only that number or amount, if any, of Partnership Securities held by the
Holder that, in the opinion of the managing underwriter or managing underwriters, will not so
adversely and materially affect the offering. Except as set forth in
Section 7.12(c), all costs and expenses of any such registration and offering (other than the
underwriting discounts and commissions) shall be paid by the Partnership, without reimbursement by
the Holder.



     (c) If underwriters are engaged in connection with any registration referred to in this
Section 7.12, the Partnership shall provide indemnification, representations, covenants, opinions
and other assurance to the underwriters in form and substance reasonably satisfactory to such
underwriters. Further, in addition to and not in limitation of the Partnership’s obligation under
Section 7.7, the Partnership shall, to the fullest extent permitted by law, indemnify and hold
harmless the Holder, its officers, directors and each Person who controls the Holder (within the
meaning of the Securities Act) and any agent thereof (collectively, “Indemnified Persons”)
against any losses, claims, demands, actions, causes of action, assessments, damages, liabilities
(joint or several), costs and expenses (including interest, penalties and reasonable attorneys’
fees and disbursements), resulting to, imposed upon, or incurred by the Indemnified Persons,
directly or indirectly, under the Securities Act or otherwise (hereinafter referred to in this
Section 7.12(c) as a “claim” and in the plural as “claims”) based upon, arising out of or resulting
from any untrue statement or alleged untrue statement of any material fact contained in any
registration statement under which any Partnership Securities were registered under the Securities
Act or any state securities or Blue Sky laws, in any preliminary prospectus or issuer free writing
prospectus as defined in Rule 433 of the Securities Act (if used prior to the effective date of
such registration statement), or in any summary or final prospectus or in any amendment or
supplement thereto (if used during the period the Partnership is required to keep the registration
statement current), or arising out of, based upon or resulting from the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements made therein not misleading; provided, however, that the Partnership shall not be liable
to any Indemnified Person to the extent that any such claim arises out of, is based upon or results
from an untrue statement or alleged untrue statement or omission or alleged omission made in such
registration statement, such preliminary, summary or final prospectus or such amendment or
supplement, in reliance upon and in conformity with written information furnished to the
Partnership by or on behalf of such Indemnified Person specifically for use in the preparation
thereof.



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



     (e) The rights to cause the Partnership to register Partnership Securities pursuant to this
Section 7.12 may be assigned (but only with all related obligations) by a Holder to a



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



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



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



ARTICLE VIII

BOOKS, RECORDS, ACCOUNTING AND REPORTS




     Section 8.1 Records and Accounting. The Managing General Partner shall keep or cause to be kept at the principal office of the
Partnership appropriate books and records with respect to the Partnership’s business, including all
books and records necessary to provide to the Partners any information required to be provided
pursuant to Section 3.4(a). Any books and records maintained by or on behalf of the Partnership in
the regular course of its business, including the record of the Record Holders of Units or other
Partnership Securities, books of account and records of Partnership proceedings,
may be kept on, or be in the form of, computer



74









 






disks, hard drives, magnetic tape, photographs,
micrographics or any other information storage device; provided, that the books and records so
maintained are convertible into clearly legible written form within a reasonable period of time.
The books of the Partnership shall be maintained, for financial reporting purposes, on an accrual
basis in accordance with U.S. GAAP.



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



     Section 8.3 Reports.



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



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



     (c) The Managing General Partner shall be deemed to have made a report available to each
Record Holder as required by this Section 8.3 if it has either (i) filed such report with the
Commission via its Electronic Data Gathering, Analysis and Retrieval system and such report is
publicly available on such system or (ii) made such report available on any publicly available
website maintained by the Partnership.



ARTICLE IX

TAX MATTERS




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



     Section 9.2 Tax Elections.



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



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



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



     Section 9.4 Withholding. Notwithstanding any other provision of this Agreement, the Managing General Partner is
authorized to take any action that may be required to cause the Partnership and other Group Members
to comply with any withholding requirements established under the Code or any other federal, state
or local law including pursuant to Sections 1441, 1442, 1445 and 1446 of the Code. To the extent
that the Partnership is required or elects to withhold and pay over to any taxing authority any
amount resulting from the allocation or distribution of income to any Partner (including by reason
of Section 1446 of the Code), the Managing General Partner may treat the amount withheld as a
distribution of cash pursuant to Section 6.3 in the amount of such withholding from such Partner.



ARTICLE X

ADMISSION OF PARTNERS




     Section 10.1 Admission of Limited Partners.



     (a) By acceptance of the transfer of any Limited Partner Interests in accordance with this
Section 10.1 or the issuance of any Limited Partner Interests in accordance herewith, and except as
provided in Section 4.9, each transferee or other recipient of a Limited Partner Interest
(including any nominee holder or an agent or representative acquiring such Limited Partner
Interests for the account of another Person) (i) shall be admitted to the Partnership as a Limited
Partner with respect to the Limited Partner Interests so transferred or issued to such Person when
any such transfer or issuance is reflected in the books and records of the Partnership, with or
without execution of this Agreement, (ii) shall become bound by the terms of, and shall be



76









 






deemed
to have agreed to be bound by, this Agreement, (iii) shall become the Record Holder of the Limited
Partner Interests so transferred or issued, (iv) represents that the transferee or other recipient
has the capacity, power and authority to enter into this Agreement, (v) grants the powers of
attorney set forth in this Agreement and (vi) makes the consents, acknowledgments and waivers
contained in this Agreement. The transfer of any Limited Partner Interests and/or the admission of
any new Limited Partner shall not constitute an amendment to this Agreement. A Person may become a
Record Holder without the consent or approval of any of the Partners. A Person may not become a
Limited Partner without acquiring a Limited Partner Interest. The rights and obligations of a
Person who is a Ineligible Holder shall be determined in accordance with Section 4.9.



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



     (c) Any transfer of a Limited Partner Interest shall not entitle the transferee to share in
the profits and losses, to receive distributions, to receive allocations of income, gain, loss,
deduction or credit or any similar item or to any other rights to which the transferor was entitled
until the transferee becomes a Limited Partner pursuant to Section 10.1(a).



     Section 10.2 Admission of Successor Managing General Partner. A successor Managing General Partner approved pursuant to Section 11.1 or 11.2 or the
transferee of or successor to all of the Managing General Partner Interest pursuant to Section 4.6
who is proposed to be admitted as a successor Managing General Partner shall be admitted to the
Partnership as the Managing General Partner, effective immediately prior to the withdrawal or
removal of the predecessor or transferring Managing General Partner, pursuant to Section 11.1 or
11.2 or the transfer of the Managing General Partner Interest pursuant to Section 4.6, provided,
however, that no such successor shall be admitted to the Partnership until compliance with the
terms of Section 4.6 has occurred and such successor has executed and delivered such other
documents or instruments as may be required to effect such admission. Any such successor shall,
subject to the terms hereof, carry on the business of the members of the Partnership Group without
dissolution.



     Section 10.3 Amendment of Agreement and Certificate of Limited Partnership. To effect the admission to the Partnership of any Partner, the Managing General Partner
shall take all steps necessary under the Delaware Act to amend the records of the Partnership to
reflect such admission and, if necessary, to prepare as soon as practicable an amendment to this
Agreement and, if required by law, the Managing General Partner shall prepare and file an amendment
to the Certificate of Limited Partnership, and the Managing General Partner may for this purpose,
among others, exercise the power of attorney granted pursuant to Section 2.6.



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ARTICLE XI

WITHDRAWAL OR REMOVAL OF PARTNERS




     Section 11.1 Withdrawal of the Managing General Partner.



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




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




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




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




     (iv) The Managing General Partner (A) makes a general assignment for the benefit of
creditors; (B) files a voluntary bankruptcy petition for relief under Chapter 7 of the
United States Bankruptcy Code; (C) files a petition or answer seeking for itself a
liquidation, dissolution or similar relief (but not a reorganization) under any law; (D)
files an answer or other pleading admitting or failing to contest the material allegations
of a petition filed against the Managing General Partner in a proceeding of the type
described in clauses (A) through (C) of this Section 11.1(a)(iv); or (E) seeks, consents to
or acquiesces in the appointment of a trustee (but not a debtor-in-possession), receiver or
liquidator of the Managing General Partner or of all or any substantial part of its
properties;




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




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



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



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     (b) Withdrawal of the Managing General Partner from the Partnership upon the occurrence of an
Event of Withdrawal shall not constitute a breach of this Agreement under the following
circumstances: (i) at any time during the period beginning on the Closing Date and ending at 12:00
midnight, prevailing Central Time, on June 30, 2017, the Managing General Partner voluntarily
withdraws by giving at least 90 days’ advance notice of its intention to withdraw to the Partners;
provided, that prior to the effective date of such withdrawal, the withdrawal is approved by
Unitholders holding at least a majority of the Outstanding Units (excluding Units held by the
Managing General Partner and its Affiliates) and the Managing General Partner delivers to the
Partnership an Opinion of Counsel (“Withdrawal Opinion of Counsel”) that such withdrawal
(following the selection of the successor Managing General Partner) would not result in the loss of
the limited liability of any Limited Partner or any Group Member under applicable partnership or
limited liability company law of the state under whose laws the Partnership or Group Member, as
applicable, is organized or cause any Group Member to be treated as an association taxable as a
corporation or otherwise to be taxed as an entity for federal income tax purposes (to the extent
not previously so treated or taxed); (ii) at any time after 12:00 midnight, Central Time, on June
30, 2017, the Managing General Partner voluntarily withdraws by giving at least 90 days’ advance
notice to the Partners, such withdrawal to take effect on the date
specified in such notice; (iii) at
any time that the Managing General Partner ceases to be the Managing General Partner pursuant to
Section 11.1(a)(ii) or is removed pursuant to Section 11.2;
or (iv) notwithstanding clause (i) of
this sentence, at any time that the Managing General Partner voluntarily withdraws by giving at
least 90 days’ advance notice of its intention to withdraw to the other Partners, such withdrawal
to take effect on the date specified in the notice, if at the time such notice is given one Person
and its Affiliates (other than the Managing General Partner and its Affiliates) own beneficially or
of record or control at least 50% of the Outstanding Units. The withdrawal of the Managing General
Partner from the Partnership upon
the occurrence of an Event of Withdrawal shall also constitute the withdrawal of the Managing
General Partner as general partner or managing member, if any, to the extent applicable, of the
other Group Members. If the Managing General Partner withdraws other than pursuant to Section
11.1(a)(ii), the holders of a Unit Majority, may, prior to the effective date of such withdrawal,
elect a successor Managing General Partner. The Person so elected as successor Managing General
Partner shall automatically become the successor general partner or managing member, to the extent
applicable, of the other Group Members of which the Managing General Partner is a general partner
or a managing member. If, prior to the effective date of the Managing General Partner’s withdrawal,
a successor is not selected by the Unitholders as provided herein or the Partnership does not
receive a Withdrawal Opinion of Counsel, the Partnership shall be dissolved in accordance with
Section 12.1, unless the business of the Partnership is continued pursuant to Section 12.2. Any
successor Managing General Partner elected in accordance with the terms of this Section 11.1 shall
be subject to the provisions of Section 10.2.



     Section 11.2 Removal of the Managing General Partner. The Managing General Partner may be removed if such removal is approved by the Unitholders
holding at least 80% of the Outstanding Units (including Units held by the Managing General Partner
and its Affiliates) voting as a single class. Notwithstanding the foregoing, prior to the fifth
anniversary of the Closing Date, the General Partner may be removed only for Cause. Any such
action by such holders for removal of the Managing General Partner must also provide for the
election of a successor Managing General Partner by the Unitholders holding a majority of each
class of outstanding Units, voting as separate classes. Such removal shall be effective immediately



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following the admission of a successor Managing General Partner pursuant to Section 10.2. The
removal of the Managing General Partner shall also automatically constitute the removal of the
Managing General Partner as general partner or managing member, to the extent applicable, of the
other Group Members of which the Managing General Partner is a general partner or a managing
member. If a Person is elected as a successor Managing General Partner in accordance with the terms
of this Section 11.2, such Person shall, upon admission pursuant to Section 10.2, automatically
become a successor general partner or managing member, to the extent applicable, of the other Group
Members of which the Managing General Partner is a general partner or a managing member. The right
of the holders of Outstanding Units to remove the Managing General Partner shall not exist or be
exercised unless the Partnership has received an opinion opining as to the matters covered by a
Withdrawal Opinion of Counsel. Any successor Managing General Partner elected in accordance with
the terms of this Section 11.2 shall be subject to the provisions of Section 10.2.



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



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



     For purposes of this Section 11.3(a), the fair market value of the Departing General Partner’s
Combined Interest shall be determined by agreement between the Departing General Partner and its
successor or, failing agreement within 30 days after the effective date of such Departing General
Partner’s departure, by an independent investment banking firm or other



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



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



     Section 11.4 Termination of Subordination Period, Conversion of Subordinated Units and
Extinguishment of Cumulative Common Unit Arrearages. Notwithstanding any provision of this Agreement to the contrary, if the Managing General
Partner is removed as managing general partner of the Partnership under circumstances where Cause
does not exist:



     (a) with respect to Subordinated Units held by any Person, provided (i) neither such
Person nor any of its Affiliates voted any of its Units in favor of the removal and (ii) such
Person is not an Affiliate of the successor General Partner, such Subordinated Units, will
immediately and automatically convert into Common Units on a one-for-one basis; and



     (b) if all of the Subordinated Units, convert pursuant to Section 11.4(a), all Cumulative
Common Unit Arrearages on the Common Units will be extinguished and the Subordination Period will
end.



     Section 11.5 Withdrawal of Limited Partners or Special General Partner. No Limited Partner or Special General Partner shall have any right to withdraw from the
Partnership; provided, however, that when a transferee of a Limited Partner’s or Special General
Partner’s Partnership Interest becomes a Record Holder of the Partnership Interest so transferred



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(including Limited Partner interests that have converted from Special General Partner Interests
pursuant to the provisions of Section 5.5), such transferring Limited Partner or Special General
Partner, as applicable, shall cease to be a Partner with respect to the Partnership Interest so
transferred.



ARTICLE XII

DISSOLUTION AND LIQUIDATION




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



     (a) an Event of Withdrawal of the Managing General Partner as provided in Section 11.1(a)
(other than Section 11.1(a)(ii)), unless a successor is elected and an Opinion of Counsel is
received as provided in Section 11.1(b) or 11.2 and such successor is admitted to the Partnership
pursuant to Section 10.2;



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



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



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



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




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



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




     (iii) all necessary steps shall be taken to cancel this Agreement and the Certificate
of Limited Partnership and to enter into and, as necessary, to file a new partnership
agreement and certificate of limited partnership, and the successor Managing General Partner
may for this purpose exercise the powers of attorney granted the Managing General Partner
pursuant to Section 2.6; provided, that the right of the holders of a Unit Majority to
approve a successor Managing General Partner and to continue the business of the Partnership
shall not exist and may not be exercised unless the Partnership has received an Opinion of
Counsel that (x) the exercise of the right would not result in the loss of limited liability
of any Limited Partner under the Delaware Act and (y) neither the Partnership nor any
successor limited partnership would be treated as an association taxable as a corporation or
otherwise be taxable as an entity for federal income tax
purposes upon the exercise of such right to continue (to the extent not previously so
treated or taxed).



     Section 12.3 Liquidator. Upon dissolution of the Partnership, unless the business of the Partnership is continued
pursuant to Section 12.2, the Managing General Partner shall select one or more Persons to act as
Liquidator. The Liquidator (if other than the Managing General Partner) shall be entitled to
receive such compensation for its services as may be approved by holders of at least a majority of
the Outstanding Common Units and Subordinated Units voting as a single class. The Liquidator (if
other than the Managing General Partner) shall agree not to resign at any time without 15 days’
prior notice and may be removed at any time, with or without cause, by notice of removal approved
by holders of at least a majority of the Outstanding Common Units and Subordinated Units, voting as
a single class. Upon dissolution, removal or resignation of the Liquidator, a successor and
substitute Liquidator (who shall have and succeed to all rights, powers and duties of the original
Liquidator) shall within 30 days thereafter be approved by holders of at least a majority of the
Outstanding Common Units and Subordinated Units voting as a single class. The right to approve a
successor or substitute Liquidator in the manner provided herein shall be deemed to refer also to
any such successor or substitute Liquidator approved in the manner herein provided. Except as
expressly provided in this Article XII, the Liquidator approved in the manner provided herein shall
have and may exercise, without further authorization or consent of any of the parties hereto, all
of the powers conferred upon the Managing General Partner under the terms of this Agreement (but
subject to all of the applicable limitations, contractual and otherwise, upon the exercise of such
powers, other than the limitation on sale set forth in Section 7.3(a)) necessary or appropriate to
carry out the duties and functions of the Liquidator hereunder for and during the period of time
required to complete the winding up and liquidation of the Partnership as provided for herein.



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



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



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



     (c) All property and all cash in excess of that required to discharge liabilities as provided
in Section 12.4(b) shall be distributed to the Partners in accordance with, and to the extent of,
the positive balances in their respective Capital Accounts, as determined after taking into account
all Capital Account adjustments (other than those made by reason of distributions pursuant to this
Section 12.4(c)) for the taxable year of the Partnership during which the liquidation of the
Partnership occurs (with such date of occurrence being determined pursuant to Treasury Regulation
Section 1.704-1(b)(2)(ii)(g)), and such distribution shall be made by the end of such taxable year
(or, if later, within 90 days after said date of such occurrence).



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



     Section 12.6 Return of Contributions. No General Partner shall be personally liable for, or shall have any obligation to
contribute or loan any monies or property to the Partnership to enable it to effectuate, the return
of the Capital Contributions of the Partners or Unitholders, or any portion thereof, it being
expressly understood that any such return shall be made solely from Partnership assets.



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



     Section 12.8 Capital Account Restoration. No Limited Partner or Special General Partner shall have any obligation to restore any
negative balance in its Capital Account upon liquidation of the Partnership. The Managing General
Partner shall be obligated to restore any



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negative balance in its Capital Account upon liquidation
of its interest in the Partnership by the end of the taxable year of the Partnership during which
such liquidation occurs, or, if later, within 90 days after the date of such liquidation.



ARTICLE XIII

AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE




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



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



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



     (c) a change that the Managing General Partner determines to be necessary or appropriate to
qualify or continue the qualification of the Partnership as a limited partnership or a partnership
in which the Limited Partners have limited liability under the laws of any state or to ensure that
the Group Members will not be treated as associations taxable as corporations or otherwise taxed as
entities for federal income tax purposes;



     (d) a change that the Managing General Partner determines (i) does not adversely affect the
Partners (including any particular class of Partnership Interests as compared to other classes of
Partnership Interests) in any material respect, (ii) to be necessary or appropriate to (A) satisfy
any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or
regulation of any federal or state agency or judicial authority or contained in any federal or
state statute (including the Delaware Act) or (B) facilitate the trading of the Units (including
the division of any class or classes of Outstanding Units into different classes to facilitate
uniformity of tax consequences within such classes of Units) or comply with any rule, regulation,
guideline or requirement of any National Securities Exchange on which any class of Partnership
Interests are or will be listed or admitted to trading, (iii) to be necessary or appropriate in
connection with action taken by the Managing General Partner pursuant to Section 5.8 or (iv) is
required to effect the intent expressed in the Registration Statement or the intent of the
provisions of this Agreement or is otherwise contemplated by this Agreement;



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



     (f) an amendment that is necessary, in the Opinion of Counsel, to prevent the Partnership, or
the General Partners or CVR Energy, Inc. (for so long as CVR Energy, Inc. continues to own the
Special General Partner) or their directors, officers, trustees or agents from



85









 






in any manner being
subjected to the provisions of the Investment Company Act of 1940, as
amended, the Investment Advisers Act of 1940, as amended, or “plan asset” regulations adopted
under the Employee Retirement Income Security Act of 1974, as amended, regardless of whether such
are substantially similar to plan asset regulations currently applied or proposed by the United
States Department of Labor;



     (g) an amendment that the Managing General Partner determines to be necessary or appropriate
in connection with the creation, authorization or issuance of any class or series of Partnership
Securities pursuant to Section 5.4;



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



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



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



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



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



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



     Section 13.3 Amendment Requirements.



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



     (b) Notwithstanding the provisions of Sections 13.1 and 13.2, no amendment to this Agreement
may (i) enlarge the obligations of any Partner without its consent, unless such shall be deemed to
have occurred as a result of an amendment approved pursuant to Section 13.3(c), (ii) enlarge the
obligations of, restrict in any way any action by or rights of, or reduce in any way the amounts
distributable, reimbursable or otherwise payable to, a General Partner or any of its Affiliates
without its consent, which consent may be given or withheld in its sole discretion, (iii) change
Section 12.1(b), or (iv) change the term of the Partnership or, except as set forth in Section
12.1(b), give any Person the right to dissolve the Partnership.



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



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



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



     Section 13.4 Special Meetings. All acts of Partners to be taken pursuant to this Agreement shall be taken in the manner
provided in this Article XIII. Special meetings of the Partners may be called by any General
Partner or by Limited Partners owning 20% or more of the Outstanding Units of the class or classes
for which a meeting is proposed. Limited Partners and the Special General Partner shall call a
special meeting by delivering to the Managing General Partner one or more requests in writing
stating that the signing Partners wish to call a special meeting and indicating the general or
specific purposes for which the special meeting is to be called. Within 60 days after receipt of
such a call from Partners or within such greater time as may be reasonably necessary for the
Partnership to comply with any statutes, rules, regulations, listing agreements or similar
requirements governing the holding of a meeting or the solicitation of proxies for use at such a
meeting, the Managing General Partner shall send a notice of the meeting to the Partners either
directly or indirectly through the Transfer Agent. A meeting shall be held at a time and place
determined by the Managing General Partner on a date



87









 






not less than 10 days nor more than 60 days
after the mailing of notice of the meeting. Limited Partners shall not vote on matters that would
cause the Limited Partners to be deemed to be taking part in the management and control of the
business and affairs of the Partnership so as to jeopardize the Limited Partners’ limited liability
under the Delaware Act or the law of any other state in which the Partnership is qualified to do
business.



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



     Section 13.6 Record Date. For purposes of determining the Partners entitled to notice of or to vote at a meeting of
the Partners or to give approvals without a meeting as provided in Section 13.11 the Managing
General Partner may set a Record Date, which shall not be less than 10 nor more than 60 days before
(a) the date of the meeting (unless such requirement conflicts with any rule, regulation, guideline
or requirement of any National Securities Exchange on which the Units are listed or admitted to
trading or U.S. federal securities laws, in which case the rule, regulation, guideline or
requirement of such National Securities Exchange or U.S. federal securities law shall govern) or
(b) in the event that approvals are sought without a meeting, the date by which Partners are
requested in writing by the Managing General Partner to give such approvals. If the Managing
General Partner does not set a Record Date, then (a) the Record Date for determining the Partners
entitled to notice of or to vote at a meeting of the Partners shall be the close of business on the
day next preceding the day on which notice is given, and (b) the Record Date for determining the
Partners entitled to give approvals without a meeting shall be the date the first written approval
is deposited with the Partnership in care of the Managing General Partner in accordance with
Section 13.11.



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



     Section 13.8 Waiver of Notice; Approval of Meeting; Approval of Minutes. The transactions of any meeting of Partners, however called and noticed, and whenever held,
shall be as valid as if it had occurred at a meeting duly held after regular call and notice, if a
quorum is present either in person or by proxy. Attendance of a Partner at a meeting shall
constitute a waiver of notice of the meeting, except (i) when the Partner attends the meeting for
the express purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened and (ii) that attendance at a
meeting is not a waiver of any right to disapprove the consideration of matters required to be
included in the notice of the meeting, but not so included, if the disapproval is expressly made at
the meeting.



88









 





     Section 13.9 Quorum and Voting. The holders of a majority of the Outstanding Units of the class or classes for which a
meeting has been called (including Outstanding Units deemed owned by any General Partner)
represented in person or by proxy shall constitute a quorum at a meeting of Partners of such class
or classes unless any such action by the Partners requires approval by holders of a greater
percentage of such Units, in which case the quorum shall be such greater percentage. At any meeting
of the Partners duly called and held in accordance with this Agreement at which a quorum is
present, the act of Partners holding Outstanding Units that in the aggregate represent a majority
of the Outstanding Units entitled to vote and be present in person or by proxy at such meeting
shall be deemed to constitute the act of all Partners, unless a greater or different percentage is
required with respect to such action under the provisions of this Agreement, in which case the act
of the Partners holding Outstanding Units that in the aggregate represent at least such greater or
different percentage shall be required. The Partners present at a duly called or held meeting at
which a quorum is present may continue to transact business until adjournment, notwithstanding the
withdrawal of enough Partners to leave less than a quorum, if any action taken (other than
adjournment) is approved by the required percentage of Outstanding Units specified in this
Agreement (including Outstanding Units deemed owned by any General Partner). In the absence of a
quorum any meeting of Partners may be adjourned from time to time by the affirmative vote of
holders of at least a majority of the Outstanding Units entitled to vote at such meeting (including
Outstanding Units deemed owned by any General Partner) represented either in person or by proxy,
but no other business may be transacted, except as provided in Section 13.7.



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



     Section 13.11 Action Without a Meeting. If authorized by the Managing General Partner, any action that may be taken at a meeting of
the Partners may be taken without a meeting, without a vote and without prior notice, if an
approval in writing setting forth the action so taken is signed by Partners owning not less than
the minimum percentage of the Outstanding Units (including Units deemed owned by any General
Partner) that would be necessary to authorize or take such action at a meeting at which all the
Partners were present and voted (unless such provision conflicts with any rule, regulation,
guideline or requirement of any National Securities Exchange on which the Units are listed or
admitted to trading, in which case the rule, regulation, guideline or requirement of such National
Securities Exchange shall govern). Prompt notice of the taking of action without a meeting shall be
given to the Partners who have



89









 






not approved in writing. The Managing General Partner may specify
that any written ballot submitted to Partners for the purpose of taking any action without a
meeting shall be returned to the Partnership within the time period, which shall be not less than
20 days, specified by the Managing General Partner. If a ballot returned to the Partnership does
not vote all of the Units held by the Partners, the Partnership shall be deemed to have failed to
receive a ballot for the Units that were not voted. If approval of the taking of any action by the
Partners is solicited by any Person other than by or on behalf of the Managing General Partner, the
written approvals shall have no force and effect unless and until (a) they are deposited with the
Partnership in care of the Managing General Partner, (b) approvals sufficient to take the action
proposed are dated as of a date not more than 90 days prior to the date sufficient approvals are
deposited with the Partnership and (c) an Opinion of Counsel is delivered to the Managing General
Partner to the effect that the exercise of such right and the action proposed to be taken with
respect to any particular matter (i) will not cause the Limited Partners to be deemed to be taking
part in the management and control of the business and affairs of the Partnership so as to
jeopardize the Limited Partners’ limited liability, and (ii) is otherwise permissible under the
state statutes then governing the rights, duties and liabilities of the Partnership and the
Partners. Nothing contained in this Section 13.11 shall be deemed to require the Managing General
Partner to solicit all holders of Units in connection with a matter approved by the requisite
percentage of Units or other holders of Outstanding Units acting by written consent without a
meeting



     Section 13.12 Right to Vote and Related Matters.



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



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



ARTICLE XIV

MERGER




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



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     Section 14.2 Procedure for Merger or Consolidation. Merger or consolidation of the Partnership pursuant to this Article XIV requires the prior
consent of the Managing General Partner, provided, however, that, to the fullest extent permitted
by law, the Managing General Partner shall have no duty or obligation to consent to any merger or
consolidation of the Partnership and may decline to do so free of any fiduciary duty or obligation
whatsoever to the Partnership or any Partner and, in declining to consent to a merger or
consolidation, shall not be required to act in good faith or pursuant to any other standard imposed
by this Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the
Delaware Act or any other law, rule or regulation or at equity. If the Managing General Partner
shall determine to consent to the merger or consolidation, the Managing General Partner shall
approve the Merger Agreement, which shall set forth:



     (a) the names and jurisdictions of formation or organization of each of the business entities
proposing to merge or consolidate;



     (b) the name and jurisdiction of formation or organization of the business entity that is to
survive the proposed merger or consolidation (the “Surviving Business Entity”);



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



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



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



     (f) the effective time of the merger, which may be the date of the filing of the certificate
of merger pursuant to Section 14.4 or a later date specified in or determinable in accordance with
the Merger Agreement (provided, that if the effective time of the merger is to be later than the
date of the filing of the certificate of merger, the effective time shall be fixed no later than
the time of the filing of the certificate of merger and stated therein); and



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



     Section 14.3 Approval by Partners of Merger or Consolidation.



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



     (b) Except as provided in Section 14.3(d) or 14.3(e) and subject to any prior approval
required by Section 7.3, the Merger Agreement shall be approved upon receiving the affirmative vote
or consent of the holders of a Unit Majority unless the Merger Agreement contains any provision
that, if contained in an amendment to this Agreement, the provisions of this Agreement or the
Delaware Act would require for its approval the vote or consent of a greater percentage of the
Outstanding Units or of any class of Partners, in which case such greater percentage vote or
consent shall be required for approval of the Merger Agreement.



     (c) Except as provided in Section 14.3(d) and 14.3(e), after such approval by vote or consent
of the Partners, and at any time prior to the filing of the certificate of merger pursuant to
Section 14.4, the merger or consolidation may be abandoned pursuant to provisions therefor, if any,
set forth in the Merger Agreement.



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



     (e) Additionally, notwithstanding anything else contained in this Article XIV or in this
Agreement, the Managing General Partner is permitted, without Partner approval, to merge or
consolidate the Partnership with or into another entity if (A) the Managing General Partner has
received an Opinion of Counsel that the merger or consolidation, as the case may be, would not
result in the loss of the limited liability of any Limited Partner or cause the Partnership to be
treated as an association taxable as a corporation or otherwise to be taxed as an entity for
federal income tax purposes (to the extent not previously treated as such), (B) the merger or



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consolidation would not result in an amendment to the Partnership Agreement, other than any
amendments that could be adopted pursuant to Section 13.1, (C) the Partnership is the Surviving
Business Entity in such merger or consolidation, (D) each Unit outstanding immediately prior to the
effective date of the merger or consolidation is to be an identical Unit of the Partnership after
the effective date of the merger or consolidation, and (E) the number of Partnership Securities to
be issued by the Partnership in such merger or consolidation does not exceed 20% of the Partnership
Securities Outstanding immediately prior to the effective date of such merger or consolidation.



     Section 14.4 Certificate of Merger. Upon the required approval by the Managing General Partner and the Unitholders of a Merger
Agreement, a certificate of merger shall be executed and filed with the Secretary of State of the
State of Delaware in conformity with the requirements of the Delaware Act.



     Section 14.5 Amendment of Partnership Agreement. Pursuant to Section 17-211(g) of the Delaware Act, an agreement of merger or consolidation
approved in accordance with this Article XIV may (a) effect any amendment to this
Agreement or (b) effect the adoption of a new partnership agreement for the Partnership if it
is the Surviving Business Entity. Any such amendment or adoption made pursuant to this Section
14.5 shall be effective at the effective time or date of the merger or consolidation.



     Section 14.6 Effect of Merger.



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




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




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




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




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



     (b) A merger or consolidation effected pursuant to this Article shall not be deemed to result
in a transfer or assignment of assets or liabilities from one entity to another.



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ARTICLE XV

RIGHT TO ACQUIRE LIMITED PARTNER INTERESTS




     Section 15.1 Right to Acquire Limited Partner Interests.



     (a) Notwithstanding any other provision of this Agreement, if at any time the Managing General
Partner and its Affiliates hold more than 80% of the total Limited Partner Interests of any class
then Outstanding, the Managing General Partner shall then have the right, which right it may assign
and transfer in whole or in part to the Partnership or any Affiliate of the Managing General
Partner, exercisable in its sole discretion, to purchase all, but not less than all, of such
Limited Partner Interests of such class then Outstanding held by Persons other than the Managing
General Partner and its Affiliates, at the greater of (x) the Current Market Price as of the date
three days prior to the date that the notice described in Section 15.1(b) is mailed and (y) the
highest price paid by the Managing General Partner or any of its Affiliates for any such
Limited Partner Interest of such class purchased during the 90-day period preceding the date
that the notice described in Section 15.1(b) is mailed.



     (b) If the Managing General Partner, any Affiliate of the Managing General Partner or the
Partnership elects to exercise the right to purchase Limited Partner Interests granted pursuant to
Section 15.1(a), the Managing General Partner shall deliver to the Transfer Agent notice of such
election to purchase (the “Notice of Election to Purchase”) and shall cause the Transfer
Agent to mail a copy of such Notice of Election to Purchase to the Record Holders of Limited
Partner Interests of such class (as of a Record Date selected by the Managing General Partner) at
least 10, but not more than 60, days prior to the Purchase Date. Such Notice of Election to
Purchase shall also be published for a period of at least three consecutive days in at least two
daily newspapers of general circulation printed in the English language and circulated in the
Borough of Manhattan, New York. The Notice of Election to Purchase shall specify the Purchase Date
and the price (determined in accordance with Section 15.1(a)) at which Limited Partner Interests
will be purchased and state that the Managing General Partner, its Affiliate or the Partnership, as
the case may be, elects to purchase such Limited Partner Interests (in the case of Limited Partner
Interests evidenced by Certificates), upon surrender of Certificates representing such Limited
Partner Interests in exchange for payment, at such office or offices of the Transfer Agent as the
Transfer Agent may specify, or as may be required by any National Securities Exchange on which such
Limited Partner Interests are listed or admitted to trading. Any such Notice of Election to
Purchase mailed to a Record Holder of Limited Partner Interests at his address as reflected in the
records of the Transfer Agent shall be conclusively presumed to have been given regardless of
whether the owner receives such notice. On or prior to the Purchase Date, the Managing General
Partner, its Affiliate or the Partnership, as the case may be, shall deposit with the Transfer
Agent cash in an amount sufficient to pay the aggregate purchase price of all of such Limited
Partner Interests to be purchased in accordance with this Section 15.1. If the Notice of Election
to Purchase shall have been duly given as aforesaid at least 10 days prior to the Purchase Date,
and if on or prior to the Purchase Date the deposit described in the preceding sentence has been
made for the benefit of the holders of Limited Partner Interests subject to purchase as provided
herein, then from and after the Purchase Date, notwithstanding that any Certificate shall not have
been surrendered for purchase, all rights of the holders of such Limited Partner Interests
(including any rights pursuant to Articles IV, V, VI, and XII) shall thereupon cease, except the
right to receive the purchase price (determined in accordance with



94









 






Section 15.1(a)) for Limited
Partner Interests therefor, without interest (in the case of Limited Partner Interests evidenced by
Certificates), upon surrender to the Transfer Agent of the Certificates representing such Limited
Partner Interests, and such Limited Partner Interests shall thereupon be deemed to be transferred
to the Managing General Partner, its Affiliate or the Partnership, as the case may be, on the
record books of the Transfer Agent and the Partnership, and the Managing General Partner or any
Affiliate of the Managing General Partner, or the Partnership, as the case may be, shall be deemed
to be the owner of all such Limited Partner Interests from and after the Purchase Date and shall
have all rights as the owner of such Limited Partner Interests (including all rights as owner of
such Limited Partner Interests pursuant to Articles IV, V, VI and XII).



     (c) If, following the Initial Offering, the Special General Partner owns less than 20% of all
Outstanding Units, the Common GP Units will be deemed to be of the same class of Limited Partner
Interests as Common LP Units for purposes of this Article XV.



ARTICLE XVI

GENERAL PROVISIONS




     Section 16.1 Addresses and Notices. Any notice, demand, request, report or proxy materials required or permitted to be given or
made to a Partner under this Agreement shall be in writing and shall be deemed given or made when
delivered in person or when sent by first class United States mail or by other means of written
communication to the Partner at the address described below.



     Any notice, payment or report to be given or made to a Partner hereunder shall be deemed
conclusively to have been given or made, and the obligation to give such notice or report or to
make such payment shall be deemed conclusively to have been fully satisfied, upon sending of such
notice, payment or report to the Record Holder of such Partnership Securities at such Record
Holder’s address as shown on the records of the Transfer Agent or as otherwise shown on the records
of the Partnership, regardless of any claim of any Person who may have an interest in such
Partnership Securities by reason of any assignment or otherwise.



     Notwithstanding the foregoing, if (i) a Partner shall consent to receiving notices, demands,
requests, reports or proxy materials via electronic mail or by the Internet or (ii) the rules of
the Commission shall permit any report or proxy materials to be delivered electronically or made
available via the Internet, any such notice, demand, request, report or proxy materials shall be
deemed given or made when delivered or made available via such mode of delivery.



     An affidavit or certificate of making of any notice, payment or report in accordance with the
provisions of this Section 16.1 executed by the Managing General Partner, the Transfer Agent or the
mailing organization shall be prima facie evidence of the giving or making of such notice, payment
or report. If any notice, payment or report given or made in accordance with the provisions of this
Section 16.1 is returned marked to indicate that such notice, payment or report was unable to be
delivered, such notice, payment or report and, in the case of notices, payments or reports returned
by the United States Postal Service (or other physical mail delivery mail service outside the
United States of America), any subsequent notices, payments and reports shall be deemed to have
been duly given or made without further mailing (until such time as



95









 






such Record Holder or another
Person notifies the Transfer Agent or the Partnership of a change in the address of such Record
Holder) or other delivery if they are available for the Partner at the principal office of the
Partnership for a period of one year from the date of the giving or making of such notice, payment
or report to the other Partners. Any notice to the Partnership shall be deemed given if received by
the Managing General Partner at the principal office of the Partnership designated pursuant to
Section 2.3. The Managing General Partner may rely and shall be protected in relying on any notice
or other document from a Partner or other Person if believed by it to be genuine.



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



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



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



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



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



     Section 16.7 Counterparts. This Agreement may be executed in counterparts, all of which together shall constitute an
agreement binding on all the parties hereto, notwithstanding that all such parties are not
signatories to the original or the same counterpart. Each party shall become bound by this
Agreement immediately upon affixing its signature hereto or, in the case of a Person acquiring a
Unit, pursuant to Section 10.1(a) without execution hereof.



     Section 16.8 Applicable Law. This Agreement shall be construed in accordance with and governed by the laws of the State
of Delaware, without regard to the principles of conflicts of law that would result in the
application of the laws of another state.



     Section 16.9 Invalidity of Provisions. If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein
shall not be affected thereby.



     Section 16.10 Consent of Partners. Each Partner hereby expressly consents and agrees that, whenever in this Agreement it is
specified that an action may be taken upon the affirmative vote or consent of less than all of the
Partners, such action may be so taken upon the concurrence of less than all of the Partners and
each Partner shall be bound by the results of such action.



96









 





     Section 16.11 Facsimile Signatures. The use of facsimile signatures affixed in the name and on behalf of the transfer agent and
registrar of the Partnership on Certificates representing Units is expressly permitted by this
Agreement.



     Section 16.12 Third Party Beneficiaries. Each Partner agrees that (a) any Indemnitee shall be entitled to assert rights and remedies
hereunder as a third-party beneficiary hereto with respect to those provisions of this Agreement
affording a right, benefit or privilege to such Indemnitee, (b) any Unrestricted Person shall be
entitled to assert rights and remedies hereunder as a third-party beneficiary hereto with respect
to those provisions of this Agreement affording a right, benefit or privilege to such Unrestricted
Person and (c) Goldman, Sachs & Co., Kelso & Company, L.P. and their respective Affiliates and
successors and assigns as owners of interests in either of the General Partners shall be entitled
to assert rights and remedies hereunder as a third-party beneficiary hereto with respect to Section
7.5(g).



[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]




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



	 	 	 	 	 
	 	MANAGING GENERAL PARTNER:





CVR GP, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	SPECIAL GENERAL PARTNER:





CVR Special GP, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	ORGANIZATIONAL LIMITED PARTNER:





CVR LP, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Partnership Agreement]




 









 







	 	 	 
	 

	 	FUTURE LIMITED PARTNERS AND SPECIAL GENERAL PARTNERS
	 
	 	 
	 

	 	All Limited Partners and Special General Partners now
and hereafter admitted as Partners of the
Partnership, pursuant to powers of attorney now and
hereafter executed in favor of, and granted and
delivered to the Managing General Partner.






	 	 	 	 	 
	 	CVR GP, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Partnership Agreement]