Common use of Limited Preemptive Rights Clause in Contracts

Limited Preemptive Rights. Except as provided in this Section 4.4 and Section 4.3, no Person shall have any preemptive, preferential or other similar right with respect to (a) additional Capital Contributions; (b) issuance or sale of any class or series of Units, IDRs or other Partnership Securities, whether unissued, held in the treasury or hereafter created; (c) issuance of any obligations, evidences of indebtedness or other securities of the Partnership convertible into or exchangeable for, or carrying or accompanied by any rights to receive, purchase or subscribe to, any such Units, IDRs or other Partnership Securities; (d) issuance of any right of subscription to or right to receive, or any warrant or option for the purchase of, any such Units, IDRs or other Partnership Securities; or (e) issuance or sale of any other securities that may be issued or sold by the Partnership. The General Partner shall have the right, which it may from time to time assign in whole or in part to any of its Affiliates, to purchase Units, IDRs or other Partnership Securities from the Partnership whenever, and on the same terms that, the Partnership issues Units, IDRs or other Partnership Securities to Persons other than the General Partner and its Affiliates, to the extent necessary to maintain the Percentage Interests of the General Partner and its Affiliates equal to that which existed immediately prior to the issuance of such Units, IDRs or other Partnership Securities. Notwithstanding the type of Partnership Securities issued by the Partnership to Persons other than the General Partner and its Affiliates, the right of the General Partner and its Affiliates to purchase Units, IDRs or other Partnership Securities pursuant to the immediately preceding sentence may be exercised through the purchase of General Partner Units (based on a value which is proportionate to the price for which the Partnership Securities are issued to such Persons) in an amount necessary to maintain the Percentage Interest of the General Partner and its Affiliates with respect to the General Partner Interest equal to that which existed immediately prior to the issuance of Units, IDRs or other Partnership Securities.

Limited Preemptive Rights. Except as provided in this Section 4.4 and Section 4.3, no Person shall have any preemptive, preferential or other similar right with respect to (a) additional Capital Contributions; Except for issuances of capital stock of the Company (bi) in accordance with any Stock Option Plan, (ii) solely to the extent provided in to the last sentence of this Section 9.1 (a), pursuant to a Public Offering, or (iii) in connection with an acquisition of another Person (subject to the provisions of Section 10.1) by the Company or any of its Subsidiaries, or in settlement of indebtedness of the Company or any of its Subsidiaries or in settlement of a lawsuit or other claim involving the Company or any of its Subsidiaries, if at any time the Company authorizes the issuance or sale of any class or series shares of Units, IDRs or other Partnership Securities, whether unissued, held in the treasury or hereafter created; (c) issuance of any obligations, evidences of indebtedness or other securities capital stock of the Partnership Company or any securities that, directly or indirectly, are convertible into or exchangeable forfor capital stock of the Company or any securities containing options, rights or carrying warrants to acquire any shares of capital stock of the Company or accompanied any securities that, directly or indirectly, are convertible into or exchangeable for capital stock of the Company (other than as a dividend on the outstanding Common Stock) the Company shall first offer to sell, on a pro rata basis, to the Fund Shareholders and the CSO Shareholders (collectively, the "Purchaser Parties") and the Executive Shareholders a portion of such stock or securities equal to the quotient determined by dividing (1) in the case of the Fund Shareholders or the CSO Shareholders, the number of shares of Common Stock Beneficially Owned by the Fund Shareholders or the CSO Shareholders, as applicable (collectively the "Purchaser Common Stock") and (2) in the case of Executive Shareholders, the number of shares of Common Stock held by the Executive Shareholders ("Employee Stock") divided by the total number of shares of Common Stock outstanding. Each holder of Purchaser Common Stock and Employee Stock shall be entitled to purchase such stock or securities at the most favorable price and on the most favorable terms as such stock or securities are to be offered to any rights other Person. The purchase price for all stock and securities offered to receivethe holders of the Purchaser Common Stock or Employee Stock shall be payable in cash unless other suitable terms are offered to such Shareholders. In addition to the foregoing, the Company shall afford the Purchaser Parties the opportunity to purchase or subscribe to, any such Units, IDRs or other Partnership Securities; (d) issuance their pro rata portion of any right stock or securities (as determined above) to be offered by the Company pursuant to a Public Offering (other than the initial Public Offering of subscription the Company), unless the managing underwriter(s) for such offering state in writing that, in their opinion, such set-aside would materially adversely affect the marketability of such offering. (b) In order to exercise its purchase rights hereunder, a holder of Purchaser Common Stock or right to receiveEmployee Stock must within 15 days after receipt of written notice from the Company describing in reasonable detail the stock or securities being offered, or any warrant or option for the purchase ofprice thereof, the payment terms and such holder's percentage allotment, deliver a written notice to the Company describing its election hereunder. If all of the stock and securities offered to the holders of Purchaser Common Stock or Employee Stock is not fully subscribed by such holders, the remaining stock and securities shall be reoffered by the Company to the holders purchasing their full allotment upon the terms set forth in this paragraph, except that such holders must exercise their purchase rights within five days after receipt of such re-offer. This Section 9.1 shall not be applicable to any such Units, IDRs or other Partnership Securities; or (e) issuance or sale of transactions to be consummated under any other provision of this Agreement. (c) Upon the expiration of the offering periods described above, the Company shall be entitled to sell such stock or securities that may be issued which the holders of Purchaser Common Stock or Employee Stock have not elected to purchase, during the 90 days following such expiration on terms and conditions no more favorable to the purchaser thereof than those offered to such holders. Any stock or securities offered or sold by the Partnership. The General Partner shall have the right, which it may from time to time assign in whole or in part to any of its Affiliates, to purchase Units, IDRs or other Partnership Securities from the Partnership whenever, and on the same terms that, the Partnership issues Units, IDRs or other Partnership Securities to Persons other than the General Partner and its Affiliates, Company after such 90-day period must be re-offered to the extent necessary to maintain the Percentage Interests holders of the General Partner and its Affiliates equal to that which existed immediately prior to the issuance of such Units, IDRs Purchaser Common Stock or other Partnership Securities. Notwithstanding the type of Partnership Securities issued by the Partnership to Persons other than the General Partner and its Affiliates, the right of the General Partner and its Affiliates to purchase Units, IDRs or other Partnership Securities Employee Stock pursuant to the immediately preceding sentence may be exercised through the purchase terms of General Partner Units (based on a value which is proportionate to the price for which the Partnership Securities are issued to such Persons) in an amount necessary to maintain the Percentage Interest of the General Partner and its Affiliates with respect to the General Partner Interest equal to that which existed immediately prior to the issuance of Units, IDRs or other Partnership Securitiesthis Section 9.1.

Limited Preemptive Rights. (a) Except as provided in this Section 4.4 5.8 and in Section 4.35.2 or as otherwise provided in a separate agreement by the Partnership, no Person shall have any preemptive, preferential or other similar right with respect to (a) additional Capital Contributions; (b) the issuance or sale of any class or series of Units, IDRs Partnership Interest or other Partnership Securitiessecurity, whether unissued, held in the treasury or hereafter created; (c) issuance of any obligations, evidences of indebtedness or other securities of the Partnership convertible into or exchangeable for, or carrying or accompanied by any rights to receive, purchase or subscribe to, any such Units, IDRs or other Partnership Securities; (d) issuance of any right of subscription to or right to receive, or any warrant or option for the purchase of, any such Units, IDRs or other Partnership Securities; or (e) issuance or sale of any other securities that may be issued or sold by the Partnership. The General Partner shall have the right, which that it may from time to time assign in whole or in part to any of its Affiliates, to purchase Units, IDRs or other Partnership Securities Interests from the Partnership whenever, and on the same terms that, the Partnership issues Units, IDRs or other Partnership Securities Interests to Persons other than the General Partner and its Affiliates, to the extent necessary to maintain the Percentage Interests of the General Partner and its Affiliates equal to that which existed immediately prior to the issuance of such Units, IDRs or other Partnership SecuritiesInterests. Notwithstanding the type of Partnership Securities issued Any determination by the Partnership to Persons other than the General Partner and whether to exercise its Affiliates, the right of the General Partner and its Affiliates to purchase Units, IDRs or other Partnership Securities pursuant to the immediately preceding sentence shall be a determination made in its individual capacity and not as the general partner of the Partnership, and such determination may be exercised through made in accordance with Section 7.9(c). (b) If a Class D Member or any of its Affiliates holds any Limited Partner Interests while the purchase Partnership issues Limited Partner Interests of the same class as such Limited Partner Interests (other than (i) Series A PIK Preferred Units, Series B PIK Units, Series C PIK Preferred Units or Series E PIK Preferred Units or (ii) Limited Partner Interests purchased by the General Partner Units (based on a value which is proportionate pursuant to Section 5.2 or Section 5.8(a)) to the price for which Class A Member or any of its Affiliates, such Class D Member shall have the right to purchase Limited Partner Interests of such class from the Partnership Securities are issued up to such Persons) in an the amount necessary to maintain the aggregate Percentage Interest of the General Partner such Class D Member and its Affiliates with respect to the General Partner Interest equal to that which existed immediately prior to the issuance of such Limited Partner Interests on the same terms provided to the Class A Member or its Affiliates. The Partnership shall give prompt written notice of the Partnership’s proposal to issue Limited Partner Interests (other than (i) Series A PIK Preferred Units, IDRs Series B PIK Units, Series C PIK Preferred Units or Series E PIK Preferred Units or (ii) Limited Partner Interests purchased by the General Partner pursuant to Section 5.2 or 5.8(a)) to the Class A Member or any of its Affiliates to each Class D Member. Such written notice shall set forth (A) the Limited Partner Interests being offered, (B) the price and terms, if any, upon which the Partnership proposes to issue such Limited Partner Interests and (C) the proposed date of the closing of the issuance of such Limited Partner Interests. Each Class D Member shall have ten (10) Business Days after receipt of such notice to submit a written notice (a “Class D Exercise Notice”) to the Partnership. The Class D Exercise Notice shall set forth the portion of the Limited Partner Interests that such Class D Member elects to purchase. (c) If the Partnership issues Limited Partner Interests (other than (i) Series A PIK Preferred Units, Series B PIK Units, Series C PIK Preferred Units Series C Conversion Units or Series D Conversion Units, (ii) Limited Partner Interests purchased by the General Partner pursuant to Section 5.2 or Section 5.8(a), (iii) Limited Partner Interests issued to finance all or a portion of the construction, acquisition, development or improvement of a Capital Improvement or replacement of a capital asset (such as equipment or facilities), or (iv) Limited Partner Interests issued on a pro rata basis to all holders of Common Units) to the Series C Preferred Unit Partner, Series D Preferred Unit Partner or any of their Affiliates, the Series E Preferred Unit Partner shall have the right to purchase such Limited Partner Interests from the Partnership Securitiesup to the amount necessary to maintain the Percentage Interest of the Series E Preferred Unit Partner equal to that which existed immediately prior to the issuance of such Limited Partner Interests on the same terms provided to the Series C Preferred Unit Partner, Series D Preferred Unit Partner or any of their Affiliates. The Partnership shall give prompt written notice of the Partnership’s proposal to issue Limited Partner Interests (other than (i) Series A PIK Preferred Units, Series B PIK Units, Series C PIK Preferred Units, Series C Conversion Units or Series D Conversion Units, (ii) Limited Partner Interests purchased by the General Partner pursuant to Section 5.2 or Section 5.8(a), or (iii) Limited Partner Interests issued to finance all or a portion of the construction, acquisition, development or improvement of a Capital Improvement or replacement of a capital asset (such as equipment or facilities) or (iv) Limited Partner Interests issued on a pro rata basis to all holders of Common Units) to the Series C Preferred Unit Partner, Series D Preferred Unit Partner or any of their Affiliates, to the Series E Preferred Unit Partner. Such written notice shall set forth (A) the Limited Partner Interests being offered, (B) the price and terms, if any, upon which the Partnership proposes to issue such Limited Partner Interests and (C) the proposed date of the closing of the issuance of such Limited Partner Interests. The Series E Preferred Unit Partner shall have ten (10) Business Days after receipt of such notice to submit a written notice (a “Series E Exercise Notice”) to the Partnership. The Series E Exercise Notice shall set forth the portion of the Limited Partner Interests that such Series E Preferred Unit Partner elects to purchase.

Limited Preemptive Rights. Except The Company, Wellspring, CIP and Ontario recognize and confirm that Charter Section 5 provides certain limited preemptive rights (the "Preemptive Rights") to stockholders of the Company in the event that subsequent to the date hereof the Company or any of its Subsidiaries shall (i) propose to issue or sell to any Identified Investor Affiliated Entity (as provided defined in this Charter Section 4.4 5), and Section 4.3, no Person any Identified Investor Affiliated Entity shall have indicated to the Company its willingness to purchase from the Company, any preemptive, preferential additional shares of Common Stock or any other similar right with respect class of capital stock or any rights to (a) additional Capital Contributions; (b) issuance subscribe for or sale purchase pursuant to any option or otherwise any shares of any class of capital stock or series of Units, IDRs or other Partnership Securities, whether unissued, held in the treasury or hereafter created; (c) issuance of any obligations, evidences of indebtedness or other securities of the Partnership convertible into or exchangeable forfor shares of any class of capital stock (collectively, the "Additional Securities") or carrying (ii) enter into any contracts, commitments, agreements, understandings or accompanied by arrangements of any kind relating to the issuance or sale to any Identified Investor Affiliated Entity of any Additional Securities. The Company, Wellspring, CIP and Ontario hereby agree for the benefit of each of Wellspring, CIP and Ontario as follow: (a) Each of Wellspring, CIP and Ontario (other than the one of them (the "Triggering Holder") whose (or whose Affiliate's) proposed purchase has given rise to the Preemptive Rights) shall be entitled to the rights granted under Charter Section 5 to receiveOther Stockholders (as defined in Charter Section 5) regardless of any amendment that may be made to Charter Section 5 after the date hereof, purchase or subscribe toincluding, without limitation, any amendment to the Company's Amended and Restated Certificate of Incorporation that may eliminate said section in its entirety or limit the rights of Other Stockholders thereunder. (b) Notwithstanding the provisions of clause (i) of Subsection 5.5 of Charter Section 5, each of Wellspring, CIP and Ontario (other than the one of them who is the Triggering Holder) shall have the rights granted to Other Stockholders pursuant to the provisions of Subsections 5.1 through 5.4 even if the Company has obtained an opinion from a nationally recognized investment banking firm to the effect that the consideration being paid by the Wellspring Affiliates to the Company in connection with such Unitsissuance or sale represents not less than the fair market value of the securities being offered. In addition, IDRs clause (iii) of Subsection 5.5 of Charter Section 5 to the contrary notwithstanding, each of CIP and Ontario shall have rights granted to Other Stockholders pursuant to the provisions of Subsection 5.1 through 5.4 in connection with the exercise by a Wellspring Affiliate of the stock option referred to in said clause (iii) of Subsection 5.5 of Charter Section 5. (c) Notwithstanding the provisions of Subsection 5.3 of Charter Section 5, if Wellspring, CIP and/or Ontario, in their capacity as Other Stockholders, have delivered Notices of Acceptance (as defined in Charter Section 5) indicating that they are exercising the right to acquire their entire Proportionate Percentage of the Offered Securities (Wellspring, CIP and/or Ontario, as the case may be, in the capacity of a stockholder exercising its right to acquire its entire Proportionate Percentage of the Offered Securities, being an "Accepting Stockholder"), and the Company proposes to sell any of the Offered Securities (as defined in Charter Section 5) not covered by Notices of Acceptance (such securities being the "Identified Remaining Securities") to the Triggering Holder, then, the Company shall also offer to sell to each Accepting Stockholder a proportionate number of the Identified Remaining Securities that it proposes to sell to the Triggering Holder so that each Accepting Stockholder will be entitled to hold the same proportional interest in the outstanding shares of capital stock of the Company relative to the Triggering Holder as such Accepting Stockholder held prior to such issuance or other Partnership Securities; sale. (d) issuance The provisions of any right this Section 5 may be amended by a written instrument setting forth such amendment and executed by each of subscription to or right to receiveWellspring, or any warrant or option for CIP (if it is then a stockholder of the purchase of, any such Units, IDRs or other Partnership Securities; or Company) and Ontario (if it is then a stockholder of the Company). (e) issuance or sale Each of any other securities that the Parties shall in good faith assist in the carrying out of all the terms of this Section 5 and shall take all actions as may be issued necessary or sold by appropriate to carry out the Partnership. The General Partner shall have the right, which it may from time to time assign in whole or in part to any of its Affiliates, to purchase Units, IDRs or other Partnership Securities from the Partnership whenever, and on the same terms that, the Partnership issues Units, IDRs or other Partnership Securities to Persons other than the General Partner and its Affiliates, to the extent necessary to maintain the Percentage Interests intent of the General Partner and its Affiliates equal to that which existed immediately prior to the issuance of such Units, IDRs or other Partnership Securities. Notwithstanding the type of Partnership Securities issued by the Partnership to Persons other than the General Partner and its Affiliates, the right of the General Partner and its Affiliates to purchase Units, IDRs or other Partnership Securities pursuant to the immediately preceding sentence may be exercised through the purchase of General Partner Units (based on a value which is proportionate to the price for which the Partnership Securities are issued to such Persons) Parties as set forth in an amount necessary to maintain the Percentage Interest of the General Partner and its Affiliates with respect to the General Partner Interest equal to that which existed immediately prior to the issuance of Units, IDRs or other Partnership Securitiesthis Section 5.

Limited Preemptive Rights. Except as provided Prior to an IPO, the Company shall not issue any Common Stock, Common Stock Equivalents or other Company equity securities or convertible equity except in compliance with the provisions of this Section 4.4 4. This Section 4 shall not be applicable to (i) the issuance of Company equity securities to a seller of Portfolio Assets in consideration for the sale of such Portfolio Assets, (ii) the issuance of Company equity securities in accordance with Sections 3 and Section 4.35 above and (iii) the issuance of Common Stock in connection with the exercise of Common Stock Equivalents (including, no Person without limitation, the Warrants); provided, however, that in the case of an issuance of the type referred to in clause (i) hereof, Constellation shall have any preemptivepreemptive rights to purchase the portion of the equity in such issuance necessary to prevent its Ownership Percentage (as defined below) from falling below 20% as a result of such issuance, preferential or other similar right with respect to which rights shall be exercisable in the same manner as the limited preemptive rights of all the Stockholders set forth in Sections 4(a) through 4(f) hereof. (a) In the event that, prior to an IPO, the Company desires to issue additional Capital ContributionsCommon Stock, Common Stock Equivalents or any units containing Common Stock or Common Stock Equivalents, or any other equity securities or convertible securities, the Company shall (i) notify (a "Section 4 Offer Notice") each of Mitsubishi, TEPCO International, GSCP and Constellation (the "Section 4 Stockholders") describing the type of securities (i.e., Common Stock, Common Stock Equivalents or any units containing Common Stock or Common Stock Equivalents, or any other equity securities or convertible securities) offered for issuance (the "Section 4 Securities"), the purchase price therefor and a summary of the other material terms of the proposed issuance (the "Proposed Price and Terms"), and (ii) offer (the "Section 4 Offer") each of the Section 4 Stockholders the option to acquire, at the Proposed Price and Terms, up to a proportionate amount of shares of the Section 4 Securities (as applicable, the "Proportionate Securities"), such that: (A) in the case of a sale of Common Stock, Common Stock Equivalents or any units containing Common Stock or Common Stock Equivalents, the percentage of the outstanding Common Stock ownership interest of each of the Section 4 Stockholders immediately prior to issuance (the "Ownership Percentage") shall not be diminished as a result of issuance of the Section 4 Securities. The Ownership Percentage of each Section 4 Stockholder as of the date hereof is set forth on Annex A attached hereto. Each Section 4 Stockholder's right to maintain its Ownership Percentage is referred to hereinafter as the "Ownership Maintenance Right"; and (B) in the case of a sale of equity securities or convertible securities other than Common Stock, Common Stock Equivalents or any units containing Common Stock or Common Stock Equivalents ("Other Equity"), the percentage of such Other Equity held by each of the Section 4 Stockholders shall, for purposes of this Section 4, be deemed to equal such Section 4 Stockholder's Ownership Percentage. Each Section 4 Stockholder's right to maintain a percentage of Other Equity equal to its Ownership Percentage is referred to hereinafter as the "Other Equity Maintenance Right." (b) issuance or sale of any class or series of Units, IDRs or other Partnership Securities, whether unissued, held in the treasury or hereafter created; (c) issuance of any obligations, evidences of indebtedness or other securities of the Partnership convertible into or exchangeable for, or carrying or accompanied by any rights to receive, purchase or subscribe to, any such Units, IDRs or other Partnership Securities; (d) issuance of any right of subscription to or right to receive, or any warrant or option The Section 4 Offer shall remain open and irrevocable for the purchase ofperiods set forth below (and, any to the extent the Section 4 Offer is accepted during such Unitsperiods, IDRs or other Partnership Securities; or (e) issuance or sale of any other securities that may such offer and acceptance shall be issued or sold by binding on such Section 4 Stockholder and the PartnershipCompany). The General Partner Each Section 4 Stockholder shall have the right, which it may from time for a period of 30 days after delivery of the Section 4 Offer Notice (the "Section 4 Acceptance Period"), to time assign in whole exercise its right to purchase all or in any part of its Proportionate Securities at the Proposed Price and Terms. Such exercise shall be made by a Section 4 Stockholder by delivering a written notice to the Company within the Section 4 Acceptance Period specifying the maximum portion of the Section 4 Securities such Section 4 Stockholder will purchase. (c) In the event that any of its Affiliates, the Section 4 Stockholders fail to exercise their respective rights to purchase Unitsall the Section 4 Securities within the Section 4 Acceptance Period, IDRs or other Partnership Securities the Company shall have 120 days from the Partnership wheneverexpiration of the Section 4 Acceptance Period to enter into an agreement (pursuant to which the sale of such securities shall be closed, if at all, within 45 days from the date of such agreement, or such longer period as may be necessary to obtain any required regulatory approval, but in no case to exceed 6 months) to sell to a third party purchaser (the "Section 4 Purchaser") at the Proposed Price and Terms (or at a price and on terms not more favorable to the same terms that, the Partnership issues Units, IDRs or other Partnership Securities to Persons other Section 4 Purchaser than the General Partner Proposed Price and its Affiliates, Terms) any Section 4 Securities not elected to the extent necessary to maintain the Percentage Interests be purchased by any of the General Partner and its Affiliates equal Section 4 Stockholders (the "Excess Section 4 Securities"). The foregoing periods are referred to that which existed immediately hereinafter in the aggregate as the "Section 4 Issuance Period." The Company shall provide written notice (the "Notice of Section 4 Sale") to all of the Section 4 Stockholders at least 10 days prior to the issuance closing of such Unitsthe sale of the Excess Section 4 Securities; provided, IDRs or other Partnership Securities. Notwithstanding however, in the type case of Partnership Securities issued by a Sale in which the Partnership Company is to Persons other than the General Partner and its Affiliatesreceive non-cash consideration, the right Company shall provide the Notice of the General Partner and its Affiliates to purchase Units, IDRs or other Partnership Securities pursuant to the immediately preceding sentence may be exercised through the purchase of General Partner Units (based on a value which is proportionate to the price for which the Partnership Securities are issued to such Persons) in an amount necessary to maintain the Percentage Interest of the General Partner and its Affiliates with respect to the General Partner Interest equal to that which existed immediately Section 4 Sale at least 45 days prior to the issuance closing, including information regarding the form of Unitsconsideration payable by the Section 4 Purchaser. (d) In the event that the consideration payable to the Company by a Section 4 Purchaser for Excess Section 4 Securities is in a form other than cash (excluding marketable securities listed on a national securities exchange or the Nasdaq National Market, IDRs the value of which shall be determined by calculation of such securities' average price over the 10 trading days prior to delivery of the Notice of Section 4 Sale), any Section 4 Stockholder shall have the right to require the Company to commission, at the Company's expense, an appraisal of the value of the non-cash consideration acquired by the Company from the Section 4 Purchaser (the "Appraisal"), by delivery of written notice of the same within 10 days after the receipt of a Notice of Section 4 Sale. The Company shall use its commercially reasonable efforts to complete the Appraisal prior to the expiration of the Section 4 Issuance Period; provided, however, that if the Appraisal is not completed during the original term of the Section 4 Issuance Period, such period shall be extended to the date which is 10 days after such Appraisal is completed. If the Appraisal (or calculation of the value of marketable securities set forth above, if applicable) indicates that the value of the non-cash consideration payable by the Section 4 Purchaser is less than the aggregate value of the per share price, as set forth in the Proposed Price and Terms, for all of the Excess Section 4 Securities, the Company shall not sell the Excess Section 4 Securities to such Section 4 Purchaser unless such Section 4 Purchaser pays the difference to the Company in the form of cash. (e) In the event that the Company has not closed the transactions for the sale of all Excess Section 4 Securities, if any, by the termination of the Section 4 Issuance Period, the Company shall not thereafter issue or sell the Excess Section 4 Securities without first offering such securities to the Section 4 Stockholders in compliance with this Section 4. (f) All Sales of Section 4 Securities to the Section 4 Stockholders subject to any Section 4 Offer Notice shall be consummated contemporaneously at the offices of the Company on the later of (i) the closing of the Sale of the Excess Section 4 Securities which are Sold to a Section 4 Purchaser or (ii) the fifth Business Day following the expiration or termination of all waiting periods under HSR applicable to such issuance, or at such other time and/or place as the Company and the Section 4 Stockholders may agree. The delivery of certificates or other Partnership instruments evidencing such Section 4 Securities shall be made by the Company on such date against payment of the purchase price for such Section 4 Securities.

Limited Preemptive Rights. Except (a) If the Company authorizes the issuance and sale of any Shares or Share Equivalents (other than as a dividend on outstanding Shares and except as provided below) (a "Preemptive Event"), the Company shall first offer to sell to each Holder of Restricted Securities a portion of such Shares equal to the percentage determined by dividing (1) the number of Shares held by such Holder immediately prior to the proposed issuance of such securities, on a Fully-Diluted Basis, by (2) the aggregate number of Shares outstanding at such time, on a Fully-Diluted Basis; provided that if CHS (or any of its partners, employees, Affiliates, transferees or designees) purchases other securities (including, without limitation, subordinated indebtedness of the Company or any of its Subsidiaries) in connection with such issuance or sale, then each such Holder, if any, exercising preemptive rights pursuant to this Section 4.3, shall, as a condition to such exercise, also be required to purchase the same proportionate strip of securities that CHS (or such partners, employees, Affiliates, transferees or designees) purchases. The purchase price for all stock and securities offered to such Holders of Shares shall be payable by cashier's check or wire transfer of immediately available funds unless other payment terms are designated in writing. Notwithstanding the foregoing, the preemptive rights set forth in this Section 4.4 and Section 4.34.3 shall not apply to the issuance of Shares, no Share Equivalents or other securities: (A) to any Person shall have in connection with (or to facilitate) the acquisition by the Company or any preemptiveof its Subsidiaries of another Person's business, preferential stock or assets (whether by acquisition of stock or assets, or by merger, exchange, consolidation or other similar right with respect transaction) or the formation of a joint venture, (B) pursuant to a Public Offering, (aC) additional Capital Contributions; to officers, employees, directors, consultants, transaction advisors or agents of the Company or any of its Subsidiaries (b) issuance whether employed or sale of any class engaged now or series of Units, IDRs or other Partnership Securities, whether unissued, held in the treasury future), or (D) to the Company's or any Subsidiary's lenders or any other Person in connection with the incurrence, renewal or maintenance of indebtedness, or pursuant to any loan document to satisfy conversion, option or warrant rights heretofore or hereafter created; (c) issuance issued by the Company or any of its Subsidiaries, or anti-dilution rights applicable to any obligations, evidences of indebtedness or other securities of the Partnership convertible into foregoing. Notwithstanding anything in this Section 4.3 to the contrary, if preemptive rights are exercised pursuant to this Section 4.3 and pursuant to the preemptive rights granted under the Executive Securities Agreements for an aggregate number of Shares and Share Equivalents which is greater than 100% of the Shares or exchangeable for, or carrying or accompanied by any rights Share Equivalents to receive, purchase or subscribe to, any such Units, IDRs or other Partnership Securities; (d) issuance of any right of subscription to or right to receive, or any warrant or option for the purchase of, any such Units, IDRs or other Partnership Securities; or (e) issuance or sale of any other securities that may be issued or and sold by the Partnership. The General Partner Company, then the number of Shares that each such Holder shall have the right, which it may from time to time assign in whole or in part to any of its Affiliates, be entitled to purchase Unitspursuant to this Section 4.3 shall be reduced, IDRs or other Partnership Securities from the Partnership whenever, and on the same terms that, the Partnership issues Units, IDRs or other Partnership Securities to Persons other than the General Partner and its Affiliatesa pro rata basis among all such Holders exercising preemptive rights under this Section 4.3, to the extent necessary to maintain such that the Percentage Interests number of the General Partner Shares and its Affiliates equal to that which existed immediately prior to the issuance of such Units, IDRs or other Partnership Securities. Notwithstanding the type of Partnership Securities issued by the Partnership to Persons other than the General Partner and its Affiliates, the right of the General Partner and its Affiliates to purchase Units, IDRs or other Partnership Securities Share Equivalents purchased pursuant to the immediately preceding sentence preemptive rights exercised under this Agreement and under the Executive Securities Agreements equal the number of Shares and Share Equivalents to be issued and sold by the Company. (b) Each such Holder shall exercise his, her or its preemptive rights hereunder (in writing) within ten (10) days following the receipt of written notice from the Company describing in reasonable detail the purchase price and payment terms for the securities to be purchased and such Holder's percentage allotment. Each Holder exercising preemptive rights hereunder shall execute all documentation, and take all actions, as may be exercised through reasonably requested by the Company in connection therewith. (c) Upon the expiration of the offering period described above, the Company shall be entitled to sell such Shares or Share Equivalents that Holders have not elected to purchase of General Partner Units during the one hundred eighty (based 180) day period following such expiration, on a value which is proportionate terms and conditions no more favorable to the price for which purchasers thereof than those offered to each Holder. Any Shares not offered or sold by the Partnership Securities are issued Company following such one hundred eighty (180) day period shall be reoffered to such Personseach Holder pursuant to the terms of this Section 4.3. (d) in an amount necessary to maintain the Percentage Interest The rights of each Holder under Section 4.1(b) and this Section 4.3 shall terminate upon a Sale of the General Partner and its Affiliates with respect to Company or upon the General Partner Interest equal to that which existed immediately prior to the issuance consummation of Units, IDRs or other Partnership Securitiesa Public Offering.

Limited Preemptive Rights. Except as provided in this Section 4.4 and Section 4.3, no Person shall have any preemptive, preferential or other similar right with respect to (a) additional Capital Contributions; (b) issuance or sale of any class or series of Units, IDRs or other Partnership Securities, whether unissued, held in the treasury or hereafter created; (c) issuance of any obligations, evidences of indebtedness or other securities of the Partnership convertible into or exchangeable for, or carrying or accompanied by any rights to receive, purchase or subscribe to, any such Units, IDRs or other Partnership Securities; (d) issuance of any right of subscription to or right to receive, or any warrant or option for the purchase of, any such Units, IDRs or other Partnership Securities; or (e) issuance or sale of any other securities that may be issued or sold by the Partnership. The General Partner shall have the right, which it may from time to time assign in whole or in part to any of its Affiliates, to purchase Units, IDRs or other Partnership Securities from the Partnership whenever, and on the same terms that, the Partnership issues Units, IDRs or other Partnership Securities to Persons other than the General US-DOCS\98994761.5 Partner and its Affiliates, to the extent necessary to maintain the Percentage Interests of the General Partner and its Affiliates equal to that which existed immediately prior to the issuance of such Units, IDRs or other Partnership Securities. Notwithstanding the type of Partnership Securities issued by the Partnership to Persons other than the General Partner and its Affiliates, the right of the General Partner and its Affiliates to purchase Units, IDRs or other Partnership Securities pursuant to the immediately preceding sentence may be exercised through the purchase of General Partner Units (based on a value which is proportionate to the price for which the Partnership Securities are issued to such Persons) in an amount necessary to maintain the Percentage Interest of the General Partner and its Affiliates with respect to the General Partner Interest equal to that which existed immediately prior to the issuance of Units, IDRs or other Partnership Securities.

Limited Preemptive Rights. (a) Except as provided in this Section 4.4 5.7 and in Section 4.35.2 or as otherwise provided in a separate agreement by the Partnership, no Person shall have any preemptive, preferential or other similar right with respect to (a) additional Capital Contributions; (b) the issuance or sale of any class or series of Units, IDRs Partnership Interest or other Partnership Securitiessecurity, whether unissued, held in the treasury or hereafter created; (c) issuance of any obligations, evidences of indebtedness or other securities of the Partnership convertible into or exchangeable for, or carrying or accompanied by any rights to receive, purchase or subscribe to, any such Units, IDRs or other Partnership Securities; (d) issuance of any right of subscription to or right to receive, or any warrant or option for the purchase of, any such Units, IDRs or other Partnership Securities; or (e) issuance or sale of any other securities that may be issued or sold by the Partnership. The General Partner shall have the right, which that it may from time to time assign in whole or in part to any of its Affiliates, to purchase Units, IDRs or other Partnership Securities Interests from the Partnership whenever, and on the same terms that, the Partnership issues Units, IDRs or other Partnership Securities Interests to Persons other than the General Partner and its Affiliates, to the extent necessary to maintain the Percentage Interests of the General Partner and its Affiliates equal to that which existed immediately prior to the issuance of such Units, IDRs or other Partnership SecuritiesInterests. Notwithstanding the type of Partnership Securities issued Any determination by the Partnership to Persons other than the General Partner and whether to exercise its Affiliates, the right of the General Partner and its Affiliates to purchase Units, IDRs or other Partnership Securities pursuant to the immediately preceding sentence shall be a determination made in its individual capacity and not as the general partner of the Partnership, and such determination may be exercised through made in accordance with Section 7.9(c). (b) If a Class D Member or any of its Affiliates holds any Limited Partner Interests while the purchase Partnership issues Limited Partner Interests of the same class as such Limited Partner Interests (other than (i) Series A PIK Preferred Units, Series C PIK Preferred Units or Series E PIK Preferred Units or (ii) Limited Partner Interests purchased by the General Partner Units (based on a value which is proportionate pursuant to Section 5.2 or Section 5.7(a)) to the price for which Class A Member or any of its Affiliates, such Class D Member shall have the right to purchase Limited Partner Interests of such class from the Partnership Securities are issued up to such Persons) in an the amount necessary to maintain the aggregate Percentage Interest of the General Partner such Class D Member and its Affiliates with respect to the General Partner Interest equal to that which existed immediately prior to the issuance of such Limited Partner Interests on the same terms provided to the Class A Member or its Affiliates. The Partnership shall give prompt written notice of the Partnership’s proposal to issue Limited Partner Interests (other than (i) Series A PIK Preferred Units, IDRs Series C PIK Preferred Units or Series E PIK Preferred Units or (ii) Limited Partner Interests purchased by the General Partner pursuant to Section 5.2 or 5.7(a)) to the Class A Member or any of its Affiliates to each Class D Member. Such written notice shall set forth (A) the Limited Partner Interests being offered, (B) the price and terms, if any, upon which the Partnership proposes to issue such Limited Partner Interests and (C) the proposed date of the closing of the issuance of such Limited Partner Interests. Each Class D Member shall have ten (10) Business Days after receipt of such notice to submit a written notice (a “Class D Exercise Notice”) to the Partnership. The Class D Exercise Notice shall set forth the portion of the Limited Partner Interests that such Class D Member elects to purchase. (c) If the Partnership issues Limited Partner Interests (other than (i) Series A PIK Preferred Units, Series C PIK Preferred Units or Series C Conversion Units, (ii) Limited Partner Interests purchased by the General Partner pursuant to Section 5.2 or Section 5.7(a), (iii) Limited Partner Interests issued to finance all or a portion of the construction, acquisition, development or improvement of a Capital Improvement or replacement of a capital asset (such as equipment or facilities), or (iv) Limited Partner Interests issued on a pro rata basis to all holders of Common Units) to the Series C Preferred Unit Partner or any of their Affiliates, the Series E Preferred Unit Partner shall have the right to purchase such Limited Partner Interests from the Partnership Securitiesup to the amount necessary to maintain the Percentage Interest of the Series E Preferred Unit Partner equal to that which existed immediately prior to the issuance of such Limited Partner Interests on the same terms provided to the Series C Preferred Unit Partner or any of their Affiliates. The Partnership shall give prompt written notice of the Partnership’s proposal to issue Limited Partner Interests (other than (i) Series A PIK Preferred Units, Series C PIK Preferred Units or Series C Conversion Units, (ii) Limited Partner Interests purchased by the General Partner pursuant to Section 5.2 or Section 5.7(a), or (iii) Limited Partner Interests issued to finance all or a portion of the construction, acquisition, development or improvement of a Capital Improvement or replacement of a capital asset (such as equipment or facilities) or (iv) Limited Partner Interests issued on a pro rata basis to all holders of Common Units) to the Series C Preferred Unit Partner or any of their Affiliates, to the Series E Preferred Unit Partner. Such written notice shall set forth (A) the Limited Partner Interests being offered, (B) the price and terms, if any, upon which the Partnership proposes to issue such Limited Partner Interests and (C) the proposed date of the closing of the issuance of such Limited Partner Interests. The Series E Preferred Unit Partner shall have ten (10) Business Days after receipt of such notice to submit a written notice (a “Series E Exercise Notice”) to the Partnership. The Series E Exercise Notice shall set forth the portion of the Limited Partner Interests that such Series E Preferred Unit Partner elects to purchase.

Limited Preemptive Rights. (a) Except as provided in this Section 4.4 5.8 and in Section 4.35.2 or as otherwise provided in a separate agreement by the Partnership, no Person shall have any preemptive, preferential or other similar right with respect to (a) additional Capital Contributions; (b) the issuance or sale of any class or series of Units, IDRs Partnership Interest or other Partnership Securitiessecurity, whether unissued, held in the treasury or hereafter created; (c) issuance of any obligations, evidences of indebtedness or other securities of the Partnership convertible into or exchangeable for, or carrying or accompanied by any rights to receive, purchase or subscribe to, any such Units, IDRs or other Partnership Securities; (d) issuance of any right of subscription to or right to receive, or any warrant or option for the purchase of, any such Units, IDRs or other Partnership Securities; or (e) issuance or sale of any other securities that may be issued or sold by the Partnership. The General Partner shall have the right, which that it may from time to time assign in whole or in part to any of its Affiliates, to purchase Units, IDRs or other Partnership Securities Interests from the Partnership whenever, and on the same terms that, the Partnership issues Units, IDRs or other Partnership Securities Interests to Persons other than the General Partner and its Affiliates, to the extent necessary to maintain the Percentage Interests of the General Partner and its Affiliates equal to that which existed immediately prior to the issuance of such Units, IDRs or other Partnership SecuritiesInterests. Notwithstanding the type of Partnership Securities issued Any determination by the Partnership to Persons other than the General Partner and whether to exercise its Affiliates, the right of the General Partner and its Affiliates to purchase Units, IDRs or other Partnership Securities pursuant to the immediately preceding sentence shall be a determination made in its individual capacity and not as the general partner of the Partnership, and such determination may be exercised through made in accordance with Section 7.9(c). (b) If a Class D Member or any of its Affiliates holds any Limited Partner Interests while the purchase Partnership issues Limited Partner Interests of the same class as such Limited Partner Interests (other than (i) Series A PIK Preferred Units, Series B PIK Units, Series C PIK Preferred Units or Series E PIK Preferred Units or (ii) Limited Partner Interests purchased by the General Partner Units (based on a value which is proportionate pursuant to Section 5.2 or Section 5.8(a)) to the price for which Class A Member or any of its Affiliates, such Class D Member shall have the right to purchase Limited Partner Interests of such class from the Partnership Securities are issued up to such Persons) in an the amount necessary to maintain the aggregate Percentage Interest of the General Partner such Class D Member and its Affiliates with respect to the General Partner Interest equal to that which existed immediately prior to the issuance of such Limited Partner Interests on the same terms provided to the Class A Member or its Affiliates. The Partnership shall give prompt written notice of the Partnership’s proposal to issue Limited Partner Interests (other than (i) Series A PIK Preferred Units, IDRs Series B PIK Units, Series C PIK Preferred Units or Series E PIK Preferred Units or (ii) Limited Partner Interests purchased by the General Partner pursuant to Section 5.2 or 5.8(a)) to the Class A Member or any of its Affiliates to each Class D Member. Such written notice shall set forth (A) the Limited Partner Interests being offered, (B) the price and terms, if any, upon which the Partnership proposes to issue such Limited Partner Interests and (C) the proposed date of the closing of the issuance of such Limited Partner Interests. Each Class D Member shall have ten (10) Business Days after receipt of such notice to submit a written notice (a “Class D Exercise Notice”) to the Partnership. The Class D Exercise Notice shall set forth the portion of the Limited Partner Interests that such Class D Member elects to purchase. (c) If the Partnership issues Limited Partner Interests (other than (i) Series A PIK Preferred Units, Series B PIK Units, Series C PIK Preferred Units Series C Conversion Units or Series D Conversion Units, (ii) Limited Partner Interests purchased by the General Partner pursuant to Section 5.2 or Section 5.8(a), (iii) Limited Partner Interests issued to finance all or a portion of the construction, acquisition, development or improvement of a Capital Improvement or replacement of a capital asset (such as equipment or facilities), or (iv) Limited Partner Interests issued on a pro rata basis to all holders of Common Units) to the Series C Preferred Unit Partner, Series D Preferred Unit Partner or any of their Affiliates, the Series E Preferred Unit Partner shall have the right to purchase such Limited Partner Interests from the Partnership Securitiesup to the amount necessary to maintain the Percentage Interest of the Series E Preferred Unit Partner equal to that which existed immediately prior to the issuance of such Limited Partner Interests on the same terms provided to the Series C Preferred Unit Partner, Series D Preferred Unit Partner or any of their Affiliates. The Partnership shall give prompt written notice of the Partnership’s proposal to issue Limited Partner Interests (other than (i) Series A PIK Preferred Units, Series B PIK Units, Series C PIK Preferred Units, Series C Conversion Units or Series D Conversion Units, (ii) Limited Partner Interests purchased by the General Partner pursuant to Section 5.2 or Section 5.8(a), or (iii) Limited Partner Interests issued to finance all or a portion of the construction, acquisition, development or improvement of a Capital Improvement or replacement of a capital asset (such as equipment or facilities) or (iv) Limited Partner Interests issued on a pro rata basis to all holders of Common Units) to the Series C Preferred Unit Partner, Series D Preferred Unit Partner or any of their Affiliates, to the Series 62 E Preferred Unit Partner. Such written notice shall set forth (A) the Limited Partner Interests being offered, (B) the price and terms, if any, upon which the Partnership proposes to issue such Limited Partner Interests and (C) the proposed date of the closing of the issuance of such Limited Partner Interests. The Series E Preferred Unit Partner shall have ten (10) Business Days after receipt of such notice to submit a written notice (a “Series E Exercise Notice”) to the Partnership. The Series E Exercise Notice shall set forth the portion of the Limited Partner Interests that such Series E Preferred Unit Partner elects to purchase.