AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF ATLAS PIPELINE HOLDINGS, L.P.
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
TABLE OF CONTENTS
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Atlas Pipeline Holdings, X.X.
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Atlas Pipeline Holdings, X.X.
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AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF ATLAS PIPELINE HOLDINGS, L.P.
dated as of July 26, 2006 is entered into by and among Atlas Pipeline Holdings GP, LLC, a Delaware
limited liability company, as the General 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.
“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.
(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
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.
“Additional Limited Partner” means a Person admitted to the Partnership as a Limited Partner
pursuant to Section 4.5 and who is shown as such on the books and records of the Partnership.
“Adjusted Capital Account” means the Capital Account maintained for each Partner as of the end
of each fiscal year of the Partnership, (a) increased by any amounts that such Partner is obligated
to restore under the standards set by Treasury Regulation Section 1.704-1(b)(2)(ii)(c) (or is
deemed obligated to restore under Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5)) and
(b) decreased by (i) the amount of all losses and deductions that, as of the end of such fiscal
year, are reasonably expected to be allocated to such Partner in subsequent years under Sections
704(e)(2) and 706(d) of the Code and Treasury Regulation Section 1.751-1(b)(2)(ii), and (ii) the
amount of all distributions that, as of the end of such fiscal year, are reasonably expected to be
made to such Partner in subsequent years in accordance with the terms of this Agreement or
otherwise to the extent they exceed offsetting increases to such Partner’s Capital Account that are
reasonably expected to occur during (or prior to) the year in which such distributions are
reasonably expected to be made (other than increases as a result of a minimum gain chargeback
pursuant to Section 6.1(d)(i) or 6.1(d)(ii)). The foregoing definition of Adjusted Capital Account
is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith. The “Adjusted Capital Account” of a Partner in
respect of a General Partner Interest, a Common Unit or any other Partnership Interest shall be the
amount that such Adjusted Capital Account would be if such General Partner Interest, Common Unit or
other Partnership Interest were the only interest in the Partnership held by a Partner from and
after the date on which such General Partner Interest, Common Unit or other Partnership Interest
was first issued.
“Adjusted Property” means any property the Carrying Value of which has been adjusted pursuant
to Section 5.4(d)(i) or 5.4(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.
“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, without
limitation, a Curative Allocation (if appropriate to the context in which the term “Agreed
Allocation” is used).
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“Agreed Value” of any Contributed Property means the fair market value of such property or
other consideration at the time of contribution as determined by the General Partner. The General
Partner shall use such method as it determines to be appropriate to allocate the aggregate Agreed
Value of Contributed Properties contributed to the Partnership in a single or integrated
transaction among each separate property on a basis proportional to the fair market value of each
Contributed Property.
“Agreement” means this Amended and Restated Agreement of Limited Partnership of Atlas Pipeline
Holdings, L.P., 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 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 all cash and cash equivalents of the Partnership on hand on the date of
determination of Available Cash with respect to such Quarter, less
(b) the amount of any cash reserves established by the General Partner to (i) provide
for the proper conduct of the business of the Partnership (including reserves for future
capital expenditures and for anticipated future credit needs of the Partnership Group)
subsequent to such Quarter, (ii) comply with applicable law or any loan agreement, security
agreement, mortgage, debt instrument or other agreement or obligation to which any Group
Member is a party or by which it is bound or its assets are subject, (iii) permit the
general partner of the MLP to make capital contributions to the MLP to maintain its then
current general partner interest in the MLP upon the issuance of additional partnership
securities by the MLP or (iv) provide funds for distributions under Section 6.3 in respect
of any one or more of the next four Quarters; provided, however, that disbursements made by
a Group Member or cash reserves established, increased or reduced after the end of such
Quarter but on or before the date of determination of Available Cash with respect to such
Quarter shall be deemed to have been made, established, increased or reduced, for purposes
of determining Available Cash, within such Quarter if the General Partner so determines.
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 General Partner, its
board of directors or managers, as applicable, if a corporation or limited liability company, or if
a limited partnership, the board of directors or board of managers of the general partner of the
General Partner.
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“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 5.4(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 5.4 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 5.4(d).
“Business Day” means Monday through Friday of each week, except that a legal holiday
recognized as such by the government of the United States of America or the states of New York or
Pennsylvania shall not be regarded as a Business Day.
“Capital Account” means the capital account maintained for a Partner pursuant to Section 5.4.
The “Capital Account” of a Partner in respect of a General Partner Interest, a Common Unit or any
other Partnership Interest shall be the amount that such Capital Account would be if such General
Partner Interest, Common Unit or other Partnership Interest were the only interest in the
Partnership held by a Partner from and after the date on which such General Partner Interest,
Common Unit or other Partnership Interest was first issued.
“Capital Contribution” means any cash, cash equivalents or the Net Agreed Value of Contributed
Property that a Partner contributes to the Partnership pursuant to this Agreement or the
Contribution Agreement.
“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 5.4(d)(i) and 5.4(d)(ii) and to reflect
changes, additions or other adjustments to the Carrying Value for dispositions and acquisitions of
Partnership properties, as deemed appropriate by the General Partner.
“Cause” means a court of competent jurisdiction has entered a final, non-appealable judgment
finding the General Partner liable for actual fraud or willful misconduct in its capacity as a
general partner of the Partnership.
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“Certificate” means a certificate (i) substantially in the form of Exhibit A to this
Agreement, (ii) issued in global form in accordance with the rules and regulations of the
Depositary or (iii) in such other form as may be adopted by the General Partner, issued by the
Partnership evidencing ownership of one or more Common Units, or a certificate, in such form as may
be adopted by the General Partner, issued by the Partnership evidencing ownership of one or more
other Partnership Securities.
“Certificate of Limited Partnership” means the Certificate of Limited Partnership of the
Partnership filed with the Secretary of State of the State of Delaware as referenced in Section
2.1, as such Certificate of Limited Partnership may be amended, supplemented or restated from time
to time.
“Citizenship Certification” means a properly completed certificate in such form as may be
specified by the General Partner by which a Limited Partner certifies that he (and if he is a
nominee holding for the account of another Person, that to the best of his knowledge such other
Person) is an Eligible Citizen.
“Claim” has the meaning assigned to such term in Section 7.12(d).
“Closing Date” means the first date on which Common Units are sold by the Partnership to the
Underwriters pursuant to the provisions of the Underwriting Agreement.
“Closing Price” has the meaning assigned to such term in Section 15.1(a).
“Code” means the Internal Revenue Code of 1986, as amended and in effect from time to time.
Any reference herein to a specific section or sections of the Code shall be deemed to include a
reference to any corresponding provision of successor law.
“Combined Interest” has the meaning assigned to such term in Section 11.3(a).
“Commission” means the United States Securities and Exchange Commission.
“Common Unit” means a Partnership Interest representing a fractional part of the Partnership
Interests of all Limited Partners, and having the rights and obligations specified with respect to
Common Units in this Agreement.
“Conflicts Committee” means a committee of the Board of Directors of the General Partner
composed entirely of two or more directors who are not (a) security holders, officers or employees
of the General Partner, (b) officers, directors or employees of any Affiliate of the General
Partner, including the general partner of the MLP, or (c) holders of any ownership interest in the
Partnership other than Common Units, or holders of any ownership interest in the MLP Group, other
than common units representing limited partner interests in the MLP, and who also meet the
independence standards required to 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 by the
National Securities Exchange on which the Common Units are listed or admitted for trading.
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“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 5.4(d), such property shall no longer
constitute a Contributed Property, but shall be deemed an Adjusted Property.
“Contribution Agreement” means the Contribution and Conveyance Agreement, dated as of the
Closing Date, by and among Atlas America, Inc., AIC, LLC, Viking Resources LLC, the General Partner
and the Partnership.
“Curative Allocation” means any allocation of an item of income, gain, deduction, loss or
credit pursuant to the provisions of Section 6.1(d)(ix).
“Current Market Price” has the meaning assigned to such term in Section 15.1(a).
“Delaware Act” means the Delaware Revised Uniform Limited Partnership Act, 6 Del C. § 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 General Partner from and after the effective date
of any withdrawal or removal of such former 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 Citizen” means a Person qualified to own interests in real property in jurisdictions
in which any Group Member does business or proposes to do business from time to time, and whose
status as a Limited Partner the General Partner determines does not or would not subject such Group
Member to a significant risk of cancellation or forfeiture of any of its properties or any interest
therein.
“Event of Withdrawal” has the meaning assigned to such term in Section 11.1(a).
“General Partner” means Atlas Pipeline Holdings GP, LLC, a Delaware limited liability company
and its successors and permitted assigns that are admitted to the Partnership as general partner of
the Partnership (except as the context otherwise requires).
“General Partner Interest” means the management and ownership interest, if any, of the General
Partner in the Partnership (in its capacity as a general partner without reference to any Limited
Partner Interest held by it), and includes any and all benefits to which a General Partner is
entitled as provided in this Agreement, together with all obligations of a General Partner to
comply with the terms and provisions of this Agreement.
“Group” means a Person that, with or through any of its Affiliates or Associates, has any
contract, agreement, arrangement, understanding or relationship for the purpose of acquiring,
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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 Securities 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.
“Holder” as used in Section 7.12 has the meaning assigned to such term in Section 7.12(a).
“Indemnified Persons” has the meaning assigned to such term in Section 7.12(c).
“Indemnitee” means (a) the General Partner, (b) any Departing General Partner, (c) any Person
who is or was an Affiliate of the General Partner or any Departing General Partner, (d) any Person
who is or was a member, partner, officer, employee, agent, director, fiduciary or trustee of any
Group Member, the General Partner or any Departing General Partner or any Affiliate of any Group
Member, the General Partner or any Departing General Partner, (e) any Person who is or was serving
at the request of the General Partner or any Departing General Partner or any Affiliate of the
General Partner or any Departing General Partner as an officer, director, employee, member,
partner, agent, fiduciary or trustee of another Person; provided, that a Person shall not be an
Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial
services and (f) any Person the General Partner designates as an “Indemnitee” for purposes of this
Agreement.
“Initial Common Unit” means the Common Units sold in the Initial Offering.
“Initial Limited Partner” means the Persons listed on Schedule 1 hereto, in each case upon
being admitted to the Partnership in accordance with Section 10.1.
“Initial Offering” means the initial offering and sale of Common Units to the public, as
described in the Registration Statement.
“Issue Price” means the price at which a Unit is purchased from the Partnership, after taking
into account any sales commission or underwriting discount charged to the Partnership.
“Limited Partner” means, unless the context otherwise requires, each Initial Limited Partner,
each Limited Partner, each Additional Limited Partner and any Departing General Partner upon the
change of its status from General Partner to Limited Partner pursuant to Section 11.3, in each
case, in such Person’s capacity as 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 Common Units or other Partnership Securities or a
combination thereof or interest therein, and includes any and all benefits to which such Limited
Partner is entitled as provided in this Agreement, together with all obligations of such Limited
Partner to comply with the terms and provisions of this Agreement.
“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
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date on which the applicable time period during which the holders of Outstanding Units have
the right to elect to continue the business of the Partnership has expired without such an election
being made, and (b) in the case of any other event giving rise to the dissolution of the
Partnership, the date on which such event occurs.
“Liquidator” means one or more Persons selected by the General Partner to perform the
functions described in Section 12.3 as liquidating trustee of the Partnership within the meaning of
the Delaware Act.
“Merger Agreement” has the meaning assigned to such term in Section 14.1.
“MLP” means Atlas Pipeline Partners, L.P., a Delaware limited partnership, and any successors
thereto.
“MLP Agreement” means the Second Amended and Restated Agreement of Limited Partnership of
Atlas Pipeline Partners, L.P., as it may be amended, supplemented or restated from time to time.
“National Securities Exchange” means an exchange registered with the Commission under Section
6(a) of the Securities Exchange Act or the Nasdaq National Market or any successor thereto.
“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 property
distributed to a Partner by the Partnership, the Partnership’s Carrying Value of such property (as
adjusted pursuant to Section 5.4(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 5.4(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) 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 5.4(b) and shall not include any items specially allocated
under Section 6.1(d); provided that the determination of the
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items that have been specially allocated under Section 6.1(d) shall be made as if Section
6.1(d) 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 5.4(b) and shall not include any items of income, gain, loss or deduction 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 5.4(b) and shall not include any items of income, gain, loss or deduction specially
allocated under Section 6.1(d).
“Non-citizen Assignee” means a Person whom the General Partner has determined does not
constitute an Eligible Citizen and as to whose Partnership Interest the General Partner has become
the Limited Partner, pursuant to Section 4.8.
“Nonrecourse Built-in Gain” means with respect to any Contributed Properties or Adjusted
Properties that are subject to a mortgage or pledge securing a Nonrecourse Liability, the amount of
any taxable gain that would be allocated to the Partners pursuant to 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,
without limitation, 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 the Omnibus Agreement, dated as of the Closing Date, among the
Partnership, the General Partner and the MLP.
“Opinion of Counsel” means a written opinion of counsel (who may be regular counsel to the
Partnership or the General Partner or any of its Affiliates) in a form acceptable to the General
Partner.
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“Option Closing Date” means the date or dates on which any Common Units are sold by the
Partnership to the Underwriters upon exercise of the Over-Allotment Option.
“Outstanding” means, with respect to Partnership Securities, all Partnership Securities that
are issued by the Partnership and reflected as outstanding on the Partnership’s books and records
as of the date of determination; provided, however, that if at any time any Person or Group (other
than the General Partner or its Affiliates) beneficially owns 20% or more of any Outstanding
Partnership Securities of any class then Outstanding, all Partnership Securities owned by such
Person or Group shall not be voted on any matter and shall not be considered to be Outstanding when
sending notices of a meeting of Limited Partners to vote on any matter (unless otherwise required
by law), calculating required votes, determining the presence of a quorum or for other similar
purposes under this Agreement, except that Common Units so owned shall be considered to be
Outstanding for purposes of Section 11.1(b)(iv) (such Common Units shall not, however, be treated
as a separate class of Partnership Securities for purposes of this Agreement); provided, further,
that the foregoing limitation shall not apply (i) to any Person or Group who acquired 20% or more
of any Outstanding Partnership Securities of any class then Outstanding directly from the General
Partner or its Affiliates, (ii) to any Person or Group who acquired 20% or more of any Outstanding
Partnership Securities of any class then Outstanding directly or indirectly from a Person or Group
described in clause (i) provided that the General Partner shall have notified such Person or Group
in writing that such limitation shall not apply or (iii) to 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 of the General Partner.
“Over-Allotment Option” means the over-allotment option granted to the Underwriters by the
Partnership pursuant to the Underwriting Agreement.
“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, without limitation, any expenditure described in Section 705(a)(2)(B) of the Code)
that, in accordance with the principles of Treasury Regulation Section 1.704-2(i), are attributable
to a Partner Nonrecourse Debt.
“Partners” means the General Partner and the Limited Partners.
“Partnership” means Atlas Pipeline Holdings, L.P., a Delaware limited partnership.
“Partnership Group” means the Partnership and its Subsidiaries treated as a single
consolidated entity.
“Partnership Interest” means an interest in the Partnership, which shall include the General
Partner Interests and Limited Partner Interests.
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“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 without limitation, Common Units.
“Percentage Interest” means, as of any date of determination, (a) as to any Unitholder holding
Units, the product obtained by multiplying (i) 100% less the percentage applicable to clause (b)
below by (ii) the quotient obtained by dividing (A) the number of Units held by such Unitholder by
(B) the total number of all Outstanding Units, and (b) as to the holders of additional Partnership
Securities issued by the Partnership in accordance with Section 5.5, the percentage established as
a part of such issuance.
“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 or Record Holders, as the case may be,
in accordance with their relative Percentage Interests.
“Purchase Date” means the date determined by the General Partner as the date for purchase of
all Outstanding Units of a certain class (other than Units owned by the 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 first fiscal quarter of the Partnership after the Closing Date the portion
of such fiscal quarter 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 General Partner or otherwise in accordance
with this Agreement for determining (a) the identity of the Record Holders entitled to notice of,
or to vote at, any meeting of Limited Partners or entitled to vote by ballot or give approval of
Partnership action in writing without a meeting or entitled to exercise rights in respect of any
lawful action of Limited Partners or (b) the identity of Record Holders entitled to receive any
report or distribution or to participate in any offer.
“Record Holder” means the Person in whose name a Common Unit is registered on the books of the
Transfer Agent as of the opening of business on a particular Business Day, or with respect to other
Partnership Interests, the Person in whose name any such other Partnership
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Interest is registered on the books that the General Partner has caused to be kept as of the
opening of business on such Business Day.
“Redeemable Interests” means any Partnership Interests for which a redemption notice has been
given, and has not been withdrawn, pursuant to Section 4.9.
“Registration Statement” means the Registration Statement on Form S-1 (Registration No.
333-130999) as it has been or as it may be amended or supplemented from time to time, filed by the
Partnership with the Commission under the Securities Act to register the offering and sale of the
Common Units in the Initial Offering.
“Remaining Net Positive Adjustments” means as of the end of any taxable period, with respect
to the Unitholders holding Common Units, the excess of (a) the Net Positive Adjustments of the
Unitholders holding Common Units, as of the end of such period over (b) the sum of those Partners’
Share of Additional Book Basis Derivative Items for each prior taxable period.
“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 Sections 6.1(d)(i), 6.1(d)(ii), 6.1(d)(iv), 6.1(d)(vii) or
6.1(d)(viii).
“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 Sections 6.2(b)(i)(A) or 6.2(b)(ii)(A), respectively, to eliminate
Book-Tax Disparities.
“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, with respect to the Unitholders
holding Common Units, the amount that bears the same ratio to such Additional Book Basis Derivative
Items as the Unitholders’ Remaining Net Positive Adjustments as of the end of such period bears to
the Aggregate Remaining Net Positive Adjustments as of that time.
“Special Approval” means approval by a majority of the members of the Conflicts Committee
acting in good faith.
“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) or limited
liability company in which such Person or a Subsidiary of such Person is, at the date of
determination, a
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general or limited partner of such partnership or member of such limited liability company,
but only if more than 50% of the partnership interests of such partnership or membership interests
of such limited liability company (considering all of the partnership interests or membership
interests 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, a partnership or limited liability company) 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).
“Trading Day” has the meaning assigned to such term in Section 15.1(a).
“transfer” has the meaning assigned to such term in Section 4.4(a).
“Transfer Agent” means such bank, trust company or other Person (including the General Partner
or one of its Affiliates) as shall be appointed from time to time by the Partnership to act as
registrar and transfer agent for the Common Units; provided that if no Transfer Agent is
specifically designated for any other Partnership Securities, the General Partner shall act in such
capacity.
“Underwriter” means each Person named as an underwriter in Schedule I to the Underwriting
Agreement who purchases Common Units pursuant thereto.
“Underwriting Agreement” means the Underwriting Agreement dated July 20, 2006 among the
Underwriters, the Partnership and certain other parties, providing for the purchase of Common Units
by such Underwriters.
“Unit” means a Partnership Interest that is designated as a “Unit” and shall include Common
Units.
“Unit Majority” means at least a majority of the Outstanding Common Units voting together as a
single class.
“Unitholders” means the holders of Units.
“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 5.4(d)) over (b) the Carrying Value of such property as of such date
(prior to any adjustment to be made pursuant to Section 5.4(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 5.4(d) as of such date) over (b) the fair
market value of such property as of such date (as determined under Section 5.4(d)).
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“U.S. GAAP” means United States generally accepted accounting principles consistently applied.
“Withdrawal Opinion of Counsel” has the meaning assigned to such term in Section 11.1(b).
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” or “including” or
words of like import shall be deemed to be followed by the words “without limitation;” and (d) the
terms “hereof,” “herein” or “hereunder” refer to this Agreement as a whole and not to any
particular provision of this Agreement. The table of contents and headings contained in this
Agreement are for reference purposes only, and shall not affect in any way the meaning or
interpretation of this Agreement.
ARTICLE II
ORGANIZATION
Section 2.1 Formation.
The Partnership was formed on December 15, 2005 pursuant to the Certificate of Limited
Partnership as filed with the Secretary of State of the State of Delaware pursuant to the
provisions of the Delaware Act. Except as expressly provided to the contrary in this Agreement,
the rights, duties (including fiduciary duties), liabilities and obligations of the Partners and
the administration, dissolution and termination of the Partnership shall be governed by the
Delaware Act. All Partnership Interests shall constitute personal property of the owner thereof
for all purposes.
Section 2.2 Name.
The name of the Partnership shall be “Atlas Pipeline Holdings, L.P.” The Partnership’s
business may be conducted under any other name or names as determined by the General Partner,
including the name of the General Partner. The words “Limited Partnership,” “LP,” “Ltd.” or
similar words or letters shall be included in the Partnership’s name where necessary for the
purpose of complying with the laws of any jurisdiction that so requires. The General Partner may
change the name of the Partnership at any time and from time to time and shall notify the Limited
Partners of such change in the next regular communication to the Limited Partners.
Section 2.3 Registered Office; Registered Agent; Principal Office; Other Offices.
Unless and until changed by the General Partner, the registered office of the Partnership in
the State of Delaware shall be located at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000, and the registered agent for service of process on the Partnership in the State of Delaware
at such registered office shall be The Corporation Trust Company. The principal office of the
Partnership shall be located at 000 Xxxxxx Xxxx, Xxxx Xxxxxxxx, XX 00000 or
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such other place as the General Partner may from time to time designate by notice to the
Limited Partners. The Partnership may maintain offices at such other place or places within or
outside the State of Delaware as the General Partner deems necessary or appropriate. The address
of the General Partner shall be 000 Xxxxxx Xxxx, Xxxx Xxxxxxxx, XX 00000 or such other place as the
General Partner may from time to time designate by notice to the Limited Partners.
Section 2.4 Purpose and Business.
The purpose and nature of the business to be conducted by the Partnership shall be to (a)
engage directly in, or enter into or form any corporation, partnership, joint venture, limited
liability company or other arrangement to engage indirectly in, any business activity that is
approved by the General Partner and that lawfully may be conducted by a limited partnership
organized pursuant to the Delaware Act and, in connection therewith, to exercise all of the rights
and powers conferred upon the Partnership pursuant to the agreements relating to such business
activity; and (b) do anything necessary or appropriate to the foregoing, including the making of
capital contributions or loans to a Group Member, provided, however, that the General Partner shall
not cause the Partnership to engage, directly or indirectly, in any business activity that the
General Partner determines would cause the Partnership to be treated as an association taxable as a
corporation or otherwise taxable as an entity for federal income tax purposes. To the fullest
extent permitted by law, the General Partner shall have no duty or obligation to propose or
approve, and may decline to propose or approve, the conduct by the Partnership of any business,
free of any fiduciary duty or obligation whatsoever to the Partnership or any Limited Partner and,
in declining to so propose or approve, shall not be required to act in good faith or pursuant to
any other standard imposed by this Agreement, any other agreement contemplated hereby or under the
Delaware Act or any other law, rule or regulation or at equity.
Section 2.5 Powers.
The Partnership shall be empowered to do any and all acts and things necessary, 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 Limited Partner hereby constitutes and appoints the General Partner and, if a
Liquidator (other than the General Partner) shall have been selected pursuant to Section 12.3, the
Liquidator, severally (and any successor to either thereof by merger, transfer, assignment,
election or otherwise) and each of their authorized officers and attorneys-in-fact, as the case may
be, with full power of substitution, as his true and lawful agent and attorney-in-fact, with full
power and authority in his name, place and xxxxx, to:
(i) execute, swear to, acknowledge, deliver, file and record in the appropriate public offices
(A) all certificates, documents and other instruments (including this Agreement and the Certificate
of Limited Partnership and all amendments or restatements hereof or thereof) that the General
Partner or the Liquidator determines to be necessary or appropriate to form, qualify or continue
the existence or qualification of the Partnership as a limited partnership
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(or a partnership in
which the limited partners have limited liability) in the State of Delaware and
in all other jurisdictions in which the Partnership may conduct business or own property; (B)
all certificates, documents and other instruments that the General Partner or the Liquidator
determines to be necessary or appropriate to reflect, in accordance with its terms, any amendment,
change, modification or restatement of this Agreement; (C) all certificates, documents and other
instruments (including conveyances and a certificate of cancellation) that the General Partner or
the Liquidator determines to be necessary or appropriate to reflect the dissolution and liquidation
of the Partnership pursuant to the terms of this Agreement; (D) all certificates, documents and
other instruments relating to the admission, withdrawal, removal or substitution of any Partner
pursuant to, or other events described in, Article IV, 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 5.5; and (F)
all certificates, documents and other instruments (including agreements and a certificate of
merger) relating to a merger, consolidation or conversion of the Partnership pursuant to Article
XIV; and
(ii) execute, swear to, acknowledge, deliver, file and record all ballots, consents,
approvals, waivers, certificates, documents and other instruments that the General Partner or the
Liquidator determines to be necessary or appropriate to (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 Limited Partners or of the Limited Partners of any
class or series required to take any action, the General Partner and the Liquidator may exercise
the power of attorney made in this Section 2.6(a)(ii) only after the necessary vote, consent or
approval of the Limited Partners or of the Limited Partners of such class or series, as applicable.
Nothing contained in this Section 2.6(a) shall be construed as authorizing the General Partner
to amend this Agreement except in accordance with Article XIII or as may be otherwise expressly
provided for in this Agreement.
(b) The foregoing power of attorney is hereby declared to be irrevocable and a power coupled
with an interest, and it shall survive and, to the maximum extent permitted by law, not be affected
by the subsequent death, incompetency, disability, incapacity, dissolution, bankruptcy or
termination of any Limited Partner and the transfer of all or any portion of such Limited Partner’s
Partnership Interest and shall extend to such Limited Partner’s heirs, successors, assigns and
personal representatives. Each such Limited Partner hereby agrees to be bound by any
representation made by the General Partner or the Liquidator acting in good faith pursuant to such
power of attorney; and each such Limited Partner, to the maximum extent permitted by law, hereby
waives any and all defenses that may be available to contest, negate or disaffirm the action of the
General Partner or the Liquidator taken in good faith under such power of attorney. Each Limited
Partner shall execute and deliver to the General Partner or the Liquidator, within 15 days after
receipt of the request therefor, such further designation, powers of attorney and other instruments
as the General Partner or the Liquidator may request in order to effectuate this Agreement and the
purposes of the Partnership.
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Section 2.7 Term.
The term of the Partnership commenced upon the filing of the Certificate of Limited
Partnership in accordance with the Delaware Act and shall continue in existence until the
dissolution of the Partnership in accordance with the provisions of Article XII. The existence of
the Partnership as a separate legal entity shall continue until the cancellation of the Certificate
of Limited Partnership as provided in the Delaware Act.
Section 2.8 Title to Partnership Assets.
Title to Partnership assets, whether real, personal or mixed and whether tangible or
intangible, shall be deemed to be owned by the Partnership as an entity, and no Partner,
individually or collectively, shall have any ownership interest in such Partnership assets or any
portion thereof. Title to any or all of the Partnership assets may be held in the name of the
Partnership, the General Partner, one or more of its Affiliates or one or more nominees, as the
General Partner may determine. The General Partner hereby declares and warrants that any
Partnership assets for which record title is held in the name of the General Partner or one or more
of its Affiliates or one or more nominees shall be held by the General Partner or such Affiliate or
nominee for the use and benefit of the Partnership in accordance with the provisions of this
Agreement; provided, however, that the General Partner shall use reasonable efforts to cause record
title to such assets (other than those assets in respect of which the General Partner determines
that the expense and difficulty of conveyancing makes transfer of record title to the Partnership
impracticable) to be vested in the Partnership as soon as reasonably practicable; provided,
further, that, prior to the withdrawal or removal of the General Partner or as soon thereafter as
practicable, the General Partner shall use reasonable efforts to effect the transfer to the
Partnership of record title to all Partnership assets held by the General Partner or its Affiliates
and, prior to any such transfer, will provide for the use of such assets in a manner satisfactory
to the General Partner. All Partnership assets shall be recorded as the property of the
Partnership in its books and records, irrespective of the name in which record title to such
Partnership assets is held.
ARTICLE III
RIGHTS OF LIMITED PARTNERS
Section 3.1 Limitation of Liability.
The Limited Partners shall have no liability under this Agreement except as expressly provided
in this Agreement or the Delaware Act.
Section 3.2 Management of Business.
No Limited Partner, in its capacity as such, shall participate in the operation, management or
control (within the meaning of the Delaware Act) of the Partnership’s business, transact any
business in the Partnership’s name or have the power to sign documents for or otherwise bind the
Partnership. Any action taken by any Affiliate of the General Partner or any officer, director,
employee, manager, member, general partner, agent or trustee of the General Partner or any of its
Affiliates, or any officer, director, employee, manager, member, general partner, agent or trustee
of a Group Member, in its capacity as such, shall not be deemed to be participation in the control
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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 referred to therein, regardless of whether such Persons shall also be
Limited Partners, any Limited Partner shall be entitled to and may have business interests and
engage in business activities in addition to those relating to the Partnership, including business
interests and activities in direct competition with the Partnership. 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 a copy 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) Notwithstanding any other provision of this Agreement, the General Partner may keep
confidential from the Limited Partners, for such period of time as the General Partner determines,
(i) any information that the General Partner reasonably believes to be in the nature of trade
secrets or (ii) other information the disclosure of which the General Partner
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believes (A) is not in the best interests of the Partnership, (B) could damage the Partnership
or its business or (C) that any Group Member is required by law or by agreement with any third
party to keep confidential (other than agreements with Affiliates of the Partnership the primary
purpose of which is to circumvent the obligations set forth in this
Section 3.4).
ARTICLE IV
CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS;
REDEMPTION OF PARTNERSHIP INTERESTS
Section 4.1 Certificates.
Upon the Partnership’s issuance of Common Units to any Person, the Partnership shall issue,
upon the request of such Person, one or more Certificates in the name of such Person evidencing the
number of such Units being so issued. Certificates shall be executed on behalf of the Partnership
by the Chairman of the Board, President or any Vice President and the Secretary or any Assistant
Secretary of the General Partner. No Common Unit Certificate shall be valid for any purpose until
it has been countersigned by the Transfer Agent; provided, however, that if the General Partner
elects to issue Common Units in global form, the Common Unit Certificates shall be valid upon
receipt of a certificate from the Transfer Agent certifying that the Common Units have been duly
registered in accordance with the directions of the Partnership.
Section 4.2 Mutilated, Destroyed, Lost or Stolen Certificates.
(a) If any mutilated Certificate is surrendered to the Transfer Agent, the appropriate
officers of the General Partner on behalf of the Partnership shall execute, and 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 General Partner on behalf of the Partnership shall execute
and deliver, and 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 General Partner, that
a previously issued Certificate has been lost, destroyed or stolen;
(ii) requests the issuance of a new Certificate before the General Partner has notice that the
Certificate has been acquired by a purchaser for value in good faith and without notice of an
adverse claim;
(iii) if requested by the General Partner, delivers to the General Partner a bond, in form and
substance satisfactory to the General Partner, with surety or sureties and with fixed or open
penalty as the General Partner may direct to indemnify the Partnership, the Partners, the General
Partner and the Transfer Agent against any claim that may be made on account of the alleged loss,
destruction or theft of the Certificate; and
(iv) satisfies any other reasonable requirements imposed by the General Partner.
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(c) If a Limited Partner fails to notify the General Partner within a reasonable period of
time after he has notice of the loss, destruction or theft of a Certificate, and a transfer of the
Limited Partner Interests represented by the Certificate is registered before the Partnership, the
General Partner or the Transfer Agent receives such notification, the Limited Partner shall be
precluded from making any claim against the Partnership, the General Partner or the Transfer Agent
for such transfer or for a new Certificate.
(d) As a condition to the issuance of any new Certificate under this Section 4.2, the General Partner
may require the payment of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees and expenses of the
Transfer Agent) reasonably connected therewith.
Section 4.3 Record Holders.
The Partnership shall be entitled to recognize the Record Holder as the Limited 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 for
trading. Without limiting the foregoing, when a Person (such as a broker, dealer, bank, trust
company or clearing corporation or an agent of any of the foregoing) is acting as nominee, agent or
in some other representative capacity for another Person in acquiring and/or holding Partnership
Interests, as between the Partnership on the one hand, and such other Persons on the other, such
representative Person shall be the Record Holder of such Partnership Interest.
Section 4.4 Transfer Generally.
(a) The term “transfer,” when used in this Agreement with respect to a Partnership Interest,
shall be deemed to refer to a transaction (i) by which the General Partner assigns its General
Partner Interest to another Person who becomes the General Partner, and includes a sale,
assignment, gift, pledge, encumbrance, hypothecation, mortgage, exchange, or any other disposition
by law or otherwise or (ii) by which the holder of a Limited Partner Interest assigns such Limited
Partner Interest to another Person who is or becomes a Limited Partner, and includes a sale,
assignment, gift, exchange or any other disposition by law or otherwise, including any transfer
upon foreclosure of any pledge, encumbrance, hypothecation or mortgage.
(b) No Partnership Interest shall be transferred, in whole or in part, except in accordance
with the terms and conditions set forth in this Article IV. Any transfer or purported transfer of
a Partnership Interest not made in accordance with this Article IV shall be null and void.
(c) Nothing contained in this Agreement shall be construed to prevent a disposition by any
stockholder, member, partner or other owner of the General Partner of any or all of the issued and
outstanding equity interests or other ownership interests in the General Partner, including through
a merger or consolidation of the General Partner.
Section 4.5 Registration and Transfer of Limited Partner Interests.
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(a) The General Partner shall keep or cause to be kept on behalf of the Partnership a register
in which, subject to such reasonable regulations as it may prescribe and subject to the provisions
of Section 4.5(b), the Partnership will provide for the registration and transfer of Limited Partner Interests.
The Transfer Agent is hereby appointed registrar and transfer agent for the purpose of registering
Common Units and transfers of such Common Units as herein provided. The Partnership shall not
recognize transfers of Certificates evidencing Limited Partner Interests unless such transfers are
effected in the manner described in this Section 4.5. Upon surrender of a Certificate for registration of
transfer of any Limited Partner Interests evidenced by a Certificate, and subject to the provisions
of Section 4.5(b), the appropriate officers of the General Partner on behalf of the Partnership shall execute
and deliver, and in the case of Common Units, the Transfer Agent shall countersign and deliver, in
the name of the holder or the designated transferee or transferees, as required pursuant to the
holder’s instructions, one or more new Certificates evidencing the same aggregate number and type
of Limited Partner Interests as was evidenced by the Certificate so surrendered.
(b) Except as otherwise provided in Section 4.8, the Partnership shall not recognize any transfer of
Limited Partner Interests until the Certificates evidencing such Limited Partner Interests are
surrendered for registration of transfer. No charge shall be imposed by the General Partner for
such transfer; provided, that as a condition to the issuance of any new Certificate under this Section 4.5,
the General Partner may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed with respect thereto.
(c) Subject to (i) the foregoing provisions of this Section 4.5, (ii) Section 4.3, (iii) Section 4.7, (iv) with respect to
any series of Limited Partner Interests, the provisions of any statement of designations or
amendment to this Agreement establishing such series, (v) any contractual provisions binding on any
Limited Partner and (vi) provisions of applicable law including the Securities Act, Limited
Partnership Interests shall be freely transferable.
Section 4.6 Transfer of the General Partner Interest.
(a) Subject to Section 4.6(c) below, prior to June 30, 2016, the General Partner shall not transfer all or
any part of its General Partner Interest to a Person unless such transfer (i) has been approved by
the prior written consent or vote of the holders of at least a majority of the Outstanding Common
Units (excluding Common Units held by the General Partner and its Affiliates) or (ii) is of all,
but not less than all, of its General Partner Interest to (A) an Affiliate of the General Partner
(other than an individual) or (B) another Person (other than an individual) in connection with the
merger or consolidation of the General Partner with or into another Person (other than an
individual) or the transfer by the General Partner of all or substantially all of its assets to
another Person (other than an individual).
(b) Subject to Section 4.6(c) below, on or after June 30, 2016, the General Partner may transfer all or any
of its General Partner Interest without Unitholder approval.
(c) Notwithstanding anything herein to the contrary, no transfer by the General Partner of all
or any part of its General Partner Interest to another Person shall be permitted unless (i) the
transferee agrees to assume the rights and duties of the General Partner
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under this Agreement and to be bound by the provisions of this Agreement and (ii) the
Partnership receives an Opinion of Counsel that such transfer would not result in the loss of
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 already so treated or taxed). 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 General Partner immediately
prior to the transfer of the General Partner Interest, and the business of the Partnership shall
continue without dissolution.
Section 4.7 Restrictions on Transfers.
(a) Except
as provided in Section 4.7(c) 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 federal or state securities laws or rules and regulations of the Commission, any
state securities commission or any other governmental authority with jurisdiction over such
transfer, (ii) terminate the existence or qualification of the Partnership under the laws of the
jurisdiction of its formation, or (iii) cause the Partnership to be treated as an association
taxable as a corporation or otherwise to be taxed as an entity for federal income tax purposes (to
the extent not already so treated or taxed).
(b) The General Partner may impose restrictions on the transfer of Partnership Interests if it
receives an Opinion of Counsel that such restrictions are necessary to avoid a significant risk of
the Partnership becoming taxable as a corporation or otherwise becoming taxable as an entity for
federal income tax purposes. The General Partner may impose such restrictions by amending this
Agreement; provided, however, that any amendment that would result in the delisting or suspension
of trading of any class of Limited Partner Interests on the principal National Securities Exchange
on which such class of Limited Partner Interests is then listed or admitted for 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) 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 for
trading.
(d) Each certificate evidencing Partnership Interests shall bear a conspicuous legend in
substantially the following form:
THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF ATLAS PIPELINE HOLDINGS,
L.P. THAT THIS SECURITY MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED IF SUCH TRANSFER WOULD (A) VIOLATE THE THEN APPLICABLE FEDERAL OR STATE
SECURITIES LAWS OR RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION,
ANY STATE SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH
JURISDICTION OVER SUCH
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TRANSFER, (B) TERMINATE THE EXISTENCE OR QUALIFICATION OF ATLAS PIPELINE HOLDINGS,
L.P. UNDER THE LAWS OF THE STATE OF DELAWARE, OR (C) CAUSE ATLAS PIPELINE HOLDINGS,
L.P. TO BE TREATED AS AN ASSOCIATION TAXABLE AS A CORPORATION OR OTHERWISE TO BE
TAXED AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES (TO THE EXTENT NOT ALREADY SO
TREATED OR TAXED). ATLAS PIPELINE HOLDINGS GP, LLC, THE GENERAL PARTNER OF ATLAS
PIPELINE HOLDINGS, L.P., MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS
SECURITY IF IT RECEIVES AN OPINION OF COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY
TO AVOID A SIGNIFICANT RISK OF ATLAS PIPELINE HOLDINGS, L.P. BECOMING TAXABLE AS A
CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX
PURPOSES. THE RESTRICTIONS SET FORTH ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF ANY
TRANSACTIONS INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF ANY
NATIONAL SECURITIES EXCHANGE ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO
TRADING.
Section 4.8 Citizenship Certificates; Non-citizen Assignees.
(a) If any Group Member is or becomes subject to any federal, state or local law or regulation
that the General Partner determines would create a substantial risk of cancellation or forfeiture
of any property in which the Group Member has an interest based on the nationality, citizenship or
other related status of a Limited Partner, the General Partner may request any Limited Partner to
furnish to the General Partner, within 30 days after receipt of such request, an executed
Citizenship Certification or such other information concerning his nationality, citizenship or
other related status (or, if the Limited Partner is a nominee holding for the account of another
Person, the nationality, citizenship or other related status of such Person) as the General Partner
may request. If a Limited Partner fails to furnish to the General Partner within the aforementioned
30-day period such Citizenship Certification or other requested information or if upon receipt of
such Citizenship Certification or other requested information the General Partner determines that a
Limited Partner is not an Eligible Citizen, the Partnership Interests owned by such Limited Partner
shall be subject to redemption in accordance with the provisions of Section 4.9. In addition, the General
Partner may require that the status of any such Limited Partner be changed to that of a Non-citizen
Assignee and, thereupon, the General Partner shall be substituted for such Non-citizen Assignee as
the Limited Partner in respect of his Limited Partner Interests.
(b) The General Partner shall, in exercising voting rights in respect of Limited Partner
Interests held by it on behalf of Non-citizen Assignees, distribute the votes in the same ratios as
the votes of Partners (including the General Partner) in respect of Limited Partner Interests other
than those of Non-citizen Assignees are cast, either for, against or abstaining as to the matter.
(c) Upon dissolution of the Partnership, a Non-citizen Assignee shall have no right to receive
a distribution in kind pursuant to Section 12.4 but shall be entitled to the cash
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equivalent thereof, and the Partnership shall provide cash in exchange for an assignment of
the Non-citizen Assignee’s share of any distribution in kind. Such payment and assignment shall be
treated for Partnership purposes as a purchase by the Partnership from the Non-citizen Assignee of
his Limited Partner Interest (representing his right to receive his share of such distribution in
kind).
(d) At any time after he can and does certify that he has become an Eligible Citizen, a
Non-citizen Assignee may, upon application to the General Partner, request that with respect to any
Limited Partner Interests of such Non-citizen Assignee not redeemed
pursuant to Section 4.9, such Non-citizen
Assignee be admitted as a Limited Partner, and upon approval of the General Partner, such
Non-citizen Assignee shall be admitted as a Limited Partner and shall no longer constitute a
Non-citizen Assignee and the General Partner shall cease to be deemed to be the Limited Partner in
respect of the Non-citizen Assignee’s Limited Partner Interests.
Section 4.9 Redemption of Partnership Interests of Non-citizen Assignees.
(a) If at any time a Limited Partner fails to furnish a Citizenship Certification or other
information requested within the 30-day period specified in Section
4.8(a), or if upon receipt of such
Citizenship Certification or other information the General Partner determines, with the advice of
counsel, that a Limited Partner is not an Eligible Citizen, the Partnership may, unless the Limited
Partner establishes to the satisfaction of the General Partner that such Limited Partner is an
Eligible Citizen or has transferred his Partnership Interests to a Person who is an Eligible
Citizen and who furnishes a Citizenship Certification to the General Partner prior to the date
fixed for redemption as provided below, redeem the Limited Partner Interest of such Limited Partner
as follows:
(i) The General Partner shall, not later than the 30th day before the date fixed for
redemption, give notice of redemption to the Limited Partner, at his last address designated on the
records of the Partnership or the Transfer Agent, by registered or certified mail, postage prepaid.
The notice shall be deemed to have been given when so mailed. The notice shall specify the
Redeemable Interests, the date fixed for redemption, the place of payment, that payment of the
redemption price will be made upon surrender of the Certificate evidencing the Redeemable Interests
and that on and after the date fixed for redemption no further allocations or distributions to
which the Limited Partner would otherwise be entitled in respect of the Redeemable Interests will
accrue or be made.
(ii) The aggregate redemption price for Redeemable Interests shall be an amount equal to the
Current Market Price (the date of determination of which shall be the date fixed for redemption) of
Limited Partner Interests of the class to be so redeemed multiplied by the number of Limited
Partner Interests of each such class included among the Redeemable Interests. The redemption price
shall be paid as determined by the General Partner, in cash or by delivery of a promissory note of
the Partnership in the principal amount of the redemption price, bearing interest at the rate of
10% annually and payable in three equal annual installments of principal together with accrued
interest, commencing one year after the redemption date.
(iii) Upon surrender by or on behalf of the Limited Partner, at the place specified in the
notice of redemption, of the Certificate evidencing the Redeemable Interests,
24
duly endorsed in blank or accompanied by an assignment duly executed in blank, the Limited
Partner or his duly authorized representative shall be entitled to receive the payment therefor.
(iv) After the redemption date, Redeemable Interests shall no longer constitute issued and
Outstanding Limited Partner Interests.
(b) The
provisions of this Section 4.9 shall also be applicable to Limited Partner Interests held by a
Limited Partner as nominee of a Person determined to be other than an Eligible Citizen.
(c) Nothing
in this Section 4.9 shall prevent the recipient of a notice of redemption from transferring
his Limited Partner Interest before the redemption date if such transfer is otherwise permitted
under this Agreement. Upon receipt of notice of such a transfer, the General Partner shall
withdraw the notice of redemption, provided the transferee of such Limited Partner Interest
certifies to the satisfaction of the General Partner in a Citizenship Certification that he is an
Eligible Citizen. If the transferee fails to make such certification, such redemption shall be
effected from the transferee on the original redemption date.
ARTICLE V
CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS
Section 5.1 Organizational Issuances.
In connection with the formation of the Partnership under the Delaware Act, the General
Partner made an initial Capital Contribution to the Partnership in the amount of $0.01, for a .001%
General Partner Interest in the Partnership and has been admitted as the General Partner of the
Partnership, and the Initial Limited Partner made an initial Capital Contribution to the
Partnership in the amount of $999.99 for a 99.999% Limited Partner Interest in the Partnership and
has been admitted as a Limited Partner of the Partnership. As of the Closing Date, the interest of
the Initial Limited Partner shall be redeemed; and the initial Capital Contribution of the Initial
Limited Partner shall thereupon be refunded. 99.999% of any interest or other profit that may have
resulted from the investment or other use of such initial Capital Contributions shall be allocated
and distributed to the Initial Limited Partner, and the balance thereof shall be allocated and
distributed to the General Partner.
Section 5.2 Contributions by the Underwriters.
(a) On the Closing Date and pursuant to the Underwriting Agreement, each Underwriter shall
contribute to the Partnership cash in an amount equal to the Issue Price per Initial Common Unit
multiplied by the number of Common Units specified in the Underwriting Agreement to be purchased by
such Underwriter at the Closing Date. In exchange for such Capital Contributions by the
Underwriters, the Partnership shall issue Common Units to each Underwriter on whose behalf such
Capital Contribution is made in an amount equal to the quotient obtained by dividing (i) the cash
contribution to the Partnership by or on behalf of such Underwriter by (ii) the Issue Price per
Initial Common Unit.
(b) Upon the exercise of the Over-Allotment Option, each Underwriter shall contribute to the
Partnership cash in an amount equal to the Issue Price per Initial Common Unit,
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multiplied by the number of Common Units to be purchased by such Underwriter at the Option
Closing Date. In exchange for such Capital Contributions by the Underwriters, the Partnership
shall issue Common Units to each Underwriter on whose behalf such Capital Contribution is made in
an amount equal to the quotient obtained by dividing (i) the cash contributions to the Partnership
by or on behalf of such Underwriter by (ii) the Issue Price per Initial Common Unit. The proceeds
from such Capital Contributions after exercise of the Over-Allotment Option shall be used to redeem
pro rata from the Initial Limited Partner the number of Common Units sold to the Underwriters in
connection with the exercise of the Over-Allotment Option.
(c) Subject to Section 5.1, no Limited Partner Interests will be issued or issuable as of or at the
Closing Date other than (i) the Common Units issuable pursuant to subparagraph (a) hereof in
aggregate number equal to 3,600,000 Units and (ii) the “Option Units” as such term is used in the
Underwriting Agreement issuable upon exercise of the Over-Allotment Option pursuant to subparagraph
(b) hereof in an aggregate number of up to 540,000 additional Units and (iii) the Common Units
issued to the Initial Limited Partner in aggregate number equal to 17,500,000.
Section 5.3 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 termination of the Partnership may be
considered as such by law and then only to the extent provided for in this Agreement. Except to
the extent expressly provided in this Agreement, no Partner shall have priority over any other
Partner either as to the return of Capital Contributions or as to profits, losses or distributions.
Any such return shall be a compromise to which all Partners agree within the meaning of Section
17-502(b) of the Delaware Act.
Section 5.4 Capital Accounts.
(a) The Partnership shall maintain for each Partner (or a beneficial owner of Partnership
Interests held by a nominee in any case in which the nominee has furnished the identity of such
owner to the Partnership in accordance with Section 6031(c) of the Code or any other method
acceptable to the General Partner) owning a Partnership Interest a separate Capital Account with
respect to such Partnership Interest in accordance with the rules of Treasury Regulation Section
1.704-1(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of all Capital
Contributions made to the Partnership with respect to such Partnership Interest pursuant to this
Agreement and (ii) all items of Partnership income and gain (including income and gain exempt from
tax) computed in accordance with Section 5.4(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 pursuant to this
Agreement and (y) all items of Partnership deduction and loss computed in accordance with Section 5.4(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’
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Capital Accounts, the determination, recognition and classification of any such item shall be
the same as its determination, recognition and classification for federal income tax purposes
(including any method of depreciation, cost recovery or amortization used for that purpose),
provided, that:
(i) Solely for purposes of this Section 5.4, the Partnership shall be treated as owning directly its
proportionate share (as determined by the General Partner based upon the provisions of the MLP
Agreement) of all property owned by the MLP or any other Subsidiary that is classified as a
partnership 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, loss or deduction 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 5.4(d) to the Carrying
Value of any Partnership property subject to depreciation, cost recovery or amortization, any
further deductions for such depreciation, cost recovery or amortization attributable to such
property shall be determined (A) as if the adjusted basis of such property were equal to the
Carrying Value of such property immediately following such adjustment and (B) using a rate of
depreciation, cost recovery or amortization derived from the same method and useful life (or, if
applicable, the remaining useful life) as is applied for federal income tax purposes; provided,
however, that, if the asset has a zero adjusted basis for federal income tax purposes,
depreciation, cost recovery or amortization deductions shall be determined using any method that
the General Partner may adopt.
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(vi) If the Partnership’s adjusted basis in a depreciable or cost recovery property is reduced
for federal income tax purposes pursuant to Section 48(q)(1) or 48(q)(3) of the Code, the amount of
such reduction shall, solely for purposes hereof, be deemed to be an additional depreciation or
cost recovery deduction in the year such property is placed in service and shall be allocated among
the Partners pursuant to Section 6.1. Any restoration of such basis pursuant to Section 48(q)(2) of the Code
shall, to the extent possible, be allocated in the same manner to the Partners to whom such deemed
deduction was allocated.
(c) 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.
(d) (i) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), on an issuance of
additional Partnership Interests for cash or Contributed Property, the issuance of Partnership
Interests as consideration for the provision of services, or the conversion of the General
Partner’s Combined Interest to Units pursuant to Section 11.3(b), the Capital Account of all Partners and the
Carrying Value of each Partnership property immediately prior to such issuance shall be adjusted
upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such
Partnership property, as if such Unrealized Gain or Unrealized Loss had been recognized on an
actual sale of each such property immediately prior to such issuance and had been allocated to the
Partners at such time pursuant to Section 6.1 in the same manner as any item of gain or loss actually
recognized during such period would have been allocated. In determining such Unrealized Gain or
Unrealized Loss, the aggregate cash amount and fair market value of all Partnership assets
(including cash or cash equivalents) immediately prior to the issuance of additional Partnership
Interests shall be determined by the General Partner using such method of valuation as it may
adopt; provided, however, that the General Partner, in arriving at such valuation, must take fully
into account the fair market value of the Partnership Interests of all Partners at such time. The
General Partner shall allocate such aggregate value among the assets of the Partnership (in such
manner as it determines) to arrive at a fair market value for individual properties.
(ii) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), immediately prior to
any actual or deemed distribution to a Partner of any Partnership property (other than a
distribution of cash that is not in redemption or retirement of a Partnership Interest), the
Capital Accounts of all Partners and the Carrying Value of all Partnership property shall be
adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such
Partnership property, as if such Unrealized Gain or Unrealized Loss had been recognized in a sale
of such property immediately prior to such distribution for an amount equal to its fair market
value, and had been allocated to the Partners, at such time, pursuant to Section 6.1 in the same manner as
any item of gain or loss actually recognized during such period would have been allocated. In
determining such Unrealized Gain or Unrealized Loss the aggregate cash amount and fair market value
of all Partnership assets (including, without limitation, 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 5.4(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.
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Section 5.5 Issuances of Additional Partnership Securities.
(a) 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 General Partner shall determine, all without the approval of any Limited Partners.
(b) Each additional Partnership Interest authorized to be issued by the Partnership pursuant
to Section 5.5(a) may be issued in one or more classes, or one or more series of any such classes, with such
designations, preferences, rights, powers and duties (which may be senior to existing classes and
series of Partnership Securities), as shall be fixed by the General Partner, including (i) the
right to share in Partnership profits and losses or items thereof; (ii) the right to share in
Partnership distributions; (iii) the rights upon dissolution and liquidation of the Partnership;
(iv) whether, and the terms and conditions upon which the Partnership may or shall be required to
redeem the Partnership Security (including sinking fund provisions); (v) whether such Partnership
Interest 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 Interest 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 Interest to vote on Partnership matters, including matters
relating to the relative designations, preferences, rights, powers and duties of such Partnership
Interest.
(c) The General Partner is hereby authorized and directed to 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 5.5, (ii) the admission of additional Limited Partners and (iii) all additional
issuances of Partnership Securities. The General Partner shall determine the relative rights,
powers and duties of the holders of the Units or other Partnership Securities being so issued. The
General Partner shall do all things necessary to comply with the Delaware Act and is authorized and
directed to do all things that it determines to be necessary or appropriate in connection with any
future issuance of Partnership Securities, 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 for trading.
(d) No fractional Partnership Securities shall be issued by the Partnership. If a
distribution, subdivision or combination of Units pursuant to Section 5.5 would result in the issuance of
fractional Units, each fractional Unit shall be rounded to the nearest whole Unit (and a 0.5 Unit
shall be rounded to the next higher Unit).
Section 5.6 No Preemptive Right.
No Person shall have any preemptive, preferential or other similar right with respect to the
issuance of any Partnership Interest, whether unissued, held in the treasury or hereafter created.
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Section 5.7 Splits and Combinations.
(a) Subject to Section 5.5(d), the Partnership may make a Pro Rata distribution of Partnership Securities
to all Record Holders or may effect a subdivision or combination of Partnership Securities so long
as, after any such event, each Partner shall have the same Percentage Interest in the Partnership
as before such event, and any amounts calculated on a per Unit basis or stated as a number of Units
are proportionately adjusted retroactive to the beginning of the Partnership.
(b) Whenever such a distribution, subdivision or combination of Partnership Securities is
declared, the General Partner shall select a Record Date as of which the distribution, subdivision
or combination shall be effective and shall send notice thereof at least 20 days prior to such
Record Date to each Record Holder as of a date not less than 10 days prior to the date of such
notice. The General Partner also may cause a firm of independent public accountants selected by it
to calculate the number of Partnership Securities to be held by each Record Holder after giving
effect to such distribution, subdivision or combination. The General Partner shall be entitled to
rely on any certificate provided by such firm as conclusive evidence of the accuracy of such
calculation.
(c) Promptly following any such distribution, subdivision or combination, the Partnership may
issue Certificates to the Record Holders of Partnership Securities as of the applicable Record Date
representing the new number of Partnership Securities held by such Record Holders, or the General
Partner may adopt such other procedures that it determines to be necessary or appropriate to
reflect such changes. If any such combination results in a smaller total number of Partnership
Securities Outstanding, the Partnership shall require, as a condition to the delivery to a Record
Holder of such new Certificate, the surrender of any Certificate held by such Record Holder
immediately prior to such Record Date.
Section 5.8 Fully Paid and Non-Assessable Nature of Limited Partner Interests.
All Limited Partner Interests issued pursuant to, and in accordance with the requirements of,
this Article V shall be fully paid and non-assessable Limited Partner Interests in the Partnership,
except as such non assessability may be affected by Section 17-607 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 5.4(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), and any
allocations to other Partnership Securities, Net Income for each taxable year and all items of
income, gain, loss and deduction taken into account in computing Net
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Income for such taxable year shall be allocated to the Partners in accordance with their
respective Percentage Interests.
(b)
Net Losses. After giving effect to the special allocations set
forth in Section 6.1(d), and any
allocations to other Partnership Securities, 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 to the Partners in accordance with their respective Percentage Interests;
provided that Net Losses shall not be allocated pursuant to
this Section 6.1(b) 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), instead any such Net Losses shall be allocated to Partners with positive Adjusted Capital
Account balances in accordance with their Percentage Interests until such positive Adjusted Capital
Accounts are reduced to zero, and thereafter to the General Partner.
(c) Net Termination Gains and Losses. After giving effect to the special allocations set
forth in Section 6.1(d), all items of income, gain, loss and deduction taken into account in computing Net
Termination Gain or Net Termination Loss for such taxable period shall be allocated in the same
manner as such Net Termination Gain or Net Termination Loss is allocated hereunder. All
allocations under this Section 6.1(c) shall be made after Capital Account balances have been adjusted by all
other allocations provided under this Section 6.1 and after all distributions of Available Cash provided
under Section 6.3 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 5.4(d)), such
Net Termination Gain shall be allocated among the Partners in the following manner (and the
Capital Accounts of the Partners shall be increased by the amount so allocated in each of
the following subclauses, in the order listed, before an allocation is made pursuant to the
next succeeding subclause):
| A. | First, to each Partner having a deficit balance in its Capital Account, in the proportion that such deficit balance bears to the total deficit balances in the Capital Accounts of all Partners, until each such Partner has been allocated Net Termination Gain equal to any such deficit balance in its Capital Account; and | ||
| B. | Second, 100% to all Partners in accordance with their Percentage Interests; |
(ii)
If a Net Termination Loss is recognized (or deemed recognized
pursuant to Section 5.4(d)), such
Net Termination Loss shall be allocated among the Partners in the following manner:
| A. | First, 100% to all Partners holding Common Units, Pro Rata, until the Capital Account in respect of each Unit then Outstanding has been reduced to zero; and |
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| B. | Second, the balance, if any, to the General Partner. |
(d) Special Allocations. Notwithstanding any other provision of this Section 6.1, the following special
allocations shall be made for such taxable period:
(i) Partnership Minimum Gain Chargeback. Notwithstanding any other provision of this
Section 6.1, if there is a net decrease in Partnership Minimum Gain during any Partnership taxable
period, each Partner shall be allocated items of Partnership income and gain for such period
(and, if necessary, subsequent periods) in the manner and amounts provided in Treasury
Regulation Sections 1.704-2(f)(6), 1.704-2(g)(2) and 1.704-2(j)(2)(i), or any successor
provision. For purposes of this Section 6.1(d), each Partner’s Adjusted Capital Account balance shall be
determined, and the allocation of income or gain required hereunder shall be effected, prior
to the application of any other allocations pursuant to this Section 6.1(d) with respect to such taxable
period (other than an allocation pursuant to Sections 6.1(d)(v)
and 6.1(d)(vi)). 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) 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)(v) and 6.1(d)(vi), with
respect to such taxable period. This Section 6.1(d)(ii) is intended to comply with the chargeback of items
of income and gain requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be
interpreted consistently therewith.
(iii) 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).
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(iv) Gross Income Allocations. In the event any Partner has a deficit balance in its
Capital Account at the end of any Partnership taxable period in excess of the sum of (A) the
amount such Partner is required to restore pursuant to the provisions of this Agreement and
(B) the amount such Partner is deemed obligated to restore pursuant to 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)(iv) shall be made only if and
to the extent that such Partner would have a deficit balance in its Capital Account as
adjusted after all other allocations provided for in this Section 6.1 have been tentatively made as if
this Section 6.1(d)(iv) were not in this Agreement.
(v) Nonrecourse Deductions. Nonrecourse Deductions for any taxable period shall be
allocated to the Partners in accordance with their respective Percentage Interests. If the
General Partner determines that the Partnership’s Nonrecourse Deductions should be allocated
in a different ratio to satisfy the safe harbor requirements of the Treasury Regulations
promulgated under Section 704(b) of the Code, the General Partner is authorized, upon notice
to the other Partners, to revise the prescribed ratio to the numerically closest ratio that
does satisfy such requirements.
(vi) Partner Nonrecourse Deductions. Partner Nonrecourse Deductions for any taxable
period shall be allocated 100% to the Partner that bears the Economic Risk of Loss with
respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are
attributable in accordance with 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.
(vii) 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.
(viii) Code Section 754 Adjustments. To the extent an adjustment to the adjusted tax
basis of any Partnership asset pursuant to Section 734(b) or 743(b) of the Code is required,
pursuant to 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.
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(ix) 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)(ix)(A) shall only be made with respect to Required Allocations to the extent the General Partner determines that such allocations will otherwise be inconsistent with the economic agreement among the Partners. Further, allocations pursuant to this Section 6.1(d)(ix)(A) shall be deferred with respect to allocations pursuant to clauses (1) and (2) hereof to the extent the General Partner determines that such allocations are likely to be offset by subsequent Required Allocations. | ||
| B. | The General Partner shall, with respect to each taxable period, (1) apply the provisions of Section 6.1(d)(ix)(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)(ix)(A) among the Partners in a manner that is likely to minimize such economic distortions. |
(x) 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 negative adjustments to the Capital Accounts of the Partners resulting from a Book-Down Event or from the recognition of a Net Termination Loss, such negative adjustment (1) shall first be allocated, to the extent of the Aggregate Remaining Net Positive Adjustments, in such a manner, as determined by the General Partner, that to the extent possible the aggregate Capital Accounts of the Partners will equal the amount that would have been the Capital Account balance of the Partners if no prior Book-Up Events had occurred, and (2) any negative |
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| adjustment in excess of the Aggregate Remaining Net Positive Adjustments shall be allocated pursuant to Section 6.1(c) hereof. | |||
| B. | In making the allocations required under this Section 6.1(d)(ix), the General Partner may apply whatever conventions or other methodology it determines will satisfy the purpose of this Section 6.1(d)(ix). |
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 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 5.4(d)(i) or 5.4(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 General Partner shall apply the principles of Treasury Regulation Section 1.704-3(d)
to eliminate Book-Tax Disparities, except with respect to any goodwill in the Partnership.
(c) For the proper administration of the Partnership and for the preservation of uniformity of
the Limited Partner Interests (or any class or classes thereof), the General Partner shall (i)
adopt such conventions as it deems appropriate in determining the amount of depreciation,
amortization and cost recovery deductions; (ii) make special allocations for federal income tax
purposes of income (including, without limitation, 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)
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otherwise to preserve or achieve uniformity of the Limited Partner Interests (or any class or
classes thereof). The General Partner may adopt such conventions, make such allocations and make
such amendments to this Agreement as provided in this Section 6.1(c) only if such conventions, allocations or
amendments would not have a material adverse effect on the Partners, the holders of any class or
classes of Limited Partner Interests issued and Outstanding or the Partnership, and if such
allocations are consistent with the principles of Section 704 of the Code.
(d) The General Partner may determine to depreciate or amortize the portion of an adjustment
under Section 743(b) of the Code attributable to unrealized appreciation in any Adjusted Property
(to the extent of the unamortized Book-Tax Disparity) using a predetermined rate derived from the
depreciation or amortization method and useful life applied to the Partnership’s common basis of
such property, despite any inconsistency of such approach with Treasury Regulation Section
1.167(c)-1(a)(6) or any successor regulations thereto. If the General Partner determines that such
reporting position cannot reasonably be taken, the General Partner may adopt depreciation and
amortization conventions under which all purchasers acquiring Limited Partner Interests in the same
month would receive depreciation and amortization deductions, based upon the same applicable rate
as if they had purchased a direct interest in the Partnership’s property. If the General Partner
chooses not to utilize such aggregate method, the General Partner may use any other depreciation
and amortization conventions to preserve the uniformity of the intrinsic tax characteristics of any
Limited Partner Interests, so long as such conventions would not have a material adverse effect on
the Limited Partners or the Record Holders of any class or classes of Limited Partner Interests.
(e) 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 which may be made
by the Partnership; provided, however, that such allocations, once made, shall be adjusted (in the
manner determined by the General Partner) to take into account those adjustments permitted or
required by Sections 734 and 743 of the Code.
(g) Each item of Partnership income, gain, loss and deduction, 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 as of the opening of the New York Stock Exchange on the first Business Day of each
month; provided, however, that (i) such items for the period beginning on the Closing Date and
ending on the last day of the month in which the Option Closing Date or the expiration of the
Over-Allotment Option occurs shall be allocated to the Partners as of the opening of the New York
Stock Exchange 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
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in the ordinary course of business, as determined by the General Partner in its sole
discretion, shall be allocated to the Partners as of the opening of the New York Stock Exchange on
the first Business Day of the month in which such gain or loss is recognized for federal income tax
purposes. The General Partner may revise, alter or otherwise modify such methods of allocation to
the extent permitted or required by Section 706 of the Code and the regulations or rulings
promulgated thereunder.
(h) Allocations that would otherwise be made to a Limited Partner under the provisions of this
Article VI shall instead be made to the beneficial owner of Limited Partner Interests held by a
nominee in any case in which the nominee has furnished the identity of such owner to the
Partnership in accordance with Section 6031(c) of the Code or any other method determined by the
General Partner.
Section 6.3 Requirement and Characterization of Distributions; Distributions to Record
Holders.
(a) Except as described in Section 6.3(b), within 50 days following the end of each Quarter
commencing with the Quarter ending on September 30, 2006, an amount equal to 100% of Available Cash
with respect to such Quarter shall, subject to Section 17-607 of the Delaware Act, be distributed
in accordance with this Article VI by the Partnership to the Partners in accordance with their
respective Percentage Interests as of the Record Date selected by the General Partner. All
distributions required to be made under this Agreement shall be made subject to Section 17-607 of
the Delaware Act.
(b) With respect to the distribution for the Quarter ending on June 30, 2006, the amount of
Available Cash distributed to the Partners in accordance with Section 6.3(a) shall equal 100% of
Available Cash with respect to such Quarter multiplied by a fraction of which the numerator is the
number of days in the period commencing on the Closing Date and ending on June 30, 2006 and of
which the denominator is 91. Of the remaining Available Cash with respect to such Quarter, such
amount shall be distributed to Atlas America, Inc. Notwithstanding
Section 6.3(a), in the event of the
dissolution and liquidation of the Partnership, all receipts received during or after the Quarter
in which the Liquidation Date occurs shall be applied and distributed solely in accordance with,
and subject to the terms and conditions of, Section 12.4.
(c) The General Partner may treat taxes paid by the Partnership on behalf of, or amounts
withheld with respect to, all or less than all of the Partners, as a distribution of Available Cash
to such Partners.
(d) Each distribution in respect of a Partnership Interest shall be paid by the Partnership,
directly or through the Transfer Agent or through any other Person or agent, only to the Record
Holder of such Partnership Interest as of the Record Date set for such distribution. Such payment
shall constitute full payment and satisfaction of the Partnership’s liability in respect of such
payment, regardless of any claim of any Person who may have an interest in such payment by reason
of an assignment or otherwise.
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ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS
MANAGEMENT AND OPERATION OF BUSINESS
Section 7.1 Management.
(a) The General Partner shall conduct, direct and manage all activities of the Partnership.
Except as otherwise expressly provided in this Agreement, all management powers over the business
and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited
Partner shall have any management power over the business and affairs of the Partnership. In
addition to the powers now or hereafter granted to a general partner of a limited partnership under
applicable law or that are granted to the General Partner under any other provision of this
Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do
all things on such terms as it determines to be necessary or appropriate to conduct the business of
the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set
forth in Section 2.4, including the following:
(i) the making of any expenditures, the lending or borrowing of money, the assumption or
guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of
evidences of indebtedness, including indebtedness that is convertible into Partnership Securities,
and the incurring of any other obligations;
(ii) the making of tax, regulatory and other filings, or rendering of periodic or other
reports to governmental or other agencies having jurisdiction over the business or assets of the
Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange
of any or all of the assets of the Partnership or the merger or other combination of the
Partnership with or into another Person (the matters described in this clause (iii) being subject,
however, to any prior approval that may be required by Section 7.3 and Article XIV);
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose
consistent with the terms of this Agreement, including the financing of the conduct of the
operations of the Partnership, its Subsidiaries and the MLP; subject to Section 7.6(a), the lending
of funds to other Persons; the repayment or guarantee of obligations of the Partnership, its
Subsidiaries and the MLP and the making of capital contributions to any member of the Partnership,
its Subsidiaries and the MLP;
(v) the negotiation, execution and performance of any contracts, conveyances or other
instruments (including instruments that limit the liability of the Partnership under contractual
arrangements to all or particular assets of the Partnership, with the other party to the contract
to have no recourse against the General Partner or its assets other than its interest in the
Partnership, even if same results in the terms of the transaction being less favorable to the
Partnership than would otherwise be the case);
(vi) the distribution of Partnership cash;
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(vii) the selection and dismissal of employees (including employees having titles such as
“president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys,
accountants, consultants and contractors and the determination of their compensation and other
terms of employment or hiring;
(viii) the maintenance of insurance for the benefit of the Partnership, 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, limited
liability companies, corporations or other relationships (including the acquisition of interests
in, and the contributions of property to, the MLP and its Subsidiaries from time to time) subject
to the restrictions set forth in Section 2.4;
(x) the control of any matters affecting the rights and obligations of the Partnership,
including the bringing and defending of actions at law or in equity and otherwise engaging in the
conduct of litigation, arbitration or mediation and the incurring of legal expense and the
settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent
permitted by law;
(xii) the entering into of listing agreements with any National Securities Exchange and the
delisting of some or all of the Limited Partner Interests from, or requesting that trading be
suspended on, any such exchange (subject to any prior approval that may be required under Section
4.7);
(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 the MLP through its ownership of the general partner of the MLP;
(xv) the registering for resale under the Securities Act and applicable state securities laws,
the Partnership Securities held by the General Partner or any Affiliate of the General Partner;
provided, however, that such registration for resale of any Partnership Security shall be subject
to certain restrictions and limitations; and
(xvi) the approval and authorization of any action taken by the general partner of the MLP to
limit or modify the incentive distribution rights held by the general partner of the MLP, if the
General Partner of the Partnership determines that such limitation or modification does not
adversely affect the Limited Partners (including any particular class of Partnership Interests as
compared to other classes of Partnership Interests) in any material respect.
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(b) Notwithstanding any other provision of this 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 the Underwriting Agreement, the Omnibus Agreement, the
Contribution Agreement 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 General Partner (on its own or through any officer of the
Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i)
of this sentence and the other agreements, acts, transactions and matters described in or
contemplated by the 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 General Partner,
any Group Member or any Affiliate of any of them, of this Agreement or any agreement authorized or
permitted under this Agreement (including the exercise by the General Partner or any Affiliate of
the General Partner of the rights accorded pursuant to Article XV), shall not constitute a breach
by the General Partner of any duty that the General Partner may owe the Partnership or the Limited
Partners or any other Persons under this Agreement (or any other agreements) or of any duty stated
or implied by law or equity.
Section 7.2 Certificate of Limited Partnership.
The General Partner has caused the Certificate of Limited Partnership to be filed with the
Secretary of State of the State of Delaware as required by the Delaware Act and shall use all
reasonable efforts to cause to be filed such other certificates or documents that the General
Partner determines to be necessary or appropriate for the formation, continuation, qualification
and operation of a limited partnership (or a partnership in which the limited partners have limited
liability) in the State of Delaware or any other state in which the Partnership may elect to do
business or own property. To the extent the General Partner determines such action to be necessary
or appropriate, the General Partner shall file amendments to and restatements of the Certificate of
Limited Partnership and do all things to maintain the Partnership as a limited partnership (or a
partnership or other entity in which the limited partners have limited liability) under the laws of
the State of Delaware or of any other state in which the Partnership may elect to do business or
own property. Subject to the terms of Section 3.4(a), the General Partner shall not be required,
before or after filing, to deliver or mail a copy of the Certificate of Limited Partnership, any
qualification document or any amendment thereto to any Limited Partner.
Section 7.3 Restrictions on General Partner’s Authority.
Except as provided in Articles XII and XIV, the General Partner may not sell, exchange or
otherwise dispose of all or substantially all of the assets of the Partnership Group, taken as a
whole, in a single transaction or a series of related transactions (including by way of merger,
consolidation or other combination)or, for so long as the general partner of the MLP constitutes
all or substantially all of the Partnership’s assets, approve on behalf of the Partnership or its
Subsidiaries the sale, exchange or other disposition of all or substantially all of the assets of
the MLP Group without the approval of holders of a Unit Majority; provided however that this
provision shall not preclude or limit the General Partner’s ability to mortgage, pledge,
hypothecate or grant a security interest in all or substantially all of the assets of the
Partnership
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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 majority of Outstanding Units, the 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.
Section 7.4 Reimbursement of the General Partner.
(a) Except as provided in this Section 7.4 and elsewhere in this Agreement, the General
Partner shall not be compensated for its services as general partner or managing member of any
Group Member.
(b) The General Partner shall be reimbursed on a monthly basis, or such other reasonable basis
as the General Partner may determine, for (i) all direct and indirect expenses it incurs or
payments it makes on behalf of the Partnership (including salary, bonus, incentive compensation and
other amounts paid to any Person including Affiliates of the General Partner to perform services
for the Partnership or for the General Partner in the discharge of its duties to the Partnership),
and (ii) all other expenses allocable to the Partnership or otherwise incurred by the General
Partner in connection with operating the Partnership’s business (including expenses allocated to
the General Partner by its Affiliates). The General Partner shall determine the expenses that are
allocable to the Partnership. Reimbursements pursuant to this Section 7.4 shall be in addition to
any reimbursement to the General Partner as a result of indemnification pursuant to Section 7.7.
(c) The General Partner, without the approval of the Limited Partners (who shall have no right
to vote in respect thereof), may propose and adopt on behalf of the Partnership employee benefit
plans, employee programs and employee practices (including plans, programs and practices involving
the issuance of Partnership Securities or options to purchase or rights, warrants or appreciation
rights relating to Partnership Securities), or cause the Partnership to issue Partnership
Securities in connection with, or pursuant to, any employee benefit plan, employee program or
employee practice maintained or sponsored by the General Partner or any one of its Affiliates, in
each case for the benefit of employees of the General Partner, any Group Member or any Affiliate,
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 General Partner or any of its
Affiliates any Partnership Securities that the General Partner or such Affiliate is obligated to
provide to any employees pursuant to any such employee benefit plans, employee programs or employee
practices. Expenses incurred by the General Partner in connection with any such plans, programs
and practices (including the net cost to the General Partner or such Affiliate of Partnership
Securities purchased by the General Partner or such Affiliate from the Partnership to fulfill
options or awards under such plans, programs and practices) shall be reimbursed in accordance with
Section 7.4(b). Any and all obligations of the General Partner under any employee benefit plans,
employee programs or employee practices adopted by the General Partner as permitted by this Section
7.4(c) shall constitute obligations of the General Partner hereunder and shall be assumed by any
successor General Partner approved pursuant to Section 11.1 or 11.2 or the transferee of or
successor to all of the General Partner’s General Partner Interest.
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Section 7.5 Outside Activities.
(a) After the Closing Date, the General Partner, for so long as it is the general partner of
the Partnership (i) agrees that its sole business will be to act as the 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 managing 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 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) Except as specifically restricted by Section 7.5(a) and the Omnibus Agreement, each Group
Member and Indemnitee other than the 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
expressed or implied by law to any Group Member or any Partner. Neither any Group Member, any
Limited Partner nor any other Person shall have any rights by virtue of this Agreement, the MLP
Agreement or the partnership relationship established hereby or thereby in any business ventures of
any Group Member or any Indemnitee.
(c) Subject to the terms of Sections 7.5(a) and 7.5(b) and the Omnibus Agreement, but
otherwise notwithstanding anything to the contrary in this Agreement, (i) the engaging in
competitive activities by any Group Member or any Indemnitee in accordance with the provisions of
this Section 7.5 is hereby approved by the Partnership and all Partners, (ii) it shall be deemed
not to be a breach of any fiduciary duties or any other obligation of any type whatsoever of the
General Partner for any Group Member or any Indemnitee to engage in such business interests and
activities in preference to or to the exclusion of the Partnership and (iii) none of the General
Partner, any Group Member nor any Indemnitee shall have any obligation hereunder or as a result of
any duty expressed or implied by law to present business opportunities to the Partnership, any
other Group Member or any Indemnitee.
(d) The General Partner and any of its Affiliates may acquire Units or other Partnership
Securities in addition to those acquired on the Closing Date and, except as otherwise provided in
this Agreement, shall be entitled to exercise all rights of a General Partner or Limited Partner,
as applicable, relating to such Units or Partnership Securities.
(e) The term “Affiliates” when used in Section 7.5(d) with respect to the General Partner
shall not include any Group Member or any Subsidiary of the Group Member.
(f) Anything in this Agreement to the contrary notwithstanding, to the extent that any
provision of this Agreement purports or is interpreted to have the effect of restricting the
fiduciary duties that might otherwise, as a result of Delaware or other applicable law, be owed by
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the General Partner to the Partnership and its Limited Partners, or to constitute a waiver or
consent by the Limited Partners to any such restriction, such provisions shall be inapplicable and
have no effect in determining whether the General Partner has complied with its fiduciary duties in
connection with determinations made by it under this Section 7.5.
Section 7.6 Loans from the General Partner; Loans or Contributions from the Partnership;
Contracts with Affiliates; Certain Restrictions on the General Partner.
(a) The 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 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 General Partner may determine; provided, however, that in any such case the lending
party may not charge the borrowing party interest at a rate greater than the rate that would be
charged the borrowing party or impose terms less favorable to the borrowing party than would be
charged or imposed on the borrowing party by unrelated lenders on comparable loans made on an
arm’s-length basis (without reference to the lending party’s financial abilities or guarantees) all
as determined by the General Partner. The borrowing party shall reimburse the lending party for
any costs (other than any additional interest costs) incurred by the lending party in connection
with the borrowing of such funds. For purposes of this Section 7.6(a) and Section 7.6(b), the term
“Group Member” shall include any Affiliate of a Group Member that is controlled by the Group
Member. No Group Member may lend funds to the General Partner or any of its Affiliates (other than
another Group Member).
(b) The Partnership may lend or contribute to any Group Member, and any Group Member may
borrow from the Partnership, funds on terms and conditions determined by the General Partner
provided, however, that the Partnership may not charge the Group Member interest at a rate less
than the rate that would be charged to the Group Member (without reference to the General Partner’s
financial abilities or guarantees) by unrelated lenders on comparable loans. The foregoing
authority shall be exercised by the General Partner in its sole discretion and shall not create any
right or benefit in favor of any Group Member or any other Person.
Section 7.7 Indemnification.
(a) To the fullest extent permitted by law but subject to the limitations expressly provided
in this Agreement, all Indemnitees shall be indemnified and held harmless by the Partnership from
and against any and all losses, claims, damages, liabilities, joint or several, expenses (including
legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts
arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which any Indemnitee may be involved, or is threatened to be
involved, as a party or otherwise, by reason of its status as an Indemnitee; provided, that the
Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable
judgment entered by a court of competent jurisdiction determining that, in respect of the matter
for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, the Indemnitee
acted in bad faith or engaged in fraud, willful misconduct, or in the case of a criminal matter,
acted with knowledge that the Indemnitee’s conduct was unlawful; provided, further, no
indemnification pursuant to this Section 7.7 shall be available to the General Partner or its
Affiliates (other than a Group Member) with respect to its or their obligations incurred
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pursuant to the Underwriting Agreement (other than obligations incurred by the General Partner
on behalf of the Partnership). Any indemnification pursuant to this Section 7.7 shall be made only
out of the assets of the Partnership, it being agreed that the General Partner shall not be
personally liable for such indemnification and shall have no obligation to contribute or loan any
monies or property to the Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses)
incurred by an Indemnitee who is indemnified pursuant to Section 7.7(a) in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the Partnership prior
to a determination that the Indemnitee is not entitled to be indemnified upon receipt by the
Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall
be determined that the Indemnitee is not entitled to be indemnified as authorized in this Section
7.7.
(c) The indemnification provided by this Section 7.7 shall be in addition to any other rights
to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the holders of
Outstanding Limited Partner Interests entitled to vote on such matter, as a matter of law or
otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in
any other capacity (including any capacity under the Underwriting Agreement), and shall continue as
to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the
heirs, successors, assigns and administrators of the Indemnitee.
(d) The Partnership may purchase and maintain (or reimburse the General Partner or its
Affiliates for the cost of) insurance, on behalf of the General Partner, its Affiliates and such
other Persons as the General Partner shall determine, against any liability that may be asserted
against, or expense that may be incurred by, such Person in connection with the Partnership’s
activities or such Person’s activities on behalf of the Partnership, regardless of whether the
Partnership would have the power to indemnify such Person against such liability under the
provisions of this Agreement.
(e) For purposes of this Section 7.7, the Partnership shall be deemed to have requested an
Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its
duties to the Partnership also imposes duties on, or otherwise involves services by, it to the plan
or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect
to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning
of Section 7.7(a); and action taken or omitted by it with respect to any employee benefit plan in
the performance of its duties for a purpose reasonably believed by it to be in the best interest of
the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the
best interests of the Partnership.
(f) In no event may an Indemnitee subject the Limited Partners to personal liability by reason
of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section
7.7 because the Indemnitee had an interest in the transaction with respect to which the
indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
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(h) The provisions of this Section 7.7 are for the benefit of the Indemnitees, their heirs,
successors, assigns and administrators and shall not be deemed to create any rights for the benefit
of any other Persons.
(i) No amendment, modification or repeal of this Section 7.7 or any provision hereof shall in
any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be
indemnified by the Partnership, nor the obligations of the Partnership to indemnify any such
Indemnitee under and in accordance with the provisions of this Section 7.7 as in effect immediately
prior to such amendment, modification or repeal with respect to claims arising from or relating to
matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless
of when such claims may arise or be asserted.
Section 7.8 Liability of Indemnitees.
(a) Notwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall
be liable for monetary damages to the Partnership, the Limited Partners or any other Persons who
have acquired interests in the Partnership Securities, for losses sustained or liabilities incurred
as a result of any act or omission of an Indemnitee unless there has been a final and
non-appealable judgment entered by a court of competent jurisdiction determining that, in respect
of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful
misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct
was criminal.
(b) Subject to its obligations and duties as General Partner set forth in Section 7.1(a), the
General Partner may exercise any of the powers granted to it by this Agreement and perform any of
the duties imposed upon it hereunder either directly or by or through its agents, and the General
Partner shall not be responsible for any misconduct or negligence on the part of any such agent
appointed by the General Partner in good faith.
(c) To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary
duties) and liabilities relating thereto to the Partnership or to the Partners, the General Partner
and any other Indemnitee acting in connection with the Partnership’s business or affairs shall not
be liable to the Partnership or to any Partner for its good faith reliance on the provisions of
this Agreement.
(d) Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be
prospective only and shall not in any way affect the limitations on the liability of the
Indemnitees under this Section 7.8 as in effect immediately prior to such amendment, modification
or repeal with respect to claims arising from or relating to matters occurring, in whole or in
part, prior to such amendment, modification or repeal, regardless of when such claims may arise or
be asserted, and provided such Person became an Indemnitee hereunder prior to such amendment,
modification or repeal.
Section 7.9 Resolution of Conflicts of Interest; Standards of Conduct and Modification of
Duties.
(a) Unless otherwise expressly provided in this Agreement, whenever a potential conflict of
interest exists or arises between the General Partner or any of its Affiliates,
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on the one hand, and the Partnership, any Group Member or any Partner, on the other, any
resolution or course of action by the General Partner or its 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 or of any agreement contemplated herein or therein, or of any duty stated
or implied by law or equity, if the resolution or course of action in respect of such conflict of
interest is (i) approved by Special Approval, (ii) approved by the vote of a majority of the Common
Units (excluding Common Units owned by the General Partner and its Affiliates), (iii) on terms no
less favorable to the Partnership than those generally being provided to or available from
unrelated third parties or (iv) fair and reasonable to the Partnership, taking into account the
totality of the relationships between the parties involved (including other transactions that may
be particularly favorable or advantageous to the Partnership). The General Partner shall be
authorized but not required in connection with its resolution of such conflict of interest to seek
Special Approval of such resolution, and the General Partner may also adopt a resolution or course
of action that has not received Special Approval. If Special Approval is not sought and the Board
of Directors of the General Partner determines that the resolution or course of action taken with
respect to a conflict of interest satisfies either of the standards set forth in clauses (iii) or
(iv) above, then it shall be presumed that, in making its decision, the Board of Directors acted in
good faith, and in any proceeding brought by any Limited Partner or by or on behalf of such Limited
Partner or any other Limited Partner or the Partnership challenging such approval, the Person
bringing or prosecuting such proceeding shall have the burden of overcoming such presumption.
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 the General Partner makes a determination or takes or declines to take any other
action, or any of its Affiliates causes it to do so, in its capacity as the general partner of the
Partnership as opposed to in its individual capacity, whether under this Agreement, 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 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 or the holders
of Common Units (other than the General Partner and its Affiliates) as the case may be.
(c) Whenever the General Partner makes a determination or takes or declines to take any other
action, or any of its Affiliates causes it to do so, in its individual capacity as opposed to in
its capacity as a general partner of the Partnership, whether under this Agreement or any other
agreement contemplated hereby or otherwise, then the General Partner, or such Affiliates causing it
to do so, are entitled to make such determination or to take or decline to take such other action
free of any fiduciary duty or obligation whatsoever to the Partnership, any Limited Partner, and
the General Partner, or such Affiliates causing it to do so, shall not be required to act in good
faith or pursuant to any other standard imposed by this Agreement, any other agreement contemplated
hereby or under the Delaware Act or any other law, rule or
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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.
(d) Notwithstanding anything to the contrary in this Agreement, the General Partner and its
Affiliates shall have no duty or obligation, express or implied, to (i) sell or otherwise dispose
of any asset of the Partnership Group other than in the ordinary course of business or (ii) permit
any Group Member to use any facilities or assets of the General Partner and its Affiliates, except
as may be provided in contracts entered into from time to time specifically dealing with such use.
Any determination by the General Partner or any of its Affiliates to enter into such contracts
shall be at its option.
(e) Except as expressly set forth in this Agreement, neither the General Partner nor any other
Indemnitee shall have any duties or liabilities, including fiduciary duties, to the Partnership or
any Limited Partner and the provisions of this Agreement, to the extent that they restrict or
otherwise modify the duties and liabilities, including fiduciary duties, of the General Partner or
any other Indemnitee otherwise existing at law or in equity, are agreed by the Partners to replace
such other duties and liabilities of the General Partner or such other Indemnitee.
(f) The Unitholders hereby authorize the General Partner, on behalf of the Partnership as a
partner or member of a Group Member, to approve of actions by the general partner or managing
member of such Group Member similar to those actions permitted to be taken by the General Partner
pursuant to this Section 7.9.
Section 7.10 Other Matters Concerning the General Partner.
(a) The General Partner may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
(b) The General Partner may consult with legal counsel, accountants, appraisers, management
consultants, investment bankers and other consultants and advisers selected by it, and any act
taken or omitted to be taken in reliance upon the opinion (including an Opinion of Counsel) of such
Persons as to matters that the General Partner reasonably believes to be within such Person’s
professional or expert competence shall be conclusively presumed to have been done or omitted in
good faith and in accordance with such opinion.
(c) The General Partner shall have the right, in respect of any of its powers or obligations
hereunder, to act through any of its duly authorized officers, a duly appointed attorney or
attorneys-in-fact or the duly authorized officers of the Partnership. Each such attorney shall, to
the extent provided by the General Partner in the power of attorney, have full power and authority
to do and perform each and every act and duty that is permitted or required to be done by the
General Partner hereunder.
Section 7.11 Purchase or Sale of Partnership Securities.
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The General Partner may cause the Partnership to purchase or otherwise acquire Partnership
Securities. As long as Partnership Securities are held by any Group Member, such Partnership
Securities shall not be considered Outstanding for any purpose, except as otherwise provided
herein. The General Partner or any of its Affiliates may also purchase or otherwise acquire and
sell or otherwise dispose of Partnership Securities for their own account, subject to the
provisions of Articles IV and X.
Section 7.12 Registration Rights of the General Partner and its Affiliates.
(a) If (i) the General Partner or any Affiliate of the General Partner (including for purposes
of this Section 7.12, any Person that is an Affiliate of the General Partner at the date hereof
notwithstanding that it may later cease to be an Affiliate of the General Partner) holds
Partnership Securities that it desires to sell and (ii) Rule 144 of the Securities Act (or any
successor rule or regulation to Rule 144) or another exemption from registration is not available
to enable such holder of Partnership Securities (the “Holder”) to dispose of the number of
Partnership Securities it desires to sell at the time it desires to do so without registration
under the Securities Act, then at the option and upon the request of the Holder, the Partnership
shall file with the Commission as promptly as practicable after receiving such request, and use
reasonable efforts to cause to become effective and remain effective for a period of not less than
six months following its effective date or such shorter period as shall terminate when all
Partnership Securities covered by such registration statement have been sold, a registration
statement under the Securities Act registering the offering and sale of the number of Partnership
Securities specified by the Holder; provided, however, that the Partnership shall not be required
to effect more than three registrations pursuant to this Section 7.12(a) and Section 7.12(b); and
provided further, however, that if the Conflicts Committee determines in good faith that the
requested registration would be materially detrimental to the Partnership and its Partners because
such registration would (x) materially interfere with a significant acquisition, reorganization or
other similar transaction involving the Partnership or the MLP, (y) require premature disclosure of
material information that the Partnership has a bona fide business purpose for preserving as
confidential or (z) render the Partnership unable to comply with requirements under applicable
securities laws, then the Partnership shall have the right to postpone such requested registration
for a period of not more than six months after receipt of the Holder’s request, such right pursuant
to this Section 7.12(a) or Section 7.12(b) not to be utilized more than once in any twelve-month
period. Except as provided in the preceding sentence, the Partnership shall be deemed not to have
used reasonable efforts to keep the registration statement effective during the applicable period
if it voluntarily takes any action that would result in Holders of Partnership Securities covered
thereby not being able to offer and sell such Partnership Securities at any time during such
period, unless such action is required by applicable law. In connection with any registration
pursuant to the first sentence of this Section 7.12(a), 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
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acts and things that may be necessary or appropriate to enable the Holder to consummate a
public sale of such Partnership Securities in such states. Except as set forth in Section 7.12(d),
all costs and expenses of any such registration and offering (other than the underwriting discounts
and commissions) shall be paid by the Partnership, without reimbursement by the Holder.
(b) If any Holder holds Partnership Securities that it desires to sell and Rule 144 of the
Securities Act (or any successor rule or regulation to Rule 144) or another exemption from
registration is not available to enable such Holder to dispose of the number of Partnership
Securities it desires to sell at the time it desires to do so without registration under the
Securities Act, then at the option and upon the request of the Holder, the Partnership shall file
with the Commission as promptly as practicable after receiving such request, and use all reasonable
efforts to cause to become effective and remain effective for a period of not less than six months
following its effective date or such shorter period as shall terminate when all Partnership
Securities covered by such shelf registration statement have been sold, a “shelf” registration
statement covering the Partnership Securities specified by the Holder on an appropriate form under
Rule 415 under the Securities Act, or any similar rule that may be adopted by the Commission;
provided, however, that the Partnership shall not be required to effect more than three
registrations pursuant to Section 7.12(a) and this Section 7.12(b); and provided further, however,
that if the Audit and Conflicts Committee determines in good faith that any offering under, or the
use of any prospectus forming a part of, the shelf registration statement would be materially
detrimental to the Partnership and its Partners because such offering or use would (x) materially
interfere with a significant acquisition, reorganization or other similar transaction involving the
Partnership or the MLP, (y) require premature disclosure of material information that the
Partnership has a bona fide business purpose for preserving as confidential or (z) render the
Partnership unable to comply with requirements under applicable securities laws, then the
Partnership shall have the right to suspend such offering or use for a period of not more than six
months after receipt of the Holder’s request, such right pursuant to Section 7.12(a) or this
Section 7.12(b) not to be utilized more than once in any twelve-month period. Except as provided
in the preceding sentence, the Partnership shall be deemed not to have used all reasonable efforts
to keep the shelf registration statement effective during the applicable period if it voluntarily
takes any action that would result in Holders of Partnership Securities covered thereby not being
able to offer and sell such Partnership Securities at any time during such period, unless such
action is required by applicable law. In connection with any shelf registration pursuant to this
Section 7.12(b), the Partnership shall (i) promptly prepare and file (A) such documents as may be
necessary to register or qualify the securities subject to such shelf registration under the
securities laws of such states as the Holder shall reasonably request; provided, however, that no
such qualification shall be required in any jurisdiction where, as a result thereof, the
Partnership would become subject to general service of process or to taxation or qualification to
do business as a foreign corporation or partnership doing business in such jurisdiction solely as a
result of such shelf registration, and (B) such documents as may be necessary to apply for listing
or to list the Partnership Securities subject to such shelf registration on such National
Securities Exchange as the Holder shall reasonably request, and (ii) do any and all other acts and
things that may be necessary or appropriate to enable the Holder to consummate a public sale of
such Partnership Securities in such states. Except as set forth in Section 7.12(d), all costs and
expenses of any such shelf registration and offering (other than the underwriting discounts and
commissions) shall be paid by the Partnership, without reimbursement by the Holder.
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(c) If the Partnership shall at any time propose to file a registration statement under the
Securities Act for an offering of equity securities of the Partnership for cash (other than an
offering relating solely to an employee benefit plan), the Partnership shall use all reasonable
efforts to include such number or amount of securities held by the Holder in such registration
statement as the Holder shall request; provided, that the Partnership is not required to make any
effort or take an action to so include the securities of the Holder once the registration statement
is declared effective by the Commission, including any registration statement providing for the
offering from time to time of securities pursuant to Rule 415 of the Securities Act. If the
proposed offering pursuant to this Section 7.12(c) shall be an underwritten offering, then, in the
event that the managing underwriter or managing underwriters of such offering advise the
Partnership and the Holder in writing that in their opinion the inclusion of all or some of the
Holder’s Partnership Securities would adversely and materially affect the success of the offering,
the Partnership shall include in such offering only that number or amount, if any, of securities
held by the Holder that, in the opinion of the managing underwriter or managing underwriters, will
not so adversely and materially affect the offering. Except as set forth in Section 7.12(d), all
costs and expenses of any such registration and offering (other than the underwriting discounts and
commissions) shall be paid by the Partnership, without reimbursement by the Holder.
(d) If underwriters are engaged in connection with any registration referred to in this
Section 7.12, the Partnership shall provide indemnification, representations, covenants, opinions
and other assurance to the underwriters in form and substance reasonably satisfactory to such
underwriters. Further, in addition to and not in limitation of the Partnership’s obligation under
Section 7.7, the Partnership shall, to the fullest extent permitted by law, indemnify and hold
harmless the Holder, its officers, directors and each Person who controls the Holder (within the
meaning of the Securities Act) and any agent thereof (collectively, “Indemnified Persons”) from and
against any and all losses, claims, damages, liabilities, joint or several, expenses (including
legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts
arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal,
administrative or investigative, in which any Indemnified Person may be involved, or is threatened
to be involved, as a party or otherwise, under the Securities Act or otherwise (hereinafter
referred to in this Section 7.12(d) as a “claim” and in the plural as “claims”) based upon, arising
out of or resulting from any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which any Partnership Securities were registered
under the Securities Act or any state securities or Blue Sky laws, in any preliminary prospectus
(if used prior to the effective date of such registration statement), or in any summary or final
prospectus or in any amendment or supplement thereto (if used during the period the Partnership is
required to keep the registration statement current), or arising out of, based upon or resulting
from the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements made therein not misleading; provided, however, that
the Partnership shall not be liable to any Indemnified Person to the extent that any such claim
arises out of, is based upon or results from an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, such preliminary, 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.
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(e) The provisions of Sections 7.12(a), 7.12(b) and 7.12(c) shall continue to be applicable
with respect to the General Partner (and any of the General Partner’s Affiliates) after it ceases
to be a Partner of the Partnership, during a period of two years subsequent to the effective date
of such cessation and for so long thereafter as is required for the Holder to sell all of the
Partnership Securities with respect to which it has requested during such two-year period inclusion
in a registration statement otherwise filed or that a registration statement be filed; provided,
however, that the Partnership shall not be required to file successive registration statements
covering the same Partnership Securities for which registration was demanded during such two-year
period. The provisions of Section 7.12(d) shall continue in effect thereafter.
(f) The rights to cause the Partnership to register Partnership Securities pursuant to this
Section 7.12 may be assigned (but only with all related obligations) by a Holder to a transferee or
assignee of such Partnership Securities, provided (i) the Partnership is, within a reasonable time
after such transfer, furnished with written notice of the name and address of such transferee or
assignee and the Partnership Securities with respect to which such registration rights are being
assigned; and (ii) such transferee or assignee agrees in writing to be bound by and subject to the
terms set forth in this Section 7.12.
(g) Any request to register Partnership Securities pursuant to this Section 7.12 shall (i)
specify the Partnership Securities intended to be offered and sold by the Person making the
request, (ii) express such Person’s present intent to offer such Partnership Securities for
distribution, (iii) describe the nature or method of the proposed offer and sale of Partnership
Securities, and (iv) contain the undertaking of such Person to provide all such information and
materials and take all action as may be required in order to permit the Partnership to comply with
all applicable requirements in connection with the registration of such Partnership Securities.
Section 7.13 Reliance by Third Parties.
Notwithstanding anything to the contrary in this Agreement, any Person dealing with the
Partnership shall be entitled to assume that the General Partner and any officer of the General
Partner authorized by the General Partner to act on behalf of and in the name of the Partnership
has full power and authority to encumber, sell or otherwise use in any manner any and all assets of
the Partnership and to enter into any authorized contracts on behalf of the Partnership, and such
Person shall be entitled to deal with the General Partner or any such officer as if it were the
Partnership’s sole party in interest, both legally and beneficially. Each Limited Partner hereby
waives any and all defenses or other remedies that may be available against such Person to contest,
negate or disaffirm any action of the General Partner or any such officer in connection with any
such dealing. In no event shall any Person dealing with the General Partner or any such officer or
its representatives be obligated to ascertain that the terms of the Agreement have been complied
with or to inquire into the necessity or expedience of any act or action of the General Partner or
any such officer or its representatives. Each and every certificate, document or other instrument
executed on behalf of the Partnership by the General Partner or any such officer 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
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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
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 8.1 Records and Accounting.
The General Partner shall keep or cause to be kept at the principal office of the Partnership
appropriate books and records with respect to the Partnership’s business, including all books and
records necessary to provide to the Limited Partners any information required to be provided
pursuant to Section 3.4(a). Any books and records maintained by or on behalf of the Partnership in
the regular course of its business, including the record of the Record Holders of Units or other
Partnership Securities, books of account and records of Partnership proceedings, may be kept on, or
be in the form of, computer disks, hard drives, punch cards, magnetic tape, photographs,
micrographics or any other information storage device; provided, that the books and records so
maintained are convertible into clearly legible written form within a reasonable period of time.
The books of the Partnership shall be maintained, for financial reporting purposes, on an accrual
basis in accordance with U.S. GAAP.
Section 8.2 Fiscal Year.
The fiscal year of the Partnership shall be a calendar year ending December 31.
Section 8.3 Reports.
(a) As soon as practicable, but in no event later than 120 days after the close of each fiscal
year of the Partnership, the General Partner shall cause to be furnished or made available to each
Record Holder of a Unit as of a date selected by the General Partner, an annual report containing
financial statements of the Partnership for such fiscal year of the Partnership, presented in
accordance with U.S. GAAP, including a balance sheet and statements of operations, Partnership
equity and cash flows, such statements to be audited by a firm of independent public accountants
selected by the General Partner.
(b) As soon as practicable, but in no event later than 90 days after the close of each Quarter
except the last Quarter of each fiscal year, the General Partner shall cause to be furnished or
made available to each Record Holder of a Unit, as of a date selected by the General Partner, a
report containing unaudited financial statements of the Partnership and such other information as
may be required by applicable law, regulation or rule of any National Securities Exchange on which
the Units are listed or admitted for trading, or as the General Partner determines to be necessary
or appropriate.
ARTICLE IX
TAX MATTERS
TAX MATTERS
Section 9.1 Tax Returns and Information.
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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 a taxable year
ending on December 31. The tax information reasonably required by Record Holders for federal and
state income tax reporting purposes with respect to a taxable year shall be furnished to them
within 90 days of the close of the calendar year in which the Partnership’s taxable year ends. The
classification, realization and recognition of income, gain, losses and deductions and other items
shall be on the accrual method of accounting for federal income tax purposes.
Section 9.2 Tax Elections.
(a) The Partnership shall make the election under Section 754 of the Code in accordance with
applicable regulations thereunder, subject to the reservation of the right to seek to revoke any
such election upon the General Partner’s determination that such revocation is in the best
interests of the Limited Partners. Notwithstanding any other provision herein contained, for the
purposes of computing the adjustments under Section 743(b) of the Code, the General Partner shall
be authorized (but not required) to adopt a convention whereby the price paid by a transferee of a
Limited Partner Interest will be deemed to be the lowest quoted closing price of the Limited
Partner Interests on any National Securities Exchange on which such Limited Partner Interests are
listed or admitted for trading during the calendar month in which such transfer is deemed to occur
pursuant to Section 6.2(g) without regard to the actual price paid by such transferee.
(b) Except as otherwise provided herein, the General Partner shall determine whether the
Partnership should make any other elections permitted by the Code.
Section 9.3 Tax Controversies.
Subject to the provisions hereof, the General Partner is designated as the Tax Matters Partner
(as defined in the Code) and is authorized and required to represent the Partnership (at the
Partnership’s expense) in connection with all examinations of the Partnership’s affairs by tax
authorities, including resulting administrative and judicial proceedings, and to expend Partnership
funds for professional services and costs associated therewith. Each Partner agrees to cooperate
with the General Partner and to do or refrain from doing any or all things reasonably required by
the General Partner to conduct such proceedings.
Section 9.4 Withholding.
Notwithstanding any other provision of this Agreement, the General Partner is authorized to
take any action that may be required to cause the Partnership to comply with any withholding
requirements established under the Code or any other federal, state or local law including, without
limitation, 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, without
limitation, by reason of Section 1446 of the Code), the General Partner may treat the amount
withheld as a distribution of cash pursuant to Section 6.3 in the amount of such withholding from
such Partner.
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ARTICLE X
ADMISSION OF PARTNERS
ADMISSION OF PARTNERS
Section 10.1 Admission of Initial Limited Partner.
(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 a merger or consolidation pursuant
to Article XIV, and except as provided in Section 4.8, 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, with or without
execution of this Agreement, (ii) shall become bound by the terms of, and shall be deemed to have
executed, this Agreement, (iii) shall become the Record Holder of the Limited Partner Interests so
transferred, (iv) represents that the transferee 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 and waivers contained in this Agreement. The transfer of any Limited Partner Interests
and the admission of any new Limited Partner shall not constitute an amendment to this Agreement.
A Person may become a Record Holder of a Limited Partner Interest without the consent or approval
of any of the Partners. A Person may not become a Limited Partner without acquiring a Limited
Partner Interest and until such Person is reflected in the books and records of the Partnership as
the Record Holder of such Limited Partner Interest. The rights and obligations of a Person who is
a Non-citizen Assignee shall be determined in accordance with Section 4.8 hereof.
(b) The name and mailing address of each Limited Partner shall be listed on the books and
records of the Partnership maintained for such purpose by the Partnership or the Transfer Agent.
The General Partner shall update the books and records of the Partnership from time to time as
necessary to reflect accurately the information therein (or shall cause the Transfer Agent to do
so, as applicable). A Limited Partner Interest may be represented by a Certificate, as provided in
Section 4.1 hereof.
(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 General Partner.
A successor General Partner approved pursuant to Section 11.1 or 11.2 or the transferee of or
successor to all of the General Partner Interest pursuant to Section 4.6 who is proposed to be
admitted as a successor General Partner shall be admitted to the Partnership as the General Partner
effective immediately prior to the withdrawal or removal of the predecessor or transferring General
Partner pursuant to Section 11.1 or 11.2 or the transfer of such General Partner’s 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
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may be required to effect such admission. Any such successor shall, subject to the terms
hereof, carry on the business of the Partnership without dissolution.
Section 10.3 Amendment of Agreement and Certificate of Limited Partnership.
To effect the admission to the Partnership of any Partner, the General Partner shall take all
steps necessary and appropriate under the Delaware Act to amend the records of the Partnership to
reflect such admission and, if necessary, to prepare as soon as practicable an amendment to this
Agreement and, if required by law, the General Partner shall prepare and file an amendment to the
Certificate of Limited Partnership, and the General Partner may for this purpose, among others,
exercise the power of attorney granted pursuant to Section 2.6.
ARTICLE XI
WITHDRAWAL OR REMOVAL OF PARTNERS
WITHDRAWAL OR REMOVAL OF PARTNERS
Section 11.1 Withdrawal of the General Partner.
(a) The General Partner shall be deemed to have withdrawn from the Partnership upon the
occurrence of any one of the following events (each such event herein referred to as an “Event of
Withdrawal”):
(i) the General Partner voluntarily withdraws from the Partnership by giving written notice to
the other Partners;
(ii) the General Partner transfers all of its rights as General Partner pursuant to Section
4.6;
(iii) the General Partner is removed pursuant to Section 11.2;
(iv) the General Partner (A) makes a general assignment for the benefit of creditors; (B)
files a voluntary bankruptcy petition for relief under Chapter 7 of the United States Bankruptcy
Code; (C) files a petition or answer seeking for itself a liquidation, dissolution or similar
relief (but not a reorganization) under any law; (D) files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against the General Partner in a
proceeding of the type described in clauses (A)-(C) of this Section 11.1(a)(iv); or (E) seeks,
consents to or acquiesces in the appointment of a trustee (but not a debtor-in-possession),
receiver or liquidator of the General Partner or of all or any substantial part of its properties;
(v) a final and non-appealable order of relief under Chapter 7 of the United States Bankruptcy
Code is entered by a court with appropriate jurisdiction pursuant to a voluntary or involuntary
petition by or against the General Partner; or
(vi) (A) in the event the General Partner is a corporation, a certificate of dissolution or
its equivalent is filed for the General Partner, or 90 days expire after the date of notice to the
General Partner of revocation of its charter without a reinstatement of its charter, under the laws
of its state of incorporation; (B) in the event the General Partner is a partnership or a limited
liability company, the dissolution and commencement of winding up of the General Partner; (C) in
the event the General Partner is acting in such capacity by virtue of being a trustee
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of a trust, the termination of the trust; (D) in the event the General Partner is a natural
person, his death or adjudication of incompetency; and (E) otherwise in the event of the
termination of the General Partner.
If an Event of Withdrawal specified in Section 11.1(a)(iv), (v) or (vi)(A), (B), (C) or (E)
occurs, the withdrawing General Partner shall give notice to the Limited Partners within 30 days
after such occurrence. The Partners hereby agree that only the Events of Withdrawal described in
this Section 11.1 shall result in the withdrawal of the General Partner from the Partnership.
(b) Withdrawal of the General Partner from the Partnership upon the occurrence of an Event of
Withdrawal shall not constitute a breach of this Agreement under the following circumstances: (i)
at any time during the period beginning on the Closing Date and ending at 12:00 midnight, Eastern
Standard Time, on June 30, 2016, the General Partner voluntarily withdraws by giving at least 90
days’ advance notice of its intention to withdraw to the Limited Partners; provided that prior to
the effective date of such withdrawal, the withdrawal is approved by Unitholders holding at least a
majority of the Outstanding Common Units (excluding Common Units held by the General Partner and
its Affiliates) and the General Partner delivers to the Partnership an Opinion of Counsel
(“Withdrawal Opinion of Counsel”) that such withdrawal (following the selection of the successor
General Partner) would not result in the loss of the limited liability of any Limited Partner or
any Group Member or cause any Group Member to be treated as an association taxable as a corporation
or otherwise to be taxed as an entity for federal income tax purposes (to the extent not previously
treated or taxed as such); (ii) at any time after 12:00 midnight, Eastern Standard Time, on June
30, 2016, the General Partner voluntarily withdraws by giving at least 90 days’ advance notice to
the Unitholders, such withdrawal to take effect on the date specified in such notice; (iii) at any
time that the General Partner ceases to be the General Partner pursuant to Section 11.1(a)(ii) or
is removed pursuant to Section 11.2; or (iv) notwithstanding clause (i) of this sentence, at any
time that the General Partner voluntarily withdraws by giving at least 90 days’ advance notice of
its intention to withdraw to the Limited Partners, such withdrawal to take effect on the date
specified in the notice, if at the time such notice is given one Person and its Affiliates (other
than the General Partner and its Affiliates) own beneficially or of record or control at least 50%
of the Outstanding Units. The withdrawal of the General Partner from the Partnership upon the
occurrence of an Event of Withdrawal shall also constitute the withdrawal of the General Partner as
general partner or managing member, to the extent applicable, of the other Group Members. If the
General Partner gives a notice of withdrawal pursuant to Section 11.1(a)(i), the holders of a Unit
Majority, may, prior to the effective date of such withdrawal, elect a successor General Partner.
The Person so elected as successor General Partner shall automatically become the successor general
partner or managing member, to the extent applicable, of the other Group Members of which the
General Partner is a general partner or a managing member. If, prior to the effective date of the
General Partner’s withdrawal pursuant to Section 11.1(a)(i), a successor is not selected by the
Unitholders as provided herein or the Partnership does not receive a Withdrawal Opinion of Counsel,
the Partnership shall be dissolved in accordance with Section 12.1. Any successor General Partner
elected in accordance with the terms of this Section 11.1 shall be subject to the provisions of
Section 10.2.
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Section 11.2 Removal of the General Partner.
The General Partner may be removed if such removal is approved by the Unitholders holding at
least 66 2/3% of the Outstanding Units (including Units held by the General Partner and its
Affiliates). Any such action by such holders for removal of the General Partner must also provide
for the election of a successor General Partner by the Unitholders holding a majority of
Outstanding Units (including Units held by the General Partner and its Affiliates). Such removal
shall be effective immediately following the admission of a successor General Partner pursuant to
Section 10.2. The removal of the General Partner shall also automatically constitute the removal
of the General Partner as general partner or managing member, to the extent applicable, of the
other Group Members of which the General Partner is a general partner or a managing member. If a
Person is elected as a successor General Partner in accordance with the terms of this Section 11.2,
such Person shall, upon admission pursuant to Section 10.2, automatically become a successor
general partner or managing member, to the extent applicable, of the other Group Members of which
the General Partner is a general partner or a managing member. The right of the holders of
Outstanding Units to remove the General Partner shall not exist or be exercised unless the
Partnership has received an opinion opining as to the matters covered by a Withdrawal Opinion of
Counsel. Any successor General Partner elected in accordance with the terms of this Section 11.2
shall be subject to the provisions of Section 10.2.
Section 11.3 Interest of Departing General Partner and Successor General Partner.
(a) In the event of (i) withdrawal of the General Partner under circumstances where such
withdrawal does not violate this Agreement or (ii) removal of the General Partner by the holders of
Outstanding Units under circumstances where Cause does not exist, if a successor 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 (x) its General Partner Interest and (y) its general
partner interest (or equivalent interest), if any, in the other Group Members ((x) and (y)
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 or, if there is not agreement as to the fair market value of such Combined
Interest at the effective date of departure, within ten (10) days after such fair market value is
determined pursuant to this Section 11.3(a). If the General Partner is removed by the Unitholders
under circumstances where Cause exists or if the General Partner withdraws under circumstances
where such withdrawal violates this Agreement, and if a successor General Partner is elected in
accordance with the terms of Section 11.1 or 11.2 (or if the business of the Partnership is
continued pursuant to Section 12.2 and the successor General Partner is not the former General
Partner), such successor shall have the option, exercisable prior to the effective date of the
departure of such Departing General Partner (or, in the event the business of the Partnership is
continued, prior to the date the business of the Partnership is continued), to purchase the
Combined Interest of the Departing General Partner 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 for the
benefit of the Partnership or the other Group Members.
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For purposes of this Section 11.3(a), the fair market value of a Departing General Partner’s
Combined Interest shall be determined by agreement between the Departing General Partner and its
successor or, failing agreement within 30 days after the effective date of such Departing General
Partner’s departure, by an independent investment banking firm or other independent expert selected
by the Departing General Partner and its successor, which, in turn, may rely on other experts, and
the determination of which shall be conclusive as to such matter. If such parties cannot agree
upon one independent investment banking firm or other independent expert within 45 days after the
effective date of such departure, then the Departing General Partner shall designate an independent
investment banking firm or other independent expert, the Departing General Partner’s successor
shall designate an independent investment banking firm or other independent expert, and such firms
or experts shall mutually select a third independent investment banking firm or independent expert,
which third independent investment banking firm or other independent expert shall determine the
fair market value of the Combined Interest of the Departing General Partner. In making its
determination, such third independent investment banking firm or other independent expert may
consider the then current trading price of Units on any National Securities Exchange on which Units
are then listed or admitted for trading, the value of the Partnership’s assets, the rights and
obligations of the Departing General Partner and other factors it may deem relevant.
(b) If the Combined Interest is not purchased in the manner set forth in Section 11.3(a), the
Departing General Partner (or its transferee) shall become a Limited Partner and its Combined
Interest shall be converted into Common Units pursuant to a valuation made by an investment banking
firm or other independent expert selected pursuant to Section 11.3(a), without reduction in such
Partnership Interest (but subject to proportionate dilution by reason of the admission of its
successor). Any successor General Partner shall indemnify the Departing General Partner (or its
transferee) as to all debts and liabilities of the Partnership arising on or after the date on
which the Departing General Partner (or its transferee) becomes a Limited Partner. For purposes of
this Agreement, conversion of the Combined Interest of the Departing General Partner to Common
Units will be characterized as if such General Partner (or its transferee) contributed its Combined
Interest to the Partnership in exchange for the newly issued Common Units.
Section 11.4 Withdrawal of Limited Partners.
No Limited Partner shall have any right to withdraw from the Partnership; provided, however,
that when a transferee of a Limited Partner’s Limited Partner Interest becomes a Record Holder of
the Limited Partner Interest so transferred, such transferring Limited Partner shall cease to be a
Limited Partner with respect to the Limited Partner Interest so transferred.
ARTICLE XII
DISSOLUTION AND LIQUIDATION
DISSOLUTION AND LIQUIDATION
Section 12.1 Dissolution.
The Partnership shall not be dissolved by the admission of Additional Limited Partners or by
the admission of a successor General Partner in accordance with the terms of this Agreement. Upon
the removal or withdrawal of the General Partner, if a successor General Partner is elected
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pursuant to Section 11.1 or 11.2, the Partnership shall not be dissolved and such successor
General Partner shall continue the business of the Partnership. The Partnership shall dissolve,
and (subject to Section 12.2) its affairs shall be wound up, upon:
(a) an Event of Withdrawal of the General Partner as provided in Section 11.1(a) (other than
Section 11.1(a)(ii)), unless a successor is elected and an Opinion of Counsel is received as
provided in Section 11.1(b) or 11.2 and such successor is admitted to the Partnership pursuant to
Section 10.2;
(b) an election to dissolve the Partnership by the General Partner that is approved by the
holders of a Unit Majority;
(c) the entry of a decree of judicial dissolution of the Partnership pursuant to the
provisions of the Delaware Act; or
(d) at any time there are no Limited Partners, unless the Partnership is continued without
dissolution in accordance with the Delaware Act.
Section 12.2 Continuation of the Business of the Partnership After Dissolution.
Upon (a) dissolution of the Partnership following an Event of Withdrawal caused by the
withdrawal or removal of the General Partner as provided in Section 11.1(a)(i) or (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 Partnership on the same terms and conditions set forth in this Agreement by
appointing as a the successor General Partner a Person approved by the holders of a Unit Majority.
Unless such an election is made within the applicable time period as set forth above, the
Partnership shall conduct only activities necessary to wind up its affairs. If such an election is
so made, then:
(i) the Partnership shall continue without dissolution unless earlier dissolved in accordance
with this Article XII;
(ii) if the successor General Partner is not the former General Partner, then the interest of
the former General Partner shall be treated in the manner provided in Section 11.3; and
(iii) the successor General Partner shall be admitted to the Partnership as General Partner,
effective as of the Event of Withdrawal, by agreeing in writing to be bound by this Agreement;
provided, that the right of the holders of a Unit Majority to approve a successor General Partner
and to continue the business of the Partnership shall not exist and may not be exercised unless the
Partnership has received an Opinion of Counsel that (x) the exercise of the right would not result
in the loss of limited liability of any Limited Partner and (y) neither the Partnership nor the MLP
would be treated as an association taxable as a corporation or otherwise be taxable as an entity
for federal income tax purposes upon the exercise of such right to continue (to the extent not
already so treated or taxed).
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Section 12.3 Liquidator.
Upon dissolution of the Partnership, unless the Partnership is continued pursuant to Section
12.2, the General Partner shall select one or more Persons to act as Liquidator. The Liquidator
(if other than the General Partner) shall be entitled to receive such compensation for its services
as may be approved by holders of at least a majority of the Outstanding Common Units voting as a
single class. The Liquidator (if other than the General Partner) shall agree not to resign at any
time without 15 days’ prior notice and may be removed at any time, with or without cause, by notice
of removal approved by holders of at least a majority of the Outstanding Common Units 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 voting as a single class. The right to approve a successor or substitute
Liquidator in the manner provided herein shall be deemed to refer also to any such successor or
substitute Liquidator approved in the manner herein provided. Except as expressly provided in this
Article XII, the Liquidator approved in the manner provided herein shall have and may exercise,
without further authorization or consent of any of the parties hereto, all of the powers conferred
upon the General Partner under the terms of this Agreement (but subject to all of the applicable
limitations, contractual and otherwise, upon the exercise of such powers, other than the limitation
on sale set forth in Section 7.3) necessary or appropriate to carry out the duties and functions of
the Liquidator hereunder for and during the period of time required to complete the winding up and
liquidation of the Partnership as provided for herein.
Section 12.4 Liquidation.
The Liquidator shall proceed to dispose of the assets of the Partnership, discharge its
liabilities, and otherwise wind up its affairs in such manner and over such period as the
Liquidator determines to be in the best interest of the Partners, subject to Section 17-804 of the
Delaware Act and the following:
(a) Disposition of Assets. 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) Discharge of Liabilities. 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
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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) Liquidation Distributions. 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 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.
The General Partner shall not be personally liable for, and shall have no obligation to
contribute or loan any monies or property to the Partnership to enable it to effectuate, the return
of the Capital Contributions of the Limited Partners or Unitholders, or any portion thereof, it
being expressly understood that any such return shall be made solely from Partnership assets.
Section 12.7 Waiver of Partition.
To the maximum extent permitted by law, each Partner hereby waives any right to partition of
the Partnership property.
Section 12.8 Capital Account Restoration.
No Partner shall have any obligation to restore any negative balance in its Capital Account
upon liquidation of the Partnership.
ARTICLE XIII
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE
Section 13.1 Amendments to be Adopted Solely by the General Partner.
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Each Partner agrees that the General Partner, without the approval of any Partner, may amend
any provision of this Agreement and execute, swear to, acknowledge, deliver, file and record
whatever documents may be required in connection therewith, to reflect:
(a) a change in the name of the Partnership, the location of the principal place of business
of the Partnership, the registered agent of the Partnership or the registered office of the
Partnership;
(b) the admission, substitution, withdrawal or removal of Partners in accordance with this
Agreement;
(c) a change that the General Partner determines to be necessary or appropriate to qualify or
continue the qualification of the Partnership as a limited partnership or a partnership in which
the Limited Partners have limited liability under the laws of any state or to ensure that the Group
Members will not be treated as associations taxable as corporations or otherwise taxed as entities
for federal income tax purposes;
(d) a change that the General Partner determines (i) does not adversely affect the Limited
Partners (including any particular class of Partnership Interests as compared to other classes of
Partnership Interests) in any material respect, (ii) to be necessary or appropriate to (A) satisfy
any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or
regulation of any federal or state agency or judicial authority or contained in any federal or
state statute (including the Delaware Act) or (B) facilitate the trading of the Limited Partner
Interests (including the division of any class or classes of Outstanding Limited Partner Interests
into different classes to facilitate uniformity of tax consequences within such classes of Limited
Partner Interests) or comply with any rule, regulation, guideline or requirement of any National
Securities Exchange on which the Limited Partner Interests are or will be listed, (iii) to be
necessary or appropriate in connection with action taken by the General Partner pursuant to Section
5.7 or to implement the tax-related provisions of this Agreement, or (iv) to be 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 General Partner determines to be necessary or appropriate as a result of a change in the fiscal
year or taxable year of the Partnership including, if the General Partner shall so determine, a
change in the definition of “Quarter” and the dates on which distributions are to be made by the
Partnership;
(f) an amendment that is necessary, in the Opinion of Counsel, to prevent the Partnership, or
the General Partner or its directors, officers, trustees or agents from in any manner being
subjected to the provisions of the Investment Company Act of 1940, as amended, the Investment
Advisers Act of 1940, as amended, or “plan asset” regulations adopted under the Employee Retirement
Income Security Act of 1974, as amended, regardless of whether such are substantially similar to
plan asset regulations currently applied or proposed by the United States Department of Labor;
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(g) an amendment that the General Partner determines to be necessary or appropriate in
connection with the authorization of issuance of any class or series of Partnership Securities
pursuant to Section 5.5;
(h) any amendment expressly permitted in this Agreement to be made by the 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 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) an amendment effected, necessitated or contemplated by an amendment to the MLP Agreement
that requires MLP unitholders to provide a statement, certificate or other proof of evidence to the
MLP regarding whether such unitholder is subject to United States federal income tax on the income
generated by the MLP;
(l) a merger or conveyance pursuant to Section 14.3(d); or
(m) 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 General Partner; provided, however, that the General Partner shall have no duty or
obligation to propose any amendment to this Agreement and may decline to do so free of any
fiduciary duty or obligation whatsoever to the Partnership or any Limited Partner and, in declining
to propose an amendment to the fullest extent permitted by law, shall not be required to act in
good faith or pursuant to any other standard imposed by this Agreement, any other agreement
contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity. A
proposed amendment shall be effective upon its approval by the General Partner and the holders of a
Unit Majority, unless a greater or different percentage is required under this Agreement or by
Delaware law. Each proposed amendment that requires the approval of the holders of a specified
percentage of Outstanding Units shall be set forth in a writing that contains the text of the
proposed amendment. If such an amendment is proposed, the General Partner shall seek the written
approval of the requisite percentage of Outstanding Units or call a meeting of the Unitholders to
consider and vote on such proposed amendment. The General Partner shall notify all Record Holders
upon final adoption of any such proposed amendments.
Section 13.3 Amendment Requirements.
(a) Notwithstanding the provisions of Sections 13.1 and 13.2, no provision of this Agreement
that establishes a percentage of Outstanding Units (including Units deemed
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owned by the General Partner and its Affiliates) 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 Limited Partner without its consent, unless such shall be
deemed to have occurred as a result of an amendment approved pursuant to Section 13.3(c) or (ii)
enlarge the obligations of, restrict in any way any action by or rights of, or reduce in any way
the amounts distributable, reimbursable or otherwise payable to the General Partner or any of its
Affiliates without its consent, which consent may be given or withheld at its option.
(c) Except as provided in Section 14.3, and without limitation of the 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 law.
(e) Except as provided in Section 13.1, this Section 13.3 shall only be amended with the
approval of the holders of at least 90% of the Outstanding Units.
Section 13.4 Special Meetings.
All acts of Limited Partners to be taken pursuant to this Agreement shall be taken in the
manner provided in this Article XIII. Special meetings of the Limited Partners may be called by
the General Partner or by Limited Partners owning 20% or more of the Outstanding Partnership
Securities of the class or classes for which a meeting is proposed. Limited Partners shall call a
special meeting by delivering to the General Partner one or more requests in writing stating that
the signing Limited Partners wish to call a special meeting and indicating the general or specific
purposes for which the special meeting is to be called. Within 60 days after receipt of such a
call from Limited Partners or within such greater time as may be reasonably necessary for the
Partnership to comply with any statutes, rules, regulations, listing agreements or similar
requirements governing the holding of a meeting or the solicitation of proxies for use at such a
meeting, the General Partner shall send a notice of the meeting to the Limited Partners either
directly or indirectly through the Transfer Agent. A meeting shall be held at a time and place
determined by the General Partner on a date not less than 10 days nor more than 60 days after the
mailing of notice of the meeting. Limited Partners shall not vote on matters that would cause the
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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 Limited Partner Interests for which a meeting is proposed in writing by
mail or other means of written communication in accordance with Section 16.1. The notice shall be
deemed to have been given at the time when deposited in the mail or sent by other means of written
communication.
Section 13.6 Record Date.
For purposes of determining the Limited Partners entitled to notice of or to vote at a meeting
of the Limited Partners or to give approvals without a meeting as provided in Section 13.11 the
General Partner may set a Record Date, which shall not be less than 10 nor more than 60 days before
(a) the date of the meeting (unless such requirement conflicts with any rule, regulation, guideline
or requirement of any National Securities Exchange on which the Limited Partner Interests are
listed or admitted for trading, in which case the rule, regulation, guideline or requirement of
such exchange shall govern) or (b) in the event that approvals are sought without a meeting, the
date by which Limited Partners are requested in writing by the General Partner to give such
approvals. If the General Partner does not set a Record Date, then (a) the Record Date for
determining the Limited Partners entitled to notice of or to vote at a meeting of the Limited
Partners shall be the close of business on the day immediately preceding the day on which notice is
given, and (b) the Record Date for determining the Limited Partners entitled to give approvals
without a meeting shall be the date the first written approval is deposited with the Partnership in
care of the General Partner in accordance with Section 13.11.
Section 13.7 Adjournment.
When a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting and a new Record Date need not be fixed, if the time and place thereof are
announced at the meeting at which the adjournment is taken, unless such adjournment shall be for
more than 45 days. At the adjourned meeting, the Partnership may transact any business 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 Limited Partners, however called and noticed, and whenever
held, shall be as valid as if it had occurred at a meeting duly held after regular call and notice,
if a quorum is present, either in person or by proxy. Attendance of a Limited Partner at a meeting
shall constitute a waiver of notice of the meeting, except when the Limited Partner attends the
meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened; and except that attendance
at a meeting is not a waiver of any right to disapprove the consideration of
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matters required to be included in the notice of the meeting, but not so included, if the
disapproval is expressly made at the meeting
Section 13.9 Quorum.
The holders of a majority of the Outstanding Partnership Securities of the class or classes
for which a meeting has been called (including Limited Partner Interests deemed owned by the
General Partner) represented in person or by proxy shall constitute a quorum at a meeting of
Limited Partners of such class or classes unless any such action by the Limited Partners requires
approval by holders of a greater percentage of such Limited Partner Interests, in which case the
quorum shall be such greater percentage. At any meeting of the Limited Partners duly called and
held in accordance with this Agreement at which a quorum is present, the act of Limited Partners
holding Outstanding Partnership Securities that in the aggregate represent a majority of the
Outstanding Partnership Securities entitled to vote and be present in person or by proxy at such
meeting shall be deemed to constitute the act of all Limited Partners, unless a greater or
different percentage is required with respect to such action under the provisions of this
Agreement, in which case the act of the Limited Partners holding Outstanding Partnership Securities
that in the aggregate represent at least such greater or different percentage shall be required.
The Limited Partners present at a duly called or held meeting at which a quorum is present may
continue to transact business until adjournment, notwithstanding the withdrawal of enough Limited
Partners to leave less than a quorum, if any action taken (other than adjournment) is approved by
the required percentage of Outstanding Partnership Securities specified in this Agreement
(including Outstanding Partnership Securities deemed owned by the General Partner). In the absence
of a quorum any meeting of Limited Partners may be adjourned from time to time by the affirmative
vote of holders of at least a majority of the Outstanding Partnership Securities entitled to vote
at such meeting (including Outstanding Partnership Securities deemed owned by the General Partner)
represented either in person or by proxy, but no other business may be transacted, except as
provided in Section 13.7.
Section 13.10 Conduct of a Meeting.
The General Partner shall have full power and authority concerning the manner of conducting
any meeting of the Limited Partners or solicitation of approvals in writing, including the
determination of Persons entitled to vote, the existence of a quorum, the satisfaction of the
requirements of Section 13.4, the conduct of voting, the validity and effect of any proxies and the
determination of any controversies, votes or challenges arising in connection with or during the
meeting or voting. The General Partner shall designate a Person to serve as chairman of any
meeting and shall further designate a Person to take the minutes of any meeting. All minutes shall
be kept with the records of the Partnership maintained by the General Partner. The General Partner
may make such other regulations consistent with applicable law and this Agreement as it may deem
advisable concerning the conduct of any meeting of the Limited Partners or solicitation of
approvals in writing, including regulations in regard to the appointment of proxies, the
appointment and duties of inspectors of votes and approvals, the submission and examination of
proxies and other evidence of the right to vote, and the revocation of approvals in writing.
Section 13.11 Action Without a Meeting.
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If authorized by the General Partner, any action that may be taken at a meeting of the Limited
Partners may be taken without a meeting if an approval in writing setting forth the action so taken
is signed by Limited Partners owning not less than the minimum percentage of the Outstanding
Limited Partner Interests (including Limited Partner Interests deemed owned by the General Partner)
that would be necessary to authorize or take such action at a meeting at which all the Limited
Partners were present and voted (unless such provision conflicts with any rule, regulation,
guideline or requirement of any National Securities Exchange on which the Limited Partner Interests
are listed or admitted for trading, in which case the rule, regulation, guideline or requirement of
such exchange shall govern). Prompt notice of the taking of action without a meeting shall be
given to the Limited Partners who have not approved in writing. The General Partner may specify
that any written ballot submitted to Limited Partners for the purpose of taking any action without
a meeting shall be returned to the Partnership within the time period, which shall be not less than
20 days, specified by the General Partner. If a ballot returned to the Partnership does not vote
all of the Limited Partner Interests held by the Limited Partners, the Partnership shall be deemed
to have failed to receive a ballot for the Limited Partner Interests that were not voted. If
approval of the taking of any action by the Limited Partners is solicited by any Person other than
by or on behalf of the General Partner, the written approvals shall have no force and effect unless
and until (a) they are deposited with the Partnership in care of the General Partner, (b) approvals
sufficient to take the action proposed are dated as of a date not more than 90 days prior to the
date sufficient approvals are deposited with the Partnership and (c) an Opinion of Counsel is
delivered to the General Partner to the effect that the exercise of such right and the action
proposed to be taken with respect to any particular matter (i) will not cause the Limited Partners
to be deemed to be taking part in the management and control of the business and affairs of the
Partnership so as to jeopardize the Limited Partners’ limited liability, and (ii) is otherwise
permissible under the state statutes then governing the rights, duties and liabilities of the
Partnership and the Partners.
Section 13.12 Voting and Other Rights.
(a) Only those Record Holders of the Limited Partner Interests on the Record Date set pursuant
to Section 13.6 (and also subject to the limitations contained in the definition of “Outstanding”)
shall be entitled to notice of, and to vote at, a meeting of Limited Partners or to act with
respect to matters as to which the holders of the Outstanding Limited Partner Interests 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 Limited Partner Interests shall be deemed to be references to the votes
or acts of the Record Holders of such Outstanding Limited Partner Interests.
(b) With respect to Limited Partner Interests 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 Limited Partner Interests are registered, such other Person
shall, in exercising the voting rights in respect of such Limited Partner Interests on any matter,
and unless the arrangement between such Persons provides otherwise, vote such Limited Partner
Interests 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.
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ARTICLE XIV
MERGER, CONSOLIDATION OR CONVERSION
MERGER, CONSOLIDATION OR CONVERSION
Section 14.1 Authority.
The Partnership may merge or consolidate with one or more corporations, limited liability
companies, statutory trusts or associations, real estate investment trusts, common law trusts or
unincorporated businesses, including a partnership (whether general or limited (including a limited
liability partnership)) or convert into any such entity, whether such entity is formed under the
laws of the State of Delaware or any other state of the United States of America, pursuant to a
written agreement of merger or consolidation (“Merger Agreement”) or a written plan of conversion
(“Plan of Conversion”), as the case may be, in accordance with this Article XIV.
Section 14.2 Procedure for Merger, Consolidation or Conversion.
(a) Merger, consolidation or conversion of the Partnership pursuant to this Article XIV
requires the prior consent of the General Partner, provided, however, that, to the maximum extent
permitted by law, the General Partner shall have no duty or obligation to consent to any merger,
consolidation or conversion of the Partnership and may decline to do so free of any fiduciary duty
or obligation whatsoever to the Partnership, any Limited Partner and, in declining to consent to a
merger, consolidation or conversion, shall not be required to act in good faith or pursuant to any
other standard imposed by this Agreement, any other agreement contemplated hereby or under the
Delaware Act or any other law, rule or regulation or at equity.
(b) If the General Partner shall determine to consent to the merger or consolidation, the
General Partner shall approve the Merger Agreement, which shall set forth:
(i) the names and jurisdictions of formation or organization of each of the business entities
proposing to merge or consolidate;
(ii) 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”);
(iii) the terms and conditions of the proposed merger or consolidation;
(iv) the manner and basis of exchanging or converting the equity securities of each
constituent business entity for, or into, cash, property or interests, rights, securities or
obligations of the Surviving Business Entity; and (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 interests, rights, securities
or obligations of any general or limited partnership, corporation, trust, limited liability
company, unincorporated business or other entity (other than the Surviving Business Entity) which
the holders of such general or limited partner interests, securities or rights are to receive in
exchange for, or upon conversion of their interests, securities or rights, and (ii) in the case of
securities represented by certificates, upon the surrender of such certificates, which cash,
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property or general or limited partner interests, rights, securities or obligations of the
Surviving Business Entity or any general or limited partnership, corporation, trust, limited
liability company, unincorporated business or other entity (other than the Surviving Business
Entity), or evidences thereof, are to be delivered;
(v) a statement of any changes in the constituent documents or the adoption of new constituent
documents (the articles or certificate of incorporation, articles of trust, declaration of trust,
certificate or agreement of limited partnership, operating agreement or other similar charter or
governing document) of the Surviving Business Entity to be effected by such merger or
consolidation;
(vi) the effective time of the merger, which may be the date of the filing of the certificate
of merger pursuant to Section 14.4 or a later date specified in or determinable in accordance with
the Merger Agreement (provided, that if the effective time of the merger is to be later than the
date of the filing of such certificate of merger, the effective time shall be fixed at a date or
time certain at or prior to the time of the filing of such certificate of merger and stated
therein); and
(vii) such other provisions with respect to the proposed merger or consolidation that the
General Partner determines to be necessary or appropriate.
(c) If the General Partner shall determine to consent to the conversion, the General Partner
may approve and adopt a Plan of Conversion containing such terms and conditions that the General
Partner determines to be necessary or appropriate.
Section 14.3 Approval by Limited Partners.
(a) Except as provided in Section 14.3(d), the General Partner, upon its approval of the
Merger Agreement or Plan of Conversion, as the case may be, shall direct that the Merger Agreement
or the Plan of Conversion, as applicable, be submitted to a vote of Limited Partners, whether at a
special meeting or by written consent, in either case in accordance with the requirements of
Article XIII. A copy or a summary of the Merger Agreement or the Plan of Conversion, as
applicable, shall be included in or enclosed with the notice of a special meeting or the written
consent.
(b) Except as provided in Section 14.3(d), the Merger Agreement or the Plan of Conversion, as
applicable, shall be approved upon receiving the affirmative vote or consent of the holders of a
Unit Majority.
(c) Except as provided in Section 14.3(d), after such approval by vote or consent of the
Limited Partners, and at any time prior to the filing of the certificate of merger or a certificate
of conversion pursuant to Section 14.4, the merger, consolidation or conversion may be abandoned
pursuant to provisions therefor, if any, set forth in the Merger Agreement or the Plan of
Conversion, as the case may be.
(d) Notwithstanding anything else contained in this Article XIV or in this Agreement, the
General Partner is permitted without Limited Partner approval, to convert the Partnership or any
Group Member into a new limited liability entity, to merge the Partnership or
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any Group Member into, or convey all of the Partnership’s assets to, another limited liability
entity which shall be newly formed and shall have no assets, liabilities or operations at the time
of such conversion, merger or conveyance other than those it receives from the Partnership or other
Group Member if (i) the General Partner has received an Opinion of Counsel that the merger or
conveyance, as the case may be, would not result in the loss of the limited liability of any
Limited Partner or cause the Partnership or the MLP 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 Limited Partners and the General
Partner 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 General Partner is permitted, without Limited Partner approval, to merge or
consolidate the Partnership with or into another entity if (i) the General Partner has received an
Opinion of Counsel that the merger or consolidation, as the case may be, would not result in the
loss of the limited liability of any Limited Partner or cause the Partnership to be treated as an
association taxable as a corporation or otherwise to be taxed as an entity for federal income tax
purposes, (ii) the merger or consolidation would not result in an amendment to the Partnership
Agreement, other than any amendments that could be adopted pursuant to Section 13.1, (iii) the
Partnership is the Surviving Business Entity in such merger or consolidation, (iv) each Partnership
Unit outstanding immediately prior to the effective date of the merger or consolidation is to be an
identical Partnership Unit of the Partnership after the effective date of the merger or
consolidation, and (v) the number of Partnership Securities to be issued by the Partnership in such
merger or consolidation do 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.
(a) Upon the required approval, if any, by the General Partner and the Unitholders of a Merger
Agreement or a Plan of Conversion, as the case may be, a certificate of merger or certificate of
conversion, as applicable, shall be executed and filed with the Secretary of State of the State of
Delaware in conformity with the requirements of the Delaware Act.
(b) 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;
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(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.
(c) At the effective time of the certificate of conversion:
(i) the Partnership shall continue to exist, without interruption, but in the organizational
form of the converted entity rather than in its prior organizational form;
(ii) all rights, title, and interests to all real estate and other property owned by the
Partnership shall continue to be owned by the converted entity in its new organizational form
without reversion or impairment, without further act or deed, and without any transfer or
assignment having occurred, but subject to any existing liens or other encumbrances thereon;
(iii) all liabilities and obligations of the Partnership shall continue to be liabilities and
obligations of the converted entity in its new organizational form without impairment or diminution
by reason of the conversion;
(iv) all rights of creditors or other parties with respect to or against the prior interest
holders or other owners of the Partnership in their capacities as such in existence as of the
effective time of the conversion will continue in existence as to those liabilities and obligations
and may be pursued by such creditors and obligees as if the conversion did not occur;
(v) a proceeding pending by or against the Partnership or by or against any of Partners in
their capacities as such may be continued by or against the converted entity in its new
organizational form and by or against the prior partners without any need for substitution of
parties; and
(vi) the Partnership Securities that are to be converted into partnership interests, shares,
evidences of ownership, or other securities in the converted entity as provided in the Plan of
Conversion or certificate of conversion shall be so converted, and Partners shall be entitled only
to the rights provided in the Plan of Conversion or certificate of conversion.
(d) A merger, consolidation or conversion 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.
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 Section 17-211(b) of the Delaware Act may (a) effect any amendment to this
Agreement or (b) effect the adoption of a new partnership agreement for a limited partnership if it
is the Surviving Business Entity. Any such amendment or adoption
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made pursuant to this Section 14.5 shall be effective at the effective time or date of the merger
or consolidation.
ARTICLE XV
RIGHT TO ACQUIRE LIMITED PARTNER INTERESTS
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 less than 12.5% of
the total Limited Partner Interests of any class then Outstanding is held by Persons other than the
General Partner and its Affiliates, the General Partner shall then have the right, which right it
may assign and transfer in whole or in part to the Partnership or any Affiliate of the General
Partner, exercisable at its option, to purchase all, but not less than all, of such Limited Partner
Interests of such class then Outstanding held by Persons other than the General Partner and its
Affiliates, at the greater of (x) the Current Market Price as of the date three days prior to the
date that the notice described in Section 15.1(b) is mailed and (y) the highest price paid by a
General Partner or any of its Affiliates for any such Limited Partner Interest of such class
purchased during the 90-day period preceding the date that the notice described in Section 15.1(b)
is mailed. As used in this Agreement, (i) “Current Market Price” as of any date of any class of
Limited Partner Interests listed or admitted to trading on any National Securities Exchange means
the average of the daily Closing Prices (as hereinafter defined) per limited partner interest of
such class for the 20 consecutive Trading Days (as hereinafter defined) immediately prior to such
date; (ii) “Closing Price” for any day means the last sale price on such day, regular way, or in
case no such sale takes place on such day, the average of the closing bid and asked prices on such
day, regular way, in either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted for trading on the principal National
Securities Exchange on which such Limited Partner Interests of such class are listed or admitted to
trading or, if such Limited Partner Interests of such class are not listed or admitted to trading
on any National Securities Exchange, the last quoted price on such day or, if not so quoted, the
average of the high bid and low asked prices on such day in the over-the-counter market, as
reported by the Nasdaq National Market or any other system then in use, or, if on any such day such
Limited Partner Interests of such class are not quoted by any such organization, the average of the
closing bid and asked prices on such day as furnished by a professional market maker making a
market in such Limited Partner Interests of such class selected by the General Partner, or if on
any such day no market maker is making a market in such Limited Partner Interests of such class,
the fair value of such Limited Partner Interests on such day as determined by the General Partner;
and (iii) “Trading Day” means a day on which the principal National Securities Exchange on which
such Limited Partner Interests of any class are listed or admitted to trading is open for the
transaction of business or, if Limited Partner Interests of a class are not listed or admitted to
trading on any National Securities Exchange, a day on which banking institutions in New York City
generally are open.
(b) If the General Partner, any Affiliate of the General Partner or the Partnership elects to
exercise the right to purchase Limited Partner Interests granted pursuant to Section 15.1(a), the
General Partner shall deliver to the Transfer Agent notice of such election to 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
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such class (as of a Record Date selected by the General Partner) at least 10, but not more
than 60, days prior to the Purchase Date. Such Notice of Election to Purchase shall also be
published for a period of at least three consecutive days in at least two daily newspapers of
general circulation printed in the English language and published in the Borough of Manhattan, New
York. The Notice of Election to Purchase shall specify the Purchase Date and the price (determined
in accordance with Section 15.1(a)) at which Limited Partner Interests will be purchased and state
that the General Partner, its Affiliate or the Partnership, as the case may be, elects to purchase
such Limited Partner Interests, upon surrender of Certificates representing such Limited Partner
Interests in exchange for payment, at such office or offices of the Transfer Agent as the Transfer
Agent may specify, or as may be required by any National Securities Exchange on which such Limited
Partner Interests are listed or admitted for 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 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 Section 15.1(a)) for Limited Partner Interests
therefor, without interest, upon surrender to the Transfer Agent of the Certificates representing
such Limited Partner Interests, and such Limited Partner Interests shall thereupon be deemed to be
transferred to the General Partner, its Affiliate or the Partnership, as the case may be, on the
record books of the Transfer Agent and the Partnership, and the General Partner or any Affiliate of
the General Partner, or the Partnership, as the case may be, shall be deemed to be the owner of all
such Limited Partner Interests from and after the Purchase Date and shall have all rights as the
owner of such Limited Partner Interests (including all rights as owner of such Limited Partner
Interests pursuant to Articles IV, V, VI and XII).
(c) At any time from and after the Purchase Date, a holder of an Outstanding Limited Partner
Interest subject to purchase as provided in this Section 15.1 may surrender his Certificate
evidencing such Limited Partner Interest to the Transfer Agent in exchange for payment of the
amount described in Section 15.1(a), therefor, without interest thereon.
ARTICLE XVI
GENERAL PROVISIONS
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
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report to be given or made to a Partner hereunder shall be deemed conclusively to have been
given or made, and the obligation to give such notice or report or to make such payment shall be
deemed conclusively to have been fully satisfied, upon sending of such notice, payment or report to
the Record Holder of such Partnership Securities at his address as shown on the records of the
Transfer Agent or as otherwise shown on the records of the Partnership, regardless of any claim of
any Person who may have an interest in such Partnership Securities by reason of any assignment or
otherwise. An affidavit or certificate of making of any notice, payment or report in accordance
with the provisions of this Section 16.1 executed by the General Partner, the Transfer Agent or the
mailing organization shall be prima facie evidence of the giving or making of such notice, payment
or report. If any notice, payment or report addressed to a Record Holder at the address of such
Record Holder appearing on the books and records of the Transfer Agent or the Partnership is
returned by the United States Postal Service marked to indicate that the United States Postal
Service is unable to deliver it, such notice, payment or report and any subsequent notices,
payments and reports shall be deemed to have been duly given or made without further mailing (until
such time as such Record Holder or another Person notifies the Transfer Agent or the Partnership of
a change in his address) if they are available for the Partner at the principal office of the
Partnership for a period of one year from the date of the giving or making of such notice, payment
or report to the other Partners. Any notice to the Partnership shall be deemed given if received
by the General Partner at the principal office of the Partnership designated pursuant to Section
2.3. The General Partner may rely and shall be protected in relying on any notice or other
document from a Partner or other Person if believed by it to be genuine.
Section 16.2 Further Action.
The parties shall execute and deliver all documents, provide all information and take or
refrain from taking action as may be necessary or appropriate to achieve the purposes of this
Agreement.
Section 16.3 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
heirs, executors, administrators, successors, legal representatives and permitted assigns.
Section 16.4 Integration.
This Agreement constitutes the entire agreement among the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
Section 16.5 Creditors.
None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable
by, any creditor of the Partnership.
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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
Limited Partner Interest 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.
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.
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 Common Units is expressly permitted by
this Agreement.
[Rest of Page Intentionally Left Blank]
Atlas Pipeline Holdings, L.P.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| GENERAL PARTNER: | ||||||
| ATLAS PIPELINE HOLDINGS GP, LLC | ||||||
| By: | ||||||
| LIMITED PARTNERS: | ||||||
| All Limited Partners now and hereafter admitted as Limited Partners of the Partnership, pursuant to powers of attorney now and hereafter executed in favor of, and granted and delivered to the General Partner or without execution hereof pursuant to Section 10.1(a). | ||||||
| By: | ATLAS PIPELINE HOLDINGS GP, LLC | |||||
| General Partner, as attorney-in-fact for the Limited Partners pursuant to the Powers of Attorney granted pursuant to Section 2.6. | ||||||
| By: | ||||||
Atlas Pipeline Holdings, L.P.
76
