mcep-8k_20200604.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report June 10, 2020
(Date of Earliest Event Reported):  June 4, 2020

MID-CON ENERGY PARTNERS, LP

(Exact name of registrant as specified in its charter)

 

 

 

 

Delaware

001-35374

45-2842469

(State or other jurisdiction

of incorporation)

(Commission

File Number)

(IRS Employer

Identification No.)

 

2431 E. 61st Street, Suite 850
Tulsa, Oklahoma

(Address of principal executive offices)

74136

(Zip code)

(918) 743-7575

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

 

 

 

 

Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

 

 

 

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

 

 

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

 

 

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities Registered pursuant to Section 12(b) of the Act:

 

Title of each class

Trading symbol

Name of each exchange on which registered

Common Units Representing Limited Partner Interests

MCEP

NASDAQ Global Select Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

 

 


Item 1.01

Entry into a Material Definitive Agreement

Amendment No. 15 to Credit Agreement

On June 4, 2020, Mid-Con Energy Partners, LP (the “Partnership”) and its lenders entered into Amendment No. 15 to that certain Credit Agreement, dated as of December 20, 2011 (“Amendment No. 15 to Credit Agreement”), by and among Mid-Con Energy Properties, LLC, as borrower, the Partnership, as guarantor, Wells Fargo Bank, National Association, as administrative agent and collateral agent, and the lenders party thereto, effective as of June 1, 2020.

Amendment No. 15 to Credit Agreement effects the following, among other changes:

 

decreases the Borrowing Base from $95 million to $64 million and establishes a repayment schedule for the Borrowing Base Deficiency;

 

permits the Recapitalization Transactions (as defined below);

 

introduces anti-cash hoarding provisions and restrictive covenants on CapEx and general and administrative spending;

 

provides for all Loans to bear PIK Interest, capitalized on a quarterly basis;

 

excludes certain assumed liabilities from the Current Ratio calculation for the quarters ending June 30, 2020, September 30, 2020, and December 31, 2020; and

 

requires the Partnership’s Leverage Ratio of Consolidated Funded Indebtedness to Consolidated EBITDAX not to exceed:

 

o

5.75 to 1.00 for the quarter ending June 30, 2020,

 

o

5.00 to 1.00 for the quarter ending September 30, 2020,

 

o

4.50 to 1.00 for the quarter ending December 31, 2020, and

 

o

4.25 to 1.00 for the quarter ending March 31, 2021 and thereafter.

To induce the lenders to enter into Amendment No. 15 to Credit Agreement, the Partnership entered into certain other transactions (the “Recapitalization Transactions”), including the adoption of the Third Amendment to Partnership Agreement (as defined below) and the other transactions described herein.

The description of Amendment No. 15 to Credit Agreement contained in this Item 1.01 does not purport to be complete and is subject to and qualified in its entirety by reference to the complete text of Amendment No. 15 to Credit Agreement, which is filed as Exhibit 10.1 hereto and incorporated by reference herein. Unless otherwise defined herein, capitalized terms shall have the meanings set forth in the Credit Agreement.

Contribution Agreement

On June 4, 2020, in connection with the other Recapitalization Transactions, the Partnership entered into a Contribution Agreement (the “Contribution Agreement”) with Charles R. Olmstead, Jeffrey R. Olmstead, and S. Craig George (collectively, the “Contributor Parties”) as holders of all of the then outstanding membership interests (the “Subject Interests”) in the General Partner.

Pursuant to the Contribution Agreement, the Contributor Parties agreed to contribute the Subject Interests to the Partnership in exchange for an aggregate of 18,000 common units representing limited partnership interests of the Partnership (“Common Units”) issued by the Partnership (the “Contribution”). The Contribution Agreement also provided for, among other things, (i) the Partnership Agreement (as defined below) of the Partnership to be amended and restated as the Second A/R Partnership Agreement (as defined below) and (ii) the Second Amended and Restated Limited Liability Company Agreement of the General Partner, dated January 24, 2017 (the “Second A/R GP LLC Agreement”) to be amended and restated as the Third A/R GP LLC Agreement (as defined below).

The description of the Contribution Agreement contained in this Item 1.01 does not purport to be complete and is subject to and qualified in its entirety by reference to the complete text of the Contribution Agreement, which is filed as Exhibit 2.1 hereto and incorporated by reference herein.

2


Services Agreements

On June 4, 2020, in connection with the other Recapitalization Transactions, the Partnership entered into a Management Services Agreement (the “Management Services Agreement”) with Contango Resources, Inc. (“Contango”) to be effective for all purposes as of July 1, 2020.  Under the Management Services Agreement, Contango will provide certain services to the Partnership and its subsidiaries including management, administrative, and operational services, which include marketing, geological and engineering services (such services, collectively, the “Applicable Services”). Under the Management Services Agreement, the Partnership will pay to Contango a monthly service fee, in addition to reimbursing Contango for certain costs and expenses incurred in connection with rendering Applicable Services for the benefit of the Partnership.  The Management Services Agreement also provides that the Partnership will issue a warrant to acquire Common Units of the Partnership to Contango within ten business days following the effective date.

Also on June 4, 2020, the Partnership and Mid-Con Energy Operating, LLC (the “Existing Services Provider”) entered into a Transition Services Agreement (the “Transition Services Agreement”), effective June 1, 2020, pursuant to which the Services Agreement, dated December 20, 2011 (the “Existing Services Agreement”), by and among the Partnership, the General Partner, the Existing Services Provider and Mid-Con Energy Properties, LLC, was terminated, as described in Item 1.02 below, and the Existing Services Provider agreed to continue providing operational services to the Partnership on a transitional basis until Contango is able to fully perform the Applicable Services under the Management Services Agreement. In addition, the Transition Services Agreement provides that, effective as of July 1, 2020, the Existing Services Provider will resign as the operator under certain joint operating agreements and unit operating agreements to which the Partnership is a party and cause Contango to become the operator under such agreements as of such date.

The descriptions of the Management Services Agreement and the Transition Services Agreement contained in this Item 1.01 do not purport to be complete and are subject to and qualified in their entirety by reference to, respectively, the complete text of the Management Services Agreement, which is filed as Exhibit 10.2 hereto and incorporated by reference herein, and the complete text of the Transition Services Agreement, which is filed as Exhibit 10.3 hereto and incorporated by reference herein.

Assignment and Assumption Agreement

On June 4, 2020, in connection with the other Recapitalization Transactions, the Partnership and the Existing Services Provider entered into an Assignment and Assumption Agreement (the “Assignment and Assumption Agreement”), effective June 1, 2020. Under the Assignment and Assumption Agreement, the Partnership agreed to assume and release the Existing Services Provider from certain liabilities arising out of the Existing Services Provider’s performance of its obligations as operator of the Partnership’s properties under the Existing Services Agreement.

The description of the Assignment and Assumption Agreement contained in this Item 1.01 does not purport to be complete and is subject to and qualified in its entirety by reference to the complete text of the Assignment and Assumption Agreement, which is filed as Exhibit 10.4 hereto and incorporated by reference herein.

Item 1.02

Termination of a Material Definitive Agreement

Termination of Existing Services Agreement

On June 4, 2020, as provided in the Transition Services Agreement, the Existing Services Agreement was terminated, effective as of June 1, 2020, to allow for the Partnership to enter into the Management Services Agreement as further set forth in Item 1.01 above. Under the Existing Services Agreement, the Existing Services Provider provided certain management, administrative and operational services to the Partnership and its subsidiaries and was reimbursed by the Partnership, on a monthly basis, for the allocable expenses it incurred in its performance under the Existing Services Agreement. No early termination penalties were incurred by the Partnership in connection with the termination of the Existing Management Services Agreement.

3


Item 3.02

Unregistered Sale of Securities

The description set forth in Item 1.01 above of the issuance by the Partnership of Common Units in connection with the Contribution is incorporated herein by reference. The private placement of Common Units to be issued pursuant to the Contribution Agreement is being made in reliance upon an exemption from the registration requirements of the Securities Act of 1933, as amended, pursuant to Section 4(a)(2) thereunder.

Item 3.03

Material Modification to Rights of Security Holders

The information set forth in Item 5.03 below with respect to the amendment of the Partnership Agreement (as defined below) by the Third Amendment to Partnership Agreement (as defined below) and by the Second A/R Partnership Agreement (as defined below) is incorporated by reference herein.  

The information set forth in Item 5.03 below with respect to the amendment of the Second A/R GP LLC Agreement, by the Third A/R GP LLC Agreement (as defined below) is incorporated by reference herein.

Item 5.01

Change in Control of Registrant

The descriptions set forth in Item 5.03 below with respect to (i) the Third Amendment to Partnership Agreement (as defined below), (ii) the Second A/R Partnership Agreement (as defined below) and the Third A/R GP LLC Agreement (as defined below), are incorporated herein by reference.

Following the Contribution and the adoption of the Second A/R Partnership Agreement and the Third A/R GP LLC Agreement, the board of directors (the “Board”) of the General Partner will no longer be appointed by the Class A members of the General Partner and, instead, will be elected by the affirmative vote of a majority of the outstanding Common Units. Following the Preferred Unit Conversion (as defined below), certain holders affiliated with Goff Capital, Inc. (collectively, the “Goff Parties”) own approximately 56% of the issued and outstanding Common Units of the Partnership. As long as the Goff Parties continue to hold a majority of such outstanding Common Units, the Goff Parties will effectively control the election of directors as the members of the Board.

No cash consideration was paid by the Goff Parties in connection with the Preferred Unit Conversion or the execution and adoption of the Third A/R GP LLC Agreement and Second A/R Partnership Agreement.

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers;  Compensatory Arrangements of Certain Officers.

Appointment and resignation of certain directors of the General Partner

In connection with the Recapitalization Transactions, the Partnership announced that Charles R. Olmstead, C. Fred Ball Jr., John W. Brown, Cameron O. Smith, Peter A. Leidel and Wilkie S. Colyer Jr. (collectively, the “Resigning Directors”) resigned from the Board, effective June 4, 2020. The decision of each Resigning Director to step down from the Board was not the result of any disagreement with the Partnership or any of its affiliates on any matter relating to the Partnership’s operations, policies or practices.

Additionally, in connection with the Recapitalization Transactions, the Goff Parties, acting by written consent, elected Bob Boulware, Travis Goff and Fred Reynolds (the “Initial New Directors”) as members of the Board to replace the Resigning Directors, effective as of June 4, 2020. The Board, acting by unanimous written consent, adopted resolutions on June 8, 2020 that (i) expanded the size of the Board from three to four and (ii) appointed Caperton White to serve as the fourth member of the Board (the “Appointed Director” and collectively with the Initial New Directors, the “New Directors”). The New Directors have each consented to their appointment as a member of the Board. The New Directors will receive compensation in accordance with the Partnership’s policies for compensating directors, including long-term equity incentive awards under the Partnership’s Long-Term Incentive Program. Mr. Boulware, Mr. Reynolds and Mr. White have each been appointed as members of the Audit Committee and the

4


Conflicts Committee of the Board. There are no arrangements, agreements or understandings between the Partnership and any New Director pursuant to which such New Director was selected as a director.

Travis Goff is the President of Goff Capital, Inc. (“Goff Capital”), which together with its affiliates, holds approximately 28% of the outstanding shares of Common Stock of Contango Oil and Gas Company (“Contango”). Contango Resources, Inc., Contango’s subsidiary, will receive compensation from the Partnership under the Management Services Agreement as set forth in Item 1.01 above. Mr. Goff’s only interest in the Management Services Agreement is the impact on the value of the shares of Contango Common stock held by Goff Capital and its affiliates. Mr. Goff is also the President of Goff Focused Strategies, LLC (“GFS”). GFS and the Partnership were party to that certain Monitoring Fee Agreement dated as of January 31, 2018 (the “Monitoring Fee Agreement”), pursuant to which GFS received a monitoring fee of $200,000 per annum. The Monitoring Fee Agreement was terminated effective March 31, 2020. Mr. Goff’s only interest in the Monitoring Fee Agreement was that of President of GFS. Except as set forth above, there are no related party transactions involving any New Director that are reportable under Item 404(a) of Regulation S-K.  

Resignation of certain officers of the General Partner

On June 4, 2020, Charles R. Olmstead, Chief Executive Officer, and Jeffrey R. Olmstead, President, resigned from their positions as officers of the General Partner.

Item 5.03

Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Third Amendment to Partnership Agreement

On June 4, 2020, in connection with the other Recapitalization Transactions, after obtaining the consent of a majority of the Partnership’s Class A Preferred Units (the “Class A Preferred Units”) and Class B Preferred Units (the “Class B Preferred Units”, and together with the Class A Preferred Units, the “Preferred Units”), respectively, the General Partner entered into the Third Amendment to First Amended and Restated Agreement of Limited Partnership of the Partnership (the “Third Amendment to Partnership Agreement”) to amend that certain First Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of December 20, 2011, as amended by the First Amendment thereto, dated as of August 11, 2016, and the Second Amendment thereto, dated as of January 31, 2018 (as so amended, the “Partnership Agreement”). The Third Amendment to Partnership Agreement modified the terms pursuant to which the Preferred Units would convert into Common Units so that the Preferred Units would automatically and mandatorily be converted into Common Units effective immediately prior to the closing under the Contribution Agreement, at the respective conversion rates calculated as provided therein (such conversion, the “Preferred Unit Conversion”).

In connection with the Preferred Unit Conversion, all Preferred Units of the Partnership were converted to Common Units on June 4, 2020, as set forth in the Third Amendment to Partnership Agreement, and the Partnership issued to the holders of such Preferred Units an aggregate of 12,724,411 Common Units of the Partnership.

The description of the Third Amendment to Partnership Agreement contained in this Item 5.03 does not purport to be complete and is qualified in its entirety by reference to the full text of the Third Amendment to Partnership Agreement, which is filed as Exhibit 3.1 hereto and incorporated by reference herein.

Second Amended and Restated Partnership Agreement

On June 4, 2020, in connection with the other Recapitalization Transactions, the General Partner amended and restated the Partnership Agreement, as amended by the Third Amendment to Partnership Agreement (as so amended and restated, the “Second A/R Partnership Agreement”), effective June 4, 2020. The Second A/R Partnership Agreement provides for, among other things, the election of members of the Board by the limited partners of the Partnership.

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The description of the Second A/R Partnership Agreement contained in this Item 5.03 does not purport to be complete and is qualified in its entirety by reference to the full text of the Second A/R Partnership Agreement, which is filed as Exhibit 3.2 hereto and incorporated by reference herein.

Third Amended and Restated General Partner Agreement

On June 4, 2020, following the effectiveness of the Contribution, the Partnership executed the Third Amended and Restated Limited Liability Agreement of the General Partner (the “Third A/R GP LLC Agreement”), effective as of June 4, 2020, reflecting the admission of the Partnership as the sole member of the General Partner and providing for, among other things, the election of members of the Board by the limited partners of the Partnership.

The description of the Third A/R GP LLC Agreement contained in this Item 5.03 does not purport to be complete and is qualified in its entirety by reference to the full text of the Third A/R GP LLC Agreement, which is filed as Exhibit 3.3 hereto and incorporated by reference herein.

Item 9.01

Financial Statements and Exhibits

 

 

 

(d)  -  Exhibits

 

 

No.

Description

 

 

2.1*+

Contribution Agreement, dated June 4, 2020, by and among Mid-Con Energy Partners, LP, Charles R. Olmstead, Jeffrey R. Olmstead, and S. Craig George.

3.1*

Third Amendment to First Amended and Restated Agreement of Limited Partnership of Mid-Con Energy Partners, LP, dated June 4, 2020.

3.2*

Second Amended and Restated Agreement of Limited Partnership of Mid-Con Energy Partners, LP, dated June 4, 2020.

3.3*

Third Amended and Restated Limited Liability Company Agreement of Mid-Con Energy GP, LLC, dated June 4, 2020.

10.1*

Amendment No. 15 to Credit Agreement, effective June 1, 2020, by and among Mid-Con Energy Properties, LLC, as borrower, Mid-Con Energy Partners, LP, as guarantor, Wells Fargo Bank, National Association, as administrative agent and the lenders party thereto.

10.2*

Management Services Agreement, effective July 1, 2020, by and among Mid-Con Energy Partners, LP and Contango Resources, Inc.

10.3*

Transition Services Agreement, effective June 1, 2020, by and among Mid-Con Energy Partners, LP and Mid-Con Energy Operating, LLC.

10.4*

Assignment and Assumption Agreement, effective June 1, 2020, by and among Mid-Con Energy Partners, LP and Mid-Con Energy Operating, LLC.

 

 

*     Filed Herewith.

+    Schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Partnership agrees to furnish supplementally a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request.

 


6


 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

 

 

 

 

 

 

 

MID-CON ENERGY PARTNERS, LP

 

 

 

By:

Mid-Con Energy GP, LLC

 

 

 

 

its general partner

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dated:

June 10, 2020

By:

/s/Charles L. McLawhorn, III

 

 

 

 

Charles L. McLawhorn, III

 

 

 

 

Vice President, General Counsel and Secretary

 

7

mcep-ex21_13.htm

 

EXHIBIT 2.1

 

CONTRIBUTION AGREEMENT

BY AND AMONG

THE CONTRIBUTOR PARTIES PARTY HERETO

AND

MID-CON ENERGY PARTNERS, LP

 


 

TABLE OF CONTENTS

Article I DEFINITIONS AND INTERPRETATION1

Section 1.1

Definitions.1

Section 1.2

Rules of Interpretation6

Article II CONTRIBUTION AND EXCHANGE7

Section 2.1

Contribution of the Subject Interests7

Section 2.2

Closing.7

Section 2.3

Closing Deliveries.7

Article III REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTOR PARTIES CONCERNING THE CONTRIBUTOR PARTIES8

Section 3.1

Legal Capacity8

Section 3.2

Validity of Agreement; Authorization8

Section 3.3

No Conflict or Violation8

Section 3.4

Consents and Approvals9

Section 3.5

Ownership of the Subject Interests9

Section 3.6

Brokers9

Section 3.7

Investment Intent; Investment Experience; Restricted Securities9

Section 3.8

Litigation9

Article IV REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTOR PARTIES CONCERNING THE GENERAL PARTNER9

Section 4.1

Organization10

Section 4.2

No Conflict or Violation10

Section 4.3

Consents and Approvals10

Section 4.4

Subject Interests10

Section 4.5

Subsidiaries; Interests10

Section 4.6

GP LLC Agreement10

Section 4.7

Assets and Liabilities of the General Partner10

Section 4.8

Employees; Employee Plans.10

Section 4.9

Tax Matters11

Section 4.10

Litigation12

Section 4.11

Certain Disclaimers12

Article V REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP12

Section 5.1

Organization12

Section 5.2

Validity of Agreement; Authorization12

Section 5.3

No Conflict or Violation12

Section 5.4

Consents and Approvals12

Section 5.5

Partnership Capitalization12

Section 5.6

Issuance of Consideration13

Section 5.7

Listing13

Section 5.8

Brokers13

Section 5.9

MLP Status13

Section 5.10

Litigation.13

Section 5.11

Investment Intent; Investment Experience; Restricted Securities.13

Article VI COVENANTS13

Section 6.1

Further Assurances; Cooperation13

Section 6.2

Post-Closing Access; Records14

Section 6.3

Certain Insurance and Indemnification Matters.14

Section 6.4

Tax Matters.14

Section 6.5

Registration Rights.15

Article VII INDEMNIFICATION, COSTS AND EXPENSES16

i

 


 

Section 7.1

Survival.16

Section 7.2

Indemnification.16

Section 7.3

Defense of Claims.17

Section 7.4

Exclusive Remedy18

Section 7.5

Limitations18

Section 7.6

Tax Treatment of Indemnity Provisions19

Section 7.7

Calculation of Losses19

Section 7.8

No Duplication19

Article VIII MISCELLANEOUS19

Section 8.1

Amendments and Modifications19

Section 8.2

Waiver of Compliance19

Section 8.3

Governing Law; Consent to Jurisdiction; Waiver of Jury Trial19

Section 8.4

Notices20

Section 8.5

Assignment20

Section 8.6

Expenses20

Section 8.7

Specific Performance20

Section 8.8

Entire Agreement20

Section 8.9

Severability20

Section 8.10

Disclosure Schedules21

Section 8.11

Third Party Beneficiaries21

Section 8.12

Facsimiles; Electronic Transmission; Counterparts21

Section 8.13

Time of Essence21

 


ii


 

EXHIBITS

Exhibit AForm of Revised GP LLC Agreement

Exhibit BForm of Revised Partnership Agreement

Exhibit CForm of Spousal Consent

 

 

iii


 

CONTRIBUTION AGREEMENT

This CONTRIBUTION AGREEMENT (this “Agreement”), dated as of June 4, 2020, is entered into by and among each Person designated as a “Contributor Party” on the signature pages attached hereto (collectively, the “Contributor Parties”) and Mid-Con Energy Partners, LP, a Delaware limited partnership (the “Partnership”).

WHEREAS, the Partnership is entering into this Agreement as a part of certain recapitalization transactions that it is also entering into on the date hereof;

WHEREAS, the Contributor Parties are the only members of Mid-Con Energy GP, LLC, a Delaware limited liability company (the “General Partner”), and own all of the General Partner’s Class A Interests (the “Class A Interests”) and Class B Interests (the “Class B Interests”, and together with the Class A Interests, the “Subject Interests”), which represent all of the Interests (as defined below) in the General Partner;

WHEREAS, the General Partner is the sole general partner of the Partnership and owns the General Partner Interest (as defined below), which is evidenced in part by 18,000 Notional General Partner Units (the “GP Units”);

WHEREAS, the Contributor Parties desire to contribute, assign, transfer and deliver to the Partnership, and the Partnership desires to accept and acquire from the Contributor Parties, the Subject Interests, and in exchange the Partnership desires to issue and deliver to the Contributor Parties, the Consideration (as defined below) upon the terms and subject to the conditions set forth in this Agreement;

WHEREAS, in accordance with Section 11.5 of the GP LLC Agreement, the Contributor Parties have consented to and approved the amendment and restatement of the GP LLC Agreement in substantially the form attached as Exhibit A hereto to reflect, among other things, the admission of the Partnership as the sole member thereof; and

WHEREAS, in accordance with Section 13.1(d)(i) and Section 13.1(g) of the Partnership Agreement, the General Partner, on behalf of the Partnership, has consented to and approved the amendment and restatement of the Partnership Agreement in substantially the form attached as Exhibit B hereto to reflect, among other things, the addition of provisions relating to the election of the directors of the General Partner by the limited partners of the Partnership and the conversion of the GP Units to a non-economic management interest in the Partnership.

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

Article I
DEFINITIONS AND INTERPRETATION

Section 1.1Definitions.  

Affiliate” means, with respect to a specified Person, any other Person, whether now in existence or hereafter created, directly or indirectly controlling, controlled by or under direct or indirect common control with such specified Person.  For purposes of this definition and the definition of Subsidiary, “control” (including, with correlative meanings, “controlling,” “controlled by” and “under common control with”) means, with respect to a Person, the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of equity Interests, including but not limited to voting securities, by contract or agency or otherwise.  For purposes of this Agreement, the Contributor Parties shall not be considered Affiliates of the Partnership Entities.  

Agreement” shall have the meaning specified in the preamble.

Awards” means unit options, unit appreciation rights, unrestricted units, restricted units, phantom units, distribution equivalent rights granted with phantom units and other types of awards made under the LTIP.

Benefit Plan” means (a) all “employee benefit plans” (within the meaning of Section 3(3) of ERISA) and (b) all other compensation or employee benefit plans, programs and other agreements, whether or not subject to

 


 

ERISA, including cash or equity or equity-based, employment, retention, change of control, health, medical, dental, disability, accident, life insurance, vacation, severance, retirement, pension, savings, termination and other employee benefit plans, programs or other agreements that are sponsored, maintained, contributed to or required to be contributed to by the General Partner for the benefit of current or former employees, individual managers, directors, individual independent contractors or individual consultants of the General Partner or any Partnership Entity, or with respect to which the General Partner has any current or contingent Liability.

Class A Interests” shall have the meaning specified in the Recitals.

Class B Interests” shall have the meaning specified in the Recitals.

Closing” shall have the meaning specified in Section 2.2(a).

Closing Date” shall have the meaning specified in Section 2.2(a).

Code” means the Internal Revenue Code of 1986, as amended from time to time.

Common Units” shall have the meaning specified in Section 2.1.

Consideration” shall have the meaning specified in Section 2.1(b).

Contract” means any written contract, agreement, indenture, note, bond, mortgage, loan, instrument, evidence of indebtedness, security agreement, lease, easement, right of way agreement, sublease, license, subcontract, or other arrangement, understanding, undertaking or commitment.

Contributor Fundamental Representations” means the representations and warranties contained in Section 3.1 (Capacity), Section 3.2 (Validity of Agreement; Authorization), Section 3.5 (Ownership of the Subject Interests), Section 3.6 (Brokers), Section 4.1 (Organization), Section 4.4 (Subject Interests) and Section 4.9 (Tax Matters).

Contributor Indemnified Parties” shall have the meaning specified in Section 7.2(b).

Contributor Parties” shall have the meaning specified in the preamble.

Contributor Parties Material Adverse Effect” means any event, change, fact, development, circumstance, condition or occurrence with respect to any of the Contributor Parties that, individually or in the aggregate, would, or would be reasonably expected to, materially impair, delay, interfere with or impede the Contributor Parties’ consummation of the transactions or performance of its obligations contemplated under the Transaction Documents.

Contributor Released Claims” shall have the meaning specified in Section 7.9(b).

Contributor Released Parties” shall have the meaning specified in Section 7.9(b).

Courts” shall have the meaning specified in Section 8.3.

Covered Person” shall have the meaning specified in Section 6.3(b).

Direct Claim” shall have the meaning specified in Section 7.3(c).

Disclosure Schedules” shall have the meaning specified in Section 8.10.

DLLCA” means the Delaware Limited Liability Company Act, as amended.

DRULPA” means the Delaware Revised Uniform Limited Partnership Act, as amended.

Encumbrances” means any mortgage, deed of trust, encumbrance, equitable interest, easement, right of way, building or use restriction, lease, license, lien, option, pledge, security interest, purchase rights, preemptive right, right of first refusal or similar right or adverse claim or restriction.

2


 

ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

Fraud” means an intentional and willful misrepresentation by a Party with respect to the making of any representation or warranty expressly contained herein; provided, that the other Party relied thereon to its detriment.

Fundamental Representations” means the Contributor Fundamental Representations and the Partnership Fundamental Representations.

GAAP” means generally accepted accounting principles in the United States of America in effect from time to time.

General Partner” has the meaning specified in the Recitals.

General Partner Interest” has the meaning provided such term in the Partnership Agreement.

General Partner Material Adverse Effect” means any event, change, fact, development, circumstance, condition or occurrence with respect to the General Partner that, individually or in the aggregate, would, or would be reasonably expected to, (a)  have a material adverse effect on the business, financial condition or results of operations of the General Partner or (b) materially impair, delay, interfere with or impede the General Partner’s consummation of the transactions or performance of its obligations contemplated under the Transaction Documents.

Governmental Authority” means any (a) federal, state, local, or municipal government, or any subsidiary body thereof or (b) governmental or quasi-governmental authority of any nature, including, (i) any governmental agency, branch, department, official, or entity, (ii) any court, judicial authority, or other tribunal, and (iii) any arbitration body or tribunal.

GP LLC Agreement” shall mean the Second Amended and Restated LLC Agreement of the General Partner dated January 24, 2017.

GP Units” shall have the meaning specified in the Recitals.

Indemnified Party” means any of Partnership Indemnified Parties or Contributor Indemnified Parties, as applicable.

Indemnified Tax Claim” has the meaning provided such term in Section 6.4(e)(ii).

Indemnifying Party” shall mean any Party submitting a claim for indemnification pursuant to Article VII.

Interest” means (a) capital stock, common units, member or limited liability company interests, partnership interests, other equity interests, rights to profits or revenue and any other similar interest, (b) any security or other interest convertible into or exchangeable or exercisable for any of the foregoing and (c) any right (contingent or otherwise) to acquire any of the foregoing.

Knowledge” means, (a) with respect to each of the Contributor Parties, a fact, event, circumstance or occurrence actually known by each such Contributor Party, and (b) with respect to the Partnership, a fact, event, circumstance or occurrence actually known by Charles R. Olmstead, Jeffrey R. Olmstead, Philip R. Houchin, Charles L. McLawhorn, III or Sherry L. Morgan or that would have reasonably been expected to be known by such individuals following reasonable inquiry.

Law” means any applicable domestic or foreign federal, state, local, municipal, or other administrative order, constitution, law, Order, policy, ordinance, rule, code, principle of common law, case, decision, regulation, statute, tariff or treaty, or other requirements with similar effect of any Governmental Authority or any binding provisions or interpretations of the foregoing.

Liability” means, collectively, any indebtedness, commitment, guaranty, endorsement, claim, Loss, damage, deficiency, cost, expense, obligation, contingency, responsibility or other liability, in each case, whether fixed or unfixed, asserted or unasserted, due or to become due, accrued or unaccrued, absolute, contingent or otherwise.

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Loss” means, as to any specified Person, any loss, cost, damages, amounts paid in settlement, expense (including reasonable fees of and actual disbursements by attorneys, consultants, experts or other representatives, including litigation costs), fine of, penalty on, or Liability of any other nature of that Person.

LTIP” means the Partnership’s Long Term Incentive Plan.

Order” means any award, decision, injunction, judgment, order, ruling, subpoena, writ, decree or verdict entered, issued, made or rendered by any Governmental Authority.

Organizational Document” means (a) with respect to a corporation, the articles or certificate of incorporation and bylaws thereof together with any other governing agreements or instruments of such corporation or the shareholders thereof, each as amended, (b) with respect to a limited liability company, the certificate of formation and the operating or limited liability company agreement or regulations thereof, or any comparable governing instruments, each, as amended, (c) with respect to a partnership, the certificate of formation and the partnership agreement of the partnership and, if applicable, the Organizational Documents of such partnership’s general partner, or any comparable governing instruments, each as amended and (d) with respect to any other Person, the organizational, constituent or governing documents or instruments of such Person, each as amended.

Partnership” shall have the meaning specified in the preamble.

Partnership Agreement” means the First Amended and Restated Agreement of Limited Partnership of Mid-Con Energy Partners, LP, dated December 20, 2011, as amended.

Partnership Entities” means the Partnership and its Subsidiaries. (For the avoidance of doubt, from and after Closing, the Partnership Entities shall include the General Partner.)

Partnership Fundamental Representations” means the representations and warranties contained in Section 5.1 (Organization), Section 5.2 (Validity of Agreement; Authorization), Section 5.8 (Brokers) and Section 5.9 (MLP Status).

Partnership Indemnified Parties” shall have the meaning specified in Section 7.2(a).

Partnership Interests” shall have the meaning specified in Section 5.5.

Partnership Material Adverse Effect” means any event, change, fact, development, circumstance, condition or occurrence with respect to any of the Partnership Entities that, individually or in the aggregate, would, or would be reasonably expected to, (a)  have a material adverse effect on the business, financial condition or results of operations of the Partnership Entities, taken as a whole, or (b) materially impair, delay, interfere with or impede the Partnership’s consummation of the transactions or performance of its obligations contemplated under the Transaction Documents.

Partnership Released Claims” shall have the meaning specified in Section 7.9(a).

Partnership Released Parties” shall have the meaning specified in Section 7.9(a).

Partnership SEC Reports” means all periodic reports, current reports and registration statements, including exhibits and other information incorporated therein, filed by the Partnership with, or furnished by the Partnership to, the SEC, from January 1, 2019 until the date of this Agreement.

Party” means, as applicable, the Partnership and the Contributor Parties.

Permits” means all franchises, grants, authorizations, licenses, permits, easements, certificates of need, variances, exemptions, consents, certificates, approvals and Orders.

Person” means any individual, partnership, limited partnership, limited liability company, corporation, joint venture, trust, cooperative, association, foreign trust, unincorporated organization, foreign business organization or Governmental Authority or any department or agency thereof, and the heirs, executors, administrators, legal representatives, successors, and assigns of such “Person” where the context so permits.

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Preferred Units” means the Partnership’s Class A Preferred Units and Class B Preferred Units.

Proceedings” means any claim, action, arbitration, mediation, audit, hearing, investigation, proceeding, litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Authority, arbitrator, or mediator.

Resigning Directors” shall have the meaning specified in Section 2.3(a)(iii).

Revised GP LLC Agreement” shall have the meaning specified in Section 2.2(b)(i).

Revised Partnership Agreement” shall have the meaning specified in Section 2.2(b)(ii).

SEC” means the United States Securities and Exchange Commission.

Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder.

Shelf Registration Statement” means a registration statement under the Securities Act to permit the public resale of the Common Units from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect).

Spousal Consent” shall have the meaning specified in Section 2.3(a)(vi).

Subject Interests” shall have the meaning specified in the Recitals.

Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association, or business entity, whether incorporated or unincorporated, of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof, (b) if a partnership (whether general or limited), a general partner Interest is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof or (c) if a limited liability company, partnership, association, or other business entity (other than a corporation), a majority of partnership or other similar ownership Interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof.  For purposes hereof, a Person or Persons shall be deemed to have a majority ownership Interest in a limited liability company, partnership, association, or other business entity (other than a corporation) if such Person or Persons shall be allocated a majority of limited liability company, partnership, association, or other business entity gains or Losses.

Survival Period” shall have the meaning specified in Section 7.1(b).

Tax” means all taxes, charges, fees, levies, or other assessments, including all net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, withholding, payroll, employment, social security, unemployment, excise, estimated, severance, stamp, occupation, property, or other taxes, customs duties, fees, assessments, or charges of any kind whatsoever, or other tax of any kind whatsoever, including all interest and penalties thereon, and additions to tax or additional amounts, imposed by any Tax Authority.

Tax Authority” means a Governmental Authority or political subdivision thereof responsible for the imposition, administration, assessment, or collection of any Tax (domestic or foreign) and the agency (if any) charged with the collection or administration of such Tax for such entity or subdivision.

Tax Indemnified Party” has the meaning provided such term in Section 6.4(e)(ii).

Tax Indemnifying Party” has the meaning provided such term in Section 6.4(e)(ii).

Tax Returns” means any return, declaration, report, claim for refund, estimate, information, rendition, statement or other document pertaining to any Taxes required to be filed with a Governmental Authority, including any attachments or supplements or amendments thereto.

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Third Party” means any Person other than a Party or an Affiliate of a Party.

Third Party Claim” shall have the meaning specified in Section 7.3(a).

Transaction Documents” means, collectively, this Agreement, the Revised GP LLC Agreement, the Revised Partnership Agreement and any and all other agreements or instruments provided for in this Agreement to be executed and delivered by the Parties in connection with the transactions contemplated hereby.

Transfer Taxes” shall have the meaning specified in Section 6.4(b).

Treasury Regulation” shall mean the regulations promulgated by the United States Department of the Treasury pursuant to and in respect of provision of the Code.  All references herein to sections of the Treasury Regulations shall include any corresponding provision or provisions of succeeding, similar, substitute, temporary or final Treasury Regulations.

Section 1.2Rules of Interpretation.  Unless expressly provided for elsewhere in this Agreement, this Agreement shall be interpreted in accordance with the following provisions:

(a)the words “this Agreement,” “herein,” “hereby,” “hereunder,” “hereof,” and other equivalent words shall refer to this Agreement as an entirety and not solely to the particular portion, article, section, subsection or other subdivision of this Agreement in which any such word is used;

(b)the word “including” and its derivatives mean “including without limitation” and are terms of illustration and not of limitation;

(c)all definitions set forth herein shall be deemed applicable whether the words defined are used herein in the singular or in the plural and correlative forms of defined terms shall have corresponding meanings;

(d)the word “or” is not exclusive, and has the inclusive meaning represented by the phrase “and/or”;

(e)a defined term has its defined meaning throughout this Agreement and each Exhibit and Schedule to this Agreement, regardless of whether it appears before or after the place where it is defined;

(f)all references to prices, values or monetary amounts refer to United States dollars;

(g)wherever used herein, any pronoun or pronouns shall be deemed to include both the singular and plural and to cover all genders;

(h)the Transaction Documents have been jointly prepared by the parties thereto, and no Transaction Document shall be construed against any Person as the principal draftsperson hereof or thereof, and no consideration may be given to any fact or presumption that any Party had a greater or lesser hand in drafting any Transaction Document;

(i)the captions of the articles, sections or subsections appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect this Agreement;

(j)any references herein to a particular Section, Article, Exhibit or Schedule means a Section or Article of, or an Exhibit or Schedule to, this Agreement unless otherwise expressly stated herein;

(k)the Exhibits and Schedules attached hereto are incorporated herein by reference and shall be considered part of this Agreement;

(l)unless otherwise specified herein, all accounting terms used herein shall be interpreted, and all determinations with respect to accounting matters hereunder shall be made, in accordance with GAAP, applied on a consistent basis;

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(m)all references to days shall mean calendar days unless otherwise provided;

(n)all references to time shall mean Fort Worth, Texas time;

(o)references to any Person shall include such Person’s successors and permitted assigns;

(p)any references to a Person that will be party to a Transaction Document includes any Person that is contemplated hereunder to be party to a Transaction Document; and

(q)all references in Article III, Article IV and Article V to any Law or Contract shall mean such Law or Contract as in effect on the date of this Agreement.

Article II
CONTRIBUTION AND EXCHANGE

Section 2.1Contribution of the Subject Interests. Subject to the terms and conditions contained in this Agreement, (a) each of the Contributor Parties hereby contributes, assigns, transfers and delivers to the Partnership, and the Partnership hereby accepts and acquires from such Contributor Party, all right, title and interest in and to the Subject Interests owned by such Contributor Party and (b) the Partnership hereby issues and delivers to the Contributor Parties the common units representing limited partner Interests in the Partnership (“Common Units”) as set forth on Schedule 2.1 under the column labeled “Consideration (Total Number of Common Units)” (the “Consideration”).

Section 2.2Closing.

(a)The closing of the transactions referred to in Section 2.1 (the “Closing”) shall take place at the offices of Pillsbury Winthrop Shaw Pittman LLP, 1200 Seventeenth Street NW, Washington, DC 20036, commencing at 10:00 a.m. local time on the date hereof or on such other date or time as the Parties may mutually agree (the date and time on which the Closing takes place, the “Closing Date”).

(b)The Parties acknowledge and agree that, effective as of and contingent upon the Closing:

(i)(A) the Contributor Parties shall cease to be members of the General Partner, (B) the Partnership shall be admitted as the sole member of the General Partner and (C) the GP LLC Agreement shall be amended and restated in its entirety by the Partnership, acting in its capacity as the sole member of the General Partner, in substantially the form attached as Exhibit A hereto (as so amended and restated, the “Revised GP LLC Agreement”);

(ii)the Partnership Agreement shall be amended and restated in its entirety by the General Partner (acting pursuant to its authority in Section 13.1(d) and Section 13.1(g) of the Partnership Agreement) in substantially the form attached as Exhibit B hereto (as so amended and restated, the “Revised Partnership Agreement”).

Section 2.3Closing Deliveries.

(a)At the Closing, subject to the terms and conditions of this Agreement, the Contributor Parties shall deliver, or cause to be delivered, to the Partnership:

(i)an affidavit, duly executed and acknowledged by the General Partner and each Contributor Party (or, if such Party is classified as an entity disregarded as separate from another Person, then by such Person) dated as of the Closing Date, in accordance with Treasury Regulation § 1.1445-2(b)(2) and Section 1446(f) of the Code, certifying that such Party (or, if such Party is classified as an entity disregarded as separate from another Person, then by such Person) is not a “foreign person” for such purposes;

(ii)duly executed letters of resignation of the directors of the General Partner identified on Schedule 2.3(a)(iii) (the “Resigning Directors”);

(iii)a written consent of the Contributor Parties approving the Revised GP LLC Agreement, and the execution by the General Partner of the Revised Partnership Agreement;

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(iv)a counterpart of the Revised Partnership Agreement duly executed by the General Partner and effective as of the Closing Date; and

(v)a spousal consent duly executed by such Contributor Party’s spouse (if any) substantially in the form attached hereto as Exhibit C (a “Spousal Consent”).

(b)At the Closing, subject to the terms and conditions of this Agreement, the Partnership shall deliver, or cause to be delivered to the Contributor Parties:

(i)the Consideration in book entry form, in each case free and clear of any Encumbrances, other than restrictions on transfer set forth in the Partnership Agreement or the applicable requirements of the federal securities Laws, and any applicable state or other local securities Laws;

and

(ii)a counterpart of the Revised GP LLC Agreement duly executed by the Partnership and effective as of the Closing Date.

Article III
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTOR PARTIES
CONCERNING THE CONTRIBUTOR PARTIES

Each Contributor Party hereby represents and warrants, as to himself only, and not on behalf of any other Person, to the Partnership, as follows:

Section 3.1Legal Capacity.  Such Contributor Party is of legal age, competent to enter into a contractual obligation, and a citizen of the United States of America. The principal residence of such Contributor Party is as shown on the signature page of this Agreement.

Section 3.2Validity of Agreement; Authorization.  Such Contributor Party has full power and authority to enter into this Agreement and any other Transaction Documents to which such Contributor Party is a party and to perform his obligations hereunder and thereunder and to comply with the terms and conditions hereunder and thereunder.  This Agreement and any other Transaction Documents to which such Contributor Party is a party have been duly executed and delivered by such Contributor Party and, assuming due execution and delivery by the other parties hereto and thereto, constitute such Contributor Party’s valid and binding obligation, enforceable against such Contributor Party in accordance with their respective terms.

Section 3.3No Conflict or Violation.  The execution, delivery and performance of this Agreement and any other Transaction Documents to which such Contributor Party is a party, and the consummation of the transactions contemplated hereby and thereby, do not:  (a) violate any Law applicable to such Contributor Party; (b) violate, result in a breach of, constitute (with due notice or lapse of time or both) a default or cause any obligation, penalty or premium to arise or accrue under any lease, loan agreement, mortgage, security agreement, trust indenture or other Contract to which such Contributor Party is a party or by which such Contributor Party is bound or to which any of his properties or assets are subject; or (c) result in the creation or imposition of any Encumbrances upon any of the Subject Interests, except, in the case of clauses (a) or (b), as would not, individually or in the aggregate, reasonably be expected to have a Contributor Parties Material Adverse Effect.

Section 3.4Consents and Approvals.  Except for any filings required for compliance with any applicable requirements of the federal securities Laws, any applicable state or local securities Laws and any applicable requirements of a national securities exchange, and except as would not, individually or in the aggregate, reasonably be expected to have a Contributor Parties Material Adverse Effect, neither such Contributor Party’s execution and delivery of this Agreement and any other Transaction Documents to which such Contributor Party is a party, nor such Contributor Party’s performance of his obligations hereunder or thereunder, requires (a) the consent, approval, waiver or authorization of any Governmental Authority or any other Person or (b) the declaration, filing, registration or qualification with any Governmental Authority by such Contributor Party.

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Section 3.5Ownership of the Subject Interests.  Such Contributor Party has good and valid title to, and is the record and beneficial owner of, his respective Subject Interests described on Schedule 2.1 under the column labeled “Subject Interests” free and clear of any Encumbrances, except for (a) restrictions on transfer arising under applicable securities Laws and (b) the applicable terms and conditions of the Organizational Documents of the General Partner or the Partnership.  Without limiting the generality of the foregoing sentence, none of the Subject Interests are subject to any voting trust, member agreement or voting agreement or other agreement, right, instrument or understanding with respect to any purchase, sale, issuance, transfer, repurchase, redemption or voting of any Interest of the General Partner, other than the Organizational Documents of the General Partner or the Partnership.  Upon consummation of the transactions contemplated hereby, the Partnership will acquire good and valid title to all the Subject Interests owned by such Contributor Party, free and clear of any Encumbrances other than (a) restrictions on transfer arising under applicable securities Laws, (b) the applicable terms and conditions of the Organizational Documents of the General Partner or the Partnership and (c) those that may arise by virtue of any actions taken by or on behalf of the Partnership or its Affiliates.

Section 3.6Brokers.  No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with this Agreement or any of the transactions contemplated hereby based upon arrangements made on behalf of such Contributor Party.

Section 3.7Investment Intent; Investment Experience; Restricted Securities.  In acquiring his respective portion of the Consideration, such Contributor Party is not offering or selling, and shall not offer or sell his respective portion of the Consideration, in connection with any distribution of such Consideration, and such Contributor Party has not participated, and shall not participate, in any such undertaking or in any underwriting of such an undertaking except in compliance with applicable federal and state securities Laws.  Such Contributor Party acknowledges that (a) it has been provided with the opportunity to ask questions concerning the terms and conditions of an investment in the Partnership and has knowingly and voluntarily elected instead to rely solely on his own investigation, (b) it can bear the economic risk of his investment in his respective portion of the Consideration, and (c) it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in his respective portion of the Consideration.  Such Contributor Party understands that the issuance of the Consideration will not have been registered pursuant to the Securities Act or any applicable state securities Laws, that the Consideration shall be characterized as “restricted securities” under federal securities Laws (and shall bear a restrictive legend to that effect) and that under such Laws his respective portion of the Consideration cannot be sold or otherwise disposed of without registration under the Securities Act or an exemption therefrom.

Section 3.8Litigation.  There are no Proceedings pending or, to the Knowledge of such Contributor Party, threatened before any Governmental Authority or arbitrator against such Contributor Party, except as would not, individually or in the aggregate, reasonably be expected to have a Contributor Parties Material Adverse Effect.

Article IV
REPRESENTATIONS AND WARRANTIES OF THE CONTRIBUTOR PARTIES
CONCERNING THE GENERAL PARTNER

Each Contributor Party hereby represents and warrants to the Partnership, severally and not jointly, as follows:

Section 4.1Organization.  The General Partner (a) is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of Delaware, (b) has all requisite legal and limited liability company power and authority to own, lease and operate its assets and properties and to conduct its businesses as currently owned and conducted and (c) is duly qualified to do business and in good standing in each jurisdiction in which the nature of the business conducted by it or the ownership or leasing of its assets and properties requires it to so qualify, except with respect to clause (c) for circumstances that would not, individually or in the aggregate, reasonably be expected to have a General Partner Material Adverse Effect.  

Section 4.2No Conflict or Violation.  The execution, delivery and performance of this Agreement and any other Transaction Documents to which the General Partner is a party, and the consummation of the transactions contemplated hereby and thereby, do not:  (a) violate or conflict with any provision of the Organizational Documents of the General Partner; (b) violate any Law applicable to the General Partner; (c) violate, result in a breach of, constitute (with due notice or lapse of time or both) a default or cause any obligation, penalty or premium to arise or

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accrue under any lease, loan agreement, mortgage, security agreement, trust indenture or other Contract to which the General Partner is a party or by which the General Partner is bound or to which any of its properties or assets are subject; (d) result in the creation or imposition of any Encumbrances upon any of (i) the Subject Interests or (ii) the other properties or assets of the General Partner; or (e) result in the cancellation, modification, revocation or suspension of any Permit of the General Partner, except, in the case of clauses (b), (c), (d)(ii) or (e), as would not, individually or in the aggregate, reasonably be expected to have a General Partner Material Adverse Effect.

Section 4.3Consents and Approvals.  Except (a) as would not, individually or in the aggregate, reasonably be expected to have a General Partner Material Adverse Effect or (b) for any filings required for compliance with any applicable requirements of the federal securities Laws, any applicable state or local securities Laws and any applicable requirements of a national securities exchange, the General Partner’s execution and delivery of any Transaction Documents to which it is a party does not, nor does the General Partner’s performance of its respective obligations thereunder, require (i) the consent, approval, waiver or authorization of any Governmental Authority or any other Person or (ii) the declaration, filing, registration or qualification with any Governmental Authority by the General Partner.

Section 4.4Subject Interests.  The Subject Interests have been duly authorized and validly issued and are fully paid (to the extent required under the GP LLC Agreement) and non-assessable (except to the extent specified in Sections 18-303, 18-607 and 18-804 of the DLLCA).  There are no Interests in the General Partner outstanding other than the Subject Interests.  

Section 4.5Subsidiaries; Interests.  The General Partner has no Subsidiaries and does not own, directly or indirectly, any shares of capital stock, voting rights or other Interests or investments in any other Person, other than the General Partner Interest, including the GP Units. The General Partner has no obligation or right to acquire by any means, directly or indirectly, any capital stock, voting rights, Interests or investments in another Person.

Section 4.6GP LLC Agreement.  The GP LLC Agreement has been duly authorized and executed by such Contributor Party and is a valid and legally binding agreement of such Contributor Party, enforceable against such Contributor Party in accordance with its terms.

Section 4.7Assets and Liabilities of the General Partner.   The General Partner owns no material assets other than the General Partner Interest, including the GP Units, and has no material liabilities or obligations of any kind or character, other than (i) liabilities or obligations of the Partnership for which the General Partner may be liable under applicable law relating to acting as the general partner of the Partnership or (ii) for which the General Partner is entitled to reimbursement from the Partnership pursuant to Section 7.4 of the Partnership Agreement.

Section 4.8Employees; Employee Plans.  

(a)The General Partner does not have, and never has had, any employees.

(b)Any material Benefit Plan sponsored, maintained, contributed to or required to be contributed to by the General Partner is described in the Partnership SEC Reports.

Section 4.9Tax Matters.  Except as would not, individually or in the aggregate, reasonably be expected to have a General Partner Material Adverse Effect, to the Knowledge of such Contributor Party:

(a)All Tax Returns required by applicable Law to be filed by or with respect to the General Partner have been timely filed (taking into account any extensions of time within which to file), and such Tax Returns are true, correct and complete in all material respects.

(b)All Taxes owed by or with respect to the General Partner that are or have become due have been timely paid in full. Each Contributor Party has made an accrual for and has paid, or shall timely pay, all Taxes associated with the ownership by such Contributor Party of the Subject Interest.

(c)All Taxes required to be withheld, collected or deposited by or with respect to the General Partner have been timely withheld, collected or deposited, as the case may be, and to the extent required, have been paid to the relevant Governmental Authority.

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(d)There are no Encumbrances (other than Encumbrances with respect to Taxes that are not yet due and payable or, if due, not delinquent or being contested in good faith by appropriate Proceedings) on any of the assets of the General Partner that arose in connection with any failure (or alleged failure) to pay any Tax.

(e)There is no action, suit, Proceeding, investigation, audit, dispute or claim concerning any Tax Return or any amount of Taxes of the General Partner either claimed or raised by any Governmental Authority in writing.

(f)The General Partner has made an election pursuant to Section 754 of the Code and such election is currently in effect.

(g)There are no outstanding agreements or waivers extending the applicable statutory periods of limitation for any Taxes of the General Partner.

(h)The General Partner is not a party to any Tax sharing agreement or Tax indemnity agreement or has any continuing obligations under any such agreements.

(i)No power of attorney related to Taxes which is currently in force has been granted by the General Partner.

(j)The General Partner has no Liability for Taxes of any Person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee, successor, or by Contract.

(k)The General Partner has not been a party to a transaction that is a “listed transaction,” as such term is defined in Treasury Regulations Section 1.6011-4(b)(2).

(l)The General Partner has, at all times since its formation, been classified for U.S. federal income tax purposes as a partnership or an entity disregarded as separate from its owner in accordance with Treasury Regulation Section 301.7701-3 and has not (i) elected to be treated as an association taxable as a corporation for U.S. federal, state or local income tax purposes under Treasury Regulation Section 301.7701-3(a) or under any corresponding provision of state or local law and (ii) participated in the establishment of an established securities market (within the meaning of Treasury Regulations Section 1.7704-1(b) or a secondary market or the substantial equivalent thereof (within the meaning of Treasury Regulations  Section 1.7704-1(c).

(m)Notwithstanding any other provision in this Agreement, (i) except to the extent that Taxes or the Code are explicitly referenced elsewhere, the representations and warranties in this Section 4.9 are the only representations and warranties in this Agreement with respect to the Tax matters of the General Partner, and (ii) the General Partner does not make any representation or warranty with respect to the existence, availability, amount, usability or limitations (or lack thereof) of any net operating loss, net operating loss carryforward, capital loss, capital loss carryforward, basis amount or other Tax attribute of the General Partner after the Closing Date.

Section 4.10Litigation.  There are no Proceedings pending or, to the Knowledge of such Contributor Party, threatened before any Governmental Authority or arbitrator against the General Partner.

Section 4.11Certain Disclaimers. EXCEPT AS AND TO THE EXTENT EXPRESSLY SET FORTH IN ARTICLE III OR THIS ARTICLE IV, (I) SUCH CONTRIBUTOR PARTY MAKES NO REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED WITH RESPECT TO SUCH CONTRIBUTOR PARTY OR THE GENERAL PARTNER AND (II) SUCH CONTRIBUTOR PARTY EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY STATEMENT OR INFORMATION MADE OR COMMUNICATED (ORALLY OR IN WRITING) TO THE PARTNERSHIP OR ANY OF ITS AFFILIATES, EMPLOYEES, AGENTS, CONSULTANTS OR REPRESENTATIVES.

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Article V
REPRESENTATIONS AND WARRANTIES OF THE PARTNERSHIP

The Partnership hereby represents and warrants to the Contributor Parties as follows:

Section 5.1Organization.  The Partnership (a) is a limited partnership formed, validly existing and in good standing under the Laws of the State of Delaware, (b) has all requisite legal and limited partnership power and authority to own, lease and operate its assets and properties and to conduct its businesses as currently owned and conducted and (c) is duly qualified to do business and in good standing in each jurisdiction in which the nature of the business conducted by it or the ownership or leasing of its assets and properties requires it to so qualify, except with respect to clause (c) for circumstances that would not, individually or in the aggregate, reasonably be expected to have a Partnership Material Adverse Effect.

Section 5.2Validity of Agreement; Authorization.  The Partnership has full power and authority to enter into this Agreement and any other Transaction Documents to which the Partnership is a party and to perform its obligations hereunder and thereunder and to comply with the terms and conditions hereunder and thereunder.  This Agreement and any other Transaction Documents to which the Partnership is a party have been duly executed and delivered by the Partnership and, assuming due execution and delivery by the other parties hereto and thereto, constitute the Partnership’s valid and binding obligation, enforceable against the Partnership in accordance with their respective terms.

Section 5.3No Conflict or Violation.  The execution, delivery and performance of this Agreement and any other Transaction Documents to which the Partnership is a party, and the consummation of the transactions contemplated hereby and thereby, do not:  (a) violate or conflict with any provision of the Organizational Documents of the Partnership; (b) violate any Law applicable to the Partnership; (c) violate, result in a breach of, constitute (with due notice or lapse of time or both) a default or cause any obligation, penalty or premium to arise or accrue under any Contract; (d) result in the creation or imposition of any Encumbrance upon any of the properties or assets of the Partnership; or (e) result in the cancellation, modification, revocation or suspension of any Permit of any of the Partnership, except, in the case of clauses (b) through (e), as would not, individually or in the aggregate, reasonably be expected to have a Partnership Material Adverse Effect.

Section 5.4Consents and Approvals.  Except (a) as would not, individually or in the aggregate, reasonably be expected to have a Partnership Material Adverse Effect or (b) for any filings required for compliance with any applicable requirements of the federal securities Laws, any applicable state or other local securities Laws and any applicable requirements of a national securities exchange, neither the Partnership’s execution and delivery of this Agreement and any other Transaction Documents to which the Partnership is a party, nor the Partnership’s performance of its obligations hereunder or thereunder, requires (i) the consent, approval, waiver or authorization of, with any Governmental Authority or any other Person or (ii) the declaration, filing, registration or qualification with any Governmental Authority by the Partnership.

Section 5.5Partnership Capitalization. After giving effect to this Agreement and the Revised Partnership Agreement, the Partnership will have no partnership or other equity Interests outstanding other than (i) 14,311,522 Common Units and (ii) the General Partner Interest (as defined in the Revised Partnership Agreement) (collectively, the “Partnership Interests”).  All of such Partnership Interests  have been duly authorized and validly issued and are fully paid (to the extent required under the Partnership Agreement) and, other than the GP Units, non-assessable (except to the extent specified in Sections 17-303, 17-607 or 17-804 of the DRULPA). Except as otherwise disclosed in the Partnership SEC Reports, there are no issued or outstanding commitments of the Partnership with respect to any Interests or Awards.

Section 5.6Issuance of Consideration.  The Consideration has been duly authorized and validly issued and is fully paid (to the extent required under the Partnership Agreement) and non-assessable (except to the extent specified in Sections 17-303, 17-607 or 17-804 of the DRULPA).

Section 5.7Listing.  The Common Units of the Partnership are listed on the Nasdaq Global Market.  Prior to Closing, the Nasdaq Global Market shall have authorized the listing of the Consideration.

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Section 5.8Brokers. No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with this Agreement or any of the transactions contemplated hereby based upon arrangements made by or on behalf of the Partnership Entities.

Section 5.9MLP Status.  The Partnership is, and has been since its formation, properly classified for U.S. federal income tax purposes as a partnership or an entity disregarded as separate from its owner in accordance with Treasury Regulation Section 301.7701-3.  For the taxable year including the Partnership’s initial public offering and for each taxable year thereafter, the Partnership has met the gross income requirements of Section 7704(c)(2) of the Code, and otherwise satisfied the requirements for treatment as a partnership for United States federal income tax purposes.  The Partnership expects to meet these requirements for its current taxable year.

Section 5.10Litigation.  There are no Proceedings pending or, to the Knowledge of the Partnership, threatened before any Governmental Authority or arbitrator against the Partnership, except as would not, individually or in the aggregate, reasonably be expected to have a Partnership Material Adverse Effect.

Section 5.11Investment Intent; Investment Experience; Restricted Securities.  In acquiring the Subject Interests, the Partnership is not offering or selling, and shall not offer or sell the Subject Interests, in connection with any distribution of such Subject Interests, and the Partnership has not participated, and shall not participate, in any such undertaking or in any underwriting of such an undertaking except in compliance with applicable federal and state securities Laws.  The Partnership acknowledges that (a) it has been provided with the opportunity to ask questions concerning the terms and conditions of an investment in the Subject Interests and has knowingly and voluntarily elected instead to rely solely on his own investigation, (b) it can bear the economic risk of his investment in the Subject Interests, and (c) it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Subject Interests.  The Partnership understands that the Subject Interests will not have been registered pursuant to the Securities Act or any applicable state securities Laws, that the Subject Interests shall be characterized as “restricted securities” under federal securities Laws and that under such Laws the Subject Interests cannot be sold or otherwise disposed of without registration under the Securities Act or an exemption therefrom.

Section 5.11.  Certain Disclaimers.  EXCEPT AS AND TO THE EXTENT EXPRESSLY SET FORTH IN THIS ARTICLE V, (I) THE PARTNERSHIP MAKES NO REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED AND (II) THE PARTNERSHIP EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY STATEMENT OR INFORMATION MADE OR COMMUNICATED (ORALLY OR IN WRITING) TO ANY OF THE CONTRIBUTOR PARTIES OR THEIR RESPECTIVE AFFILIATES, AGENTS, CONSULTANTS OR REPRESENTATIVES.

Article VI
COVENANTS

Section 6.1Further Assurances; Cooperation.  Subject to the terms and conditions of this Agreement, each Party will use its reasonable best efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws to consummate and make effective the transactions contemplated by this Agreement.  None of the Parties will, without the prior written consent of the other Parties, take or fail to take any action that would reasonably be expected to prevent or materially impede, interfere with or delay the transactions contemplated by this Agreement.

Section 6.2Post-Closing Access; Records.  To the extent legally permissible, from and after the Closing, the Partnership and its Affiliates shall provide to the Contributor Parties reasonable access, during normal business hours and upon reasonable prior notice, and at the expense of the requesting Contributor Party, to all relevant documents and records related to periods prior to the Closing that may be needed by such Contributor Party for purposes of (a) preparing Tax Returns or responding to an audit by any Governmental Authority, (b) the determination or enforcement of rights and obligations under the Transaction Documents or (c) in connection with any actual or threatened Proceeding.

 

 

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Section 6.3Certain Insurance and Indemnification Matters.

(a)The Partnership agrees that all rights to indemnification and exculpation existing in favor of the General Partner or any present or former director, officer, employee, fiduciary or agent of the General Partner, as provided in the Partnership Agreement and the GP LLC Agreement (in each case as in effect immediately prior to Closing), shall continue in full force and effect from and after the Closing for a period of not less than the applicable statute of limitations.  The Partnership shall not (and shall cause the General Partner not to) amend, restate, waive or terminate the Partnership Agreement or the GP LLC Agreement (in each case as in effect immediately prior to Closing), in any manner that would adversely affect the indemnification or exculpation rights of any such present or former director, officer, employee, fiduciary or agent.

(b)The Partnership covenants and agrees that, during the period that commences on the Closing Date and ends on March 2, 2021, with respect to each individual who served as a director or officer of the General Partner at any time prior to the Closing Date, including each of the Resigning Directors (each, a “Covered Person”), the Partnership shall cause the General Partner (i) to continue in effect the current $10,000,000 director and officer Liability primary policy that the General Partner has as of the date of this Agreement, or (ii) upon the termination or cancellation of any such policy, (x) to provide director and officer Liability or similar insurance in substitution for, or in replacement of, such cancelled or terminated policy or (y) to provide a “tail” or runoff policy (covering all claims, whether choate or inchoate, made during such nine (9) month period), in each case, so that each Covered Person has coverage thereunder for acts, events, occurrences or omissions occurring or arising at or prior to the Closing to the same extent (including policy limits, exclusions and scope) as such Covered Person has coverage for such acts, events, occurrences or omissions under the director and officer insurance or similar policy maintained by the General Partner as of the date of this Agreement.

(c)In the event that the General Partner (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) in one or more series of transactions, directly or indirectly, transfers all or substantially all of its properties and assets to any Person (whether by consolidation, merger or otherwise), then, proper provision shall be made so that such continuing or surviving corporation or entity or transferee of such assets, as the case may be, assume the obligations set forth in this Section 6.3.

(d)The provisions of this Section 6.3 shall survive the consummation of the transactions contemplated hereby for a period of nine (9) months and are expressly intended to benefit each Covered Person and their respective heirs and representatives; provided, that in the event that any claim or claims for indemnification or advancement set forth in this Section 6.3 are asserted or made within such six-year period, all rights to indemnification and advancement in respect of any such claim or claims shall continue until disposition of all such claims.

Section 6.4Tax Matters.

(a)Tax Treatment.  For federal and applicable state income tax purposes, the Partnership, the General Partner, and the Contributor Parties intend to treat the transactions set forth in Article II as a tax-free “assets-over” partnership merger within the meaning of Treasury Regulations Section 1.708-1(c)(3)(i) pursuant to which (i) the General Partner is the “terminating partnership” and Partnership is the “resulting partnership” (within the meaning of Treasury Regulation Section 1.708-1(c)), (ii) none of the Partnership, the General Partner, nor any of their partners or members is intended to recognize taxable gain (other than any gain resulting from any decrease in partnership liabilities pursuant to Section 752 of the Code, if any) and (iii) the taxable years of the General Partner shall be closed as of the Closing Date and the General Partner shall file a final IRS Form 1065 for the taxable period ending on the Closing Date reporting and allocating all items of income, gain, credit, deduction, and loss for such taxable year thereon and report each partner’s allocable share of such items on IRS Schedule K-1. The Parties shall report the transaction consistently with this intent, unless otherwise required by a “determination” as defined in Section 1313 of the Code from the Internal Revenue Service or other applicable Tax Authority.

(b)Transfer Taxes.  Any transfer, documentary, sales, use, stamp, registration, and other similar Taxes and fees incurred in connection with this Agreement (“Transfer Taxes”) shall be borne solely by the Partnership.  The Partnership and Contributor Parties shall cooperate to file all necessary Tax Returns and other documentation with respect to such Transfer Taxes, and, if required by applicable Law, the Parties agree to join in the execution of any such Tax Return and other documentation.

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(c) Cooperation.  Prior to the destruction or discarding of any books and records with respect to Tax matters pertinent to the General Partner relating to any taxable period beginning on or before the Closing Date, each Party shall give the other Party reasonable written notice and, if the other Party so requests, shall itself allow, or cause the General Partner to allow, the other Party to take possession of such books and records, with any reasonable expenses incurred in connection therewith to be borne by such other requesting Party. The Partnership and the Contributor Parties further agree, upon request, to use their reasonable best efforts to obtain any certificate or other document from any Governmental Authority or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed on the General Partner as a result of the transactions contemplated hereby or for any taxable period of the General Partner beginning on or before the Closing Date.

(d)Allocations.  The Partnership and the Contributor Parties shall use commercially reasonable efforts to cause the Partnership to allocate all items of income, gain, loss, deduction and credit allocable to the General Partner in respect of the GP Units to the Contributor Parties (as the owners of the General Partner) based on the “interim closing method” under Section 706 of the Code and the Treasury Regulations thereunder with any incremental increase in cost of such method to be shared among the Parties.  

(e)Tax Indemnity.

(i)The Contributor Parties, on a several and not joint basis, and without duplication, shall be liable for, shall pay and shall protect, defend, indemnify and hold harmless the Partnership and its Subsidiaries from and against all Losses such parties incur arising from (i) any breach of the representations and warranties contained in Section 4.9, (ii) any Taxes of the General Partner or the Contributors arising prior to and including the Closing Date (including but not limited to, property, income, franchise, net worth or similar Taxes, and any “imputed underpayment” within the meaning of Section 6225 of the Code) and the General Partner’s share of any Transfer Taxes, and (iii) any liability of the General Partner for the Tax of another Person as a result of being (A) a member of an affiliated, consolidated, combined or unitary group or (B) a party to any Contract providing for an obligation to indemnify any other Person for Tax. The Partnership shall be solely liable for, shall pay and shall protect, defend, indemnify and hold harmless the Contributor Parties from any and all Taxes which arise as a result of the ownership of the General Partner after the Closing Date, except for Contributor Parties’ allocable share of any Taxes attributable to the Contributor Parties’ interest in the Partnership.

(ii)If any claim (an “Indemnified Tax Claim”) is made by any Tax Authority that, if successful, would result in indemnification of any Party (the “Tax Indemnified Party”) by another Party (the “Tax Indemnifying Party”) under Section 7.2, the Tax Indemnified Party shall promptly, but in no event later than the earlier of (i) forty-five (45) days after receipt of notice from the Tax Authority of such claim or (ii) fifteen (15) days prior to the date required for the filing of any protest of such claim, notify the Tax Indemnifying Party in writing of such fact; provided, the failure to do so shall not relieve the Indemnifying Party from any liability under Section 7.2.

Section 6.5 Registration Rights.

(a)If within 120 days following Closing, the Partnership files a Shelf Registration Statement to register Common Units received by holders of Preferred Units upon the conversion of such Preferred Units immediately prior to Closing, the Partnership shall provide written notice to each of the Contributor Parties not less than ten days prior to filing such Shelf Registration Statement with the SEC and such notice shall offer each of the Contributor Parties the opportunity to include for registration on such Shelf Registration Statement all of the Consideration received by such Contributor Party pursuant to this Agreement.  Each of the Contributor Parties shall then have three Business Days after the receipt of such written notice to request in writing the inclusion of such Contributor Party’s Consideration for registration on such Shelf Registration Statement. If a Contributor Party’s written request is not received within such specified time, such Contributor Party shall have no further rights with respect to the inclusion of such Contributor Party’s Consideration for registration on any Shelf Registration Statement filed with the SEC by the Partnership.

(b)If any Contributor Party requests pursuant to Section 6.5(a) that its Consideration be included for registration on a Shelf Registration Statement filed with the SEC by the Partnership, such Contributor Party shall (i) timely furnish, after receipt of a written request from the Partnership, the information regarding such Contributor Party that the Partnership determines is reasonably required in order for the Shelf Registration Statement to comply with the Securities Act, (ii) per an agreement in customary form, agree to indemnify the Partnership with respect to

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such information and (iii) pay all selling commissions or similar fees or arrangements in connection with the sale of such Consideration and the fees and disbursements of any counsel engaged by such Contributor Party in connection with the filing of the Shelf Registration Statement or the sale of the Consideration.

(c)Except as provide in this Section 6.5, the Contributor Parties shall not have any right to include the Consideration for registration on any registration statement filed by the Partnership with the SEC.  Notwithstanding anything to the contrary in this Section 6.5, the Contributor Parties shall not have any right to include the Consideration for sale in, or otherwise participate in, any underwritten public offering undertaken by the Partnership.

Article VII
INDEMNIFICATION, COSTS AND EXPENSES

Section 7.1Survival.

(a) Except as provided in Section7.1(b), the representations and warranties set forth in this Agreement and in any Transaction Document shall not survive the Closing. The covenants or agreements set forth in this Agreement that, by their terms, are to be performed prior to or at Closing shall expire upon and as of Closing.  The covenants or agreements set forth in this Agreement that, by their terms, are to be performed after Closing will survive until the expiration of the applicable statute of limitations or for such shorter period as explicitly specified herein. The right to indemnification under Section 6.4 shall survive the Closing until thirty (30) days after the expiration of the statute of limitations (including extensions) applicable to such Tax matter (each such claim, an “Indemnified Tax Claim” and such time period, the “Tax Indemnity Period”).

(b)The Fundamental Representations shall survive the Closing for a period of twelve (12) months, except for the representations and warranties set forth in Section 4.9 of this Agreement, which shall survive the Closing until the termination of the Tax Indemnity Period (as applicable, the “Survival Period”).   Each of the Parties hereby acknowledges and agrees that, from and after the Closing, it will not have any claims or causes of action or any right to indemnification pursuant to Section 7.2 for a breach of any representation or warranty in this Agreement that does not survive Closing.  No claim for indemnification pursuant to Section 7.2 may be made or brought by any Party hereto after the expiration of the applicable Survival Period unless such claim has been asserted by written notice specifying the details supporting the claim on or prior to the expiration of the applicable Survival Period.

Section 7.2Indemnification.  

(a)From and after the Closing, the Partnership and the partners, directors, managers, officers, employees and agents of the foregoing (collectively, the “Partnership Indemnified Parties”) shall be indemnified and held harmless severally by each Contributor Party, and not jointly, for any Losses that the Partnership incurs by reason of the incorrectness, falsity or breach of the Contributor Fundamental Representations under this Agreement.  Written notice of any claim by the Partnership for indemnification from the Contributor Parties under this Section 7.2 relating to the incorrectness, falsity or breach of the Contributor Fundamental Representations under this Agreement arising during the applicable Survival Period must be given by the Partnership to the Contributor Parties no later than the end of the applicable Survival Period.  For purposes of clarity, any claim by the Partnership for the breach of any Contributor Fundamental Representations contained in Article III or Article IV shall be indemnified severally by each Contributor Party as to itself, and not on a joint basis.

(b)From and after the Closing, the Contributor Parties (collectively, the “Contributor Indemnified Parties”) shall be indemnified and held harmless by the Partnership for any Losses that a Contributor Indemnified Party incurs by reason of the incorrectness, falsity or breach of the Partnership Fundamental Representations under this Agreement.  Written notice of any claim by a Contributor Indemnified Party for indemnification from the Partnership under this Section 7.2 relating to the incorrectness, falsity or breach of the Partnership Fundamental Representations under this Agreement arising during the applicable Survival Period must be given by a Contributor Party to the Partnership no later than the end of the applicable Survival Period.

(c)Subject to Section 7.1(a), from and after the Closing, the Partnership Indemnified Parties shall be indemnified and held harmless severally by each Contributor Party, and not jointly, and the Contributor Indemnified Parties shall be indemnified and held harmless by the Partnership, for any Losses that the Partnership or the

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Contributor Parties, as the case may be, incurs by reason of breach by the other Party of the covenants or agreements of the other Party set forth in this Agreement.

Section 7.3Defense of Claims.

(a)If any Indemnified Party receives notice of the assertion of any claim or of the commencement of any claim, action, or Proceeding made or brought by any Person who is not a Party to this Agreement or any representative of a Party to this Agreement (a “Third Party Claim”) with respect to which indemnification is to be sought from an Indemnifying Party, the Indemnified Party shall give such Indemnifying Party reasonably prompt written notice thereof, but in any event such notice shall not be given later than thirty (30) calendar days after the Indemnified Party’s receipt of notice of such Third Party Claim.  Such notice shall describe the nature of the Third Party Claim in reasonable detail and shall indicate the estimated amount, if practicable, of the indemnifiable Loss that has been or may be sustained by the Indemnified Party.  The Indemnifying Party will have the right to participate in or, by giving written notice to the Indemnified Party, to elect to assume the defense of any Third Party Claim at such Indemnifying Party’s expense and by such Indemnifying Party’s own counsel; provided, that (i) the counsel for the Indemnifying Party who shall conduct the defense of such Third Party Claim shall be reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party provides the Indemnified Party with evidence acceptable to the Indemnified Party that the Indemnifying Party will have sufficient financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder.  The Indemnified Party shall cooperate in good faith in such defense at such Indemnified Party’s own expense.  If an Indemnifying Party elects not to assume the defense of any Third Party Claim, the Indemnified Party may compromise or settle such Third Party Claim over the objection of the Indemnifying Party, which settlement or compromise shall conclusively establish the Indemnifying Party’s Liability pursuant to this Agreement.

(b)(i) If, within 20 calendar days after an Indemnified Party provides written notice to the Indemnifying Party of any Third Party Claims, the Indemnified Party receives written notice from the Indemnifying Party that such Indemnifying Party has elected to assume the defense of such Third Party Claim as provided in this Section 7.3, the Indemnifying Party will not be liable for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof (unless the Indemnifying Party is also a party to such Proceeding and the Indemnified Party determines in good faith that joint representation would be inappropriate based on a conflict of interest between the Indemnifying Party and the Indemnified Party, in which case the Indemnified Party shall have the right to engage not more than one firm as its own counsel, the fees and expenses of which shall be paid by the Indemnifying Party); provided, however, that if the Indemnifying Party shall fail to take reasonable steps necessary to defend diligently such Third Party Claim within 20 calendar days after receiving notice from the Indemnified Party that the Indemnified Party believes the Indemnifying Party has failed to take such steps, the Indemnified Party may assume its own defense and the Indemnifying Party shall be liable for all reasonable expenses thereof.  

(ii) Without the prior written consent of the Indemnified Party, the Indemnifying Party shall not enter into any settlement of any Third Party Claim that would lead to Liability or create any financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder.  If a firm offer is made to settle a Third Party Claim without leading to Liability or the creation of a financial or other obligation on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to the Indemnified Party to that effect.  If the Indemnified Party fails to consent to such firm offer within 30 calendar days after its receipt of such notice, the Indemnifying Party shall be relieved of its obligations to defend such Third Party Claim and the Indemnified Party may contest or defend such Third Party Claim.  In such event, the maximum Liability of the Indemnifying Party as to such Third Party Claim will be the amount of such settlement offer plus reasonable costs and expenses paid or incurred by Indemnified Party up to the date of said notice.

(c)Any claim by an Indemnified Party on account of an indemnifiable Loss that does not result from a Third Party Claim (a “Direct Claim”) shall be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, stating the nature of such claim in reasonable detail and indicating the estimated amount, if practicable, but in any event such notice shall not be given later than 30 calendar days after the Indemnified Party becomes aware of such Direct Claim.  If the Indemnifying Party rejects such claim, the Indemnified Party will be free to seek enforcement of its right to indemnification under this Agreement.

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(d) If the amount of any indemnifiable Loss, at any time subsequent to the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under or pursuant to any insurance coverage, or pursuant to any claim, recovery, settlement or payment by, from or against any other entity, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith (together with interest thereon from the date of payment thereof to the date or repayment at the “prime rate” as published in The Wall Street Journal) shall promptly be repaid by the Indemnified Party to the Indemnifying Party.

(e)A failure to give timely notice as provided in this Section 7.3 shall not affect the rights or obligations of any Party hereunder except if, and only to the extent that, as a result of such failure, the Party that was entitled to receive such notice was actually prejudiced as a result of such failure.

Section 7.4Exclusive Remedy.  Except for the remedies contained in Section 8.7 and in the case of Fraud, after the Closing, the Parties acknowledge that the indemnification obligations  set forth in Section 7.2 are the sole and exclusive remedy with respect to this Agreement and the transactions contemplated hereby.

Section 7.5Limitations.  Notwithstanding anything to the contrary in this Article VII or elsewhere in this Agreement:

(a)Each Contributor Party’s aggregate Liability under this Agreement and from the transactions contemplated hereby shall not exceed its pro rata share of the value of the Consideration. The Partnership’s aggregate Liability under this Agreement and from the transactions contemplated hereby shall not exceed the value of the Consideration. The value of the Consideration for purposes of this Section 7.5(a) shall be determined by multiplying the number of applicable Common Units by the closing price of such Common Units on the Closing Date.

(b)Each Indemnified Party shall take, and cause its Affiliates to take, commercially reasonable steps to mitigate any Loss for which it would otherwise be entitled to indemnification pursuant to this Article VII upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided that any reasonable cost incurred by a Party to mitigate any such Loss will be deemed a Loss for purposes of this Article VII.

(c)NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER THE PARTNERSHIP NOR THE CONTRIBUTOR PARTIES NOR THEIR RESPECTIVE AFFILIATES SHALL BE LIABLE HEREUNDER TO ANY INDEMNIFIED PARTY FOR ANY LOST PROFITS OR PUNITIVE, CONSEQUENTIAL, REMOTE, SPECULATIVE, SPECIAL OR INDIRECT DAMAGES, EXCEPT TO THE EXTENT SUCH LOST PROFITS OR DAMAGES ARE INCLUDED IN ANY ACTION BY A THIRD PARTY AGAINST SUCH INDEMNIFIED PARTY FOR WHICH IT IS ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT.

Section 7.6Tax Treatment of Indemnity Provisions.  Each Party, to the extent permitted by applicable Law, agrees to treat any payments made pursuant to this Article VII as adjustments to the Consideration for all U.S. federal and applicable state income and franchise Tax purposes.

Section 7.7Calculation of Losses.  In calculating amounts payable to an Indemnified Party, the amount of any indemnified Losses shall be computed net of (a) payments actually recovered by any Indemnified Party under any insurance policy with respect to such Losses net of expenses and (b) any actual recovery by any Indemnified Party from any Person with respect to such Losses net of expenses.  Each Indemnified Party shall use commercially reasonable efforts to pursue reimbursement for Losses, including under insurance policies and indemnity arrangements; provided that such reimbursement is not reasonably anticipated to result in an increase in the insurance premiums to be paid by such Indemnified Party and provided further, the foregoing shall not be interpreted to require the maintenance of any insurance.

Section 7.8No Duplication.  In no event shall any Indemnified Party be entitled to recover any Losses under one Section or provision of this Agreement to the extent such Losses are recovered by such Indemnified Party, nor shall its insurer or indemnitor be entitled to any kind of subrogation or substitution which would give it the right to make a claim against the Indemnifying Party.

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Article VIII
MISCELLANEOUS

Section 8.1Amendments and Modifications.  This Agreement may be amended, modified or supplemented only by written agreement of the Parties hereto.

Section 8.2Waiver of Compliance.  Except as otherwise provided in this Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.

Section 8.3Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.  This Agreement and all questions relating to the interpretation or enforcement of this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware without regard to the Laws of the State of Delaware or any other jurisdiction that would call for the application of the substantive Laws of any jurisdiction other than Delaware.  Each Party hereby agrees that service of summons, complaint or other process in connection with any Proceedings contemplated hereby may be made in accordance with Section 8.4 addressed to such Party at the address specified pursuant to Section 8.4.  Each of the Parties irrevocably submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the event, but only in the event, that such court does not have jurisdiction over such action or Proceeding, to the exclusive jurisdiction of the United States District Court for the District of Delaware (or, in the event that such court does not have jurisdiction over such action or Proceeding, to the exclusive jurisdiction of the Delaware Superior Court) (collectively, the “Courts”), for the purposes of any Proceeding arising out of or relating to this Agreement or any transaction contemplated hereby (and agrees not to commence any Proceeding relating hereto except in such Courts).  Each of the Parties further agrees that service of any process, summons, notice or document hand delivered or sent in accordance with Section 8.4 to such Party’s address set forth in Section 8.4 will be effective service of process for any Proceeding in Delaware with respect to any matters to which it has submitted to jurisdiction as set forth in the immediately preceding sentence.  Each of the Parties irrevocably and unconditionally waives any objection to the laying of venue of any Proceeding arising out of or relating to this Agreement, the Transaction Documents or the transactions contemplated hereby or thereby in the Courts, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Proceeding brought in any such court has been brought in an inconvenient forum.  Notwithstanding the foregoing, each Party agrees that a final judgment in any Proceeding properly brought in accordance with the terms of this Agreement shall be conclusive and may be enforced by suit on the judgment in any jurisdiction or in any other manner provided at law or in equity.  EACH PARTY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT AND ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH.

Section 8.4Notices.  All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by email transmission, or mailed by a nationally recognized overnight courier, postage prepaid, to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice; provided, that notices of a change of address shall be effective only upon receipt thereof):

If to the Partnership:

 

Mid-Con Energy Partners, LP

Attn: Chad McLawhorn

2431 E. 61st Street, Suite 850

Tulsa, OK 74136

Email: cmclawhorn@midcon-energy.com

with a copy (which shall not constitute notice) to:

Sidley Austin LLP

Attention: William J. Cooper

wcooper@sidley.com

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If to the Contributor Parties:

The addresses set forth on Schedule 2.1 under the column labeled “Contributor Addresses.”

each with a copy (which shall not constitute notice) to:

GableGotwals

100 W. 5th Street

Tulsa, OK 74103

Attn: Stephen W. Lake

Email: slake@gablelaw.com

Section 8.5Assignment.  This Agreement shall be binding upon and inure to the benefit of the Parties.  Neither Party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other Parties.

Section 8.6Expenses.  Except as otherwise set forth in this Agreement, each Party shall pay its own costs and expenses (including legal, accounting, financial advisory and consulting fees and expenses) incurred by such Party in connection with the negotiation and consummation of the transactions contemplated by this Agreement and the other Transaction Documents.

Section 8.7Specific Performance.  The Parties acknowledge and agree that a breach of this Agreement would cause irreparable damage to the Partnership and the Contributor Parties and Partnership and the Contributor Parties will not have an adequate remedy at Law.  Therefore, the obligations of Partnership and the Contributor Parties under this Agreement shall be enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection therewith.  Such remedies shall, however, be cumulative and not exclusive and shall be in addition to any other remedies which any Party may have under this Agreement or otherwise.

Section 8.8Entire Agreement.  This Agreement (including the Schedules and Exhibits hereto), together with each of the other Transaction Documents, constitute the entire understanding and agreement between the Parties with respect to the subject matter hereof and supersede any and all prior or contemporaneous discussions, agreements and understandings, whether written or oral.

Section 8.9Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law in any jurisdiction by any applicable Governmental Authority, (a) such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of any other provision of this Agreement in such jurisdiction or affect the validity, legality or enforceability of any provision in any other jurisdiction, (b) such provision shall be invalid, illegal or unenforceable only to the extent strictly required by such Governmental Authority, (c) to the extent any such provision is deemed to be invalid, illegal or unenforceable, each of the Contributor Parties and the Partnership agrees that it shall use its reasonable best efforts to cause such Governmental Authority to modify such provision so that such provision shall be valid, legal and enforceable as originally intended to the greatest extent possible and (d) to the extent that the Governmental Authority does not modify such provision, each of the Contributor Parties and the Partnership agrees that they shall endeavor in good faith to exercise or modify such provision so that such provision shall be valid, legal and enforceable as originally intended to the greatest extent possible.

Section 8.10Disclosure Schedules.  The inclusion of any information (including dollar amounts) in any section of any schedule required by this Agreement (the “Disclosure Schedules”) shall not be deemed to be an admission or acknowledgment by the disclosing party or any other Party that such information is required to be listed on such section of the relevant Disclosure Schedule or is material to or outside the ordinary course of the business of the applicable Person to which such disclosure relates.  Each disclosure item set forth in the Disclosure Schedules shall relate only to the specific Section of the Agreement that corresponds to the number of such Schedule and to any other Section of this Agreement to which it is reasonably apparent on the face of such disclosure that such disclosure relates.  The information contained in this Agreement, the Exhibits hereto and the Disclosure Schedules is disclosed solely for purposes of this Agreement, and no information contained herein or therein shall be deemed to be an

20


 

admission by any Party hereto to any Third Party of any matter whatsoever (including any violation of Law or breach of Contract).

Section 8.11Third Party Beneficiaries.  This Agreement shall be binding upon and, except as provided below, inure solely to the benefit of the Parties hereto.  None of the provisions of this Agreement shall be for the benefit of or enforceable by any Person other than the Parties, including any creditor of any Party or any of their Affiliates, except that Section 6.3 shall inure to the benefit of the Persons referred to therein.  No Person other than the Parties shall obtain any right under any provision of this Agreement or shall by reason of any such provision make any claim in respect of any Liability (or otherwise) against any other Party hereto.

Section 8.12Facsimiles; Electronic Transmission; Counterparts.  This Agreement may be executed by facsimile or other electronic transmission (including scanned documents delivered by email) by any Party and such execution shall be deemed binding for all purposes hereof, without delivery of an original signature being thereafter required.  This Agreement may be executed in one or more counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document.

Section 8.13Time of Essence.  Time is of the essence in the performance of this Agreement.

Section 8.14Deed; Bill of Sale; Assignment. To the extent required and permitted by applicable Law, this Agreement shall also constitute a “deed,” “bill of sale” or “assignment” of the Subject Interests.

* * * * *

 

21


 

IN WITNESS WHEREOF, the Parties execute and deliver this Agreement, effective as of the date first above written.

PARTNERSHIP:

 

MID-CON ENERGY PARTNERS, LP

 

By:

Mid-Con Energy GP, LLC, its general partner

 

 

 

 

By:

/s/ Charles L. McLawhorn, III

 

Charles L. McLawhorn, III

 

Vice President, General Counsel and Secretary


SIGNATURE PAGE TO CONTRIBUTION AGREEMENT

 


 

CONTRIBUTOR PARTIES:

Class A Members:


By:/s/ Charles R. Olmstead
Charles R. Olmstead


By:/s/ Jeffrey R. Olmstead
Jeffrey R. Olmstead


SIGNATURE PAGE TO CONTRIBUTION AGREEMENT

 


 

Class B Members:

By:/s/ S. Craig George
S. Craig George


 

SIGNATURE PAGE TO CONTRIBUTION AGREEMENT

 


 

EXHIBIT A

Form of Revised GP LLC Agreement


A-1

 

 


 

EXHIBIT B

Form of Revised Partnership Agreement

 

 

 

 

B-1


 

EXHIBIT C

Form of Spousal Consent

 

 

D-1

 


 

 

 

Schedules

 

Schedule 2.1

 

Contributor Party

Subject Interests

Contributor Address

Consideration (Total Number of Common Units)

Charles R. Olmstead

50% of the Class A Interests

 

6,000

Jeffrey R. Olmstead

50% of the Class A Interests

 

6,000

S. Craig George

100% of the Class B Interests

 

6,000

 

Schedule 2.3(a)(iii)

 

Charles R. Olmstead

 

Fred Ball Jr.

 

John Brown

 

Wilkie S. Colyer Jr.

 

Peter A. Leidel

 

Cameron O. Smith

 

2.1-1

 

mcep-ex31_12.htm

EXHIBIT 3.1

THIRD AMENDMENT TO
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
MID-CON ENERGY PARTNERS, LP

THIS THIRD AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF MID-CON ENERGY PARTNERS, LP dated as of June 4, 2020 (this “Amendment”) is entered into by Mid-Con Energy GP, LLC (the “General Partner”), a Delaware limited liability company and the general partner of Mid-Con Energy Partners, LP, a Delaware limited partnership (the “Partnership”), pursuant to the authority granted to the General Partner in Section 13.1 of the First Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of December 20, 2011, as amended by the First Amendment thereto, dated as of August 11, 2016, and the Second Amendment thereto, dated as of January 31, 2018 (as amended, the “Partnership Agreement”).  Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Partnership Agreement.

RECITALS

WHEREAS, the Partnership is entering into a Contribution Agreement, dated the date hereof (the “Contribution Agreement”), with the Class A members and the Class B member (collectively, the “GP Members”) of the General Partner pursuant which the GP Members will contribute their respective limited liability company membership interests in the Company to the Partnership;

WHEREAS, Mid-Con Energy Properties, LLC, a wholly owned subsidiary of the Partnership, is entering into a fifteenth amendment, dated the date hereof (the “Credit Facility Amendment”), to its credit facility with Wells Fargo Bank, National Association, and the other financial institutions party thereto (collectively, the “Lenders”), and to induce the Lenders to enter into the Credit Facility Amendment, the Partnership is entering into certain restructuring transactions, including the adoption of this Amendment and the Contribution Agreement;

WHEREAS, Sections 5.10(c)(iv)(A) and (B) of the Partnership Agreement provide that the approval of a Class A Preferred Unit Majority shall be required to amend the Partnership Agreement in any manner (a) that adversely alters or changes the rights, powers, privileges or preferences or duties and obligations of the Class A Preferred Units or (b) that modifies any terms of the Class A Preferred Units;

WHEREAS, Sections 5.12(c)(iv)(A) and (B) of the Partnership Agreement provide that the approval of a Class B Preferred Unit Majority shall be required to amend the Partnership Agreement in any manner (a) that adversely alters or changes the rights, powers, privileges or preferences or duties and obligations of the Class B Preferred Units or (b) that modifies any terms of the Class B Preferred Units;

WHEREAS, Section 13.11 of the Partnership Agreement provides that, 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, without a vote and without prior notice, if an approval in writing or by electronic transmission is signed or transmitted by Limited Partners owning not less than the minimum percentage, by Percentage Interest, of the Outstanding Partnership Interests of the class or classes for which a meeting has been or would have been called (including Partnership 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 entitled to vote at such meeting were present and voted;

WHEREAS, (a) the General Partner has authorized the Class A Preferred Holders and the Class B Preferred Holders, respectively, to take action in writing or by electronic transmission to approve this Amendment and (b) Class A Preferred Holders holding, in the aggregate, a Class A Preferred Unit Majority, and Class B Preferred Holders holding, in the aggregate, a Class B Preferred Unit Majority, in each case, have executed a written consent approving this Amendment;

WHEREAS, Section 13.1(d)(1) of the Partnership Agreement provides that the General Partner, without the approval of any Limited Partner, may amend any provision of the Partnership Agreement that the General Partner determines does not adversely affect the Limited Partners considered as a whole (or any particular class of Partnership Interests as compared to other classes of Partnership Interests) in any material respect; provided, however, that for purposes of determining whether an amendment satisfies the requirements of such Section 13.1(d)(1), the General Partner may in its sole discretion disregard any adverse effect on any class or classes of Partnership Interests the holders of which have approved such amendment;

WHEREAS, effective after market close on April 9, 2020, the Partnership completed a 1-for-20 reverse split of its Outstanding Common Units (the “Reverse Split”);  

WHEREAS, Sections 5.10(d)(ix) and Section 5.12(d)(ix) of the Partnership Agreement provide that, if the Partnership combines or reclassifies its Common Units into a smaller number of Common Units, then the respective Conversion Prices in effect as of the effective date of such combination or reclassification will be proportionately adjusted so that, thereafter, the conversion of Preferred Units after such time will entitle a Preferred Holder to receive the aggregate number of Common Units that such Preferred Holder would have been entitled to receive if such Preferred Units had been converted into Common Units immediately prior to the effective date of such combination or reclassification;

WHEREAS, the General Partner deems it advisable and in the best interest of the Partnership to effect this Amendment to amend the terms of the Preferred Units to provide that, after taking into account the Reverse Split, each such class of Preferred Units will be mandatorily and automatically converted into Common Units, effective immediately prior to Closing (as defined in the Contribution Agreement) at their respective Conversion Prices, and otherwise upon the terms, provided herein;

NOW, THEREFORE, in consideration of the covenants, conditions and agreements contained herein, the General Partner hereby adopts the following:

2


 

A.Amendment. The Partnership Agreement is hereby amended as follows:

1.Article I is hereby amended to add or restate, as applicable, the following definitions in Section 1.1 in the appropriate alphabetical order:

Class A Conversion Price means $3.3402.

Class A Conversion Rate means, for each Class A Preferred Unit, a number of Common Units equal to the quotient of (i) the Class A Preferred Unit Price divided by (ii) the Class A Conversion Price.

Class B Conversion Price means $2.8626.

Class B Conversion Rate” means, for each Class B Preferred Unit, a number of Common Units equal to the quotient of (i) the Class B Preferred Unit Price divided by (ii) the Class B Conversion Price.

Conversion Price” means the Class A Conversion Price or the Class B Conversion Price.

Contribution Agreement” means that certain Contribution Agreement dated as of June 4, 2020.  

2.Section 5.10(d) is hereby amended and restated as follows:

(d)

Conversion.

(i)Immediately prior to Closing (as defined in the Contribution Agreement), all of the Outstanding Class A Preferred Units shall be mandatorily and automatically converted into Common Units at the Class A Conversion Rate, without further action on the part of the Partnership, the General Partner or any Class A Preferred Holder.

(ii)The Partnership shall not make any payment with respect to any accrued but unpaid and accumulated distributions as of the Conversion Date.

(iii)In lieu of issuing any fractional Common Unit upon the conversion of a Class A Preferred Unit pursuant to this Section 5.10(d), the Partnership shall, in the sole discretion of the General Partner, round the number of Common Units issued upon conversion of each Class A Preferred Unit (A) up to the nearest whole Common Unit or (B) down to the nearest whole Common Unit and pay cash in lieu of any such fractional Common Unit.

(iv)The Common Units issued upon conversion of the Class A Preferred Units pursuant to this Section 5.10(d) shall be issued in book-entry form; provided that, following such conversion, a holder of converted Class A

3


 

Preferred Units may request that such Common Units be evidenced by Certificates in such form as the Board of Directors may approve.

(v)Upon conversion of the Class A Preferred Units pursuant to this Section 5.10(d), the rights of a holder of converted Class A Preferred Units as a Class A Preferred Holder shall cease with respect to such converted Class A Preferred Units, including any rights under this Agreement with respect to Class A Preferred Holders, and such Person shall continue to be a Limited Partner and have the rights of a holder of Common Units under this Agreement. Each Class A Preferred Unit shall, as of the Conversion Date, be deemed to be transferred to, and cancelled by, the Partnership in exchange for the issuance of the Common Unit(s) into which such Class A Preferred Unit converted.

(vi)The Partnership shall pay any documentary, stamp or similar issue or transfer taxes or duties relating to the issuance or delivery of Common Units upon conversion of the Class A Preferred Units. However, a Class A Preferred Holder whose Class A Preferred Units are converted shall pay any tax or duty which may be payable relating to any transfer involving the issuance or delivery of Common Units in a name other than the holder’s name. The Transfer Agent may refuse to deliver the Common Units being issued in a name other than the holder’s name until the Transfer Agent receives a sum sufficient to pay any tax or duties due because such Common Units are to be issued in a name other than the holder’s name. Nothing herein shall preclude any tax withholding required by law or regulation.

(vii)All Common Units delivered upon conversion of the Class A Preferred Units in accordance with this Section 5.10(d) shall be (1) newly issued and (2) duly authorized, validly issued, fully paid and non-assessable Limited Partner Interests in the Partnership, except as such non-assessability may be affected by Section 17-303, 17-607 or 17-804 of the Delaware Act, and shall be free from preemptive rights and free of any lien, claim, rights or encumbrances, other than those arising under the Delaware Act or this Agreement and other than restrictions on transfer under applicable securities laws.

(viii)The Partnership shall comply with all applicable securities laws pertaining to the issuance of any Common Units upon conversion of Class A Preferred Units and, if the Common Units are then listed, quoted or admitted to trading on the NASDAQ or any other National Securities Exchange or other market, shall list or cause to have quoted or admitted to trading and keep listed, quoted or admitted to trading the Common Units issuable upon conversion of the Class A Preferred Units to the extent permitted or required by the rules of such exchange or market.

3.Section 5.11 is hereby deleted.

4.Section 5.12(d) is hereby amended and restated as follows:

4


 

(d)

Conversion.

(i)Immediately prior to Closing (as defined in the Contribution Agreement), all of the Outstanding Class B Preferred Units shall be mandatorily and automatically converted into Common Units at the Class B Conversion Rate, without further action on the part of the Partnership, the General Partner or any Class B Preferred Holder.

(ii)The Partnership shall not make any payment with respect to any accrued but unpaid and accumulated distributions as of the Conversion Date.

(iii)In lieu of issuing any fractional Common Unit upon the conversion of a Class B Preferred Unit pursuant to this Section 5.12(d), the Partnership shall, in the sole discretion of the General Partner, round the number of Common Units issued upon conversion of each Class B Preferred Unit (A) up to the nearest whole Common Unit or (B) down to the nearest whole Common Unit and pay cash in lieu of any such fractional Common Unit.

(iv)The Common Units issued upon conversion of the Class B Preferred Units pursuant to this Section 5.12(d) shall be issued in book-entry form; provided that, following such conversion, a holder of converted Class B Preferred Units may request that such Common Units be evidenced by Certificates in such form as the Board of Directors may approve.

(v)Upon conversion of the Class B Preferred Units pursuant to this Section 5.12(d), the rights of a holder of converted Class B Preferred Units as a Class B Preferred Holder shall cease with respect to such converted Class B Preferred Units, including any rights under this Agreement with respect to Class B Preferred Holders, and such Person shall continue to be a Limited Partner and have the rights of a holder of Common Units under this Agreement. Each Class B Preferred Unit shall, as of the Conversion Date, be deemed to be transferred to, and cancelled by, the Partnership in exchange for the issuance of the Common Unit(s) into which such Class B Preferred Unit converted.

(vi)The Partnership shall pay any documentary, stamp or similar issue or transfer taxes or duties relating to the issuance or delivery of Common Units upon conversion of the Class B Preferred Units. However, a Class B Preferred Holder whose Class B Preferred Units are converted shall pay any tax or duty which may be payable relating to any transfer involving the issuance or delivery of Common Units in a name other than the holder’s name. The Transfer Agent may refuse to deliver the Common Units being issued in a name other than the holder’s name until the Transfer Agent receives a sum sufficient to pay any tax or duties due because such Common Units are to be issued in a name other than the holder’s name. Nothing herein shall preclude any tax withholding required by law or regulation.

5


 

(vii)All Common Units delivered upon conversion of the Class B Preferred Units in accordance with this Section 5.12(d) shall be (1) newly issued and (2) duly authorized, validly issued, fully paid and non-assessable Limited Partner Interests in the Partnership, except as such non-assessability may be affected by Section 17-303, 17-607 or 17-804 of the Delaware Act, and shall be free from preemptive rights and free of any lien, claim, rights or encumbrances, other than those arising under the Delaware Act or this Agreement and other than restrictions on transfer under applicable securities laws.

The Partnership shall comply with all applicable securities laws pertaining to the issuance of any Common Units upon conversion of Class B Preferred Units and, if the Common Units are then listed, quoted or admitted to trading on the NASDAQ or any other National Securities Exchange or other market, shall list or cause to have quoted or admitted to trading and keep listed, quoted or admitted to trading the Common Units issuable upon conversion of the Class B Preferred Units to the extent permitted or required by the rules of such exchange or market.

5.Section 5.13 is hereby amended and restated as follows:

Section 5.13

Special Provisions Relating to the Preferred Holders.

(a)Immediately upon the conversion of any Preferred Unit into Common Units pursuant to Sections 5.10(d) or 5.12(d), the Unitholder holding a Preferred Unit that is converted shall possess all of the rights and obligations of a Unitholder holding Common Units hereunder, including the right to vote as a Common Unitholder and the right to participate in allocations of income, gain, loss and deduction and distributions made with respect to Common Units.

(b)A Unitholder holding a Preferred Unit that has converted into a Common Unit pursuant to Sections 5.10(d) or 5.12(d) shall not be permitted to transfer its converted Preferred Units to a Person that is not an Affiliate of the holder until such time as the General Partner determines, based on advice of counsel, that upon transfer, each such converted Preferred Unit should have intrinsic economic and U.S. federal income tax characteristics to the transferee, in all material respects, that are the same as the intrinsic economic and U.S. federal income tax characteristics that a Common Unit (other than a converted Preferred Unit) would have to such transferee upon transfer, provided that in all events such determination shall be made within two (2) Business Days of the date of conversion or receipt by the Partnership of the notice of transfer, as applicable. The General Partner shall act in good faith and shall make the determinations set forth in this Section 5.13(b) as soon as practicable following the Conversion Date or as earlier provided herein.

B.Agreement in Effect. Except as hereby amended, the Partnership Agreement shall remain in full force and effect.

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

6


 

D.Severability. Each provision of this Amendment shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Amendment that are valid, enforceable and legal.

E.Miscellaneous. Notwithstanding anything herein to the contrary, all measurements and references related to Unit prices, Unit numbers and distribution amounts (other than those expressed in percentages) herein, shall be, in each instance, appropriately adjusted for unit splits, combinations, distributions and the like.

F.Ratification of Partnership Agreement. Except as expressly modified and amended herein, all of the terms and conditions of the Partnership Agreement shall remain in full force and effect.

(Signature page follows)

 

7


 

IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.

GENERAL PARTNER:

 

MID-CON ENERGY GP, LLC

 

 

 

By:/s/ Charles L. McLawhorn, III
Charles L. McLawhorn, III
Vice President, General Counsel and Secretary

 

 

THIRD AMENDMENT TO

FIRST AMENDED AND RESTATED AGREEMENT

OF LIMITED PARTNERSHIP OF MID-CON ENERGY PARTNERS, LP

mcep-ex32_11.htm

EXHIBIT 3.2

SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP

OF

MID-CON ENERGY PARTNERS, LP

 

 


 

TABLE OF CONTENTS

Page

Article I

DEFINITIONS1

 

Section 1.1

Definitions.1

 

Section 1.2

Construction.1

Article II

ORGANIZATION1

 

Section 2.1

Formation.1

 

Section 2.2

Name.1

 

Section 2.3

Registered Office; Registered Agent; Principal Office; Other Offices.1

 

Section 2.4

Purpose and Business.1

 

Section 2.5

Powers.1

 

Section 2.6

Term.1

 

Section 2.7

Title to Partnership Assets.1

Article III

RIGHTS OF LIMITED PARTNERS1

 

Section 3.1

Limitation of Liability.1

 

Section 3.2

Management of Business.1

 

Section 3.3

Outside Activities of the Limited Partners.1

 

Section 3.4

Rights of Limited Partners.1

Article IV

CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS; REDEMPTION OF PARTNERSHIP INTERESTS1

 

Section 4.1

Certificates.1

 

Section 4.2

Mutilated, Destroyed, Lost or Stolen Certificates.1

 

Section 4.3

Record Holders.1

 

Section 4.4

Transfer Generally.1

 

Section 4.5

Registration and Transfer of Limited Partner Interests.1

 

Section 4.6

Transfer of the General Partner’s General Partner Interest.1

 

Section 4.7

Restrictions on Transfers.1

 

Section 4.8

Eligibility Certificates; Ineligible Citizen Holders.1

 

Section 4.9

Redemption of Partnership Interests of Ineligible Citizen Holders.1

Article V

CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS1

 

Section 5.1

Transformation of the General Partner Interest.1

 

Section 5.2

Contributions by Limited Partners.1

 

Section 5.3

Interest and Withdrawal of Capital Contributions.1

 

Section 5.4

Capital Accounts.1

 

Section 5.5

Issuances of Additional Partnership Interests.1

 

Section 5.6

Limited Preemptive Right.1

 

Section 5.7

Splits and Combinations.1

 

Section 5.8

Fully Paid and Non-Assessable Nature of Limited Partner Interests.1

Article VI

ALLOCATIONS AND DISTRIBUTIONS1

 

Section 6.1

Allocations for Capital Account Purposes.1

i


 

 

Section 6.2

Allocations for Tax Purposes.1

 

Section 6.3

Requirement of Distributions; Distributions to Record Holders.1

 

Section 6.4

Application of Section 6.1 and Section 6.2.1

 

Section 6.5

Special Provisions Relating to Exercise Units.1

Article VII

MANAGEMENT AND OPERATION OF BUSINESS1

 

Section 7.1

Management.1

 

Section 7.2

Certificate of Limited Partnership.1

 

Section 7.3

Restrictions on the General Partner’s Authority.1

 

Section 7.4

Reimbursement of the General Partner.1

 

Section 7.5

Outside Activities.1

 

Section 7.6

Loans from the General Partner; Loans or Contributions from the Partnership or Group Members.1

 

Section 7.7

Indemnification.1

 

Section 7.8

Liability of Indemnitees.1

 

Section 7.9

Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties.1

 

Section 7.10

Other Matters Concerning the General Partner.1

 

Section 7.11

Purchase or Sale of Partnership Interests.1

 

Section 7.12

Reliance by Third Parties.1

 

Section 7.13

Modification of Duties.1

Article

VIII BOOKS, RECORDS, ACCOUNTING AND REPORTS1

 

Section 8.1

Records and Accounting.1

 

Section 8.2

Fiscal Year.1

 

Section 8.3

Reports.1

Article IX

TAX MATTERS1

 

Section 9.1

Tax Returns and Information.1

 

Section 9.2

Tax Elections.1

 

Section 9.3

Tax Controversies.1

 

Section 9.4

Withholding; Tax Payments.1

Article X

ADMISSION OF PARTNERS1

 

Section 10.1

Admission of Limited Partners.1

 

Section 10.2

Admission of Successor or Additional General Partner.1

 

Section 10.3

Amendment of Agreement and Certificate of Limited Partnership.1

Article XI

WITHDRAWAL OR REMOVAL OF PARTNERS1

 

Section 11.1

Withdrawal of the General Partner.1

 

Section 11.2

Removal of the General Partner.1

 

Section 11.3

Interest of Departing General Partner and Successor General Partner.1

 

Section 11.4

Withdrawal of Limited Partners.1

Article XII

DISSOLUTION AND LIQUIDATION1

 

Section 12.1

Dissolution.1

 

Section 12.2

Continuation of the Business of the Partnership After Dissolution.1

ii


 

 

Section 12.3

Liquidator.1

 

Section 12.4

Liquidation.1

 

Section 12.5

Cancellation of Certificate of Limited Partnership.1

 

Section 12.6

Return of Contributions.1

 

Section 12.7

Waiver of Partition.1

 

Section 12.8

Capital Account Restoration.1

Article XIII

AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE1

 

Section 13.1

Amendments to be Adopted Solely by the General Partner.1

 

Section 13.2

Amendment Procedures.1

 

Section 13.3

Amendment Requirements.1

 

Section 13.4

Special Meetings.1

 

Section 13.5

Notice of a Meeting.1

 

Section 13.6

Record Date.1

 

Section 13.7

Adjournment.1

 

Section 13.8

Waiver of Notice; Approval of Meeting.1

 

Section 13.9

Quorum and Voting.1

 

Section 13.10

Conduct of a Meeting.1

 

Section 13.11

Action Without a Meeting.1

 

Section 13.12

Right to Vote and Related Matters.1

 

Section 13.13

Election of Directors.1

Article XIV

MERGER, CONSOLIDATION OR CONVERSION1

 

Section 14.1

Authority.1

 

Section 14.2

Procedure for Merger, Consolidation or Conversion.1

 

Section 14.3

Approval by Limited Partners.1

 

Section 14.4

Certificate of Merger.1

 

Section 14.5

Effect of Merger, Consolidation or Conversion.1

Article XV

GENERAL PROVISIONS1

 

Section 15.1

Addresses and Notices; Written Communications.1

 

Section 15.2

Further Action.1

 

Section 15.3

Binding Effect.1

 

Section 15.4

Integration.1

 

Section 15.5

Creditors.1

 

Section 15.6

Waiver.1

 

Section 15.7

Third-Party Beneficiaries.1

 

Section 15.8

Counterparts.1

 

Section 15.9

Applicable Law; Forum, Venue and Jurisdiction.1

 

Section 15.10

Invalidity of Provisions.1

 

Section 15.11

Consent of Partners.1

 

Section 15.12

Facsimile Signatures.1

EXHIBIT A

 

 

iii


SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF MID-CON ENERGY PARTNERS, LP

THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF MID-CON ENERGY PARTNERS, LP, dated as of June 4, 2020, is entered into by and among MID-CON ENERGY GP, LLC, a Delaware limited liability company, as the General Partner, together with any other Persons who are or become Partners in the Partnership or parties hereto as provided herein.  

WHEREAS, the General Partner and the other parties thereto entered into that certain First Amended and Restated Agreement of Limited Partnership of Mid-Con Energy Partners, LP, dated as of December 20, 2011, as amended by the First Amendment thereto, dated as of August 11, 2016, the Second Amendment thereto, dated as of January 31, 2018 and the Third Amendment thereto, dated as of June 4, 2020 (such agreement as amended, the “First Amended and Restated Partnership Agreement”);

WHEREAS, Section 13.1(d)(1) of the First Amended and Restated Partnership Agreement provides that the General Partner, without the approval of any Partner, may amend any provision of the First Amended and Restated Partnership Agreement to reflect a change that the General Partner determines does not adversely affect the Limited Partners (as defined in the First Amended and Restated Partnership Agreement) considered as a whole (or any particular class of Partnership Interests (as defined in the First Amended and Restated Partnership Agreement) as compared to other classes of Partnership Interests (as defined in the First Amended and Restated Partnership Agreement)) in any material respect; provided, however, that for purposes of determining whether an amendment satisfies the requirements of such Section 13.1(d)(1), the General Partner may in its sole discretion disregard any adverse effect on any class or classes of Partnership Interests (as defined in the First Amended and Restated Partnership Agreement) the holders of which have approved such amendment;

WHEREAS, Section 13.1(g) of the First Amended and Restated Partnership Agreement provides that the General Partner, without the approval of any Partner, may amend any provision of the First Amended and Restated Partnership Agreement to reflect an amendment that the General Partner determines to be necessary or appropriate in connection with the creation, authorization or issuance of any class or series of Partnership Interests (as defined in the First Amended and Restated Partnership Agreement) or options, rights, warrants, restricted units, appreciation rights, tracking or phantom interests or other economic interests in the Partnership related to the Partnership Interests (as defined in the First Amended and Restated Partnership Agreement) pursuant to the terms of Section 5.6 of the First Amended and Restated Partnership Agreement;

WHEREAS, concurrently with the execution of this Agreement by the General Partner, the Partnership entered into the Contribution Agreement (as defined below) and certain other restructuring transactions;

WHEREAS, the Partnership has entered into a Contribution Agreement (the “Contribution Agreement”), dated as of the date hereof, among the Partnership, the holders of all of the limited liability company interests of the General Partner, pursuant to which, among other

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things, such holders contributed all of the limited liability company interests in the General Partner to the Partnership in exchange for the issuance by the Partnership of 18,000 Common Units allocated among such holders (such transaction, the “Contribution”);

WHEREAS, the General Partner has determined, pursuant to Section 13.1(d)(1) and Section 13.1(g) of the First Amended and Restated Partnership Agreement, that the amendments to the First Amended and Restated Partnership Agreement set forth herein (i) are necessary or appropriate in connection with the issuance of Common Units pursuant to the Contribution Agreement, and the issuance of the non-economic General Partner Interest (as defined herein) and (ii) do not adversely affect the Limited Partners (as defined in the First Amended and Restated Partnership Agreement) considered as a whole (or any particular class of Partnership Interests (as defined in the First Amended and Restated Partnership Agreement) as compared to other classes of Partnership Interests (as defined in the First Amended and Restated Partnership Agreement)) in any material respect.

NOW, THEREFORE, in consideration of the covenants, conditions and agreements contained herein, the parties hereto hereby agree as follows:

Article I

DEFINITIONS

Definitions.  

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

Adjusted Capital Account” means the Capital Account maintained for each Partner as of the end of each taxable period 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 deductions in respect of depletion that, as of the end of such taxable period, are reasonably expected to be made to such Partner’s Capital Account in respect of the oil and gas properties of the Partnership Group, (ii) the amount of all losses and deductions that, as of the end of such taxable period, are reasonably expected to be allocated to such Partner in subsequent taxable periods under Sections 704(e)(2) and 706(d) of the Code and Treasury Regulation Section 1.751-1(b)(2)(ii), and (iii) the amount of all distributions that, as of the end of such taxable period, are reasonably expected to be made to such Partner in subsequent taxable periods 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 taxable period 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 any Partnership Interest shall be the amount that such Adjusted Capital Account would be if such Partnership Interest were the only interest in the Partnership held by such Partner from and after the date on which such Partnership Interest was first issued.

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Adjusted Property” means any property the Carrying Value of which has been adjusted pursuant to Section 5.4(d)(i) or Section 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.

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

Agreed Value” of any Contributed Property means the fair market value of such property at the time of contribution and in the case of an Adjusted Property, the fair market value of such Adjusted Property on the date of the revaluation event as described in Section 5.4(d), in both cases as determined by the General Partner.

Agreement” means this Second Amended and Restated Agreement of Limited Partnership of Mid-Con Energy Partners, LP, as it may be amended, supplemented or restated from time to time.

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

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

(a)

the sum of (i) all cash and cash equivalents of the Partnership Group (or the Partnership’s proportionate share of cash and cash equivalents in the case of Subsidiaries that are not wholly owned) on hand at the end of such Quarter and, (ii) if the General Partner so determines, all or a portion of the cash and cash equivalents on hand on the date of determination of Available Cash for such Quarter, less

(b)

the amount of any cash reserves (or the Partnership’s proportionate share of cash reserves in the case of Subsidiaries that are not wholly owned) established by the General Partner to (i) provide for the proper conduct of the business of the Partnership Group (including reserves for future capital expenditures, working capital and operating expenses) subsequent to such Quarter, (ii) comply with applicable law or any loan agreement, security agreement, mortgage, debt instrument or other agreement or obligation to which any Group Member is a party or by which it is bound or its assets are subject or (iii) provide funds for distributions under Section 6.3 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

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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 the board of directors, board of managers or similar governing body, as applicable, of the General Partner or, if the General Partner is a limited partnership, the board of directors, board of managers or similar governing body of the general partner of the General Partner.

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.

Business Day” means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America or the State of Texas 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 any Partnership Interest shall be the amount that such Capital Account would be if such Partnership Interest were the only interest in the Partnership held by such Partner from and after the date on which such Partnership Interest was first issued.

Capital Contribution” means any cash, cash equivalents or the Net Agreed Value of Contributed Property that a Partner contributes to the Partnership or that is contributed or deemed contributed to the Partnership on behalf of a Partner (including, in the case of an underwritten offering of Units, the amount of any underwriting discounts or commissions).

Carrying Value” means (a) with respect to a Contributed Property or Adjusted Property, the Agreed Value of such property reduced (but not below zero) by all depreciation, Simulated Depletion, amortization and cost recovery deductions charged to the Partners’ Capital Accounts in respect of such 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; provided, however, that the Carrying Value of any property shall be adjusted from time to time in accordance with Section 5.4(d) 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.

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

Certificate” means a certificate in such form (including global form if permitted by applicable rules and regulations) as may be adopted by the General Partner, issued by the Partnership evidencing ownership of one or more Partnership Interests.  The initial form of certificate approved by the General Partner for Common Units is attached as Exhibit A to this Agreement.  Any modification to or replacement of such form of Certificate adopted by the General Partner shall not constitute an amendment to this Agreement.

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

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 Holder.

class” or “classes” means the classes of Units into which Partnership Interests may be classified or divided from time to time by the General Partner in its sole discretion pursuant to the provisions of this Agreement.  As of the date of this Agreement, the only class is the Common Units.  Subclasses within a class shall not be separate classes for purposes of this Agreement.  For all purposes hereunder and under the Delaware Act, only such classes expressly established under this Agreement, including by the General Partner in accordance with this Agreement, shall be deemed to be classes of Partnership Interests or Limited Partner Interests in the Partnership.

Closing Date” means the closing date of the sale of the Firm Units (as such term is defined in the Underwriting Agreement) in the Initial Public Offering.

Closing Price” means, in respect of any class of Limited Partner Interests, as of the date of determination, the last sale price on such day, regular way, or in case no such sale takes place on such day, the average of the closing bid and asked prices on such day, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal National Securities Exchange or other trading market on which the respective Limited Partner Interests are listed or admitted to trading or, if such Limited Partner Interests are not listed or admitted to trading on any National Securities Exchange or other trading market, the last quoted price on such day or, if not so quoted, the average of the high bid and low asked prices on such day in the over-the-counter market, as reported by the primary reporting system then in use in relation to such Limited Partner Interests of such class, or, if on any such day such Limited Partner Interests of such class are not quoted by any such organization, the average of the closing bid and asked prices on such day as furnished by a professional market maker making a market in such Limited Partner Interests of such class selected by the General Partner, or if on any such day no market maker is making a market in such Limited

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Partner Interests of such class, the fair value of such Limited Partner Interests on such day as determined by the General Partner.

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

Combined Interest” is defined in Section 11.3(a).

Commission” means the United States Securities and Exchange Commission or any successor agency having jurisdiction under the Securities Act.

Common Unit” means a Partnership Interest representing a fractional part of the Partnership Interests of all Limited Partners and assignees, and having the rights and obligations specified with respect to the Common Units in this Agreement.  

Conflicts Committee” means a committee of the Board of Directors composed entirely of two or more directors who (a) are not (i) officers or employees of the General Partner, (ii) officers or employees of any Affiliate of the General Partner or directors of any Affiliate of the General Partner (other than a Group Member) or (iii) holders of any ownership interest in the General Partner or any of its Affiliates, including any Group Member, other than Common Units or securities exercisable, convertible into or exchangeable for Common Units (including awards made to such director under any incentive plan for the General Partner or the Partnership) and (b) also meet the independence standards required of directors who serve on an audit committee of a board of directors established by the Securities Exchange Act and the rules and regulations of the Commission thereunder and by the National Securities Exchange or other trading market on which any class of Partnership Interests is listed or admitted to trading.

“Contango” is defined in the recitals to this Agreement.

Contributed Property” means each property, 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” is defined in the recitals to this Agreement.

Contribution Agreement” is defined in the recitals to this Agreement.

Contribution and Merger Agreement” means that certain Contribution, Conveyance, Assumption and Merger Agreement, dated as of December 20, 2011, among the General Partner, the Partnership, the Operating Company, Mid-Con I, Mid-Con II and the Founders, together with the additional conveyance documents and instruments contemplated or referenced thereunder, as such may be amended, supplemented or restated from time to time

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.

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

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

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

Directors” means the members of the Board of Directors.

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

Effective Time” means the closing of the Contribution.  

Eligibility Certification” means a Citizenship Certification.

Eligible Citizen Holder” means (A) (i) a citizen of the United States; (ii) a corporation organized under the laws of the United States or of any state thereof; (iii) a public body of the United States, including a municipality of the United States; or (iv) an association of United States citizens, such as a partnership or limited liability company, organized under the laws of the United States or of any state thereof, but only if such association does not have any direct or indirect foreign ownership, other than foreign ownership of stock in a parent corporation organized under the laws of the United States or of any state thereof, and (B) a Limited Partner whose nationality, citizenship or other related status would not, in the determination of the General Partner, create a substantial risk of cancellation or forfeiture of any property in which a Group Member has an interest.

Event of Withdrawal” is defined in Section 11.1(a).

Excess Distribution” is defined in Section 6.1(d)(x).

Excess Distribution Unit” is defined in Section 6.1(d)(x).

Exercise Units” is defined in Section 5.4(d)(i).

First Amended and Restated Partnership Agreement” is defined in the recitals to this Agreement.

General Partner” means Mid-Con Energy GP, LLC, a Delaware limited liability company, and its successors and permitted assigns that are admitted to the Partnership as general

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partner of the Partnership, in its capacity as general partner of the Partnership (except as the context otherwise requires).

General Partner Interest” means the non-economic, management interest of the General Partner in the Partnership (in its capacity as a general partner without reference to any Limited Partner Interest held by it) and includes any and all rights, powers and benefits to which the General Partner is entitled as provided in this Agreement, together with all obligations of the General Partner to comply with the terms and provisions of this Agreement.  The General Partner Interest does not have any rights to profit or loss or allocations of items of income, gain, loss or deduction, or any rights to receive any distributions from the Partnership.

Goff” means each of John C. Goff, Goff REN Holdings, LLC, Goff MCEP Holdings, LLC, Goff MCEP II, LP, Goff Focused Energy Strategies, LP, Goff Family Foundation, Goff Family Investments, LP, and John C. Goff 2010 Family Trust.

Gross Liability Value” means, with respect to any Liability of the Partnership described in Treasury Regulation Section 1.752-7(b)(3)(i), the amount of cash that a willing assignor would pay to a willing assignee to assume such Liability in an arm’s-length transaction.

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

Group Member” means a member of the Partnership Group.

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

Indemnitee” means (a) any General Partner, (b) any Departing General Partner, (c) any Person who is or was an Affiliate or Associate of the General Partner or any Departing General Partner, (d) any Person who is or was a manager, managing member, general partner, director, officer, employee, agent, fiduciary or trustee of any Group Member, a General Partner, any Departing General Partner or any Affiliate of a Group Member, a General Partner or a Departing General Partner, (e) any Person who is or was serving at the request of a General Partner, any Departing General Partner or any Affiliate of a Group Member, a General Partner or a Departing General Partner as an officer, director, manager, managing member, general partner, employee, agent, fiduciary or trustee of another Person owing a fiduciary duty to any Group Member; provided, however, that a Person shall not be an Indemnitee by reason of providing, on a fee-for-

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services basis, trustee, fiduciary or custodial services, (f) any Person who controls a General Partner or Departing General Partner and (g) any Person the General Partner in its sole discretion designates as an “Indemnitee” for purposes of this Agreement.

Ineligible Citizen Holder” means a Person whom the General Partner has determined does not constitute an Eligible Citizen Holder and as to whose Partnership Interest the General Partner has become the substitute Limited Partner, pursuant to Section 4.8(a).

Initial Common Unit” means a Common Unit sold in the Initial Public Offering.

Initial Public Offering” means the initial public offering of Common Units by the Partnership, as described in the Registration Statement.

Liability” means any liability or obligation of any nature, whether accrued, contingent or otherwise.

Limited Partner” means, unless the context otherwise requires, each Person that is a limited partner of the Partnership upon the effectiveness of this Agreement, each additional Person that becomes a Limited Partner pursuant to the terms of this Agreement and any Departing General Partner upon the change of its status from General Partner to Limited Partner pursuant to Section 11.3, in each case, in such Person’s capacity as a limited partner of the Partnership.  For purposes of the Delaware Act, the Limited Partners shall constitute a single class or group of limited partners.

Limited Partner Interest” means the ownership interest of a Limited Partner in the Partnership, which may be evidenced by Common Units or other Partnership Interests 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.  For purposes of this Agreement, the Limited Partner Interests shall constitute a single class or group of interests unless any Limited Partner Interests are expressly designated in writing as a separate class or group by the General Partner in its sole discretion.

Liquidation Date” means (a) in the case of an event giving rise to the dissolution of the Partnership of the type described in Section 12.2(a), the date on which the applicable time period during which the holders of Outstanding Units have the right to elect to continue the business of the Partnership and appoint a successor General Partner has expired without such an election and appointment 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 pursuant to Section 12.3 to perform the functions described in Section 12.4 as liquidating trustee of the Partnership within the meaning of the Delaware Act.

Merger Agreement” is defined in Section 14.1.

Mid-Con I” means Mid-Con Energy I, LLC, a Delaware limited liability company, and any successors thereto.

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Mid-Con II” means Mid-Con Energy II, LLC, a Delaware limited liability company, and any successors thereto.

National Securities Exchange” means an exchange registered with the Commission under Section 6(a) of the Securities Exchange Act (or any successor to such Section).

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 Liabilities either assumed by such Partner upon such distribution or to which such property is subject at the time of distribution.

Net Income” means, for any taxable period, the excess, if any, of the Partnership’s items of income and gain for such taxable period over the Partnership’s items of loss and deduction for such taxable period.  The items included in the calculation of Net Income shall be determined in accordance with Section 5.4(b) and shall include Simulated Gain, but shall not include any items specially allocated under Section 6.1(d) or Section 6.1(e).

Net Loss” means, for any taxable period, the excess, if any, of the Partnership’s items of loss and deduction for such taxable period over the Partnership’s items of income and gain for such taxable period.  The items included in the calculation of Net Loss shall be determined in accordance with Section 5.4(b) and shall include Simulated Gain but shall not include any items specially allocated under Section 6.1(d) or Section 6.1(e).

New Director” is defined in Section 13.13(a).

Noncompensatory Option” has the meaning set forth in Treasury Regulation Section 1.721-2(f).

Nonrecourse Built-in Gain” means, with respect to any Contributed Properties or Adjusted Properties that are subject to a mortgage or pledge securing a Nonrecourse Liability, the amount of any taxable gain that would be allocated to the Partners pursuant to Section 6.2(d) 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, expenditure (including any expenditure described in Section 705(a)(2)(B) of the Code), Simulated Depletion or Simulated Loss 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).

Operating Company” means Mid-Con Energy Properties, LLC, a Delaware limited liability company.

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

Outstanding” means, with respect to Partnership Interests, all Partnership Interests 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 the Partnership Interests of any class then Outstanding, none of the Partnership Interests of any class owned by such Person or Group shall be entitled to be voted on any matter or considered to be Outstanding when sending notices of a meeting of Limited Partners to vote on any matter (unless otherwise required by law), calculating required votes, determining the presence of a quorum or for other similar purposes under this Agreement, except that Partnership Interests so owned shall be considered to be Outstanding for purposes of Section 11.1(b)(iv) (such Partnership Interests shall not, however, be treated as a separate class or group of Partnership Interests for purposes of this Agreement or the Delaware Act); provided, further, that the foregoing limitation shall not apply to Goff and their Affiliates or any Person or Group who acquired 20% or more of any Partnership Interests issued by the Partnership if the General Partner shall have notified such Person or Group in writing that such limitation shall not apply.

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, expenditure (including any expenditure described in Section 705(a)(2)(B) of the Code), Simulated Depletion or Simulated Loss 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 Mid-Con Energy Partners, LP, a Delaware limited partnership.

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

Partnership Interest” means any class or series of interest in the Partnership, which shall include the General Partner Interest and any Limited Partner Interests (including, for the avoidance of doubt, any Common Unit) but shall exclude any options, rights, warrants and appreciation rights relating to an equity interest in the Partnership.

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

Per Unit Capital Amount” means, as of any date of determination, the Capital Account, stated on a per Unit basis, underlying any class of Units held by a Person.

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Percentage Interest” means as of any date of determination (a) as to any Unitholder with respect to Units, the quotient obtained by dividing (A) the number of Units held by such Unitholder by (B) the total number of Outstanding Units, and (b) as to the holders of other Partnership Interests issued by the Partnership in accordance with Section 5.5, the percentage established as part of such issuance.  The Percentage Interest with respect to the General Partner Interest shall at all times be zero.

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

Plan of Conversion” is defined in Section 14.1.

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

Quarter” means, unless the context requires otherwise, a fiscal quarter of the Partnership, or, with respect to the fiscal quarter of the Partnership that includes 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, (a) with respect to the Common Units or any other class of Partnership Interests for which a Transfer Agent has been appointed, the Person in whose name a Common Unit or Partnership Interest of such other class is registered on the books of the Transfer Agent as of the opening of business on a particular Business Day or, (b) with respect to other classes of Partnership Interests, the Person in whose name any such other Partnership Interest is registered on the books that the 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 Partnership’s Registration Statement on Form S-1 (Registration No. 333-176265) as it has been or as it may be amended or supplemented from time

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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 Public Offering.

Required Allocations” means any allocation of an item of income, gain, loss, deduction, Simulated Depletion or Simulated Loss pursuant to Section 6.1(d)(i), Section 6.1(d)(ii), Section 6.1(d)(iii), Section 6.1(d)(iv), Section 6.1(d)(v), Section 6.1(d)(vi), Section 6.1(d)(viii) or Section 6.1(e).

Second Amended and Restated GP LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of the General Partner, dated as of January 24, 2017.  

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.

Services Agreement” means the Services Agreement, dated as of the Closing Date, by and among the Partnership, the General Partner and Mid-Con Energy Operating, Inc.

Simulated Basis” means the Carrying Value of any oil and gas property (as defined in Section 614 of the Code).

Simulated Depletion” means, with respect to an oil and gas property (as defined in Section 614 of the Code), a depletion allowance computed in accordance with federal income tax principles (as if the Simulated Basis of the property was its adjusted tax basis) and in the manner specified in Treasury Regulation Section 1.704-1(b)(2)(iv)(k)(2).  For purposes of computing Simulated Depletion with respect to any property, the Simulated Basis of such property shall be deemed to be the Carrying Value of such property, and in no event shall such allowance for Simulated Depletion, in the aggregate, exceed such Simulated Basis.

Simulated Gain” means the excess, if any, of the amount realized from the sale or other disposition of an oil or gas property over the Carrying Value of such property.

Simulated Loss” means the excess, if any, of the Carrying Value of an oil or gas property over the amount realized from the sale or other disposition of such property.

Special Approval” means approval by a majority of the members of the Conflicts Committee.

Subsidiary” means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general or limited partner of such partnership, but only if such Person, directly or indirectly through one or more Subsidiaries of such

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Person, (i) owns 50% or more of the partnership interests of such partnership (considering all of the partnership interests of the partnership as a single class) at the date of determination or (ii) controls such partnership at the date of determination, or (c) any other Person (other than a corporation or a partnership) in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such other Person.

Surviving Business Entity” is defined in Section 14.2(b)(ii).

Trading Day” means, for the purpose of determining the Current Market Price of any class of Limited Partner Interests, a day on which the principal National Securities Exchange or other trading market on which such class of Limited Partner Interests is 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 or other trading market, a day on which banking institutions in New York City generally are open.

transfer” is defined 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 may be appointed from time to time by the General Partner to act as registrar and transfer agent for a class of Partnership Interests; provided, however, that if no Transfer Agent is specifically designated for a class of Partnership Interests, the General Partner shall act in such capacity.

Underwriter” means each Person named as an underwriter in the Underwriting Agreement who purchased Common Units pursuant thereto.

Underwriting Agreement” means the Underwriting Agreement, dated December 14, 2011, among the Underwriters, the Partnership, the General Partner and the other parties thereto, providing for the purchase of Common Units by the Underwriters in the Initial Public Offering.

Unit” means a Partnership Interest that is designated as a “Unit” and shall include Common Units but shall not include the General Partner Interest.  

Unitholders” means the holders of Units.

Unit Majority” means at least a majority of the Outstanding Common 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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Unrestricted Person” means (a) each Indemnitee, (b) each Partner, (c) each Person who is or was a member, partner, director, officer, employee or agent of any Group Member, a General Partner or any Departing General Partner or any Affiliate of any Group Member, a General Partner or any Departing General Partner and (d) any Person the General Partner designates as an “Unrestricted Person” for purposes of this Agreement.

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

Withdrawal Opinion of Counsel” is defined in Section 11.1(b).

Construction.  

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

Article II

ORGANIZATION

Formation.  

The General Partner, pursuant to the authority contained in Section 13.1(d)(1) and Section 13.1(g) of the First Amended and Restated Partnership Agreement, does hereby amend and restate the First Amended and Restated Partnership Agreement in its entirety, effective upon the Effective Time, to continue the Partnership as a limited partnership 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.

Name.  

The name of the Partnership shall be “Mid-Con Energy Partners, LP.” 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 without the consent or approval of any Limited Partner and shall notify the Limited Partners of such change in the next regular communication to the Limited Partners.

Registered Office; Registered Agent; Principal Office; Other Offices.  

Unless and until changed by the General Partner, the registered office of the Partnership in the State of Delaware shall be located at 1209 Orange Street, Wilmington, New Castle County,

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Delaware 19801, and the registered agent for service of process on the Partnership in the State of Delaware at such registered office shall be The Corporation Trust Company.  The principal office of the Partnership shall be located at 2431 E. 61st Street, Suite 850, Tulsa Oklahoma 74136, or such other place as the General Partner may from time to time designate by notice to the Limited Partners.  The Partnership may maintain offices at such other place or places within or outside the State of Delaware as the General Partner determines to be necessary or appropriate.  The address of the General Partner shall be 2431 E. 61st Street, Suite 850, Tulsa Oklahoma 74136, or such other place as the General Partner may from time to time designate by notice to the Limited Partners.

Purpose and Business.  

The purpose and nature of the business to be conducted by the Partnership shall be to (a) engage directly in, or enter into or form, hold and dispose of any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any business activity that is approved by the General Partner, in its sole discretion, and that lawfully may be conducted by a limited partnership organized pursuant to the Delaware Act and, in connection therewith, to exercise all of the rights and powers conferred upon the Partnership pursuant to the agreements relating to such business activity, (b) own, directly or indirectly, the General Partner and to exercise (including through one or more intermediaries) all the rights and powers of a member of the General Partner and (c) 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 be reasonably likely to 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 (including any fiduciary duty) or obligation whatsoever to the Partnership, any Limited Partner, any Person who acquires an interest in Partnership Interests or any other Person bound by this Agreement to propose or approve the conduct by the Partnership of any business, and may, in its sole discretion, decline to propose or approve, the conduct by the Partnership of any business free of any duty (including any fiduciary duty) or obligation whatsoever to the Partnership, any Limited Partner, any Person who acquires an interest in Partnership Interests or any other Person bound by this Agreement and, in declining to so propose or approve, shall not be required to act in good faith or pursuant to any other standard imposed by this Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity.

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.

Term.  

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

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Title to Partnership Assets.  

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

Article III

RIGHTS OF LIMITED PARTNERS

Limitation of Liability.  

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

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, to the fullest extent permitted by law, be deemed to be participation in the control of the business of the Partnership by a limited partner of the Partnership (within the meaning of Section 17-303(a) of the Delaware Act) and shall not affect, impair or eliminate the limitations on the liability of the Limited Partners under this Agreement.

Outside Activities of the Limited Partners.  

Subject to the provisions of Section 7.5, which shall continue to be applicable to the Persons referred to therein, 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 Group.  Neither the Partnership nor any of the other Partners shall have any rights by virtue of this Agreement in any business ventures of any Limited Partner.

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Section 3.4Rights of Limited Partners.

(a)In addition to other rights provided by this Agreement or by applicable law (other than Section 17-305 of the Delaware Act, the obligations of which are to the fullest extent permitted by law expressly replaced in their entirety by the provisions of this Section 3.4(a)), and except as limited by Sections 3.4(b) and 3.4(c), each Limited Partner shall have the right, for a purpose that is reasonably related to such Limited Partner’s interest as a Limited Partner in the Partnership, the reasonableness of which shall be determined by the General Partner, upon reasonable written demand stating the purpose of such demand, and at such Limited Partner’s own expense, to obtain:

(i)true and full information regarding the status of the business and financial condition of the Partnership (provided that the requirements of this Section 3.4(a)(i) shall be satisfied to the extent the Limited Partner is furnished the Partnership’s most recent annual report and any subsequent quarterly or periodic reports required to be filed with the Commission pursuant to Section 13 of the Securities Exchange Act);

(ii)a current list of the name and last known business, residence or mailing address of each Record Holder;

(iii)a copy of this Agreement and the Certificate of Limited Partnership and all amendments thereto (provided that the requirements of this Section 3.4(a)(iii) shall be satisfied to the extent that true and correct copies of such documents are publicly available with the Commission via its Electronic Data Gathering Analysis and Retrieval System);

(iv)such other information regarding the affairs of the Partnership as the General Partner determines in its sole discretion is just and reasonable.

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

(c)Notwithstanding any other provision of this Agreement or Section 17-305 of the Delaware Act, each of the Partners, each other Person who acquires an interest in a Partnership Interest and each other Person bound by this Agreement hereby agrees to the fullest extent permitted by law that they do not have rights to receive information from the Partnership or any Indemnitee for the purpose of determining whether to pursue litigation or assist in pending litigation against the Partnership or any Indemnitee relating to the affairs of the Partnership except pursuant to the applicable rules of discovery relating to litigation commenced by such Person.

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Article IV

CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS; REDEMPTION OF PARTNERSHIP INTERESTS

Certificates.  

Notwithstanding anything to the contrary in this Agreement, unless the General Partner shall determine otherwise with respect to all or a portion of any particular class of Partnership Interests, Partnership Interests shall not be evidenced by certificates; provided, upon the request of any Person holding Common Units, the Partnership shall issue one or more Certificates evidencing Common Units in the name of such Person.  Certificates issued evidencing Partnership Interests shall be executed by the General Partner on behalf of the Partnership by the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer or any Vice President and the Secretary, any Assistant Secretary, or other authorized officer or director of the General Partner on behalf of the General Partner.  No Certificate shall be valid for any purpose until it has been countersigned by the Transfer Agent (if other than the General Partner); provided, however, that, if the General Partner elects to cause the Partnership to issue Partnership Interests of such class in global form, the Certificate shall be valid upon receipt of a certificate from the Transfer Agent certifying that the Partnership Interests have been duly registered in accordance with the directions of the Partnership.

Section 4.2Mutilated, Destroyed, Lost or Stolen Certificates.

(a)If any mutilated Certificate is surrendered to the Transfer Agent (if a Transfer Agent has been appointed for the class of Partnership Interests represented by such Certificate) or the General Partner (if no Transfer Agent has been appointed for the class of Partnership Interests represented by such Certificate), the appropriate officers of the General Partner on behalf of the Partnership shall execute, and the Transfer Agent (if applicable) shall countersign and deliver in exchange therefor, a new Certificate (or, if requested by the holder thereof, other evidence of the issuance of uncertificated Partnership Interests) evidencing the same number and type of Partnership Interests 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 (if applicable) shall countersign, a new Certificate in place of any Certificate previously issued, or issue uncertificated Units, 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 or evidence of the issuance of uncertificated Partnership Interests 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 and the Transfer Agent 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

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may direct to indemnify the Partnership, the Partners, the General Partner and the Transfer Agent against any claim that may be made on account of the alleged loss, destruction or theft of the Certificate; and

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

If a Limited Partner fails to notify the General Partner within a reasonable period of time after such Limited Partner 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 or evidence of the issuance of uncertificated Partnership Interests.

(c)As a condition to the issuance of any new Certificate or evidence of the issuance of uncertificated Partnership Interests 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.

Record Holders.  

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

Section 4.4Transfer Generally.

(a)The term “transfer,” when used in this Agreement with respect to a Partnership Interest, shall mean a transaction (i) by which the General Partner assigns its General Partner Interest to another Person, and includes a sale, assignment, gift, pledge, encumbrance, hypothecation, mortgage, exchange or any other disposition by law or otherwise or (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, excluding a pledge, encumbrance, hypothecation or mortgage but 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

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transfer of a Partnership Interest not made in accordance with this Article IV shall be, to the fullest extent permitted by law, 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 any Partner of any or all of the shares of stock, membership or limited liability company interests, partnership interests or other ownership interests in such Partner and the term “transfer” shall not mean any such disposition.

Section 4.5Registration and Transfer of Limited Partner Interests.

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

(b)Neither the General Partner nor the Partnership shall recognize any transfer of Limited Partner Interests evidenced by Certificates until the endorsed 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, however, 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.  Upon surrender of a Certificate for registration of transfer of any Limited Partner Interests evidenced by a Certificate, and subject to the provisions hereof, the appropriate officers of the General Partner on behalf of the General Partner on behalf of the Partnership shall execute, the Transfer Agent (if applicable) shall countersign and the General Partner or the Transfer Agent (if applicable) shall 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 (or, if requested by the holder, other evidence of the issuance of uncertificated Limited Partner Interests) evidencing the same aggregate number and type of Limited Partner Interests as was evidenced by the Certificate so surrendered.

(c)Upon the receipt of proper transfer instructions from the Record Holder of uncertificated Limited Partner Interests, such transfer of uncertificated Limited Partner Interests shall be recorded upon the Partnership’s register.

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

(e)The General Partner and its Affiliates shall have the right, subject to Section 4.6, at any time to transfer their Common Units and any other Partnership Interests they may acquire to one or more Persons.

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

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(a)Subject to Section 4.6(c) below, prior to December 31, 2021, 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 such other Person or the transfer by the General Partner of all or substantially all of its assets to such other Person.

(b)Subject to Section 4.6(c) below, on or after December 31, 2021, the General Partner may at its option transfer its General Partner Interest, in whole or in part, without Unitholder approval.

(c)Notwithstanding anything herein to the contrary, no transfer by the General Partner of all or any part of its General Partner Interest to another Person shall be permitted unless (i) the transferee agrees to assume the rights and duties of the General Partner under this Agreement and to be bound by the provisions of this Agreement, (ii) the Partnership receives an Opinion of Counsel that such transfer would not result in the loss of limited liability of any Limited Partner under the Delaware Act or cause the Partnership to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for federal income tax purposes (to the extent not already so treated or taxed) and (iii) such transferee also agrees to purchase all (or the appropriate portion thereof, if applicable) of the partnership or membership interest held by the General Partner as the general partner or managing member, if any, of each other Group Member.  In the case of a transfer pursuant to and in compliance with this Section 4.6, the transferee or successor (as the case may be) is hereby authorized to and shall, subject to compliance with the terms of Section 10.2, be admitted to the Partnership as the General Partner effective immediately prior to the transfer of the General Partner Interest, and the business of the Partnership shall continue without dissolution.

Section 4.7Restrictions on Transfers.

(a)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 determines, with the advice of counsel, that such restrictions are necessary or advisable to (i) avoid a significant risk of the Partnership becoming taxable as a corporation or otherwise becoming taxable as an entity for U.S. federal income tax purposes or (ii) preserve the uniformity of the Limited Partner Interests (or any class or classes thereof).  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

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Partner Interests on the principal National Securities Exchange or other trading market on which such class of Limited Partner Interests is then listed or admitted to trading must be approved, prior to such amendment being effected, by the holders of at least a majority of the Outstanding Limited Partner Interests of such class.

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

(d)In addition to any other restrictions on transfer set forth in this Agreement, the transfer of a Common Unit issued upon the exercise of a Noncompensatory Option shall be subject to the restrictions imposed by Section 6.5.

(e)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 MID-CON ENERGY PARTNERS, LP (THE “PARTNERSHIP”) THAT THIS SECURITY MAY NOT BE SOLD, OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IF SUCH TRANSFER WOULD (A) VIOLATE THE THEN APPLICABLE FEDERAL OR STATE SECURITIES LAWS OR RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER GOVERNMENTAL AUTHORITY WITH JURISDICTION OVER SUCH TRANSFER, (B) TERMINATE THE EXISTENCE OR QUALIFICATION OF THE PARTNERSHIP UNDER THE LAWS OF THE STATE OF DELAWARE, (C) 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) OR (D) VIOLATE THE TERMS AND CONDITIONS OF THE PARTNERSHIP AGREEMENT.  THE GENERAL PARTNER OF THE PARTNERSHIP MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS SECURITY IF IT DETERMINES WITH THE ADVICE OF COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY OR ADVISABLE TO AVOID A SIGNIFICANT RISK OF THE PARTNERSHIP BECOMING TAXABLE AS A CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES OR TO PRESERVE THE UNIFORMITY OF THE LIMITED PARTNER INTERESTS REPRESENTED BY THIS SECURITY (OR ANY CLASS OR CLASSES THEREOF).  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 OR OTHER TRADING MARKET ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO TRADING.

Section 4.8Eligibility Certificates; Ineligible Citizen Holders.

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(a)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 such Limited Partner’s 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 Holder, the Limited Partner 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 an Ineligible Citizen Holder and, thereupon, such Ineligible Citizen Holder shall cease to be a Partner and shall have no voting rights (whether arising hereunder, under the Delaware Act, at law, in equity or otherwise) in respect of his Limited Partner Interests in the Partnership.  The General Partner shall be substituted for such Ineligible Citizen Holder as the Limited Partner in respect of such Ineligible Citizen Holder’s Limited Partner Interests and shall vote such Limited Partner Interests in accordance with Section 4.8(b).

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

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

(d)At any time after an Ineligible Citizen Holder can and does certify that it has become an Eligible Citizen Holder, an Ineligible Citizen Holder may, upon application to the General Partner, request that with respect to any Limited Partner Interests of such Ineligible Citizen Holder not redeemed pursuant to Section 4.9, such Ineligible Citizen Holder be admitted as a Limited Partner, and upon approval of the General Partner, in its sole discretion, such Ineligible Citizen Holder shall be admitted as a Limited Partner and shall no longer constitute an Ineligible Citizen Holder and the General Partner shall cease to be deemed to be the Limited Partner in respect of the Ineligible Citizen Holder’s Limited Partner Interests.

Section 4.9Redemption of Partnership Interests of Ineligible Citizen Holders.

(a)If at any time a Limited Partner fails to furnish an Eligibility Certification or other information requested within the time period specified in Section 4.8(a), or if upon receipt of such Eligibility Certification or other information, the General Partner determines, with the advice of counsel, that a Limited Partner is an Ineligible Citizen Holder, the Partnership may,

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unless the Limited Partner establishes to the satisfaction of the General Partner that such Limited Partner is not an Ineligible Citizen Holder or has transferred his Limited Partner Interests to a Person who is an Eligible Citizen Holder and who furnishes an Eligibility Certification or other information, as the case may be, 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, as applicable, by registered or certified mail, postage prepaid.  The notice shall be deemed to have been given when so mailed.  The notice shall specify the Redeemable Interests, the date fixed for redemption, the place of payment, that payment of the redemption price will be made upon redemption of the Redeemable Interests (or, if later in the case of Redeemable Interests evidenced by Certificates, upon surrender of the Certificates evidencing the Redeemable Interests in the manner specified in the notice) and that on and after the date fixed for redemption no further allocations or distributions to which the Limited Partner would otherwise be entitled in respect of the Redeemable Interests will accrue or be made.

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

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

(iv)After the redemption date, Redeemable Interests shall no longer constitute issued and Outstanding 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 an Ineligible Citizen Holder.

(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

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transfer is otherwise permitted under this Agreement.  Upon receipt of notice of such a transfer, the General Partner shall withdraw the notice of redemption, provided the transferee of such Limited Partner Interest certifies to the satisfaction of the General Partner that he is an Eligible Citizen Holder.  If the transferee fails to make such certification, such redemption shall be effected from the transferee on the original redemption date.

Article V

CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS  

Section 5.1Transformation of the General Partner Interest.

(a)The General Partner Interest (as defined in the First Amended and Restated Partnership Agreement) in the Partnership that existed immediately prior to the Effective Time is, immediately following the Effective Time, hereby converted into a non-economic, management interest in the Partnership.  Following the Effective Time, the General Partner Interest shall represent only a non-economic, management interest of the General Partner in the Partnership. The General Partner hereby continues as the general partner of the Partnership, and the Partnership is continued without dissolution.

(b)The Notional General Partner Units (as defined in the First Amended and Restated Partnership Agreement) that existed immediately prior to the Effective Time are, immediately following the Effective Time, hereby cancelled and no longer outstanding. Following the Effective Time, no Person, in its capacity as a former holder of the Notional General Partner Units (as defined in the First Amended and Restated Partnership Agreement), shall have any rights with respect to the Partnership as a former holder of the Notional General Partner Units (as defined in the First Amended and Restated Partnership Agreement), including the right to receive any distributions from the Partnership.

Section 5.2Contributions by Limited Partners.

(a)Each Limited Partner has, or is deemed to have, contributed to the Partnership the cash or other property (if any) as set forth in the books and records of the Partnership.

(b)No Limited Partner will be required to make any additional Capital Contribution to the Partnership pursuant to this Agreement.  

Section 5.3Interest and Withdrawal of Capital Contributions.

No interest shall be paid by the Partnership on Capital Contributions.  No Partner shall be entitled to the withdrawal or return of its Capital Contribution, except to the extent, if any, that distributions made pursuant to this Agreement or upon dissolution 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.

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Section 5.4Capital Accounts.

(a)The Partnership shall maintain for each Partner (or a beneficial owner of Partnership Interests held by a nominee in any case in which the nominee has furnished the identity of such owner to the Partnership in accordance with Section 6031(c) of the Code or any other method acceptable to the General Partner) owning a Partnership Interest a separate Capital Account with respect to such Partnership Interest in accordance with the rules of Treasury Regulation Section 1.704-1(b)(2)(iv).  Such Capital Account shall be increased by (i) the amount of all Capital Contributions made to the Partnership with respect to such Partnership Interest and (ii) all items of Partnership income and gain (including Simulated Gain and 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 and (y) all items of Partnership deduction and loss (including Simulated Depletion and Simulated 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, deduction, Simulated Depletion, Simulated Gain or Simulated Loss that is to be allocated pursuant to Article VI and is to be reflected in the Partners’ Capital Accounts, the determination, recognition and classification of any such item shall be the same as its determination, recognition and classification for U.S. 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 applicable Group Member Agreement) of all property owned by (x) any other Group Member that is classified as a partnership for U.S. federal income tax purposes and (y) any other partnership, limited liability company, unincorporated business or other entity classified as a partnership for U.S. federal income tax purposes of which a Group Member is, directly or indirectly, a partner, member or other equityholder.

(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, deduction, Simulated Depletion, Simulated Gain and Simulated Loss shall be made without regard to any election under Section 754 of the Code that may be made by the Partnership and, as to those items described in Section 705(a)(1)(B) or 705(a)(2)(B) of the Code, without regard to the fact that such items are not includable in gross income or are neither currently deductible nor capitalized for U.S. federal income

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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, Simulated Gain or Simulated Loss attributable to the taxable disposition of any Partnership property shall be determined as if the adjusted basis of such property as of such date of disposition were equal in amount to the Partnership’s Carrying Value with respect to such property as of such date.

(v)In accordance with the requirements of Section 704(b) of the Code, any deductions for depreciation, cost recovery, amortization or Simulated Depletion 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, amortization or Simulated Depletion, any further deductions for such depreciation, cost recovery, amortization or Simulated Depletion attributable to such property shall be determined under the rules prescribed by Treasury Regulation Section 1.704-3(d)(2) as if the adjusted basis of such property were equal to the Carrying Value of such property immediately following such adjustment.

(vi)The Gross Liability Value of each Liability of the Partnership described in Treasury Regulation Section 1.752-7(b)(3)(i) shall be adjusted at such times as provided in this Agreement for an adjustment to Carrying Values.  The amount of any such adjustment shall be treated for purposes hereof as an item of loss (if the adjustment increases the Carrying Value of such Liability of the Partnership) or an item of gain (if the adjustment decreases the Carrying Value of such Liability of the Partnership) and shall be taken into account for purposes of computing Net Income and Net Loss.

(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) Consistent with Treasury Regulation Section 1.704-1(b)(2)(iv)(f) and Treasury Regulation Section 1.704-1(b)(2)(iv)(s), upon an issuance of additional Partnership Interests for cash or Contributed Property or upon exercise of a Noncompensatory Option, the issuance of Partnership Interests as consideration for the provision of services, the conversion of the Combined Interest to Common Units pursuant to Section 11.3(b), or the issuance of a Noncompensatory Option, 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; provided, however, that in the event of the issuance of a Partnership Interest pursuant to the exercise of a Noncompensatory Option where the right to share in Partnership capital represented by such Partnership Interest differs from the consideration

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paid to acquire and exercise such option, the Carrying Value of each Partnership property immediately after the issuance of such Partnership Interest shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Partnership property and the Capital Accounts of the Partners shall be adjusted in a manner consistent with Treasury Regulation Section 1.704-1(b)(2)(iv)(s); provided, further, that in the event of an issuance of Partnership Interests for a de minimis amount of cash or Contributed Property, or in the event of an issuance of a Noncompensatory Option to acquire a de minimis Partnership Interest, or in the event of an issuance of a de minimis amount of Partnership Interests as consideration for the provision of services, the General Partner may determine that such adjustments are unnecessary for the proper administration of the Partnership.  In determining such Unrealized Gain or Unrealized Loss, the aggregate fair market value of all Partnership property (including cash or cash equivalents) immediately prior to the issuance of additional Partnership Interests (or, in the case of a revaluation event resulting from the exercise of a Noncompensatory Option, immediately after the issuance of the Partnership Interest acquired pursuant to the exercise of such Noncompensatory Option) 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 and must make such adjustments to such valuation as required by Treasury Regulation Section 1.704-1(b)(2)(iv)(h)(2). If, after making the allocations of Unrealized Gain and Unrealized Loss as set forth in Section 6.1(d)(xii), the Capital Account of each Partner with respect to each Common Unit issued upon exercise of a Noncompensatory Option (each such Common Unit an “Exercise Unit”), is less than the Per Unit Capital Amount for a then Outstanding Initial Common Unit, then, in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(s)(3), Capital Account balances shall be reallocated between the Partners holding Common Units (other than Exercise Units) and Partners holding Exercise Units so as to cause the Capital Account of each Partner holding an Exercise Unit to equal, on a per Unit basis with respect to each such Exercise Unit, the Per Unit Capital Amount for a then Outstanding Initial Common Unit. In making its determination of the fair market values of individual properties, the General Partner may determine that it is appropriate to first determine an aggregate value for the Partnership, based on the current trading price of the Common Units, and taking fully into account the fair market value of the Partnership Interests of all Partners at such time, and then allocate such aggregate value among the individual properties of the Partnership (in such manner as it determines appropriate).

(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 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. In determining such Unrealized Gain or Unrealized Loss the aggregate fair market value of all Partnership property (including cash or cash equivalents) immediately prior to a distribution shall (A) in the case of an actual distribution that is not made pursuant to Section 12.4 or in the case of a deemed distribution, be determined 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 by the Liquidator using such method of valuation as it may adopt.

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Section 5.5Issuances of Additional Partnership Interests.

(a)The Partnership may issue additional Partnership Interests and options, rights, warrants, restricted units, appreciation rights, phantom or tracking interests or other economic interests in the Partnership or interests in Partnership Interests (including pursuant to Section 7.4(c)) 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 in its sole discretion shall determine, all without the approval of any Limited Partners.

(b)Each additional Partnership Interest or other security authorized to be issued by the Partnership pursuant to Section 5.5(a) or Section 7.4(c) may be issued in one or more classes, or one or more series of any such classes, with such designations, preferences, rights, powers and duties (which may be senior or junior to existing classes and series of Partnership Interests or other 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) 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 Interest or other security (including sinking fund provisions); (v) whether such Partnership Interest or other security is issued with the privilege of conversion or exchange and, if so, the terms and conditions of such conversion or exchange; (vi) the terms and conditions upon which each Partnership Interest or other security will be issued, evidenced by certificates and assigned or transferred; (vii) the method for determining the Percentage Interest as to such Partnership Interest or other security; and (viii) the right, if any, of each such Partnership Interest or other security to vote on Partnership matters, including matters relating to the relative rights, preferences and privileges of such Partnership Interest or other security.

(c)The General Partner shall take all actions that it determines to be necessary or appropriate in connection with (i) each issuance of Partnership Interests and options, rights, warrants, restricted units, appreciation rights, phantom or tracking interests or other economic interests in the Partnership relating to Partnership Interests pursuant to this Section 5.5 or Section 7.4(c), (ii) the conversion of the General Partner Interest into Units pursuant to the terms of this Agreement, (iii) the admission of such additional Limited Partners and (iv) all additional issuances of Partnership Interests or other securities.  The General Partner shall determine the relative rights, powers and duties of the holders of the Units or other Partnership Interests or other 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 Interests or other securities or in connection with the conversion of the Combined Interest into Units pursuant to the terms of this Agreement, including compliance with any statute, rule, regulation or guideline of any federal, state or other governmental agency or any National Securities Exchange or other trading market on which the Units or other Partnership Interests or other securities are listed or admitted to trading.

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

Section 5.6Limited Preemptive Right.

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Except as otherwise provided in a separate agreement by the Partnership, no Person shall have any preemptive, preferential or other similar right with respect to the issuance of any Partnership Interest or other security, whether unissued, held in the treasury or hereafter created.

Section 5.7Splits and Combinations.

(a)Subject to Section 5.7(d), the Partnership may make a Pro Rata distribution of Partnership Interests to all Record Holders or may effect a subdivision or combination of Partnership Interests so long as, after any such event, each Partner shall have the same Percentage Interest in the Partnership as before such event, and any amounts calculated on a per Unit basis or stated as a number of Units are proportionately adjusted.

(b)Whenever such a Pro Rata distribution, subdivision or combination of Partnership Interests 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 Interests 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 or uncertificated Partnership Interests to the Record Holders of Partnership Interests, as of the applicable Record Date, representing the new number of Partnership Interests 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 Interests Outstanding, the Partnership shall require, as a condition to the delivery to a Record Holder of such new Certificate or uncertificated Partnership Interests, the surrender of any Certificate held by such Record Holder immediately prior to such Record Date.

(d)The Partnership shall not issue fractional Units upon any distribution, subdivision or combination of Units.  If a distribution, subdivision or combination of Units would result in the issuance of fractional Units but for the provisions of Section 5.5(d) and this Section 5.7(d), 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 5.8Fully 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 the Delaware Act.

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Article VI

ALLOCATIONS AND DISTRIBUTIONS

Section 6.1Allocations 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, deduction, Simulated Depletion, Simulated Gain and Simulated Loss (computed in accordance with Section 5.4(b)) for each taxable period shall be allocated among the Partners as provided herein below.

(a)Net Income and Net Loss.  After giving effect to the special allocations set forth in Sections 6.1(d) and (e) and any allocations to other Partnership Interests, Net Income and Net Loss for each taxable period and all items of income, gain, loss, deduction, and Simulated Gain taken into account in computing Net Income and Net Loss for such taxable period shall be allocated to the Unitholders, Pro Rata.

(b)[Reserved].

(c)[Reserved].

(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, gain and Simulated 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, gain or Simulated Gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 6.1(d) with respect to such taxable period (other than an allocation pursuant to Section 6.1(d)(v) and Section 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, gain and Simulated 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

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purposes of this Section 6.1(d), each Partner’s Adjusted Capital Account balance shall be determined, and the allocation of income, gain or Simulated Gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 6.1(d), other than Section 6.1(d)(i) and other than an allocation pursuant to Section 6.1(d)(v) and Section 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 gross 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; provided, however, that an allocation pursuant to this Section 6.1(d)(iii) shall be made only if and to the extent that such Partner would have a deficit balance in its Adjusted 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)(iii) were not in this Agreement.

(iv)Gross Income Allocation.  In the event any Partner has a deficit balance in its Capital Account at the end of any 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 the Partnership’s gross income, gain and Simulated Gain in the amount of such excess as quickly as possible; provided, however, 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 Section 6.1(d)(iii) and 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 Pro Rata.  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

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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 Pro Rata.

(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 or Simulated Gain (if the adjustment increases the basis of the asset) or loss or Simulated Loss (if the adjustment decreases such basis), and such item of gain, loss Simulated Gain or Simulated 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.

(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 gross income, gain, loss, deduction Simulated Depletion, Simulated Gain and Simulated Loss 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 and Simulated Depletion and Simulated Loss had been included in the definition of Net Income and Net Loss.  Notwithstanding the preceding sentence, Required Allocations relating to (1) Nonrecourse Deductions shall not be taken into account except to the extent there has been a decrease in Partnership Minimum Gain and (2) Partner Nonrecourse Deductions shall not be taken into account except to the extent there has been a decrease in Partner Nonrecourse Debt Minimum Gain.  In exercising its discretion under this Section 6.1(d)(ix)(A), the General Partner may take into account future Required Allocations that, although not yet made, are likely to offset other Required Allocations previously made.  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

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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)Priority Allocations.  If the amount of cash or the Net Agreed Value of any property distributed (except cash or property distributed pursuant to Section 12.4) with respect to a Unit exceeds the amount of cash or the Net Agreed Value of property distributed with respect to another Unit (the amount of the excess, an “Excess Distribution” and the Unit with respect to which the greater distribution is paid, an “Excess Distribution Unit”), then there shall be allocated gross income and gain to each Unitholder receiving an Excess Distribution with respect to the Excess Distribution Unit until the aggregate amount of such items allocated with respect to such Excess Distribution Unit pursuant to this Section 6.1(d)(x) for the current taxable period and all previous taxable periods is equal to the amount of the Excess Distribution.

(xi)Economic Uniformity; Changes in Law.  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 of income, gain, loss or deduction, including Unrealized Gain or Unrealized Loss; and (iii) amend the provisions of this Agreement as appropriate (x) to reflect the proposal or promulgation of Treasury Regulations under Section 704(b) or Section 704(c) of the Code or (y) otherwise to preserve or achieve uniformity of the Limited Partner Interests (or any class or classes thereof).  The General Partner may adopt such conventions, make such allocations and make such amendments to this Agreement as provided in this Section 6.1(d)(xi) 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 Outstanding Limited Partner Interests or the Partnership, and if such allocations are consistent with the principles of Section 704 of the Code.

(xii)Exercise of Noncompensatory Options. In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(s) and as provided in Section 5.4(d), immediately after the issuance of an Exercise Unit, the Carrying Value of each Partnership property shall be adjusted to reflect its fair market value immediately after such conversion and any resulting Unrealized Gain (if the Capital Account of

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each such Exercise Unit is less than the Per Unit Capital Account for a then Outstanding Initial Common Unit) or Unrealized Loss (if the Capital Account of each such Exercise Unit is greater than the Per Unit Capital Amount for a then Outstanding Initial Common Unit) will be allocated to each Partner holding Exercise Units in proportion to and to the extent of the amount necessary to cause the Capital Account of each such Exercise Unit to equal the Per Unit Capital Amount for a then Outstanding Initial Common Unit. Any remaining Unrealized Gain or Unrealized Loss will be allocated to the Partners pursuant to Section 6.1(d).

(e)Simulated Depletion and Simulated Loss.

(i)In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(k), Simulated Depletion with respect to each oil and gas property shall be allocated among the Partners, Pro Rata.

(ii)Simulated Loss with respect to the disposition of an oil and gas property shall be allocated among the Partners in proportion to their allocable share of total amount realized from such disposition under Section 6.2(c)(i).

Section 6.2Allocations 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)The deduction for depletion with respect to each separate oil and gas property (as defined in Section 614 of the Code) shall be computed for federal income tax purposes separately by the Partners rather than by the Partnership in accordance with Section 613A(c)(7)(D) of the Code.  Except as provided in Section 6.2(c)(iii), for purposes of such computation (before taking into account any adjustments resulting from an election made by the Partnership under Section 754 of the Code), the adjusted tax basis of each oil and gas property (as defined in Section 614 of the Code) shall be allocated among the Partners Pro Rata.  Each Partner shall separately keep records of his share of the adjusted tax basis in each oil and gas property, allocated as provided above, adjust such share of the adjusted tax basis for any cost or percentage depletion allowable with respect to such property, and use such adjusted tax basis in the computation of its cost depletion or in the computation of his gain or loss on the disposition of such property by the Partnership.

(c)Except as provided in Section 6.2(c)(iii), for the purposes of the separate computation of gain or loss by each Partner on the sale or disposition of each separate oil and gas property (as defined in Section 614 of the Code), the Partnership’s allocable share of the “amount realized” (as such term is defined in Section 1001(b) of the Code) from such sale or disposition shall be allocated for federal income tax purposes among the Partners as follows:

(i)first, to the extent such amount realized constitutes a recovery of the Simulated Basis of the property, to the Partners in the same proportion as the

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depletable basis of such property was allocated to the Partners pursuant to Section 6.2(b) (without regard to any special allocation of basis under Section 6.2(c)(iii));

(ii)second, the remainder of such amount realized, if any, to the Partners so that, to the maximum extent possible, the amount realized allocated to each Partner under this Section 6.2(c)(ii) will equal such Partner’s share of the Simulated Gain recognized by the Partnership from such sale or disposition.

(iii)The Partners recognize that with respect to Contributed Property and Adjusted Property there will be a difference between the Carrying Value of such property at the time of contribution or revaluation, as the case may be, and the adjusted tax basis of such property at that time.  All items of tax depreciation, cost recovery, amortization, adjusted tax basis of depletable properties, amount realized and gain or loss with respect to such Contributed Property and Adjusted Property shall be allocated among the Partners to take into account the disparities between the Carrying Values and the adjusted tax basis with respect to such properties in accordance with the principles of Treasury Regulation Section 1.704-3(d).

(d)In an attempt to eliminate Book-Tax Disparities attributable to a Contributed Property or Adjusted Property, other than oil and gas properties pursuant to Section 6.2(c), items of income, gain, loss, depreciation, amortization and cost recovery deductions shall be allocated for federal income tax purposes among the Partners in the manner provided under Section 704(c) of the Code, and the Treasury Regulations promulgated under Section 704(b) and 704(c) of the Code, as determined appropriate by the General Partner; provided, however, that the General Partner shall apply the principles of Treasury Regulation Section 1.704-3(d) in all events.

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

(f)In accordance with Treasury Regulation Sections 1.1245-1(e) and 1.1250-1(f), 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

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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.

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

(h)Each item of Partnership income, gain, loss and deduction shall, for federal income tax purposes, be determined for each taxable period and prorated on a monthly basis and shall be allocated to the Partners as of the opening of the National Securities Exchange or other trading market on which the Partnership Interests are listed or admitted to trading on the first Business Day of each month; and provided, however, that gain or loss on a sale or other disposition of any assets of the Partnership or any other extraordinary item of gross income, gain, loss or deduction as determined by the General Partner, shall be allocated to the Partners as of the opening of the National Securities Exchange or other trading market on which the Partnership Interests are listed or admitted to trading on the first Business Day of the month in which such item 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.

(i)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.

(j)If, as a result of an exercise of a Noncompensatory Option, a Capital Account reallocation is required under Treasury Regulation Section 1.704-1(b)(2)(iv)(s)(3), the General Partner shall make corrective allocations pursuant to Treasury Regulation Section 1.704-1(b)(4)(x). In the event such corrective allocations are necessary, the holder of Exercise Units agrees to remain a partner of the Partnership with respect to its Exercise Units until such allocations are completed, and the General Partner agrees to make such allocations as soon as practicable, even if such allocations are not consistent with Section 706 of the Code and any Treasury Regulations thereunder.

Section 6.3Requirement of Distributions; Distributions to Record Holders.

(a)Subject to Section 6.3(b), within 45 days following the end of each Quarter commencing with the Quarter ending December 31, 2011, an amount equal to 100% of Available Cash with respect to such Quarter shall be distributed in accordance with this Article VI by the Partnership to the Partners in accordance with their Percentage Interest as of the Record Date selected by the General Partner.  Notwithstanding any provision to the contrary contained in this Agreement, the Partnership shall not be required to make a distribution to any Partner on account

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of its interest in the Partnership if such distribution would violate the Delaware Act or any other applicable law.

(b)Notwithstanding Section 6.3(a), in the event of the dissolution and liquidation of the Partnership, all assets received by the Partnership 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.

Application of Section 6.1 and Section 6.2.

With respect to the portion of the taxable year through the date hereof and any prior taxable years, each item of Partnership income, gain, loss and deduction shall be allocated among the Partners in accordance with Section 6.1 and Section 6.2 of the First Amended and Restated Partnership Agreement. Thereafter, each item of Partnership income, gain, loss and deduction shall be allocated among the Partners in accordance with Section 6.1 and Section 6.2 of this Agreement.

Special Provisions Relating to Exercise Units.  

A Unitholder holding an Exercise Unit shall not be permitted to transfer such Exercise Unit to a Person that is not an Affiliate of the holder until such time as the General Partner determines, based on advice of counsel, that each such Exercise Unit should have, as a substantive matter, like intrinsic economic and federal income tax characteristics, in all material respects, to the intrinsic economic and federal income tax characteristics of a then Outstanding Common Unit, provided that in all events such determination shall be made within five Business Days of the date of the exercise of the Noncompensatory Option. In connection with the condition imposed by this Section 6.5, the General Partner shall act in good faith to provide economic uniformity to the Exercise Unit in preparation for a transfer of such Unit, including but not limited to allocating items of income, gain, loss and deductions, and the making of any guaranteed payments or any reallocation of Capital Account balances, among the Partners in accordance with Section 5.4(d), Section 6.1(d)(xii), Section 6.2(j) and Treasury Regulation Section 1.704-1(b)(2)(iv)(s)(3) with respect to Exercise Units.

Article VII

MANAGEMENT AND OPERATION OF BUSINESS

Section 7.1Management.

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(a)The General Partner shall conduct, direct and manage all activities of the Partnership.  Except as otherwise expressly provided in this Agreement, but without limitation on the ability of the General Partner to delegate its rights and powers to other Persons, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Partner, and no Limited Partner shall have any management power over the business and affairs of the Partnership.  In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.3, shall have full power and authority to do all things, and on such terms, as it determines to be necessary or appropriate to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:

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

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

(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 the same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);

(vi)the distribution of Partnership cash;

(vii)the selection, employment, retention and dismissal of employees (including employees having titles such as “chief executive officer,” “president,”

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“chief financial officer,” “chief operating officer,” “general counsel,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors of the General Partner or the Partnership Group and the determination of their compensation and other terms of employment or hiring;

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

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

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

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

(xii)the entering into of listing agreements with any National Securities Exchange or other trading market 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 Interests, or the issuance of options, rights, warrants, restricted units, appreciation rights, phantom or tracking interests or other economic interests in the Partnership or relating to Partnership Interests;

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

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

(b)Notwithstanding any other provision of this Agreement, any Group Member Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners and each other Person who may acquire an interest in Partnership Interests or is otherwise bound by this Agreement hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of this Agreement, any Group Member Agreement, the Underwriting Agreement, the Contribution and Merger Agreement, the Services 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 (in each case other than this Agreement, without giving effect to any amendments, supplements or restatements after the date hereof); (ii)

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agrees that the General Partner (on its own or on behalf of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners or the other Persons who may acquire an interest in Partnership Interests or are otherwise bound by this Agreement; 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 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 existing at law, in equity or otherwise.

Section 7.2Certificate of Limited Partnership.

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

Section 7.3Restrictions on the General Partner’s Authority.

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

Section 7.4Reimbursement of the General Partner.

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

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

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

Section 7.5Outside Activities.

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

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acquiring, owning or disposing of debt securities or equity interests in any Group Member or (C) the guarantee of, and mortgage, pledge, or encumbrance of any or all of its assets in connection with, any indebtedness of the General Partner or any of its Affiliates.

(b)Each Unrestricted Person (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 otherwise existing at law, in equity or otherwise, to any Group Member or any Partner.  None of the Group Members, any Limited Partner or any other Person shall have any rights by virtue of this Agreement, any Group Member Agreement, or the partnership relationship established hereby in any business ventures of any Unrestricted Person.

(c)Subject to the terms of Sections 7.5(a) and 7.5(b), but otherwise notwithstanding anything to the contrary in this Agreement, (i) the engaging in competitive activities by any Unrestricted Person (other than the General Partner) 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 duty or any other obligation of any type whatsoever of the General Partner or any other Unrestricted Person for any Unrestricted Person (other than the General Partner) to engage in such business interests and activities in preference to or to the exclusion of the Partnership and (iii) no Unrestricted Person shall have any obligation hereunder or as a result of any duty otherwise existing at law, in equity or otherwise, to present business opportunities to the Partnership.  Notwithstanding anything to the contrary in this Agreement, the doctrine of corporate opportunity, or any analogous doctrine, shall not apply to any Unrestricted Person (including the General Partner).  Subject to Section 7.5(a), no Unrestricted Person (including the General Partner) who acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for any Group Member, shall have any duty to communicate or offer such opportunity to any Group Member, and such Unrestricted Person (including the General Partner) shall not be liable to the Partnership, any Limited Partner, any Person who acquires an interest in a Partnership Interest or any other Person who is bound by this Agreement for breach of any fiduciary or other duty by reason of the fact that such Unrestricted Person (including the General Partner) pursues or acquires such opportunity for itself, directs such opportunity to another Person or does not communicate such opportunity or information to any Group Member; provided, however, such Unrestricted Person does not engage in such business or activity as a result of or using confidential or proprietary information provided by or on behalf of the Partnership to such Unrestricted Person.

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

(a)The General Partner or any of its Affiliates may, but shall be under no obligation to, lend to any Group Member, and any Group Member may, but shall be under no obligation to, 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

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borrowing party interest at a rate greater than the rate that would be charged the borrowing party or impose terms less favorable to the borrowing party than would be charged or imposed on the borrowing party by unrelated lenders on comparable loans made on an arm’s-length basis (without reference to the lending party’s financial abilities or guarantees), all as determined by the General Partner.  The borrowing party shall reimburse the lending party for any costs (other than any additional interest costs) incurred by the lending party in connection with the borrowing of such funds.  For purposes of this Section 7.6(a) and Section 7.6(b), the term “Group Member” shall include any Affiliate of a Group Member that is controlled by the Group Member.

(b)The Partnership may lend or contribute to any Group Member, and any Group Member may borrow from the Partnership, funds on terms and conditions determined by the General Partner in its sole discretion.  No Group Member may lend funds to the General Partner or any of its Affiliates unless the General Partner or any such Affiliate of the General Partner is a Group Member.

Section 7.7Indemnification.

(a)To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, all Indemnitees shall be indemnified and held harmless by the Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened pending or contemplated claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee and its having acted (or refrained from acting) in such capacity; provided, however, that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement 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 or willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful; provided, further, that no indemnification pursuant to this Section 7.7 shall be available to the General Partner or its Affiliates (other than a Group Member) with respect to its or their obligations incurred pursuant to the 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 appearing at, participating in, defending or preparing to defend against any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Partnership prior to 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 is not entitled to be indemnified upon receipt by the Partnership of an undertaking by

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or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 7.7.

(c)Notwithstanding Sections 7.7(a) and 7.7(b), the Partnership shall be required to indemnify and advance expenses to an Indemnitee in connection with any action, suit or proceeding commenced by such Indemnitee only if the commencement of such action, suit or proceeding by such Indemnitee was authorized by the General Partner in its sole discretion.

(d)The indemnification provided by this Section 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the holders of Outstanding Limited Partner Interests, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity (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.

(e)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, the Indemnitees 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, any 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.

(f)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 such Indemnitee 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 in such Indemnitee’s capacity as a fiduciary, administrator or other role with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 7.7(a); and action taken or omitted by an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Partnership.

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

(h)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.

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

(j)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

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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 7.8Liability 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, any other Person who acquires an interest in a Partnership Interest or any other Person who is bound by this Agreement 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.  Each Limited Partner, each other Person who acquires an interest in a Partnership Interest and each other Person who is bound by this Agreement, on its own behalf and on behalf of the Partnership, waives, to the fullest extent permitted by the law, any and all rights to claim punitive damages.

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

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

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

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

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Member or any other Partner, on the other, any resolution or course of action by the General Partner, its Affiliates or Associates or any Indemnitee in respect of such conflict of interest shall be permitted and deemed approved by all Partners, and shall not constitute a breach of this Agreement, any Group Member Agreement, any agreement contemplated herein or therein, or any duty hereunder or existing at law, in equity or otherwise, if the resolution of, or course of action taken with respect to, such conflict of interest is (i) approved by Special Approval, (ii) approved by the vote of the holders of a majority of the Outstanding 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, or course of action taken with respect to, such conflict of interest to seek Special Approval or Unitholder approval of such resolution, and the General Partner may also adopt a resolution or course of action that has not received Special Approval or Unitholder approval.  Notwithstanding any other provision of this Agreement or any provision of applicable law, if Special Approval is sought or obtained, then, it shall be conclusively deemed that, in making its decision, the Conflicts Committee acted in good faith, and if neither Special Approval or Unitholder approval is sought, or if neither is obtained, and the Board of Directors determines that the resolution or course of action taken with respect to a conflict of interest satisfies either of the standards set forth in clauses (iii) or (iv) above, then, it shall be presumed that, in making its decision, the Board of Directors acted in good faith and, in each case, 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 in equity, (x) when making any determination in connection with the resolution of or course of action taken with respect to a conflict of interest, the Conflicts Committee and the Board of Directors shall be authorized in connection with such determination to consider any and all factors as the Board of Director or Conflicts Committee, as applicable, deems to be relevant or appropriate under the circumstances and shall have no duty or obligation to consider any other factors and (y) the existence of the conflicts of interest described in the Registration Statement and any actions taken by the General Partner in connection therewith are hereby approved by all Partners and shall not constitute a breach of this Agreement or of any duty hereunder or existing at law, in equity or otherwise.  

(b)Whenever the General Partner, the Board of Directors or any committee thereof (including the Conflicts Committee) makes a determination or takes or declines to take any action, or any Affiliate of the General Partner or other Indemnitee causes it to do so, in the General Partner’s capacity as the general partner of the Partnership as opposed to in its individual capacity, whether under this Agreement, any Group Member Agreement or any other agreement contemplated hereby or otherwise, then, unless another express standard is provided for in this Agreement, the General Partner, the Board of Directors, such committee or such Affiliates or other Indemnitees causing the General Partner 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 (including fiduciary standards) imposed by this Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the Delaware Act or otherwise existing at law, in equity or otherwise.  A determination, other action or failure to act by the General Partner, the

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Board of Directors or any committee thereof (including the Conflicts Committee), or any Affiliate of the General Partner or other Indemnitee that causes it to make such determination, take such action or fail to act, will be deemed to be in “good faith” if the General Partner, the Board of Directors or such committee or such Affiliate of the General Partner or other Indemnitee subjectively believed that such determination, other action or failure to act was in, or not opposed to, the best interests of the Partnership.  In any proceeding brought by the Partnership, any Limited Partner, any Person who acquires an interest in a Partnership Interest or any other Person who is bound by this Agreement challenging such determination, other action or failure to act, the Person bringing or prosecuting such proceeding shall have the burden of proving that such determination, action or failure to act was not in good faith.

(c)Whenever the General Partner (including the Board of Directors or any committee thereof) makes a determination or takes or declines to take any action, or any Affiliate of the General Partner or any other Indemnitee causes it to do so, (i) under any provision that permits or requires a determination to be made in its “discretion” or “sole discretion,” regardless of whether it is acting in its capacity as the general partner of the Partnership or in its individual capacity or (ii) in its individual capacity as opposed to in its capacity as the general partner of the Partnership, in any case, whether under this Agreement, any Group Member Agreement or any other agreement contemplated hereby or otherwise, then the General Partner (including the Board of Directors or any committee thereof) or such Affiliate or other Indemnitee causing it to do so, to the fullest extent permitted by law, shall not be subject to any duty or obligation (fiduciary or otherwise) to the Partnership, any Partner or any other Person and shall be entitled to consider only such interests and factors as it desires, including its own interests and the interests of its Affiliates and Associates, and shall have no duty or obligation (fiduciary or otherwise) to give any consideration to any interest of or factors affecting the Partnership, the Partners, or any other Person, and shall not be subject to any other or different standards (including fiduciary standards) imposed by this Agreement or otherwise existing at law, in equity or otherwise.  By way of illustration and not of limitation, whenever the phrase, “at the option of the General Partner” or “at its option,” or some variation of those phrases, is used in this Agreement, it indicates that the General Partner is acting in its individual capacity.  For the avoidance of doubt, whenever the General Partner votes or transfers its Partnership Interests, refrains from voting or transferring its Partnership Interests, exercises or refrains from exercising its right to acquire Partnership Interests or otherwise acts in its capacity as a Limited Partner or holder of Limited Partner Interests, it shall be acting in its individual capacity.

(d)The General Partner’s organizational documents may provide that determinations to take or decline to take any action in its individual, rather than representative, capacity or in its “discretion” or “sole discretion” may or shall be determined by its members, if the General Partner is a limited liability company, stockholders, if the General Partner is a corporation, or the members or stockholders of the General Partner’s general partner, if the General Partner is a partnership.

(e)Notwithstanding anything to the contrary in this Agreement, the General Partner and the other Indemnitees 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

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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.

(f)The Limited Partners, each Person who acquires an interest in a Partnership Interest and each other Person who is bound by this Agreement 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.

(g)The Limited Partners expressly acknowledge and agree that the General Partner, the Board of Directors or any committee thereof and each other Indemnitee is under no obligation to consider the separate interests of the Limited Partners (including, without limitation, the tax consequences to Limited Partners) in deciding whether to cause the Partnership to take (or decline to take) any actions, and that neither the General Partner nor any other Indemnitee shall be liable to the Limited Partners for monetary damages or equitable relief or losses sustained, liabilities incurred or benefits not derived by Limited Partners in connection with such decisions.

Section 7.10Other Matters Concerning the General Partner.

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

Section 7.11Purchase or Sale of Partnership Interests.

The General Partner may cause the Partnership to purchase or otherwise acquire Partnership Interests or other securities.  As long as Partnership Interests or other securities are held by any Group Member, such Partnership Interests or other securities shall not be considered Outstanding for any purpose, except as otherwise provided herein.  The General Partner or any Affiliate of the General Partner may also purchase or otherwise acquire and sell or otherwise dispose of Partnership Interests for its own account, subject to the provisions of Articles IV and X.

Section 7.12Reliance by Third Parties.

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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, to the fullest extent permitted by law, any and all defenses or other remedies that may be available against such Person to contest, negate or disaffirm any action of the General Partner or any such officer in connection with any such dealing.  In no event shall any Person dealing with the General Partner or any such officer or its representatives be obligated to ascertain that the terms of this Agreement have been complied with or to inquire into the necessity or expedience of any act or action of the General Partner or any such officer or its representatives.  Each and every certificate, document or other instrument executed on behalf of the Partnership by the General Partner or its representatives shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (a) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect, (b) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Partnership and (c) such certificate, document or instrument was duly executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Partnership.

Section 7.13Modification of Duties.

Except as expressly set forth in this Agreement, to the fullest extent permitted by law, none of the General Partner, the Board of Directors, any committee thereof or any other Indemnitee shall have any duties or liabilities, including fiduciary duties, to the Partnership, any Limited Partner, any Person who acquires an interest in a Partnership Interest or any other Person bound by this Agreement, and, to the fullest extent permitted by law, the provisions of this Agreement are agreed to, supersede and replace the duties (including fiduciary duties) and liabilities of the General Partner, the Board of Directors, any committee thereof and each other Indemnitee that otherwise exist at law, in equity or otherwise.  Notwithstanding any other provision of this Agreement, to the extent that any provision of this Agreement (i) replaces, restricts or eliminates the duties (including fiduciary duties) that might otherwise, as a result of Delaware or other applicable law, be owed by the General Partner, its Affiliates, the Board of Directors, any committee thereof or any other Indemnitee to the Partnership, the Limited Partners, any other Person who acquires an interest in a Partnership Interest or any other Person who is bound by this Agreement, or (ii) constitutes a waiver or consent by the Partnership, the Limited Partners, any other Person who acquires an interest in a Partnership Interest or any other Person who is bound by this Agreement to any such replacement, restriction or elimination, such provision is hereby approved by the Partnership, all the Partners, each other Person who acquires an interest in a Partnership Interest and each other Person who is bound by this Agreement.

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Article VIII

BOOKS, RECORDS, ACCOUNTING AND REPORTS

Section 8.1Records 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 Interests, books of account and records of Partnership proceedings, may be kept on, or be in the form of, computer disks, hard drives, magnetic tape, photographs, micrographics or any other information storage device; provided, however, 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 8.2Fiscal Year.

The fiscal year of the Partnership shall be a fiscal year ending December 31.

Section 8.3Reports.

(a)As soon as practicable, but in no event later than 100 days after the close of each fiscal year of the Partnership, the General Partner shall cause to be mailed or made available, by any reasonable means to each Record Holder of a Unit or other Partnership Interest 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 50 days after the close of each Quarter except the last Quarter of each fiscal year, the General Partner shall cause to be mailed or made available, by any reasonable means to each Record Holder of a Unit or other Partnership Interest, 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 or other trading market on which the Units are listed or admitted to trading, or as the General Partner determines to be necessary or appropriate.

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

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Article IX

TAX MATTERS

Section 9.1Tax Returns and Information.

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

Section 9.2Tax 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 or other trading market on which such Limited Partner Interests are listed or admitted to trading during the calendar month in which such transfer is deemed to occur pursuant to Section 6.2(h) 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 9.3Tax Controversies.

Subject to the provisions hereof, the General Partner is designated as the “tax matters partner” (as defined in Section 6231(a)(7) of the Code as in effect prior to the enactment of the Bipartisan Budget Act of 2015) and the “partnership representative” (as defined in Section 6223 of the Code following the enactment of the Bipartisan Budget Act of 2015) (the “Tax Matters Partner”). The Tax Matters Partner 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. In its capacity as “partnership representative,” the Tax Matters Partner shall exercise, in its sole discretion, any and all authority of the “partnership representative” under the Code, including, without limitation, (i) binding the

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Partnership and its Partners with respect to tax matters and (ii) determining whether to make any available election under Section 6226 of the Code. Each Partner agrees to cooperate with the Tax Matters Partner and to do or refrain from doing any or all things reasonably required by the Tax Matters Partner to conduct such proceedings.  Notice of or updates regarding tax controversies shall be deemed conclusively to have been given to or made by the Tax Matters Partner to the Partners if the Partnership has either (a) filed the information for which notice is required with the Commission via its Electronic Data Gathering, Analysis and Retrieval system and such information is publicly available on such system or (b) made the information for which notice is required available on any publicly available website maintained by the Partnership, whether or not such Partner remains a Partner in the Partnership at the time such information is made publicly available. The General Partner may amend the provisions of this Agreement in accordance with Article XIII as determined appropriate in order to minimize the potential U.S. federal and state or local income tax consequences to current and former Limited Partners, or, for the proper administration of the Partnership, upon any amendment to the provisions of Subchapter C of Chapter 63 of Subtitle A of the Code, as enacted by the Bipartisan Budget Act of 2015, or the promulgation of Treasury Regulations or publication of other administrative guidance thereunder.

Section 9.4Withholding; Tax Payments.

(a)The General Partner may treat taxes paid by the Partnership on behalf of, all or less than all of the Partners, either as a distribution of cash to such Partners or as a general expense of the Partnership, as determined appropriate under the circumstances by the General Partner.

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

Article X

ADMISSION OF PARTNERS

Section 10.1Admission of Limited Partners.

(a)By acceptance of the transfer of any Limited Partner Interests in accordance with Article IV or the acceptance of any Limited Partner Interests issued pursuant to Article V or pursuant to a merger or consolidation or conversion pursuant to Article XIV, and except as provided in Sections 4.7 and 7.11, each transferee of, or other such Person acquiring, a Limited Partner Interest (including any nominee holder or an agent or representative acquiring such Limited Partner Interests for the account of another Person) (i) shall be admitted to the Partnership as a Limited Partner with respect to the Limited Partner Interests transferred or issued to such

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Person when any such transfer, issuance or admission is reflected in the books and records of the Partnership and such Limited Partner becomes the Record Holder of the Limited Partner Interests so transferred or issued, (ii) shall become bound, and shall be deemed to have agreed to be bound, by the terms of this Agreement, (iii) represents that the transferee has the capacity, power and authority to enter into this Agreement and (iv) makes the consents, acknowledgements and waivers contained in this Agreement, all with or without execution of this Agreement by such Person.  A Person may become a Limited Partner or Record Holder of a Limited Partner Interest without the consent or approval of any of the Partners.  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 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 an Ineligible Citizen Holder shall be determined in accordance with Section 4.8.

(b)The name and mailing address of each Record Holder shall be listed on the books and records of the Partnership maintained for such purpose by the General Partner 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.

(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 10.2Admission of Successor or Additional General Partner.

A successor General Partner approved pursuant to Section 11.1 or 11.2 or the transferee of or successor to all or part 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 the General Partner Interest pursuant to Section 4.6, provided, however, that no such Person shall be admitted to the Partnership as a successor or additional General Partner until compliance with the terms of Section 4.6 has occurred and such Person has executed and delivered such other documents or instruments as may be required to effect such admission, including a counterpart to this Agreement.  Any such successor or additional General Partner is hereby authorized to, and shall, subject to the terms hereof, carry on the business of the members of the Partnership Group without dissolution.

Section 10.3Amendment of Agreement and Certificate of Limited Partnership.

To effect the admission to the Partnership of any Partner, the General Partner shall take all steps necessary or appropriate under the Delaware Act to amend the records of the Partnership to reflect such admission and, if necessary, to prepare as soon as practicable an amendment to this Agreement and, if required by law, the General Partner shall prepare and file an amendment to the Certificate of Limited Partnership.

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Article XI

WITHDRAWAL OR REMOVAL OF PARTNERS

Section 11.1Withdrawal 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 General Partner Interest 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 debt-or-in-possession), receiver or liquidator of the General Partner or of all or any substantial part of its properties;

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

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

If an Event of Withdrawal specified in Section 11.1(a)(iv), (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.

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(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 am, prevailing Central Time, on December 31, 2021, the General Partner voluntarily withdraws by giving at least 90 days’ advance notice of its intention to withdraw to the Limited Partners; provided, however, 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 under the Delaware Act of any Limited Partner or cause any Group Member to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for federal income tax purposes (to the extent not already so treated or taxed); (ii) at any time after 12:00 am, prevailing Central Time, on December 31, 2021, 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, if any, to the extent applicable, of the other Group Members.  If the General Partner gives a notice of withdrawal pursuant to Section 11.1(a)(i), the holders of a Unit Majority, may, prior to the effective date of such withdrawal, elect a successor General Partner.  The Person so elected as successor General Partner shall, upon admission pursuant to Section 10.2, 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 unless the Partnership is continued without dissolution pursuant to Section 12.2.  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.

Section 11.2Removal of the General Partner.

The General Partner may be removed if such removal is approved by the Unitholders holding at least 66⅔% of the Outstanding Units (including Units held by the General Partner and its Affiliates) voting as a single class.  Any such action by such holders for removal of the General Partner must also provide for the election of a successor General Partner by the Unitholders holding a majority of the outstanding Common Units (including Common 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.  To the fullest extent permitted by law, the removal of the General Partner shall also automatically constitute the removal of the

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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.  To the fullest extent permitted by law, 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 11.3Interest of Departing General Partner and Successor General Partner.

(a)In the event of (i) withdrawal of the General Partner under circumstances where such withdrawal does not violate this Agreement or (ii) removal of the General Partner by the holders of Outstanding Units under circumstances where Cause does not exist, if the successor General Partner is elected in accordance with the terms of Section 11.1 or Section 11.2, the Departing General Partner shall have the option, exercisable prior to the effective date of the withdrawal or removal of such Departing General Partner, to require its successor to purchase its General Partner Interest and its or its Affiliates’ general partner interest (or equivalent interest), if any, in the other Group Members (collectively, the “Combined Interest”) in exchange for an amount in cash equal to the fair market value of such Combined Interest, such amount to be determined and payable as of the effective date of its withdrawal or removal.  If the General Partner is removed by the Unitholders under circumstances where Cause exists or if the General Partner withdraws under circumstances where such withdrawal violates this Agreement, and if a successor General Partner is elected in accordance with the terms of Section 11.1 or Section 11.2 (or if the Partnership is continued without dissolution 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 withdrawal or removal of such Departing General Partner (or, in the event the Partnership is continued without dissolution pursuant to Section 12.2, prior to the date the business of the Partnership is continued), to purchase the Combined Interest in exchange for an amount in cash equal to the fair market value of such Combined Interest of the Departing General Partner.  In either event, the Departing General Partner shall be entitled to receive all reimbursements due such Departing General Partner pursuant to Section 7.4, including any employee-related liabilities (including severance liabilities), incurred in connection with the termination of any employees employed by the Departing General Partner or its Affiliates (other than any Group Member) for the benefit of the Partnership or the other Group Members.

For purposes of this Section 11.3(a), the fair market value of the 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 withdrawal or removal, 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 withdrawal or removal, then the Departing General Partner shall designate

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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.  In making its determination, such third independent investment banking firm or other independent expert may consider the value of the Units, including the then current trading price of Units on any National Securities Exchange or other trading market on which Units are then listed or admitted to trading, the value of the Partnership’s assets, the rights and obligations of the Departing General Partner and other factors it may deem relevant.

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

Section 11.4Withdrawal of Limited Partners.

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

Article XII

DISSOLUTION AND LIQUIDATION

Section 12.1Dissolution.

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

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(a)an Event of Withdrawal of the General Partner as provided in Section 11.1(a), unless a successor is elected pursuant to this Agreement 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 12.2Continuation of the Business of the Partnership After Dissolution.

Upon (a) dissolution of the Partnership following an Event of Withdrawal caused by the withdrawal or removal of the General Partner as provided in Section 11.1(a)(i) or Section 11.1(a)(iii) and the failure of the Partners to select a successor to such Departing General Partner pursuant to Section 11.1 or 11.2, then, to the fullest extent permitted by law, 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 in writing to continue the business of the Partnership on the same terms and conditions set forth in this Agreement by appointing, effective as of the date of the Event of Withdrawal, as a successor General Partner a Person approved by the holders of a Unit Majority.  Unless such an election is made within the applicable time period as set forth above, the Partnership shall dissolve and 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 such admission and 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 under the Delaware Act of any Limited Partner and (y) neither the Partnership nor any Group Member would be treated as an association taxable as a corporation or otherwise be taxable as an entity for U.S. federal income tax purposes upon the exercise of such right to continue (to the extent not already so treated or taxed).

Section 12.3Liquidator.

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Upon dissolution of the Partnership, the General Partner, or if none, the holders of a Unit Majority, 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.  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.  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.  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 12.4Liquidation.

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

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

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

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(c)All property and all cash in excess of that required to discharge liabilities as provided in Section 12.4(b) shall be distributed to the Partners in accordance with, and to the extent of, the positive balances in their respective Capital Accounts, as determined after taking into account all Capital Account adjustments (other than those made by reason of distributions pursuant to this Section 12.4(c)) for the taxable period 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 period (or, if later, within 90 days after said date of such occurrence).

Section 12.5Cancellation 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 winding up 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 12.6Return of Contributions.

The General Partner shall not be personally liable for, and shall have no obligation to contribute or loan any money 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 12.7Waiver of Partition.

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

Section 12.8Capital Account Restoration.

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

Article XIII

AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE

Section 13.1Amendments to be Adopted Solely by the General Partner.

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

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(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 other entity 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 (1) does not adversely affect the Limited Partners considered as a whole (or any particular class of Partnership Interests as compared to other classes of Partnership Interests) in any material respect (except as permitted by subsection (g) hereof); provided, however, that for purposes of determining whether an amendment satisfies the requirements of this Section 13.1(d)(1), the General Partner may in its sole discretion disregard any adverse effect on any class or classes of Partnership Interests the holders of which have approved such amendment pursuant to Section 13.3(c), (2) to be necessary or appropriate to (A) satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or regulation of any federal or state agency or judicial authority or contained in any federal or state statute (including the Delaware Act) or (B) facilitate the trading of the Units (including the division of any class or classes of Outstanding Units into different classes to facilitate uniformity of tax consequences within such classes of Units) or comply with any rule, regulation, guideline or requirement of any National Securities Exchange or other trading market on which any class of Partnership Interests are or will be listed or admitted to trading, (3) to be necessary or appropriate in connection with action taken by the General Partner pursuant to Section 5.7 or (4) is required to effect the intent expressed in the Registration Statement or the intent of the provisions of this Agreement or is otherwise contemplated by this Agreement;

(e)a change in the fiscal year or taxable period 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 period of the Partnership including, if the General Partner shall so determine, a change in the definition of “Quarter” and the dates on which distributions are to be made by the Partnership;

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

(g)an amendment that the General Partner determines to be necessary or appropriate in connection with the creation, authorization or issuance of any class or series of

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Partnership Interests or options, rights, warrants, restricted units, appreciation rights, tracking or phantom interests or other economic interests in the Partnership relating to Partnership Interests pursuant to the terms of 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, limited liability company, joint venture or other entity, in connection with the conduct by the Partnership of activities permitted by Section 2.4 or 7.1(a);

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

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

Section 13.2Amendment Procedures.

Except as provided in Section 13.1 and Section 13.3, all amendments to this Agreement shall be made in accordance with the requirements contained in this Section 13.2.  Amendments to this Agreement may be proposed only by the General Partner; provided, however, that, to the fullest extent permitted by law, the General Partner shall have no duty or obligation to propose or approve any amendment to this Agreement and may decline to do so free of any duty (including any fiduciary duty) or obligation whatsoever to the Partnership, any Limited Partner or any other Person bound by this Agreement and, in declining to propose or approve an amendment, to the fullest extent permitted by law shall not be required to act in good faith or pursuant to any other standard imposed by this Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity.  A proposed amendment shall be effective upon its approval by the General Partner and, except as otherwise provided by Sections 13.1 and 13.3, the holders of a Unit Majority, unless a greater or different percentage is expressly required under this Agreement.  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, in each case in accordance with the other provisions of this Article XIII.  The General Partner shall notify all Record Holders upon final adoption of any such proposed amendments.  The General Partner shall be deemed to have notified all Record Holders as required by this Section 13.2 if it has either (i) filed such amendment with the Commission via its Electronic Data Gathering, Analysis and Retrieval system, or any successor system, and such amendment is publicly available on such system or (ii) made such amendment available on any publicly available website maintained by the Partnership.

Section 13.3Amendment Requirements.

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(a)Notwithstanding the provisions of Section 13.1 and Section 13.2, no provision of this Agreement (other than a provision of the Delaware Act that becomes part of this Agreement by operation of law) that establishes a percentage of Outstanding Units (including Units deemed owned by the General Partner) or requires a vote or approval of Partners (or a subset of the Partners) holding a specified Percentage Interest required to take any action shall be amended, altered, changed, repealed or rescinded in any respect that would have the effect of, (i) in the case of any provision of this Agreement other than Section 11.2 or Section 13.4, reducing such percentage or, (ii) in the case of Section 11.2 or Section 13.4, increasing such 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 or increased, as applicable.

(b)Notwithstanding the provisions of Section 13.1 and Section 13.2, no amendment to this Agreement may (i) enlarge the obligations of any Limited Partner (including requiring any holder of a class of Partnership Interests to make additional Capital Contributions to the Partnership) 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, change or modify 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 the General Partner’s consent, which consent may be given or withheld in its sole discretion.

(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 other Partners as contemplated by Section 13.1 (this Section 13.3(c) being subject to the General Partner’s authority to unilaterally approve amendments pursuant to 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.  If the General Partner determines an amendment does not satisfy the requirements of Section 13.1(d)(1) because it adversely affects one or more classes of Partnership Interests, as compared to other classes of Partnership Interests, in any material respect, such amendment shall only be required to be approved by the adversely affected class or classes.

(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 Percentage Interests of all Limited Partners 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 the Delaware Act or the applicable partnership law of the state under whose laws the Partnership is organized.

(e)Except as provided in Section 13.1, this Section 13.3 shall only be amended with the approval of the Partners (including the General Partner and its Affiliates) holding at least 90% of the Percentage Interests of all Limited Partners.

Section 13.4Special Meetings.

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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 Interests 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, if any, determined by the General Partner on a date not less than 10 days nor more than 60 days after the time notice of the meeting is given as provided in Section 15.1.  Limited Partners shall not vote on matters that would cause the Limited Partners to be deemed to be taking part in the management and control of the business and affairs of the Partnership so as to jeopardize the Limited Partners’ limited liability under the Delaware Act or the law of any other state in which the Partnership is qualified to do business.

Section 13.5Notice 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 Partnership Interests for which a meeting is proposed in writing by mail or other means of written communication in accordance with Section 15.1.  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 13.6Record 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 or other trading market on which the Units are listed or admitted to trading or U.S. federal securities laws, in which case the rule, regulation, guideline or requirement of such National Securities Exchange or other trading market or U.S. federal securities laws shall govern) or (b) in the event that approvals are sought without a meeting, the date by which Limited Partners are requested in writing by the General Partner to give such approvals.  If the General Partner does not set a Record Date, then (a) the Record Date for determining the Limited Partners entitled to notice of or to vote at a meeting of the Limited Partners shall be the close of business on the day next preceding the day on which notice is given and (b) the Record Date for determining the Limited Partners entitled to give approvals without a meeting shall be the date the first written approval is deposited with or electronic transmission is transmitted to the Partnership in care of the General Partner in accordance with Section 13.11.

Section 13.7Adjournment.

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

Section 13.8Waiver of Notice; Approval of Meeting.

The transaction of any meeting of Limited Partners, however called and noticed, and whenever held, shall be as valid as if such transaction of business 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 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 13.9Quorum and Voting.

The holders of a majority, by Percentage Interest, of the Outstanding Partnership Interests of the class or classes for which a meeting has been called 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 Interest, 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 Partnership Interests that in the aggregate represent a majority of the Percentage Interest of those present in person or by proxy and entitled to vote 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 Partnership Interests that in the aggregate represent at least such greater or different percentage shall be required; provided that if, pursuant to Section 13.13(c)(iv) or as a matter of law, approval by a plurality vote of Partners (or any class thereof) is required to approve any action, no minimum quorum 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 Partners holding the required Percentage Interest specified in this Agreement.  In the absence of a quorum any meeting of Limited Partners may be adjourned from time to time by the affirmative vote of Partners with at least a majority, by Percentage Interest, of the Outstanding Partnership Interests present and entitled to vote at such meeting represented either in person or by proxy, but no other business may be transacted, except as provided in Section 13.7.

Section 13.10Conduct of a Meeting.

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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 or by electronic transmission, 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 or by electronic transmission, 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 or by electronic transmission. In furtherance of the foregoing, the General Partner may determine that any meeting of the Limited Partners shall not be held at any place, but may instead be held solely by means of remote communication. If authorized by the General Partner in its sole discretion, and subject to such guidelines and procedures as the General Partner may adopt, Limited Partners and their proxyholders not physically present at a meeting of Limited Partners may, by means of remote communication, (i) participate in a meeting of Limited Partners, and (ii) be deemed present in person and vote at a meeting of Limited Partners, whether such meeting is to be held at a designated place or solely by means of remote communication.

 

Section 13.11Action Without a Meeting.

If authorized by the General Partner, any action that may be taken at a meeting of the Limited Partners may be taken without a meeting, without a vote and without prior notice, if an approval in writing or by electronic transmission is signed or transmitted by Limited Partners owning not less than the minimum percentage, by Percentage Interest, of the Outstanding Partnership Interests of the class or classes for which a meeting has been or would have been called (including Partnership 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 entitled to vote at such meeting were present and voted (unless such provision conflicts with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are listed or admitted to trading, in which case the rule, regulation, guideline or requirement of such National Securities Exchange shall govern).  Prompt notice of the taking of action without a meeting shall be given to the Limited Partners who have not consented.  The General Partner may specify that any written ballot, if any, 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 Partnership Interests held by a Limited Partner, the Partnership shall be deemed to have failed to receive a ballot for the Partnership 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, any written approvals or approvals transmitted by electronic transmission shall have no force and effect unless and until (a) they are deposited with or transmitted to the Partnership in care of the General Partner and (b) 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

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to any particular matter (i) will not cause the Limited Partners to be deemed to be taking part in the management and control of the business and affairs of the Partnership so as to jeopardize the Limited Partners’ limited liability, and (ii) is otherwise permissible under the state statutes then governing the rights, duties and liabilities of the Partnership and the Partners.  Nothing contained in this Section 13.11 shall be deemed to require the General Partner to solicit all Limited Partners in connection with a matter approved by the holders of the requisite Percentage Interest of Partnership Interests acting by written consent or consent by electronic transmission without a meeting.

Section 13.12Right to Vote and Related Matters.

(a)Only those Record Holders of the Outstanding Partnership 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 Partnership 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 Partnership Interests shall be deemed to be references to the votes or acts of the Record Holders of such Outstanding Partnership Interests.

(b)With respect to Partnership 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 Partnership Interests are registered, such other Person shall, in exercising the voting rights in respect of such Partnership Interests on any matter, and unless the arrangement between such Persons provides otherwise, vote such Partnership Interests on behalf 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.

Section 13.13Election of Directors.

(a)The number of Directors that shall constitute the whole Board of Directors shall be three, unless otherwise fixed from time to time pursuant to a resolution adopted by a majority of the Directors then in office.  From and after the Effective Time, the Limited Partners shall have the right to elect all of the Directors in accordance with the provisions of this Section 13.13; provided that immediately prior to the Effective Time, each of the six Directors then serving on the Board of Directors resigned, and immediately following the Effective Time, Goff, as the holder of a majority of the Outstanding Units and acting by written consent, shall elect three new Directors, effective as of the Effective Time (each a “New Director”).  Each Director shall be elected to serve a term of one year to expire at the next annual meeting; provided that each New Director shall serve for a term expiring at the annual meeting of Limited Partners to be held in 2021. An annual meeting of the Limited Partners holding Outstanding Units for the election of Directors to the Board of Directors and such other matters as the General Partner shall submit to a vote of the Limited Partners holding Outstanding Units shall be held each year beginning in 2021 on such date and at such time as may be fixed from time to time by the General Partner at such place, if any, within or without the State of Delaware as may be fixed from time to time by the General Partner and all as stated in the notice of the meeting.  Notice of

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the annual meeting shall be given in accordance with Section 13.5 not less than 10 days nor more than 60 days prior to the date of such meeting. The first annual meeting following the Effective Time shall occur no later than August 31, 2021. The General Partner may postpone, recess, reschedule or cancel any previously scheduled annual meeting of Limited Partners.  

(b)A Director shall hold office until the next annual meeting of the Limited Partners and until his or her successor shall have been duly elected and qualified, or until such Director’s earlier death, resignation, disqualification or removal from office.  In no case will a decrease in the number of Directors shorten the term of any incumbent Director. Any vacancy on the Board of Directors that results from the death, disability, resignation or disqualification of any Director or from any other cause, subject to the penultimate sentence of this Section 13.13(b), or any newly created directorship on the Board of Directors caused by an increase in the number of Directors on the Board of Directors may only be filled by a majority of the Directors then in office, even if less than a quorum, or by a sole remaining Director and shall not be filled by the Limited Partners.  A Director may be removed only at a special meeting of the Limited Partners called for such purpose upon the affirmative vote of Limited Partners holding a Unit Majority; provided, however, a Director may only be removed if, at the same meeting, Limited Partners holding a Unit Majority nominate a replacement Director (and any such nomination shall not be subject to the nomination procedures otherwise set forth in this Section 13.13), and Limited Partners holding a Unit Majority also vote to elect a replacement Director.  Notwithstanding Section 13.11, a Director may not be removed by written consent of the Limited Partners.

(c)

(i)Nominations of persons for election as Directors may be made at an annual meeting of the Limited Partners only (A) pursuant to the Partnership’s notice of the annual meeting (or any supplement thereto), (B) by or at the direction of the Board of Directors or any committee thereof or (C) by any Limited Partner that beneficially owns 10% or more of the Outstanding Common Units and who was a Record Holder at the time the notice provided for in this Section 13.13(c) is delivered to the General Partner, who is entitled to vote at the meeting on the election of Directors and who complies with the notice procedures set forth in this Section 13.13(c).

(ii)For any nominations brought before an annual meeting by a Limited Partner pursuant to Section 13.13(c)(i), the Limited Partner must have given timely notice thereof in writing to the General Partner (and must timely provide any updates or supplements to such notice at such times and in such forms provided by this Section 13.13). To be timely, a Limited Partner’s notice shall be delivered to the General Partner not later than the close of business on the ninetieth (90th) day, nor earlier than the close of business on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by the Limited Partner must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual

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meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Partnership or the General Partner).  For purposes of the 2021 annual meeting, the first anniversary of the preceding year’s annual meeting shall be deemed to be June 1, 2021. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a Limited Partner’s notice as described above. The number of nominees a Limited Partner may nominate for election at the annual meeting (or in the case of a Limited Partner giving the notice on behalf of a beneficial owner, the number of nominees a Limited Partner may nominate for election at the annual meeting on behalf of such beneficial owner) shall not exceed the number of Directors to be elected at such annual meeting.  To be in proper form for purposes of this Section 13.13, such Limited Partner’s notice shall set forth: (A) as to each person whom the Limited Partner proposes to nominate for election as a Director (1) the name, age, business and residence address, and principal occupation or employment of the nominee, (2) all information relating to such nominee that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Regulation 14A under the Exchange Act and the rules and regulations promulgated thereunder, (3)  a reasonably detailed description of any compensatory, payment or other financial agreement, arrangement or understanding that such nominee has with any other person or entity other than the Partnership Group including the amount of any payment or payments received or receivable thereunder, in each case in connection with candidacy or service as a Director, (4) such person’s written consent to being named in the Partnership’s proxy statement and associated proxy card as a nominee of the Limited Partner and to serving as a Director if elected and (5) all information with respect to such nominee that would be required to be set forth in a Limited Partner’s notice pursuant to this ‎Section 13.13 if such nominee were the Limited Partner giving notice hereunder; and (B) as to the Limited Partner giving the notice and the beneficial owner, if any, on whose behalf the nomination is made (1) the name and address of such Limited Partner, as they appear on the Partnership’s books and records, and of such beneficial owner, (2) the number of Partnership Securities that are owned beneficially and of record by such Limited Partner and such beneficial owner (provided, that such Limited Partner and the beneficial owner, if any, on whose behalf the nomination is made shall in all events be deemed to beneficially own any Partnership Securities as to which such Limited Partner or beneficial owner, if any, has a right to acquire beneficial ownership at any time in the future), (3) a description of any agreement, arrangement or understanding with respect to the nomination between or among such Limited Partner and such beneficial owner, any of their respective Affiliates or associates, and any others acting in concert with any of the foregoing (including their names), including the nominee (4) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions, and borrowed or loaned Common Units) that has been entered into as of the date of the Limited Partner’s notice by, or on behalf of, such Limited Partner and such beneficial owners, the

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effect or intent of which is to mitigate loss to, manage risk or benefit of Common Unit price changes for, or increase or decrease the voting power of, such Limited Partner and such beneficial owner, with respect to Common Units, (5) a representation that the Limited Partner is a Record Holder entitled to vote at such meeting upon the election of Directors and intends to appear in person or by proxy at the meeting to propose such nomination, (6) a representation whether the Limited Partner or the beneficial owner, if any, intends or is part of a group which intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Partnership’s Common Units required to elect the nominee and/or (y) otherwise to solicit proxies from Limited Partners in support of such nomination and (7) any other information relating to such Limited Partner and beneficial owner, if any, that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Regulation 14A under the Exchange Act and the rules and regulations promulgated thereunder. The General Partner may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a Director. If requested by the Partnership or the General Partner, the information required by clause (B) of this paragraph shall be supplemented by such Limited Partner and any such beneficial owner not later than ten (10) days after the record date for the meeting to disclose such information as of the record date.  In addition, a Limited Partner seeking to nominate a Director candidate shall promptly provide any other information reasonably requested by the Partnership or the General Partner.

(iii)Notwithstanding anything in the second sentence of Section 13.13(c)(ii) to the contrary, in the event that the number of Directors to be elected at the annual meeting is increased effective after the time period for which nominations would otherwise be due under Section 13.13(c)(ii) and there is no public announcement by the Partnership or the General Partner naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a Limited Partner’s notice required by this Section 13.13(c) shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the General Partner not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Partnership or the General Partner.