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AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP
OF
DCP MIDSTREAM PARTNERS, LP
This
Amendment No. 1 (this “
Amendment No. 1 ”)
to the Amended and Restated Agreement of Limited Partnership (as
amended, the “
Partnership Agreement ”)
of DCP Midstream Partners, LP (the “
Partnership ”)
is hereby adopted by DCP Midstream GP, LP, a Delaware limited
partnership (the “
General Partner ”),
as general partner of the Partnership. Capitalized terms used but
not defined herein are used as defined in the Partnership
Agreement.
WHEREAS ,
the General Partner desires to amend the Partnership Agreement to
make certain adjustments to certain allocation provisions and the
definitions related thereto, which adjustments shall be effective
in accordance with Section 761(c) of the Code as of January 1,
2007; and
WHEREAS ,
acting pursuant to the power and authority granted to it under
Section 13.1(d) of the Partnership Agreement, the General
Partner has determined that the following amendment to the
Partnership Agreement does
not require the approval of any Limited Partner.
NOW THEREFORE ,
the General Partner does hereby amend the Partnership Agreement as
follows:
Section
1.
Amendment .
(a)
Section
1.1 is hereby amended to add or amend and restate the
following definitions:
(i)
“
Disposed of Adjusted Property ”
has the meaning assigned to such term in Section
6.1(d)(xii)(B).
(ii)
“
Net Termination Gain ”
means, for any taxable year, the sum, if positive, of all items of
income, gain, loss or deduction recognized by the Partnership (a)
after the Liquidation Date or (b) upon the sale, exchange or other
disposition 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 (excluding any disposition to a
member of the Partnership Group). The items included in the
determination of Net Termination Gain shall be determined in
accordance with Section 5.5(b) and shall not include any items of
income, gain or loss specially allocated under Section
6.1(d).
(iii)
“
Net Termination Loss ”
means, for any taxable year, the sum, if negative, of all items of
income, gain, loss or deduction recognized by the Partnership (a)
after the Liquidation Date or (b) upon the sale, exchange or other
disposition 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 (excluding any disposition to a
member of the Partnership Group). The items included in the
determination of Net Termination Loss shall be determined in
accordance with Section 5.5(b) and shall not include any items of
income, gain or loss specially allocated under Section
6.1(d).
(b)
Section 5.5(d)
is hereby amended and restated in its entirety as
follows:
(i)
In
accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(f), on an issuance of additional Partnership
Interests for cash or Contributed Property, the issuance of
Partnership Interests as consideration for the provision of
services or the conversion of the General Partner’s
Combined Interest to Common Units pursuant to Section 11.3(b),
the Capital Accounts of all Partners and the Carrying Value of
each Partnership property immediately prior to such issuance
shall be adjusted upward or downward to reflect any Unrealized
Gain or Unrealized Loss attributable to such Partnership
property, as if such Unrealized Gain or Unrealized Loss had
been recognized on an actual sale of each such property for an
amount equal to its fair market value immediately prior to
such issuance and had been allocated to the Partners at such
time pursuant to Section 6.1(c) in the same manner as any item
of gain or loss actually recognized following an event giving
rise to the dissolution of the Partnership would have been
allocated. In determining such Unrealized Gain or Unrealized
Loss, the aggregate cash amount and fair market value of all
Partnership assets (including cash or cash equivalents)
immediately prior to the issuance of additional Partnership
Interests shall be determined by the General Partner using
such method of valuation as it may adopt; provided, however,
that the General Partner, in arriving at such valuation, must
take fully into account the fair market valu
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