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FIRST AMENDMENT
TO
FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP
OF
EV ENERGY PARTNERS, L.P.
This
First Amendment (this “
First Amendment ”)
to the First Amended and Restated Agreement of Limited Partnership
of EV Energy Partners, L.P., a Delaware limited partnership, dated
September 28, 2006 (the “
Partnership Agreement ”)
is hereby adopted effective as of January 1, 2007, by EV Energy GP,
L.P., 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 ,
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 Incentive Distribution Rights or
the General Partner’s Combined Interest to Common Units
pursuant to
Section 11.3(b) ,
as the case may be, to Class B Units or Common Units pursuant
to
Section 5.11(a) or
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
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