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 (date of earliest event reported): April 25, 2016

 
AMERICAN MIDSTREAM PARTNERS, LP
(Exact name of registrant as specified in its charter)

 

Delaware	 	001-35257	 	27-0855785	
(State or other jurisdiction
of incorporation)	 	(Commission
File No.)	 	(IRS Employer
Identification No.)	

1400 16th Street, Suite 310
Denver, Colorado	 	80202	
(Address of principal executive offices)	 	(Zip Code)	
 
(720) 457-6060
(Registrant’s telephone number, including area code)
 
Not Applicable
(Former name or former address, if changed since last report)

 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
 
o       Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o       Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o       Pre-commencement communications pursuant to Rule 14d-2(b) under Exchange Act (17 CFR 240.14d-2(b))
 
o       Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 
Item 1.01 Entry into a Material Definitive Agreement
 
Securities Purchase Agreement and Issuance of Series C Preferred Units
 
On April 25, 2016, American Midstream Partners, LP (the “Partnership”) entered into a Securities Purchase Agreement (the “Securities Purchase Agreement”) with Magnolia Infrastructure Holdings, LLC (“Magnolia”), an affiliate of High Point Infrastructure Partners, LLC (“HPIP”), pursuant to which the Partnership issued 8,571,429 shares of newly-designated Series C convertible preferred units (the “Series C Preferred Units”) representing limited partnership interests in the Partnership and a warrant (the “Warrant”) to purchase 800,000 common units representing limited partnership interests in the Partnership (“Common Units”) in a private placement for approximately $120.0 million in gross proceeds (the “Securities Issuance”).  The number of Common Units issuable pursuant to the exercise of the warrant is subject to adjustment as described below.  The Series C Preferred Units and Warrant were both issued in a private placement in reliance upon an exemption from the registration requirements of the Securities Act of 1933, as amended, pursuant to Section 4(a)(2) thereof and the safe harbor provided by Rule 506 of Regulation D promulgated thereunder.  The conflicts committee (the “Conflicts Committee”), a committee composed of independent members of the Board of Directors (the “Board”) of American Midstream GP, LLC, the general partner of the Partnership (the “General Partner”), determined the Securities Issuance was in the best interests of the Partnership and recommended the Securities Issuance to the Board for adoption and approval.
 
Series C Preferred Units
 
The Series C Preferred Units were created and issued pursuant to the Fifth Amended and Restated Agreement of Limited Partnership of American Midstream Partners, LP (“Fifth Amended and Restated Partnership Agreement”), which is filed as Exhibit 3.1 hereto.
 
The Series C Preferred Units have the right to receive cumulative distributions in the same priority as the Series A convertible preferred units, which is before any other distributions made in respect of any other partnership interests (the “Series C Quarterly Distribution”), in the amounts described herein.  Through and including the quarter ending immediately prior to the Series C Coupon Conversion Quarter (as defined below) (such Series C Quarterly Distribution, the “Pre-Conversion Distribution”), the Series C Quarterly Distribution on each outstanding Series C Preferred Unit will be paid as either, in our General Partner’s discretion: (i) a number of Series C PIK Units (as defined below) equal to the Series C PIK Payment Amount (as defined below) or (ii) an amount in cash equal to the Series C Distribution Rate (as defined below).  With respect to the Series C Coupon Conversion Quarter and all quarters thereafter, the Series C Quarterly Distributions will be paid entirely in cash at the Series C Distribution Rate (as defined below).  If all or any portion of a Series C Quarterly Distribution is to be paid in cash, then the aggregate amount of such cash to be distributed in respect of the Series C Preferred Units outstanding will be paid out of available cash in the same priority as any cash distributions made to the Series A unitholders, which will be made prior to any distributions to the General Partner or our common unitholders.  To the extent that any portion of a Series C Quarterly Distribution (or a Series A quarterly distribution) paid in cash exceeds the amount of Available Cash (as defined in the Partnership Agreement), an amount of cash equal to the Available Cash will be paid pro rata to the Series A unitholders and the Series C unitholders and the balance of such Series A quarterly distribution and Series C Quarterly Distributions will become an arrearage and accrue interest until paid in a future quarter.
 
The “Series C Coupon Conversion Quarter” is the earlier of (1) the quarter beginning July 1, 2017 and (2) the date on which Common Units are issued in respect of a conversion of the Series C Preferred Units, which occurs at the election of the holders.
 
“Series C PIK Units” are the additional Series C Preferred Units issued in kind as a distribution to holders of Series C Preferred Units.
 
“Series C PIK Payment Amount” is the number of Series C PIK Units equal to (i) the Series C Distribution Rate divided by (ii) the Series C Adjusted Issue Price, as it may be adjusted from time to time pursuant to the Partnership Agreement.  “Series C Adjusted Issue Price” is an amount equal to (i) the Series C Issue Price (or $14.00), divided by (ii) the Series C Conversion Rate, which is currently 1:1.  “Series C Distribution Amount” is the cash distribution amount for the relevant quarter that each Series C Preferred Unit would have received on an as-
 
2 

 
converted basis if such Series C Preferred Unit had been converted into a Common Unit immediately prior to the beginning of such quarter.
 
“Series C Distribution Rate” is the amount per quarter per Series C Preferred Unit payable in arrears equal to the greater of (i) $0.4125 and (ii) the Series C Distribution Amount.
 
The record date for the determination of holders entitled to receive Series C Quarterly Distributions will be the same as the record date for determination of Common Unit holders entitled to receive quarterly distributions.
 
If we fail to pay in full any Series C Quarterly Distribution, the amount of such unpaid distribution will accrue, accumulate and bear interest at a rate of 11.79% per annum from the first day of the quarter immediately following the quarter for which such distribution is due until paid in full.
 
The Series C Preferred Units have voting rights that are identical to the voting rights of the Common Units and will vote with the Common Units as a single class on an as converted basis, with each Series C Preferred Unit initially entitled to one vote for each Common Unit into which such Series C Preferred Unit is convertible. The Series C Preferred Units also have separate class voting rights on any matter, including a merger, consolidation or business combination, that adversely affects, amends or modifies any of the rights, preferences, privileges or terms of the Series C Preferred Units. The Series C Preferred Units are convertible in whole or in part into Common Units at any time. The number of Common Units into which a Series C Preferred Unit is convertible will be an amount equal to (i) the sum of $14.00 and all accrued and accumulated but unpaid distributions, divided by (ii) the conversion price (the “Conversion Rate”).
 
In the event that the Partnership issues, sells or grants any Common Units or convertible securities at an indicative per Common Unit price that is less than $14.00 per Common Unit (subject to customary anti-dilution adjustments), then the Conversion Rate will be adjusted according to a formula to provide for an increase in the number of Common Units into which Series C Preferred Units are convertible.
 
Prior to consummating any recapitalization, reorganization, consolidation, merger, spin-off or other business combination in which the holders of Common Units are to receive securities, cash or other assets (a “Partnership Event”), we are obligated to make an irrevocable written offer, subject to consummating the Partnership Event, to the holders of Series C Preferred Units to redeem all (but not less than all) of the Series C Preferred Units for a price per Series C Preferred Unit payable in cash equal to the greater of:
 
·                   the sum of $14.00 and all accrued and accumulated but unpaid distributions for each Series C Preferred Unit; or
 
·                   an amount equal to the product of:
 
i.                   the number of Common Units into which each Series C Preferred Unit is convertible; and
 
ii.                the sum of:
 
A.             the cash consideration per Common Unit to be paid to the holders of Common Units pursuant to the Partnership Event, plus
 
B.             the fair market value per Common Unit of the securities or other assets to be distributed to the holders of the Common Units pursuant to the Partnership Event.
 
Upon receipt of a redemption offer, each holder of Series C Preferred Units may elect to receive the cash amount or a preferred security issued by the person surviving or resulting from the Partnership Event and containing provisions substantially equivalent to the provisions set forth in the Fifth Amended and Restated Partnership Agreement with respect to the Series C Preferred Units without material abridgement.
 
3 

 
At any time prior to April 25, 2017, the Partnership has the right (the “Series C Call Right”) to require the holders of the Series C Preferred Units to sell, assign and transfer all or a portion of the then outstanding Series C Preferred Units to the Partnership for a purchase price of $14.00 per Series C Preferred Unit (subject to customary anti-dilution adjustments), plus all accrued but unpaid distributions on each Series C Preferred Unit.
 
The Partnership may not exercise the Series C Call Right with respect to any Series C Preferred Unit if the holder of such Series C Preferred Unit has elected to convert it into Common Units on or prior to the date the Partnership has provided notice of its intent to exercise its Series C Call Right, and may not exercise the Series C Call Right if doing so would violate applicable law or result in a default under any financing agreement or obligation of the Partnership or its affiliates.
 
Upon any liquidation and winding up of the Partnership or the sale of substantially all of the assets of the Partnership, the holders of Series C Preferred Units generally will be entitled to receive, in preference to the holders of any of the Partnership’s other securities, an amount equal to the sum of the $14.00 multiplied by the number of Series C Preferred Units owned by such holders, plus all accrued but unpaid distributions.
 
Warrant
 
Pursuant to the Securities Purchase Agreement, the Partnership issued the Warrant to Magnolia, which allows it to purchase up to 800,000 Common Units at an exercise price of $7.25 per Common Unit.  On April 25, 2017, the number of Common Units that may be purchased pursuant to the exercise of the Warrant will be increased by an amount, rounded to the nearest whole Common Unit, equal to the product obtained by the following calculation: (i) 400,000 multiplied by (ii) (A) the Series C Issue Price multiplied by the number of Series C Preferred Units then outstanding less $45,000,000 divided by (B) the Series C Issue Price multiplied by the number of Series C Preferred Units issued less $45,000,000.
 
Each issuance of the Series C PIK Units will increase the number of Common Units that can be purchased upon exercise of the Warrant by an amount, rounded to the nearest whole Common Unit, equal to the product obtained by the following calculation: (i) the total number of Common Units into which each Warrant may be converted into immediately prior to the most recent issuance of the Series C PIK Units multiplied by (ii) (A) the total number of outstanding Series C Preferred Units immediately after the most recent issuance of Series C PIK Units divided by (B) the total number of outstanding Series C Preferred Units immediately prior to the most recent issuance of Series C PIK Units.
 
The Warrants are subject to standard anti-dilution adjustments and are exercisable at any time after April 25, 2016 and on or before the seventh anniversary of April 25, 2016.
 
The foregoing description of the Securities Purchase Agreement, the Series C Preferred Units and the Warrant contained in this Item 1.01 is not complete and is qualified in its entirety by reference to the full text of the Securities Purchase Agreement, which is filed as Exhibit 10.1 hereto and incorporated by reference herein, the Fifth Amended and Restated Partnership Agreement, which is filed as Exhibit 3.1 hereto and incorporated by reference herein and the Warrant, which is filed as Exhibit 10.3 hereto and incorporated by reference herein.  The Securities Purchase Agreement contains customary representations, warranties, covenants and agreements by the Partnership and other parties thereto, indemnification obligations of the Partnership and other parties thereto, other obligations of the parties and termination provisions.  The representations, warranties, covenants and other provisions contained in the Securities Purchase Agreement were made only for purposes of such agreement as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.
 
Certain Relationships
 
Magnolia is an affiliate of ArcLight Capital Partners, LLC (“ArcLight”).  Arclight is an affiliate of HPIP, which owns a 95% interest in the General Partner.  Accordingly, the Board authorized the Conflicts Committee to review and evaluate the Securities Issuance and the Securities Purchase Agreement for the purpose of determining whether to grant its special approval thereof as contemplated by the Partnership’s partnership agreement.  The Conflicts Committee retained independent legal and financial advisors to assist it in evaluating the terms of the Securities Issuance, and, based its decision in part on an opinion from its independent financial advisor, determined that the Securities Issuance, as contemplated by the Securities Purchase Agreement and the Fifth Amended and
 
4 

 
Restated Partnership Agreement, was in the best interests of the Partnership and unanimously granted its special approval of the Securities Issuance as contemplated by the Securities Purchase Agreement and the Fifth Amended and Restated Partnership Agreement.
 
Fifth Amended and Restated Partnership Agreement
 
Effective as of April 25, 2016, the Partnership entered into the Fifth Amended and Restated Partnership Agreement.  As noted above, the Fifth Amended and Restated Partnership Agreement reflects the issuance of the Series C Preferred Units, the Series C PIK Units and the Warrant, and other corrections and clarifications.
 
As the amendments in the Fifth Amended and Restated Partnership Agreement are specific to the Securities Issuance to Magnolia, the Board authorized the Conflicts Committee to review and evaluate the Fifth Amended and Restated Partnership Agreement for the purpose of determining whether to grant its special approval as contemplated by the Partnership’s existing partnership agreement, as amended.  The Conflicts Committee, with the assistance of its independent legal and financial advisors, evaluated the terms of the Fifth Amended and Restated Partnership Agreement, determined that it was in the best interests of the Partnership, and unanimously granted its special approval of the Fifth Amended and Restated Partnership Agreement.
 
The description of the Fifth Amended and Restated Partnership Agreement contained in this Item 1.01 is not complete and is qualified in its entirety by reference to the full text of the Fifth Amended and Restated Partnership Agreement, which is filed as Exhibit 3.1 hereto and incorporated by reference herein.
 
Purchase and Sale Agreements
 
On April 25, 2016 and April 27, 2016, American Midstream Emerald, LLC (“Emerald”), a wholly-owned indirect subsidiary of the Partnership, entered into two Purchase and Sale Agreements with Emerald Midstream, LLC for the purchase of membership interests in certain entities.
 
On April 25, 2016, Emerald entered into a Purchase and Sale Agreement for the purchase of membership interests in entities that own and operate natural gas pipeline systems in and around Louisiana, Alabama, Mississippi, and the Gulf of Mexico (the “Pipeline Purchase Agreement”).  Pursuant to the Pipeline Purchase Agreement, Emerald acquired (i) 16-2/3% of the issued and outstanding membership interests of Tri-States NGL Pipeline, L.L.C. (“Tri-States”), (ii) 25.3% of the issued and outstanding membership interests of Wilprise Pipeline Company, L.L.C. (“Wilprise”) and (iii) 49-2/3% of the issued and outstanding membership interests of Destin Pipeline Company, L.L.C. (“Destin,” and collectively with Tri-States and Wilprise, the “Companies”), plus an option to purchase an additional 17% of the issued and outstanding membership interests of Destin, in exchange for approximately $184 million (the “Pipeline Transaction”).
 
The Destin pipeline is a FERC-regulated, 255-mile natural gas transport system with total capacity of 1.2 billion cubic feet per day (“Bcf/d”).  The system originates offshore in the Gulf of Mexico and includes connections with four producing platforms, and six producer-operated laterals, including Delta House (as defined below).  The 120-mile offshore portion of the Destin system terminates at the Pascagoula processing plant and is the single source of raw natural gas to the plant.  The onshore portion of Destin is the sole delivery point for merchant-quality gas from the Pascagoula plant and extends 135 miles north in Mississippi.  Destin currently serves as the primary transfer of gas flows from the Barnett and Haynesville shale plays to Florida markets through interconnections with major interstate pipelines.  Contracted volumes on the Destin pipeline are based on life-of-field dedication, dedicated volumes over a given period, or interruptible volumes as capacity permits.  The Partnership acquired 49-2/3% of the issued and outstanding membership interests in Destin and an affiliate of the General Partner has an option to acquire an additional 17% of the issued and outstanding membership interests in Destin in mid-2017.  Enbridge Inc. is the remaining minority interest holder.  The Destin pipeline is currently operated by BP plc (“BP”).
 
The Tri-States pipeline is a FERC-regulated, 161-mile natural gas liquids (“NGL”) pipeline and sole form of transport to Louisiana-based fractionators for NGLs produced at the Pascagoula Plant served by Destin, the Mobile Bay plant owned by Williams Partners, L.P., and the Mobile Bay plant owned by DCP Midstream Partners, L.P.  The Tri-States pipeline terminates at the Kenner Louisiana Junction where NGLs access Enterprise Products Partners L.P.’s Norco fractionation facility, the Wilprise pipeline, and/or the Belle Rose NGL pipeline.  The
 
5 

 
Wilprise pipeline is a FERC-regulated, approximately 30-mile NGL pipeline that originates at the Kenner Junction and terminates in Sorrento, Louisiana where volumes flow via pipeline to a Baton Rouge fractionator operated by Energy Production Corporation.  The Partnership acquired 16-2/3% of the issued and outstanding membership interests in Tri-States and 25.3% of the issued and outstanding membership interests in Wilprise.  Enterprise Products Partners L.P. is the majority interest holder in both the Tri-States and Wilprise pipelines and operator of the Wilprise pipeline.  BP currently operates the Tri-States pipeline.
 
On April 27, 2016, Emerald entered into a Purchase and Sale Agreement for the purchase of 66-2/3% of the issued and outstanding membership interests, including a 66-2/3% percentage interest and a 66-2/3% expense interest, of Okeanos Gas Gathering Company, LLC (“Okeanos”), in exchange for a cash purchase price of approximately $27 million (such Purchase and Sale Agreement, the “Okeanos Purchase Agreement,” and such transaction, the “Okeanos Transaction,” and together with the Pipeline Transaction, the “Emerald Transactions”). The Okeanos pipeline is a 100-mile natural gas gathering system located in the Gulf of Mexico with a total capacity of 1.0 Bcf/d.  The Okeanos pipeline connects two platforms and one lateral, terminating at the Destin Main Pass 260 platform in the Mississippi Canyon region of the Gulf of Mexico.  Contracted volumes on the Okeanos pipeline are based on life-of-field dedication.  Enbridge, Inc. is the minority interest holder in the Okeanos pipeline.
 
The Partnership funded the purchase price for the Emerald Transactions with the net proceeds of the Securities Issuance and additional borrowings under the Partnership’s Amended Credit Agreement (as defined herein).
 
The Pipeline Purchase Agreement and the Okeanos Purchase Agreement contain customary representations, warranties, covenants and agreements by Emerald and the other parties thereto, indemnification obligations of Emerald and the other parties thereto, and other obligations of the parties.  The representations, warranties and covenants contained in the Pipeline Purchase Agreement and the Okeanos Purchase Agreement were made only for purposes of such agreement as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.
 
Emerald Midstream, LLC, the seller of the membership interests in the Companies, is an affiliate of ArcLight. Accordingly, the Board authorized the Conflicts Committee to review and evaluate the Pipeline Purchase Agreement, the Okeanos Purchase Agreement and each of the Operative Documents (as defined in the Pipeline Purchase Agreement and Okeanos Purchase Agreement) (collectively, the “Emerald Transaction Documents”) for the purpose of determining whether to grant its special approval of the Emerald Transaction Documents and the transactions contemplated thereby as contemplated by the Partnership’s existing partnership agreement, as amended.  The Conflicts Committee, with the assistance of its independent legal advisors, evaluated the terms of the Emerald Transaction Documents and the transactions contemplated thereby, determined that the Emerald Transaction Documents and the transactions contemplated thereby, the Pipeline Purchase Agreement and the Okeanos Purchase Agreement were in the best interests of the Partnership, and unanimously granted its special approval of the Emerald Transaction Documents and the transactions contemplated thereby.
 
The description of the Pipeline Transaction and the Pipeline Purchase Agreement contained in this Item 1.01 is not complete and is qualified in its entirety by reference to the full text of the Pipeline Purchase Agreement, which is filed as Exhibit 2.1 hereto and incorporated by reference herein.
 
The description of the Okeanos Transaction and the Okeanos Purchase Agreement contained in this Item 1.01 is not complete and is qualified in its entirety by reference to the full text of the Okeanos Purchase Agreement, which is filed as Exhibit 2.2 hereto and incorporated by reference herein.
 
Delta House Purchase Agreement
 
On April 25, 2016, American Midstream Delta House, LLC (“AMID Delta House”), a wholly-owned indirect subsidiary of the Partnership, entered into a Purchase Agreement with Magnolia (the “Delta House Purchase Agreement”), pursuant to which AMID Delta House acquired from Magnolia (i) 912.42349 Class A Units of Delta House FPS LLC and (ii) 53.54872 Class A Units of Delta House Oil and Gas Lateral LLC, in exchange for a cash purchase price of approximately $9.8 million (the “Delta House Transaction”).  The Partnership funded the purchase price for
 
6 

 
the Delta House Transaction with the net proceeds of the Securities Issuance and additional borrowings under the Partnership’s Amended Credit Agreement.
 
The Delta House Purchase Agreement contains customary representations, warranties, covenants and agreements by AMID Delta House and other parties thereto, indemnification obligations of AMID Delta House and other parties thereto, and other obligations of the parties.  The representations, warranties and covenants contained in the Delta House Purchase Agreement were made only for purposes of such agreement as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.
 
Delta House FPS LLC and Delta House Oil and Gas Lateral LLC own the Delta House fee-based, semi-submersible floating production system platform with associated oil and gas export pipelines (“Delta House”).  Delta House is located in the Mississippi Canyon region with nameplate processing capacity of 80,000 barrels per day (“Bbl/d”) of oil and 200 million cubic feet of gas per day (“MMcf/d”), and peak processing capacity of 100,000 Bbl/d and 240 MMcf/d, respectively.  Delta House was developed by ArcLight and LLOG Exploration Offshore, L.L.C., a leading private deepwater exploration company in the Gulf of Mexico, as well as a consortium of exploration companies and other investors.  Delta House commenced operations in April 2015 and reached nameplate oil capacity in December 2015 with ten wells currently operating.  Delta House’s natural gas pipeline interconnects with the Destin pipeline.  The Partnership owns 13.9% of the issued and outstanding membership interests in Delta House, with the Delta House Transaction representing an incremental 1% increase in the Partnership’s percentage ownership interest in Delta House.
 
As Magnolia is an affiliate of ArcLight, the Board authorized the Conflicts Committee to review and evaluate the Delta House Purchase Agreement and each of the Transaction Documents (as defined in the Delta House Purchase Agreement) (collectively, the “Delta House Transaction Documents”) for the purpose of determining whether to grant its special approval of the Delta House Transaction Documents and the transactions contemplated thereby as contemplated by the Partnership’s existing partnership agreement, as amended. The Conflicts Committee, with the assistance of its independent legal advisors, evaluated the terms of the Delta House Transaction Documents and the transactions contemplated thereby, determined that the Delta House Transaction Documents and the transactions contemplated thereby were in the best interests of the Partnership, and unanimously granted its special approval of the Delta House Transaction Documents and the transactions contemplated thereby.
 
The description of the Delta House Transaction and the Delta House Purchase Agreement contained in this Item 1.01 is not complete and is qualified in its entirety by reference to the full text of the Delta House Purchase Agreement, which is filed as Exhibit 2.3 hereto and incorporated by reference herein.
 
Second Amendment to Amended and Restated Credit Agreement
 
On April 25, 2016, the Partnership, American Midstream, LLC (“AM LLC”), Blackwater Investments, Inc. (the “Blackwater Borrower,” and together with AM LLC, the “Borrowers”), the Guarantors (as defined in the Credit Agreement), Bank of America, N.A. as administrative agent, and the lenders party thereto entered into the Second Amendment to Amended and Restated Credit Agreement and First Amendment to Amended and Restated Guaranty and Collateral (the “Second Amendment”) to the Amended and Restated Credit Agreement dated as of September 5, 2014 (the “Original Credit Agreement,” and, as amended by the Second Amendment, the “Amended Credit Agreement”) and the Amended and Restated Guaranty and Collateral Agreement dated as of September 5, 2014 (the “Original Security Agreement” and, as amended by the Second Amendment, the “Amended Security Agreement”).
 
The Second Amendment amends the Original Credit Agreement to, among other things, reflect and facilitate (i) the Emerald Transactions whereby Emerald acquired partial ownership interests in (a) Destin; (b) Okeanos; (c) Tri-States; and (d) Wilprise, which collectively own hydrocarbon gathering and transportation assets located in and adjacent to the Eastern Gulf of Mexico; and (ii) the acquisition of an indirect partial ownership interest by American Midstream AMPAN, LLC (“AMP Panther”) in 194 miles of crude, natural gas and salt water pipelines in the Gulf of Mexico (the “Panther Acquisition” and, together with the Emerald Transactions, the “Offshore Acquisitions”).
 
7 

 
With respect to the Offshore Acquisition, the Second Amendment (i) required Emerald and AMP Panther to join the Amended Security Agreement to guaranty the obligations under the Amended Credit Agreement and secure such obligations with certain assets of each of Emerald and AMP Panther, and (ii) revised the definition of the term “Consolidated EBITDA,” which is used to calculate certain financial covenants in the Amended Credit Agreement.
 
Additionally, the Second Amendment (a) allowed the Partnership or its subsidiaries to acquire an additional $50 million in ownership interests in Pinto Offshore Holdings, LLC or its assets, (b) included covenants to require American Midstream Terminaling, LLC, American Midstream Midla Financing, LLC (“Midla Financing”), American Midstream Midla Reconfiguring, LLC, and American Midstream Piney Woods, LLC to join the Amended Security Agreement to guaranty the obligations under the Amended Credit Agreement and secure such obligations with certain assets of each of such entities, (c) provided for the release of American Midstream (Midla), LLC (“Midla”), Mid Louisiana Gas Transmission, LLC (“MLGT”), and Midla Financing, from the Amended Credit Agreement and Amended Security Agreement for the term of a potential project financing with respect to certain capital improvements to the assets of Midla and MLGT,  (d) allowed the Partnership or its subsidiaries to incur indebtedness under a performance bond with respect to certain assumed obligations from the Panther Acquisition and (e) provided for the ability to repurchase equity interests in the Partnership with proceeds received from the Securities Issuance.
 
The description of the Second Amendment contained in this Item 1.01 is not complete and is qualified in its entirety by reference to the full text of the Second Amendment, which is filed as Exhibit 10.2 hereto and incorporated by reference herein.
 
Item 2.01 Completion of Acquisition or Disposition of Assets.
 
On April 25, 2016, Emerald completed the transactions contemplated by the Pipeline Purchase Agreement and the Delta House Transaction as described in Item 1.01 above. On April 27, 2016, Emerald completed the transactions contemplated by the Okeanos Purchase Agreement as described in Item 1.01 above.  The description of the Emerald Transactions, the Delta House Transaction, the Emerald Transaction Agreements and the Delta House Purchase Agreement contained in Item 1.01 is incorporated by reference herein.
 
Item 3.02 Unregistered Sales of Equity Securities.
 
On April 25, 2016, the Partnership completed the transactions contemplated by the Securities Purchase Agreement described in Item 1.01 above.  The description of the Securities Purchase Agreement, the Securities Issuance, the Series C Preferred Units, the Series C PIK Units, and the Warrant contained in Item 1.01 is incorporated by reference herein.
 
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
 
On April 25, 2016, the Partnership entered into the Fifth Amended and Restated Partnership Agreement to create the Series C Preferred Units described in Item 1.01 above. The description of the Series C Preferred Units and the Fifth Amended and Restated Partnership Agreement contained in Item 1.01 is incorporated by reference herein.
 
8 

 
Item 9.01 Financial Statements and Exhibits.
 
(d) Exhibits.

Exhibit Number	 	Description	
2.1	 	Purchase and Sale Agreement by and between Emerald Midstream, LLC and American Midstream Emerald, LLC dated April 25, 2016.*	
 	 	 	
2.2	 	Purchase and Sale Agreement by and between Emerald Midstream, LLC and American Midstream Emerald, LLC dated April 27, 2016.*	
 	 	 	
2.3	 	Unit Purchase Agreement by and between Magnolia Infrastructure Holdings, LLC and American Midstream Delta House, LLC dated April 25, 2016.*	
 	 	 	
3.1	 	Fifth Amended and Restated Agreement of Limited Partnership of American Midstream Partners, LP dated April 25, 2016.	
 	 	 	
10.1	 	Securities Purchase Agreement by and between American Midstream Partners, LP and Magnolia Infrastructure Partners, LLC dated April 25, 2016.	
 	 	 	
10.2	 	Second Amendment to Amended and Restated Credit Agreement and First Amendment to Amended and Restated Guaranty and Collateral, dated April 25, 2016.	
 	 	 	
10.3	 	Warrant issued by American Midstream Partners, LP, dated April 25, 2016.	

* Pursuant to Item 601(b)(2) of Regulation S-K, the Partnership agrees to furnish supplementally a copy of any omitted exhibit or schedule to the Securities and Exchange Commission upon request.
 
9 

 
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.

 	AMERICAN MIDSTREAM PARTNERS, LP	
 	 	 	
 	By:	AMERICAN MIDSTREAM GP, LLC	
 	 	 	
 	 	its General Partner	
 	 	 	
 	By:	/s/ Daniel C. Campbell	
 	 	 	
 	Name:	Daniel C. Campbell	
 	 	 	
 	Title:	Senior Vice President and Chief Financial
Officer	
 	 	 	
April 29, 2016	 	 	
 
10 

 
EXHIBITS INDEX

Exhibit Number	 	Description	
2.1	 	Purchase and Sale Agreement by and between Emerald Midstream, LLC and American Midstream Emerald, LLC dated April 25, 2016.*	
 	 	 	
2.2	 	Purchase and Sale Agreement by and between Emerald Midstream, LLC and American Midstream Emerald, LLC dated April 27, 2016.*	
 	 	 	
2.3	 	Unit Purchase Agreement by and between Magnolia Infrastructure Holdings, LLC and American Midstream Delta House, LLC dated April 25, 2016.*	
 	 	 	
3.1	 	Fifth Amended and Restated Agreement of Limited Partnership of American Midstream Partners, LP dated April 25, 2016.	
 	 	 	
10.1	 	Securities Purchase Agreement by and between American Midstream Partners, LP and Magnolia Infrastructure Partners, LLC dated April 25, 2016.	
 	 	 	
10.2	 	Second Amendment to Amended and Restated Credit Agreement and First Amendment to Amended and Restated Guaranty and Collateral, dated April 25, 2016.	
 	 	 	
10.3	 	Warrant issued by American Midstream Partners, LP, dated April 25, 2016.	

* Pursuant to Item 601(b)(2) of Regulation S-K, the Partnership agrees to furnish supplementally a copy of any omitted exhibit or schedule to the Securities and Exchange Commission upon request.
 
11 

Exhibit 2.1
 
Execution Version
 
PURCHASE AND SALE AGREEMENT
 
BY AND BETWEEN
 
EMERALD MIDSTREAM, LLC,
 
AS SELLER
 
AND
 
AMERICAN MIDSTREAM EMERALD, LLC
 
AS BUYER
 
Dated as of April 25, 2016

 
TABLE OF CONTENTS

 	 	Page	
 	 	
ARTICLE I. Definitions	2	
Section 1.1	Definitions	2	
Section 1.2	Definition and Construction Provisions	6	
 	 	 	
ARTICLE II. PURCHASE AND SALE of the company interests	7	
Section 2.1	Purchase and Sale of the Company Interests	7	
Section 2.2	Payment of the Purchase Price	7	
 	 	 	
ARTICLE III. CLOSING	7	
Section 3.1	Closing	7	
Section 3.2	Closing Deliveries	7	
 	 	 	
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER	9	
Section 4.1	Valid Organization	9	
Section 4.2	Authorization	9	
Section 4.3	Consents	9	
Section 4.4	No Violation	10	
Section 4.5	Title to the Company Interests; Encumbrances	10	
Section 4.6	Litigation	10	
Section 4.7	No Brokers	10	
 	 	 	
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER	10	
Section 5.1	Valid Organization	10	
Section 5.2	Authorization	10	
Section 5.3	Consents	11	
Section 5.4	No Violation	11	
Section 5.5	Litigation	11	
Section 5.6	Investment	11	
Section 5.7	No Brokers	12	
Section 5.8	No Knowledge of Misrepresentations or Omissions	12	
Section 5.9	Buyer Investigation	12	
 	 	 	
ARTICLE VI. certain disclaimers	12	
Section 6.2	Title to Real Property Interests	13	
Section 6.3	Certain Disclaimers	14	
 	 	 	
ARTICLE VII. COVENANTS	14	
Section 7.1	Tax Matters	14	
Section 7.2	Destin Option Exercise	15	
Section 7.3	Support Obligations	16	
 	 	 	
ARTICLE VIII. INDEMNIFICATION	16	
Section 8.1	Indemnification Obligations	16	
Section 8.2	Limitations on Liability	17	
Section 8.3	Other Provisions Relating to Indemnification	18	
Section 8.4	Survival of Provisions and Indemnification Obligations	20	

 

ARTICLE IX. GENERAL PROVISIONS	20	
Section 9.1	Damages	20	
Section 9.2	Amendment and Modification	21	
Section 9.3	Specific Performance	21	
Section 9.4	Waiver of Compliance	21	
Section 9.5	Notices	21	
Section 9.6	Assignment	22	
Section 9.7	No Third Party Beneficiaries	22	
Section 9.8	Governing Law; Venue; Jury Trial Waiver	22	
Section 9.9	Counterparts	23	
Section 9.10	Headings	23	
Section 9.11	Entire Agreement	23	
Section 9.12	Representation By Counsel; No Strict Construction	23	
Section 9.13	Severability	23	
Section 9.14	Expenses and Remittances	24	
Section 9.15	Confidentiality; Records; Responsibilities as of the Closing	24	
Section 9.16	Public Announcements	25	
Section 9.17	Further Assurances	25	
 	 	 	
Exhibits :	 	 	
Exhibit A — Form of Assignment and Conveyance Agreement	 	
Exhibit B — Form of Assignment and Assumption Agreement	 	
Exhibit C — Form of SPA and R&W Policy Assignment Agreement	 	
Exhibit D1 — Form of Letter Agreement (Tri-States)	 	
Exhibit D2 — Form of Letter Agreement (Wilprise)	 	
Exhibit D3 — Form of Letter Agreement (Destin)	 	
Schedules :	 	 	
Schedule 1.1(a) — Seller Knowledge Parties	 	
Schedule 1.1(b) — Buyer Knowledge Parties	 	
Schedule 1.2 — Account Designation	 	

 
PURCHASE AND SALE AGREEMENT
 
This PURCHASE AND SALE AGREEMENT is made and entered into effective as of April 25, 2016 (the “ Effective Date ”), by and between Emerald Midstream, LLC, a Delaware limited liability company (“ Seller ”), and American Midstream Emerald, LLC, a Delaware limited liability company (“ Buyer ”).  Seller and Buyer are referred to herein individually as a “ Party ” and collectively as the “ Parties .”
 
RECITALS
 
WHEREAS , Seller has previously entered into (i) that certain Securities Purchase Agreement, effective as of December 31, 2015, with Amoco Tri-States Pipeline Company, a Delaware corporation, pursuant to which, among other things, Seller agreed to purchase 16-2/3% of the issued and outstanding Membership Interests (as defined in the Tri-States LLC Agreement) (the “ Tri-States Interests ”) of Tri-States NGL Pipeline, L.L.C., a Delaware limited liability company (“ Tri-States ”) (the “ Tri-States Purchase Agreement ”), (ii) that certain Securities Purchase Agreement, effective as of December 31, 2015, with Amoco Louisiana Fractionator Company, a Delaware corporation, pursuant to which, among other things, Seller agreed to purchase 25.3% of the issued and outstanding Membership Interests (as defined in the Wilprise LLC Agreement) (the “ Wilprise Interests ”) of Wilprise Pipeline Company, L.L.C, a Delaware limited liability company (“ Wilprise ”) (the “ Wilprise Purchase Agreement ”) and (iii) that certain Securities Purchase Agreement, effective as of December 31, 2015, with Amoco Destin Pipeline Company, a Delaware corporation (the “ Destin Purchase Agreement ,” and together with the Tri-States Purchase Agreement and the Wilprise Purchase Agreement, the “ Purchase Agreements ”), pursuant to which, among other things, Seller agreed to purchase 49-2/3% of the issued and outstanding Membership Interests (as defined in the Destin LLC Agreement) (the “ Destin Interests ,” and together with the Tri-States Interests and the Wilprise Interests, the “ Company Interests ”) of Destin Pipeline Company, L.L.C., a Delaware limited liability company (“ Destin ,” and together with Tri-States and Wilprise, the “ Companies ”);
 
WHEREAS , the transactions contemplated by the Purchase Agreements were consummated on March 31, 2016;
 
WHEREAS , Seller owns the Company Interests;
 
WHEREAS , Seller desires to sell, convey and assign, to Buyer, and Buyer desires to purchase and accept from Seller, the Company Interests, on the terms and subject to the conditions of this Agreement;
 
WHEREAS , in connection with its acquisition of the Company Interests, Buyer desires to assume the Assumed Liabilities, on the terms and subject to the conditions of this Agreement; and
 
WHEREAS , Tri-States owns an approximately 162-mile natural gas liquids pipeline extending from a point near Mobile Bay, Alabama to a point near Kenner, Louisiana, along with associated pumping stations, meter facilities, and equipment, and approximately 50 miles of out-of-service pipe (the “ Tri-States Pipeline System ”), Wilprise owns an approximately 30-mile natural gas liquids pipeline system extending from a point near Kenner, Louisiana to a point near Sorrento, Louisiana along with associated pumping stations, meter facilities, and equipment (the “ Wilprise Pipeline System ”) and Destin owns an approximately 255-mile natural gas pipeline system, and the MP260 Platform, that extends from Viosca Knoll Block 900 to a processing plant at Pascagoula, Mississippi, then north to interconnections
 
1 

 
with interstate gas pipelines and storage locations (the “ Destin Pipeline System ,” and together with the Tri-States Pipeline System and the Wilprise Pipeline System, the “ Pipeline System ”).
 
AGREEMENT
 
NOW, THEREFORE , in consideration of the foregoing premises and of the mutual covenants, conditions and agreements set forth herein, the Parties hereby agree as follows:
 
ARTICLE I.
DEFINITIONS
 
Section 1.1                                    Definitions.  As used herein, the following terms have the meanings defined below:
 
“ 1933 Act ” has the meaning set forth in Section 5.6 .
 
“ ADPC ” has the meaning set forth in Section 7.2(a) .
 
“ Affiliate ” means, when used with respect to a Person, any other Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the specified Person.  For purposes of this definition, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by Contract or otherwise.  For purposes of this Agreement and the Operative Documents (excluding, for the avoidance of doubt, the Purchase Agreements, the LLC Agreements and the R&W Policy) and notwithstanding anything herein or therein to the contrary, Buyer shall not be considered an Affiliate of Seller and Seller shall not be considered an Affiliate of Buyer.
 
“ Agreement ” means this Purchase and Sale Agreement, together with all exhibits and schedules hereto, as may be amended or supplemented from time to time.
 
“ Assumed Liabilities ” means the “Assumed Liabilities” as such term is defined in the Tri-States Purchase Agreement, the Wilprise Purchase Agreement and the Destin Purchase Agreement, collectively.
 
“ Business Day ” means any day, except a Saturday, a Sunday or other day in which commercial banks in the City of New York are authorized or required by Law to be closed.
 
“ Buyer ” has the meaning set forth in the preamble of this Agreement.
 
“ Buyer Group ” has the meaning set forth in Section 8.1 .
 
“ Buyer Parent GP Board ” has the meaning set forth in Section 5.2 .
 
“ Closing ” has the meaning set forth in Section 3.1 .
 
“ Closing Date ” has the meaning set forth in Section 3.1 .
 
“ Code ” means the United States Internal Revenue Code of 1986, as amended.
 
2 

 
“ Commercially Reasonable Efforts ” means efforts that (i) are designed to enable a Party, directly or indirectly, to assist in the consummation of the transactions contemplated by this Agreement and (ii) do not require the performing Party to expend any funds or assume liabilities other than expenditures and liabilities that are commercially reasonable in nature and amount; provided , that Seller shall have no obligation to perform any action that is prohibited by or not otherwise in accordance with the Governing Instruments of the Companies.
 
“ Companies ” has the meaning set forth in the recitals of this Agreement.
 
“ Company Interests ” has the meaning set forth in the recitals of this Agreement.
 
“ Confidentiality Agreement ” means that certain Confidentiality Agreement between ArcLight Capital Partners, LLC and Mardi Gras Transportation System Inc., Amoco Destin Pipeline Company, Amoco Tri-States NGL Pipeline Company, Amoco Louisiana Fractionator Company, and BP America Production Company dated as of April 7, 2015, as acknowledged and agreed to by Buyer pursuant to that certain letter agreement by and between ArcLight Capital Partners, LLC and Buyer, dated as of April 6, 2016.
 
“ Conflicts Committee ” has the meaning set forth in Section 5.2 .
 
“ Consequential Damages ” has the meaning set forth in Section 9.1 .
 
“ Contract ” means any means any agreement, contract, franchise, license or lease, including all amendments, modifications and supplements thereto.
 
“ Credit Support Agreement ” has the meaning set forth in Section 7.3(a) .
 
“ Credit Support LC ” has the meaning set forth in Section 7.3(a) .
 
“ Deductible ” has the meaning set forth in Section 8.2(b) .
 
“ Destin LLC Agreement ” means that certain First Amended and Restated Limited Liability Company Agreement of the Company, effective July 31, 1997, by and among the parties thereto, as amended from time to time.
 
“ Destin Option Agreement ” has the meaning set forth in Section 7.2(a) .
 
“ Differences or Conflicts ” has the meaning set forth in Section 8.3(b) .
 
“ Due Diligence Materials ” means (i) due diligence materials distributed or otherwise made available in written or electronic form to Buyer or its Representatives, (ii) all written answers to questions provided to Buyer or its Representatives, (iii) all information or materials discussed with or disclosed to Buyer or its Representatives in management presentations, question and answer sessions or other meetings or discussions between the Parties and their respective Representatives (including Buyer Group’s observations in any site visits), and (iv) any Environmental Report.
 
“ Effective Date ” has the meaning set forth in the recitals of this Agreement.
 
“ Environmental Report ” means any environmental assessment and report in respect of the Pipeline System that has been made available and received by Buyer on or prior to the Closing Date.
 
3 

 
“ Fundamental Representations ” has the meaning set forth in Section 8.2(a) .
 
“ GAAP ” means United States generally accepted accounting principles in effect from time to time.
 
“ Governing Instruments ” means (a) with respect to any Person that is a corporation, its articles or certificate of incorporation or memorandum and articles of association, as the case may be, and bylaws, (b) with respect to any Person that is a partnership, its certificate of partnership or certificate of formation and partnership agreement, (c) with respect to any Person that is a limited liability company, its certificate of formation and limited liability company or operating agreement, (d) with respect to any Person that is a trust or other entity, its declaration or agreement or trust or other constituent document and (e) with respect to any other Person, its comparable governing instruments as required or contemplated by the Laws of its jurisdiction of organization.
 
“ Governmental Authority ” means any federal, state, local, foreign, tribal or other governmental or administrative authority (including any political subdivision thereof), court or tribunal having jurisdiction.
 
“ Guarantee ” has the meaning set forth in Section 7.3(a) .
 
“ Indemnified Party ” has the meaning set forth in Section 8.3(a) .
 
“ Indemnifying Party ” has the meaning set forth in Section 8.3(a) .
 
“ Knowledge ” means (a) with respect to Seller, the actual knowledge, without investigation, of the individuals listed on Schedule 1.1(a)  and (b) with respect to Buyer, the actual knowledge, without investigation, of the individuals listed on Schedule 1.1(b) .
 
“ Law ” means all laws, statutes, codes, constitutions, ordinances, decrees, writs, injunctions, orders, judgments, principles of common law, tariffs, rules or regulations that are promulgated, issued or enacted by a Governmental Authority having jurisdiction over the applicable subject matter.
 
“ LC Replacement Period ” has the meaning set forth in Section 7.3(c) .
 
“ LLC Agreements ” means the Destin LLC Agreement, the Tri-States LLC Agreement and the Wilprise LLC Agreement.
 
“ Losses ” means, whether arising in equity, under Law, Contract, tort, voluntary settlement, or in any other manner, any and all claims, demands, complaints, actions, litigation, hearings, lawsuits, proceedings, investigations, charges, damages, fines, penalties, deficiencies, judgments, injunctions, orders, decrees, rulings, losses, costs, liabilities, amounts paid in settlement, obligations, Taxes and liens, including, in each case, costs and reasonable expenses contesting and defending such matters (including reasonable attorneys’ fees and expenses, interest, court costs and other costs of suit, litigation or other proceedings of any kind or of any claim, default or assessment).
 
“ Non-LLC Assets ” means the “Non-LLC Assets” as such term is defined in the Tri-States Purchase Agreement, the Wilprise Purchase Agreement and the Destin Purchase Agreement, collectively.
 
“ Notices ” has the meaning set forth in Section 9.5 .
 
4 

 
“ Operative Document ” means any document listed or referred to in Section 3.2 or otherwise delivered at the Closing, in each case to the extent executed and delivered by a Party or one of its Affiliates.
 
“ Party ” or “ Parties ” has the meaning set forth in the preamble of this Agreement.
 
“ Permitted Encumbrances ” means any transfer or change of control restrictions (i) resulting from actions of any member of the Buyer Group, (ii) imposed on the Company Interests by securities Laws, arising under the Companies’ Governing Instruments or this Agreement, (iii) imposed on any Real Property Interests or (iv) that will be discharged at or prior to Closing.
 
“ Person ” means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization, undivided joint interest operation or Governmental Authority.
 
“ Purchase Agreement ” has the meaning set forth in the recitals of this Agreement.
 
“ Purchase Price ” has the meaning set forth in Section 2.2 .
 
“ Retained Destin Interests ” has the meaning set forth in Section 7.2(a) .
 
“ Replacement LC ” has the meaning set forth in Section 7.3(c) .
 
“ Replacement LC Delivery Date ” has the meaning set forth in Section 7.3(c) .
 
“ R&W Policy ” means that certain Buyer-Side Representations and Warranties Insurance Policy issued in the name of Seller with certain coverage for Losses resulting from breaches of certain representations and warranties of Amoco Louisiana Fractionator Company under the Tri-States Purchase Agreement and Amoco Destin Pipeline Company under the Destin Purchase Agreement.
 
“ Real Property Interests ” means any parcels of land owned in fee simple, or any parcels of land subject to leases, easements, rights-of-way, franchises, permits, licenses and other rights and interests in real property.
 
“ Representatives ” means, with respect to Buyer and Seller, such Person’s and their Affiliates’ officers, directors, managers, employees, agents, consultants, legal and financial advisors and other representatives.
 
“ Seller ” has the meaning set forth in the preamble of this Agreement.
 
“ Seller Parent ” means Emerald Midstream Holdings, LLC, a Delaware limited liability company.
 
“ Seller Transaction Expenses ” has the meaning set forth in Section 9.14 .
 
“ SPA and R&W Policy Assignment Agreement ” means that certain SPA and R&W Policy assignment agreement by and between Seller and Buyer, dated as of the date hereof, pursuant to which Buyer assigns, and Seller accepts, all of Buyer’s rights under each Purchase Agreement and Buyer assigns and delegates, and Seller accepts and assumes, all of Buyer’s rights and obligations under the R&W Policy with respect to each Purchase Agreement, substantially in the form attached hereto as Exhibit C .
 
5 

 
“ Taxes ” means all taxes, charges, fees, imposts, duties, levies, withholdings or other assessments imposed by any Governmental Authority, including environmental taxes, excise taxes, customs, duties, utility, property, income, sales, use, value added, transfer, and fuel taxes, and any interest, fines, penalties or additions to tax attributable to or imposed on or with respect to any such assessment or related to any tax return or tax filing, including all applicable income, sales, use, excise, business, occupation or other tax, if any, relating in any way to this Purchase Agreement or any other service, supply, or operating agreement.
 
“ Tax Authority ” means any Governmental Authority having jurisdiction with respect to any Tax.
 
“ Tax Return ” means any and all returns, reports, declarations, statements, bills, schedules, claims for refund or written information of or with respect to any Tax which is required to be supplied to any Tax Authority, including any schedule or attachment thereto, and including any amendment thereof.
 
“ Third Party ” means any Person other than Seller or Buyer, and their respective Affiliates.
 
“ Third Party Action ” has the meaning set forth in Section 8.3(a) .
 
“ Transfer Taxes ” has the meaning set forth in Section 7.1(a) .
 
“ Tri-States ” has the meaning set forth in the recitals of this Agreement.
 
“ Tri-States Interests ” has the meaning set forth in the recitals of this Agreement.
 
“ Tri-States LLC Agreement ” means that certain Limited Liability Company Agreement of the Company, effective July 1, 1998, by and among the parties thereto, as amended from time to time.
 
“ Tri-States Pipeline System ” has the meaning set forth in the recitals of this Agreement.
 
“ Wilprise ” has the meaning set forth in the recitals of this Agreement.
 
“ Wilprise Interests ” has the meaning set forth in the recitals of this Agreement.
 
“ Wilprise LLC Agreement ” means that certain Amended and Restated Limited Liability Company Agreement of the Company, effective January 1, 1998, by and among the parties thereto, as amended from time to time.
 
“ Wilprise Pipeline System ” has the meaning set forth in the recitals of this Agreement.
 
Section 1.2                                    Definition and Construction Provisions .
 
(a)                                  The words “ hereof ,” “ herein ,” and “ hereunder ” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement.
 
(b)                                  The terms defined in the singular have a comparable meaning when used in the plural, and vice versa.
 
6 

 
(c)                                   Whenever the Parties have agreed that any approval or consent shall not be “ unreasonably withheld ,” such phrase shall also include the Parties’ agreement that the approval or consent shall not be unreasonably delayed or conditioned.
 
(d)                                  Reference to “ day ” or “ days ” in this Agreement refers to calendar days unless otherwise stated.
 
(e)                                   Whenever the words “ include ,” “ includes ” or “ including ” are used in this Agreement, they are deemed to be followed by the words “ without limitation .”
 
(f)                                    All references to Sections, Exhibits and Schedules or paragraphs or subdivisions thereof mean those numbered sections, paragraphs or subdivisions in this Agreement and those Exhibits and Schedules attached hereto and made a part of this Agreement, respectively, unless specific reference is made to such exhibits, articles, sections, paragraphs or subdivisions of another document or instrument.
 
ARTICLE II.
PURCHASE AND SALE OF THE COMPANY INTERESTS
 
Section 2.1                                    Purchase and Sale of the Company Interests.  Subject to the terms and conditions of this Agreement, at the Closing, Seller agrees to sell, transfer, convey, assign and deliver to Buyer, and Buyer agrees to purchase, acquire, accept, assume and receive from Seller, subject to Permitted Encumbrances, all of Seller’s right, title and interest in and to the Company Interests as the same shall exist and be held by Seller immediately prior to Closing, and Seller shall make the other conveyances, assignments and transfers contemplated by Section 3.2(a) , subject to Permitted Encumbrances, and Buyer shall assume the Assumed Liabilities as contemplated by Section 3.2(a)(ii) .  For the avoidance of doubt, this Agreement does not, and is not intended to, require a conveyance to Buyer of any Non-LLC Assets.
 
Section 2.2                                    Payment of the Purchase Price.   The total purchase price to be paid by Buyer to Seller in consideration for the Company Interests shall be $183,606,643 (the “ Purchase Price ”), and shall be paid by Buyer to Seller at the Closing in cash by wire transfer of immediately available funds in accordance with the wire instructions set forth on Schedule 1.2 to the account(s) designated therein.
 
ARTICLE III.
CLOSING
 
Section 3.1                                    Closing .  The consummation of the transactions contemplated by this Agreement (the “ Closing ”) shall take place (a) simultaneously with the execution of this Agreement at the offices of Latham & Watkins LLP, 855 Third Avenue, New York, NY 10022, or (b) at such other place or at such other time on the date hereof as the Parties may mutually agree, including via teleconference or electronic communication (the date and time on which the Closing takes place, the “ Closing Date ”).
 
Section 3.2                                    Closing Deliveries .
 
(a)                                  At the Closing, Seller shall deliver, or cause to be delivered, to Buyer the following:
 
(i)                                      an Assignment and Conveyance Agreement duly executed by Seller, substantially in the form attached hereto as Exhibit A , whereby Seller shall convey and transfer to
 
7 

 
Buyer all of Seller’s right, title and interests in and to the Company Interests, subject to the terms contained herein and therein;
 
(ii)                                   an Assignment and Assumption Agreement duly executed by Seller, substantially in the form attached hereto as Exhibit B , which sets forth the terms and conditions under which Seller shall assign and Buyer shall accept and assume the Assumed Liabilities, subject to Permitted Encumbrances;
 
(iii)                                an SPA and R&W Policy Assignment Agreement duly executed by Seller, substantially in the form attached hereto as Exhibit C, which sets forth the terms and conditions under which Seller shall assign and Buyer shall accept Seller’s rights under each of the Purchase Agreements and Seller’s rights and obligations under the R&W Policy with respect to each of the Purchase Agreements;
 
(iv)                               a letter agreement duly executed by Seller relating to certain delivery requirements under each Company’s Governing Instruments, substantially in the form attached hereto as Exhibit D1 , Exhibit D2 or Exhibit D3 , as applicable;
 
(v)                                  a properly executed statement from Seller (or the appropriate parent Affiliate, if Seller is disregarded as an entity separate from its parent for federal income tax purposes on the Closing Date), dated as of the Closing Date, in the form reasonably acceptable to Buyer that meets the requirements of Section 1.1445-2(b)(2) promulgated under the Code;
 
(vi)                               a certificate duly executed by the Secretary or an Assistant Secretary of Seller, dated as of the Closing Date, in customary form, attesting to the resolutions of the board of managers, board of directors or similar governing body of Seller authorizing the execution and delivery of this Agreement and the Operative Documents to which the Seller is a party and the consummation of the transactions contemplated hereby and thereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended as of the Closing Date; and
 
(vii)                            such other instruments and agreements as the Parties may mutually agree are necessary or appropriate to consummate the transactions contemplated in this Agreement.
 
(b)                                  At the Closing, Buyer shall deliver, or cause to be delivered, to Seller the following:
 
(i)                                      payment of the Purchase Price in accordance with Section 2.2 ;
 
(ii)                                   an Assignment and Conveyance Agreement duly executed by Buyer, substantially in the form attached hereto as Exhibit A whereby Seller shall convey and transfer to Buyer all of Seller’s right, title and interests in and to the Company Interests, subject to the terms contained herein and therein;
 
(iii)                                an Assignment and Assumption Agreement duly executed by Buyer, substantially in the form attached hereto as Exhibit B, which sets forth the terms and conditions under which Seller shall assign and Buyer shall accept and assume the Assumed Liabilities, subject to Permitted Encumbrances;
 
8 

 
(iv)                               an SPA and R&W Policy Assignment Agreement duly executed by Buyer, substantially in the form attached hereto as Exhibit C, which sets forth the terms and conditions under which Seller shall assign and Buyer shall accept Seller’s rights under each of the Purchase Agreements and Seller’s rights and obligations under the R&W Policy with respect to each of the Purchase Agreements;
 
(v)                                  a letter agreement duly executed by Buyer relating to certain delivery requirements under each Company’s Governing Instruments, substantially in the form attached hereto as Exhibit D1 , Exhibit D2 or Exhibit D3 , as applicable;
 
(vi)                               a certificate duly executed by the Secretary or an Assistant Secretary of Buyer, dated as of the Closing Date, in customary form, attesting to the resolutions of (i) the Conflicts Committee approving the transactions contemplated by this Agreement and the Operative Documents and (ii) the Buyer Parent GP Board authorizing the execution and delivery of this Agreement and the Operative Documents to which the Buyer is a party and the consummation of the transactions contemplated hereby and thereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended as of the Closing Date; and
 
(vii)                            such other instruments and agreements as the Parties may mutually agree are necessary or appropriate to consummate the transactions contemplated in this Agreement.
 
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF SELLER
 
Subject to the exceptions, disclaimers and other matters set forth in this Agreement, Seller represents and warrants to Buyer as follows:
 
Section 4.1                                    Valid Organization .  Seller is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of Delaware.
 
Section 4.2                                    Authorization .  Seller has all requisite limited liability company power and authority to enter into this Agreement, and all other documents required hereunder to be executed and delivered by Seller, and carry out the transactions contemplated hereby and thereby. The execution and delivery of this Agreement, and all other documents required hereunder to be executed and delivered by Seller, and the performance of the transactions contemplated hereby and thereby have been duly and validly authorized by such action, corporate or otherwise, necessary on behalf of Seller. This Agreement is, and each document required to be executed and delivered by Seller hereunder, when so executed and delivered by Seller, shall be, a valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except (a) as limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors’ rights, and (b) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding for the same may be brought.
 
Section 4.3                                    Consents .  No consent, approval of or by, or filing with or notice to (A) any Governmental Authority (other than such consents, approvals, filings or notices the failure of which to obtain or make would not, individually or in the aggregate, result or reasonably be expected to result in a material and adverse effect on the ability of Seller to perform its obligations under this Agreement or to consummate the transactions contemplated hereby) or (B) any other Person (other than such consents, approvals, filings or notices the failure of which to obtain or make would not,
 
9 

 
individually or in the aggregate, result or reasonably be expected to result in a material and adverse effect on the ability of Seller to perform its obligations under this Agreement or to consummate the transactions contemplated hereby), is required to be made or obtained by Seller in connection with the execution, delivery or enforceability of this Agreement or the consummation of the transactions provided for hereby.
 
Section 4.4                                    No Violation .  None of the execution and delivery of this Agreement, the performance by Seller of its obligations under this Agreement or the consummation of the transactions contemplated by this Agreement will (a) violate any provision of Seller’s Governing Instruments; (b) result in the creation or imposition of any lien or encumbrance upon the Company Interests under any material agreement or commitment to which Seller is a party or by which Seller is bound; or (c) violate any statute or Law to which Seller is subject, except where such violation of any provision in the clauses (b) and (c) of this Section 4.4 would not, individually or in the aggregate, result or reasonably be expected to result in a material and adverse effect on the ability of Seller to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
 
Section 4.5                                    Title to the Company Interests; Encumbrances.  Seller has good and valid title to the Company Interests free and clear of all liens, security interests and encumbrances created by or through Seller, other than Permitted Encumbrances.  To the Knowledge of Seller, such Company Interests are duly authorized, validly issued, fully paid (to the extent required under the applicable LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act).
 
Section 4.6                                    Litigation (a)                         .  There are no legal, equitable, bankruptcy, administrative or other material actions or proceedings pending or threatened in writing against Seller with respect to the Company Interests, before any arbitrator or Governmental Authority that would reasonably be expected to have a material and adverse impact on the ability of Seller to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
 
Section 4.7                                    No Brokers .  Seller has not retained or employed any broker, finder, or similar agent, or otherwise taken any action in connection with the negotiations relating to this Agreement and the transactions contemplated hereby in a manner so as to give rise to any claims against Buyer for any brokerage commission, finder’s fee or other similar payment.
 
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF BUYER
 
Buyer hereby represents and warrants to Seller as follows :
 
Section 5.1                                    Valid Organization .  Buyer is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware. Buyer is duly qualified or licensed to do business in all states where it is necessary and required to be so qualified or licensed in order to perform the obligations and effect the transactions contemplated by this Agreement.
 
Section 5.2                                    Authorization .  Buyer has all requisite limited liability company power and authority to enter into this Agreement, and all other documents required hereunder to be executed and delivered by Buyer, to carry out the transactions contemplated hereby and thereby and to acquire and own the Company Interests. The execution and delivery of this Agreement, and all other documents required hereunder to be executed and delivered by Buyer, and the performance of the transactions
 
10 

 
contemplated hereby and thereby have been duly and validly authorized by such action, corporate or otherwise, necessary on behalf of Buyer.  This Agreement is, and each document required to be executed and delivered by Buyer hereunder, when so executed and delivered by Buyer, shall be, a valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms, except (a) as limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors’ rights and (b) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding for the same may be brought .  The transactions contemplated by this Agreement and the Operative Documents to which Buyer is or will be a party have been approved by the conflicts committee (“ Conflicts Committee ”) of the board of directors of American Midstream GP, LLC (the “ Buyer Parent GP Board ”) and the execution and delivery by Buyer of this Agreement and the Operative Documents to which Buyer is or will be a party, and the consummation of the transactions contemplated hereby and thereby, have been approved by the Buyer Parent GP Board, and such approvals have not been amended, repealed, revoked or rescinded and are in full force and effect as of the date hereof, and no other limited liability company actions are necessary on the part of Buyer to approve this Agreement, the Operative Documents or the transactions contemplated hereby or thereby.
 
Section 5.3                                    Consents .  No consent, approval of or by, or filing with or notice to (A) any Governmental Authority (other than such consents, approvals, filings or notices the failure of which to obtain or make would not, individually or in the aggregate, result or reasonably be expected to result in a material and adverse effect on the ability of Buyer to perform its obligations under this Agreement or to consummate the transactions contemplated hereby) or (B) any other Person (other than such consents, approvals, filings or notices the failure of which to obtain or make would not, individually or in the aggregate, result or reasonably be expected to result in a material and adverse effect on the ability of Buyer to perform its obligations under this Agreement or to consummate the transactions contemplated hereby), is required to be made or obtained by Buyer in connection with the execution, delivery or enforceability of this Agreement or the consummation of the transactions provided for hereby.
 
Section 5.4                                    No Violation .  None of the execution and delivery of this Agreement or the performance by Buyer of its obligations under this Agreement, or the consummation of the transactions contemplated by this Agreement will: (a) violate any provision of Buyer’s Governing Instruments; (b) result in the creation or imposition of any lien or encumbrance upon the Company Interests under any material agreement or commitment to which Buyer is a party or by which Buyer is bound or (c) to the Knowledge of Buyer, violate any statute or Law to which Buyer is subject or any Contract to which Buyer is a party or by which it is bound.
 
Section 5.5                                    Litigation .  There is no legal, equitable, bankruptcy, administrative or other action or proceeding pending or threatened in writing against Buyer or its Affiliates before any arbitrator or Governmental Authority, that would reasonably be expected to have a material and adverse impact on the ability of Buyer to perform its obligations under this Purchase Agreement or to consummate the transactions contemplated hereby.
 
Section 5.6                                    Investment .  Buyer is acquiring the Company Interests for its own account as an investment without the present intent to sell, transfer or otherwise distribute (including as such term or words of similar import are used in Section 2(a)(11) of the Securities Act of 1933, as amended (the “ 1933 Act ”)) the same to any other Person.  Buyer has made, independently and without reliance on Seller, its own analysis of the Companies and the Pipeline System for the purpose of acquiring the Company Interests and Buyer has had reasonable and sufficient access to documents,
 
11 

 
other information and materials as it considers appropriate to make its evaluations.  Buyer (a) has the knowledge and experience in financial and business matters that enable it to evaluate the merits and risks of the transactions described in this Agreement, (b) is not in a significantly disparate bargaining position in relation to Seller and (c) is able to bear the economic risk of the acquisition of the Company Interests pursuant to the terms of this Agreement, including a complete loss of Buyer’s investment in the Company Interests. Buyer understands that the Company Interests are not registered under the 1933 Act and have not been qualified under any state securities Laws on the grounds that the offering and sale of the Company Interests contemplated by this Agreement are exempt from registration thereunder and Seller’s reliance on such exemptions is predicated on Buyer’s representations set forth herein.  Buyer understands that none of the Company Interests may be transferred, except as permitted under the 1933 Act and applicable state securities Laws pursuant to registration or an applicable exemption thereunder.  Buyer is an “accredited investor” as defined under Rule 501 promulgated under the 1933 Act.  For purposes of state “blue sky” Laws, Buyer represents and warrants that the principal executive officers of Buyer are located in the States of Colorado and Texas and that the decision by Buyer to acquire the Company Interests shall be deemed to occur solely in the States of Colorado and Texas.
 
Section 5.7                                    No Brokers .  Buyer has not retained or employed any broker, finder, or similar agent, or otherwise taken any action in connection with the negotiations relating to this Agreement and the transactions contemplated hereby in a manner so as to give rise to any claims against Seller or any Affiliate thereof for any brokerage commission, finder’s fee, or other similar payment.
 
Section 5.8                                    No Knowledge of Misrepresentations or Omissions .  Buyer has no Knowledge that any representation or warranty of Seller contained in this Agreement or any agreement contemplated hereby is not true and correct in all material respects, and Buyer has no Knowledge of any material errors in, or material omissions from, the Exhibits and Schedules to this Purchase Agreement or the schedules, exhibits or attachments to any agreement contemplated hereby.
 
Section 5.9                                    Buyer Investigation .  Buyer acknowledges and agrees that in making the decision to enter into this Agreement and to consummate the transactions contemplated hereby, (a) Buyer has relied solely on the basis of its own independent investigation of the Company Interests and the Pipeline System and the risks related thereto and upon the express written representations and warranties of Seller set forth in ARTICLE IV of this Agreement; and (b) neither Seller nor any other Person has made any representation or warranty as to Seller or the Company Interests or the Pipeline System, except as expressly set forth in ARTICLE IV of this Agreement. Without limiting the foregoing, Buyer expressly acknowledges and agrees to the provisions set forth in ARTICLE VI .
 
ARTICLE VI.
CERTAIN DISCLAIMERS
 
.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IT IS THE EXPLICIT INTENT OF EACH OF THE PARTIES THAT, EXCEPT AS EXPRESSLY PROVIDED IN SELLER’S REPRESENTATIONS AND WARRANTIES IN ARTICLE IV , SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE (WHETHER EXPRESS OR IMPLIED), AT LAW OR IN EQUITY, WITH RESPECT TO SELLER, THE COMPANY INTERESTS, THE COMPANIES, THE PIPELINE SYSTEM, THE ASSETS AND LIABILITIES OF THE COMPANIES OR THE ASSUMED LIABILITIES, AND SELLER EXPRESSLY DISCLAIMS ANY SUCH OTHER WARRANTIES (EXPRESS OR IMPLIED), INCLUDING AS TO THEIR (I) TITLE, (II) ABSENCE OF PATENT OR LATENT DEFECTS, (III) SAFETY, (IV) STATE OF REPAIR, (V) QUALITY, (VI) MERCHANTABILITY, (VII) FITNESS FOR
 
12 

 
BUYER’S INTENDED USE OR PURPOSE OR ANY USE OR PURPOSE WHATSOEVER, (VIII) COMPLIANCE WITH LAWS, (IX) ENVIRONMENTAL OR PHYSICAL CONDITION (SURFACE AND SUBSURFACE), (X) FEDERAL, STATE OR LOCAL INCOME OR OTHER TAX CONSEQUENCES, (XI) CONTRACTUAL, ECONOMIC OR FINANCIAL INFORMATION AND DATA, (XII) FINANCIAL VIABILITY, INCLUDING PRESENT OR FUTURE VALUE OR ANTICIPATED INCOME OR PROFITS, OR (XIII) CONFORMITY TO INFORMATION PROVIDED IN THE DUE DILIGENCE MATERIALS. BUYER AGREES TO ACCEPT THE COMPANY INTERESTS (INCLUDING ANY INDIRECT INTEREST SELLER HAS IN THE PIPELINE SYSTEM) “AS-IS”, “WHERE-IS”, IN THEIR PRESENT CONDITION AND STATE OF REPAIR, WITH ALL FAULTS, LIMITATIONS AND DEFECTS (HIDDEN AND APPARENT) AND, EXCEPT AS EXPRESSLY PROVIDED IN SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES IN ARTICLE IV , WITHOUT ANY GUARANTEES OR WARRANTIES (WHETHER EXPRESS OR IMPLIED), AT LAW OR IN EQUITY, AS TO THEIR (I) TITLE, (II) ABSENCE OF PATENT OR LATENT DEFECTS, (III) SAFETY, (IV) STATE OF REPAIR, (V) QUALITY, (VI) MERCHANTABILITY, (VII) FITNESS FOR BUYER’S INTENDED USE OR PURPOSE OR A PARTICULAR USE OR PURPOSE OR ANY USE OR PURPOSE WHATSOEVER, (VIII) COMPLIANCE WITH LAWS, (IX) ENVIRONMENTAL OR PHYSICAL CONDITION (SURFACE AND SUBSURFACE), (X) FEDERAL, STATE OR LOCAL INCOME OR OTHER TAX CONSEQUENCES, (XI) CONTRACTUAL, ECONOMIC OR FINANCIAL INFORMATION AND DATA, (XII) FINANCIAL VIABILITY, INCLUDING PRESENT OR FUTURE VALUE OR ANTICIPATED INCOME OR PROFITS, OR (XIII) CONFORMITY TO INFORMATION PROVIDED IN THE DUE DILIGENCE MATERIALS. ALL REPRESENTATIONS AND WARRANTIES (WHETHER EXPRESS OR IMPLIED), AT LAW OR IN EQUITY, OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN ARE EXCLUDED. SELLER DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY OTHER REPRESENTATION, WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED (WHETHER ORALLY, IN WRITING, ELECTRONICALLY OR BY OR THROUGH ANY OTHER MEDIUM) TO BUYER, INCLUDING WITH RESPECT TO SELLER, THE COMPANIES, THE COMPANY INTERESTS, THE ASSETS AND LIABILITIES OF THE COMPANIES, THE PIPELINE SYSTEM OR THE ASSUMED LIABILITIES, FURTHER INCLUDING THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA PROVIDED IN THE DUE DILIGENCE MATERIALS, OR ANY OTHER DATA, REPORTS, RECORDS, PROJECTIONS, INFORMATION OR MATERIALS FURNISHED OR MADE AVAILABLE TO BUYER AT ANY TIME RELATING TO SELLER, THE COMPANIES, THE COMPANY INTERESTS, THE ASSETS AND LIABILITIES OF THE COMPANIES, THE PIPELINE SYSTEM OR THE ASSUMED LIABILITIES, AND BUYER ACKNOWLEDGES AND AGREES THAT ANY RELIANCE ON OR USE OF THE SAME WILL BE AT BUYER’S SOLE RISK TO THE MAXIMUM EXTENT PERMITTED BY LAW AND WILL NOT CREATE OR GIVE RISE TO ANY LIABILITY OF OR AGAINST SELLER. BUYER ACKNOWLEDGES AND AGREES THAT IT HAS HAD SUFFICIENT OPPORTUNITY TO CONDUCT SUCH INVESTIGATION AS IT HAS DEEMED NECESSARY AND ADVISABLE FOR PURPOSES OF DETERMINING WHETHER OR NOT TO ENTER INTO THIS AGREEMENT. BUYER ACKNOWLEDGES AND AGREES THAT, EFFECTIVE AS OF THE CLOSING, IT WILL ASSUME FULL RESPONSIBILITY AND COMPLIANCE WITH ALL OBLIGATIONS ATTRIBUTABLE, IN ANY WAY, TO THE COMPANY INTERESTS, AND UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL LOSSES IT MAY HAVE AGAINST THE SELLER ASSOCIATED WITH THE SAME.
 
Section 6.1                                    Title to Real Property Interests .  Buyer acknowledges that Seller and Seller Group makes no representation or warranty, either express or implied, (i) as to title to, or any encumbrances of or on, any Real Property Interests relating to the Pipeline System or (ii) as to the
 
13 

 
completeness or contiguity of any Real Property Interests relating to the Pipeline System, or any of the land, leases, easements, rights-of-way, permits, licenses or other interests comprising any Real Property Interests relating to the Pipeline System.  Neither Seller nor any other member of the Seller Group shall be responsible or liable to Buyer in any manner, or in any sum whatsoever, for any want or failure of title or right to grant Buyer any right, claim or benefit arising under any Real Property Interests.
 
Section 6.2                                    Certain Disclaimers .  Except as otherwise expressly set forth in this Agreement and the instruments, documents and agreements referred to herein or executed in connection with the transactions contemplated hereby:
 
(a)                                  Buyer expressly acknowledges that none of Seller, any of the other members of the Seller Group or any other Person has made any representation or warranty, express or implied, at Law or in equity, as to the accuracy or completeness of any information regarding Seller, the Company Interests, the Pipeline System, the Companies or the Assumed Liabilities, except as expressly set forth in this Agreement or the Exhibits and Schedules hereto, and Buyer further agrees that none of Seller, any of the other members of the Seller Group or any other Person shall have or be subject to any liability to Buyer or to any other Person resulting from the distribution to Buyer and the other members of the Buyer Group, or its or their use of, and Buyer agrees that it shall be deemed to have not relied for any purpose on, any such information, including the Due Diligence Materials or any other form in expectation of the transactions contemplated by this Agreement, and Buyer acknowledges it is not relying on any such information, and Buyer Group irrevocably waives any and all Losses it may have against any member of the Seller Group associated with the same.
 
(b)                                  Buyer expressly acknowledges (i) the disclaimers of the Seller Group, including those set forth in Section 6.1 , Section 6.2 and Section 6.3(a)  above, and (ii) that there are uncertainties inherent in any estimates, projections and other forecasts and plans provided by the Seller Group to the Buyer Group, including any such information, document or material made available to the Buyer Group in the Due Diligence Materials or any other form in expectation of the transactions contemplated by this Agreement, and Buyer acknowledges it is not relying on any such information, that Buyer is aware of and familiar with such uncertainties and that Buyer takes full responsibility for making its own evaluation of the adequacy and accuracy of any such estimates, projections and other forecasts and plans (including the reasonableness of the assumptions underlying such estimates, projections and other forecasts and plans) in connection with the transactions contemplated by this Agreement.  Accordingly, neither Seller nor any other member of the Seller Group makes any representations or warranties with respect to such estimates, projections and other forecasts and plans (including the reasonableness of the assumptions underlying such estimates, projections and other forecasts and plans), and Buyer acknowledges that it is not relying on any such information, and the Buyer Group irrevocably waives any and all Losses it may have against any member of the Seller Group associated with the same.
 
(c)                                   Notwithstanding anything to the contrary in this ARTICLE VI , Buyer does not waive any claim it may have against Seller for intentional fraud, in the event Seller is finally determined by a court of competent jurisdiction to have willfully and knowingly committed fraud against Buyer.
 
14 

 
ARTICLE VII.
COVENANTS
 
Section 7.1                                    Tax Matters .
 
(a)                                  All sales, use, stamp, registration, value added, documentary, filing, recording, transfer or similar fees or taxes or governmental charges as levied by any Tax Authority  in connection with the transactions contemplated by this Agreement (“ Transfer Taxes ”) shall be borne fifty percent (50%) by Seller and fifty percent (50%) by the Buyer; provided , however , that each of the Buyer and Seller shall be responsible for all interest, penalties, additions or additional amounts imposed as a result of such Party’s failure to timely pay its share (as determined under this Section 7.1(a) ) of such Transfer Taxes.  To the extent permitted by applicable Law, Buyer and Seller shall cooperate with each other to obtain exemptions from Transfer Taxes.  The party responsible under applicable Law for filing any Tax Return with respect to such Transfer Taxes shall duly and timely file, taking into account all allowable extensions, such Tax Return with the appropriate Tax Authority.
 
(b)                                  The Parties intend and agree, solely for U.S. federal income tax purposes and for  purposes of certain state income tax laws that incorporate or follow federal income tax principles, that the transactions contemplated by this Agreement taken together with the transactions contemplated by that certain Securities Purchase Agreement, by and among Magnolia Infrastructure Holdings, LLC and American Midstream Partners LP, dated as of the date hereof, shall, except as otherwise required by Section 707(a)(2)(B) and its implementing treasury regulations (including, to the extent applicable, Treasury Regulation 1.707-4(d)) and Treasury Regulation section 1.721-2(b)(1), be treated as contributions to American Midstream Partners, LP in exchange for a partnership interest therein in a transaction consistent with the requirements of Section 721(a) of the Code.
 
(c)                                   For purposes of allocating the taxable income of the Companies for the 2016 tax year between Seller and Buyer, the Parties shall use their reasonable best efforts to cause Companies to use an interim closing of the books as of the Closing Date.
 
Section 7.2                                    Destin Option Exercise .
 
(a)                                  In connection with the consummation of the transactions contemplated by the Destin Purchase Agreement, Seller entered into that certain Option Agreement with Amoco Destin Pipeline Company (“ ADPC ”), dated as of March 31, 2016 (the “ Destin Option Agreement ”), for the purchase by Seller from ADPC of 17% of the issued and outstanding Membership Interests (as defined in the Destin LLC Agreement) of Destin (the “ Retained Destin Interests ”), a copy of which has previously been provided to Buyer.
 
(b)                                  If ADPC delivers a Put Notice (as defined in the Destin Option Agreement) to Seller in accordance with the Destin Option Agreement, then promptly following receipt thereof, and no later than two (2) Business Days thereafter, Seller shall provide Buyer written notice thereof.  Buyer may elect, by providing written notice of such election to Seller at least three (3) Business Days prior to the expiration of the ten (10) Business Day-period after Seller’s receipt of the Put Notice (as defined in the Destin Option Agreement), to purchase the Retained Destin Interests upon the consummation of the transactions contemplated by the Destin Option Agreement.
 
(c)                                   Promptly following commencement of the Call Period (as defined in the Destin Option Agreement), and no later than two (2) Business Days thereafter, Seller shall provide Buyer written notice thereof.  Buyer may elect, by providing written notice of such election to Seller at least fifteen (15) Business Days prior to the expiration of the Call Period, to purchase the Retained Destin Interests upon the consummation of the transactions contemplated by the Destin Option Agreement.
 
15 

 
(d)                                  If Buyer makes an election to purchase the Retained Destin Interests in accordance Section 7.2(b)  or Section 7.2(c) , then (i) Seller shall proceed to the Option Closing (as defined in the Destin Option Agreement) in accordance with the Destin Option Agreement and (ii) within five (5) Business Days after final determination of the Option Purchase Price (as defined in the Destin Option Agreement) in accordance with the Destin Option Agreement, Buyer shall enter into an agreement on substantially the same terms and conditions hereof for the purchase of the Retained Destin Interests and the assumption of the Assumed Liabilities (as defined in the Destin Option Agreement) from Seller, the consummation of which shall be subject to the consummation of the transactions contemplated by the Destin Option Agreement and, if applicable, the making of all required filings, and the expiration or early termination of all relevant waiting periods under, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; provided , that (x) any objection to the Option Purchase Price permitted to be made by Seller pursuant to Section 2.1(a) of the Destin Option Agreement shall be made at the direction of Buyer and (y) any election required to be made by Seller under Section 2.2(b) shall be made at the direction of Buyer.
 
Section 7.3                                    Support Obligations .
 
(a)                                  In connection with the consummation of the transactions contemplated by the Destin Purchase Agreement, Seller has delivered to ADPC an irrevocable standby letter of credit (together with any renewals or replacements thereof, the “ Credit Support LC ”) issued by Citibank, N.A. in favor of ADPC, relating to the $2,500,000 Guarantee between BP Corporation North America, Inc. and Minerals Management Service of the United States (the “Guarantee”) pursuant to that certain letter agreement by and between ADPC and Seller, dated as of March 30, 2016 (the “ Credit Support Agreement ”), copies of which have previously been provided to Buyer.
 
(b)                                  Buyer shall indemnify, defend and hold harmless each member of Seller Group from and against any and all Losses (including draws against, costs and liabilities in maintaining, and any costs in cancelling such Credit Support LC) relating to, resulting from, or arising out of such Credit Support LC and incurred by Seller.
 
(c)                                   Within five (5) Business Days after the earlier of (i) date that Seller shall have assigned and delegated, and Buyer shall have accepted and assumed, all of Seller’s obligations under the Destin Purchase Agreement and the Credit Support Agreement pursuant to and in accordance with Section 9.17 and (ii) the date that Seller shall have received consent from ADPC to Buyer’s replacement of the Credit Support LC (the “ LC Replacement Period ”), Buyer shall deliver to Seller a letter of credit, in form and substance acceptable to Seller, in the Stated Amount (as defined therein) of the Credit Support LC (the “ Replacement LC ,” and the date that Buyer actually delivers such Replacement LC, the “ Replacement LC Delivery Date ”) and shall cause as of the Replacement LC Delivery Date the release of the Seller Group from all obligations relating to the Credit Support LC and any Losses related thereto, unless Seller or Buyer has obtained the release of the Guarantee pursuant to Section 7.2(d)(i) of the Destin Purchase Agreement prior to the expiration of the LC Replacement Period.
 
ARTICLE VIII.
INDEMNIFICATION
 
Section 8.1                                    Indemnification Obligations .(a)               Indemnification Obligation of Seller .  Subject to the provisions of this ARTICLE VIII (including Section 8.2 ), from and after the Closing Date, Seller agrees to indemnify and hold harmless Buyer and its Affiliates (excluding the Seller Group) and its and their respective officers, directors (or equivalents), employees, contractors, agents and
 
16 

 
Representatives (collectively, the “ Buyer Group ”), from and against any and all Losses incurred by the Buyer Group which result from, relate to or arise out of the following:
 
(i)                                      any inaccuracy in any representation or warranty of Seller contained in ARTICLE IV ; or
 
(ii)                                   any material breach by Seller of any covenant or other obligation of Seller contained in this Agreement.
 
(b)                                  Indemnification Obligation of Buyer .  Subject to the provisions of this ARTICLE VIII (including Section 8.2 ), from and after the Closing Date, Buyer agrees to indemnify and hold harmless Seller and its Affiliates (excluding the Buyer Group) and its and their respective officers, directors (or equivalents), employees, contractors, agents and Representatives (collectively, the “ Seller Group ”), from and against any and all Losses incurred by the Seller Group which result from, relate to or arise out of the following:
 
(i)                                      any inaccuracy in any representation or warranty of Buyer contained in ARTICLE V ;
 
(ii)                                   any material breach by Buyer of any covenant or other obligation of Buyer contained in this Agreement; or
 
(iii)                                any of the liabilities or other obligations of Buyer that result from, relate to or arise out of or under the Purchase Agreements or the R&W Policy with respect to the Tri-States Purchase Agreement and the Destin Purchase Agreement, except to the extent resulting from actions of Buyer under the Purchase Agreements (other than any such actions taken at the request or with the consent of Seller).
 
Section 8.2                                    Limitations on Liability .
 
(a)                                  Liability Cap . Notwithstanding anything to the contrary in this Agreement or otherwise, the maximum aggregate amount that may be recovered by the Buyer Group or Seller Group under this Agreement (i) for representations and warranties set forth in Section 4.1 , Section 4.2 , Section 4.5 , Section 4.7 , Section 5.1 , Section 5.2 , Section 5.6 and Section 5.7 (the “ Fundamental Representations ”), shall not exceed the Purchase Price, and (ii) for all representations and warranties set forth in ARTICLE IV and ARTICLE V , excluding the Fundamental Representations, shall not exceed ten percent (10%) of the Purchase Price.
 
(b)                                  Deductible .  No Party shall be liable for, and no amounts of indemnity shall be payable in the case of, any claim for any inaccuracy in any representation or warranty (other than any Fundamental Representation) unless and until the Indemnified Parties have suffered, incurred or sustained otherwise indemnifiable Losses hereunder (after giving effect to any application of any deductions in accordance with Section 8.2(d) ) in excess of an amount equal to one percent (1%) of the Purchase Price in the aggregate (the “ Deductible ”), in which event the Indemnified Parties shall be entitled to claim indemnity for Losses only to the extent such Losses exceed the Deductible.  Without limiting the generality of the foregoing, no Party shall be liable with respect to any individual claim for any inaccuracy in any representation or warranty (other than any Fundamental Representation) that results in otherwise indemnifiable Losses, and such Losses shall not be counted toward satisfaction of the
 
17 

 
Deductible, unless such Losses exceed an amount equal to fifteen/one hundredths of one percent (0.15%) of the Purchase Price.
 
(c)                                   Failure to Notify .  Neither Party shall have an obligation to indemnify the other Party with respect to a matter if such other Party fails to deliver written notification of a claim for indemnification under Section 8.3(a)  for such matter before the expiration of the applicable survival period set forth in Section 8.4 .
 
(d)                                  Insurance Proceeds and Tax Benefits .  Payments by either Party to the other Party with respect to which such Party has an indemnification obligation under this ARTICLE VIII , shall be limited to the amount of any liability or damage that remains after deducting therefrom an amount equal to any insurance proceeds or other similar payments received and any current cash Tax benefit realized as a result of such Losses by such Indemnified Party (as defined below) in the fiscal year in which such Losses were incurred.  Each Party shall use its Commercially Reasonable Efforts to recover under insurance policies or similar agreements for any Losses prior to seeking indemnification under this Agreement.  If the Indemnified Party receives insurance proceeds for Losses after an indemnification payment for such Losses has been made by the Indemnifying Party (as defined below) to the Indemnified Party, the Indemnified Party will refund the Indemnifying Party the amount of such insurance proceeds received by the Indemnified Party.
 
Section 8.3                                    Other Provisions Relating to Indemnification.
 
(a)                                  Notices, etc . Each Person entitled to indemnification pursuant to this Agreement (the “ Indemnified Party ”) shall, upon obtaining knowledge of facts indicating that it may have a basis for a claim for indemnification hereunder, including receipt by it of notice of any demand, assertion, claim or proceeding by any Third Party (any such Third Party proceeding being referred to as a “ Third Party Action ”) with respect to any matter as to which it may be entitled to indemnity hereunder, give notice thereof in writing to the Person obligated hereunder to provide such indemnification (the “ Indemnifying Party ”) together with a reasonably detailed statement identifying the basis of and facts underlying such claim and a good faith estimate of the Indemnified Party’s Losses.  For the avoidance of doubt, an Indemnifying Party shall have no obligation to provide indemnification pursuant to this ARTICLE VIII in the event the Indemnified Party’s written notification states only a general demand for indemnification which fails to identify a specific Loss or Third Party Action relating to such claim or demand.
 
(b)                           Right to Contest and Defend . The Indemnifying Party shall be given the opportunity, at its cost and expense, to contest and defend by all appropriate legal proceedings any Third Party Action with respect to which it is called upon to indemnify the Indemnified Party under the provisions of this Agreement; provided , however , that notice of the intention to contest and defend shall be delivered by the Indemnifying Party to the Indemnified Party within thirty (30) days following receipt of the notice provided for in Section 8.3(a)  above.  Any Third Party Action which the Indemnifying Party elects to contest and defend may be conducted in the name and on behalf of the Indemnifying Party or the Indemnified Party as may be appropriate.  Such Third Party Action shall be conducted by counsel employed by the Indemnifying Party, but the Indemnified Party shall have the right to participate in such Third Party Action and to be represented by counsel of its own choosing at its cost and expense; provided that, if the defendant(s) in any Third Party Action include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party shall have reasonably concluded that (i) there may be legal defenses available to it that are inconsistent with those defenses available to the Indemnifying Party, or (ii) there is a conflict of interest that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party (clauses (i) and (ii)
 
18 

 
collectively, “ Differences or Conflicts ”), then the Indemnified Party shall have the right to engage separate counsel at the cost and expense of the Indemnifying Party.  If the Indemnified Party joins in any such Third Party Action, the Indemnifying Party shall have full authority, absent any Differences or Conflicts, to determine all action to be taken with respect thereto.  At any time after the commencement of defense of any Third Party Action, the Indemnifying Party may request the Indemnified Party to agree in writing to the abandonment of such contest or to the payment, compromise or settlement by the Indemnifying Party of the asserted Third Party Action, which consent, absent any Differences or Conflicts, shall not be unreasonably withheld; provided , however , that the Indemnified Party shall not be required to consent to the abandonment of such contest or to the payment, compromise or settlement of such asserted Third Party Action if the result would be: (A) a finding or admission of any violation of Laws by the Indemnified Party (or any Affiliate thereof), (B) an adverse effect on any other Third Party Actions or claims of a similar nature that may be made against the Indemnified Party (or any Affiliate thereof), or (C) any remedy other than monetary damages which will be paid in full by the Indemnifying Party.
 
(c)                                   Cooperation .  If reasonably requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Action which the Indemnifying Party elects to contest or, if appropriate, in making any counterclaim against the Person asserting the Third Party Action, or any cross-complaint against any Person; provided that the Indemnifying Party shall reimburse the Indemnified Party for any reasonable expenses incurred by it in so cooperating at the request of the Indemnifying Party.
 
(d)                                  Right to Participate .  The Indemnified Party agrees, if reasonably requested by the Indemnifying Party, to afford the Indemnifying Party and its counsel the opportunity, at the Indemnifying Party’s expense, to be present at, and to participate in, conferences with all Persons asserting any Third Party Action against the Indemnified Party and conferences with representatives of or counsel for such Persons.
 
(e)                                   Duty to Mitigate .  The Parties shall have a duty to mitigate any Losses to which a right to indemnity applies hereunder, including all reasonable steps to mitigate such potential Losses upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise to any Losses.
 
(f)                                    Exclusive Remedy . Except in the case of fraud, from and after the Closing Date, the indemnification provisions contained in this ARTICLE VIII shall constitute the sole remedy of the Parties for all claims arising from or relating to this Agreement or any of the instruments or transactions contemplated hereby (other than any remedies that are expressly set forth in any Operative Document), and each Party hereby releases the other Party from all other claims and causes of action, whether arising in Contract, in tort, or under any other legal theory arising from or relating to such circumstances.  The Parties acknowledge and agree that the indemnification provisions contained in this ARTICLE VIII (including this Section 8.3(f) ) have been specifically bargained for at arm’s length with the assistance of competent counsel and are reflected in the Purchase Price.  For the avoidance of doubt, an Indemnifying Party shall have no obligation to provide indemnification pursuant to this ARTICLE VIII in the event the Indemnified Party’s written notification states only a general demand for indemnification which fails to identify a specific Loss or Third Party Action relating to such claim or demand.
 
(g)                                   No Duplication of Remedies .  In no event shall either Party be entitled to duplicate compensation with respect to any claims or any breach of representation, warranty or agreement
 
19 

 
herein asserted under the terms of this Agreement, even though such claim or breach may be addressed by more than one provision of this Agreement.
 
(h)                                  Severability of Indemnification Provisions .  If any indemnity obligation set forth in this ARTICLE VIII or the application of any part thereof is held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction under applicable Laws, then, but only in such event, such indemnity obligation or part thereof shall be modified, read, construed and enforced to the maximum extent permitted by applicable Laws, and any remaining obligations or part thereof of such indemnity obligation that is valid and enforceable shall remain in full force and effect and be binding on the Parties.
 
(i)                                      Tax Treatment of Indemnity Payment . Parties agree to treat any indemnity payment made pursuant to this ARTICLE VIII as an adjustment to the Purchase Price, for all Tax purposes, unless otherwise required by applicable Laws.
 
(a)                                  Calculation .  In calculating any Losses suffered or incurred by any Party as a result of a breach or inaccuracy of a representation or warranty by the other Party, no effect shall be given to any qualification or limitation as to “materiality” or similar qualifications or limitations.
 
Section 8.4                                    Survival of Provisions and Indemnification Obligations.
 
(a)                                  The representations and warranties in this Agreement and the covenants and obligations set forth herein required to be performed prior to the Closing shall survive for six (6) months after the Closing Date; provided , that the Fundamental Representations shall survive indefinitely.  For avoidance of doubt, the covenants and obligations set forth herein required to be performed from and after the Closing shall survive and be enforceable (subject to the limitations set forth in this ARTICLE VIII ) after the Closing until fully performed; provided , that the indemnification obligations set forth in Section 8.1(a)(i)  and Section 8.1(b)(i)  shall survive the Closing until termination as provided in this Section 8.4 .
 
(b)                                  If an Indemnified Party shall have, before the expiration of the applicable survival period set forth in Section 8.4(a) , previously made a claim by delivering a notice pursuant to Section 8.3(a)  to the applicable Indemnifying Party, then any representation or warranty that would otherwise terminate in accordance with Section 8.4(a)  above shall continue to survive until the related claim for indemnification has been satisfied or otherwise resolved in accordance with this Agreement.
 
ARTICLE IX.
GENERAL PROVISIONS
 
Section 9.1                                  Damages .  Notwithstanding anything herein to the contrary, the Parties agree that the indemnification obligations of each Party hereto, and the recovery by any Party hereto or indemnitee of any Losses suffered by or incurred by it as a result of any breach or nonfulfillment by a Party hereto of any of its representations, warranties, covenants, agreements or other obligations under this Agreement, shall be limited to actual direct damages, and no Party shall be liable for consequential, incidental, exemplary, special, indirect or punitive damages arising under or in connection with this Agreement or otherwise as a result of, relating to or arising from the relationship between the Parties hereunder, whether in Contract, tort (including negligence), strict liability or otherwise, or whether or not the Person at fault knew, or should have known, that such damage would be likely suffered (collectively, “ Consequential Damages ”).  The exclusion of Consequential Damages as set forth in the preceding sentence shall not apply to any such damages sought by Third Parties against
 
20 

 
an Indemnified Party in connection with Losses for which indemnification is owed pursuant to ARTICLE VIII .
 
Section 9.2                                 Amendment and Modification .  Subject to applicable Laws, this Agreement may only be amended, modified and supplemented by written agreement of the Parties to this Agreement.
 
Section 9.3                                   Specific Performance .  Each Party acknowledges and agrees that if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, the other Party would be damaged irreparably and monetary damages may not be a sufficient remedy.  Accordingly, each Party agrees that the other Party shall be entitled to enforce specifically this Agreement and the terms and provisions hereof in court, subject to Section 9.8(b) .
 
Section 9.4                                   Waiver of Compliance . Any failure of Seller, on the one hand, or Buyer, on the other hand, to comply with any obligation, covenant, agreement or condition contained in this Agreement may be expressly waived in writing by the non-failing Party, but such waiver or failure to insist upon strict compliance shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
 
Section 9.5                                   Notices . All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been given (i) if delivered by hand (with written confirmation of receipt), (ii) when received by the addressee if sent by courier service (with all fees prepaid and receipt requested), (iii) on the third day after the date mailed if mailed, by certified or registered mail (with postage prepaid and return receipt requested), or (iv) on the date sent if transmitted by facsimile or by e-mail (with confirmation of transmission), or on the next Business Day if transmitted by facsimile or by e-mail after 5:00 p.m. ET on any such day (with confirmation of transmission):

If to Seller:	 	c/o ArcLight Capital Partners, LLC	
 	 	200 Clarendon Street, 55 th  Floor	
 	 	Boston, MA 02117	
 	 	Attention: Christine Miller	
 	 	Associate General Counsel	
 	 	Facsimile: (617) 867-4698	
 	 	 	
with a copy to:	 	Latham & Watkins LLP	
 	 	885 Third Avenue	
 	 	New York, NY 10022	
 	 	Attention:	David S. Allinson	
 	 	 	Christopher G. Cross	
 	 	Facsimile:	(212) 751-4864	
 	 	 	
If to Buyer, to:	 	1400 16th Street, Suite 310	
 	 	Denver, CO 80202	
 	 	Attention: William B. Mathews	
 	 	Senior Vice President and General Counsel	
 	 	Facsimile: (720) 457-6040	
 
21 

 

with a copy to:	 	Holland & Hart	
 	 	555 Seventeenth Street, Suite 3200	
 	 	Denver, CO 80202	
 	 	Attention: Lucy Stark	
 	 	Facsimile: (303) 295-8261	
 	 	 	
with a further copy to:	 	Thompson & Knight LLP	
 	 	333 Clay Street, Suite 3300	
 	 	Houston, TX 77002	
 	 	Houston, Texas	
 	 	Attention: Alan Baden	
 	 	Facsimile: (832) 397-8044	
 
All Notices shall be deemed to be effectively given upon receipt.  Either Party may change its Notice address by giving written Notice to the other Party in the manner specified above.
 
Section 9.6                                   Assignment .  This Agreement and all of the provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and their respective successors and permitted assigns, but neither Party may assign this Agreement nor any of the rights, interests or obligations under this Agreement (by operation of Law or otherwise) without the prior written consent of the other Party, except that, to the extent permissible under applicable Laws or applicable Contracts, Buyer may assign its rights hereunder to one or more of its Affiliates without such consent at any time after the Closing. Notwithstanding any assignment by a Party hereunder, the assigning Party shall in all events remain primarily liable for the performance of all of its obligations hereunder, unless the other Party consents in writing and the proposed assignee expressly assumes as a condition to such assignment all of the assigning Party’s performance obligations hereunder. Any purported assignment in violation of this Section 9.6 shall be voidable at the option of the non-assigning Party.
 
Section 9.7                                   No Third Party Beneficiaries .  Except as provided in ARTICLE VIII , this Agreement is solely for the benefit of Seller and Buyer and their respective successors and assigns, and nothing in this Agreement shall confer any rights upon any other Person.
 
Section 9.8                                   Governing Law; Venue; Jury Trial Waiver .
 
(a)                                 THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY CHOICE OF LAW RULES WHICH MAY DIRECT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION; PROVIDED THAT THE VALIDITY AND ENFORCEABILITY OF ALL CONVEYANCE DOCUMENTS OR INSTRUMENTS EXECUTED AND DELIVERED PURSUANT TO THIS AGREEMENT INSOFAR AS THEY AFFECT TITLE TO REAL PROPERTY, IF THERE ARE ANY SUCH DOCUMENTS OR INSTRUMENTS, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE JURISDICTION IN WHICH SUCH REAL PROPERTY IS LOCATED.
 
(b)                                 Each of the Parties hereby irrevocably and unconditionally submits to the exclusive jurisdiction of (i) the Delaware Court of Chancery or (ii) only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any Federal court of United States sitting in the State of Delaware and any appellate court from any thereof, with respect to any proceeding relating
 
22 

 
to this Agreement.  Further, each of the Parties hereby irrevocably and unconditionally waives any objection or defense that it may have based on improper venue or forum non conveniens to the conduct of any such proceeding in any such courts.  The Parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the Parties to waive irrevocably any objections to jurisdiction, venue or to convenience of forum.  Each of the Parties (on behalf of itself and its Affiliates) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law or in equity.
 
(c)                                  WITH RESPECT TO ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY.
 
Section 9.9                                   Counterparts .  This Agreement may be executed in one or more counterparts (including by means of facsimile or a portable document format (.pdf)), each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
 
Section 9.10                            Headings .  The headings contained in this Agreement are inserted for convenience only, do not constitute a part of this Agreement, and are in no way to be construed as a limitation on the scope of particular sections to which they refer.
 
Section 9.11                            Entire Agreement . Except for the Confidentiality Agreement, this Agreement (including the Exhibits, Schedules, and the Operative Documents, which form a part of this Agreement) embodies the entire agreement and understanding of the Parties in respect of the subject matter contained herein and therein and supersedes all prior and contemporaneous agreements and understandings between the Parties with respect to such subject matter.  There are no, and neither Party shall have any, remedies or causes of action (whether in Contract or in tort, or under any other legal theory) for any, restrictions, promises, statements, warranties, covenants, or undertakings with respect to the transactions contemplated hereby and thereby, other than those expressly set forth or referred to in this Agreement.
 
Section 9.12                            Representation By Counsel; No Strict Construction .  Buyer and Seller acknowledge and agree that (a) the Parties have participated jointly in the negotiation and drafting of this Agreement, (b) each of them has been represented by counsel in connection with the negotiation of this Agreement and the transactions contemplated hereby and (c) the language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any rule of Law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the Party that drafted it shall have no application and is expressly waived.
 
Section 9.13                            Severability .  Whenever possible, each provision or part thereof of this Agreement shall be interpreted in such manner as to be valid and effective under applicable Laws, but if any provision or part thereof of this Agreement or the application of any such provision or part thereof to any Person or circumstance shall be held invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision or part thereof.
 
23 

 
Section 9.14                            Expenses and Remittances .
 
(a)                                 The Parties acknowledge and agree that (i) the Purchase Price includes all reasonable out-of-pocket costs and expenses incurred by Seller in connection with (A) the procurement of the R&W Policy and (B) the preparation, negotiation, execution, delivery and the performance and consummation of the transactions contemplated by this Agreement and the Operative Documents, including fees and expenses of counsel, accountants, consultants and other advisors (such costs and expenses described in clauses (A) and (B), regardless of whether paid prior to, on or after the date hereof are the “ Seller Transaction Expenses ”) to the extent paid by Seller prior to the date hereof, and, (ii) from and after the date hereof, Buyer shall be responsible for, and shall promptly reimburse Seller upon receipt of reasonable documentation evidencing, any and all Seller Transaction Expenses incurred prior to the date hereof to the extent paid by Seller from and after the date hereof; provided , that the aggregate amount of Seller Transaction Expenses paid or payable under clause (ii) of this Section 9.14(a)  shall not exceed $500,000.  Except as provided for in this Section 9.14(a)  or as otherwise specifically provided for in this Agreement, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such costs and expenses.
 
(b)                                 The Parties (i) acknowledge that each of the Tri-States LLC Agreement and Wilprise LLC Agreement provides that Buyer’s admission as a member of the applicable Company shall be effective the first day of the calendar month immediately succeeding the month in which all applicable requirements to such admission have been met, and that the Destin LLC Agreement provides that Buyer’s admission as a member of Destin shall be effective the first business day of the calendar month immediately succeeding the month in which all applicable requirements to such admission have been met and (ii) agree that during the period from and after the date hereof and until the date on which Buyer is duly admitted as a member of the applicable Company, Seller and Buyer shall cooperate in compliance with applicable Law, this Agreement and the LLC Agreements to ensure that Buyer shall obtain the rights and economic benefits, assume the obligations and bear the economic burdens with respect to such period under the LLC Agreements, and without limiting the generality of the foregoing, Seller shall pay to Buyer any amounts received as distributions with respect to such period under such LLC Agreements promptly upon receipt thereof.
 
Section 9.15                            Confidentiality; Records; Responsibilities as of the Closing .
 
(a)                                 Confidentiality .  Buyer acknowledges that all information provided to any of it and its Affiliates (including, for the avoidance of doubt, American Midstream Partners, LP and American Midstream GP, LLC), their respective directors (or equivalents) (including Buyer Parent GP Board and the Conflicts Committee), officers, employees, counsel, auditors, accountants, agents, advisors and other Representatives in connection with the transactions contemplated by this Agreement or any Purchase Agreement is subject to the terms of the Confidentiality Agreement, the terms of which are hereby incorporated herein by reference; provided , that in the event of any conflict between any term or condition of this Agreement and the terms or conditions of the Confidentiality Agreement, the terms and conditions of this Agreement shall govern, unless otherwise expressly provided herein.  Effective upon the Closing, the Confidentiality Agreement shall terminate only with respect to information provided to any of Buyer or its Affiliates (including, for the avoidance of doubt, American Midstream Partners, LP and American Midstream GP, LLC), their respective directors (or equivalents) (including Buyer Parent GP Board and the Conflicts Committee), officers, employees, counsel, auditors, accountants, agents, advisors and other Representatives that relates solely to the Company Interests, the Pipeline System and the Assumed Liabilities.  Buyer acknowledges that any and all information provided or made available to it or any of its Affiliates (including, for the avoidance of doubt, American Midstream Partners, LP and
 
24 

 
American Midstream GP, LLC), their respective directors (or equivalents) (including Buyer Parent GP Board and the Conflicts Committee), officers, employees, counsel, auditors, accountants, agents, advisors and other Representatives in connection with the transactions contemplated by this Agreement or any Purchase Agreement (other than information relating solely to the Company Interests, the Pipeline System and the Assumed Liabilities) are subject to the terms and conditions of the Confidentiality Agreement on and after the Closing Date.
 
(b)                                 Records .  After the Closing Date, Seller shall have the right to retain copies of books, records and accounts relating to the Company Interests or the Pipeline System.  For a period of seven (7) years following the Closing Date, Buyer shall provide to Seller (and their respective counsel, auditors, accountants, agents, advisors or other Representatives) reasonable access to and permission to make and retain copies of any books, records or accounts relating to the Company Interests or the Pipeline System in Buyer’s possession and control (and if not in Buyer’s possession or control, then Buyer shall direct the Companies in favor of providing the same). Seller shall consult with Buyer so that such visits do not unreasonably interfere with Buyer’s normal operations.  Buyer shall not destroy or dispose (or direct or cause the Companies to destroy or dispose) of any such books, records and accounts for a period of at least seven (7) years after the Closing Date without first giving reasonable prior notice thereof and offering to surrender to Seller such books, records and accounts which Buyer or the Companies may intend to destroy or dispose of.
 
(c)                                  Responsibilities as of the Closing .  As of the Closing, Buyer shall assume all responsibilities and obligations attributable in any way as the owner of record of the Company Interests, including any responsibilities and obligations attributable with respect to the Pipeline System as a result of being an owner of such Company Interests.  As of the Closing, Buyer shall not be entitled to the benefit of any property owned by Seller that is not related to the Company Interests.  Buyer and Seller acknowledge and agree that the operator of the Pipeline System after the Closing will be determined in accordance with each Company’s Governing Instruments then in effect.
 
Section 9.16                            Public Announcements .  The Parties shall not (and shall cause their Affiliates not to) issue any press release or make any public announcement relating to the subject matter of this Agreement unless such Party has first consulted with the other Party and obtained the other Party’s prior written approval of the text thereof, which approval shall not be unreasonably withheld or delayed; provided , however , that a Party may make any public disclosure it believes in good faith is required by applicable Laws or any listing or trading agreement concerning its publicly traded securities (in which case the disclosing Party will provide the other Party reasonable advance notice and consultation regarding timing and content of the announcement or statement and with the further understanding that the Party not required to make such announcement or statement shall have the right to issue its own announcement or statement in connection with or in response to any such required public announcement or statement).
 
Section 9.17                            Further Assurances .  Each Party shall execute and deliver such instruments and take such other actions as the other Party may reasonably request in order to carry out the intent of this Agreement.  Without limiting the generality of the foregoing, (a) promptly upon the request of Seller following the Closing, Buyer shall enter into a customary assignment and assumption agreement with Seller pursuant to which Seller shall assign and delegate, and Buyer shall accept and assume, at Seller’s option (i) all of Seller’s obligations under each Purchase Agreement and the Credit Support Agreement or (ii) all of Seller Parent’s right, title and interest in, to and under all of the limited liability company interests of Seller; provided , that Seller shall have received, as applicable, Amoco Tri-States Pipeline Company’s, Amoco Louisiana Fractionator Company’s or ADPC’s consent to such assignment
 
25 

 
and (b) from and after the Closing and until Seller shall have assigned and delegated, and Buyer shall have accepted and assumed, all of Seller’s obligations under each Purchase Agreement pursuant to and in accordance with clause (a) of this Section 9.17 , Buyer shall reasonably cooperate with Seller in connection with the performance or other satisfaction of Seller’s obligations under each such Purchase Agreement, and Seller shall reasonably cooperate with Buyer in connection with the enforcement or other exercise of Buyer’s rights under each such Purchase Agreement.
 
[ Signature pages follow. ]
 
26 

 
IN WITNESS WHEREOF, the Parties have caused this Purchase and Sale Agreement to be duly executed and delivered as of the date first set forth above.

 	SELLER:	
 	 	 	
 	EMERALD MIDSTREAM, LLC	

 	By:	/s/ Daniel R. Revers	
 	Name:	Daniel R. Revers	
 	Title:	President	
 
Signature Page to Purchase and Sale Agreement

 

 	BUYER:	
 	 	 	
 	AMERICAN MIDSTREAM EMERALD, LLC	
 	 	 	
 	By:	/s/ Daniel C. Campbell	
 	Name:	Daniel C. Campbell	
 	Title:	SVP & CFO	

Exhibit 2.2
 
Execution Version
 
PURCHASE AND SALE AGREEMENT
 
BY AND BETWEEN
 
EMERALD MIDSTREAM, LLC,
 
AS SELLER
 
AND
 
AMERICAN MIDSTREAM EMERALD, LLC
 
AS BUYER
 
Dated as of April 27, 2016

 
TABLE OF CONTENTS

 	Page	
ARTICLE I. Definitions	1	
Section 1.1	Definitions	1	
Section 1.2	Definition and Construction Provisions	5	
 	 	 	
ARTICLE II. PURCHASE AND SALE of the company interests	6	
Section 2.1	Purchase and Sale of the Company Interests	6	
Section 2.2	Payment of the Purchase Price	6	
 	 	 	
ARTICLE III. CLOSING	6	
Section 3.1	Closing	6	
Section 3.2	Closing Deliveries	6	
 	 	 	
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER	8	
Section 4.1	Valid Organization	8	
Section 4.2	Authorization	8	
Section 4.3	Consents	8	
Section 4.4	No Violation	9	
Section 4.5	Title to the Company Interests; Encumbrances	9	
Section 4.6	Litigation	9	
Section 4.7	No Brokers	9	
 	 	 	
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER	9	
Section 5.1	Valid Organization	9	
Section 5.2	Authorization	9	
Section 5.3	Consents	10	
Section 5.4	No Violation	10	
Section 5.5	Litigation	10	
Section 5.6	Investment	10	
Section 5.7	No Brokers	11	
Section 5.8	No Knowledge of Misrepresentations or Omissions	11	
Section 5.9	Buyer Investigation	11	
 	 	 	
ARTICLE VI. certain disclaimers	11	
Section 6.2	Title to Real Property Interests	12	
Section 6.3	Certain Disclaimers	13	
 	 	 	
ARTICLE VII. COVENANTS	13	
Section 7.1	Tax Matters	13	
Section 7.2	Support Obligations	14	
 	 	 	
ARTICLE VIII. INDEMNIFICATION	15	
Section 8.1	Indemnification Obligations	15	
Section 8.2	Limitations on Liability	15	
Section 8.3	Other Provisions Relating to Indemnification	16	
Section 8.4	Survival of Provisions and Indemnification Obligations	18	
 	 	 	
ARTICLE IX. GENERAL PROVISIONS	18	
Section 9.1	Damages	18	

 

Section 9.2	Amendment and Modification	19	
Section 9.3	Specific Performance	19	
Section 9.4	Waiver of Compliance	19	
Section 9.5	Notices	19	
Section 9.6	Assignment	20	
Section 9.7	No Third Party Beneficiaries	20	
Section 9.8	Governing Law; Venue; Jury Trial Waiver	20	
Section 9.9	Counterparts	21	
Section 9.10	Headings	21	
Section 9.11	Entire Agreement	21	
Section 9.12	Representation By Counsel; No Strict Construction	22	
Section 9.13	Severability	22	
Section 9.14	Expenses and Remittances	22	
Section 9.15	Confidentiality; Records; Responsibilities as of the Closing	22	
Section 9.16	Public Announcements	23	
Section 9.17	Further Assurances	24	
 	 	 	
Exhibits :	 	
Exhibit A — Form of Assignment and Conveyance Agreement	 	
Exhibit B — Form of Assignment and Assumption Agreement	 	
Exhibit C — Form of SPA and R&W Policy Assignment Agreement	 	
Exhibit D — Form of Letter Agreement	 	
 	 	
Schedules :	 	
Schedule 1.1(a) — Seller Knowledge Parties	 	
Schedule 1.1(b) — Buyer Knowledge Parties	 	
Schedule 1.2 — Account Designation	 	

 
PURCHASE AND SALE AGREEMENT
 
This PURCHASE AND SALE AGREEMENT is made and entered into effective as of April 27, 2016 (the “ Effective Date ”), by and between Emerald Midstream, LLC, a Delaware limited liability company (“ Seller ”), and American Midstream Emerald, LLC, a Delaware limited liability company (“ Buyer ”).  Seller and Buyer are referred to herein individually as a “ Party ” and collectively as the “ Parties .”
 
RECITALS
 
WHEREAS , Seller has previously entered into that certain Securities Purchase Agreement, effective as of December 31, 2015, with Mardi Gras Transportation System, Inc., a Delaware corporation (the “ Purchase Agreement ”), pursuant to which, among other things, Seller agreed to purchase 66-2/3% of the issued and outstanding Membership Interests (as defined in the Okeanos LLC Agreement), including a 66-2/3% Percentage Interest (as defined in the Okeanos LLC Agreement)and a 66-2/3% Expense Interests (as defined in the Okeanos LLC Agreement) (the “ Company Interests ”) of Okeanos Gas Gathering Company, LLC, a Delaware limited liability company (the “ Company ”);
 
WHEREAS , the transactions contemplated by the Purchase Agreement were consummated on April 26, 2016;
 
WHEREAS , Seller owns the Company Interests;
 
WHEREAS , Seller desires to sell, convey and assign, to Buyer, and Buyer desires to purchase and accept from Seller, the Company Interests, on the terms and subject to the conditions of this Agreement;
 
WHEREAS , in connection with its acquisition of the Company Interests, Buyer desires to assume the Assumed Liabilities, on the terms and subject to the conditions of this Agreement; and
 
WHEREAS , Okeanos owns the natural gas gathering system consisting of approximately 70 miles of 24-inch pipe and approximately 30 miles of 20-inch pipe extending from the Na Kika and Thunder Horse fields to interconnect with the approximately 255-mile natural gas pipeline system, and the MP260 Platform, that extends from Viosca Knoll Block 900 to a processing plant at Pascagoula, Mississippi at Main pass Block 260, offshore Louisiana, together with related interconnections, measurement and appurtenant facilities (the “ Pipeline System ”).
 
AGREEMENT
 
NOW, THEREFORE , in consideration of the foregoing premises and of the mutual covenants, conditions and agreements set forth herein, the Parties hereby agree as follows:
 
ARTICLE I.
DEFINITIONS
 
Section 1.1                                    Definitions (a) .  As used herein, the following terms have the meanings defined below:
 
“ 1933 Act ” has the meaning set forth in Section 5.6 .
 
1 

 
“ Affiliate ” means, when used with respect to a Person, any other Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the specified Person.  For purposes of this definition, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by Contract or otherwise.  For purposes of this Agreement and the Operative Documents (excluding, for the avoidance of doubt, the Purchase Agreement, the Okeanos LLC Agreement and the R&W Policy) and notwithstanding anything herein or therein to the contrary, Buyer shall not be considered an Affiliate of Seller and Seller shall not be considered an Affiliate of Buyer.
 
“ Agreement ” means this Purchase and Sale Agreement, together with all exhibits and schedules hereto, as may be amended or supplemented from time to time.
 
“ Assumed Liabilities ” means the “Assumed Liabilities” as such term is defined in the Okeanos Purchase Agreement.
 
“ Bond ” has the meaning set forth in Section 7.2(a) .
 
“ Business Day ” means any day, except a Saturday, a Sunday or other day in which commercial banks in the City of New York are authorized or required by Law to be closed.
 
“ Buyer ” has the meaning set forth in the preamble of this Agreement.
 
“ Buyer Group ” has the meaning set forth in Section 8.1 .
 
“ Buyer Parent GP Board ” has the meaning set forth in Section 5.2 .
 
“ Closing ” has the meaning set forth in Section 3.1 .
 
“ Closing Date ” has the meaning set forth in Section 3.1 .
 
“ Code ” means the United States Internal Revenue Code of 1986, as amended.
 
“ Commercially Reasonable Efforts ” means efforts that (i) are designed to enable a Party, directly or indirectly, to assist in the consummation of the transactions contemplated by this Agreement and (ii) do not require the performing Party to expend any funds or assume liabilities other than expenditures and liabilities that are commercially reasonable in nature and amount; provided , that Seller shall have no obligation to perform any action that is prohibited by or not otherwise in accordance with the Governing Instruments of the Company.
 
“ Company ” has the meaning set forth in the recitals of this Agreement.
 
“ Company Interests ” has the meaning set forth in the recitals of this Agreement.
 
“ Confidentiality Agreement ” means that certain Confidentiality Agreement between ArcLight Capital Partners, LLC and Mardi Gras Transportation System Inc., Amoco Destin Pipeline Company, Amoco Tri-States NGL Pipeline Company, Amoco Louisiana Fractionator Company, and BP America Production Company dated as of April 7, 2015, as acknowledged and agreed to by Buyer pursuant to that certain letter agreement by and between ArcLight Capital Partners, LLC and Buyer, dated as of April 6, 2016.
 
2 

 
“ Conflicts Committee ” has the meaning set forth in Section 5.2 .
 
“ Consequential Damages ” has the meaning set forth in Section 9.1 .
 
“ Contract ” means any means any agreement, contract, franchise, license or lease, including all amendments, modifications and supplements thereto.
 
“ Credit Support LC ” has the meaning set forth in Section 7.2(a) .
 
“ Deductible ” has the meaning set forth in Section 8.2(b) .
 
“ Differences or Conflicts ” has the meaning set forth in Section 8.3(b) .
 
“ Due Diligence Materials ” means (i) due diligence materials distributed or otherwise made available in written or electronic form to Buyer or its Representatives, (ii) all written answers to questions provided to Buyer or its Representatives, (iii) all information or materials discussed with or disclosed to Buyer or its Representatives in management presentations, question and answer sessions or other meetings or discussions between the Parties and their respective Representatives (including Buyer Group’s observations in any site visits), and (iv) any Environmental Report.
 
“ Effective Date ” has the meaning set forth in the recitals of this Agreement.
 
“ Environmental Report ” means any environmental assessment and report in respect of the Pipeline System that has been made available and received by Buyer on or prior to the Closing Date.
 
“ Fundamental Representations ” has the meaning set forth in Section 8.2(a) .
 
“ GAAP ” means United States generally accepted accounting principles in effect from time to time.
 
“ Governing Instruments ” means (a) with respect to any Person that is a corporation, its articles or certificate of incorporation or memorandum and articles of association, as the case may be, and bylaws, (b) with respect to any Person that is a partnership, its certificate of partnership or certificate of formation and partnership agreement, (c) with respect to any Person that is a limited liability company, its certificate of formation and limited liability company or operating agreement, (d) with respect to any Person that is a trust or other entity, its declaration or agreement or trust or other constituent document and (e) with respect to any other Person, its comparable governing instruments as required or contemplated by the Laws of its jurisdiction of organization.
 
“ Governmental Authority ” means any federal, state, local, foreign, tribal or other governmental or administrative authority (including any political subdivision thereof), court or tribunal having jurisdiction.
 
“ Indemnified Party ” has the meaning set forth in Section 8.3(a) .
 
“ Indemnifying Party ” has the meaning set forth in Section 8.3(a) .
 
“ Knowledge ” means (a) with respect to Seller, the actual knowledge, without investigation, of the individuals listed on Schedule 1.1(a)  and (b) with respect to Buyer, the actual knowledge, without investigation, of the individuals listed on Schedule 1.1(b) .
 
3 

 
“ Law ” means all laws, statutes, codes, constitutions, ordinances, decrees, writs, injunctions, orders, judgments, principles of common law, tariffs, rules or regulations that are promulgated, issued or enacted by a Governmental Authority having jurisdiction over the applicable subject matter.
 
“ LC Replacement Period ” has the meaning set forth in Section 7.2(c) .
 
“ Losses ” means, whether arising in equity, under Law, Contract, tort, voluntary settlement, or in any other manner, any and all claims, demands, complaints, actions, litigation, hearings, lawsuits, proceedings, investigations, charges, damages, fines, penalties, deficiencies, judgments, injunctions, orders, decrees, rulings, losses, costs, liabilities, amounts paid in settlement, obligations, Taxes and liens, including, in each case, costs and reasonable expenses contesting and defending such matters (including reasonable attorneys’ fees and expenses, interest, court costs and other costs of suit, litigation or other proceedings of any kind or of any claim, default or assessment).
 
“ MGTI ” has the meaning set forth in Section 7.2(a) .
 
“ Non-LLC Assets ” means the “Non-LLC Assets” as such term is defined in the Okeanos Purchase Agreement.
 
“ Notices ” has the meaning set forth in Section 9.5 .
 
“ Okeanos LLC Agreement ” means that certain Operating and Administrative Management Agreement of the Company, effective February 21, 2002, by and between Seller and the Company.
 
“ Operative Document ” means any document listed or referred to in Section 3.2 or otherwise delivered at the Closing, in each case to the extent executed and delivered by a Party or one of its Affiliates.
 
“ Party ” or “ Parties ” has the meaning set forth in the preamble of this Agreement.
 
“ Permitted Encumbrances ” means any transfer or change of control restrictions (i) resulting from actions of any member of the Buyer Group, (ii) imposed on the Company Interests by securities Laws, arising under the Company’s Governing Instruments or this Agreement, (iii) imposed on any Real Property Interests or (iv) that will be discharged at or prior to Closing.
 
“ Person ” means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization, undivided joint interest operation or Governmental Authority.
 
“ Purchase Agreement ” has the meaning set forth in the recitals of this Agreement.
 
“ Purchase Price ” has the meaning set forth in Section 2.2 .
 
“ R&W Policy ” means that certain Buyer-Side Representations and Warranties Insurance Policy issued in the name of Seller with certain coverage for Losses resulting from breaches of certain representations and warranties of Mardi Gras Transportation System, Inc. under the Purchase Agreement.
 
“ Real Property Interests ” means any parcels of land owned in fee simple, or any parcels of land subject to leases, easements, rights-of-way, franchises, permits, licenses and other rights and interests in real property.
 
4 

 
“ Replacement LC ” has the meaning set forth in Section 7.2(c) .
 
“ Replacement LC Delivery Date ” has the meaning set forth in Section 7.2(c) .
 
“ Representatives ” means, with respect to Buyer and Seller, such Person’s and their Affiliates’ officers, directors, managers, employees, agents, consultants, legal and financial advisors and other representatives.
 
“ Seller ” has the meaning set forth in the preamble of this Agreement.
 
“ Seller Transaction Expenses ” has the meaning set forth in Section 9.14 .
 
“ SPA and R&W Policy Assignment Agreement ” means that certain SPA and R&W Policy assignment agreement by and between Seller and Buyer, dated as of the date hereof, pursuant to which Buyer assigns, and Seller accepts, all of Buyer’s rights under the Purchase Agreement and Buyer assigns and delegates, and Seller accepts and assumes, all of Buyer’s rights and obligations under the R&W Policy with respect to the Purchase Agreement, substantially in the form attached hereto as Exhibit C .
 
“ Taxes ” means all taxes, charges, fees, imposts, duties, levies, withholdings or other assessments imposed by any Governmental Authority, including environmental taxes, excise taxes, customs, duties, utility, property, income, sales, use, value added, transfer, and fuel taxes, and any interest, fines, penalties or additions to tax attributable to or imposed on or with respect to any such assessment or related to any tax return or tax filing, including all applicable income, sales, use, excise, business, occupation or other tax, if any, relating in any way to this Purchase Agreement or any other service, supply, or operating agreement.
 
“ Tax Authority ” means any Governmental Authority having jurisdiction with respect to any Tax.
 
“ Tax Return ” means any and all returns, reports, declarations, statements, bills, schedules, claims for refund or written information of or with respect to any Tax which is required to be supplied to any Tax Authority, including any schedule or attachment thereto, and including any amendment thereof.
 
“ Third Party ” means any Person other than Seller or Buyer, and their respective Affiliates.
 
“ Third Party Action ” has the meaning set forth in Section 8.3(a) .
 
“ Transfer Taxes ” has the meaning set forth in Section 7.1(a) .
 
Section 1.2                                    Definition and Construction Provisions .
 
(a)                                  The words “ hereof ,” “ herein ,” and “ hereunder ” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement.
 
(b)                                  The terms defined in the singular have a comparable meaning when used in the plural, and vice versa.
 
(c)                                   Whenever the Parties have agreed that any approval or consent shall not be “ unreasonably withheld ,” such phrase shall also include the Parties’ agreement that the approval or consent shall not be unreasonably delayed or conditioned.
 
5 

 
(d)                                  Reference to “ day ” or “ days ” in this Agreement refers to calendar days unless otherwise stated.
 
(e)                                   Whenever the words “ include ,” “ includes ” or “ including ” are used in this Agreement, they are deemed to be followed by the words “ without limitation .”
 
(f)                                    All references to Sections , Exhibits and Schedules or paragraphs or subdivisions thereof mean those numbered sections, paragraphs or subdivisions in this Agreement and those Exhibits and Schedules attached hereto and made a part of this Agreement, respectively, unless specific reference is made to such exhibits, articles, sections, paragraphs or subdivisions of another document or instrument.
 
ARTICLE II.
PURCHASE AND SALE OF THE COMPANY INTERESTS
 
Section 2.1                                    Purchase and Sale of the Company Interests (a) .  Subject to the terms and conditions of this Agreement, at the Closing, Seller agrees to sell, transfer, convey, assign and deliver to Buyer, and Buyer agrees to purchase, acquire, accept, assume and receive from Seller, subject to Permitted Encumbrances, all of Seller’s right, title and interest in and to the Company Interests as the same shall exist and be held by Seller immediately prior to Closing, and Seller shall make the other conveyances, assignments and transfers contemplated by Section 3.2(a) , subject to Permitted Encumbrances, and Buyer shall assume the Assumed Liabilities as contemplated by Section 3.2(a)(ii) .  For the avoidance of doubt, this Agreement does not, and is not intended to, require a conveyance to Buyer of any Non-LLC Assets.
 
Section 2.2                                    Payment of the Purchase Price.   The total purchase price to be paid by Buyer to Seller in consideration for the Company Interests shall be $27,428,963 (the “ Purchase Price ”), and shall be paid by Buyer to Seller at the Closing in cash by wire transfer of immediately available funds in accordance with the wire instructions set forth on Schedule 1.2 to the account(s) designated therein.
 
ARTICLE III.
CLOSING
 
Section 3.1                                    Closing .  The consummation of the transactions contemplated by this Agreement (the “ Closing ”) shall take place (a) simultaneously with the execution of this Agreement at the offices of Latham & Watkins LLP, 855 Third Avenue, New York, NY 10022, or (b) at such other place or at such other time on the date hereof as the Parties may mutually agree, including via teleconference or electronic communication (the date and time on which the Closing takes place, the “ Closing Date ”).
 
Section 3.2                                    Closing Deliveries .
 
(a)                                  At the Closing, Seller shall deliver, or cause to be delivered, to Buyer the following:
 
(i)                                      an Assignment and Conveyance Agreement duly executed by Seller, substantially in the form attached hereto as Exhibit A , whereby Seller shall convey and transfer to Buyer all of Seller’s right, title and interests in and to the Company Interests, subject to the terms contained herein and therein;
 
6 

 
(ii)                                   an Assignment and Assumption Agreement duly executed by Seller, substantially in the form attached hereto as Exhibit B , which sets forth the terms and conditions under which Seller shall assign and Buyer shall accept and assume the Assumed Liabilities, subject to Permitted Encumbrances;
 
(iii)                                an SPA and R&W Policy Assignment Agreement duly executed by Seller, substantially in the form attached hereto as Exhibit C, which sets forth the terms and conditions under which Seller shall assign and Buyer shall accept Seller’s rights under the Purchase Agreement and Seller’s rights and obligations under the R&W Policy with respect to the Purchase Agreement;
 
(iv)                               a letter agreement duly executed by Seller relating to certain delivery requirements under the Company’s Governing Instruments, substantially in the form attached hereto as Exhibit D ;
 
(v)                                  a properly executed statement from Seller (or the appropriate parent Affiliate, if Seller is disregarded as an entity separate from its parent for federal income tax purposes on the Closing Date), dated as of the Closing Date, in the form reasonably acceptable to Buyer that meets the requirements of Section 1.1445-2(b)(2) promulgated under the Code;
 
(vi)                               a certificate duly executed by the Secretary or an Assistant Secretary of Seller, dated as of the Closing Date, in customary form, attesting to the resolutions of the board of managers, board of directors or similar governing body of Seller authorizing the execution and delivery of this Agreement and the Operative Documents to which the Seller is a party and the consummation of the transactions contemplated hereby and thereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended as of the Closing Date; and
 
(vii)                            such other instruments and agreements as the Parties may mutually agree are necessary or appropriate to consummate the transactions contemplated in this Agreement.
 
(b)                                  At the Closing, Buyer shall deliver, or cause to be delivered, to Seller the following:
 
(i)                                      payment of the Purchase Price in accordance with Section 2.2 ;
 
(ii)                                   an Assignment and Conveyance Agreement duly executed by Buyer, substantially in the form attached hereto as Exhibit A whereby Seller shall convey and transfer to Buyer all of Seller’s right, title and interests in and to the Company Interests, subject to the terms contained herein and therein;
 
(iii)                                an Assignment and Assumption Agreement duly executed by Buyer, substantially in the form attached hereto as Exhibit B, which sets forth the terms and conditions under which Seller shall assign and Buyer shall accept and assume the Assumed Liabilities, subject to Permitted Encumbrances;
 
(iv)                               an SPA and R&W Policy Assignment Agreement duly executed by Buyer, substantially in the form attached hereto as Exhibit C, which sets forth the terms and conditions under which Seller shall assign and Buyer shall accept Seller’s rights under the Purchase
 
7 

 
Agreement and Seller’s rights and obligations under the R&W Policy with respect to the Purchase Agreement;
 
(v)                                  a letter agreement duly executed by Buyer relating to certain delivery requirements under the Company’s Governing Instruments, substantially in the form attached hereto as Exhibit D ;
 
(vi)                               a certificate duly executed by the Secretary or an Assistant Secretary of Buyer, dated as of the Closing Date, in customary form, attesting to the resolutions of (i) the Conflicts Committee approving the transactions contemplated by this Agreement and the Operative Documents and (ii) the Buyer Parent GP Board authorizing the execution and delivery of this Agreement and the Operative Documents to which the Buyer is a party and the consummation of the transactions contemplated hereby and thereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended as of the Closing Date; and
 
(vii)                            such other instruments and agreements as the Parties may mutually agree are necessary or appropriate to consummate the transactions contemplated in this Agreement.
 
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF SELLER
 
Subject to the exceptions, disclaimers and other matters set forth in this Agreement, Seller represents and warrants to Buyer as follows:
 
Section 4.1                                    Valid Organization .  Seller is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of Delaware.
 
Section 4.2                                    Authorization .  Seller has all requisite limited liability company power and authority to enter into this Agreement, and all other documents required hereunder to be executed and delivered by Seller, and carry out the transactions contemplated hereby and thereby. The execution and delivery of this Agreement, and all other documents required hereunder to be executed and delivered by Seller, and the performance of the transactions contemplated hereby and thereby have been duly and validly authorized by such action, corporate or otherwise, necessary on behalf of Seller. This Agreement is, and each document required to be executed and delivered by Seller hereunder, when so executed and delivered by Seller, shall be, a valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except (a) as limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors’ rights, and (b) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding for the same may be brought.
 
Section 4.3                                    Consents .  No consent, approval of or by, or filing with or notice to (A) any Governmental Authority (other than such consents, approvals, filings or notices the failure of which to obtain or make would not, individually or in the aggregate, result or reasonably be expected to result in a material and adverse effect on the ability of Seller to perform its obligations under this Agreement or to consummate the transactions contemplated hereby) or (B) any other Person (other than such consents, approvals, filings or notices the failure of which to obtain or make would not, individually or in the aggregate, result or reasonably be expected to result in a material and adverse effect on the ability of Seller to perform its obligations under this Agreement or to consummate the transactions contemplated hereby), is required to be made or obtained by Seller in connection with the
 
8 

 
execution, delivery or enforceability of this Agreement or the consummation of the transactions provided for hereby.
 
Section 4.4                                    No Violation .  None of the execution and delivery of this Agreement, the performance by Seller of its obligations under this Agreement or the consummation of the transactions contemplated by this Agreement will (a) violate any provision of Seller’s Governing Instruments; (b) result in the creation or imposition of any lien or encumbrance upon the Company Interests under any material agreement or commitment to which Seller is a party or by which Seller is bound; or (c) violate any statute or Law to which Seller is subject, except where such violation of any provision in the clauses (b) and (c) of this Section 4.4 would not, individually or in the aggregate, result or reasonably be expected to result in a material and adverse effect on the ability of Seller to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
 
Section 4.5                                    Title to the Company Interests; Encumbrances.  Seller has good and valid title to the Company Interests free and clear of all liens, security interests and encumbrances created by or through Seller, other than Permitted Encumbrances.  To the Knowledge of Seller, such Company Interests are duly authorized, validly issued, fully paid (to the extent required under the Okeanos LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act).
 
Section 4.6                                    Litigation (a).  There are no legal, equitable, bankruptcy, administrative or other material actions or proceedings pending or threatened in writing against Seller with respect to the Company Interests, before any arbitrator or Governmental Authority that would reasonably be expected to have a material and adverse impact on the ability of Seller to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
 
Section 4.7                                    No Brokers .  Seller has not retained or employed any broker, finder, or similar agent, or otherwise taken any action in connection with the negotiations relating to this Agreement and the transactions contemplated hereby in a manner so as to give rise to any claims against Buyer for any brokerage commission, finder’s fee or other similar payment.
 
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF BUYER
 
Buyer hereby represents and warrants to Seller as follows :
 
Section 5.1                                    Valid Organization .  Buyer is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware. Buyer is duly qualified or licensed to do business in all states where it is necessary and required to be so qualified or licensed in order to perform the obligations and effect the transactions contemplated by this Agreement.
 
Section 5.2                                    Authorization .  Buyer has all requisite limited liability company power and authority to enter into this Agreement, and all other documents required hereunder to be executed and delivered by Buyer, to carry out the transactions contemplated hereby and thereby and to acquire and own the Company Interests. The execution and delivery of this Agreement, and all other documents required hereunder to be executed and delivered by Buyer, and the performance of the transactions contemplated hereby and thereby have been duly and validly authorized by such action, corporate or otherwise, necessary on behalf of Buyer.  This Agreement is, and each document required to be executed and delivered by Buyer hereunder, when so executed and delivered by Buyer, shall be, a valid
 
9 

 
and binding agreement of Buyer, enforceable against Buyer in accordance with its terms, except (a) as limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect relating to creditors’ rights and (b) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding for the same may be brought .  The transactions contemplated by this Agreement and the Operative Documents to which Buyer is or will be a party have been approved by the conflicts committee (“ Conflicts Committee ”) of the board of directors of American Midstream GP, LLC (the “ Buyer Parent GP Board ”) and the execution and delivery by Buyer of this Agreement and the Operative Documents to which Buyer is or will be a party, and the consummation of the transactions contemplated hereby and thereby, have been approved by the Buyer Parent GP Board, and such approvals have not been amended, repealed, revoked or rescinded and are in full force and effect as of the date hereof, and no other limited liability company actions are necessary on the part of Buyer to approve this Agreement, the Operative Documents or the transactions contemplated hereby or thereby.
 
Section 5.3                                    Consents .  No consent, approval of or by, or filing with or notice to (A) any Governmental Authority (other than such consents, approvals, filings or notices the failure of which to obtain or make would not, individually or in the aggregate, result or reasonably be expected to result in a material and adverse effect on the ability of Buyer to perform its obligations under this Agreement or to consummate the transactions contemplated hereby) or (B) any other Person (other than such consents, approvals, filings or notices the failure of which to obtain or make would not, individually or in the aggregate, result or reasonably be expected to result in a material and adverse effect on the ability of Buyer to perform its obligations under this Agreement or to consummate the transactions contemplated hereby), is required to be made or obtained by Buyer in connection with the execution, delivery or enforceability of this Agreement or the consummation of the transactions provided for hereby.
 
Section 5.4                                    No Violation .  None of the execution and delivery of this Agreement or the performance by Buyer of its obligations under this Agreement, or the consummation of the transactions contemplated by this Agreement will: (a) violate any provision of Buyer’s Governing Instruments; (b) result in the creation or imposition of any lien or encumbrance upon the Company Interests under any material agreement or commitment to which Buyer is a party or by which Buyer is bound or (c) to the Knowledge of Buyer, violate any statute or Law to which Buyer is subject or any Contract to which Buyer is a party or by which it is bound.
 
Section 5.5                                    Litigation .  There is no legal, equitable, bankruptcy, administrative or other action or proceeding pending or threatened in writing against Buyer or its Affiliates before any arbitrator or Governmental Authority, that would reasonably be expected to have a material and adverse impact on the ability of Buyer to perform its obligations under this Purchase Agreement or to consummate the transactions contemplated hereby.
 
Section 5.6                                    Investment .  Buyer is acquiring the Company Interests for its own account as an investment without the present intent to sell, transfer or otherwise distribute (including as such term or words of similar import are used in Section 2(a)(11) of the Securities Act of 1933, as amended (the “ 1933 Act ”)) the same to any other Person.  Buyer has made, independently and without reliance on Seller, its own analysis of the Company and the Pipeline System for the purpose of acquiring the Company Interests and Buyer has had reasonable and sufficient access to documents, other information and materials as it considers appropriate to make its evaluations.  Buyer (a) has the knowledge and experience in financial and business matters that enable it to evaluate the merits and risks of the transactions described in this Agreement, (b) is not in a significantly disparate bargaining position
 
10 

 
in relation to Seller and (c) is able to bear the economic risk of the acquisition of the Company Interests pursuant to the terms of this Agreement, including a complete loss of Buyer’s investment in the Company Interests. Buyer understands that the Company Interests are not registered under the 1933 Act and have not been qualified under any state securities Laws on the grounds that the offering and sale of the Company Interests contemplated by this Agreement are exempt from registration thereunder and Seller’s reliance on such exemptions is predicated on Buyer’s representations set forth herein.  Buyer understands that none of the Company Interests may be transferred, except as permitted under the 1933 Act and applicable state securities Laws pursuant to registration or an applicable exemption thereunder.  Buyer is an “accredited investor” as defined under Rule 501 promulgated under the 1933 Act.  For purposes of state “blue sky” Laws, Buyer represents and warrants that the principal executive officers of Buyer are located in the States of Colorado and Texas and that the decision by Buyer to acquire the Company Interests shall be deemed to occur solely in the States of Colorado and Texas.
 
Section 5.7                                    No Brokers .  Buyer has not retained or employed any broker, finder, or similar agent, or otherwise taken any action in connection with the negotiations relating to this Agreement and the transactions contemplated hereby in a manner so as to give rise to any claims against Seller or any Affiliate thereof for any brokerage commission, finder’s fee, or other similar payment.
 
Section 5.8                                    No Knowledge of Misrepresentations or Omissions .  Buyer has no Knowledge that any representation or warranty of Seller contained in this Agreement or any agreement contemplated hereby is not true and correct in all material respects, and Buyer has no Knowledge of any material errors in, or material omissions from, the Exhibits and Schedules to this Purchase Agreement or the schedules, exhibits or attachments to any agreement contemplated hereby.
 
Section 5.9                                    Buyer Investigation .  Buyer acknowledges and agrees that in making the decision to enter into this Agreement and to consummate the transactions contemplated hereby, (a) Buyer has relied solely on the basis of its own independent investigation of the Company Interests and the Pipeline System and the risks related thereto and upon the express written representations and warranties of Seller set forth in ARTICLE IV of this Agreement; and (b) neither Seller nor any other Person has made any representation or warranty as to Seller or the Company Interests or the Pipeline System, except as expressly set forth in ARTICLE IV of this Agreement. Without limiting the foregoing, Buyer expressly acknowledges and agrees to the provisions set forth in ARTICLE VI .
 
ARTICLE VI.
CERTAIN DISCLAIMERS
 
.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IT IS THE EXPLICIT INTENT OF EACH OF THE PARTIES THAT, EXCEPT AS EXPRESSLY PROVIDED IN SELLER’S REPRESENTATIONS AND WARRANTIES IN ARTICLE IV , SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE (WHETHER EXPRESS OR IMPLIED), AT LAW OR IN EQUITY, WITH RESPECT TO SELLER, THE COMPANY INTERESTS, THE COMPANY, THE PIPELINE SYSTEM, THE ASSETS AND LIABILITIES OF THE COMPANY OR THE ASSUMED LIABILITIES, AND SELLER EXPRESSLY DISCLAIMS ANY SUCH OTHER WARRANTIES (EXPRESS OR IMPLIED), INCLUDING AS TO THEIR (I) TITLE, (II) ABSENCE OF PATENT OR LATENT DEFECTS, (III) SAFETY, (IV) STATE OF REPAIR, (V) QUALITY, (VI) MERCHANTABILITY, (VII) FITNESS FOR BUYER’S INTENDED USE OR PURPOSE OR ANY USE OR PURPOSE WHATSOEVER, (VIII) COMPLIANCE WITH LAWS, (IX) ENVIRONMENTAL OR PHYSICAL CONDITION (SURFACE AND SUBSURFACE), (X) FEDERAL, STATE OR LOCAL INCOME OR OTHER TAX CONSEQUENCES, (XI)
 
11 

 
CONTRACTUAL, ECONOMIC OR FINANCIAL INFORMATION AND DATA, (XII) FINANCIAL VIABILITY, INCLUDING PRESENT OR FUTURE VALUE OR ANTICIPATED INCOME OR PROFITS, OR (XIII) CONFORMITY TO INFORMATION PROVIDED IN THE DUE DILIGENCE MATERIALS. BUYER AGREES TO ACCEPT THE COMPANY INTERESTS (INCLUDING ANY INDIRECT INTEREST SELLER HAS IN THE PIPELINE SYSTEM) “AS-IS”, “WHERE-IS”, IN THEIR PRESENT CONDITION AND STATE OF REPAIR, WITH ALL FAULTS, LIMITATIONS AND DEFECTS (HIDDEN AND APPARENT) AND, EXCEPT AS EXPRESSLY PROVIDED IN SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES IN ARTICLE IV , WITHOUT ANY GUARANTEES OR WARRANTIES (WHETHER EXPRESS OR IMPLIED), AT LAW OR IN EQUITY, AS TO THEIR (I) TITLE, (II) ABSENCE OF PATENT OR LATENT DEFECTS, (III) SAFETY, (IV) STATE OF REPAIR, (V) QUALITY, (VI) MERCHANTABILITY, (VII) FITNESS FOR BUYER’S INTENDED USE OR PURPOSE OR A PARTICULAR USE OR PURPOSE OR ANY USE OR PURPOSE WHATSOEVER, (VIII) COMPLIANCE WITH LAWS, (IX) ENVIRONMENTAL OR PHYSICAL CONDITION (SURFACE AND SUBSURFACE), (X) FEDERAL, STATE OR LOCAL INCOME OR OTHER TAX CONSEQUENCES, (XI) CONTRACTUAL, ECONOMIC OR FINANCIAL INFORMATION AND DATA, (XII) FINANCIAL VIABILITY, INCLUDING PRESENT OR FUTURE VALUE OR ANTICIPATED INCOME OR PROFITS, OR (XIII) CONFORMITY TO INFORMATION PROVIDED IN THE DUE DILIGENCE MATERIALS. ALL REPRESENTATIONS AND WARRANTIES (WHETHER EXPRESS OR IMPLIED), AT LAW OR IN EQUITY, OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN ARE EXCLUDED. SELLER DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY OTHER REPRESENTATION, WARRANTY, STATEMENT OR INFORMATION MADE OR COMMUNICATED (WHETHER ORALLY, IN WRITING, ELECTRONICALLY OR BY OR THROUGH ANY OTHER MEDIUM) TO BUYER, INCLUDING WITH RESPECT TO SELLER, THE COMPANY, THE COMPANY INTERESTS, THE ASSETS AND LIABILITIES OF THE COMPANY, THE PIPELINE SYSTEM OR THE ASSUMED LIABILITIES, FURTHER INCLUDING THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA PROVIDED IN THE DUE DILIGENCE MATERIALS, OR ANY OTHER DATA, REPORTS, RECORDS, PROJECTIONS, INFORMATION OR MATERIALS FURNISHED OR MADE AVAILABLE TO BUYER AT ANY TIME RELATING TO SELLER, THE COMPANY, THE COMPANY INTERESTS, THE ASSETS AND LIABILITIES OF THE COMPANY, THE PIPELINE SYSTEM OR THE ASSUMED LIABILITIES, AND BUYER ACKNOWLEDGES AND AGREES THAT ANY RELIANCE ON OR USE OF THE SAME WILL BE AT BUYER’S SOLE RISK TO THE MAXIMUM EXTENT PERMITTED BY LAW AND WILL NOT CREATE OR GIVE RISE TO ANY LIABILITY OF OR AGAINST SELLER. BUYER ACKNOWLEDGES AND AGREES THAT IT HAS HAD SUFFICIENT OPPORTUNITY TO CONDUCT SUCH INVESTIGATION AS IT HAS DEEMED NECESSARY AND ADVISABLE FOR PURPOSES OF DETERMINING WHETHER OR NOT TO ENTER INTO THIS AGREEMENT. BUYER ACKNOWLEDGES AND AGREES THAT, EFFECTIVE AS OF THE CLOSING, IT WILL ASSUME FULL RESPONSIBILITY AND COMPLIANCE WITH ALL OBLIGATIONS ATTRIBUTABLE, IN ANY WAY, TO THE COMPANY INTERESTS, AND UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL LOSSES IT MAY HAVE AGAINST THE SELLER ASSOCIATED WITH THE SAME.
 
Section 6.1                                    Title to Real Property Interests .  Buyer acknowledges that Seller and Seller Group makes no representation or warranty, either express or implied, (i) as to title to, or any encumbrances of or on, any Real Property Interests relating to the Pipeline System or (ii) as to the completeness or contiguity of any Real Property Interests relating to the Pipeline System, or any of the land, leases, easements, rights-of-way, permits, licenses or other interests comprising any Real Property Interests relating to the Pipeline System.  Neither Seller nor any other member of the Seller Group shall
 
12 

 
be responsible or liable to Buyer in any manner, or in any sum whatsoever, for any want or failure of title or right to grant Buyer any right, claim or benefit arising under any Real Property Interests.
 
Section 6.2                                    Certain Disclaimers .  Except as otherwise expressly set forth in this Agreement and the instruments, documents and agreements referred to herein or executed in connection with the transactions contemplated hereby:
 
(a)                                  Buyer expressly acknowledges that none of Seller, any of the other members of the Seller Group or any other Person has made any representation or warranty, express or implied, at Law or in equity, as to the accuracy or completeness of any information regarding Seller, the Company Interests, the Pipeline System, the Company or the Assumed Liabilities, except as expressly set forth in this Agreement or the Exhibits and Schedules hereto, and Buyer further agrees that none of Seller, any of the other members of the Seller Group or any other Person shall have or be subject to any liability to Buyer or to any other Person resulting from the distribution to Buyer and the other members of the Buyer Group, or its or their use of, and Buyer agrees that it shall be deemed to have not relied for any purpose on, any such information, including the Due Diligence Materials or any other form in expectation of the transactions contemplated by this Agreement, and Buyer acknowledges it is not relying on any such information, and Buyer Group irrevocably waives any and all Losses it may have against any member of the Seller Group associated with the same.
 
(b)                                  Buyer expressly acknowledges (i) the disclaimers of the Seller Group, including those set forth in Section 6.1 , Section 6.2 and Section 6.3(a)  above, and (ii) that there are uncertainties inherent in any estimates, projections and other forecasts and plans provided by the Seller Group to the Buyer Group, including any such information, document or material made available to the Buyer Group in the Due Diligence Materials or any other form in expectation of the transactions contemplated by this Agreement, and Buyer acknowledges it is not relying on any such information, that Buyer is aware of and familiar with such uncertainties and that Buyer takes full responsibility for making its own evaluation of the adequacy and accuracy of any such estimates, projections and other forecasts and plans (including the reasonableness of the assumptions underlying such estimates, projections and other forecasts and plans) in connection with the transactions contemplated by this Agreement.  Accordingly, neither Seller nor any other member of the Seller Group makes any representations or warranties with respect to such estimates, projections and other forecasts and plans (including the reasonableness of the assumptions underlying such estimates, projections and other forecasts and plans), and Buyer acknowledges that it is not relying on any such information, and the Buyer Group irrevocably waives any and all Losses it may have against any member of the Seller Group associated with the same.
 
(c)                                   Notwithstanding anything to the contrary in this ARTICLE VI , Buyer does not waive any claim it may have against Seller for intentional fraud, in the event Seller is finally determined by a court of competent jurisdiction to have willfully and knowingly committed fraud against Buyer.
 
ARTICLE VII.
COVENANTS
 
Section 7.1                                    Tax Matters .
 
(a)                                  All sales, use, stamp, registration, value added, documentary, filing, recording, transfer or similar fees or taxes or governmental charges as levied by any Tax Authority in connection
 
13 

 
with the transactions contemplated by this Agreement (“ Transfer Taxes ”) shall be borne fifty percent (50%) by Seller and fifty percent (50%) by the Buyer; provided , however , that each of the Buyer and Seller shall be responsible for all interest, penalties, additions or additional amounts imposed as a result of such Party’s failure to timely pay its share (as determined under this Section 7.1(a) ) of such Transfer Taxes.  To the extent permitted by applicable Law, Buyer and Seller shall cooperate with each other to obtain exemptions from Transfer Taxes.  The party responsible under applicable Law for filing any Tax Return with respect to such Transfer Taxes shall duly and timely file, taking into account all allowable extensions, such Tax Return with the appropriate Tax Authority.
 
(b)                                  The Parties intend and agree, solely for U.S. federal income tax purposes and for purposes of certain state income tax laws that incorporate or follow federal income tax principles, that the transactions contemplated by this Agreement taken together with the transactions contemplated by that certain Securities Purchase Agreement, by and among Magnolia Infrastructure Holdings, LLC and American Midstream Partners LP, dated as of the date hereof, shall, except as otherwise required by Section 707(a)(2)(B) and its implementing treasury regulations (including, to the extent applicable, Treasury Regulation 1.707-4(d)) and Treasury Regulation section 1.721-2(b)(1), be treated as contributions to American Midstream Partners, LP in exchange for a partnership interest therein in a transaction consistent with the requirements of Section 721(a) of the Code.
 
(c)                                   For purposes of allocating the taxable income of the Company for the 2016 tax year between Seller and Buyer, the Parties shall use its reasonable best efforts to cause Company to use an interim closing of the books as of the Closing Date.
 
Section 7.2                                    Support Obligations .
 
(a)                                  In connection with the consummation of the transactions contemplated by the Purchase Agreement, Seller has delivered to Mardi Gras Transportation System, Inc. (“ MGTI ”) an irrevocable standby letter of credit (together with any renewals or replacements thereof, the “ Credit Support LC ”) issued by Citibank, N.A. in favor of ADPC, relating to the $300,000 Outer Continental Shelf Right-of-Way Grant Bond between Okeanos Gas Gathering Company, LLC and Travelers Casualty and Surety Company of America (the “ Bond ”) pursuant to Section 7.2(d)(i) of the Purchase Agreement.
 
(b)                                  Buyer shall indemnify, defend and hold harmless each member of Seller Group from and against any and all Losses (including draws against, costs and liabilities in maintaining, and any costs in cancelling such Credit Support LC) relating to, resulting from, or arising out of such Credit Support LC and incurred by Seller.
 
(c)                                   Within five (5) Business Days after the earlier of (i) date that Seller shall have assigned and delegated, and Buyer shall have accepted and assumed, all of Seller’s obligations under the Purchase Agreement pursuant to and in accordance with Section 9.17 and (ii) the date that Seller shall have received consent from MGTI to Buyer’s replacement of the Credit Support LC (the “ LC Replacement Period ”), Buyer shall deliver to Seller a letter of credit, in form and substance acceptable to Seller, in the Stated Amount (as defined therein) of the Credit Support LC (the “ Replacement LC ,” and the date that Buyer actually delivers such Replacement LC, the “ Replacement LC Delivery Date ”) and shall cause as of the Replacement LC Delivery Date the release of the Seller Group from all obligations relating to the Credit Support LC and any Losses related thereto, unless Seller or Buyer has obtained the release of the Bond pursuant to Section 7.2(d)(i) of the Purchase Agreement prior to the expiration of the LC Replacement Period.
 
14 

 
ARTICLE VIII.
INDEMNIFICATION
 
Section 8.1                                    Indemnification Obligations .
 
(a)                                  Indemnification Obligation of Seller .  Subject to the provisions of this ARTICLE VIII (including Section 8.2 ), from and after the Closing Date, Seller agrees to indemnify and hold harmless Buyer and its Affiliates (excluding the Seller Group) and its and their respective officers, directors (or equivalents), employees, contractors, agents and Representatives (collectively, the “ Buyer Group ”), from and against any and all Losses incurred by the Buyer Group which result from, relate to or arise out of the following:
 
(i)                                      any inaccuracy in any representation or warranty of Seller contained in ARTICLE IV ; or
 
(ii)                                   any material breach by Seller of any covenant or other obligation of Seller contained in this Agreement.
 
(b)                                  Indemnification Obligation of Buyer .  Subject to the provisions of this ARTICLE VIII (including Section 8.2 ), from and after the Closing Date, Buyer agrees to indemnify and hold harmless Seller and its Affiliates (excluding the Buyer Group) and its and their respective officers, directors (or equivalents), employees, contractors, agents and Representatives (collectively, the “ Seller Group ”), from and against any and all Losses incurred by the Seller Group which result from, relate to or arise out of the following:
 
(i)                                      any inaccuracy in any representation or warranty of Buyer contained in ARTICLE V ;
 
(ii)                                   any material breach by Buyer of any covenant or other obligation of Buyer contained in this Agreement; or
 
(iii)                                any of the liabilities or other obligations of Buyer that result from, relate to or arise out of or under the Purchase Agreement or the R&W Policy with respect to the Purchase Agreement, except to the extent resulting from actions of Buyer under the Purchase Agreement (other than any such actions taken at the request or with the consent of Seller).
 
Section 8.2                                    Limitations on Liability .
 
(a)                                  Liability Cap . Notwithstanding anything to the contrary in this Agreement or otherwise, the maximum aggregate amount that may be recovered by the Buyer Group or Seller Group under this Agreement (i) for representations and warranties set forth in Section 4.1 , Section 4.2 , Section 4.5 , Section 4.7 , Section 5.1 , Section 5.2 , Section 5.6 and Section 5.7 (the “ Fundamental Representations ”), shall not exceed the Purchase Price, and (ii) for all representations and warranties set forth in ARTICLE IV and ARTICLE V , excluding the Fundamental Representations, shall not exceed ten percent (10%) of the Purchase Price.
 
(b)                                  Deductible .  No Party shall be liable for, and no amounts of indemnity shall be payable in the case of, any claim for any inaccuracy in any representation or warranty (other than any Fundamental Representation) unless and until the Indemnified Parties have suffered, incurred or sustained otherwise indemnifiable Losses hereunder (after giving effect to any application of any deductions in accordance with Section 8.2(d) ) in excess of an amount equal to one percent (1%) of the Purchase Price in
 
15 

 
the aggregate (the “ Deductible ”), in which event the Indemnified Parties shall be entitled to claim indemnity for Losses only to the extent such Losses exceed the Deductible.  Without limiting the generality of the foregoing, no Party shall be liable with respect to any individual claim for any inaccuracy in any representation or warranty (other than any Fundamental Representation) that results in otherwise indemnifiable Losses, and such Losses shall not be counted toward satisfaction of the Deductible, unless such Losses exceed an amount equal to fifteen/one hundredths of one percent (0.15%) of the Purchase Price.
 
(c)                                   Failure to Notify .  Neither Party shall have an obligation to indemnify the other Party with respect to a matter if such other Party fails to deliver written notification of a claim for indemnification under Section 8.3(a)  for such matter before the expiration of the applicable survival period set forth in Section 8.4 .
 
(d)                                  Insurance Proceeds and Tax Benefits .  Payments by either Party to the other Party with respect to which such Party has an indemnification obligation under this ARTICLE VIII , shall be limited to the amount of any liability or damage that remains after deducting therefrom an amount equal to any insurance proceeds or other similar payments received and any current cash Tax benefit realized as a result of such Losses by such Indemnified Party (as defined below) in the fiscal year in which such Losses were incurred.  Each Party shall use its Commercially Reasonable Efforts to recover under insurance policies or similar agreements for any Losses prior to seeking indemnification under this Agreement.  If the Indemnified Party receives insurance proceeds for Losses after an indemnification payment for such Losses has been made by the Indemnifying Party (as defined below) to the Indemnified Party, the Indemnified Party will refund the Indemnifying Party the amount of such insurance proceeds received by the Indemnified Party.
 
Section 8.3                                    Other Provisions Relating to Indemnification.
 
(a)                                  Notices, etc . Each Person entitled to indemnification pursuant to this Agreement (the “ Indemnified Party ”) shall, upon obtaining knowledge of facts indicating that it may have a basis for a claim for indemnification hereunder, including receipt by it of notice of any demand, assertion, claim or proceeding by any Third Party (any such Third Party proceeding being referred to as a “ Third Party Action ”) with respect to any matter as to which it may be entitled to indemnity hereunder, give notice thereof in writing to the Person obligated hereunder to provide such indemnification (the “ Indemnifying Party ”) together with a reasonably detailed statement identifying the basis of and facts underlying such claim and a good faith estimate of the Indemnified Party’s Losses.  For the avoidance of doubt, an Indemnifying Party shall have no obligation to provide indemnification pursuant to this ARTICLE VIII in the event the Indemnified Party’s written notification states only a general demand for indemnification which fails to identify a specific Loss or Third Party Action relating to such claim or demand.
 
(b)                           Right to Contest and Defend . The Indemnifying Party shall be given the opportunity, at its cost and expense, to contest and defend by all appropriate legal proceedings any Third Party Action with respect to which it is called upon to indemnify the Indemnified Party under the provisions of this Agreement; provided , however , that notice of the intention to contest and defend shall be delivered by the Indemnifying Party to the Indemnified Party within thirty (30) days following receipt of the notice provided for in Section 8.3(a)  above.  Any Third Party Action which the Indemnifying Party elects to contest and defend may be conducted in the name and on behalf of the Indemnifying Party or the Indemnified Party as may be appropriate.  Such Third Party Action shall be conducted by counsel employed by the Indemnifying Party, but the Indemnified Party shall have the right to participate in such Third Party Action and to be represented by counsel of its own choosing at its
 
16 

 
cost and expense; provided that, if the defendant(s) in any Third Party Action include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party shall have reasonably concluded that (i) there may be legal defenses available to it that are inconsistent with those defenses available to the Indemnifying Party, or (ii) there is a conflict of interest that would prevent counsel for the Indemnifying Party from also representing the Indemnified Party (clauses (i) and (ii) collectively, “ Differences or Conflicts ”), then the Indemnified Party shall have the right to engage separate counsel at the cost and expense of the Indemnifying Party.  If the Indemnified Party joins in any such Third Party Action, the Indemnifying Party shall have full authority, absent any Differences or Conflicts, to determine all action to be taken with respect thereto.  At any time after the commencement of defense of any Third Party Action, the Indemnifying Party may request the Indemnified Party to agree in writing to the abandonment of such contest or to the payment, compromise or settlement by the Indemnifying Party of the asserted Third Party Action, which consent, absent any Differences or Conflicts, shall not be unreasonably withheld; provided , however , that the Indemnified Party shall not be required to consent to the abandonment of such contest or to the payment, compromise or settlement of such asserted Third Party Action if the result would be: (A) a finding or admission of any violation of Laws by the Indemnified Party (or any Affiliate thereof), (B) an adverse effect on any other Third Party Actions or claims of a similar nature that may be made against the Indemnified Party (or any Affiliate thereof), or (C) any remedy other than monetary damages which will be paid in full by the Indemnifying Party.
 
(c)                                   Cooperation .  If reasonably requested by the Indemnifying Party, the Indemnified Party agrees to cooperate with the Indemnifying Party and its counsel in contesting any Third Party Action which the Indemnifying Party elects to contest or, if appropriate, in making any counterclaim against the Person asserting the Third Party Action, or any cross-complaint against any Person; provided that the Indemnifying Party shall reimburse the Indemnified Party for any reasonable expenses incurred by it in so cooperating at the request of the Indemnifying Party.
 
(d)                                  Right to Participate .  The Indemnified Party agrees, if reasonably requested by the Indemnifying Party, to afford the Indemnifying Party and its counsel the opportunity, at the Indemnifying Party’s expense, to be present at, and to participate in, conferences with all Persons asserting any Third Party Action against the Indemnified Party and conferences with representatives of or counsel for such Persons.
 
(e)                                   Duty to Mitigate .  The Parties shall have a duty to mitigate any Losses to which a right to indemnity applies hereunder, including all reasonable steps to mitigate such potential Losses upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise to any Losses.
 
(f)                                    Exclusive Remedy . Except in the case of fraud, from and after the Closing Date, the indemnification provisions contained in this ARTICLE VIII shall constitute the sole remedy of the Parties for all claims arising from or relating to this Agreement or any of the instruments or transactions contemplated hereby (other than any remedies that are expressly set forth in any Operative Document), and each Party hereby releases the other Party from all other claims and causes of action, whether arising in Contract, in tort, or under any other legal theory arising from or relating to such circumstances.  The Parties acknowledge and agree that the indemnification provisions contained in this ARTICLE VIII (including this Section 8.3(f) ) have been specifically bargained for at arm’s length with the assistance of competent counsel and are reflected in the Purchase Price.  For the avoidance of doubt, an Indemnifying Party shall have no obligation to provide indemnification pursuant to this ARTICLE VIII in the event the Indemnified Party’s written notification states only a general demand for
 
17 

 
indemnification which fails to identify a specific Loss or Third Party Action relating to such claim or demand.
 
(g)                                   No Duplication of Remedies .  In no event shall either Party be entitled to duplicate compensation with respect to any claims or any breach of representation, warranty or agreement herein asserted under the terms of this Agreement, even though such claim or breach may be addressed by more than one provision of this Agreement.
 
(h)                                  Severability of Indemnification Provisions .  If any indemnity obligation set forth in this ARTICLE VIII or the application of any part thereof is held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction under applicable Laws, then, but only in such event, such indemnity obligation or part thereof shall be modified, read, construed and enforced to the maximum extent permitted by applicable Laws, and any remaining obligations or part thereof of such indemnity obligation that is valid and enforceable shall remain in full force and effect and be binding on the Parties.
 
(i)                                      Tax Treatment of Indemnity Payment . Parties agree to treat any indemnity payment made pursuant to this ARTICLE VIII as an adjustment to the Purchase Price, for all Tax purposes, unless otherwise required by applicable Laws.
 
(a)                                  Calculation .  In calculating any Losses suffered or incurred by any Party as a result of a breach or inaccuracy of a representation or warranty by the other Party, no effect shall be given to any qualification or limitation as to “materiality” or similar qualifications or limitations.
 
Section 8.4                                    Survival of Provisions and Indemnification Obligations.
 
(a)                                  The representations and warranties in this Agreement and the covenants and obligations set forth herein required to be performed prior to the Closing shall survive for six (6) months after the Closing Date; provided , that the Fundamental Representations shall survive indefinitely.  For avoidance of doubt, the covenants and obligations set forth herein required to be performed from and after the Closing shall survive and be enforceable (subject to the limitations set forth in this ARTICLE VIII ) after the Closing until fully performed; provided , that the indemnification obligations set forth in Section 8.1(a)(i)  and Section 8.1(b)(i)  shall survive the Closing until termination as provided in this Section 8.4 .
 
(b)                                  If an Indemnified Party shall have, before the expiration of the applicable survival period set forth in Section 8.4(a) , previously made a claim by delivering a notice pursuant to Section 8.3(a)  to the applicable Indemnifying Party, then any representation or warranty that would otherwise terminate in accordance with Section 8.4(a)  above shall continue to survive until the related claim for indemnification has been satisfied or otherwise resolved in accordance with this Agreement.
 
ARTICLE IX.
GENERAL PROVISIONS
 
Section 9.1                                  Damages .  Notwithstanding anything herein to the contrary, the Parties agree that the indemnification obligations of each Party hereto, and the recovery by any Party hereto or indemnitee of any Losses suffered by or incurred by it as a result of any breach or nonfulfillment by a Party hereto of any of its representations, warranties, covenants, agreements or other obligations under this Agreement, shall be limited to actual direct damages, and no Party shall be liable for consequential, incidental, exemplary, special, indirect or punitive damages arising under or in connection with this Agreement or otherwise as a result of, relating to or arising from the relationship between the
 
18 

 
Parties hereunder, whether in Contract, tort (including negligence), strict liability or otherwise, or whether or not the Person at fault knew, or should have known, that such damage would be likely suffered (collectively, “ Consequential Damages ”).  The exclusion of Consequential Damages as set forth in the preceding sentence shall not apply to any such damages sought by Third Parties against an Indemnified Party in connection with Losses for which indemnification is owed pursuant to ARTICLE VIII .
 
Section 9.2                                  Amendment and Modification .  Subject to applicable Laws, this Agreement may only be amended, modified and supplemented by written agreement of the Parties to this Agreement.
 
Section 9.3                                    Specific Performance .  Each Party acknowledges and agrees that if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, the other Party would be damaged irreparably and monetary damages may not be a sufficient remedy.  Accordingly, each Party agrees that the other Party shall be entitled to enforce specifically this Agreement and the terms and provisions hereof in court, subject to Section 9.8(b) .
 
Section 9.4                                    Waiver of Compliance . Any failure of Seller, on the one hand, or Buyer, on the other hand, to comply with any obligation, covenant, agreement or condition contained in this Agreement may be expressly waived in writing by the non-failing Party, but such waiver or failure to insist upon strict compliance shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
 
Section 9.5                                    Notices . All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been given (i) if delivered by hand (with written confirmation of receipt), (ii) when received by the addressee if sent by courier service (with all fees prepaid and receipt requested), (iii) on the third day after the date mailed if mailed, by certified or registered mail (with postage prepaid and return receipt requested), or (iv) on the date sent if transmitted by facsimile or by e-mail (with confirmation of transmission), or on the next Business Day if transmitted by facsimile or by e-mail after 5:00 p.m. ET on any such day (with confirmation of transmission):

If to Seller:	c/o ArcLight Capital Partners, LLC	
 	200 Clarendon Street, 55 th  Floor	
 	Boston, MA 02117	
 	Attention: Christine Miller	
 	Associate General Counsel	
 	Facsimile: (617) 867-4698	

with a copy to:	Latham & Watkins LLP	
 	885 Third Avenue	
 	New York, NY 10022	
 	Attention:	David S. Allinson	
 	 	Christopher G. Cross	
 	Facsimile:	(212) 751-4864	
 
19 

 

If to Buyer, to:	1400 16th Street, Suite 310	
 	Denver, CO 80202	
 	Attention: William B. Mathews	
 	Senior Vice President and General Counsel	
 	Facsimile: (720) 457-6040	
 	 	
with a copy to:	Holland & Hart	
 	555 Seventeenth Street, Suite 3200	
 	Denver, CO 80202	
 	Attention: Lucy Stark	
 	Facsimile: (303) 295-8261	
 	 	
with a further copy to:	Thompson & Knight LLP	
 	333 Clay Street, Suite 3300	
 	Houston, TX 77002	
 	Houston, Texas	
 	Attention: Alan Baden	
 	Facsimile: (832) 397-8044	
 
All Notices shall be deemed to be effectively given upon receipt.  Either Party may change its Notice address by giving written Notice to the other Party in the manner specified above.
 
Section 9.6                                    Assignment .  This Agreement and all of the provisions of this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and their respective successors and permitted assigns, but neither Party may assign this Agreement nor any of the rights, interests or obligations under this Agreement (by operation of Law or otherwise) without the prior written consent of the other Party, except that, to the extent permissible under applicable Laws or applicable Contracts, Buyer may assign its rights hereunder to one or more of its Affiliates without such consent at any time after the Closing. Notwithstanding any assignment by a Party hereunder, the assigning Party shall in all events remain primarily liable for the performance of all of its obligations hereunder, unless the other Party consents in writing and the proposed assignee expressly assumes as a condition to such assignment all of the assigning Party’s performance obligations hereunder. Any purported assignment in violation of this Section 9.6 shall be voidable at the option of the non-assigning Party.
 
Section 9.7                                    No Third Party Beneficiaries .  Except as provided in ARTICLE VIII , this Agreement is solely for the benefit of Seller and Buyer and their respective successors and assigns, and nothing in this Agreement shall confer any rights upon any other Person.
 
Section 9.8                                    Governing Law; Venue; Jury Trial Waiver .
 
(a)                                  THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY CHOICE OF LAW RULES WHICH MAY DIRECT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION; PROVIDED THAT THE VALIDITY AND ENFORCEABILITY OF ALL CONVEYANCE DOCUMENTS OR INSTRUMENTS EXECUTED AND DELIVERED PURSUANT TO THIS AGREEMENT INSOFAR AS THEY AFFECT TITLE TO REAL PROPERTY, IF THERE ARE ANY SUCH DOCUMENTS OR
 
20 

 
INSTRUMENTS, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE JURISDICTION IN WHICH SUCH REAL PROPERTY IS LOCATED.
 
(b)                                  Each of the Parties hereby irrevocably and unconditionally submits to the exclusive jurisdiction of (i) the Delaware Court of Chancery or (ii) only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any Federal court of United States sitting in the State of Delaware and any appellate court from any thereof, with respect to any proceeding relating to this Agreement.  Further, each of the Parties hereby irrevocably and unconditionally waives any objection or defense that it may have based on improper venue or forum non conveniens to the conduct of any such proceeding in any such courts.  The Parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the Parties to waive irrevocably any objections to jurisdiction, venue or to convenience of forum.  Each of the Parties (on behalf of itself and its Affiliates) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law or in equity.
 
(c)                                   WITH RESPECT TO ANY ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY.
 
Section 9.9                                    Counterparts .  This Agreement may be executed in one or more counterparts (including by means of facsimile or a portable document format (.pdf)), each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
 
Section 9.10                             Headings .  The headings contained in this Agreement are inserted for convenience only, do not constitute a part of this Agreement, and are in no way to be construed as a limitation on the scope of particular sections to which they refer.
 
Section 9.11                             Entire Agreement . Except for the Confidentiality Agreement, this Agreement (including the Exhibits, Schedules, and the Operative Documents, which form a part of this Agreement) embodies the entire agreement and understanding of the Parties in respect of the subject matter contained herein and therein and supersedes all prior and contemporaneous agreements and understandings between the Parties with respect to such subject matter.  There are no, and neither Party shall have any, remedies or causes of action (whether in Contract or in tort, or under any other legal theory) for any, restrictions, promises, statements, warranties, covenants, or undertakings with respect to the transactions contemplated hereby and thereby, other than those expressly set forth or referred to in this Agreement.
 
21 

 
Section 9.12                             Representation By Counsel; No Strict Construction .  Buyer and Seller acknowledge and agree that (a) the Parties have participated jointly in the negotiation and drafting of this Agreement, (b) each of them has been represented by counsel in connection with the negotiation of this Agreement and the transactions contemplated hereby and (c) the language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any rule of Law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the Party that drafted it shall have no application and is expressly waived.
 
Section 9.13                             Severability .  Whenever possible, each provision or part thereof of this Agreement shall be interpreted in such manner as to be valid and effective under applicable Laws, but if any provision or part thereof of this Agreement or the application of any such provision or part thereof to any Person or circumstance shall be held invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision or part thereof.
 
Section 9.14                             Expenses and Remittances .
 
(a)                                  The Parties acknowledge and agree that (i) the Purchase Price includes all reasonable out-of-pocket costs and expenses incurred by Seller in connection with (A) the procurement of the R&W Policy and (B) the preparation, negotiation, execution, delivery and the performance and consummation of the transactions contemplated by this Agreement and the Operative Documents, including fees and expenses of counsel, accountants, consultants and other advisors (such costs and expenses described in clauses (A) and (B), regardless of whether paid prior to, on or after the date hereof are the “ Seller Transaction Expenses ”) to the extent paid by Seller prior to the date hereof, and, (ii) from and after the date hereof, Buyer shall be responsible for, and shall promptly reimburse Seller upon receipt of reasonable documentation evidencing, any and all Seller Transaction Expenses incurred prior to the date hereof to the extent paid by Seller from and after the date hereof; provided , that the aggregate amount of Seller Transaction Expenses paid or payable under clause (ii) of this Section 9.14(a)  shall not exceed $125,000.  Except as provided for in this Section 9.14(a)  or as otherwise specifically provided for in this Agreement, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such costs and expenses.
 
(b)                                  From and after the date hereof, Seller shall pay to Buyer any amounts received as distributions with respect to any period after the date hereof under the Okeanos LLC Agreement promptly upon receipt thereof, if and to the extent that Seller receives any such amounts.
 
Section 9.15                             Confidentiality; Records; Responsibilities as of the Closing .
 
(a)                                  Confidentiality .  Buyer acknowledges that all information provided to any of it and its Affiliates (including, for the avoidance of doubt, American Midstream Partners, LP and American Midstream GP, LLC), their respective directors (or equivalents) (including Buyer Parent GP Board and the Conflicts Committee), officers, employees, counsel, auditors, accountants, agents, advisors and other Representatives in connection with the transactions contemplated by this Agreement or the Purchase Agreement is subject to the terms of the Confidentiality Agreement, the terms of which are hereby incorporated herein by reference; provided , that in the event of any conflict between any term or condition of this Agreement and the terms or conditions of the Confidentiality Agreement, the terms and
 
22 

 
conditions of this Agreement shall govern, unless otherwise expressly provided herein.  Effective upon the Closing, the Confidentiality Agreement shall terminate only with respect to information provided to any of Buyer or its Affiliates (including, for the avoidance of doubt, American Midstream Partners, LP and American Midstream GP, LLC), their respective directors (or equivalents) (including Buyer Parent GP Board and the Conflicts Committee), officers, employees, counsel, auditors, accountants, agents, advisors and other Representatives that relates solely to the Company Interests, the Pipeline System and the Assumed Liabilities.  Buyer acknowledges that any and all information provided or made available to it or any of its Affiliates (including, for the avoidance of doubt, American Midstream Partners, LP and American Midstream GP, LLC), their respective directors (or equivalents) (including Buyer Parent GP Board and the Conflicts Committee), officers, employees, counsel, auditors, accountants, agents, advisors and other Representatives in connection with the transactions contemplated by this Agreement or the Purchase Agreement (other than information relating solely to the Company Interests, the Pipeline System and the Assumed Liabilities) are subject to the terms and conditions of the Confidentiality Agreement on and after the Closing Date.
 
(b)                                  Records .  After the Closing Date, Seller shall have the right to retain copies of books, records and accounts relating to the Company Interests or the Pipeline System.  For a period of seven (7) years following the Closing Date, Buyer shall provide to Seller (and their respective counsel, auditors, accountants, agents, advisors or other Representatives) reasonable access to and permission to make and retain copies of any books, records or accounts relating to the Company Interests or the Pipeline System in Buyer’s possession and control (and if not in Buyer’s possession or control, then Buyer shall direct the Company in favor of providing the same). Seller shall consult with Buyer so that such visits do not unreasonably interfere with Buyer’s normal operations.  Buyer shall not destroy or dispose (or direct or cause the Company to destroy or dispose) of any such books, records and accounts for a period of at least seven (7) years after the Closing Date without first giving reasonable prior notice thereof and offering to surrender to Seller such books, records and accounts which Buyer or the Company may intend to destroy or dispose of.
 
(c)                                   Responsibilities as of the Closing .  As of the Closing, Buyer shall assume all responsibilities and obligations attributable in any way as the owner of record of the Company Interests, including any responsibilities and obligations attributable with respect to the Pipeline System as a result of being an owner of such Company Interests.  As of the Closing, Buyer shall not be entitled to the benefit of any property owned by Seller that is not related to the Company Interests.  Buyer and Seller acknowledge and agree that the operator of the Pipeline System after the Closing will be determined in accordance with the Company’s Governing Instruments then in effect.
 
Section 9.16                             Public Announcements .  The Parties shall not (and shall cause their Affiliates not to) issue any press release or make any public announcement relating to the subject matter of this Agreement unless such Party has first consulted with the other Party and obtained the other Party’s prior written approval of the text thereof, which approval shall not be unreasonably withheld or delayed; provided , however , that a Party may make any public disclosure it believes in good faith is required by applicable Laws or any listing or trading agreement concerning its publicly traded securities (in which case the disclosing Party will provide the other Party reasonable advance notice and consultation regarding timing and content of the announcement or statement and with the further understanding that the Party not required to make such announcement or statement shall have the right to issue its own announcement or statement in connection with or in response to any such required public announcement or statement).
 
23 

 
Section 9.17                             Further Assurances .  Each Party shall execute and deliver such instruments and take such other actions as the other Party may reasonably request in order to carry out the intent of this Agreement.  Without limiting the generality of the foregoing, (a) promptly upon the request of Seller following the Closing, Buyer shall enter into a customary assignment and assumption agreement with Seller pursuant to which Seller shall assign and delegate, and Buyer shall accept and assume, all of Seller’s obligations under the Purchase Agreement; provided , that Seller shall have received Mardi Gras Transportation System, Inc.’s consent to such assignment and (b) from and after the Closing and until Seller shall have assigned and delegated, and Buyer shall have accepted and assumed, all of Seller’s obligations under the Purchase Agreement pursuant to and in accordance with clause (a) of this Section 9.17 , Buyer shall reasonably cooperate with Seller in connection with the performance or other satisfaction of Seller’s obligations under the Purchase Agreement, and Seller shall reasonably cooperate with Buyer in connection with the enforcement or other exercise of Buyer’s rights under the Purchase Agreement.
 
[ Signature pages follow. ]
 
24 

 
IN WITNESS WHEREOF, the Parties have caused this Purchase and Sale Agreement to be duly executed and delivered as of the date first set forth above.

 	SELLER:	
 	 	
 	EMERALD MIDSTREAM, LLC	

 	By:	/s/ Daniel R. Revers	
 	Name:	Daniel R. Revers	
 	Title:	President	
 
Signature Page to Purchase and Sale Agreement

 

 	BUYER:	
 	 	
 	AMERICAN MIDSTREAM EMERALD, LLC	

 	By:	/s/ Daniel C. Campbell	
 	Name:	Daniel C. Campbell	
 	Title:	SVP & CFO	

Exhibit 2.3
 
Execution Version
 
PURCHASE AGREEMENT
 
BY AND BETWEEN
 
MAGNOLIA INFRASTRUCTURE HOLDINGS, LLC
 
AS SELLER
 
AND
 
AMERICAN MIDSTREAM DELTA HOUSE, LLC
 
AS BUYER

 
TABLE OF CONTENTS

 	 	Page	
 	 	
ARTICLE I DEFINITIONS	1	
Section 1.01	Definitions	1	
Section 1.02	Rules of Interpretation	4	
 	 	 	
ARTICLE II SALE AND PURCHASE	5	
Section 2.01	Sale and Purchase	5	
Section 2.02	Closing	5	
Section 2.03	Seller Deliverables	6	
Section 2.04	Buyer Deliverables	6	
Section 2.05	Withholding	6	
 	 	 	
ARTICLE III REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER	6	
Section 3.01	Organization	6	
Section 3.02	Validity of Agreement; Authorization	7	
Section 3.03	Consents and Approvals	7	
Section 3.04	Noncontravention	7	
Section 3.05	Ownership, Due Authorization and Transfer of Purchased Interest	7	
Section 3.06	Litigation	7	
Section 3.07	Financial Advisors	8	
 	 	 	
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER	8	
Section 4.01	Organization	8	
Section 4.02	Validity of Agreement; Authorization	8	
Section 4.03	Consents and Approvals	8	
Section 4.04	Noncontravention	8	
Section 4.05	Investment Intent	9	
Section 4.06	Available Funds	9	
Section 4.07	Financial Advisors	9	
Section 4.08	Litigation	9	
 	 	 	
ARTICLE V COVENANTS	9	
Section 5.01	Transfer Taxes	9	
Section 5.02	Tax Characterization	9	

ii 

 

 	 	Page	
 	 	 	
Section 5.03	Further Assurances	10	
 	 	 	
ARTICLE VI INDEMNIFICATION	10	
Section 6.01	Survival of Representations and Warranties	10	
Section 6.02	Indemnification	10	
Section 6.03	Indemnification Procedure	11	
Section 6.04	Limitations	12	
Section 6.05	Calculation of Losses	12	
Section 6.06	No Duplication	12	
Section 6.07	Tax Treatment of Indemnity Payments	12	
Section 6.08	Exclusive Remedy	13	
 	 	 	
ARTICLE VII MISCELLANEOUS	13	
Section 7.01	Amendments and Modifications	13	
Section 7.02	Waiver	13	
Section 7.03	Notices	13	
Section 7.04	Governing Law	14	
Section 7.05	Consent to Jurisdiction; Waiver of Jury Trial	14	
Section 7.06	Assignment; Third-Party Beneficiaries	15	
Section 7.07	Expenses	15	
Section 7.08	Specific Performance	15	
Section 7.09	Entire Agreement	15	
Section 7.10	Severability	15	
Section 7.11	Facsimiles; Electronic Transmission; Counterparts	16	
 	 	 	
EXHIBITS AND SCHEDULES	 	
Exhibit A	Assignment and Assumption Agreement	 	
Schedule 1.01(a)	Seller Knowledge	 	
Schedule 1.01(b)	Buyer Knowledge	 	
Schedule 2.01(b)	Wire Transfer Instructions	 	

iii 

 
PURCHASE AGREEMENT
 
This PURCHASE AGREEMENT (this “ Agreement ”), dated as of April 25, 2016, is entered into between Magnolia Infrastructure Holdings, LLC, a Delaware limited liability company (the “ Seller ”), and American Midstream Delta House, LLC, a Delaware limited liability company (the “ Buyer ”).
 
WHEREAS, Seller is (a) the sole and managing member of D-Day Offshore Holdings, LLC, a Delaware limited liability company (“ D-Day ”), and (b) a party to that certain Limited Liability Company Operating Agreement of D-Day, dated as of February 22, 2016, (the “ LLC Agreement ”);
 
WHEREAS, the Seller owns 100% of the outstanding membership interest of D-Day the (“ Purchased Interest ”); and
 
WHEREAS, the Buyer desires to purchase from the Seller, and the Seller desires to sell to the Buyer, the Purchased Interest, upon the terms and subject to the conditions set forth in this Agreement.
 
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, the Buyer and the Seller hereby agree as follows:
 
ARTICLE I 
DEFINITIONS
 
Section 1.01                              Definitions .  As used in this Agreement, and unless the context otherwise requires, the following terms have the meanings specified or referred to in this Section 1.01 :
 
“ Affiliate ” means (i) 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 such Person, including any affiliated investment funds or any investment funds with a common principal advisor and (ii) with respect to any natural person, any spouse, lineal descendants, parents or siblings of such natural persons.  For purposes of this Agreement and the other Transaction Documents and notwithstanding anything herein or therein to the contrary, Buyer shall not be considered an Affiliate of Seller and Seller shall not be considered an Affiliate of Buyer.
 
“ Agreement ” has the meaning specified in the preamble of this Agreement.
 
“ Assignment and Assumption Agreement ” means the assignment and assumption agreement to be entered into by Buyer and Seller in connection with the consummation of the transactions contemplated hereby, substantially in the form attached hereto as Exhibit A .
 
“ Business Day ” means any day other than a Saturday, a Sunday or a legal holiday for commercial banks in New York, New York.
 
1 

 
“ Buyer ” has the meaning specified in the preamble of this Agreement.
 
“ Buyer Indemnified Parties ” has the meaning specified in Section 6.02(a) .
 
“ Buyer Parent GP Board ” has the meaning set forth in Section 4.02 .
 
“ Claim ” has the meaning specified in Section 6.03(a) .
 
“ Claim Notice ” has the meaning specified in Section 6.03(a) .
 
“ Closing ” has the meaning specified in Section 2.02 .
 
“ Closing Date ” has the meaning specified in Section 2.02 .
 
“ Code ” means the Internal Revenue Code of 1986, as amended.
 
“ Commission ” means the United States Securities and Exchange Commission.
 
“ Conflicts Committee ” has the meaning set forth in Section 4.02 .
 
“ Contract ” means any contract, agreement, indenture, note, bond, mortgage, loan, instrument, evidence of Indebtedness, security agreement, lease, easement, right of way agreement, sublease, license, commitment, subcontract, or other arrangement, understanding, undertaking, commitment, or obligation, whether written or oral.
 
“ Control ” means with respect to any Person, the ability or power, directly or indirectly, through one or more intermediaries, to direct or cause the direction of the management of such Person, whether through ownership of voting securities, by contract or otherwise; provided , that a natural person cannot be “Controlled by” or “under common Control” with another Person.
 
“ 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.
 
“ Indebtedness ” means, with respect to any Person, all of the following obligations of such Person, without duplication: (a) obligations for indebtedness for borrowed money or for the deferred purchase price of property, goods or services; (b) obligations for indebtedness evidenced by a note, bond, debenture or similar instrument; (c) reimbursement obligations with respect to draws under outstanding letters of credit, surety bonds, acceptances and similar obligations created for the account of such Person; (d) obligations under any commodity swap agreements, commodity cap agreements, interest rate cap agreements, interest rate swap agreements, foreign currency exchange agreements, hedging agreements and other similar agreements; and (e) guarantees of any of the foregoing of another Person, in each case of clauses (a) through (e), together with all accrued interest thereon, if any, and any termination fees, redemption or prepayment premiums or penalties, “breakage” costs or similar costs, expenses and payments associated with the repayment of or default under such indebtedness.
 
2 

 
“ Indemnified Party ” means any of the Buyer Indemnified Parties or the Seller Indemnified Parties.
 
“ Indemnifying Party ” has the meaning specified in Section 6.03(a) .
 
“ Knowledge ” means the actual knowledge after due inquiry of, in the case of the Seller, the individuals listed in Schedule 1.01(a)  and, in the case of the Buyer, the individuals listed in Schedule 1.01(b) .
 
“ 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.
 
“ Lien ” means with respect to any property or asset, any mortgage, deed of trust, proxy, voting or similar agreement, legal or equitable lien, encumbrance, encroachment, reservation, attachment, servitude, pledge, assessment, levy, charge, security interest, warrant, claim, equitable interest, option, right of first refusal or offer, put or call, transfer or security for the payment of any Indebtedness, or restriction or limitation on the creation of any of the foregoing, whether relating to any property or right or the income or profits therefrom.
 
“ LLC Agreement ” has the meaning specified in the recitals to this Agreement.
 
“ Loss ” has the meaning specified in Section 6.02(a) .
 
“ 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, with respect to Buyer or Seller, as applicable, its certificate of formation and the operating or limited liability company agreement or regulations thereof, or any comparable organizational, constituent or governing documents or instruments.
 
“ Party ” means, as applicable, the Buyer or the Seller.
 
“ Permitted Liens ” means (a) Liens existing under the LLC Agreement and (b) restrictions on sales of securities under applicable securities Laws.
 
“ 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
 
3 

 
agency thereof, and the heirs, executors, administrators, legal representatives, successors, and assigns of such “Person” where the context so permits.
 
“ 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.
 
“ Purchased Interest ” has the meaning specified in the recitals of this Agreement.
 
“ Purchase Price ” has the meaning specified in Section 2.01(a) .
 
“ Remedies Exception ” means the extent to which enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally and by general equitable principles.
 
“ Securities Act ” means the Securities Act of 1933 and the rules and regulations of the Commission promulgated thereunder.
 
“ Seller ” has the meaning specified in the preamble of this Agreement.
 
“ Seller Indemnified Parties ” has the meaning specified in Section 6.02(b) .
 
“ Survival Period ” has the meaning specified in Section 6.01 .
 
“ Third Party Claim ” has the meaning specified in Section 6.03(b) .
 
“ Transaction Documents ” means, collectively, this Agreement, the Assignment and Assumption 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 ” means any transfer, sales, use, stamp, documentary, registration, conveyance, recording, or other similar tax or governmental fee (and any interest, penalty, or addition imposed by a Governmental Authority with respect thereto) incurred as a result of the consummation of the transactions contemplated hereby, excluding any withholding tax and any tax measured by reference to net income or capital gain.
 
Section 1.02                              Rules of Interpretation .  The definitions in Section 1.01 shall apply equally to both the singular and plural forms and to correlative forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”  The words “herein”, “hereof” and “hereunder” and words of similar import refer to this Agreement (including the Exhibits and Schedules to this Agreement) in its entirety and not to any part hereof unless the context shall otherwise require.  All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise require.  Unless the context shall otherwise require, any references to any Contract
 
4 

 
(including this Agreement) or Law shall be deemed to be references to such Contract or Law as amended, supplemented or modified from time to time in accordance with its terms and the terms hereof, as applicable, and in effect at any given time (and, in the case of any Law, to any successor provisions). Any reference to any federal, state, local, or foreign statute or Law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context shall otherwise require.  Unless the context shall otherwise require, references to any Person include references to such Person’s successors and permitted assigns, and in the case of any Governmental Authority, to any Person(s) succeeding to its functions and capacities.  Unless the context shall otherwise require, the word “or” shall not be exclusive and shall have the inclusive meaning of “and/or”.  Any reference in this Agreement to a “day” or a number of “days” (without explicit reference to “Business Days”) shall be interpreted as a reference to a calendar day or number of calendar days.  If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day.
 
ARTICLE II 
SALE AND PURCHASE
 
Section 2.01                              Sale and Purchase .
 
(a)                                  Subject to the terms and conditions of this Agreement, at the Closing, the Seller hereby agrees to sell to the Buyer, and the Buyer hereby agrees to purchase from the Seller, all of the Seller’s right, title and interest in and to the Purchased Interest free and clear of any and all Liens (other than Permitted Liens), and in consideration therefor, the Buyer agrees to pay Seller $9,872,818.07 (the “ Purchase Price ”), in accordance with Section 2.01(b) .
 
(b)                                  The Purchase Price shall be paid at Closing in cash by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth on Schedule 2.01(b)  to the account designated therein.
 
(c)                                   The Buyer shall prepare a purchase price allocation, in accordance with applicable tax law (including Section 755 of the Code), for the assets and rights acquired by the Buyer as a result of the consummation of the transactions contemplated hereby and deliver the allocation to the Seller within ninety (90) days after the Closing Date.  Each Party shall prepare and file all tax returns in a manner consistent with the allocation; provided, however , that nothing contained herein shall prevent the Buyer or Seller from settling any proposed deficiency or adjustment by any taxing authority based upon or arising out of the Purchase Price allocation, and neither the Buyer nor Seller shall be required to litigate before any court any proposed deficiency or adjustment by any taxing authority challenging such Purchase Price allocation.
 
Section 2.02                              Closing .  On the terms and subject to the conditions set forth in this Agreement, the closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place (a) simultaneously with the execution of this Agreement at the offices of Latham & Watkins LLP, 885 Third Avenue, New York, New York 10022, or (b) at such other place or other time on the date hereof as the Parties may mutually agree, including via teleconference or electronic communication (the date and time on which the Closing takes place, the “ Closing Date ”).
 
5 

 
Section 2.03                              Seller Deliverables .  At the Closing, subject to the terms and conditions of this Agreement, the Seller shall deliver, or cause to be delivered, to the Buyer:
 
(a)                                  a counterpart duly executed by the Seller of the Assignment and Assumption Agreement;
 
(b)                                  a certificate duly executed by the Secretary or an Assistant Secretary of the Seller, dated as of the Closing Date, in customary form, attesting to the resolutions of the sole member of the Seller authorizing the execution and delivery of the Transaction Documents to which the Seller is a party and the consummation of the transactions contemplated hereby and thereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended as of the Closing Date; and
 
(c)                                   a properly executed affidavit, prepared in accordance with Treasury Regulations Section 1.1445-2(b)(2) and in form reasonably acceptable to the Buyer, certifying that the Seller is not a foreign person within the meaning of the Code.
 
Section 2.04                              Buyer Deliverables .  At the Closing, subject to the terms and conditions of this Agreement, the Buyer shall deliver, or cause to be delivered to the Seller:
 
(a)                                  payment of the Purchase Price in accordance with Section 2.01;
 
(b)                                  a counterpart duly executed by the Buyer of the Assignment and Assumption Agreement; and
 
(c)                                   a certificate duly executed by the Secretary or an Assistant Secretary of the Buyer, dated as of the Closing Date, in customary form, attesting to the resolutions of (i) the Conflicts Committee approving the transactions contemplated by the Transaction Documents and (ii) the Buyer Parent GP Board authorizing the execution and delivery of the Transaction Documents to which the Buyer is a party and the consummation of the transactions contemplated hereby and thereby, and certifying that such resolutions were duly adopted and have not been rescinded or amended as of the Closing Date.
 
Section 2.05                              Withholding .  The Buyer (or its assignee pursuant to Section 7.06 or its agent) may withhold from any payment hereunder any tax required by applicable Law to be withheld, and the tax withheld will be treated for all purposes hereof as paid to the Person with respect to which the withholding was made, to the extent that the withholding Person complies with applicable Law with respect to the withholding (including any applicable Law for depositing the tax withheld with a Governmental Authority).
 
ARTICLE III 
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
 
Except with respect to representations or warranties expressly made as of a specified date, the Seller represents and warrant to the Buyer as of the date hereof as follows:
 
Section 3.01                              Organization .  The Seller is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization.
 
6 

 
Section 3.02                              Validity of Agreement; Authorization .  The Seller has the requisite power and authority to enter into the Transaction Documents to which it is a party, and to carry out its obligations thereunder.  The execution and delivery of the Transaction Documents and the performance of the Seller’s obligations thereunder have been duly authorized by the board of managers, board of directors or similar governing body of the Seller and no other proceedings on the part of the Seller is necessary to authorize such execution, delivery and performance.  Each of the Transaction Documents to which the Seller is a party has been duly executed and delivered by the Seller and constitutes the Seller’s valid and binding obligation, enforceable against the Seller in accordance with its terms (except to the extent that its enforceability may be limited by the Remedies Exception).
 
Section 3.03                              Consents and Approvals .  No consent, approval, waiver or authorization of, or filing, registration or qualification with any Governmental Authority or any other Person is required on the part of the Seller for the Seller to execute and deliver the Transaction Documents to which it is a party, or to perform its respective obligations thereunder, other than any consent, approval, waiver or authorization that would not, individually or in the aggregate, have a material adverse effect on the ability of the Seller to consummate the transactions contemplated by the Transaction Documents.
 
Section 3.04                              Noncontravention .  Neither the execution and delivery by the Seller of the Transaction Documents to which it is a party, nor the consummation by the Seller of the transactions contemplated thereby conflicts with any provision of the Organizational Documents of the Seller or violates any Law to which the Seller is subject, other than any conflict or violation that would not, individually or in the aggregate, have a material adverse effect on the ability of the Seller to consummate the transactions contemplated by the Transaction Documents.
 
Section 3.05                              Ownership, Due Authorization and Transfer of Purchased Interest .
 
(a)                                  The Seller is the record and beneficial owner of the Purchased Interest.
 
(b)                                  The Seller has good and valid title to the Purchased Interest free and clear of any and all Liens (other than Permitted Liens).  The Seller has the power, authority and legal capacity to sell, transfer, assign and deliver the Purchased Interest as provided in this Agreement, and such delivery will convey to the Buyer good and marketable title to such Purchased Interest free and clear of any and all Liens (other than Permitted Liens and those arising under this Agreement).
 
(c)                                   The Purchased Interest has been duly authorized and validly issued.
 
(d)                                  Other than the Buyer’s rights under this Agreement, there are no outstanding options, warrants or similar rights to purchase or acquire from the Seller all or any portion of the Purchased Interest.
 
Section 3.06                              Litigation .  As of the date hereof, there are no Proceedings pending or, to the Knowledge of the Seller, threatened, against the Seller or to which the Seller is otherwise a party or, to the Knowledge of the Seller, a threatened party, challenging the
 
7 

 
transactions contemplated by the Transaction Documents or otherwise relating to such transactions, the Purchased Interest or the Transaction Documents.
 
Section 3.07                              Financial Advisors .  The Seller has not incurred any Liability for fees of any broker, finder or financial advisor in respect of the transactions contemplated by this Agreement for which the Buyer will have any responsibility or Liability whatsoever.
 
ARTICLE IV 
REPRESENTATIONS AND WARRANTIES OF THE BUYER
 
Except with respect to representations or warranties expressly made as of a specified date, the Buyer represents and warrants to the Seller as of the date hereof as follows:
 
Section 4.01                              Organization .  The Buyer is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization.
 
Section 4.02                              Validity of Agreement; Authorization .  The Buyer has the requisite power and authority to enter into the Transaction Documents to which it is a party, and to carry out its obligations thereunder.  The execution and delivery of the Transaction Documents and the performance of the Buyer’s obligations thereunder have been duly authorized by the board of directors or similar governing body of the Buyer, and no other proceedings on the part of the Buyer are necessary to authorize such execution, delivery and performance.  Each of the Transaction Documents to which the Buyer is a party has been duly executed and delivered by the Buyer and constitutes the Buyer’s valid and binding obligation, enforceable against the Buyer in accordance with its terms (except to the extent that its enforceability may be limited by the Remedies Exception).  The transactions contemplated by the Transaction Documents to which Buyer is or will be a party have been approved by conflicts committee (“ Conflicts Committee ”) of the board of directors of American Midstream GP, LLC (the “ Buyer Parent GP Board ”) and the execution and delivery by Buyer of this Agreement and the other Transaction Documents to which Buyer is or will be a party, and the consummation of the transactions contemplated hereby and thereby, have been approved by the Buyer Parent GP Board, and such approvals have not been amended, repealed, revoked or rescinded and are in full force and effect as of the date hereof, and no other limited liability company actions are necessary on the part of Buyer to approve this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby.
 
Section 4.03                              Consents and Approvals .  No consent, approval, waiver or authorization of, or filing, registration or qualification with any Governmental Authority or any other Person is required on the part of the Buyer for the Buyer to execute and deliver the Transaction Documents to which it is  a party, or to perform its obligations thereunder, other than any consent, approval, waiver or authorization that would not, individually or in the aggregate, have a material adverse effect on the ability of the Buyer to consummate the transactions contemplated by the Transaction Documents.
 
Section 4.04                              Noncontravention .  Neither the execution and delivery by the Buyer of the Transaction Documents to which it is a party, nor the consummation by the Buyer of the transactions contemplated thereby conflicts with any provision of the Organizational
 
8 

 
Documents of the Buyer or violates any Law to which the Buyer is subject, other than any conflict or violation that would not, individually or in the aggregate, have a material adverse effect on the ability of the Buyer to consummate the transactions contemplated by the Transaction Documents.
 
Section 4.05                              Investment Intent .  The Buyer (a) is an “accredited investor” as defined in the Securities Act, (b) understands and has evaluated the risks associated with acquiring the Purchased Interest and (c) is not relying on any representations of Seller other than those set forth in Article III .  The Buyer agrees that it will not transfer all or any number of the Purchased Interest, or solicit offers to buy from or otherwise approach or negotiate in respect thereof with any Person or Persons whomsoever, all or any portion of the Purchased Interest in any manner that would violate the LLC Agreement or applicable securities Laws.  The Buyer is able to bear the economic risk of the investment contemplated hereunder, and has knowledge and experience in financial and business matters such that it is capable of evaluating the risks of the investment in the Purchased Interest.
 
Section 4.06                              Available Funds .  The Buyer has access to all of the funds necessary for the acquisition of all of the Purchased Interest pursuant to this Agreement, as and when needed, and to perform its obligations under this Agreement.
 
Section 4.07                              Financial Advisors .  The Buyer has not incurred any Liability for fees of any broker, finder or financial advisor in respect of the transactions contemplated by this Agreement for which the Seller will have any responsibility or Liability whatsoever.
 
Section 4.08                              Litigation .  As of the date hereof, there are no Proceedings pending or, to the Knowledge of the Buyer, threatened, against the Buyer or to which the Buyer is otherwise a party or, to the Knowledge of the Buyer, a threatened party, challenging the transactions contemplated by the Transaction Documents or otherwise relating to such transactions, the Purchased Interest or the Transaction Documents.
 
ARTICLE V 
COVENANTS
 
Section 5.01                              Transfer Taxes .  Notwithstanding Section 7.07, any Transfer Tax will be borne by the Buyer, and the Buyer will provide the Seller with evidence satisfactory to the Seller that all Transfer Taxes have been paid.  Each Party will prepare and timely file any tax return required by applicable Law to be filed by the Party in connection with Transfer Taxes; provided , that if any such tax return is required to be filed jointly by the Parties, then the Seller will prepare the tax return; provided , further , that with respect to any such tax return prepared by either Party, the preparing Party shall deliver such tax return to the other Party for the other Party’s review, within a reasonable period of time before the filing date, and the preparing Party will consider in good faith any revision that the other Party reasonably and promptly requests.
 
Section 5.02                              Tax Characterization .  The Parties intend and agree, solely for U.S. federal income tax purposes and for purposes of certain state income tax laws that incorporate or follow U.S. federal income tax principles, that the transactions contemplated by this Agreement taken together with the transactions contemplated by that certain Securities Purchase Agreement,
 
9 

 
by and among Seller and American Midstream Partners, LP, dated as of the date hereof shall, except as otherwise required by Section 707(a)(2)(B) and its implementing Treasury regulations (including, to the extent applicable, Treasury Regulation section 1.707-4(d) and Treasury Regulation section 1.721-2(b)(1)), be treated as contributions to American Midstream Partners, LP in exchange for a partner interest therein in a transaction consistent with the requirements of Section 721(a) of the Code.
 
Section 5.03                              Further Assurances .  Following the Closing, the Parties shall each execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.
 
ARTICLE VI 
INDEMNIFICATION
 
Section 6.01                              Survival of Representations and Warranties .  The representations and warranties of the Parties contained in this Agreement and any certificate delivered pursuant hereto and the covenants and agreements contained in this Agreement which by their terms are to be performed prior to the Closing shall survive the Closing and continue in full force and effect for a period of three (3) years thereafter, and the covenants and agreements contained in this Agreement and the other Transaction Documents which by their terms are to be performed after the Closing shall survive the Closing and continue in full force and effect until the performance of such covenants and agreements in accordance with their terms (the applicable period of survival of a representation, warranty, covenant or agreement being the “ Survival Period ”), and there shall be no liabilities or obligations with respect to any such representation, warranty, covenant or agreement from and after the expiration of its applicable Survival Period.  Notwithstanding the expiration of any Survival Period, any obligations under Section 6.02(a) and Section 6.02(b) shall not terminate with respect to any Losses as to which the Person to be indemnified shall have given notice to the Indemnifying Party in accordance with Section 6.03(a) before the expiration of the applicable Survival Period.
 
Section 6.02                              Indemnification .                                                 From and after the Closing, subject to Section 6.01 and Section 6.04, the Seller hereby agrees to indemnify and hold the Buyer, its Affiliates (excluding the Seller Indemnified Parties) and each of their respective equityholders, members, directors, managers, officers, employees, agents and representatives (collectively, the “ Buyer Indemnified Parties ”) harmless from and against, and pay to the applicable Buyer Indemnified Parties the amount of, any and all losses, liabilities, claims, obligations, deficiencies, demands, judgments, settlements, damages, interest, fines, penalties, claims, suits, actions, causes of action, assessments, awards, taxes, costs and expenses (including costs of investigation and defense and attorneys’ and other professionals’ fees), whether or not involving a Third Party Claim (a “ Loss ”) based upon, attributable to or resulting from (including any and all Proceedings, demands, or assessments arising out of):
 
(i)                                      any inaccuracy or breach of the representations or warranties made by the Seller in this Agreement or any certificate delivered pursuant hereto; or
 
10 

 
(ii)                                  any breach of any covenant or other agreement on the part of the Seller under this Agreement or any certificate delivered pursuant hereto.
 
(b)                                 From and after the Closing, subject to Section 6.01 and Section 6.04 , the Buyer hereby agrees to indemnify and hold the Seller, its Affiliates (excluding the Buyer Indemnified Parties) and each of their respective equityholders, members, directors, managers, officers, employees, agents and representatives (collectively, the “ Seller Indemnified Parties ”) harmless from and against, and pay to the applicable Seller Indemnified Parties the amount of, any and all Losses based upon, attributable to or resulting from (including any and all Proceedings, demands, or assessments arising out of):
 
(i)                                     any inaccuracy or breach of the representations or warranties made by the Buyer in this Agreement or any certificate delivered pursuant hereto; or
 
(ii)                                  any breach of any covenant or other agreement on the part of the Buyer under this Agreement or any certificate delivered pursuant hereto.
 
(c)                                  Materiality, material adverse effect and similar qualifiers contained in any representation or warranty, or in any defined term used therein, shall be disregarded for purposes of subsections (a)(i)  and (b)(i)  of this Section 6.02 in (i) determining any inaccuracy, untruth or breach of the representations or warranties contained herein and (ii) calculating the amount of Losses suffered by an Indemnified Party.
 
Section 6.03                             Indemnification Procedure .  Each Indemnified Party agrees that promptly after it becomes aware of facts giving rise to a claim by it for indemnification pursuant to Section 6.02 , such Indemnified Party will assert its claim for indemnification under Section 6.02 (each, a “ Claim ”) by providing a written notice (a “ Claim Notice ”) within the applicable Survival Period to the applicable indemnifying party (the “ Indemnifying Party ”) specifying, in reasonable detail, to the extent known by such Indemnified Party, the nature and basis for such Claim ( e.g. , the underlying representation, warranty or covenant alleged to have been breached and the condition or conduct allegedly resulting in such breach).  Notwithstanding the foregoing, an Indemnified Party’s delay in sending a Claim Notice will not relieve the Indemnifying Party from Liability hereunder with respect to such Claim except to the extent (and limited solely to the extent) of any material prejudice to the Indemnifying Party by such failure or delay; provided , that such Claim Notice is provided within the applicable Survival Period.
 
(b)                                 In the event that any Proceeding is instituted or any Claim is asserted by any Third Party in respect of which indemnification may be sought under Section 6.02 hereof and in respect of which the Indemnifying Party has agreed in writing to indemnify the Indemnified Party for all of such Indemnified Party’s Losses (subject to any applicable limitations in this Article VI ) (a “ Third Party Claim ”), the Indemnifying Party will have the right, at such Indemnifying Party’s expense, to assume the defense of the same, including the appointment and selection of counsel on behalf of the Indemnified Party, so long as such counsel is reasonably acceptable to the Indemnified Party.  If the Indemnifying Party elects to assume the defense of any such Third Party Claim, it shall within thirty (30) days notify the Indemnified Party in writing of its intent to do so.  Subject to Section 6.03(c) , the Indemnifying Party will have the right to settle or compromise or take any corrective or remedial action with respect to
 
11 

 
any such Third Party Claim by all appropriate proceedings, which proceedings will be diligently prosecuted by the Indemnifying Party to a final conclusion or settled at the discretion of the Indemnifying Party.  The Indemnified Party will be entitled, at its own cost, to participate with the Indemnifying Party in the defense of any such Third Party Claim, unless separate representation of the Indemnified Party by counsel is reasonably necessary to avoid a conflict of interest, in which case such representation shall be at the expense of the Indemnifying Party.  If the Indemnifying Party assumes the defense of any such Third Party Claim but fails to diligently prosecute such Third Party Claim, or if the Indemnifying Party does not assume the defense of any such Third Party Claim, the Indemnified Party may assume control of such defense and in the event the Third Party Claim is determined to be a matter for which the Indemnifying Party is required to provide indemnification under the terms of this Article VI , the Indemnifying Party will bear the reasonable costs and expenses of such defense (including fees and expenses of counsel).
 
(c)                                  Notwithstanding anything to the contrary in this Agreement, the Indemnifying Party will not be permitted to settle, compromise, take any corrective or remedial action or enter into an agreed judgment or consent decree or permit a default without the Indemnified Party’s prior written consent, in each case, that (i) does not include as an unconditional term thereof the delivery by the claimant or plaintiff to the Indemnified Party of a binding, irrevocable, written release of any Indemnified Party from all Liability, (ii) provides for any admission of Liability on the part of any Indemnified Party, (iii) requires an admission of guilt or wrongdoing on the part of any Indemnified Party or (iv) imposes any Liability or continuing obligation on or requires any payment from any Indemnified Party.
 
Section 6.04                             Limitations .  In no event shall the aggregate Liability of any Party for indemnifiable Losses hereunder exceed the Purchase Price.
 
(b)                                 No Indemnifying Party shall be liable under Section 6.02 for any special, incidental, consequential, multiplied, exemplary, speculative or punitive Losses, except to the extent that, (i) in the case of any special, incidental, consequential or multiplied Losses, any of the foregoing are the reasonably foreseeable result of a breach of this Agreement or (ii) the payment of such damages or amount of Losses is to a Person making a Third Party Claim in satisfaction of such Third Party Claim pursuant to this Agreement.
 
Section 6.05                             Calculation 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.
 
Section 6.06                             No 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 of the full amount of such Losses already 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.
 
12 

 
Section 6.07                             Tax Treatment of Indemnity Payments .  The Seller and the Buyer agree to treat any indemnity payment made pursuant to this Article VI as an adjustment to the Purchase Price for all tax purposes, unless otherwise required by Law.
 
Section 6.08                             Exclusive Remedy .  From and after the Closing, the indemnification provisions of this Article VI shall be the sole and exclusive remedy of any Indemnified Party for Losses, including claims for contribution or other rights of recovery arising out of or relating to claims for breach of Contract, breach of representation or warranty, negligent misrepresentation and all other claims for breach of duty that it may at any time suffer or incur, or become subject to, as a result of, or in connection with any misrepresentation, breach of warranty, covenant or other agreement or other claim arising out of this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby.  Notwithstanding the foregoing, the Buyer and the Seller agree that each Party shall retain all remedies at Law or in equity with respect to actual fraud.
 
ARTICLE VII 
MISCELLANEOUS
 
Section 7.01                             Amendments and Modifications .  This Agreement may be amended, modified or supplemented only by written agreement of the Parties.
 
Section 7.02                             Waiver .  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 7.03                             Notices .  All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by facsimile 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 Buyer:	
 	
1400 16th Street, Suite 310	
Denver, CO 80202	
Attention:	William B. Mathews	
Senior Vice President and General Counsel	
Facsimile:	(720) 457-6040	
 	 	
with a copy to:	
 	
Holland & Hart	
555 Seventeenth Street, Suite 3200	
Denver, CO 80202	
 
13 

 

Attention:	Lucy Stark	
Facsimile:	(303) 295-8261	
 	
with a further copy to:	
 	
Thompson & Knight LLP	
333 Clay Street, Suite 3300	
Houston, TX 77002	
Attention:	Alan Baden	
Facsimile:	(832) 397-8044	
 	
If to the Seller:	
 	
c/o ArcLight Capital Partners, LLC	
200 Clarendon Street, 55 th  Floor	
Boston, MA 02117	
Attention:	John F. Erhard; Joseph Alves	
Facsimile:	(617) 867-4698	
 	
with a copy to:	
 	
Latham & Watkins LLP	
885 3rd Avenue	
New York, NY 10022	
Attention:	Christopher Cross	
Facsimile:	(212) 751-4864	
 
Section 7.04                             Governing Law .  This Agreement and all claims arising out of or relating to this Agreement and the transactions contemplated hereby shall be governed by the Laws of the State of Delaware, without regard to the conflicts of law principles that would result in the application of any Law other than the Law of the State of Delaware.
 
Section 7.05                             Consent to Jurisdiction; Waiver of Jury Trial .  Each Party irrevocably submits to the exclusive jurisdiction of (i) state courts of the State of Delaware and (ii) the United States District Court for the District of Delaware or the Delaware Chancery Court for the purposes of any Proceeding arising out of or relating to this Agreement or any of the transactions contemplated hereby (and agrees not to commence any Proceeding relating hereto except in such courts).  Each Party further agrees that service of any process, summons, notice or document hand delivered or sent by U.S. registered mail to such Party’s respective address set forth in Section 7.03 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 Party irrevocably and unconditionally waives any objection to the laying of venue of any Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in (i) state courts of the State of Delaware or (ii) the United States District Court for the District of Delaware or the Delaware Chancery Court, 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 so
 
14 

 
brought shall be conclusive and may be enforced by suit on the judgment in any jurisdiction or in any other manner provided in law or in equity.  EACH PARTY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
 
Section 7.06                             Assignment; Third-Party Beneficiaries .  This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.  Neither Party may assign, delegate or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the other Party, except that Buyer may assign any of its rights or obligations hereunder without such consent to any Affiliate of Buyer for purpose of having such Affiliate take ownership of all or a portion of the Purchased Interest so long as (i) Buyer remains jointly and severally obligated to satisfy all of Buyer’s obligations under the terms of this Agreement, and (ii) such assignment is permissible under the terms of the LLC Agreement.  No assignment of this Agreement will in any way affect the assigning Party’s obligations or liabilities under this Agreement and any attempted assignment of this Agreement or any rights or obligations hereunder in violation of this Section 7.06 shall be deemed void ab initio .  Except as expressly provided for herein, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person other than the Parties.
 
Section 7.07                             Expenses .  Except as otherwise expressly provided for herein, Buyer shall pay all costs and expenses (including legal, accounting, financial advisory and consulting fees and expenses) incurred by the Parties in connection with the negotiation and consummation of the transactions contemplated by this Agreement and the other Transaction Documents.  Buyer shall promptly reimburse Seller for such costs and expenses to the extent paid by Seller upon receipt of reasonable documentation evidencing such costs and expenses.
 
Section 7.08                             Specific Performance .  Each Party acknowledges and agrees that the other Party would be damaged irreparably if any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached by such Party.  Accordingly, each Party agrees that the other Party will be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement by such Party and to enforce specifically this Agreement and its terms and provisions in any action instituted in any court of the United States or any state thereof having jurisdiction over such Party and the matter, subject to Section 7.04 and Section 7.05 , in addition to any other remedy to which it may be entitled, in equity or at Law.
 
Section 7.09                             Entire Agreement .  This Agreement (including the Exhibits and Schedules 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 7.10                             Severability .  If any provision of this Agreement or the application of any such provision to any Person or circumstance shall be declared by any court of competent jurisdiction to be invalid, illegal, void or unenforceable in any respect, all other provisions of this
 
15 

 
Agreement, or the application of such provision to Persons or circumstances other than those as to which it has been held invalid, illegal, void or unenforceable, shall nevertheless remain in full force and effect and will in no way be affected, impaired or invalidated thereby.  Upon such determination that any provision, or the application of any such provision, is invalid, illegal, void or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the greatest extent possible.
 
Section 7.11                             Facsimiles; 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.
 
* * * * *
 
[ Signature pages follow .]
 
16 

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

 	THE BUYER:	
 	 	 	
 	AMERICAN MIDSTREAM DELTA HOUSE, LLC	

 	By:	/s/ Daniel C. Campbell	
 	Name:	Daniel C. Campbell	
 	Title:	SVP & CFO	

 

 	THE SELLER:	
 	 	 	
 	MAGNOLIA INFRASTRUCTURE	
 	HOLDINGS, LLC	

 	By:	/s/ Daniel R. Revers	
 	Name:	Daniel R. Revers	
 	Title:	President	

Exhibit 3.1
 
FIFTH AMENDED AND RESTATED
 
AGREEMENT OF LIMITED PARTNERSHIP
 
OF
 
AMERICAN MIDSTREAM PARTNERS, LP

 
TABLE OF CONTENTS

Article I DEFINITIONS	2	
Section 1.1	Definitions	2	
Section 1.2	Construction	33	
 	 	
Article II ORGANIZATION	34	
Section 2.1	Formation	34	
Section 2.2	Name	34	
Section 2.3	Registered Office; Registered Agent; Principal Office; Other Offices	34	
Section 2.4	Purpose and Business	34	
Section 2.5	Powers	35	
Section 2.6	Term	35	
Section 2.7	Title to Partnership Assets	35	
 	 	
Article III RIGHTS OF LIMITED PARTNERS	36	
Section 3.1	Limitation of Liability	36	
Section 3.2	Management of Business	36	
Section 3.3	Outside Activities of the Limited Partners	36	
Section 3.4	Rights of Limited Partners	36	
 	 	
Article IV CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS; REDEMPTION OF PARTNERSHIP INTERESTS	37	
Section 4.1	Certificates	37	
Section 4.2	Mutilated, Destroyed, Lost or Stolen Certificates	38	
Section 4.3	Record Holders	38	
Section 4.4	Transfer Generally	39	
Section 4.5	Registration and Transfer of Limited Partner Interests	39	
Section 4.6	Transfer of the General Partner’s General Partner Interest	40	
Section 4.7	Transfer of Incentive Distribution Rights	41	
Section 4.8	Restrictions on Transfers	41	
Section 4.9	Eligibility Certifications; Ineligible Holders	42	
Section 4.10	Redemption of Partnership Interests of Ineligible Holders	43	
 	 	
Article V CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS	44	
Section 5.1	Intentionally Omitted	44	
Section 5.2	Contributions by the General Partner and the Initial Limited Partners	44	
Section 5.3	Contributions by Limited Partners	45	
Section 5.4	Interest and Withdrawal of Capital Contributions	45	
Section 5.5	Capital Accounts	45	
Section 5.6	Issuances of Additional Partnership Interests	51	
Section 5.7	Reserved	52	
Section 5.8	Limited Preemptive Right	52	
Section 5.9	Splits and Combinations	52	
Section 5.10	Fully Paid and Non-Assessable Nature of Limited Partner Interests	53	
 
i 

 

Section 5.11	Issuance of Common Units in Connection with Reset of Incentive Distribution Rights	54	
Section 5.12	Establishment of Series A Preferred Units	55	
Section 5.13	Establishment of Series B Units	75	
Section 5.14	Establishment of Series C Preferred Units	78	
 	 	
Article VI ALLOCATIONS AND DISTRIBUTIONS Section	97	
Section 6.1	Allocations for Capital Account Purposes	97	
Section 6.2	Allocations for Tax Purposes	105	
Section 6.3	Requirement and Characterization of Distributions; Distributions to Record Holders	107	
Section 6.4	Distributions of Available Cash from Operating Surplus	107	
Section 6.5	Distributions of Available Cash from Capital Surplus	108	
Section 6.6	Adjustment of Minimum Quarterly Distribution	108	
Section 6.7	Reserved	109	
Section 6.8	Special Provisions Relating to the Holders of Incentive Distribution Rights	109	
Section 6.9	Entity-Level Taxation	109	
Section 6.10	Special Provisions Relating to Series A Unitholders, Series B Unitholders, and Series C Unitholders	110	
 	 	
Article VII MANAGEMENT AND OPERATION OF BUSINESS	111	
Section 7.1	Management	111	
Section 7.2	Certificate of Limited Partnership	113	
Section 7.3	Restrictions on the General Partner’s Authority	114	
Section 7.4	Reimbursement of the General Partner	115	
Section 7.5	Outside Activities	116	
Section 7.6	Loans from the General Partner; Loans or Contributions from the Partnership or Group Members	117	
Section 7.7	Indemnification	118	
Section 7.8	Liability of Indemnitees	120	
Section 7.9	Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties	120	
Section 7.10	Other Matters Concerning the General Partner	122	
Section 7.11	Purchase or Sale of Partnership Interests	123	
Section 7.12	Registration Rights of the General Partner and its Affiliates	123	
Section 7.13	Reliance by Third Parties	125	
 	 	
Article VIII BOOKS, RECORDS, ACCOUNTING AND REPORTS	126	
Section 8.1	Records and Accounting	126	
Section 8.2	Fiscal Year	126	
Section 8.3	Reports	126	
 	 	
Article IX TAX MATTERS	127	
Section 9.1	Tax Returns and Information	127	
Section 9.2	Tax Elections	127	
Section 9.3	Tax Controversies	128	
 
ii 

 

Section 9.4	Withholding	128	
 	 	
Article X ADMISSION OF PARTNERS	128	
Section 10.1	Admission of Limited Partners	128	
Section 10.2	Admission of Successor General Partner	129	
Section 10.3	Amendment of Agreement and Certificate of Limited Partnership	129	
 	 	
Article XI WITHDRAWAL OR REMOVAL OF PARTNERS	130	
Section 11.1	Withdrawal of the General Partner	130	
Section 11.2	Removal of the General Partner	131	
Section 11.3	Interest of Departing General Partner and Successor General Partner	132	
Section 11.4	Extinguishment of Cumulative Common Unit Arrearages	134	
Section 11.5	Withdrawal of Limited Partners	134	
 	 	
Article XII DISSOLUTION AND LIQUIDATION	134	
Section 12.1	Dissolution	134	
Section 12.2	Continuation of the Business of the Partnership After Dissolution	135	
Section 12.3	Liquidator	135	
Section 12.4	Liquidation	136	
Section 12.5	Cancellation of Certificate of Limited Partnership	137	
Section 12.6	Return of Contributions	137	
Section 12.7	Waiver of Partition	137	
Section 12.8	Capital Account Restoration	137	
Section 12.9	Series A Liquidation Value and Series C Liquidation Value	137	
 	 	
Article XIII AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE	137	
Section 13.1	Amendments to be Adopted Solely by the General Partner	137	
Section 13.2	Amendment Procedures	139	
Section 13.3	Amendment Requirements	140	
Section 13.4	Special Meetings	141	
Section 13.5	Notice of a Meeting	141	
Section 13.6	Record Date	141	
Section 13.7	Adjournment	142	
Section 13.8	Waiver of Notice; Approval of Meeting; Approval of Minutes	142	
Section 13.9	Quorum and Voting	142	
Section 13.10	Conduct of a Meeting	143	
Section 13.11	Action Without a Meeting	143	
Section 13.12	Right to Vote and Related Matters	144	
 	 	
Article XIV MERGER, CONSOLIDATION OR CONVERSION	144	
Section 14.1	Authority	144	
Section 14.2	Procedure for Merger, Consolidation or Conversion	144	
Section 14.3	Approval by Limited Partners	146	
Section 14.4	Amendment of Partnership Agreement	147	
Section 14.5	Certificate of Merger or Certificate of Conversion	148	
Section 14.6	Effect of Merger, Consolidation or Conversion	148	
 
iii 

 

Article XV RIGHT TO ACQUIRE LIMITED PARTNER INTERESTS	149	
Section 15.1	Right to Acquire Limited Partner Interests	149	
 	 	
Article XVI GENERAL PROVISIONS	150	
Section 16.1	Addresses and Notices; Written Communications	150	
Section 16.2	Further Action	151	
Section 16.3	Binding Effect	151	
Section 16.4	Integration	151	
Section 16.5	Creditors	151	
Section 16.6	Waiver	151	
Section 16.7	Third-Party Beneficiaries	152	
Section 16.8	Counterparts	152	
Section 16.9	Applicable Law; Forum; Venue and Jurisdiction; Waiver of Trial by Jury	152	
Section 16.10	Invalidity of Provisions	153	
Section 16.11	Consent of Partners	153	
Section 16.12	Facsimile Signatures	153	
 	 	 	
EXHIBIT A	Certificate Evidencing Common Units Representing Limited Partner Interests in American Midstream Partners, LP	 	
 	 	 	
EXHIBIT B	Reserved	 	
 	 	 	
EXHIBIT C	Series A Conversion Notice	 	
 	 	 	
EXHIBIT D	Series C Conversion Notice	 	
 
iv 

 
FIFTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF AMERICAN MIDSTREAM PARTNERS, LP
 
THIS FIFTH AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF AMERICAN MIDSTREAM PARTNERS, LP dated as of April 25, 2016 (this “ Agreement ”), is entered into by and between American Midstream GP, LLC, a Delaware limited liability company, as the General Partner, and the Persons who are now or become Partners in the Partnership or parties hereto as provided herein.
 
WHEREAS, the General Partner and the Limited Partners entered into that certain First Amended and Restated Agreement of Limited Partnership dated as of November 4, 2009;
 
WHEREAS, the General Partner and the Limited Partners entered into that certain Second Amended and Restated Agreement of Limited Partnership dated as of August 1, 2011;
 
WHEREAS, the General Partner and the Limited Partners entered into that certain Third Amended and Restated Agreement of Limited Partnership dated as of April 15, 2013 (the “ Third A/R Partnership Agreement ”);
 
WHEREAS, the General Partner and the Limited Partners entered into that certain Fourth Amended and Restated Agreement of Limited Partnership dated as of August 9, 2013, as amended from time to time thereafter (as amended, the “ Fourth A/R Partnership Agreement ”);
 
WHEREAS, Magnolia Infrastructure Holdings, LLC, a Delaware limited liability company (“ MIH ”), the General Partner and the Partnership have entered into that certain Securities Purchase Agreement, dated the date hereof (the “ Series C Unit Purchase Agreement ”), pursuant to which MIH will contribute cash to the Partnership in exchange for 8,571,429 Series C Convertible Preferred Units and the Series C Warrant;
 
WHEREAS, pursuant to the Series C Unit Purchase Agreement, the Fourth A/R Partnership Agreement is required to be amended to reflect the issuance of the Series C Convertible Preferred Units and the Series C Warrant;
 
WHEREAS, there are certain other corrections and correlative clarifications to the Fourth A/R Partnership Agreement that the General Partner believes are appropriate;
 
WHEREAS, Section 5.6 of the Fourth A/R Partnership Agreement provides that the General Partner, without the approval of any Limited Partner except as otherwise provided in the Fourth A/R Partnership Agreement, may, for any Partnership purpose, at any time or from time to time, issue additional Partnership Interests and warrants to such Persons for such consideration and on such terms and conditions as shall be established by the General Partner;
 
WHEREAS, Section 13.1(d)(i) of the Fourth A/R Partnership Agreement provides that the General Partner may amend any provision of the Fourth A/R Partnership Agreement without the approval of any Partner to reflect a change that the General Partner determines does not adversely affect in any material respect the Limited Partners considered as a whole or any particular class of Partnership Interests as compared to the other classes of Partnership Interests;
 
1 

 
WHEREAS, Section 13.1(g) of the Fourth A/R Partnership Agreement provides that the General Partner, without the approval of any Partner, may amend any provision of the Fourth A/R Partnership Agreement to reflect an amendment that, the General Partner determines, is necessary or appropriate in connection with the creation, authorization or issuance of any class or series of Partnership Interests or warrants pursuant to Section 5.6 of the Fourth A/R Partnership Agreement;
 
WHEREAS, the General Partner has determined that the amendments to the Fourth A/R Partnership Agreement effected hereby are required to reflect the issuance of the Series C Convertible Preferred Units and the Series C Warrant and to make other corrections and correlative clarifications, which corrections and clarifications do not adversely affect in any material respect the Limited Partners considered as a whole or any particular class of Partnership Interests as compared to other classes of Partnership Interests, other than the Series A Preferred Units, the holders of which have approved the amendments;
 
WHEREAS, to the extent required by Sections 5.12(b) and 7.3 of the Fourth A/R Partnership Agreement, the holder of the Series A Preferred Units has consented to the amendments effected hereby and has waived the second paragraph of Section 5.12(b)(viii)(D); and
 
WHEREAS, the General Partner has determined that the amendments to the Fourth A/R Partnership Agreement effected hereby are necessary and appropriate in connection with the creation, authorization and issuance of the Series C Convertible Preferred Units and the Series C Warrant, as contemplated by the Series C Unit Purchase Agreement.
 
NOW, THEREFORE, the General Partner does hereby amend and restate the Fourth A/R Partnership Agreement to provide in its entirety as follows:
 
ARTICLE I
DEFINITIONS
 
Section 1.1                                    Definitions.
 
The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement.
 
“ Acquisition ” means any transaction in which any Group Member acquires (through an asset acquisition, merger, stock acquisition or other form of investment) control over all or a portion of the assets, properties or business of another Person for the purpose of increasing the long-term operating capacity or operating income of the Partnership Group from the operating capacity or operating income of the Partnership Group existing immediately prior to such transaction.
 
“ Additional Book Basis ” means the portion of any remaining Carrying Value of an Adjusted Property that is attributable to positive adjustments made to such Carrying Value as a result of Book-Up Events. For purposes of determining the extent that Carrying Value constitutes Additional Book Basis:
 
2 

 
(a)                                  Any negative adjustment made to the Carrying Value of an Adjusted Property as a result of either a Book-Down Event or a Book-Up Event shall first be deemed to offset or decrease that portion of the Carrying Value of such Adjusted Property that is attributable to any prior positive adjustments made thereto pursuant to a Book-Up Event or Book-Down Event.
 
(b)                                  If Carrying Value that constitutes Additional Book Basis is reduced as a result of a Book-Down Event and the Carrying Value of other property is increased as a result of such Book-Down Event, an allocable portion of any such increase in Carrying Value shall be treated as Additional Book Basis; provided , that the amount treated as Additional Book Basis pursuant hereto as a result of such Book-Down Event shall not exceed the amount by which the Aggregate Remaining Net Positive Adjustments after such Book-Down Event exceeds the remaining Additional Book Basis attributable to all of the Partnership’s Adjusted Property after such Book-Down Event (determined without regard to the application of this clause (b) to such Book-Down Event).
 
“ Additional Book Basis Derivative Items ” means any Book Basis Derivative Items that are computed with reference to Additional Book Basis. To the extent that the Additional Book Basis attributable to all of the Partnership’s Adjusted Property as of the beginning of any taxable period exceeds the Aggregate Remaining Net Positive Adjustments as of the beginning of such period (the “ Excess Additional Book Basis ”), the Additional Book Basis Derivative Items for such period shall be reduced by the amount that bears the same ratio to the amount of Additional Book Basis Derivative Items determined without regard to this sentence as the Excess Additional Book Basis bears to the Additional Book Basis as of the beginning of such period. With respect to a Disposed of Adjusted Property, the Additional Book Basis Derivative Items shall be the amount of Additional Book Basis taken into account in computing gain or loss from the disposition of such Disposed of Adjusted Property.
 
“ Additional Limited Partner ” means a Person admitted to the Partnership as a Limited Partner pursuant to Section 10.1(b)  and who is shown as such on the books and records of the Partnership.
 
“ Adjusted Capital Account ” means the Capital Account maintained for each Partner as of the end of each 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 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 (ii) 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 Section 6.1(d)(ii) ). The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. The “ Adjusted Capital Account ” of a Partner in respect of a Partnership Interest shall be the
 
3 

 
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.
 
“ Adjusted Operating Surplus ” means, with respect to any period, (a) Operating Surplus generated with respect to such period, less (b) (i) any net increase in Working Capital Borrowings with respect to that period and (ii) any net decrease in cash reserves for Operating Expenditures with respect to such period not relating to an Operating Expenditure made with respect to such period, and plus (c) (i) any net decrease in Working Capital Borrowings with respect to that period, (ii) any net decrease made in subsequent periods in cash reserves for Operating Expenditures initially established with respect to such period to the extent such decrease results in a reduction in Adjusted Operating Surplus in subsequent periods pursuant to clause (b)(ii) above and (iii) any net increase in cash reserves for Operating Expenditures with respect to such period required by any debt instrument for the repayment of principal, interest or premium. Adjusted Operating Surplus does not include that portion of Operating Surplus included in clause (a) (i) of the definition of Operating Surplus.
 
“ Adjusted Property ” means any property the Carrying Value of which has been adjusted pursuant to Section 5.5(d) .
 
“ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term “ control ” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
 
“ Aggregate Quantity of IDR Reset Common Units ” has the meaning assigned to such term in Section 5.11(a) .
 
“ Aggregate Remaining Net Positive Adjustments ” means, as of the end of any taxable period, the sum of the Remaining Net Positive Adjustments of all the Partners.
 
“ Agreed Allocation ” means any allocation, other than a Required Allocation, of an item of income, gain, loss or deduction pursuant to the provisions of Section 6.1 , including 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 or other consideration 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 5.5(d) , in both cases as determined by the General Partner.
 
“ Agreement ” means this Fifth Amended and Restated Agreement of Limited Partnership of American Midstream Partners, LP, as it may be amended, supplemented or restated from time to time.
 
“ AIM Midstream ” means AIM Midstream Holdings, LLC, a Delaware limited liability company.
 
4 

 
“ AIM Warrant ” means that certain warrant to purchase up to 300,000 Common Units with a $0.01 per warrant exercise price, issued pursuant to the requirements of the Purchase Agreement, which warrant shall, for tax purposes, be treated as a “noncompensatory option” within the meaning of Treasury Regulations Sections 1.721-2(f) and 1.761-3(b)(2) and not treated as a partnership interest pursuant to Treasury Regulations Section 1.761-3(a).
 
“ American Midstream GP ” means American Midstream GP, LLC, a Delaware limited liability company.
 
“ Associate ” means, when used to indicate a relationship with any Person, (a) any corporation or organization of which such Person is a director, officer, 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 any portion of additional 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 on the date of determination of Available Cash with respect to such Quarter resulting from Working Capital Borrowings made subsequent to the end of such Quarter;
 
(b)                                  less 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, for anticipated future credit needs of the Partnership Group and for refunds of collected rates reasonably likely to be refunded as a result of a settlement or hearing relating to FERC rate proceedings or rate proceedings under applicable state law, if any) 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
 
5 

 
(iii)                                provide funds for distributions under Section 6.4 or Section 6.5 in respect of any one or more of the next four Quarters;
 
provided, however , that the General Partner may not establish cash reserves pursuant to clause (iii) above if the effect of establishing such reserves would be that the Partnership is unable to distribute the Minimum Quarterly Distribution on all Common Units, plus any Cumulative Common Unit Arrearage on all Common Units, with respect to such Quarter; and, provided further , that disbursements made by a Group Member or cash reserves established, increased or reduced after the end of such Quarter but on or before the date of determination of Available Cash with respect to such Quarter shall be deemed to have been made, established, increased or reduced, for purposes of determining Available Cash, within such Quarter if the General Partner so determines.
 
Notwithstanding the foregoing, “ Available Cash ” with respect to the Quarter in which the Liquidation Date occurs and any subsequent Quarter shall equal zero.
 
“ Board of Directors ” means the board of directors of the General Partner.
 
“ Book Basis Derivative Items ” means any item of income, deduction, gain or loss that is computed with reference to the Carrying Value of an Adjusted Property ( e.g. , depreciation, depletion, or gain or loss with respect to an Adjusted Property).
 
“ Book-Down Event ” means an event that triggers a negative adjustment to the Capital Accounts of the Partners pursuant to Section 5.5(d) .
 
“ Book-Tax Disparity ” means with respect to any item of Contributed Property or Adjusted Property, as of the date of any determination, the difference between the Carrying Value of such Contributed Property or Adjusted Property and the adjusted basis thereof for federal income tax purposes as of such date. A Partner’s share of the Partnership’s Book-Tax Disparities in all of its Contributed Property and Adjusted Property will be reflected by the difference between such Partner’s Capital Account balance as maintained pursuant to Section 5.5 and the hypothetical balance of such Partner’s Capital Account computed as if it had been maintained strictly in accordance with federal income tax accounting principles.
 
“ Book-Up Event ” means an event that triggers a positive adjustment to the Capital Accounts of the Partners pursuant to Section 5.5(d) .
 
“ Business Day ” means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America or the State of Texas shall not be regarded as a Business Day.
 
“ Capital Account ” means the capital account maintained for a Partner pursuant to Section 5.5 . The “ Capital Account ” of a Partner in respect of a 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.
 
6 

 
“ Capital Contribution ” means (i) 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) or (ii) current distributions that a Partner is entitled to receive but otherwise waives.
 
“ Capital Improvement ” means any (a) addition or improvement to the capital assets owned by any Group Member, (b) acquisition (through an asset acquisition, merger, stock acquisition or other form of investment) of existing, or the construction of new or improvement or replacement of existing, capital assets (including gathering systems, compressors, processing plants, transmission lines and related or similar midstream assets) or (c) capital contribution by a Group Member to a Person that is not a Subsidiary in which a Group Member has, or after such capital contribution will have, an equity interest to fund such Group Member’s pro rata share of the cost of the addition or improvement to or the acquisition (through an asset acquisition, merger, stock acquisition or other form of investment) of existing, or the construction of new or replacement of existing, capital assets (including gathering systems, compressors, processing plants, transmission lines and related or similar midstream assets) by such Person, in each case if and to the extent such addition, improvement, acquisition, construction or replacement is made to increase the long-term operating capacity or operating income of the Partnership Group, in the case of clauses (a) and (b), or such Person, in the case of clause (c), from the operating capacity or operating income of the Partnership Group or such Person, as the case may be, existing immediately prior to such addition, improvement, acquisition, construction or replacement.
 
“ Capital Surplus ” has the meaning assigned to such term in Section 6.3(a) .
 
“ 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, amortization and cost recovery deductions charged to the Partners’ Capital Accounts in respect of such Contributed Property or Adjusted Property, and (b) with respect to any other Partnership property, the adjusted basis of such property for federal income tax purposes, all as of the time of determination. The Carrying Value of any property shall be adjusted from time to time in accordance with Section 5.5(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.
 
“ 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) a certificate (i) substantially in the form of Exhibit A to this Agreement, (ii) issued in global form in accordance with the rules and regulations of the Depository or (iii) in such other form as may be adopted by the General Partner, in each case issued by the Partnership evidencing ownership of one or more Common Units or (b) a certificate, in such form as may be adopted by the General Partner, issued by the Partnership evidencing ownership of one or more other Partnership Interests.
 
7 

 
“ 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 Eligibility Trigger ” has the meaning assigned to such term in Section 4.9(a)(ii)  “claim” (as used in Section 7.12(c) ) has the meaning assigned to such term in Section 7.12(c) .
 
“ claim ” (as used in Section 7.12(c) ) has the meaning assigned to such term in Section 7.12(c) .
 
“ Closing Date ” means November 4, 2009.
 
“ 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 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, 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 Series are not quoted by any such organization, the average of the closing bid and asked prices on such day as furnished by a professional market maker making a market in such Limited Partner Interests of such class selected by the General Partner, or if on any such day no market maker is making a market in such Limited Partner Interests of such class, the fair value of such Limited Partner Interests on such day as determined by the General Partner.
 
“ 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 ” has the meaning assigned to such term in Section 11.3(a) .
 
“ Commences Commercial Service ” means the date a Capital Improvement is first put into or commences commercial service following completion of construction, acquisition, development and testing, as applicable.
 
“ Commission ” means the United States Securities and Exchange Commission or any successor agency having jurisdiction under the Securities Act.
 
“ Commodity Hedge Contract ” means any commodity exchange, swap, forward, cap, floor, collar or other similar agreement or arrangement entered into for the purpose of hedging
 
8 

 
the Partnership Group’s exposure to fluctuations in the price of hydrocarbons or other commodities in their operations and not for speculative purposes.
 
“ Common Unit ” means a Partnership Interest representing a fractional part of the Partnership Interests of all Limited Partners, and having the rights and obligations specified with respect to Common Units in this Agreement. The term “ Common Unit ” does not refer to, or include, any Incentive Distribution Rights, any HPIP Equity Interest, any Series A Preferred Unit prior to the conversion of such Series A Preferred Unit into a Common Unit pursuant to the terms thereof, any Series C Preferred Unit prior to the conversion of such Series C Preferred Unit into a Common Unit pursuant to the terms thereof or, except as otherwise provided in this Agreement, any Series B Unit prior to the conversion of such Series B Unit into a Common Unit pursuant to the terms thereof.
 
“ Common Unit Arrearage ” means, with respect to any Common Unit, whenever issued, as to any Quarter after the Closing Date, the excess, if any, of (a) the Minimum Quarterly Distribution with respect to a Common Unit in respect of such Quarter over (b) the sum of all Available Cash distributed with respect to a Common Unit in respect of such Quarter pursuant to Section 6.4(b)(i) .
 
“ Conflicts Committee ” means a committee of the Board of Directors composed of one or more Independent Directors.
 
“ Contributed Property ” means each property or other asset, in such form as may be permitted by the Delaware Act, but excluding cash, contributed to the Partnership. Once the Carrying Value of a Contributed Property is adjusted pursuant to Section 5.5(d) , such property shall no longer constitute a Contributed Property, but shall be deemed an Adjusted Property.
 
“ Convertible Securities ” has the meaning assigned to such term in Section 5.12(b)(viii)(D) .
 
“ Cumulative Common Unit Arrearage ” means, with respect to any Common Unit, whenever issued, and as of the end of any Quarter, the excess, if any, of (a) the sum resulting from adding together the Common Unit Arrearage as to an IPO Common Unit for each of the Quarters after the Closing Date over (b) the sum of any distributions theretofore made pursuant to Section 6.4(b)(ii)  and the second sentence of Section 6.5 with respect to an IPO Common Unit (including any distributions to be made in respect of the last of such Quarters).
 
“ Curative Allocation ” means any allocation of an item of income, gain, deduction, loss or credit pursuant to the provisions of Section 6.1(d)(xi) .
 
“ 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.
 
9 

 
“ 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 .
 
“ Depository ” means, with respect to any Units issued in global form, The Depository Trust Company and its successors and permitted assigns.
 
“ Disposed of Adjusted Property ” has the meaning ascribed to such term in Section 6.1(d)(xii)(B) .
 
“ Economic Risk of Loss ” has the meaning set forth in Treasury Regulation Section 1.752-2(a).
 
“ Eligibility Certificate ” has the meaning assigned to such term in Section 4.9(b) .
 
“ Eligible Holder ” means a Limited Partner whose (a) federal income tax status would not, in the determination of the General Partner, have the material adverse effect described in Section 4.9(a)(i)  or (b) nationality, citizenship or other related status would not, in the determination of the General Partner, create a substantial risk of cancellation or forfeiture as described in Section 4.9(a)(ii) .
 
“ Estimated Incremental Quarterly Tax Amount ” has the meaning assigned to such term in Section 6.9 .
 
“ Estimated Maintenance Capital Expenditures ” means an estimate made in good faith by the Board of Directors (with the concurrence of the Conflicts Committee) of the average quarterly Maintenance Capital Expenditures that the Partnership will incur over the long term. The Board of Directors (with the concurrence of the Conflicts Committee) will be permitted to make such estimate in any manner it determines reasonable. The estimate will be made annually and whenever an event occurs that is likely to result in a material adjustment to the amount of Maintenance Capital Expenditures on a long term basis. The Partnership shall disclose to its Partners any change in the amount of Estimated Maintenance Capital Expenditures in its reports made in accordance with Section 8.3 to the extent not previously disclosed. Any adjustments to Estimated Maintenance Capital Expenditures shall be prospective only.
 
“ Event of Withdrawal ” has the meaning assigned to such term in Section 11.1(a) .
 
“ Expansion Capital Expenditures ” means cash expenditures for Acquisitions or Capital Improvements, and shall not include Maintenance Capital Expenditures or Investment Capital Expenditures. Expansion Capital Expenditures shall include interest (and related fees) on debt incurred and distributions on equity issued, in each case, to finance the construction of a Capital Improvement and paid in respect of the period beginning on the date that the Group Member enters into a binding obligation to commence construction of a Capital Improvement and ending on the earlier to occur of the date that such Capital Improvement Commences Commercial Service and the date that such Capital Improvement is abandoned or disposed of. Debt incurred or equity issued to fund such construction period interest payments or such construction period distributions on equity paid during such period, shall also be deemed to be debt incurred or
 
10 

 
equity issued, as the case may be, to finance the construction of a Capital Improvement. Expansion Capital Expenditures will include cash contributed by a Group Member to an entity of which such Group Member is, or after such contribution will be, directly or indirectly, an equity owner to be used by such entity for Acquisitions or Capital Improvements. Where capital expenditures are made in part for Expansion Capital Expenditures and in part for other purposes, the General Partner, with the concurrence of the Conflicts Committee, shall determine the allocation of such expenditures between Expansion Capital Expenditures and expenditures made for other purposes.
 
“ FERC ” means the Federal Energy Regulatory Commission, or successor to powers thereof.
 
“ Follow-On Price ” has the meaning assigned to such term in Section 5.12(b)(viii)(E) .
 
“ Follow-On Units ” has the meaning assigned to such term in Section 5.12(b)(viii)(E) .
 
“ Former IDRs ” has the meaning assigned to such term in the recitals to this Agreement.
 
“ Fourth A/R Partnership Agreement ” has the meaning assigned to such term in the recitals to this Agreement.
 
“ Fully Diluted Weighted Average Basis ” means, when calculating the number of Outstanding Units for any period, a basis that includes (a) the weighted average number of Outstanding Units plus (b) all Partnership Interests and options, rights, warrants, phantom units and appreciation rights relating to an equity interest in the Partnership (i) whose conversion, exercise or exchange price is less than the Current Market Price on the date of such calculation, (ii) that may be converted into or exercised or exchanged for such Units prior to or during the Quarter immediately following the end of the period for which the calculation is being made without the satisfaction of any contingency beyond the control of the holder other than the payment of consideration and the compliance with administrative mechanics applicable to such conversion, exercise or exchange and (iii) that were not converted into or exercised or exchanged for such Units during the period for which the calculation is being made; provided, however , that if consideration will be paid to any Group Member in connection with such conversion, exercise or exchange, the number of Units to be included in such calculation shall be that number equal to the difference between (x) the number of Units issuable upon such conversion, exercise or exchange and (y) the number of Units that such consideration would purchase at the Current Market Price.
 
“ General Partner ” means American Midstream GP and its successors and permitted assigns that are admitted to the Partnership as general partner of the Partnership, in its capacity as general partner of the Partnership (except as the context otherwise requires).
 
“ General Partner Interest ” means the ownership 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) that is evidenced by Notional General Partner Units and includes any and all 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.
 
11 

 
“ 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.
 
“ Holder ” as used in Section 7.12 , has the meaning assigned to such term in Section 7.12(a) .
 
“ HPIP ” has the meaning assigned to such term in the recitals to this Agreement.
 
“ HPIP Equity Interest ” means a non-voting Limited Partner Interest, which Limited Partner Interest will confer upon the holder thereof only the rights and obligations specifically provided in this Agreement with respect to the HPIP Equity Interest (and no other rights otherwise available to or other obligation of a holder of a Partnership Interest). Notwithstanding anything in this Agreement to the contrary, the holder of the HPIP Equity Interest shall not be entitled to vote such HPIP Equity Interest on any Partnership matter except as may otherwise be required by law.
 
“ IDR Reset Common Unit ” has the meaning assigned to such term in Section 5.11(a) .
 
“ IDR Reset Election ” has the meaning assigned to such term in Section 5.11(a) .
 
“ Incentive Distribution Right ” means a Limited Partner Interest issued to American Midstream GP, which Limited Partner Interest will confer upon the holder thereof only the rights and obligations specifically provided in this Agreement with respect to Incentive Distribution Rights (and no other rights otherwise available to or other obligations of a holder of a Partnership Interest). Notwithstanding anything to the contrary in this Agreement, the holder of an Incentive Distribution Right shall not be entitled to vote such Incentive Distribution Right on any Partnership matter except as may otherwise be required by law or contemplated by Section 11.2 .
 
12 

 
“ Incentive Distributions ” means any amount of cash distributed to the holders of the Incentive Distribution Rights (in such capacity, but not in any other capacity) pursuant to Section 6.4 .
 
“ Incremental Income Taxes ” has the meaning assigned to such term in Section 6.9 .
 
“ Indebtedness ” means any of the following: (a) the principal of and accrued interest or premium (if any) and premiums or penalties that would arise as a result of prepayment of (i) any indebtedness for borrowed money, (ii) any obligations evidenced by bonds, debentures, notes or other similar instruments, and (iii) any obligations, contingent or otherwise, under banker’s acceptance credit, or similar facilities; (b) any obligations to pay the deferred purchase price of property or services, except trade accounts payable and other current liabilities arising in the ordinary course of business; (c) any obligations with respect to hedging, swaps or similar arrangements; and (d) any guaranty of any of the foregoing.
 
“ Indemnified Persons ” has the meaning assigned to such term in Section 7.12(c) .
 
“ Indemnitee ” means (a) the General Partner, (b) any Departing General Partner, (c) any Person who is or was an Affiliate of the General Partner or any Departing General Partner, (d) any Person who is or was a manager, managing member, general partner, director, officer, employee, agent, fiduciary or trustee of any Group Member, the General Partner or any Departing General Partner or any Affiliate of any Group Member, the General Partner or any Departing General Partner, (e) any Person who is or was serving at the request of the General Partner or any Departing General Partner or any Affiliate of the General Partner or any Departing General Partner as a manager, managing member, general partner, director, officer, employee, agent, fiduciary or trustee of another Person owing a fiduciary duty to any Group Member; provided that a Person shall not be an Indemnitee by reason of providing, on a fee-for-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 designates as an Indemnitee for purposes of this Agreement.
 
“ Independent Director ” means any director that (a) is not a security holder, officer or employee of the General Partner, (b) is not an officer, director or employee of any Affiliate of the General Partner, (c) is not a holder of any ownership interest in the Partnership Group other than Common Units and awards that may be granted to such director under the Long Term Incentive Plan (or similar plan implemented by the General Partner or the Partnership) and (d) meets 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 promulgated thereunder and by any National Securities Exchange on which the Common Units are listed or admitted to trading.
 
“ Ineligible Holder ” has the meaning assigned such term in Section 4.9(c) .
 
“ Initial Limited Partners ” means AIM Midstream, the LTIP Partners and the General Partner (with respect to the Common Units and Incentive Distribution Rights held by them).
 
13 

 
“ Initial Public Offering ” means the initial offering and sale of Common Units to the public, as described in the Registration Statement.
 
“ Initial Unit Price ” means (a) with respect to the Common Units, the IPO Price, (b) with respect to the Series B Units (including each Series B PIK Unit), the Series B Issue Price, or (c) with respect to any other class or series of Units, the price per Unit at which such class or series of Units is initially issued by the Partnership, as determined by the General Partner, in each case adjusted as the General Partner determines to be appropriate to give effect to any distribution, subdivision or combination of Units.
 
“ Interest Rate Hedge Contract ” means any interest rate exchange, swap, forward, cap, floor collar or other similar agreement or arrangement entered into for the purpose of reducing the exposure of the Partnership Group to fluctuations in interest rates in their financing activities and not for speculative purposes.
 
“ Interim Capital Transactions ” means the following transactions if they occur prior to the Liquidation Date: (a) borrowings, refinancings or refundings of indebtedness (other than Working Capital Borrowings and other than for items purchased on open account or for a deferred purchase price in the ordinary course of business) by any Group Member and sales of debt securities of any Group Member; (b) sales of equity interests of any Group Member; (c) sales or other voluntary or involuntary dispositions of any assets of any Group Member other than (i) sales or other dispositions of inventory, accounts receivable and other assets in the ordinary course of business, and (ii) sales or other dispositions of assets as part of normal asset retirements or replacements; (d) the termination of Commodity Hedge Contracts or Interest Rate Hedge Contracts prior to the respective specified termination dates; (e) capital contributions received by a Group Member or, in the case of capital contributions received by a Person that is not a Subsidiary of the Partnership, capital contributions received from the owner(s) or members of such Person that is not a Group Member; or (f) corporate reorganizations or restructurings.
 
“ Investment Capital Expenditures ” means capital expenditures other than Maintenance Capital Expenditures and Expansion Capital Expenditures. Investment Capital Expenditures will include cash contributed by a Group Member to an entity of which such Group Member is, or after such contribution will be directly or indirectly, an equity owner to be used by such entity for capital expenditures other than Maintenance Capital Expenditures and Expansion Capital Expenditures.
 
“ Investor ” means, collectively, HPIP, MIH and each of their Affiliates from time to time that is the registered holder of any Series A Preferred Units, Series B Units, or Series C Preferred Units.
 
“ IPO Closing Date ” means the closing date of the sale of the Common Units in the Initial Public Offering.
 
“ IPO Common Units ” means the Common Units sold in the Initial Public Offering.
 
“ IPO Price ” means the price per Common Unit at which the Underwriters offer the Common Units for sale to the public as set forth on the cover page of the final prospectus filed
 
14 

 
pursuant to Rule 424(b) of the rules and regulations of the Commission with respect to the Initial Public Offering.
 
“ IPO Proceeds ” means the portion of the net proceeds received by the Partnership from the issuance and sale of Common Units in connection with the closing of the Initial Public Offering that, according to the disclosure set forth in the section of the Registration Statement entitled “Use of Proceeds,” are to be distributed to AIM Midstream, the LTIP Partners and the General Partner.
 
“ Junior Interests ” means any class or series of Partnership Interests that, with respect to distributions on such Partnership Interests and distributions upon liquidation of the Partnership, ranks junior to the Series A Preferred Units or the Series C Preferred Units, including but not limited to Common Units, Series B Units and Incentive Distribution Rights.
 
“ Liability ” means any liability or obligation of any nature, whether accrued, contingent or otherwise.
 
“ Limited Partner ” means, unless the context otherwise requires, each Initial Limited Partner, each Additional Limited Partner and any Departing General Partner upon the change of its status from General Partner to Limited Partner pursuant to Section 11.3 , in each case, in such Person’s capacity as a limited partner of the Partnership; provided, however , that when the term “ Limited Partner ” is used herein in the context of any vote or other approval, including Article XIII and Article XIV , such term shall not, solely for such purpose, include any holder of an Incentive Distribution Right (solely with respect to its Incentive Distribution Rights and not with respect to any other Limited Partner Interest held by such Person) except as may be required by law or contemplated by Section 11.2 .
 
“ Limited Partner Interest ” means the ownership interest of a Limited Partner in the Partnership, which may be evidenced by Common Units, Series A Preferred Units, Series B Units, Series C Preferred Units, Incentive Distribution Rights, the HPIP Equity Interest 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; provided , however , that when the term “ Limited Partner Interest ” is used herein in the context of any vote or other approval, including Article XIII and Article XIV , such term shall not, solely for such purpose, include any Incentive Distribution Right or HPIP Equity Interest except as may be required by law or contemplated by Section 11.2 .
 
“ Liquidation Date ” means (a) in the case of an event giving rise to the dissolution of the Partnership of the type described in clauses (a) and (b) of the first sentence of Section 12.2 , the date on which the applicable time period during which the holders of Outstanding Units have the right to elect to continue the business of the Partnership has expired without such an election being made, and (b) in the case of any other event giving rise to the dissolution of the Partnership, the date on which such event occurs.
 
15 

 
“ Liquidator ” means one or more Persons selected by the General Partner to perform the functions described in Section 12.4 as liquidating trustee of the Partnership within the meaning of the Delaware Act.
 
“ Long Term Incentive Plan ” means the Long-Term Incentive Plan of the General Partner, as may be amended, or any equity compensation plan successor thereto or otherwise adopted by the General Partner or the Partnership.
 
“ LTIP Partners ” means those Limited Partners holding on the date hereof Common Units issued pursuant to the Long Term Incentive Plan, in respect of such Common Units.
 
“ Maintenance Capital Expenditures ” means cash expenditures (including expenditures (i) for the addition or improvement to or the replacement of the capital assets owned by any Group Member, (ii) for the acquisition of existing, or the construction or development of new, capital assets or (iii) for any integrity management program, including pursuant to the Gas Transmission Pipeline Integrity Management Rule (49 CFR Part 192, Subpart O) and any corresponding rule of state law) if such expenditures are made to maintain, including over the long term, the operating capacity or operating income of the Partnership Group. Maintenance Capital Expenditures shall exclude Expansion Capital Expenditures or Investment Capital Expenditures, but include interest (and related fees) on debt incurred and distributions in respect of equity issued, other than equity issued in the Initial Public Offering, in each case, to finance the construction or development of a replacement asset and paid in respect of the period beginning on the date that a Group Member enters into a binding obligation to commence constructing or developing a replacement asset and ending on the earlier to occur of the date that such replacement asset Commences Commercial Service and the date that such replacement asset is abandoned or disposed of. Debt incurred to pay or equity issued, other than equity issued in the Initial Public Offering, to fund construction or development period interest payments, or such construction or development period distributions in respect of equity, shall also be deemed to be debt or equity, as the case may be, incurred to finance the construction or development of a replacement asset and the incremental Incentive Distributions paid relating to newly issued equity shall be deemed to be distributions paid on equity issued to finance the construction or development of a replacement asset. Maintenance Capital Expenditures will include cash contributed by any Group Member to an entity of which such Group Member is, or after such contribution will be, directly or indirectly, an equity owner to be used by such entity for capital expenditures of the types described in clauses (i), (ii) or (iii) above.
 
“ Merger Agreement ” has the meaning assigned to such term in Section 14.1 .
 
“ MIH ” has the meaning assigned to such term in the recitals to this Agreement.
 
“ Minimum Quarterly Distribution ” means $0.4125 per Unit per Quarter (such amount having been determined by the Board of Directors at the time of the Initial Public Offering (or with respect to the Quarter that includes the IPO Closing Date, it means the product of such amount multiplied by a fraction, the numerator of which is the number of days in such Quarter after the IPO Closing Date and the denominator of which is the total number of days in such Quarter)), subject to adjustment in accordance with Section 5.11 , Section 6.6 and Section 6.9 .
 
16 

 
“ National Securities Exchange ” means an exchange registered with the Commission under Section 6(a) of the Securities Exchange Act and any successor to such statute.
 
“ Net Agreed Value ” means, (a) in the case of any Contributed Property, the Agreed Value of such property reduced by any Liability 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 5.5(d) ) at the time such property is distributed, reduced by any Liability either assumed by such Partner upon such distribution or to which such property is subject at the time of distribution, in either case, as determined and required by Treasury Regulations promulgated under Section 704(b) of the Code.
 
“ Net Income ” means, for any taxable period, the excess, if any, of the Partnership’s items of income and gain (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable period over the Partnership’s items of loss and deduction (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable period. The items included in the calculation of Net Income shall be determined in accordance with Section 5.5(b)  and shall not include any items specially allocated under Section 6.1(d) ; provided , that the determination of the items that have been specially allocated under Section 6.1(d)  shall be made without regard to any reversal of such items under Section 6.1(d)(xii) .
 
“ Net Loss ” means, for any taxable period, the excess, if any, of the Partnership’s items of loss and deduction (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable period over the Partnership’s items of income and gain (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable period. The items included in the calculation of Net Loss shall be determined in accordance with Section 5.5(b)  and shall not include any items specially allocated under Section 6.1(d) ; provided , that the determination of the items that have been specially allocated under Section 6.1(d)  shall be made without regard to any reversal of such items under Section 6.1(d)(xii) .
 
“ Net Positive Adjustments ” means, with respect to any Partner, the excess, if any, of the total positive adjustments over the total negative adjustments made to the Capital Account of such Partner pursuant to Book-Up Events and Book-Down Events.
 
“ Net Termination Gain ” means, for any taxable period, the sum, if positive, of all items of income, gain, loss or deduction (a) recognized by the Partnership (i) after the Liquidation Date or (ii) 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 series of related transactions (excluding any disposition to a member of the Partnership Group) or (b) deemed recognized by the Partnership Group pursuant to Section 5.5(d) ; provided, however that 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)  or under Section 5.12(b)(iv)  or Section 5.14(b)(iv) .
 
17 

 
“ Net Termination Loss ” means, for any taxable period, the sum, if negative, of all items of income, gain, loss or deduction (a) recognized by the Partnership (i) after the Liquidation Date or (ii) 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 series of related transactions (excluding any disposition to a member of the Partnership Group) or (b) deemed recognized by the Partnership Group pursuant to Section 5.5(d) ; provided, however 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)  or under Section 5.12(b)(iv)  or Section 5.14(b)(iv) .
 
“ New Credit Agreement ” means the Amended and Restated Credit Agreement, dated as of September 5, 2014, as amended from time to time, by and among the Operating Company, as AMID Borrower, Blackwater Investments, Inc., as Blackwater Borrower, the Partnership, as Parent, Bank of America, N.A., as Administrative Agent, Collateral Agent and L/C Issuer, Wells Fargo Bank, National Association, as Syndication Agents, BBVA Compass, Capital One National Association, Citibank, N.A., Comerica Bank and Suntrust Bank, as Co-Documentation Agent, and the other financial institutions party thereto.
 
“ 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(b) . If such properties were disposed of in a taxable transaction in full satisfaction of such liabilities and for no other consideration.
 
“ Nonrecourse Deductions ” means any and all items of loss, deduction or expenditure (including any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(b), are attributable to a Nonrecourse Liability.
 
“ Nonrecourse Liability ” has the meaning set forth in Treasury Regulation Section 1.752-1(a)(2).
 
“ Notice of Election to Purchase ” has the meaning assigned to such term in Section 15.1(b) .
 
“ Notional General Partner Unit ” means notional units used solely to calculate the General Partner’s Percentage Interest. Notional General Partner Units shall not constitute “Units” for any purpose of this Agreement. As of April 21, 2016, there were 542,002 Notional General Partner Units (resulting in the General Partner’s Percentage Interest being 1.3240%). If the General Partner makes additional Capital Contributions pursuant to Section 5.2(a)  to maintain its Percentage Interest, the number of Notional General Partner Units shall be increased proportionally to reflect the maintenance of such Percentage Interest.
 
“ Operating Company ” means American Midstream, LLC, a Delaware limited liability company, and any successors thereto.
 
18 

 
“ Operating Expenditures ” means all Partnership Group cash expenditures (or the Partnership’s proportionate share of expenditures in the case of Subsidiaries that are not wholly owned), including taxes, reimbursements of expenses of the General Partner and its Affiliates, interest payments, payments made in the ordinary course of business under Interest Rate Hedge Contracts and Commodity Hedge Contracts ( provided that payments made in connection with the termination (effected on or after the IPO Closing Date) of any Interest Rate Hedge Contract or Commodity Hedge Contract prior to the expiration of its stipulated settlement or termination date shall be included in Operating Expenditures in equal quarterly installments over the remaining scheduled life of such Interest Rate Hedge Contract or Commodity Hedge Contract), Estimated Maintenance Capital Expenditures, director and officer compensation, repayment of Working Capital Borrowings and non-Pro Rata repurchases of Units (other than those made with the proceeds of an Interim Capital Transaction), subject to the following:
 
(a)                                  deemed repayments of Working Capital Borrowings deducted from Operating Surplus pursuant to clause (b)(iii) of the definition of “Operating Surplus” shall not constitute Operating Expenditures when actually repaid;
 
(b)                                  payments (including prepayments and prepayment penalties) of principal of and premium on indebtedness other than Working Capital Borrowings shall not constitute Operating Expenditures when actually repaid;
 
(c)                                   Operating Expenditures shall not include (i) Expansion Capital Expenditures, (ii) Investment Capital Expenditures, (iii) actual Maintenance Capital Expenditures, (iv) payment of transaction expenses (including taxes) relating to Interim Capital Transactions, (v) distributions to Partners (including any distributions made pursuant to Section 6.4(a) ), (vi) non-Pro Rata purchases of the Units of any class made with the proceeds of an Interim Capital Transaction or (vii) any other payments made in connection with the Initial Public Offering that are described under “Use of Proceeds” in the Registration Statement; and
 
(d)                                  where capital expenditures are made in part for Maintenance Capital Expenditures and in part for other purposes, the General Partner, with the concurrence of the Conflicts Committee, shall determine the allocation of such capital expenditures between Maintenance Capital Expenditures and capital expenditures made for other purposes and, with respect to the part of such capital expenditures consisting of Maintenance Capital Expenditures, the period over which Maintenance Capital Expenditures will be deducted as an Operating Expenditure in calculating Operating Surplus.
 
“ Operating Surplus ” means, with respect to any period commencing on the IPO Closing Date and ending prior to the Liquidation Date, on a cumulative basis and without duplication,
 
(a)                                  the sum of:
 
(i)                                      $11.5 million;
 
(ii)                                   all cash receipts of the Partnership Group (or the Partnership’s proportionate share of cash receipts in the case of Subsidiaries that are not wholly owned) for the period beginning on the IPO Closing Date and ending on the last day of such
 
19 

 
period, but excluding cash receipts from Interim Capital Transactions (except to the extent specified in Section 6.5 and provided that cash receipts from the termination (effected on or after the IPO Closing Date) of a Commodity Hedge Contract or an Interest Rate Hedge Contract prior to its specified termination date shall be included in Operating Surplus in equal quarterly installments over the remaining scheduled life of such Commodity Hedge Contract or Interest Rate Hedge Contract);
 
(iii)                                all cash receipts of the Partnership Group (or the Partnership’s proportionate share of cash receipts in the case of Subsidiaries that are not wholly owned) after the end of such period but on or before the date of determination of Operating Surplus with respect to such period resulting from Working Capital Borrowings; and
 
(iv)                               cash distributions paid on equity issued to finance all or a portion of the construction, acquisition, development or improvement of a Capital Improvement or replacement of a capital asset (such as equipment or facilities) in respect of the period beginning on the date that the Group Member enters into a binding obligation to commence the construction, acquisition, development or improvement of a Capital Improvement or replacement of a capital asset and ending on the earlier to occur of the date the Capital Improvement or capital asset Commences Commercial Service or the date that it is abandoned or disposed of (equity issued to fund construction-, acquisition-, development- or improvement-period interest payments on debt incurred, or construction-, acquisition-, development- or improvement-period distributions on equity issued, to finance the construction, acquisition or development of a Capital Improvement or replacement of a capital asset shall also be deemed to be equity issued to finance the construction, acquisition or development of a Capital Improvement or replacement of a capital asset for purposes of this clause (iv)); less
 
(b)                                  the sum of:
 
(i)                                      Operating Expenditures for the period beginning on the IPO Closing Date and ending on the last day of such period;
 
(ii)                                   the amount of 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 after the IPO Closing Date to provide funds for future Operating Expenditures; and
 
(iii)                                all Working Capital Borrowings incurred on or after the IPO Closing Date not repaid within twelve months after having been incurred;
 
provided, however , that disbursements made (including contributions to a Group Member or disbursements on behalf of a Group Member) or cash reserves established, increased or reduced after the end of such period but on or before the date of determination of Available Cash with respect to such period shall be deemed to have been made, established, increased or reduced, for purposes of determining Operating Surplus, within such period if the General Partner so determines.
 
20 

 
Notwithstanding the foregoing, “ Operating Surplus ” with respect to the Quarter in which the Liquidation Date occurs and any subsequent Quarter shall equal zero. Cash receipts from an Investment Capital Expenditure shall be treated as cash receipts only to the extent they are a return on principal, but in no event shall a return of principal be treated as cash receipts.
 
“ 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 Outstanding Partnership Interests of any class then Outstanding, all Partnership Interests owned by such Person or Group shall not be voted on any matter and shall not be considered to be Outstanding when sending notices of a meeting of Limited Partners to vote on any matter (unless otherwise required by law), calculating required votes, determining the presence of a quorum or for other similar purposes under this Agreement, except that Units so owned shall be considered to be Outstanding for purposes of Section 11.1(b)(iv)  (such Units shall not, however, be treated as a separate class of Partnership Interests for purposes of this Agreement or the Delaware Act); provided, further , that the foregoing limitation shall not apply to (i) any Person or Group who acquired 20% or more of the Outstanding Partnership Interests of any class then Outstanding directly from the General Partner or its Affiliates (other than the Partnership), (ii) any Person or Group who acquired 20% or more of the Outstanding Partnership Interests of any class then Outstanding directly or indirectly from a Person or Group described in clause (i) provided that the General Partner shall have notified such Person or Group in writing that such limitation shall not apply, or (iii) any Person or Group who acquired 20% or more of any Partnership Interests issued by the Partnership with the prior approval of the Board of Directors. For the avoidance of doubt, (1) the Board of Directors has approved the issuance of the Series A Preferred Units to the Investor pursuant to the Contribution Agreement in accordance with clause (iii) of the immediately preceding sentence, and any Series A PIK Preferred Units and Series A Conversion Units issued to the Investor shall be deemed to be approved by the Board of Directors in accordance with clause (iii) of the immediately preceding sentence and the foregoing limitations of the immediately preceding sentence shall not apply to the Investor with respect to their ownership (beneficially or of record) of the Series A Preferred Units, Series A PIK Preferred Units and Series A Conversion Units, (2) the Board of Directors has approved the issuance of the Series B Units to the Investor pursuant to the Series B Unit Purchase Agreement in accordance with clause (iii) of the immediately preceding sentence, and any Series B Units, Series B PIK Units and Series B Conversion Units issued to the Investor shall be deemed to be approved by the Board of Directors in accordance with clause (iii) of the immediately preceding sentence and the foregoing limitations of the immediately preceding sentence shall not apply to the Investor with respect to their ownership (beneficially or of record) of the Series B Units, Series B PIK Units and Series B Conversion Units, (3) the Board of Directors has approved the issuance of the Series C Preferred Units to Investor pursuant to the Series C Unit Purchase Agreement in accordance with clause (iii) of the immediately preceding sentence, and any Series C PIK Preferred Units and Series C Conversion Units issued to Investor shall be deemed to be approved
 
21 

 
by the Board of Directors in accordance with clause (iii) of the immediately preceding sentence and the foregoing limitations of the immediately preceding sentence shall not apply to Investor with respect to their ownership (beneficially or of record) of the Series C Preferred Units, Series C PIK Preferred Units and Series C Conversion Units, and (4) the Board of Directors has approved the issuance of any Warrant Exercised Units upon exercise of the Warrants in accordance with clause (iii) of the immediately preceding sentence, and any Warrant Exercised Units issued to Investor shall be deemed to be approved by the Board of Directors in accordance with clause (iii) of the immediately preceding sentence and the foregoing limitations of the immediately preceding sentence shall not apply to Investor with respect to their ownership (beneficially or of record) of the Warrant Exercised Units.
 
“ Partner Nonrecourse Debt ” has the meaning set forth in Treasury Regulation Section 1.704-2(b)(4).
 
“ Partner Nonrecourse Debt Minimum Gain ” has the meaning set forth in Treasury Regulation Section 1.704-2(i)(2).
 
“ Partner Nonrecourse Deductions ” means any and all items of loss, deduction or expenditure (including any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(i), are attributable to a Partner Nonrecourse Debt.
 
“ Partners ” means the General Partner and the Limited Partners.
 
“ Partnership ” means American Midstream Partners, LP, a Delaware limited partnership.
 
“ Partnership Event ” has the meaning assigned to such term in Section 5.12(b)(viii)(F)(1) .
 
“ Partnership Group ” means collectively the Partnership and its Subsidiaries.
 
“ Partnership Interest ” means any class or series of equity interest in the Partnership, which shall include any General Partner Interest and Limited Partner Interests 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 Unit held by a Person other than the General Partner or any Affiliate of the General Partner who holds Units.
 
“ Percentage Interest ” means as of any date of determination (a) as to the General Partner Interest (calculated based upon a number of Notional General Partner Units), and as to any Unitholder with respect to Units, the product obtained by multiplying (i) 100% less the percentage applicable to clause (b) below by (ii) the quotient obtained by dividing (A) the number of Notional General Partner Units held by the General Partner or the number of Units
 
22 

 
held by such Unitholder (or, in the case of Series A Preferred Units, the number of Series A Conversion Units issuable upon conversion of such Series A Preferred Units held by such Unitholder or Assignee if such Series A Preferred Units were then converted in accordance with Section 5.12(b)(viii) , or, in the case of Series B Units, the number of Series B Conversion Units issuable upon conversion of such Series B Units held by such Unitholder or Assignee if such Series B Units were then converted in accordance with Section 5.13(c) , or, in the case of Series C Preferred Units, the number of Series C Conversion Units issuable upon conversion of such Series C Preferred Units held by such Unitholder or Assignee if such Series C Preferred Units were then converted in accordance with Section 5.14(b)(viii) ), as the case may be, by (B) the total number of Outstanding Units and Notional General Partner Units, and (b) as to the holders of other Partnership Interests issued by the Partnership in accordance with Section 5.6 , the percentage established as a part of such issuance. The Percentage Interest with respect to an Incentive Distribution Right shall at all times be zero. The Percentage Interest with respect to the HPIP Equity 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.
 
“ Post-Initial Issuance Series B Unit ” means a Series B Unit that is a Series B PIK Unit or a Series B Conversion Unit.
 
“ Preferred Unit Change of Control ” means the occurrence of any of the following:
 
(a)                                  the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger, consolidation or business combination), in one or a series of related transactions, of all or substantially all of the properties or assets of the Partnership and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act);
 
(b)                                  (i) the adoption of a plan for the liquidation or dissolution of the Partnership or (ii) the removal of the General Partner by the Limited Partners of the Partnership;
 
(c)                                   the consummation of any transaction (including, without limitation, any merger, consolidation or business combination), the result of which is that any Person (excluding the Series A Preferred Unit Partner and the Series C Preferred Unit Partner), other than the owners of the General Partner immediately following the closing of the transactions contemplated by the Purchase Agreement, becomes the Beneficial Owner, directly or indirectly, of more than fifty percent (50%) of the equity of the General Partner or of the Outstanding Common Units of the Partnership, in each case measured by voting power rather than number of units;
 
(d)                                  notwithstanding anything provided in clauses (a) through (c) above, (i) any direct or indirect sale, conveyance, assignment, transfer, merger, consolidation or business combination that would result in the owners of the General Partner immediately following the closing of the transactions contemplated by the Purchase Agreement owning, directly or indirectly, less than fifty percent (50%) of the equity of the General Partner, or (ii) any assignment or transfer of all or substantially all of the assets of the General Partner; or
 
23 

 
(e)                                   consummation of a “Rule 13e-3 transaction” as defined in Rule 13e-3 under the Exchange Act with respect to the Partnership.
 
“ Pro Rata ” means (a) when used with respect to Units or any class thereof, apportioned among all designated Units in accordance with their relative Percentage Interests, (b) when used with respect to Partners and/or Record Holders, apportioned among all Partners and/or Record Holders in accordance with their relative Percentage Interests and (c) when used with respect to holders of Incentive Distribution Rights, apportioned among all holders of Incentive Distribution Rights in accordance with the relative number or percentage of Incentive Distribution Rights held by each such holder.
 
“ Purchase Agreement ” means the Purchase Agreement, dated April 15, 2013, by and between AIM Midstream and HPIP.
 
“ Purchase Date ” means the date determined by the General Partner as the date for purchase of all Outstanding Limited Partner Interests of a certain class (other than Limited Partner Interests owned by the General Partner and its Affiliates) pursuant to Article XV .
 
“ Quarter ” means, unless the context requires otherwise, a fiscal quarter of the Partnership, or, with respect to the fiscal quarter of the Partnership that includes the IPO Closing Date, the portion of such fiscal quarter after the IPO Closing Date.
 
“ Rate Eligibility Trigger ” has the meaning assigned to such term in Section 4.9(a)(i) .
 
“ 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 (i) 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, (ii) the identity of Record Holders entitled to receive any report or distribution or to participate in any offer, (iii) the identity of the Record Holders of Series A Preferred Units entitled to convert such Units, (iv) the identity of the Record Holders of Series B Units entitled to convert such Units, or (v) the identity of the Record Holders of Series C Preferred Units entitled to convert such Units.
 
“ Record Holder ” means (a) with respect to Partnership Interests of any class of Partnership Interests for which a Transfer Agent has been appointed, the Person in whose name a Partnership Interest of such class is registered on the books of the Transfer Agent as of the closing 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 closing of business on such Business Day.
 
24 

 
“ Redeemable Interests ” means any Partnership Interests for which a redemption notice has been given, and has not been withdrawn, pursuant to Section 4.10 .
 
“ Registration Statement ” means the Registration Statement on Form S-1 (Registration No. 333-173191) as it has been or as it may be amended or supplemented from time to time, filed by the Partnership with the Commission under the Securities Act to register the offering and sale of Common Units in the Initial Public Offering.
 
“ Remaining Net Positive Adjustments ” means as of the end of any taxable period, (i) with respect to the Unitholders holding Common Units, Series A Preferred Units, Series B Units, or Series C Preferred Units, the excess of (A) the Net Positive Adjustments of the Unitholders holding Common Units, Series A Preferred Units, Series B Units, or Series C Preferred Units as of the end of such period over (B) the sum of those Partners’ Share of Additional Book Basis Derivative Items for each prior taxable period, (ii) with respect to the General Partner (as holder of the Notional General Partner Units), the excess of (A) the Net Positive Adjustments of the General Partner as of the end of such period over (B) the sum of the General Partner’s Share of Additional Book Basis Derivative Items with respect to the Notional General Partner Units for each prior taxable period, and (iii) with respect to the holders of Incentive Distribution Rights, the excess of (A) the Net Positive Adjustments of the holders of Incentive Distribution Rights as of the end of such period over (B) the sum of the Share of Additional Book Basis Derivative Items of the holders of the Incentive Distribution Rights for each prior taxable period.
 
“ Required Allocations ” means any allocation of an item of income, gain, loss or deduction pursuant to Section 6.1(d)(i) , Section 6.1(d)(ii) , Section 6.1(d)(iv) , Section 6.1(d)(v) , Section 6.1(d)(vi) , Section 6.1(d)(vii)  or Section 6.1(d)(ix) .
 
“ Reset MQD ” has the meaning assigned to such term in Section 5.11(e) .
 
“ Reset Notice ” has the meaning assigned to such term in Section 5.11(b) .
 
“ 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.
 
“ Series A Adjusted Issue Price ” means (i) the Series A Issue Price, divided by (ii) the Series A Conversion Rate.
 
“ Series A Conversion Date ” has the meaning assigned to such term in Section 5.12(b)(viii)(C) .
 
“ Series A Conversion Notice ” has the meaning assigned to such term in Section 5.12(b)(viii)(B) .
 
“ Series A Conversion Notice Date ” has the meaning assigned to such term in Section 5.12(b)(viii)(B) .
 
25 

 
“ Series A Conversion Rate ” means the number of Common Units issuable upon the conversion of each Series A Preferred Unit, which shall be 1.0 until such rate is adjusted as set forth in Section 5.12(b)(viii)(D)  - (F) .
 
“ Series A Conversion Unit ” means the Common Unit(s) issued upon conversion of a Series A Preferred Unit pursuant to Section 5.12 .
 
“ Series A Converting Unitholder ” means a Person entitled to receive Common Units upon conversion of any Series A Preferred Units.
 
“ Series A Coupon Conversion Quarter ” means the earlier of (1) the Quarter that includes the Series A Conversion Date and (2) the Quarter beginning April 1, 2016.
 
“ Series A Distribution Amount ” means the cash distribution for the relevant Quarter that each Series A Preferred Unit would have received on an as-converted basis if such Series A Preferred Unit had converted pursuant to Section 5.12(b)(viii)  immediately prior to the beginning of such Quarter.
 
“ Series A Distribution Payment Date ” has the meaning assigned to such term in Section 5.12(b)(ii)(A) .
 
“ Series A Distribution Rate ” means an amount per Quarter per Series A Preferred Unit payable in arrears equal to the greater of (i) 0.023571428 multiplied by the Series A Adjusted Issue Price, and (ii) the Series A Distribution Amount.
 
“ Series A Issuance Date ” means, with respect to a Series A-1 Convertible Preferred Unit, April 15, 2013, and, with respect to a Series A-2 Convertible Preferred Unit, March 30, 2015 or such other date as provided for in that certain Series A-2 Convertible Preferred Unit Purchase Agreement by and between the Partnership and MIH.
 
“ Series A Issue Price ” means $17.50 per Series A Preferred Unit.
 
“ Series A Liquidation Value ” means, with respect to each Series A Preferred Unit Outstanding as of the date of such determination, an amount equal to the sum of (i) the Series A Issue Price, plus (ii) all Series A Unpaid Cash Distributions and all accrued and unpaid interest thereon (determined in accordance with Section 5.12(b)(ii)(C) ) plus, (iii) all accrued but unpaid distributions on such Series A Preferred Unit with respect to the Quarter in which the liquidation occurs.
 
“ Series A Parity Securities ” means any class or series of Partnership Interests that, with respect to distributions on such Partnership Interests or distributions upon liquidation of the Partnership, ranks pari passu with the Series A Preferred Units.
 
“ Series A Partnership Event Change of Control Offer ” has the meaning assigned to such term in Section 5.12(b)(viii)(F)(1) .
 
“ Series A Partnership Event Payment ” has the meaning assigned to such term in Section 5.12(b)(viii)(F)(1) .
 
26 

 
“ Series A Partnership Event Payment Date ” has the meaning assigned to such term in Section 5.12(b)(viii)(F)(3)ii) .
 
“ Series A PIK Payment Amount ” means a number of Series A PIK Preferred Units equal to (i) the greater of (x) $0.25 and (y) the Series A Distribution Amount less $0.25, divided by (ii) the Series A Adjusted Issue Price; provided, however , that for the Quarter in which the Series A Issuance Date occurs, it shall mean a number of Series A PIK Preferred Units equal to (i) the product of (a) $0.25 times (b) a fraction, of which (I) the numerator is the number of days from and including the Series A Issuance Date to but excluding the date of such Quarter’s end, and (II) the denominator is 91, divided by (ii) the Series A Adjusted Issue Price. The parties acknowledge that the Series A PIK Payment Amount was 0.01428571 of a Series A Preferred Unit as of April 15, 2013 (such amount to be prorated as provided in the proviso of the preceding sentence for the Quarter in which the Series A Issuance Date occurs).
 
“ Series A PIK Preferred Payment Date ” has the meaning assigned to such term in Section 5.12(b)(ii)(B) .
 
“ Series A PIK Preferred Units ” has the meaning assigned to such term in Section 5.12(a) .
 
“ Series A Preferred Unit Partner ” means, collectively, HPIP in its capacity as the holder of Units and any Affiliate of HPIP that holds any Series A Preferred Units or Series A Conversion Units, including, but not limited to, any such Affiliate that (i) acquired Units by transfer from HPIP or (ii) holds Series A Conversion Units pursuant to this Agreement.
 
“ Series A Preferred Units ” has the meaning assigned to such term in Section 5.12(a) .
 
“ Series A Quarterly Distribution ” has the meaning assigned to such term in Section 5.12(b)(ii)(A) .
 
“ Series A Second PIK Payment Amount ” means a number of Series A PIK Preferred Units equal to (i) the greater of (x) $0.50 and (y) the Series A Distribution Amount, divided by (ii) the Series A Adjusted Issue Price. The parties acknowledge that the Series A Second PIK Payment Amount was 0.02857143 of a Series A Preferred Unit as of July 24, 2014.
 
“ Series A Senior Securities ” means any class or series of Partnership Interests that, with respect to distributions on such Partnership Interests or distributions upon liquidation of the Partnership, ranks senior to the Series A Preferred Units.
 
“ Series A Survivor Preferred Security ” has the meaning assigned to such term in Section 5.12(b)(viii)(F)(2) .
 
“ Series A Unitholder ” means a Record Holder of Series A Preferred Units.
 
“ Series A Unpaid Cash Distributions ” has the meaning assigned to such term in Section 5.12(b)(ii)(C) .
 
27 

 
“ Series A-1 Convertible Preferred Units ” has the meaning assigned to such term in Section 5.12(a) .
 
“ Series A-2 Convertible Preferred Units ” has the meaning assigned to such term in Section 5.12(a) .
 
“Series A-2 Call Closing Date” has the meaning assigned to such term in Section 5.12(c)(iii) .
 
“Series A-2 Call Exercise Notice” has the meaning assigned to such term in Section 5.12(c)(iii) .
 
“Series A-2 Call Right” has the meaning assigned to such term in Section 5.12(c) .
 
“Series A-2 Holders” has the meaning assigned to such term in Section 5.12(c) .
 
“ Series B Conversion Date ” means the date that is the second anniversary of the initial issuance of Series B Units pursuant to the Series B Unit Purchase Agreement.
 
“ Series B Conversion Unit ” means a Common Unit issued upon conversion of a Series B Unit pursuant to Section 5.13(c) .
 
“ Series B Issue Price ” means the price at which a Series B Unit is purchased from the Partnership. Each Series B Unit issued pursuant to the Series B Unit Purchase Agreement shall be treated as having a Series B Issue Price equal to the price per Common Unit, net of underwriting discounts and commissions, received by the Partnership in connection with an underwritten public offering to be completed on or around January 29, 2014. Each Series B PIK Unit shall have a Series B Issue Price equal to the Series B PIK Distribution Amount attributed to such Series B PIK Unit.
 
“ Series B PIK Distribution Amount ” has the meaning assigned to such term in Section 5.13(d)(i) .
 
“ Series B PIK Payment Date ” has the meaning assigned to such term in Section 5.13(d)(iii) .
 
“ Series B PIK Unit ” means a Series B Unit issued by the Partnership in lieu of cash distributions in respect of the Series B Units pursuant to Section 5.13(d) .
 
“ Series B Unit ” means a Partnership Interest issued pursuant to Section 5.13 and representing a Limited Partner’s interest in the Partnership having the rights and obligations specified with respect to the Series B Units in this Agreement.
 
“ Series B Unit Distribution ” has the meaning assigned to such term in Section 5.13(d)(i) .
 
“ Series B Unit Purchase Agreement ” means the Unit Purchase Agreement providing for
 
28 

 
the issuance of Series B Units, dated as of January 22, 2014, with the purchasers named therein.
 
“ Series C Adjusted Issue Price ” means (i) the Series C Issue Price, divided by (ii) the Series C Conversion Rate.
 
“Series C Call Closing Date” has the meaning assigned to such term in Section 5.14(c)(iii) .
 
“Series C Call Exercise Notice” has the meaning assigned to such term in Section 5.14(c)(iii) .
 
“Series C Call Right” has the meaning assigned to such term in Section 5.14(c) .
 
“ Series C Conversion Date ” has the meaning assigned to such term in Section 5.14(b)(viii)(C) .
 
“ Series C Conversion Notice ” has the meaning assigned to such term in Section 5.14(b)(viii)(B) .
 
“ Series C Conversion Notice Date ” has the meaning assigned to such term in Section 5.14(b)(viii)(B) .
 
“ Series C Conversion Rate ” means the number of Common Units issuable upon the conversion of each Series C Preferred Unit, which shall be 1.0 until such rate is adjusted as set forth in Section 5.14(b)(viii)(D) - (F) .
 
“ Series C Conversion Unit ” means the Common Unit(s) issued upon conversion of a Series C Preferred Unit pursuant to Section 5.14 .
 
“ Series C Converting Unitholder ” means a Person entitled to receive Common Units upon conversion of any Series C Preferred Units.
 
“ Series C Coupon Conversion Quarter” means the earlier of (1) the Quarter that includes the Series C Conversion Date and (2) the Quarter beginning July 1, 2017.
 
“ Series C Distribution Amount ” means the cash distribution for the relevant Quarter that each Series C Preferred Unit would have received on an as-converted basis if such Series C Preferred Unit had converted pursuant to Section 5.14(b)(viii)  immediately prior to the beginning of such Quarter.
 
“ Series C Distribution Payment Date ” has the meaning assigned to such term in Section 5.14(b)(ii)(A) .
 
“ Series C Distribution Rate ” means an amount per Quarter per Series C Preferred Unit payable in arrears equal to the greater of (i) $0.4125 and (ii) the Series C Distribution Amount.
 
“Series C Holders” has the meaning assigned to such term in Section 5.14(a) .
 
29 

 
“ Series C Issuance Date ” means, with respect to a Series C Convertible Preferred Unit, April 25, 2016.
 
“ Series C Issue Price ” means $14.00 per Series C Preferred Unit.
 
“ Series C Liquidation Value ” means, with respect to each Series C Preferred Unit Outstanding as of the date of such determination, an amount equal to the sum of (i) the Series C Issue Price, plus (ii) all Series C Unpaid Cash Distributions and all accrued and unpaid interest thereon (determined in accordance with Section 5.14(b)(ii)(C) ) plus, (iii) all accrued but unpaid distributions on such Series C Preferred Unit with respect to the Quarter in which the liquidation occurs.
 
“ Series C Parity Securities ” means any class or series of Partnership Interests that, with respect to distributions on such Partnership Interests or distributions upon liquidation of the Partnership, ranks pari passu with the Series C Preferred Units.
 
“ Series C Partnership Event Change of Control Offer ” has the meaning assigned to such term in Section 5.14(b)(viii)(F)(1) .
 
“Series C Partnership Event Payment” has the meaning assigned to such term in Section 5.14(b)(viii)(F)(1) .
 
“ Series C Partnership Event Payment Date ” has the meaning assigned to such term in Section 5.14(b)(viii)(F)(3)ii) .
 
“ Series C PIK Payment Amount ” means a number of Series C PIK Preferred Units equal to (i) the Series C Distribution Rate divided by (ii) the Series C Adjusted Issue Price; provided, however , that for the Quarter in which the Series C Issuance Date occurs, it shall mean a number of Series C PIK Preferred Units equal to (i) the product of (a) the Series C Distribution Rate times (b) a fraction, of which (I) the numerator is the number of days from and including the Series C Issuance Date to but excluding the date of such Quarter’s end, and (II) the denominator is 91, divided by (ii) the Series C Adjusted Issue Price. The parties acknowledge that the Series C PIK Payment Amount was 0.03375 of a Series C Preferred Unit as of April 25, 2016 (such amount to be prorated as provided in the proviso of the preceding sentence for the Quarter in which the Series C Issuance Date occurs).
 
“ Series C PIK Preferred Payment Date ” has the meaning assigned to such term in Section 5.14(b)(ii)(B) .
 
“ Series C PIK Preferred Units ” has the meaning assigned to such term in Section 5.14(a) .
 
“ Series C Preferred Unit Partner ” means, collectively, MIH in its capacity as the holder of Units and any Affiliate of MIH that holds any Series C Preferred Units or Series C Conversion Units, including, but not limited to, any such Affiliate that (i) acquired Units by transfer from MIH or (ii) holds Series C Conversion Units pursuant to this Agreement.
 
“ Series C Preferred Units ” has the meaning assigned to such term in Section 5.14(a) .
 
30 

 
“ Series C Quarterly Distribution ” has the meaning assigned to such term in Section 5.14(b)(ii)(A) .
 
“ Series C Senior Securities ” means any class or series of Partnership Interests that, with respect to distributions on such Partnership Interests or distributions upon liquidation of the Partnership, ranks senior to the Series C Preferred Units.
 
“ Series C Survivor Preferred Security ” has the meaning assigned to such term in Section 5.14(b)(viii)(F)(2) .
 
“ Series C Unit Purchase Agreement” has the meaning assigned to such term in the recitals to this Agreement.
 
“ Series C Unitholder ” means a Record Holder of Series C Preferred Units.
 
“ Series C Unpaid Cash Distributions ” has the meaning assigned to such term in Section 5.14(b)(ii)(C) .
 
“ Series C Warrant ” means that certain warrant to purchase up to 800,000 Common Units, subject to adjustment as set forth in the warrant agreement, with a $7.25 per Common Unit exercise price, issued pursuant to the requirements of the Series C Unit Purchase Agreement, which warrant shall, for tax purposes, be treated as a “noncompensatory option” within the meaning of Treasury Regulations Sections 1.721-2(f) and 1.761-3(b)(2) and not treated as a partnership interest pursuant to Treasury Regulations Section 1.761-3(a).
 
“ Share of Additional Book Basis Derivative Items ” means in connection with any allocation of Additional Book Basis Derivative Items for any taxable period, (i) with respect to the Unitholders holding Common Units, Series A Preferred Units, Series B Units, or Series C Preferred Units, the amount that bears the same ratio to such Additional Book Basis Derivative Items as the Unitholders’ Remaining Net Positive Adjustments as of the end of such period bears to the Aggregate Remaining Net Positive Adjustments as of that time, (ii) with respect to the General Partner (as holder of the Notional General Partner Units), the amount that bears the same ratio to such Additional Book Basis Derivative Items as the General Partner’s Remaining Net Positive Adjustments as of the end of such period bears to the Aggregate Remaining Net Positive Adjustment as of that time, and (iii) with respect to the Partners holding Incentive Distribution Rights, the amount that bears the same ratio to such Additional Book Basis Derivative Items as the Remaining Net Positive Adjustments of the Partners holding the Incentive Distribution Rights as of the end of such period bears to the Aggregate Remaining Net Positive Adjustments as of that time.
 
“ Special Approval ” means approval by a majority of the members of the Conflicts Committee.
 
“ 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
 
31 

 
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 more than 50% of the partnership interests of such partnership (considering all of the partnership interests of the partnership as a single class) is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person, or a combination thereof, or (c) any other Person (other than a corporation 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 Person.
 
“ Surviving Business Entity ” has the meaning assigned to such term in Section 14.2(b) .
 
“ Target Distribution ” means an amount equal to the Minimum Quarterly Distribution multiplied by 1.5.
 
“ Third A/R Partnership Agreement ” has the meaning assigned to such term in the recitals to this Agreement.
 
“ 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 on which such class of Limited Partner Interests are listed is open for the transaction of business or, if Limited Partner Interests of a Series are not listed on any National Securities Exchange, a day on which banking institutions in New York City generally are open.
 
“ transfer ” has the meaning assigned to such term in Section 4.4(a) .
 
“ Transfer Agent ” means such bank, trust company or other Person (including the General Partner or one of its Affiliates) as shall be appointed from time to time by the General Partner to act as registrar and transfer agent for the Common Units; provided , that if no Transfer Agent is specifically designated for any other Partnership Interests, the General Partner shall act in such capacity.
 
“ Underwriters ” means the underwriters in the Initial Public Offering.
 
“ Unit ” means a Partnership Interest that is designated as a “Unit” and shall include Common Units, Series A Preferred Units, Series B Units, and Series C Preferred Units but shall not include (i) Notional General Partner Units (or the General Partner Interest represented thereby), (ii) Incentive Distribution Rights or (iii) the HPIP Equity Interest.
 
“ Unitholders ” means the holders of Units.
 
“ Unit Majority ” means at least a majority of the Outstanding Common Units and Series B Units, voting together as a single class.
 
“ 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
 
32 

 
(as determined under Section 5.5(d) ) over (b) the Carrying Value of such property as of such date (prior to any adjustment to be made pursuant to Section 5.5(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 5.5(d)  as of such date) over (b) the fair market value of such property as of such date (as determined under Section 5.5(d) ).
 
“ Unrecovered Initial Unit Price ” means at any time, with respect to a Unit, the Initial Unit Price less the sum of all distributions constituting Capital Surplus theretofore made in respect of an IPO Common Unit and any distributions of cash (or the Net Agreed Value of any distributions in kind) in connection with the dissolution and liquidation of the Partnership theretofore made in respect of an IPO Common Unit, adjusted as the General Partner determines to be appropriate to give effect to any distribution, subdivision or combination of such Units.
 
“ 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 consistently applied.
 
“ Warrant ” means either of (i) the AIM Warrant or (ii) the Series C Warrant.
 
“ Warrant Exercised Unit ” means a Common Unit issued upon exercise of a Warrant.
 
“ Withdrawal Opinion of Counsel ” has the meaning assigned to such term in Section 11.1(b) .
 
“ Working Capital Borrowings ” means borrowings used solely for working capital purposes or to pay distributions to Partners made pursuant to a credit facility, commercial paper facility or other similar financing arrangements, provided that when such borrowings are incurred it is the intent of the borrower to repay such borrowings within 12 months other than from additional Working Capital Borrowings.
 
Section 1.2                                    Construction.
 
Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (b) references to Articles and Sections refer to Articles and Sections of this Agreement; (c) the terms “include,” “includes,” “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
 
33 

 
contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement.
 
ARTICLE II
ORGANIZATION
 
Section 2.1                                    Formation.
 
The General Partner and AIM Midstream have previously formed the Partnership as a limited partnership pursuant to the provisions of the Delaware Act. The General Partner hereby amends and restates the Fourth A/R Partnership Agreement in its entirety. This amendment and restatement shall become effective on the date of this Agreement. Except as expressly provided to the contrary in this Agreement, the rights, duties (including fiduciary duties), liabilities and obligations of the Partners and the administration, dissolution and termination of the Partnership shall be governed by the Delaware Act. All Partnership Interests shall constitute personal property of the owner thereof for all purposes.
 
Section 2.2                                    Name.
 
The name of the Partnership shall be “American Midstream 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 and shall notify the Limited Partners of such change in the next regular communication to the Limited Partners.
 
Section 2.3                                    Registered Office; Registered Agent; Principal Office; Other Offices.
 
Unless and until changed by the General Partner, the registered office of the Partnership in the State of Delaware shall be located at 160 Greentree Drive, Suite 101, Dover, Kent County, Delaware 19904, and the registered agent for service of process on the Partnership in the State of Delaware at such registered office shall be National Registered Agents, Inc. The principal office of the Partnership shall be located at 1400 16th Street, Suite 310, Denver, Colorado 80202, 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 shall determine necessary or appropriate. The address of the General Partner shall be 1400 16th Street, Suite 310, Denver, Colorado 80202, or such other place as the General Partner may from time to time designate by notice to the Limited Partners.
 
Section 2.4                                    Purpose and Business.
 
The purpose and nature of the business to be conducted by the Partnership shall be to (a) engage directly in, or enter into or form, hold and dispose of any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any
 
34 

 
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, and (b) do anything necessary or appropriate to the foregoing, including the making of capital contributions or loans to a Group Member; provided, however , that the General Partner shall not cause the Partnership to engage, directly or indirectly, in any business activity that the General Partner determines would 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 or obligation to propose or approve, and may, in its sole discretion, decline to propose or approve, the conduct by the Partnership of any business free of any fiduciary duty or obligation whatsoever to the Partnership, any Limited Partner and, in declining to so propose or approve, shall not be required to act in good faith or pursuant to any other standard imposed by this Agreement, any Group Member Agreement, any other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity.
 
Section 2.5                                    Powers.
 
The Partnership shall be empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described in Section 2.4 and for the protection and benefit of the Partnership.
 
Section 2.6                                    Term.
 
The term of the Partnership commenced upon the filing of the Certificate of Limited Partnership in accordance with the Delaware Act and shall continue in existence until the dissolution of the Partnership in accordance with the provisions of Article XII . The existence of the Partnership as a separate legal entity shall continue until the cancellation of the Certificate of Limited Partnership as provided in the Delaware Act.
 
Section 2.7                                    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
 
35 

 
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 any successor General Partner. All Partnership assets shall be recorded as the property of the Partnership in its books and records, irrespective of the name in which record title to such Partnership assets is held.
 
ARTICLE III
RIGHTS OF LIMITED PARTNERS
 
Section 3.1                                    Limitation of Liability.
 
The Limited Partners shall have no liability under this Agreement except as expressly provided in this Agreement or the Delaware Act.
 
Section 3.2                                    Management of Business.
 
No Limited Partner, in its capacity as such, shall participate in the operation, management or control (within the meaning of the Delaware Act) of the Partnership’s business, transact any business in the Partnership’s name or have the power to sign documents for or otherwise bind the Partnership. All actions taken by any Affiliate of the General Partner or any officer, director, employee, manager, member, general partner, agent or trustee of the General Partner or any of its Affiliates, or any officer, director, employee, manager, member, general partner, agent or trustee of a Group Member, in its capacity as such, shall not be deemed to be participating 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.
 
Section 3.3                                    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, each 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.
 
Section 3.4                                    Rights of Limited Partners.
 
(a)                                  In addition to other rights provided by this Agreement or by applicable law (other than Section 17-305(a) of the Delaware Act, the obligations of which are expressly replaced in their entirety by the provisions below and Section 8.3 ), and except as limited by Section 3.4(a)(i) , each Limited Partner shall have the right, for a purpose that is reasonably related, as determined by the General Partner, to such Limited Partner’s interest as a Limited Partner in the Partnership, upon reasonable written demand stating the purpose of such demand and at such Limited Partner’s own expense to obtain:
 
36 

 
(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 (or which would be 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, together with copies of the executed copies of all powers of attorney pursuant to which this Agreement, the Certificate of Limited Partnership and all amendments thereto have been executed; and
 
(iv)                               such other information regarding the affairs of the Partnership as the General Partner determines is just and reasonable.
 
(b)                                  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 ).
 
ARTICLE IV
CERTIFICATES; RECORD HOLDERS; TRANSFER OF
 PARTNERSHIP INTERESTS; REDEMPTION OF PARTNERSHIP INTERESTS
 
Section 4.1                                    Certificates.
 
Notwithstanding anything otherwise to the contrary herein, unless the General Partner shall determine otherwise in respect of some or all of any or all classes of Partnership Interests, Partnership Interests shall not be evidenced by certificates; provided, however , with respect to the issuance of any Series A Preferred Units, Series B Units, or Series C Preferred Units, the Partnership shall issue such Certificates in accordance with Section 5.12(b)(vii) , Section 5.13(f)  and Section 5.14(b)(vii) , respectively. Certificates that may be issued shall be executed on behalf of the Partnership by the Chairman of the Board, President or any Executive Vice President or Vice President and the Chief Financial Officer or the Secretary or any Assistant Secretary of the General Partner. No Certificate for a class of Partnership Interests shall be valid for any purpose until it has been countersigned by the Transfer Agent for such class of Partnership Interests; 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.
 
37 

 
Section 4.2                                    Mutilated, Destroyed, Lost or Stolen Certificates.
 
(a)                                  If any mutilated Certificate is surrendered to the Transfer Agent (for Common Units) or the General Partner (for Partnership Interests other than Common Units), the appropriate officers of the General Partner on behalf of the Partnership shall execute, and the Transfer Agent (for Common Units) or the General Partner (for Partnership Interests other than Common Units) shall countersign and deliver in exchange therefor, a new Certificate 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 (for Common Units) shall countersign, a new Certificate in place of any Certificate previously issued, or issue uncertificated Common 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 the issuance of uncertificated Units before the General Partner has notice that the Certificate has been acquired by a purchaser for value in good faith and without notice of an adverse claim;
 
(iii)                                if requested by the General Partner, delivers to the General Partner a bond, in form and substance satisfactory to the General Partner, with surety or sureties and with fixed or open penalty as the General Partner may direct to indemnify the Partnership, the Partners, the General Partner and the Transfer Agent against any claim that may be made on account of the alleged loss, destruction or theft of the Certificate; and
 
(iv)                               satisfies any other reasonable requirements imposed by the General Partner.
 
If a Limited Partner fails to notify the General Partner within a reasonable period of time after he has notice of the loss, destruction or theft of a Certificate, and a transfer of the Limited Partner Interests represented by the Certificate is registered before the Partnership, the General Partner or the Transfer Agent receives such notification, the Limited Partner shall be precluded from making any claim against the Partnership, the General Partner or the Transfer Agent for such transfer or for a new Certificate or uncertificated Units.
 
(c)                                   As a condition to the issuance of any new Certificate or uncertificated Units under this Section 4.2 , the General Partner may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Transfer Agent) reasonably connected therewith.
 
Section 4.3                                    Record Holders.
 
The Partnership shall be entitled to recognize the Record Holder as the 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
 
38 

 
Person, regardless of whether the Partnership shall have actual or other notice thereof, except as otherwise provided by law or any applicable rule, regulation, guideline or requirement of any National Securities Exchange on which such Partnership Interests are listed or admitted 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, as the case may be, hereunder as, and to the extent, provided herein.
 
Section 4.4                                    Transfer 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 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 4.5                                    Registration and Transfer of Limited Partner Interests.
 
(a)                                  The General Partner shall keep or cause to be kept on behalf of the Partnership a register in which, subject to such reasonable regulations as it may prescribe and subject to the provisions of Section 4.5(b) , the Partnership will provide for the registration and transfer of Limited Partner Interests.
 
(b)                                  The Partnership shall not recognize any transfer of Limited Partner Interests evidenced by Certificates until the Certificates evidencing such Limited Partner Interests are surrendered for registration of transfer. No charge shall be imposed by the General Partner for such transfer; provided , that as a condition to the issuance of any new Certificate under this Section 4.5 , the General Partner may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed with respect thereto. Upon surrender of a Certificate for registration of transfer of any Limited Partner Interests evidenced by a Certificate,
 
39 

 
and subject to the provisions hereof, the appropriate officers of the General Partner on behalf of the Partnership shall execute and deliver, and in the case of Certificates evidencing Limited Partner Interests, the Transfer Agent shall countersign and deliver, in the name of the holder or the designated transferee or transferees, as required pursuant to the holder’s instructions, one or more new Certificates evidencing the same aggregate number and type of Limited Partner Interests as was evidenced by the Certificate so surrendered.
 
(c)                                   By acceptance of the transfer of any Limited Partner Interests in accordance with this Section 4.5 and except as provided in Section 4.9 , each transferee of a Limited Partner Interest (including any nominee holder or an agent or representative acquiring such Limited Partner Interests for the account of another Person) (i) shall be admitted to the Partnership as a Limited Partner with respect to the Limited Partner Interests so transferred to such Person when any such transfer or admission is reflected in the books and records of the Partnership and such Limited Partner becomes the Record Holder of the Limited Partner Interests so transferred, (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. The transfer of any Limited Partner Interests and the admission of any new Limited Partner shall not constitute an amendment to this Agreement.
 
(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 at any time to transfer their Common Units, Incentive Distribution Rights, Series A Preferred Units and Series C Preferred Units to one or more Persons.
 
Section 4.6                                    Transfer of the General Partner’s General Partner Interest.
 
(a)                                  Subject to Section 4.6(c)  below, prior to June 30, 2020, the General Partner shall not transfer all or any part of its General Partner Interest (represented by Notional General Partner Units) 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 June 30, 2020, the General Partner may transfer all or any of its General Partner Interest without Unitholder approval.
 
40 

 
(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 limited liability company 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) 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 4.7                                    Transfer of Incentive Distribution Rights.
 
The General Partner or any other holder of Incentive Distribution Rights may transfer any or all of its Incentive Distribution Rights without Unitholder approval. Any holder of the HPIP Equity Interest may transfer any or all of its Incentive Distribution Rights without Unitholder approval. Notwithstanding anything to herein to the contrary, (i) the transfer of Common Units issued pursuant to Section 5.11 shall not be treated as a transfer of all or any part of the Incentive Distribution Rights and (ii) no transfer of Incentive Distribution Rights or HPIP Equity Interests to another Person shall be permitted unless the transferee agrees to be bound by the provisions of this Agreement.
 
Section 4.8                                    Restrictions 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) 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 Partner Interests on the principal National Securities Exchange 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.
 
41 

 
(c)                                   The transfer of Common Units that have been issued upon conversion of Incentive Distribution Rights shall be subject to the restrictions imposed by Section 6.8(b) .
 
(d)                                  Nothing contained in this Agreement, other than Section 4.8(a) , shall preclude the settlement of any transactions involving Partnership Interests entered into through the facilities of any National Securities Exchange on which such Partnership Interests are listed or admitted to trading.
 
(e)                                   Any transfer of a Series A Conversion Unit, any transfer of a Series B Conversion Unit, and any transfer of a Series C Conversion Unit shall be subject to the restrictions imposed by Section 6.10 .
 
Section 4.9                                    Eligibility Certifications; Ineligible Holders.
 
(a)                                  If at any time the General Partner determines, with the advice of counsel, that
 
(i)                                      the U.S. federal income tax status (or lack of proof of the U.S. federal income tax status) of one or more Limited Partners has or is reasonably likely to have a material adverse effect on the rates that can be charged to customers by any Group Member on assets that are subject to regulation by the FERC or analogous regulatory body (a “ Rate Eligibility Trigger ”); or
 
(ii)                                   any Group Member is subject to any federal, state or local law or regulation that would create a substantial risk of cancellation or forfeiture of any property in which the Group Member has an interest based on the nationality, citizenship or other related status of a Partner (a “ Citizenship Eligibility Trigger ”);
 
then, the General Partner may adopt such amendments to this Agreement as it determines to be necessary or advisable to (x) in the case of a Rate Eligibility Trigger, obtain such proof of the U.S. federal income tax status of the Limited Partners and, to the extent relevant, their beneficial owners, as the General Partner determines to be necessary to establish those Limited Partners whose U.S. federal income tax status does not or would not have a material adverse effect on the rates that can be charged to customers by any Group Member or (y) in the case of a Citizenship Eligibility Trigger, obtain such proof of the nationality, citizenship or other related status of the Partner (or, if the 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 determines to be necessary to establish those Partners whose status as Partners does not or would not subject any Group Member to a significant risk of cancellation or forfeiture of any of its properties or interests therein.
 
(b)                                  Such amendments may include provisions requiring all Partners to certify as to their (and their beneficial owners’) status as Eligible Holders upon demand and on a regular basis, as determined by the General Partner, and may require transferees of Units to so certify prior to being admitted to the Partnership as a Partner (any such required certificate, an “ Eligibility Certificate ”).
 
42 

 
(c)                                   Such amendments may provide that any Partner who fails to furnish to the General Partner within a reasonable period requested proof of its (and its beneficial owners’) status as an Eligible Holder or if upon receipt of such Eligibility Certificate or other requested information the General Partner determines that a Partner is not an Eligible Holder (such a Partner an “ Ineligible Holder ”) the Partnership Interests owned by such Limited Partner shall be subject to redemption in accordance with the provisions of Section 4.10 . In addition, the General Partner shall be substituted for all Limited Partners that are Ineligible Holders as the Limited Partner in respect of the Ineligible Holders’ Partnership Interests.
 
(d)                                  The General Partner shall, in exercising voting rights in respect of Partnership Interests held by it on behalf of Ineligible Holders, distribute the votes in the same ratios as the votes of Partners (including the General Partner and its Affiliates) in respect of Partnership Interests other than those of Ineligible Holders are cast, either for, against or abstaining as to the matter.
 
(e)                                   Upon dissolution of the Partnership, an Ineligible 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 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 Holder of his Partnership Interest (representing his right to receive his share of such distribution in kind).
 
(f)                                    At any time after an Ineligible Holder can and does certify that he has become an Eligible Holder, an Ineligible Holder may, upon application to the General Partner, request that with respect to any Partnership Interests of such Ineligible Holder not redeemed pursuant to Section 4.10 , such Ineligible Holder be admitted as a Limited Partner, and upon approval of the General Partner, such Ineligible Holder shall be admitted as a Limited Partner and shall no longer constitute an Ineligible Holder and the General Partner shall cease to be deemed to be the Limited Partner in respect of such Ineligible Holder’s Partnership Interests.
 
Section 4.10                             Redemption of Partnership Interests of Ineligible Holders.
 
(a)                                  If at any time a Partner fails to furnish an Eligibility Certificate or other information requested within the period of time specified in amendments adopted pursuant to Section 4.9 , or if upon receipt of such Eligibility Certificate or other information the General Partner determines, with the advice of counsel, that a Partner is not an Eligible Holder, the Partnership may, unless the Partner establishes to the satisfaction of the General Partner that such Partner is an Eligible Holder or has transferred his Partnership Interests to a Person who is an Eligible Holder and who furnishes an Eligibility Certificate to the General Partner prior to the date fixed for redemption as provided below, redeem the Partnership Interest of such 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 Partner, at his last address designated on the records of the Partnership or the Transfer Agent, by registered or certified mail, postage prepaid. The notice shall be deemed to have been given when so mailed. The notice shall specify the Redeemable Interests, the date fixed for redemption, the place of payment, that payment of the
 
43 

 
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) and that on and after the date fixed for redemption no further allocations or distributions to which the 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 Partnership Interests of the class to be so redeemed multiplied by the number of Partnership 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 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 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 Partnership Interests.
 
(b)                                  The provisions of this Section 4.10 shall also be applicable to Partnership Interests held by a Partner as nominee of a Person determined to be an Ineligible Holder.
 
(c)                                   Nothing in this Section 4.10 shall prevent the recipient of a notice of redemption from transferring his Partnership Interest before the redemption date if such transfer is otherwise permitted under this Agreement. Upon receipt of notice of such a transfer, the General Partner shall withdraw the notice of redemption, provided the transferee of such Partnership Interest certifies to the satisfaction of the General Partner that he is an Eligible 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 5.1                                    Intentionally Omitted.
 
Section 5.2                                    Contributions by the General Partner and the Initial Limited Partners.
 
(a)                                  Upon the issuance of any additional Limited Partner Interests by the Partnership (other than Common Units issued pursuant to Section 5.11 ), the General Partner may, in order to
 
44 

 
maintain its Percentage Interest, make additional Capital Contributions in an amount equal to the product obtained by multiplying (i)the quotient determined by dividing (A) the General Partner’s Percentage Interest immediately prior to the issuance of such Additional Limited Partner Interests by the Partnership by (B) 100 less the General Partner’s Percentage Interest immediately prior to the issuance of such Additional Limited Partner Interests by the Partnership times (ii) the amount contributed to the Partnership by the Limited Partners in exchange for such Additional Limited Partner Interests. Except as set forth in Article XII , the General Partner shall not be obligated to make any additional Capital Contributions to the Partnership.
 
Section 5.3                                    Contributions by Limited Partners.
 
No Limited Partner will be required to make any Capital Contribution to the Partnership pursuant to this Agreement.
 
Section 5.4                                    Interest 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 liquidation of the Partnership may be considered as such by law and then only to the extent provided for in this Agreement. Except to the extent expressly provided in this Agreement, no Partner shall have priority over any other Partner either as to the return of Capital Contributions or as to profits, losses or distributions. Any such return shall be a compromise to which all Partners agree within the meaning of Section 17-502(b) of the Delaware Act.
 
Section 5.5                                    Capital Accounts.
 
(a)                                  The Partnership shall maintain for each Partner (or a beneficial owner of Partnership Interests held by a nominee in any case in which the nominee has furnished the identity of such owner to the Partnership in accordance with Section 6031(c) of the Code or any other method acceptable to the General Partner) owning a Partnership Interest a separate Capital Account with respect to such Partnership Interest in accordance with the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of all Capital Contributions made to the Partnership with respect to such Partnership Interest and (ii) all items of Partnership income and gain (including income and gain exempt from tax) computed in accordance with Section 5.5(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 (other than Series A PIK Preferred Units, Series B PIK Units, or Series C PIK Preferred Units) made with respect to such Partnership Interest and (y) all items of Partnership deduction and loss computed in accordance with Section 5.5(b)  and allocated with respect to such Partnership Interest pursuant to Section 6.1 . For the avoidance of doubt, the Series A Preferred Units, the Series B Units, and the Series C Preferred Units will be treated as a partnership interest in the Partnership that is “convertible equity” within the meaning of Treasury Regulation Section 1.721-2(g)(3), and, therefore, each holder of a Series A Preferred Unit, Series B Unit, or Series C Preferred Unit will be treated as a partner in the Partnership, other than with respect to the conversion feature of the Series A Preferred Unit, Series B Unit, or Series C Preferred Unit. The initial Capital Account balance in respect of each
 
45 

 
Series A Preferred Unit issued on the Series A Issuance Date shall be the Series A Issue Price, and the initial Capital Account balance in respect of each Series A PIK Preferred Unit shall be zero. After an issuance of Series A PIK Preferred Units pursuant to Section 5.12(b)(ii) , the Capital Accounts of all Series A Preferred Units that are Outstanding prior to such issuance shall be divided equally among all Series A Preferred Units that are Outstanding after such issuance. The Capital Account balance of each holder of Series A Preferred Units in respect of its Series A Preferred Units shall not be increased or decreased as a result of the accrual and accumulation of an unpaid distribution pursuant to Section 5.12(b)(ii)(A)  or Section 5.12(b)(ii)(B)  in respect of such Series A Preferred Units except as otherwise provided in this Agreement. The initial Capital Account balance in respect of each Series B Unit (including each Series B PIK Unit) shall be the Series B Issue Price. The initial Capital Account balance in respect of each Series C Preferred Unit issued on the Series C Issuance Date shall be the Series C Issue Price, and the initial Capital Account balance in respect of each Series C PIK Preferred Unit shall be zero. After an issuance of Series C PIK Preferred Units pursuant to Section 5.14(b)(ii) , the Capital Accounts of all Series C Preferred Units that are Outstanding prior to such issuance shall be divided equally among all Series C Preferred Units that are Outstanding after such issuance. The Capital Account balance of each holder of Series C Preferred Units in respect of its Series C Preferred Units shall not be increased or decreased as a result of the accrual and accumulation of an unpaid distribution pursuant to Section 5.14(b)(ii)(A)  or Section 5.14(b)(ii)(B)  in respect of such Series C Preferred Units except as otherwise provided in this Agreement.
 
(b)                                  For purposes of computing the amount of any item of income, gain, loss or deduction 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 5.5 , 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 equity holder.
 
(ii)                                   All fees and other expenses incurred by the Partnership to promote the sale of (or to sell) a Partnership Interest that can neither be deducted nor amortized under Section 709 of the Code, if any, shall, for purposes of Capital Account maintenance, be treated as an item of deduction at the time such fees and other expenses are incurred and shall be allocated among the Partners pursuant to Section 6.1 .
 
(iii)                                Except as otherwise provided in Treasury Regulation Section 1.704-1(b)(2)(iv)(m), the computation of all items of income, gain, loss and deduction shall be made without regard to any election under Section 754 of the Code 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
 
46 

 
currently deductible nor capitalized for U.S. federal income tax purposes. To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment in the Capital Accounts shall be treated as an item of gain or loss.
 
(iv)                               Any income, gain or 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 or amortization attributable to any Contributed Property shall be determined as if the adjusted basis of such property on the date it was acquired by the Partnership were equal to the Agreed Value of such property. Upon an adjustment pursuant to Section 5.5(d)  to the Carrying Value of any Partnership property subject to depreciation, cost recovery or amortization, any further deductions for such depreciation, cost recovery or amortization attributable to such property shall be determined, 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).
 
(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.
 
(i)                                      Reserved.
 
(ii)                                   Upon the issuance of IDR Reset Common Units pursuant to Section 5.11(a) , the Capital Account maintained with respect to the Incentive Distribution Rights shall (A) first, be allocated to IDR Reset Common Units in an amount equal to the product of (x) the Aggregate Quantity of IDR Reset Common Units and (y) the Per Unit Capital Amount for an IPO Common Unit, and (B) second, any remaining balance in such Capital Account will be retained by the holder of the Incentive Distributions Rights. In the event that there is not a sufficient Capital Account associated with the Incentive Distribution Rights to allocate the full Per Unit Capital Amount for an IPO Common Unit to the IDR Reset Common Units in accordance with clause (A) of this Section 5.5(c)(ii) , the IDR Reset Common Units shall be subject to Section 6.1(d)(x)(B)  and Section 6.1(d)(x)(C) .
 
(iii)                                Reserved.
 
47 

 
(iv)                               Immediately prior to the transfer of a Post-Initial Issuance Series B Unit by a holder thereof (other than a transfer to an Affiliate unless the General Partner elects to have this Section 5.5(c)(iv)  apply), the aggregate Capital Account maintained for such Person with respect to its Post-Initial Issuance Series B Units will (A) first, be allocated to the Post-Initial Issuance Series B Units to be transferred in an amount equal to the product of (x) the number of such Post-Initial Issuance Series B Units to be transferred and (y) the Per Unit Capital Amount for a Common Unit that is not a Post-Initial Issuance Series B Unit, and (B) second, any remaining positive balance in such Capital Account will be retained by the transferor, regardless of whether it has retained any Post-Initial Issuance Series B Units and if the remaining balance would be negative, items of Partnership income and gain shall be specially allocated to such transferor Partner in an amount and manner sufficient to eliminate the deficit in its Capital Account as quickly as possible. Following any such allocation, the transferor’s Capital Account, if any, maintained with respect to the retained Post-Initial Issuance Series B Units, if any, will have a balance equal to the amount allocated under clause (B) above, and the transferee’s Capital Account established with respect to the transferred Post-Initial Issuance Series B Units will have a balance equal to the amount allocated under clause (A) above.
 
(d)                                  (i)                                      In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), on (A) an issuance of additional Partnership Interests for cash or other property (other than an issuance of Series A PIK Preferred Units, Series B PIK Units, or Series C PIK Preferred Units), (B) the issuance of additional Partnership Interests for the provision of services, (C) the issuance by the Partnership of a “noncompensatory option” within the meaning of Treasury Regulations Sections 1.721-2(f) and 1.761-3(b)(2) which is not treated as a partnership interest pursuant to Treasury Regulations Section 1.761-3(a) (other than an issuance of Series A PIK Preferred Units pursuant to Section 5.12(b)(ii) , the issuance of Series B PIK Units pursuant to Section 5.13(d), or the issuance of Series C PIK Preferred Units pursuant to Section 5.14(b)(ii) ), or (D) the conversion of a General Partner’s Combined Interest to Common Units pursuant to Section 11.3(b) , the Capital Account of each Partner and the Carrying Value of each Partnership property shall be adjusted immediately prior to such event 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 event and had been allocated pursuant to Section 6.1(c)  and Section 6.1(d)  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; provided, however , 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 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. The General Partner shall adjust such Carrying Values in respect of the contributions that are made on the Closing Date. In determining such Unrealized Gain or Unrealized Loss, the aggregate cash amount and fair market value of all Partnership assets immediately prior to such event shall be determined by the General Partner using such reasonable method of valuation as it may adopt (taking into account Section 7701(g) of the Code); 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). The General Partner shall
 
48 

 
allocate such aggregate value among the assets of the Partnership in such manner as it determines in its discretion to be reasonable.
 
(ii)                                   In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), immediately prior to any actual or deemed distribution to a Partner of any Partnership property (other than a distribution of cash that is not in redemption or retirement of a Partnership Interest), the Capital Accounts of all Partners and the Carrying Value of all Partnership property shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Partnership property, as if such Unrealized Gain or Unrealized Loss had been recognized in a sale of such property immediately prior to such distribution for an amount equal to its fair market value, and had been allocated to the Partners, at such time, pursuant to Section 6.1(c)  and Section 6.1(d)  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 fair market value of all Partnership assets (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 and allocated in the same manner as that provided in Section 5.5(d)(i)  or (B) in the case of a liquidating distribution pursuant to Section 12.4 , be determined and allocated by the Liquidator using such method of valuation as it may adopt.
 
(iii)                                In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(s), immediately after the conversion of a Series A Preferred Unit, Series B Unit, or Series C Preferred Unit into Common Units in accordance with Section 5.12(b)(viii) , Section 5.13(c)  or Section 5.14(b)(viii) , as applicable, the Capital Account of each Partner and the Carrying Value of each Partnership property shall be adjusted 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 after such conversion and (A) first, all Unrealized Gain (if the Capital Account of each such Series A Conversion Unit, Series B Conversion Unit, or Series C Conversion Unit, as applicable, is less than the Per Unit Capital Amount for a then Outstanding IPO Common Unit) or Unrealized Loss (if the Capital Account of each such Series A Conversion Unit, Series B Conversion Unit, or Series C Conversion Unit, as applicable, is greater than the Per Unit Capital Amount for a then Outstanding IPO Common Unit) had been allocated Pro Rata to each Partner holding Series A Conversion Units, Series B Conversion Units, or Series C Conversion Units received upon such conversion until the Capital Account of each such Series A Conversion Unit, Series B Conversion Unit, or Series C Conversion Unit, as applicable, is equal to the Per Unit Capital Amount for a then Outstanding IPO Common Unit; and (B) second, any remaining Unrealized Gain or Unrealized Loss had been allocated to the Partners at such time pursuant to Section 6.1(c)  and Section 6.1(d) . In determining such Unrealized Gain or Unrealized Loss, the aggregate cash amount and fair market value of all Partnership assets immediately after the conversion of a Series A Preferred Unit, Series B Unit, or Series C Preferred Unit shall be determined by the General Partner using such reasonable method of valuation as it may adopt (taking into account Section 7701(g) of the Code); 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). The General Partner shall
 
49 

 
allocate such aggregate value among the assets of the Partnership in such manner as it determines in its discretion to be reasonable. If, after making the allocations of Unrealized Gain and Unrealized Loss as set forth above in this Section 5.5(d)(iii) , the Capital Account of each Partner with respect to each Series A Conversion Unit, Series B Conversion Unit, or Series C Conversion Unit, as applicable, received upon such conversion of the Series A Preferred Unit, Series B Unit or Series C Preferred Unit, as applicable, is less than the Per Unit Capital Amount for a then Outstanding IPO Common Unit, then Capital Account balances shall be reallocated between the Partners holding Common Units (other than Series A Conversion Units, Series B Conversion Units, and Series C Conversion Units) and Partners holding Series A Conversion Units, Series B Conversion Units, and Series C Conversion Units, as applicable, so as to cause the Capital Account of each Partner holding a Series A Conversion Unit, Series B Conversion Unit, or Series C Conversion Unit, as applicable, to equal, on a per Unit basis with respect to each such Series A Conversion Unit, Series B Conversion Unit, or Series C Conversion Unit, the Per Unit Capital Amount for a then Outstanding IPO Common Unit.
 
(iv)                               In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(s), immediately after the issuance of Warrant Exercised Units upon the exercise of a Warrant, the Capital Account of each Partner and the Carrying Value of each Partnership property shall be adjusted 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 after such exercise and (A) first, all Unrealized Gain (if the Capital Account of each such Warrant Exercised Unit is less than the Per Unit Capital Amount for a then Outstanding IPO Common Unit) or Unrealized Loss (if the Capital Account of each such Warrant Exercised Unit is greater than the Per Unit Capital Amount for a then Outstanding IPO Common Unit) shall be allocated Pro Rata to each Partner holding Warrant Exercised Units received upon such exercise until the Capital Account of each such Warrant Exercised Unit is equal to the Per Unit Capital Amount for a then Outstanding IPO Common Unit; and (B) second, any remaining Unrealized Gain or Unrealized Loss shall be allocated to the Partners at such time pursuant to Section 6.1(c)  and Section 6.1(d) . In determining such Unrealized Gain or Unrealized Loss, the aggregate cash amount and fair market value of all Partnership assets immediately after the exercise of a Warrant shall be determined by the General Partner using such reasonable method of valuation as it may adopt (taking into account Section 7701(g) of the Code); 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). The General Partner shall allocate such aggregate value among the assets of the Partnership in such manner as it determines in its discretion to be reasonable. If, after making the allocations of Unrealized Gain and Unrealized Loss as set forth above in this Section 5.5(d)(iv) , the Capital Account of each Partner with respect to each Warrant Exercised Unit received upon such exercise of a Warrant is less than the Per Unit Capital Amount for a then Outstanding IPO Common Unit, then Capital Account balances shall be reallocated between the Partners holding Common Units (other than Warrant Exercised Units) and Partners holding Warrant Exercised Units so as to cause the Capital Account of each Partner holding a Warrant Exercised Unit to equal, on a per Unit basis with respect to each such Warrant Exercised Unit, the Per Unit Capital Amount for a then Outstanding IPO Common Unit.
 
50 

 
Section 5.6                                    Issuances of Additional Partnership Interests.
 
(a)                                  The Partnership may issue additional Partnership Interests and options, rights, warrants, appreciation rights, tracking and phantom interests, and other economic interests relating to the 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 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 5.6(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 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) the rights upon dissolution and liquidation of the Partnership; (iv) whether, and the terms and conditions upon which, the Partnership may or shall be required to redeem the Partnership Interest (including sinking fund provisions) or other security; (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; and (viii) the right, if any, of each such Partnership Interest to vote on Partnership matters, including matters relating to the relative rights, preferences and privileges of such Partnership Interest.
 
(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, appreciation rights, tracking and phantom interests, and other economic interests in the Partnership or relating to Partnership Interests pursuant to this Section 5.6 or Section 7.4(c) , (ii) the conversion of the Combined Interest into Units pursuant to the terms of this Agreement, (iii) the issuance of Common Units pursuant to Section 5.11 , (iv) the admission of Additional Limited Partners and (v) all additional issuances of Partnership Interests. 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 on which the Units or other Partnership Interests are listed or admitted to trading.
 
(d)                                  No fractional Units shall be issued by the Partnership.
 
51 

 
Section 5.7                                    Reserved.
 
Section 5.8                                    Limited Preemptive Right.
 
Except as provided in this Section 5.8 and in Section 5.2 or as otherwise provided in a separate agreement by the Partnership, no Person shall have any preemptive, preferential or other similar right with respect to the issuance of any Partnership Interest or other security, whether unissued, held in the treasury or hereafter created. The General Partner shall have the right, that it may from time to time assign in whole or in part to any of its Affiliates, to purchase Partnership Interests from the Partnership whenever, and on the same terms that, the Partnership issues Partnership Interests to Persons other than the General Partner and its Affiliates, to the extent necessary to maintain the Percentage Interests of the General Partner and its Affiliates equal to that which existed immediately prior to the issuance of such Partnership Interests. Any determination by the General Partner whether to exercise its right pursuant to the immediately preceding sentence shall be a determination made in its individual capacity and not as the general partner of the Partnership, and such determination may be made in accordance with Section 7.9(c) .
 
Section 5.9                                    Splits and Combinations.
 
(a)                                  Subject to Section 5.9(d) , Section 6.6 and Section 6.9 (dealing with adjustments of distribution levels), 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 (including any Common Unit Arrearage or Cumulative Common Unit Arrearage) or stated as a number of Units (including the number of Common Units into which Series A Preferred Units, Series B Units, or Series C Preferred Units may convert) 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)                                   If a Pro Rata distribution of Partnership Interests, or a subdivision or combination of Partnership Interests, is made as contemplated in this Section 5.9 , the number of Notional General Partner Units constituting the Percentage Interest of the General Partner (as determined immediately prior to the Record Date for such distribution, subdivision or combination) shall be appropriately adjusted as of the effective date for payment of such distribution, subdivision or combination to maintain such Percentage Interest of the General Partner.
 
52 

 
(d)                                  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.
 
(e)                                   The Partnership shall not issue fractional Units or Notional General Partner 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 or fractional Notional General Partner Units but for the provisions of this Section 5.9(e) , each fractional Unit or fractional Notional General Partner Unit shall be rounded to the nearest whole Unit or Notional General Partner Unit (and a 0.5 Unit or Notional General Partner Unit shall be rounded to the next higher Unit or Notional General Partner Unit).
 
(f)                                    For the avoidance of doubt, upon any Pro Rata distribution of Partnership Interests to all Record Holders of Common Units or any subdivision or combination (or reclassification into a greater or smaller number) of Common Units, the Partnership will proportionately adjust the number of Series B Units as follows: (i) if the Partnership issues Partnership Interests as a distribution on its Common Units or subdivides the Common Units (or reclassifies them into a greater number of Common Units), then the Series B Units shall be subdivided into a number of Series B Units equal to the result of multiplying the number of Series B Units by a fraction, (A) the numerator of which shall be the sum of the number of Common Units outstanding immediately prior to such distribution or subdivision plus the total number of Partnership Interests constituting such distribution or newly created by such subdivision, and (B) the denominator of which shall be the number of Common Units outstanding immediately prior to such distribution or subdivision, and (ii) if the Partnership combines the Common Units (or reclassifies them into a smaller number of Common Units), then the Series B Units shall be combined into a number of Series B Units equal to the result of multiplying the number of Series B Units by a fraction, (A) the numerator of which shall be the sum of the number of Common Units outstanding immediately following such combination, and (B) the denominator of which shall be the number of Common Units outstanding immediately prior to such combination.
 
Section 5.10                             Fully Paid and Non-Assessable Nature of Limited Partner Interests.
 
All Limited Partner Interests issued pursuant to, and in accordance with the requirements of, this Article V shall be fully paid and non-assessable Limited Partner Interests in the Partnership, except as such non-assessability may be affected by either or both of Sections 17-607 and 17-804 of the Delaware Act.
 
53 

 
Section 5.11                             Issuance of Common Units in Connection with Reset of Incentive Distribution Rights.
 
(a)                                  Subject to the provisions of this Section 5.11 , the holder of the Incentive Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the holders of a majority in interest of the Incentive Distribution Rights) shall have the right, exercisable at its option at any time when the Partnership has made a distribution on its Common Units exceeding the Target Distribution for each of the four most recently completed Quarters and the amount of each such distribution did not exceed Adjusted Operating Surplus for such Quarter, to make an election (the “ IDR Reset Election ”) to cause the Minimum Quarterly Distribution to be reset in accordance with the provisions of Section 5.11(e)  and, in connection therewith, the holder or holders of the Incentive Distribution Rights will become entitled to receive their respective proportionate share of a number of Common Units (the “ IDR Reset Common Units ”) derived by dividing (i) the average aggregate amount of cash distributions made by the Partnership for the two full Quarters immediately preceding the giving of the Reset Notice (as defined in Section 5.11(b) ) in respect of the Incentive Distribution Rights by (ii) the average of the cash distributions made by the Partnership in respect of each Common Unit for the two full Quarters immediately preceding the giving of the Reset Notice (the number of Common Units determined by such quotient is referred to herein as the “ Aggregate Quantity of IDR Reset Common Units ”). If at the time of any IDR Reset Election the General Partner and its Affiliates are not the holders of a majority interest of the Incentive Distribution Rights, then the IDR Reset Election shall be subject to the prior written concurrence of the General Partner that the conditions described in the immediately preceding sentence have been satisfied. The Percentage Interest of the General Partner, with respect to the General Partner Interest, after the issuance of the Aggregate Quantity of IDR Reset Common Units shall equal the Percentage Interest of the General Partner, with respect to the General Partner Interest, prior to the issuance of the Aggregate Quantity of IDR Reset Common Units and the General Partner shall not be obligated to make any additional Capital Contribution to the Partnership in order to maintain its Percentage Interest in connection therewith and shall be issued an additional number of Notional General Partner Units as is required to maintain such Percentage Interest. The making of the IDR Reset Election in the manner specified in Section 5.11(b)  shall cause the Minimum Quarterly Distribution to be reset in accordance with the provisions of Section 5.11(e)  and, in connection therewith, the holder or holders of the Incentive Distribution Rights will become entitled to receive IDR Reset Common Units on the basis specified above, without any further approval required by the General Partner or the Unitholders, at the time specified in Section 5.11(c)  unless the IDR Reset Election is rescinded pursuant to Section 5.11(d) .
 
(b)                                  To exercise the right specified in Section 5.11(a) , the holder of the Incentive Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the holders of a majority in interest of the Incentive Distribution Rights) shall deliver a written notice (the “ Reset Notice ”) to the Partnership. Within 10 Business Days after the receipt by the Partnership of such Reset Notice, the Partnership shall deliver a written notice to the holder or holders of the Incentive Distribution Rights of the Partnership’s determination of the aggregate number of IDR Reset Common Units that each holder of Incentive Distribution Rights will be entitled to receive.
 
54 

 
(c)                                   The holder or holders of the Incentive Distribution Rights will be entitled to receive the Aggregate Quantity of IDR Reset Common Units on the fifteenth Business Day after receipt by the Partnership of the Reset Notice; provided, however , that the issuance of IDR Reset Common Units to the holder or holders of the Incentive Distribution Rights shall not occur prior to the approval of the listing or admission for trading of such IDR Reset Common Units by the principal National Securities Exchange upon which the Common Units are then listed or admitted for trading if any such approval is required pursuant to the rules and regulations of such National Securities Exchange.
 
(d)                                  If the principal National Securities Exchange upon which the Common Units are then traded has not approved the listing or admission for trading of the Common Units to be issued pursuant to this Section 5.11 on or before the 30th calendar day following the Partnership’s receipt of the Reset Notice and such approval is required by the rules and regulations of such National Securities Exchange, then the holder of the Incentive Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the holders of a majority in interest of the Incentive Distribution Rights) shall have the right to either rescind the IDR Reset Election or elect to receive other Partnership Interests having such terms as the General Partner may approve, with the approval of a Conflicts Committee, that will provide (i) the same economic value, in the aggregate, as the Aggregate Quantity of IDR Reset Common Units would have had at the time of the Partnership’s receipt of the Reset Notice, as determined by the General Partner, and (ii) for the subsequent conversion (on terms acceptable to the National Securities Exchange upon which the Common Units are then traded) of such Partnership Interests into Common Units within not more than 12 months following the Partnership’s receipt of the Reset Notice upon the satisfaction of one or more conditions that are reasonably acceptable to the holder of the Incentive Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the holders of a majority in interest of the Incentive Distribution Rights).
 
(e)                                   The Minimum Quarterly Distribution shall be increased at the time of the issuance of Common Units or other Partnership Interests pursuant to this Section 5.11 such that the Minimum Quarterly Distribution shall be reset to equal the average cash distribution amount per Common Unit for the two Quarters immediately prior to the Partnership’s receipt of the Reset Notice (the “ Reset MQD ”).
 
Section 5.12                             Establishment of Series A Preferred Units.
 
(a)                                  General . The Partnership hereby designates and creates a series of Units to be designated as “ Series A-1 Convertible Preferred Units ” and consisting of a total of 5,142,857 Series A-1 Preferred Units, and a series of Units to be designated as “ Series A-2 Convertible Preferred Units ” and consisting of a total of 2,571,429 Series A-2 Preferred Units, plus any additional Series A-1 Preferred Units and Series A-2 Preferred Units issued in kind as a distribution pursuant to Section 5.12(b)(ii)  (“ Series A PIK Preferred Units ”), having the same rights, preferences and privileges, and subject to the same duties and obligations, as the Common Units, except as set forth in this Section 5.12 and in Section 5.5(d)(i) , Section 6.10 , and Section 12.9 . Series A-1 Convertible Preferred Units shall be issued as Series A PIK Preferred Units with respect to Series A-1 Convertible Preferred Units. Series A-2 Convertible Preferred Units shall be issued as Series A PIK Preferred Units with respect to Series A-2 Convertible Preferred Units.
 
55 

 
As of March 30, 2015, all units previously issued as “Series A Convertible Preferred Units” shall be “Series A-1 Convertible Preferred Units.” The Series A-1 Convertible Preferred Units and Series A-2 Convertible Preferred Units, whether issued on a Series A Issuance Date or as Series A PIK Preferred Units, are referred to herein as “ Series A Preferred Units ” and as such the Series A-1 Convertible Preferred Units and the Series A-2 Convertible Preferred Units shall be considered pari passu as to allocations and distributions with each other and with the Series C Convertible Preferred Units. As of April 21, 2016, 9,499,370 Series A Preferred Units had been issued. Other than with respect to Series A PIK Preferred Units, immediately following the Series A Issuance Date and thereafter, no additional Series A Preferred Units shall be designated, created or issued without the prior written approval of the General Partner and the holders of a majority of the Outstanding Series A Preferred Units.
 
(b)                                  Rights of Series A Preferred Units . The Series A Preferred Units shall have the following rights, preferences and privileges and shall be subject to the following duties and obligations:
 
(i)                                      Allocations .
 
(A)                                Notwithstanding anything to the contrary in Section 6.1(a) , (x) following any allocation made pursuant to Section 6.1(a)(i)  and prior to any allocation made pursuant to Section 6.1(a)(ii) , any Net Income shall be allocated to all Unitholders holding Series A Preferred Units, Pro Rata, until the aggregate of the Net Income allocated to such Unitholders pursuant to this Section 5.12(b)(i)(A)  for the current and all previous taxable periods since issuance of the Series A Preferred Units is equal to the aggregate amount of cash distributed with respect to such Series A Preferred Units for the current and previous taxable periods and (y) in no event shall any Net Income be allocated pursuant to Section 6.1(a)(ii)  in respect of Series A Preferred Units.  Allocations to Series A Preferred Units pursuant to this Section 5.12(b)(i)(A)  and to Series C Preferred Units pursuant to Section 5.14(b)(i)(A)  shall be made Pro Rata.
 
(B)                                Notwithstanding anything to the contrary in Section 6.1(b) , (x) Unitholders holding Series A Preferred Units shall not receive any allocation pursuant to Section 6.1(b)(i)  with respect to their Series A Preferred Units, and (y) following any allocation made pursuant to Section 6.1(b)(i)  and prior to any allocation made pursuant to Section 6.1(b)(ii) , Net Losses shall be allocated to all Unitholders holding Series A Preferred Units, Pro Rata, until the Adjusted Capital Account of each such Unitholder in respect of each Outstanding Series A Preferred Unit has been reduced to zero.  Allocations to Series A Preferred Units pursuant to this Section 5.12(b)(i)(B)  and to Series C Preferred Units pursuant to Section 5.14(b)(i)(B)  shall be made Pro Rata.
 
(C)                                Notwithstanding anything to the contrary in Section 6.1(c)(i) , (x) Unitholders holding Series A Preferred Units shall not receive any allocation pursuant to Section 6.1(c)(i)  with respect to their Series A
 
56 

 
Preferred Units, but (y) following any allocation made pursuant to Section 6.1(c)(i)(A)  and prior to any allocation made pursuant to Section 6.1(c)(i)(B) , any remaining Net Termination Gain shall be allocated to all Unitholders holding Series A Preferred Units, Pro Rata, until the Capital Account in respect of each Outstanding Series A Preferred Unit is equal to the Series A Liquidation Value.  Allocations to Series A Preferred Units pursuant to this Section 5.12(b)(i)(C)  and to Series C Preferred Units pursuant to Section 5.14(b)(i)(C)  shall be made Pro Rata.
 
(D)                                Notwithstanding anything to the contrary in Section 6.1(c)(ii) , (x) Unitholders holding Series A Preferred Units shall not receive any allocation pursuant to Section 6.1(c)(ii)  with respect to their Series A Preferred Units, and (y) following the allocations made pursuant to Section 6.1(c)(ii)(C) , and prior to any allocation made pursuant to Section 6.1(c)(ii)(D) , any remaining Net Termination Loss shall be allocated to all Unitholders holding Series A Preferred Units, Pro Rata, until the Capital Account in respect of each Outstanding Series A Preferred Unit has been reduced to zero.  Allocations to Series A Preferred Units pursuant to this Section 5.12(b)(i)(D)  and to Series C Preferred Units pursuant to Section 5.14(b)(i)(D)  shall be made Pro Rata.
 
(ii)                                   Distributions .
 
(A)                                Commencing with the Quarter ending on June 30, 2013, the holders of the Series A Preferred Units Outstanding as of an applicable Record Date shall be entitled to receive cumulative distributions (each, a “ Series A Quarterly Distribution ”), prior to any other distributions made in respect of any Junior Interests pursuant to Section 6.4 or Section 6.5 , in the amount set forth in this Section 5.12(b)(ii)(A)  in respect of each Outstanding Series A Preferred Unit. All such distributions shall be paid Quarterly within forty-five (45) days after the end of each Quarter (each such payment date, a “ Series A Distribution Payment Date ”).  For the Quarter ending June 30, 2013, and for each Quarter thereafter through and including the Quarter ending March 31, 2014, the Series A Quarterly Distribution on each Outstanding Series A Preferred Unit shall be paid as follows: (i) a number of Series A PIK Preferred Units equal to the Series A PIK Payment Amount and (ii) $0.25 in cash (provided that for the Quarter in which the Series A Issuance Date occurs, the amount payable pursuant to this clause (ii) shall be an amount in cash equal to the product of (I) $0.25 times (II) a fraction, of which the numerator is the number of days from and including the Series A Issuance Date to but excluding the date of such Quarter’s end, and the denominator is 91).  For the Quarter ending June 30, 2014, and for each Quarter thereafter through and including the Quarter ending immediately prior to the Series A Coupon Conversion Quarter, the Series A Quarterly Distribution on each Outstanding Series A Preferred Unit shall be paid a number of Series A
 
57 

 
PIK Preferred Units equal to the Series A Second PIK Payment Amount; provided that, in the discretion of the General Partner which determination shall be made prior to the Record Date for the relevant quarter, the Series A Quarterly Distribution may be paid as (x) a number of Series A PIK Preferred Units equal to the Series A PIK Payment Amount and $0.25 in cash or (y) an amount in cash equal to the greater of (x) $0.50 and (y) the Series A Distribution Amount.  With respect to the Series A Coupon Conversion Quarter and all Quarters thereafter, the Series A Quarterly Distributions shall be paid entirely in cash at the Series A Distribution Rate per Series A Preferred Unit.  If the Partnership establishes a Record Date for any distribution to be made by the Partnership on other Partnership Interests pursuant to Section 6.4 or Section 6.5 , then the Record Date established pursuant to this Section 5.12(b)(ii)  for a Series A Quarterly Distribution in respect of any Quarter shall be the same Record Date established for any distribution to be made by the Partnership in respect of distributions on other Partnership Interests pursuant to Section 6.4 or Section 6.5 for such Quarter. Unless otherwise expressly provided, references in this Agreement to Series A Preferred Units shall include all Series A PIK Preferred Units Outstanding as of the date of such determination.
 
(B)                                When any Series A PIK Preferred Units are payable to a Record Holder of Series A Preferred Units pursuant to this Section 5.12 , the Partnership shall issue the Series A PIK Preferred Units to such Record Holder no later than the Series A Distribution Payment Date (the date of issuance of such Series A PIK Preferred Units, the “ Series A PIK Preferred Payment Date ”). On the Series A PIK Preferred Payment Date, the Partnership shall issue to such Series A Unitholder a Certificate or Certificates for the number of Series A PIK Preferred Units to which such Series A Unitholder shall be entitled. The issuance of the Series A PIK Preferred Units pursuant to this Section 5.12(b)(ii)  shall be deemed to have been made on the first day of the Quarter following the Quarter in respect of which such payment of Series A PIK Preferred Units was due. Prior to the Series A Coupon Conversion Quarter, if, in violation of this Agreement, the Partnership fails to pay in full any Series A Quarterly Distribution in kind when due, then the holders entitled to the unpaid Series A PIK Preferred Units shall be entitled (I) to Series A Quarterly Distributions in subsequent Quarters, (II) to receive the Series A Liquidation Value in accordance with Section 5.12(b)(iv)  in respect of such Series A PIK Preferred Units, and (III) to all other rights under this Agreement as if such unpaid Series A PIK Preferred Units had in fact been distributed on the date due. Nothing in this Section 5.12(b)(ii)(B)  shall alter the obligation of the Partnership to pay any unpaid Series A PIK Preferred Units or the right of the holders of Series A Preferred Units to enforce this Agreement to compel the Partnership to distribute any unpaid Series A PIK Preferred Units. Fractional Series A PIK Preferred Units
 
58 

 
shall not be issued to any person (each fractional Series A PIK Preferred Unit shall be rounded to the nearest whole Series A PIK Preferred Unit (and a 0.5 Series A PIK Preferred Unit shall be rounded up to the next higher Series A PIK Preferred Unit)).
 
(C)                                Beginning with the Series A Coupon Conversion Quarter, if in violation of this Agreement, the Partnership fails to pay in full any Series A Quarterly Distribution when due, then, without limiting any rights of the holders of the Series A Preferred Units to compel the Partnership to make such distribution, from and after the first date of such failure and continuing until such failure is cured by payment in full in cash of all arrearages with respect to any Series A Quarterly Distribution, including accrued but unpaid interest thereon, (w) the amount of such unpaid distributions (“ Series A Unpaid Cash Distributions ”) will accrue and accumulate from and including the first day of the Quarter immediately following the Quarter in respect of which such payment is due until paid in full, (x) any Series A Unpaid Cash Distribution shall accrue interest from the applicable Series A Distribution Payment Date at rate equal to 6.0% per annum, and (y) the Partnership shall not be permitted to, and shall not, declare or make (i) any distributions in respect of any Junior Interests and (ii) any distributions in respect of any Series A Parity Securities.
 
(D)                                If all or any portion of a Series A Quarterly Distribution is to be paid in cash, then the aggregate amount of such cash to be so distributed in respect of the Series A Preferred Units Outstanding as of the Record Date for such Series A Quarterly Distribution shall be paid out of Available Cash prior to making any distribution pursuant to Section 6.4 or Section 6.5 . To the extent that any portion of a Series A Quarterly Distribution to be paid in cash with respect to any Quarter, together with any portion of a Series C Quarterly Distribution to be paid in cash with respect to such Quarter, exceeds the amount of Available Cash for such Quarter, an amount of cash equal to the Available Cash for such Quarter will be paid to the Series A Unitholders and Series C Unitholders Pro Rata and the balance of such Series A Quarterly Distribution (and Series C Quarterly Distribution) shall be unpaid and shall constitute an arrearage and accrue interest as set forth in Section 5.12(b)(ii)(C) . The Partnership shall provide written notice to the Series A Unitholders, not later than the last Business Day of the month immediately following the end of such Quarter, describing in reasonable detail the Partnership’s calculation of Available Cash for such Quarter and the portion, if any, of the Series A Quarterly Distribution the Partnership will be unable to pay on the applicable Series A Distribution Payment Date.
 
(E)                                 Notwithstanding anything in this Section 5.12(b)(ii)  to the contrary, with respect to Series A Preferred Units that are converted into
 
59 

 
Common Units, the holder thereof shall not be entitled to a Series A Preferred Unit distribution and a Common Unit distribution with respect to the same period, but shall be entitled only to the distribution to be paid based upon the class of Units held as of the close of business on the applicable Record Date. For the avoidance of doubt, if a Series A Conversion Notice Date occurs prior to the close of business on a Record Date for payment of a distribution on the Common Units, the applicable holder of Series A Preferred Units shall receive only the Common Unit distribution with respect to such period.
 
(F)                                  Notwithstanding anything in Article VI to the contrary, neither the General Partner nor the holders of Incentive Distribution Rights shall be entitled to receive distributions or allocations of income or gain that correspond or relate to amounts distributed or allocated to Unitholders in respect of Series A Preferred Units, regardless of whether the amounts so distributed or allocated in respect of the Series A Preferred Units were determined under clause (ii) of the definition of “Series A Distribution Rate” or were otherwise determined on an “as converted” basis.
 
(iii)                                Issuance of Series A Preferred Units . The Series A-1 Convertible Preferred Units (excluding Series A-1 Convertible Preferred Units issued as Series A PIK Preferred Units) shall be issued by the Partnership pursuant to the terms and conditions of the Contribution Agreement. The Series A-2 Convertible Preferred Units (excluding Series A-2 Convertible Preferred Units issued as Series A PIK Preferred Units) shall be issued by the Partnership pursuant to the terms and conditions of the Series A-2 Convertible Preferred Unit Purchase Agreement between the Partnership and Magnolia Infrastructure Partners, LLC, dated as of March 30, 2015.
 
(iv)                               Liquidation Value . In the event of any liquidation, dissolution and winding up of the Partnership under Section 12.4 or a sale, exchange or other disposition of all or substantially all of the assets of the Partnership, either voluntary or involuntary, the Record Holders of the Series A Preferred Units shall be entitled to receive, out of the assets of the Partnership available for distribution to the Partners or any assignees, prior and in preference to any distribution of any assets of the Partnership to the Record Holders of any other class or series of Partnership Interests (other than Series C Preferred Units as to which the Series A Preferred Units are pari passu ), the positive value in each such holder’s Capital Account in respect of such Series A Preferred Units. If in the year of such liquidation and winding up, or sale, exchange or other disposition of all or substantially all of the assets of the Partnership, any such Record Holder’s Capital Account in respect of such Series A Preferred Units is less than the aggregate Series A Liquidation Value of such Series A Preferred Units, then notwithstanding anything to the contrary contained in this Agreement, and prior to any other allocation pursuant to this Agreement for such year and prior to any distribution pursuant to the preceding sentence, items of gross income and gain shall be allocated to all Unitholders then holding Series A Preferred Units, Pro Rata, until the Capital Account in respect of each Outstanding Series A Preferred Unit is equal to the Series A Liquidation Value (and no other allocation pursuant to this Agreement shall reverse the effect of such allocation), with such allocation being made Pro Rata with any
 
60 

 
allocation made pursuant to the second sentence of Section 5.14(b)(iv) . If in the year of such liquidation, dissolution or winding up any such Record Holder’s Capital Account in respect of such Series A Preferred Units is less than the aggregate Series A Liquidation Value of such Series A Preferred Units after the application of the preceding sentence, then to the extent permitted by applicable law and notwithstanding anything to the contrary contained in this Agreement, items of gross income and gain for any preceding taxable period(s) with respect to which IRS Form 1065 Schedules K-1 have not been filed by the Partnership shall be reallocated to all Unitholders then holding Series A Preferred Units, Pro Rata, until the Capital Account in respect of each such Outstanding Series A Preferred Unit after making allocations pursuant to this and the immediately preceding sentence is equal to the Series A Liquidation Value (and no other allocation pursuant to this Agreement shall reverse the effect of such allocation), with such allocation being made Pro Rata with any allocation made pursuant to the third sentence of Section 5.14(b)(iv) . At such time as such allocations have been made to the Outstanding Series A Preferred Units, any remaining Net Termination Gain or Net Termination Loss shall be allocated to the Partners pursuant to Section 6.1(c)  or Section 6.1(d) , as the case may be. At the time of the dissolution of the Partnership, subject to Section 17-804 of the Delaware Act, the Record Holders of the Series A Preferred Units shall become entitled to receive any distributions in respect of the Series A Preferred Units that are accrued and unpaid as of the date of such distribution in priority over any entitlement of any other Partners or Assignees with respect to any distributions by the Partnership to such other Partners or Assignees (other than Series C Preferred Units as to which the Series A Preferred Units are pari passu ); provided, however , that the General Partner, as such, will have no liability for any obligations with respect to such distributions to any Record Holder(s) of Series A Preferred Units.
 
(v)                                  Voting Rights .
 
(A)                                Except as provided in Section 5.12(b)(v)(B)  below, the Outstanding Series A Preferred Units shall have voting rights that are identical to the voting rights of the Common Units and shall vote with the Common Units as a single class, so that each Outstanding Series A Preferred Unit will be entitled to one vote for each Common Unit into which such Series A Preferred Unit is then convertible on each matter with respect to which each Common Unit is entitled to vote. Each reference in this Agreement to a vote of Record Holders of Common Units shall be deemed to be a reference to the holders of Common Units, Series A Preferred Units, Series B Units, and Series C Preferred Units on an “as if” converted basis, and the definition of “ Unit Majority ” shall correspondingly be construed to mean at least a majority of the Common Units, the Series A Preferred Units, the Series B Units, and the Series C Preferred Units, on an “as if” converted basis, voting together as a single class during any period in which any Series A Preferred Units are Outstanding.
 
(B)                                Notwithstanding any other provision of this Agreement, in addition to all other requirements imposed by Delaware law, and all other voting rights granted under this Agreement, the affirmative vote of the Record
 
61 

 
Holders of a majority of the Outstanding Series A Preferred Units, voting separately as a class based upon one vote per Series A Preferred Unit, shall be necessary on any matter (including a merger, consolidation or business combination) that adversely affects any of the rights, preferences and privileges of the Series A Preferred Units or amends or modifies any of the terms of the Series A Preferred Units; provided that the Partnership shall be able to amend this Section 5.12 without the approval by the Record Holders of Outstanding Series A Preferred Units so long as the amendment does not adversely affect the holders of the Series A Preferred Units in any material respect and does not affect the holders of the Series A Preferred Units disproportionately in relation to the holders of Common Units; provided, however , that the Partnership may, without the consent or approval of the Record Holders of Outstanding Series A Preferred Units, create (by reclassification or otherwise) and issue Junior Interests (including by amending the provisions of any existing class of Partnership Interests to make such class of Partnership Interests a class of Junior Interests) in an unlimited amount. Without limiting the generality of the preceding sentence, any action shall be deemed to adversely affect the holders of the Series A Preferred Units in a material respect if such action would:
 
(1)                                  reduce the Series A Distribution Rate, change the form of payment of distributions on the Series A Preferred Units, defer the date from which distributions on the Series A Preferred Units will accrue, cancel accrued and unpaid distributions on the Series A Preferred Units or any interest accrued thereon, or change the seniority rights of the Series A Unitholders as to the payment of distributions in relation to the Unitholders of any other class or series of Units or, except as determined to be appropriate in connection with the issuance of Junior Interests, amend this Section 5.12 ;
 
(2)                                  reduce the amount payable or change the form of payment to the holders of the Series A Preferred Units upon the voluntary or involuntary liquidation, dissolution or winding up, or sale of all or substantially all of the assets, of the Partnership, or change the seniority of the liquidation preferences of the holders of the Series A Preferred Units in relation to the rights upon liquidation of the holders of any other class or series of Units;
 
(3)                                  make the Series A Preferred Units redeemable or convertible at the option of the Partnership; or
 
(4)                                  result in a Preferred Unit Change of Control.
 
(vi)                               No Series A Parity Securities or Series A Senior Securities . Other than Series A PIK Preferred Units issued in connection with the Series A Quarterly Distribution, the
 
62 

 
Partnership shall not, without the affirmative vote of the holders of a majority of the Outstanding Series A Preferred Units, issue any Series A Parity Securities or Series A Senior Securities.
 
(vii)                            Certificates .
 
(A)                                The Series A Preferred Units shall be evidenced by Certificates in such form as the General Partner may approve and, subject to the satisfaction of any applicable legal, regulatory and contractual requirements, may be assigned or transferred in a manner identical to the assignment and transfer of other Units; unless and until the General Partner determines to assign the responsibility to another Person, the Partnership will act as the registrar and transfer agent for the Series A Preferred Units. The Certificates evidencing Series A Preferred Units shall be separately identified and shall not bear the same CUSIP number as the Certificates evidencing Common Units.
 
(B)                                The certificate(s) representing the Series A Preferred Units may be imprinted with a legend in substantially the following form (but, if outstanding as of the date of this Agreement, may refer to the Fourth A/R Partnership Agreement):
 
“NEITHER THE OFFER NOR SALE OF THESE SECURITIES HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER AND, IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT OR THE PARTNERSHIP HAS RECEIVED DOCUMENTATION REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER SUCH ACT. THIS SECURITY IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN THE FIFTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF THE PARTNERSHIP, DATED AS OF APRIL 25, 2016, A COPY OF WHICH MAY BE OBTAINED FROM THE PARTNERSHIP AT ITS PRINCIPAL EXECUTIVE OFFICES.”
 
63 

 
(viii)                         Conversion .
 
(A)                                At the Option of the Series A Unitholder . At any time and from time to time after January 1, 2014, subject to any applicable limitations in the New Credit Agreement, the Series A Preferred Units owned by any Series A Unitholder shall be convertible, in whole or in part, upon the request of the Series A Unitholder into a number of Common Units determined by multiplying the number of Series A Preferred Units to be converted by the Series A Conversion Rate. Immediately upon any conversion of Series A Preferred Units, all rights of the Series A Converting Unitholder in respect thereof shall cease, including, without limitation, any accrual of distributions, and such Series A Converting Unitholder shall be treated for all purposes as the owner of Common Units. Fractional Common Units shall not be issued to any person pursuant to this Section 5.12(b)(viii)(A)  (each fractional Common Unit shall be rounded to the nearest whole Common Unit (and a 0.5 Common Unit shall be rounded up to the next higher Common Unit)).
 
(B)                                Conversion Notice . To convert Series A Preferred Units into Common Units pursuant to Section 5.12(b)(viii)(A) , the Series A Converting Unitholder shall give written notice (a “ Series A Conversion Notice ”) to the Partnership in the form of Exhibit C attached hereto stating that such Series A Unitholder elects to so convert Series A Preferred Units and shall state therein with respect to Series A Preferred Units to be converted pursuant to Section 5.12(b)(viii)(A)  the following: (a) the number of Series A-1 Convertible Preferred Units and the number of Series A-2 Convertible Preferred Units to be converted, (b) the Certificate(s) evidencing the Series A Preferred Units to be converted and duly endorsed, (c) the name or names in which such Series A Unitholder wishes the Certificate or Certificates for Series A Conversion Units to be issued, and (d) such Series A Unitholder’s computation of the number of Series A Conversion Units to be received by such Series A Unitholder (or designated recipient(s)) upon the Series A Conversion Date. The date any Series A Conversion Notice is received by the Partnership shall be hereinafter be referred to as a “ Series A Conversion Notice Date .”
 
(C)                                Timing; Certificates . If a Series A Conversion Notice is delivered by a Series A Unitholder to the Partnership in accordance with Section 5.12(b)(viii)(B) , the Partnership shall issue the Series A Conversion Units no later than seven (7) days after a Series A Conversion Notice Date (any date of issuance of such Common Units, a “ Series A Conversion Date ”). On the Series A Conversion Date, the Partnership shall issue to such Series A Unitholder (or designated recipient(s)) a Certificate or Certificates for the number of Series A Conversion Units to which such holder shall be entitled. In lieu of delivering physical Certificates representing the Series A Conversion Units issuable upon conversion of
 
64 

 
Series A Preferred Units, provided the Transfer Agent is participating in the Depository’s Fast Automated Securities Transfer program, upon request of the Series A Unitholder, the Partnership shall use its commercially reasonable efforts to cause its Transfer Agent to electronically transmit the Series A Conversion Units issuable upon conversion or distribution payment to such Series A Unitholder (or designated recipient(s)), by crediting the account of the Series A Unitholder (or designated recipient(s)) prime broker with the Depository through its Deposit Withdrawal Agent Commission system. The parties agree to coordinate with the Depository to accomplish this objective. Upon issuance of Series A Conversion Units to the Series A Converting Unitholder, all rights under the converted Series A Preferred Units shall cease, and such Series A Converting Unitholder shall be treated for all purposes as the Record Holder of such Series A Conversion Units.
 
(D)                                Distributions, Combinations, Subdivisions and Reclassifications by the Partnership . If the Partnership (i) makes a distribution on its Common Units in Common Units, (ii) subdivides or splits its outstanding Common Units into a greater number of Common Units, (iii) combines or reclassifies its Common Units into a smaller number of Common Units or (iv) issues by reclassification of its Common Units any Partnership Interests (including any reclassification in connection with a merger, consolidation or business combination in which the Partnership is the surviving Person), then the Series A Conversion Rate in effect at the time of the Record Date for such distribution or the effective date of such subdivision, split, combination, or reclassification shall be proportionately adjusted so that the conversion of the Series A Preferred Units after such time shall entitle each Series A Unitholder to receive the aggregate number of Common Units (or any Partnership Interests into which such Common Units would have been combined, consolidated, merged or reclassified pursuant to clauses (iii) and (iv) above) that such Series A Unitholder would have been entitled to receive if the Series A Preferred Units had been converted into Common Units immediately prior to such Record Date or effective date, as the case may be, and in the case of a merger, consolidation or business combination in which the Partnership is the surviving Person, the Partnership shall provide effective provisions to ensure that the provisions in this Section 5.12 relating to the Series A Preferred Units shall not be abridged or amended and that the Series A Preferred Units shall thereafter retain the same powers, preferences and relative participating, optional and other special rights, and the qualifications, limitations and restrictions thereon, that the Series A Preferred Units had immediately prior to such transaction or event. An adjustment made pursuant to this Section 5.12 (b)(viii)(D)  shall become effective immediately after the Record Date in the case of a distribution and shall become effective immediately after the effective date in the case of a subdivision, combination, reclassification (including any
 
65 

 
reclassification in connection with a merger, consolidation or business combination in which the Partnership is the surviving Person) or split. Such adjustment shall be made successively whenever any event described above shall occur.
 
If, in the future, the Partnership issues any options, warrants, or other rights to purchase Common Units, or Partnership Interests exercisable or convertible into or exchangeable for Common Units (or options, warrants, or other rights to purchase any such Partnership Interests that are exercisable or convertible into or exchangeable for Common Units) other than any such options, warrants or other rights issued pursuant to any Long Term Incentive Plan (herein collectively, “ Convertible Securities ”), the General Partner shall, at the direction and at the option of the holders of a majority of the Outstanding Series A Preferred Units in their sole discretion, either (i) amend the provisions of this Agreement relating to antidilution protection to (A) revise any such provision that is less favorable than the corresponding provision offered in the terms of such Convertible Securities (or any related purchase agreement) so that such provision is the same as such provision offered in the terms of such Convertible Securities (or any related purchase agreement) and (B) incorporate any provision(s) offered in the terms of such Convertible Securities (or any related purchase agreement) that is not currently provided for in this Agreement and which would make the antidilution protection provisions of this Agreement more favorable to the holders of Series A Preferred Units, which amendment shall be effective concurrently with the issuance and/or execution of documentation relating to such Convertible Securities, or (ii) retain the antidilution language applicable to the Series A Preferred Units at such time. The Partnership agrees to provide as much prior notice of the proposed issuance of any such Convertible Securities and/or execution of documentation relating to such issuance of Convertible Securities as is reasonably practicable (and in any event, such notice shall be provided at least ten (10) Business Days prior to such issuance and/or execution).
 
(E)                                 Follow-On Adjustments . Except in connection with the issuance of the Series C Warrant or the exercise of either Warrant, if the Partnership shall issue or sell, or grant any Common Units or Convertible Securities at an indicative per Common Unit price (the “ Follow-On Price ,” and such Common Units or Convertible Securities so issued, sold or granted, on an as-converted basis, the “ Follow-On Units ”) that is less than one hundred percent (100%) of the Series A Adjusted Issue Price, then the Series A Conversion Rate will be reset so that it will equal the number determined by dividing the Series A Adjusted Issue Price immediately before the issuance of the Follow-On Units by the result achieved through application of the following formula:
 
66 

 
((CP x OB) + (FP x Q)) / OA
 
Where:
 
CP = the Series A Adjusted Issue Price in effect immediately before the issuance of the Follow-On Units
 
FP = the Follow-On Price
 
OB = the total number of fully diluted Common Units outstanding before the issuance of the Follow-On Units
 
Q = the total number of fully diluted Follow-On Units issued
 
OA = the total number of fully diluted Common Units outstanding after giving effect to the issuance of the Follow-On Units.
 
For purposes of this Section 5.12(b)(viii)(E) , the indicative price per Common Unit resulting from the issuance of Convertible Securities will be determined using the principles set forth in Section 5.12(b)(viii)(H)(3) .
 
(F)                                  Other Extraordinary Transactions Affecting the Partnership .
 
(1)                                  Prior to the consummation of any recapitalization, reorganization, consolidation, merger, spin-off or other business combination (not otherwise addressed in Section 5.12(b)(viii)(D)  above) in which the holders of Common Units are to receive securities, cash or other assets (a “ Partnership Event ”), the Partnership shall, as promptly as practicable, but in any event no later than twelve (12) Business Days prior to the consummation of the Partnership Event, make an irrevocable written offer (a “ Series A Partnership Event Change of Control Offer ”), subject to consummation of the Partnership Event, to each holder of Series A Preferred Units to redeem all (but not less than all) of such holder’s Series A Preferred Units for a price per Series A Preferred Unit payable in cash equal to the greater of (x) the Series A Liquidation Value for each Series A Preferred Unit and (y) an amount equal to the product of (1) the number of Common Units into which each Series A Preferred Unit is convertible pursuant to Section 5.12(b)(viii)  on the day immediately prior to the date of the Series A Partnership Event Change of Control Offer and (2) the sum of (A) the cash consideration per Common Unit to be paid to the holders of Common Units pursuant to the Partnership Event plus (B) the fair market value per Common Unit of the securities or other assets to be distributed to the holders of the Common Units pursuant to the Partnership Event (as applicable, the “ Series A Partnership Event Payment ”).
 
67 

 
(2)                                  Upon receipt by a Series A Unitholder of a Series A Partnership Event Change of Control Offer, such Series A Unitholder may elect, by written notice received by the Partnership no later than five (5) Business Days after the receipt by such holder of a Series A Partnership Event Change of Control Offer, to receive Series A Survivor Preferred Securities (as defined below) pursuant to this Section 5.12(b)(viii)(F)(2)  in lieu of a Series A Partnership Event Payment. Upon receipt of such Series A Unitholder’s election to receive Series A Survivor Preferred Securities, the Partnership shall as promptly as practicable, but in any event prior to the consummation of any Partnership Event, make appropriate provision to ensure that such electing holders of Series A Preferred Units receive in such Partnership Event a preferred security, issued by the Person surviving or resulting from such Partnership Event and containing provisions substantially equivalent to the provisions set forth in this Agreement with respect to the Series A Preferred Units, including Section 5.12 and Section 7.3 hereof, without material abridgement, including, without limitation, the same powers, preferences, rights to distributions, rights to accumulation and compounding upon failure to pay distributions, and relative participating, optional or other special rights and the qualifications, limitations or restrictions thereon, that the Series A Preferred Unit had immediately prior to such Partnership Event (the “ Series A Survivor Preferred Security ”). The Series A Conversion Rate in effect at the time of the effective date of such Partnership Event shall be proportionately adjusted so that the conversion of a unit of Series A Survivor Preferred Security after such time shall entitle the holder to the number of securities or amount of cash or other assets which, if a Series A Preferred Unit had been converted into Common Units immediately prior to such Partnership Event, such holder would have been entitled to receive immediately following such Partnership Event. Subsequent adjustments to the Conversion Price of the Series A Survivor Preferred Security shall be made successively thereafter whenever any event described in Section 5.12(b)(viii)(D) , Section 5.12(b)(viii)(E)  or this Section 5.12(b)(viii)(F)  shall occur. Notwithstanding the foregoing, the Partnership may consummate a Partnership Event without making appropriate provision to ensure that the holders of Series A Preferred Units receive a Series A Partnership Event Payment or Series A Survivor Preferred Security, as applicable, with respect to such Partnership Event if prior to such consummation the Partnership has received the prior written approval of the holders of a majority of the Outstanding Series A Preferred Units.
 
68 

 
(3)                                  A Series A Partnership Event Change of Control Offer shall be mailed to each Series A Unitholder and shall describe the transaction or transactions that constitute the Partnership Event and state:
 
i)                                          that the Series A Partnership Event Change of Control Offer is being made pursuant to this Section 5.12(b)(viii)(F)  and that the Partnership is making an offer to redeem all Series A Preferred Units of such Unitholder (subject to the consummation of the Partnership Event);
 
ii)                                       the amount of the Series A Partnership Event Payment and the redemption date, which shall be the date on which the Partnership Event is consummated or as soon thereafter as practicable (the “ Series A Partnership Event Payment Date ”); and
 
iii)                                    the amount per Common Unit that each Common Unitholder is receiving in connection with the Partnership Event.
 
On the Series A Partnership Event Payment Date, the Partnership (or its successor) shall pay to each Unitholder of Series A Preferred Units that accepts the Series A Partnership Event Change of Control Offer an amount in cash equal to such holder’s applicable Series A Partnership Event Payment, and all of such holder’s rights and privileges under the Series A Preferred Units or as a Series A Unitholder shall be extinguished.
 
(G)                                Notwithstanding any of the other provisions of this Section 5.12(b)(viii) , no adjustment shall be made to the Series A Conversion Rate pursuant to Section 5.12(b)(viii)(D) - (F)  as a result of any of the following:
 
(1)                                  the grant of Common Units or options, warrants or rights to purchase Common Units or the issuance of Common Units upon the exercise of any such options, warrants or rights to employees, officers or directors of the General Partner or the Partnership and its Subsidiaries in respect of services provided to or for the benefit of the Partnership or its Subsidiaries, under compensation plans and agreements approved in good faith by the General Partner (including any Long Term Incentive Plan); provided that, in the case of options, warrants or rights to purchase Common Units, the exercise price per Common Unit shall not be less than the Closing Price on the date such option, warrant or other right is issued;
 
(2)                                  the issuance of any Common Units as all or part of the consideration to effect (i) the closing of any acquisition by the Partnership of assets of an unrelated third party in an arm’s-length
 
69 

 
transaction or (ii) the consummation of a merger, consolidation or other business combination of the Partnership with or into another entity to the extent such transaction(s) is or are validly approved by the vote or consent of the General Partner; and
 
(3)                                  the issuance of Partnership Interests for which an adjustment is made under another provision of this Section 5.12(b)(viii) .
 
(H)                               The following rules shall apply for purposes of this Section 5.12(b)(viii) :
 
(1)                                  In the case of the issuance or sale (or deemed issuance or sale) of Common Units for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable underwriting discounts or placement agent fees, commissions or the expenses allowed, paid or incurred by the Partnership for any underwriting or placement agent or otherwise in connection with the issuance and sale thereof.
 
(2)                                  In the case of the issuance or sale (or deemed issuance or sale) of Common Units for consideration in whole or in part other than cash, the consideration other than cash shall be valued at the Agreed Value thereof;
 
(3)                                  In the case of the issuance or sale of Convertible Securities, the following provisions shall apply for all purposes of this Section 5.12(b)(viii)(H) :
 
i)                                          The aggregate maximum number of Common Units deliverable upon exercise (assuming the satisfaction of any conditions to exercisability, including, without limitation, the passage of time, but without taking into account potential antidilution adjustments) of options or warrants to purchase or rights to subscribe for Common Units shall be deemed to have been issued at the time such options, warrants or rights were issued and for consideration equal to the consideration (determined in the manner provided in this Section 5.12(b)(viii)(H) ), if any, received by the Partnership upon the issuance of such options, warrants or rights plus the minimum exercise price provided in such options, warrants or rights (without taking into account potential antidilution adjustments) for the Common Units covered thereby.
 
ii)                                       The aggregate maximum number of Common Units deliverable upon conversion of or in exchange (assuming
 
70 

 
the satisfaction of any conditions to convertibility or exchangeability, including, without limitation, the passage of time, but without taking into account potential antidilution adjustments) for any such convertible or exchangeable securities or upon the exercise of options or warrants to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options, warrants or rights were issued and for a consideration equal to the consideration, if any, received by the Partnership for any such securities or options, warrants or rights, plus the minimum additional consideration, if any, to be received by the Partnership (without taking into account potential antidilution adjustments) upon the conversion or exchange of such securities or upon the exercise of such options, warrants or rights and subsequent conversion or exchange of the underlying convertible or exchangeable securities, as appropriate (the consideration in each case to be determined in the manner provided in this Section 5.12(b)(viii) ).
 
iii)                                    In the event of any change in (x) the number of Common Units deliverable or (y) the consideration payable to the Partnership upon exercise of such options, warrants or rights with respect to either Common Units or such convertible or exchangeable securities or upon conversion of or in exchange for such convertible or exchangeable securities and not otherwise entitled to any appropriate antidilution adjustment pursuant to this Section 5.12 , including, but not limited to, a change resulting from the antidilution provisions thereof, the Series A Conversion Rate, to the extent in any way affected by or computed using such options, warrants, rights or securities, shall be recomputed to reflect such change, but no further adjustment shall be made for the actual issuance of Common Units or any payment of such consideration upon the exercise of any such options, warrants or rights or the conversion or exchange of such securities.
 
iv)                                   Upon the expiration of any such options, warrants or rights with respect to either Common Units or such convertible or exchangeable securities or the termination of any such rights to convert or exchange, the Series A Conversion Rate, to the extent in any way affected by or computed using such options, warrants, rights or securities
 
71 

 
shall be recomputed to reflect the issuance of only the number of Common Units actually issued upon the exercise of such options, warrants or rights with respect to Common Units, upon the conversion or exchange of such securities, or the number of Common Units issuable upon conversion or exchange of the convertible or exchangeable securities that were actually issued upon exercise of options, warrants or rights related to such securities.
 
v)                                      The number of Common Units deemed issued and the consideration deemed paid therefor pursuant to Section 5.12(b)(viii)(H)(3)i) and ii) shall be appropriately adjusted to reflect any change, termination or expiration of the type described in either Section 5.12(b)(viii)(H)(3)iii) or iv) .
 
(4)                                  Notwithstanding any of the other provisions of this Section 5.12(b)(viii)(H) , no adjustment shall be made to the number of Common Units issuable upon conversion of the Series A Preferred Units or the Series A Conversion Rate as a result of an event for which an adjustment is made under another provision of this Section 5.12(b)(viii)(H) .
 
(5)                                  For purposes of this Section 5.12(b)(viii) , no adjustment to the Series A Conversion Rate shall be made in an amount less than 1/100th of one cent per Unit; provided that any adjustments that are not required to be made by reason of this sentence shall be carried forward and shall be taken into account in any subsequent adjustment made.
 
(I)                                    In the event of any taking by the Partnership of a Record Date of the holders of any class of Partnership Interests for the purpose of determining the holders thereof who are entitled to receive any distribution thereon, any security or right convertible into or entitling the holder thereof to receive additional Common Units, or any right to subscribe for, purchase or otherwise acquire any Partnership Interests or any other securities or property of the Partnership, or to receive any other right, the Partnership shall notify each holder of Series A Preferred Units at least fifteen (15) days prior to the Record Date, of which any such Record Date is to be taken for the purpose of such distribution, security or right and the amount and character of such distribution, security or right; provided, however , that the foregoing requirement shall be deemed satisfied with respect to any holder of Series A Preferred Units if at least fifteen (15) days prior to the Record Date, the Partnership shall have issued a press release which shall be posted on the Partnership’s website and carried by one or more wire services, containing the required information.
 
72 

 
(J)                                    The Partnership shall pay any and all issue, documentary, stamp and other taxes, excluding any income, franchise, property or similar taxes, that may be payable in respect of any issue or delivery of Series A Conversion Units on conversion of, or payment of distributions on, Series A Preferred Units pursuant hereto. However, the holder of any Series A Preferred Units shall pay any tax that is due because the Series A Conversion Units issuable upon conversion thereof or distribution payment thereon are issued in a name other than such Series A Unitholder’s name.
 
(K)                                The Partnership agrees that it will act in good faith to make any adjustment(s) required by this Section 5.12(b)(viii)  equitably and in such a manner as to afford the Series A Unitholders the benefits of the provisions hereof, and will not take any action that could reasonably be expected to deprive such Series A Unitholders of the benefit hereof.
 
(ix)                               Remarketing . If any Series A Unitholder approaches the Partnership with a desire to sell more than 250,000 Series A Preferred Units, or Series A Conversion Units underlying such Series A Preferred Units having equivalent economic value (based on the sum of the Series A Issue Price of the Series A Preferred Units and all accrued and accumulated but unpaid distributions on such Series A Preferred Units), the Partnership shall, upon the request of such Series A Unitholder, cooperate reasonably with such Series A Unitholder to provide information requested by potential purchasers to potential purchasers, to make the Partnership’s management reasonably available by telephone and to confirm that the Partnership has made all requisite filings required under the Exchange Act; provided that, prior to providing any information requested or conducting any telephonic discussions, such potential purchasers enter into a customary non-disclosure agreement in respect of such information provided by the Partnership in a form reasonably acceptable to the Partnership.
 
(x)                                  Tax Estimates . Upon receipt of a written request from any Series A Unitholder stating the number of Series A Preferred Units owned by such holder (which requests shall be made no more than two (2) times per calendar year and the first such request per calendar year shall be at the Partnership’s expense, and the second at the expense of such requesting holder), the Partnership shall, within ten (10) days, provide such Series A Unitholder with a good faith estimate (and reasonable supporting calculations) of whether there is sufficient Unrealized Gain attributable to the Partnership property such that, if such Series A Unitholder converted its Series A Preferred Units pursuant to Section 5.12(b)(viii)(A)  or (B)  and such Unrealized Gain was allocated to such holder pursuant to Section 5.5(d)(iii) , such holder’s Capital Account in respect of its converted Series A Preferred Units would be equal to the Per Unit Capital Amount for a then Outstanding Common Unit (other than a Series A Conversion Unit received in connection with such conversion of a Series A Preferred Unit).
 
(xi)                               Fully Paid and Nonassessable . Any Series A Conversion Unit(s) delivered pursuant to this Section 5.12 shall be validly issued, fully paid and nonassessable (except as such nonassessability may be affected by matters described in Sections 17-303, 17-607 and 17-804 of the Delaware Act), free and clear of any liens, claims, rights or encumbrances other than those arising under the Delaware Act or this Agreement or created by the holders thereof.
 
73 

 
(xii)                            Listing of Common Units . The Partnership will procure, at its sole expense, the listing of the Series A Conversion Units issuable upon conversion of the Series A Preferred Units, subject to issuance or notice of issuance on any National Securities Exchange on which the Common Units are listed or admitted to trading.
 
(c)                                   Call Right on Series A-2 Convertible Preferred Units.   At any time after January 1, 2016, in connection with the consummation of a Drop Down Event (as defined below) the Partnership may exercise the right (the “ Series A-2 Call Right ”), but shall have no obligation, to require the holder or holders of the Series A-2 Convertible Preferred Units (the “ Series A-2 Holders ”) to sell, assign and transfer all or a portion of the then outstanding Series A-2 Convertible Preferred Units to the Partnership in accordance with this Section 5.12(c) .  The Partnership may exercise the Series A-2 Call Right with respect to any Series A-2 Convertible Preferred Unit unless: (A) the exercise of the Series A-2 Call Right would result in a default under any applicable financing agreements, or other financing obligations of the Partnership or any of its Affiliates, or would otherwise be prohibited by any securities or other applicable law or (B) a Series A-2 Holder has delivered, on or prior to the date of the Series A-2 Call Exercise Notice (as defined below), a Series A Conversion Notice with respect to such Series A Convertible Preferred Unit (and then no Series A-2 Call Right may be made as to such Series A-2 Convertible Preferred Unit).
 
(i)                                      A “ Drop Down Event ” shall mean an acquisition by the Partnership or one of its Affiliates from Arclight Energy Partners Fund V, L.P. or one of its Affiliates of assets or equity in a Person or Persons for a purchase price in excess of $100 million.
 
(ii)                                   The purchase price to be paid by the Partnership in connection with the exercise of the Series A-2 Call Right shall be $17.50 per Series A-2 Convertible Preferred Unit acquired pursuant to the Series A-2 Call Right (subject to appropriate adjustment for any equity distribution, subdivision or combination of Partnership Interests).
 
(iii)                                If the Partnership elects to exercise the Series A-2 Call Right, the Partnership shall deliver a written notice (the “ Series A-2 Call Exercise Notice ”) to the Series A-2 Holders informing the Series A-2 Holders of the Partnership’s intention to exercise its Series A-2 Call Right.  The Series A-2 Call Exercise Notice shall include a certificate in substantially the form attached hereto as Annex A , setting forth (A) the number of Series A-2 Convertible Preferred Units held by each Series A-2 Holder, (B) the number of Series A-2 Convertible Preferred Units with respect to which the Series A-2 Call Right is being exercised, (C) the bank account information for wire transfer of the purchase price or address for delivery of the purchase price by check, and (D) the closing date for the purchase (the “ Series A-2 Call Closing Date ”), which shall be no earlier than 10 days or later than 30 days after the date of the Series A-2 Call Exercise Notice.  If any Series A-2 Holder does not notify the Partnership of a change to the bank account information or address for delivery of the purchase prices set forth in Annex A prior to the date that is two days before the Series A-2 Call Closing Date, the Partnership shall wire or deliver to each Series A-2 Holder its portion of the purchase price in immediately available funds to such bank account or address set forth on Annex A .
 
(iv)                               The Series A-2 Call Right may be exercised as to any portion of the outstanding Series A-2 Convertible Preferred Units outstanding at the time a Series A-2 Call
 
74 

 
Exercise Notice is delivered, but must be exercised pro-rata as to all Series A-2 Convertible Preferred Units subject to the Series A-2 Call Right.
 
(v)                                  At the closing of the Series A-2 Call Right, (A) the Partnership shall deliver to each Series A-2 Holder subject thereto a certificate executed on behalf of the Partnership in the form attached hereto as Annex B , and (B) each such Series A-2 Holder shall deliver to the Partnership a certificate executed by such Series A-2 Holder in the form attached hereto as Annex C , the certificates representing the Series A-2 Convertible Preferred Units with transfer powers, executed in blank, or, if uncertificated, transfer powers executed in blank, and such other documentation as may reasonably be requested by the Partnership.
 
Section 5.13                             Establishment of Series B Units.
 
(a)                                  General. The Partnership hereby designates and creates a series of Units to be designated as “ Series B Units ” and consisting of a total of 1,168,225 Series B Units, plus any additional Series B Units issued in kind as a distribution pursuant to Section 5.13(d) , having the same rights, preferences and privileges, and subject to the same duties and obligations, as the Common Units, except as set forth in this Section 5.13 .
 
(b)                                  Rights on Liquidation of the Partnership . The holders of the Series B Units shall have rights upon dissolution and liquidation of the Partnership, including the right to share in any liquidating distributions pursuant to Section 12.4 , in accordance with Article XII of this Agreement.
 
(c)                                   Conversion of Series B Units.
 
(i)                                      Immediately before the close of business on the Series B Conversion Date, the Series B Units shall automatically convert into Common Units on a one-for-one basis.
 
(ii)                                   Upon conversion, the rights of a holder of converted Series B Units as holder of Series B Units shall cease with respect to such converted Series B Units, including any rights under this Agreement with respect to holders of Series B Units, and such Person shall continue to be a Limited Partner and have the rights of a holder of Common Units under this Agreement. Upon the Series B Conversion Date, all Series B Units shall be deemed to be transferred to, and cancelled by, the Partnership in exchange for the Common Units into which the Series B Units converted.
 
(iii)                                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 Series B Units. However, the holder 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 Certificate representing 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 which will be due because the shares 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.
 
75 

 
(iv)
 
(A)                                The Partnership shall keep free from preemptive rights a sufficient number of Common Units to permit the conversion of all outstanding Series B Units into Common Units to the extent provided in, and in accordance with, this Section 5.13(c) .
 
(B)                                All Common Units delivered upon conversion of the Series B Units shall be newly issued, shall be duly authorized and validly issued, and shall be free from preemptive rights and free of any lien or adverse claim
 
(C)                                The Partnership shall comply with all applicable securities laws regulating the offer and delivery of any Common Units upon conversion of Series B Units and, if the Common Units are then listed or quoted on the New York Stock Exchange, or any other National Securities Exchange or other market, shall list or cause to have quoted and keep listed and quoted the Common Units issuable upon conversion of the Series B Units to the extent permitted or required by the rules of such exchange or market.
 
(D)                                Notwithstanding anything herein to the contrary, nothing herein shall give to any holder of Series B Units any rights as a creditor in respect of its right to conversion.
 
(d)                                  Distributions and Allocations .
 
(i)                                      Each Series B Unit shall have the right to share in distributions and allocations pursuant to Section 6.1 , Section 6.4 and Section 6.5 on a Pro Rata basis with the other Common Units. For the avoidance of doubt, each reference in this Agreement to an allocation or distribution to Unitholders holding Common Units shall be deemed to be a reference to the Unitholders holding Common Units or Series B Units. All or any portion of each distribution payable in respect of the Series B Units (the “ Series B Unit Distribution ”) may, at the election of the Partnership, be paid in Series B PIK Units (any amount of such Series B Unit Distributions so paid in Series B PIK Units, the “ Series B PIK Distribution Amount ”). The number of Series B PIK Units to be issued in connection with a Series B PIK Distribution Amount shall be the quotient of (A) the Series B PIK Distribution Amount divided by (B) the Series B Issue Price of the Series B Units originally issued pursuant to the Series B Unit Purchase Agreement; provided that instead of issuing any fractional Series B PIK Units, the Partnership shall round the number of Series B PIK Units issued down to the next lower whole Series B PIK Unit and pay cash in lieu of such fractional units, or at the Partnership’s option, the Partnership may round the number of Series B PIK Units issued up to the next higher whole Series B PIK Unit.
 
(ii)                                   Notwithstanding anything in this Section 5.13(d)  to the contrary, with respect to Series B Units that are converted into Common Units, the holder thereof shall not be entitled to a Series B Unit Distribution and a Common Unit distribution with respect to the same
 
76 

 
period, but shall be entitled only to the distribution to be paid based upon the class of Units held as of the close of business on the applicable Record Date.
 
(iii)                                When any Series B PIK Units are payable to a holder of Series B Units pursuant to this Section 5.13, the Partnership shall issue the Series B PIK Units to such holder no later than the date the corresponding distributions are made pursuant to Section 6.4(b)  or Section 6.5 , as applicable (the date of issuance of such Series B PIK Units, the “ Series B PIK Payment Date ”). On the Series B PIK Payment Date, the Partnership shall issue to such holder of Series B Units a Certificate or Certificates for the number of Series B PIK Units to which such holder of Series B Units shall be entitled.
 
(iv)                               For purposes of maintaining Capital Accounts, if the Partnership distributes one or more Series B PIK Units to a holder of Series B Units, (A) the Partnership shall be treated as distributing cash to such holder of Series B Units equal to the Series B PIK Distribution Amount, and (B) the holder of Series B Units shall be deemed to have recontributed to the Partnership in exchange for such newly issued Series B PIK Units an amount of cash equal to the Series B PIK Distribution Amount less the amount of any cash distributed by the Partnership in lieu of fractional Series B PIK Units, as applicable.
 
(v)                                  If the Partnership distributes one or more Series B PIK Units to a holder of Series B Units in accordance with the foregoing and Section 6.4(b)(iii)(C) , the distribution to the holders of the Incentive Distribution Rights pursuant to Section 6.4(b)(iii)(B)  that would have been made pursuant to Section 6.4(b)(iii)(B)  in the absence of this Section 5.13(d)(v) shall be reduced by the product of (A) the distribution to the holders of the Incentive Distribution Rights that would have been made pursuant to Section 6.4(b)(iii)(B)  in the absence of this Section 5.13(d)(v) multiplied by (B) the quotient of (x) the Percentage Interests of the Series B Units divided by (y) the Percentage Interests of the Common Units and Series B Units.
 
(e)                                   Voting. The Series B Units will have such voting rights pursuant to the Agreement as such Series B Units would have if they were Common Units that were then outstanding and shall vote together with the Common Units as a single class, except that the Series B Units shall be entitled to vote as a separate class on any matter on which Unitholders are entitled to vote that adversely affects the rights or preferences of the Series B Units in relation to other classes of Partnership Interests in any material respect or as required by law. The approval of a majority of the Series B Units shall be required to approve any matter for which the holders of the Series B Units are entitled to vote as a separate class. For the avoidance of doubt, each reference in this Agreement to the vote of, approval by, or notice to be given to, Unitholders holding Common Units shall be deemed to be a reference to the vote of, approval by, or notice to be given to, Unitholders of Common Units and Series B Units and each reference to the vote of, approval by, or notice to be given to, a majority of the Outstanding Common Units shall be deemed to be a reference to the vote of, approval by, or notice to be given to, a majority of the Common Units and Series B Units, both as Outstanding at such time.
 
(f)                                    Certificates .
 
(i)                                      The Series B Units shall be evidenced by Certificates in such form as the General Partner may approve and, subject to the satisfaction of any applicable legal, regulatory
 
77 

 
and contractual requirements, may be assigned or transferred in a manner identical to the assignment and transfer of other Units; unless and until the General Partner determines to assign the responsibility to another Person, the Partnership will act as the registrar and transfer agent for the Series B Units. The Certificates evidencing Series B Units shall be separately identified and shall not bear the same CUSIP number as the Certificates evidencing Common Units or Series A Preferred Units.
 
(ii)                                   The certificate(s) representing the Series B Units shall be imprinted with a legend in substantially the following form (but, if outstanding as of the date of this Agreement, may refer to the Fourth A/R Partnership Agreement):
 
“NEITHER THE OFFER NOR SALE OF THESE SECURITIES HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER AND, IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT OR THE PARTNERSHIP HAS RECEIVED DOCUMENTATION REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER SUCH ACT. THIS SECURITY IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN THE FIFTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF THE PARTNERSHIP, DATED AS OF APRIL 25, 2016, AS AMENDED, A COPY OF WHICH MAY BE OBTAINED FROM THE PARTNERSHIP AT ITS PRINCIPAL EXECUTIVE OFFICES.”
 
Section 5.14                             Establishment of Series C Preferred Units.
 
(a)                                  General . The Partnership hereby designates and creates a series of Units to be designated as “Series C Convertible Preferred Units” and consisting of a total of 8,571,429 Series C Preferred Units, plus any additional Series C Preferred Units issued in kind as a distribution pursuant to Section 5.14(b)(ii)  (“ Series C PIK Preferred Units ”), having the same rights, preferences and privileges, and subject to the same duties and obligations, as the Common Units, except as set forth in this Section 5.14 and in Section 5.5(d)(i) , Section 6.10 , and Section 12.9 . The Series C Convertible Preferred Units, whether issued on the Series C Issuance Date or as Series C PIK Preferred Units, are referred to herein as “ Series C Preferred Units. ” The Series C Preferred Units shall be considered pari passu as to allocations and distributions with the Series A Preferred Units. Other than with respect to Series C PIK Preferred Units, immediately following the Series C Issuance Date and thereafter, no additional Series C Preferred Units shall be designated, created or issued without the prior written approval of the General Partner and the holders of a majority of the Outstanding Series C Preferred Units.
 
78 

 
(b)                                  Rights of Series C Preferred Units . The Series C Preferred Units shall have the following rights, preferences and privileges and shall be subject to the following duties and obligations:
 
(i)                                      Allocations .
 
(A)                                Notwithstanding anything to the contrary in Section 6.1(a) , (x) following any allocation made pursuant to Section 6.1(a)(i)  and prior to any allocation made pursuant to Section 6.1(a)(ii) , any Net Income shall be allocated to all Unitholders holding Series C Preferred Units, Pro Rata, until the aggregate of the Net Income allocated to such Unitholders pursuant to this Section 5.14(b)(i)(A)  for the current and all previous taxable periods since issuance of the Series C Preferred Units is equal to the aggregate amount of cash distributed with respect to such Series C Preferred Units for the current and previous taxable periods and (y) in no event shall any Net Income be allocated pursuant to Section 6.1(a)(ii)  in respect of Series C Preferred Units. Allocations to Series C Preferred Units pursuant to this Section 5.14(b)(i)(A)  and to Series A Preferred Units pursuant to Section 5.12(b)(i)(A)  shall be made Pro Rata.
 
(B)                                Notwithstanding anything to the contrary in Section 6.1(b) , (x) Unitholders holding Series C Preferred Units shall not receive any allocation pursuant to Section 6.1(b)(i)  with respect to their Series C Preferred Units, and (y) following any allocation made pursuant to Section 6.1(b)(i)  and prior to any allocation made pursuant to Section 6.1(b)(ii) , Net Losses shall be allocated to all Unitholders holding Series C Preferred Units, Pro Rata, until the Adjusted Capital Account of each such Unitholder in respect of each Outstanding Series C Preferred Unit has been reduced to zero. Allocations to Series C Preferred Units pursuant to this Section 5.14(b)(i)(B)  and to Series A Preferred Units pursuant to Section 5.12(b)(i)(B)  shall be made Pro Rata.
 
(C)                                Notwithstanding anything to the contrary in Section 6.1(c)(i) , (x) Unitholders holding Series C Preferred Units shall not receive any allocation pursuant to Section 6.1(c)(i)  with respect to their Series C Preferred Units, but (y) following any allocation made pursuant to Section 6.1(c)(i)(A)  and prior to any allocation made pursuant to Section 6.1(c)(i)(B) , any remaining Net Termination Gain shall be allocated to all Unitholders holding Series C Preferred Units, Pro Rata, until the Capital Account in respect of each Outstanding Series C Preferred Unit is equal to the Series C Liquidation Value. Allocations to Series C Preferred Units pursuant to this Section 5.14(b)(i)(C)  and to Series A Preferred Units pursuant to Section 5.12(b)(i)(C)  shall be made Pro Rata.
 
(D)                                Notwithstanding anything to the contrary in Section 6.1(c)(ii) , (x) Unitholders holding Series C Preferred Units shall not receive any allocation pursuant to Section 6.1(c)(ii)  with respect to their Series C
 
79 

 
Preferred Units, and (y) following the allocations made pursuant to Section 6.1(c)(ii)(C) , and prior to any allocation made pursuant to Section 6.1(c)(ii)(D) , any remaining Net Termination Loss shall be allocated to all Unitholders holding Series C Preferred Units, Pro Rata, until the Capital Account in respect of each Outstanding Series C Preferred Unit has been reduced to zero. Allocations to Series C Preferred Units pursuant to this Section 5.14(b)(i)(D)  and to Series A Preferred Units pursuant to Section 5.12(b)(i)(D)  shall be made Pro Rata.
 
(ii)                                   Distributions .
 
(A)                                Commencing with the Quarter ending on June 30, 2016, the holders of the Series C Preferred Units Outstanding as of an applicable Record Date shall be entitled to receive cumulative distributions (each, a “ Series C Quarterly Distribution ”), prior to any other distributions made in respect of any Junior Interests pursuant to Section 6.4 or Section 6.5 , in the amount set forth in this Section 5.14(b)(ii)(A)  in respect of each Outstanding Series C Preferred Unit. All such distributions shall be paid Quarterly within forty-five (45) days after the end of each Quarter (each such payment date, a “ Series C Distribution Payment Date ”). For the Quarter ending June 30, 2016, and for each Quarter thereafter through and including the Quarter ending immediately prior to the Series C Coupon Conversion Quarter, the Series C Quarterly Distribution on each Outstanding Series C Preferred Unit shall be paid a number of Series C PIK Preferred Units equal to the Series C PIK Payment Amount; provided that, in the discretion of the General Partner which determination shall be made prior to the Record Date for the relevant quarter, the Series C Quarterly Distribution may be paid in cash at the Series C Distribution Rate per Series C Preferred Unit (which, if paid in cash for the Quarter in which the Series C Issuance Date occurs, the amount payable shall be equal to the product of (I) the amount payable without regard to this parenthetical times (II) a fraction, of which the numerator is the number of days from and including the Series C Issuance Date to but excluding the date of such Quarter’s end, and the denominator is 91).  With respect to the Series C Coupon Conversion Quarter and all Quarters thereafter, the Series C Quarterly Distributions shall be paid entirely in cash at the Series C Distribution Rate per Series C Preferred Unit.  If the Partnership establishes a Record Date for any distribution to be made by the Partnership on other Partnership Interests pursuant to Section 6.4 or Section 6.5 , then the Record Date established pursuant to this Section 5.14(b)(ii)(A)  for a Series C Quarterly Distribution in respect of any Quarter shall be the same Record Date established for any distribution to be made by the Partnership in respect of distributions on other Partnership Interests pursuant to Section 6.4 or Section 6.5 for such Quarter. Unless otherwise expressly provided, references in this Agreement to Series C
 
80 

 
Preferred Units shall include all Series C PIK Preferred Units Outstanding as of the date of such determination.
 
(B)                                When any Series C PIK Preferred Units are payable to a Record Holder of Series C Preferred Units pursuant to this Section 5.14 , the Partnership shall issue the Series C PIK Preferred Units to such Record Holder no later than the Series C Distribution Payment Date (the date of issuance of such Series C PIK Preferred Units, the “ Series C PIK Preferred Payment Date ”). On the Series C PIK Preferred Payment Date, the Partnership shall issue to such Series C Unitholder a Certificate or Certificates for the number of Series C PIK Preferred Units to which such Series C Unitholder shall be entitled. The issuance of the Series C PIK Preferred Units pursuant to this Section 5.14(b)(ii)  shall be deemed to have been made on the first day of the Quarter following the Quarter in respect of which such payment of Series C PIK Preferred Units was due. Prior to the Series C Coupon Conversion Quarter, if, in violation of this Agreement, the Partnership fails to pay in full any Series C Quarterly Distribution in kind when due, then the holders entitled to the unpaid Series C PIK Preferred Units shall be entitled (I) to Series C Quarterly Distributions in subsequent Quarters, (II) to receive the Series C Liquidation Value in accordance with Section 5.14(b)(iv)  in respect of such Series C PIK Preferred Units, and (III) to all other rights under this Agreement as if such unpaid Series C PIK Preferred Units had in fact been distributed on the date due. Nothing in this Section 5.14(b)(ii)(B)  shall alter the obligation of the Partnership to pay any unpaid Series C PIK Preferred Units or the right of the holders of Series C Preferred Units to enforce this Agreement to compel the Partnership to distribute any unpaid Series C PIK Preferred Units. Fractional Series C PIK Preferred Units shall not be issued to any person (each fractional Series C PIK Preferred Unit shall be rounded to the nearest whole Series C PIK Preferred Unit (and a 0.5 Series C PIK Preferred Unit shall be rounded up to the next higher Series C PIK Preferred Unit)).
 
(C)                                Beginning with the Series C Coupon Conversion Quarter, if in violation of this Agreement, the Partnership fails to pay in full any Series C Quarterly Distribution when due, then, without limiting any rights of the holders of the Series C Preferred Units to compel the Partnership to make such distribution, from and after the first date of such failure and continuing until such failure is cured by payment in full in cash of all arrearages with respect to any Series C Quarterly Distribution, including accrued but unpaid interest thereon, (w) the amount of such unpaid distributions (“ Series C Unpaid Cash Distributions ”) will accrue and accumulate from and including the first day of the Quarter immediately following the Quarter in respect of which such payment is due until paid in full, (x) any Series C Unpaid Cash Distribution shall accrue interest from the applicable Series C Distribution Payment Date at rate equal to
 
81 

 
11.79% per annum, and (y) the Partnership shall not be permitted to, and shall not, declare or make (i) any distributions in respect of any Junior Interests and (ii) any distributions in respect of any Series C Parity Securities.
 
(D)                                If all or any portion of a Series C Quarterly Distribution is to be paid in cash, then the aggregate amount of such cash to be so distributed in respect of the Series C Preferred Units Outstanding as of the Record Date for such Series C Quarterly Distribution shall be paid out of Available Cash prior to making any distribution pursuant to Section 6.4 or Section 6.5 . To the extent that any portion of a Series C Quarterly Distribution to be paid in cash with respect to any Quarter, together with any portion of a Series A Quarterly Distribution to be paid in cash with respect to such Quarter, exceeds the amount of Available Cash for such Quarter, an amount of cash equal to the Available Cash for such Quarter will be paid to the Series A Unitholders and Series C Unitholders Pro Rata and the balance of such Series C Quarterly Distribution (and Series A Quarterly Distribution) shall be unpaid and shall constitute an arrearage and accrue interest as set forth in Section 5.14(b)(ii)(C) . The Partnership shall provide written notice to the Series C Unitholders, not later than the last Business Day of the month immediately following the end of such Quarter, describing in reasonable detail the Partnership’s calculation of Available Cash for such Quarter and the portion, if any, of the Series C Quarterly Distribution the Partnership will be unable to pay on the applicable Series C Distribution Payment Date.
 
(E)                                 Notwithstanding anything in this Section 5.14(b)(ii)  to the contrary, with respect to Series C Preferred Units that are converted into Common Units, the holder thereof shall not be entitled to a Series C Preferred Unit distribution and a Common Unit distribution with respect to the same period, but shall be entitled only to the distribution to be paid based upon the class of Units held as of the close of business on the applicable Record Date. For the avoidance of doubt, if a Series C Conversion Notice Date occurs prior to the close of business on a Record Date for payment of a distribution on the Common Units, the applicable holder of Series C Preferred Units shall receive only the Common Unit distribution with respect to such period.
 
(F)                                  Notwithstanding anything in Article VI to the contrary, neither the General Partner nor the holders of Incentive Distribution Rights shall be entitled to receive distributions or allocations of income or gain that correspond or relate to amounts distributed or allocated to Unitholders in respect of Series C Preferred Units, regardless of whether the amounts so distributed or allocated in respect of the Series C Preferred Units were determined under clause (ii) of the definition of “Series C Distribution Rate” or were otherwise determined on an “as converted” basis.
 
82 

 
(iii)                                Issuance of Series C Preferred Units . The Series C Convertible Preferred shall be issued by the Partnership pursuant to the terms and conditions of the Series C Unit Purchase Agreement.
 
(iv)                               Liquidation Value . In the event of any liquidation, dissolution and winding up of the Partnership under Section 12.4 or a sale, exchange or other disposition of all or substantially all of the assets of the Partnership, either voluntary or involuntary, the Record Holders of the Series C Preferred Units shall be entitled to receive, out of the assets of the Partnership available for distribution to the Partners or any assignees, prior and in preference to any distribution of any assets of the Partnership to the Record Holders of any other class or series of Partnership Interests (other than Series A Preferred Units as to which the Series C Preferred Units are pari passu ), the positive value in each such holder’s Capital Account in respect of such Series C Preferred Units. If in the year of such liquidation and winding up, or sale, exchange or other disposition of all or substantially all of the assets of the Partnership, any such Record Holder’s Capital Account in respect of such Series C Preferred Units is less than the aggregate Series C Liquidation Value of such Series C Preferred Units, then notwithstanding anything to the contrary contained in this Agreement, and prior to any other allocation pursuant to this Agreement for such year and prior to any distribution pursuant to the preceding sentence, items of gross income and gain shall be allocated to all Unitholders then holding Series C Preferred Units, Pro Rata, until the Capital Account in respect of each Outstanding Series C Preferred Unit is equal to the Series C Liquidation Value (and no other allocation pursuant to this Agreement shall reverse the effect of such allocation), with such allocation being made Pro Rata with any allocation made pursuant to the second sentence of Section 5.12(b)(iv) . If in the year of such liquidation, dissolution or winding up any such Record Holder’s Capital Account in respect of such Series C Preferred Units is less than the aggregate Series C Liquidation Value of such Series C Preferred Units after the application of the preceding sentence, then to the extent permitted by applicable law and notwithstanding anything to the contrary contained in this Agreement, items of gross income and gain for any preceding taxable period(s) with respect to which IRS Form 1065 Schedules K-1 have not been filed by the Partnership shall be reallocated to all Unitholders then holding Series C Preferred Units, Pro Rata, until the Capital Account in respect of each such Outstanding Series C Preferred Unit after making allocations pursuant to this and the immediately preceding sentence is equal to the Series C Liquidation Value (and no other allocation pursuant to this Agreement shall reverse the effect of such allocation), with such allocation being made Pro Rata with any allocation made pursuant to the third sentence of Section 5.12(b)(iv) . At such time as such allocations have been made to the Outstanding Series C Preferred Units, any remaining Net Termination Gain or Net Termination Loss shall be allocated to the Partners pursuant to Section 6.1(c)  or Section 6.1(d) , as the case may be. At the time of the dissolution of the Partnership, subject to Section 17-804 of the Delaware Act, the Record Holders of the Series C Preferred Units shall become entitled to receive any distributions in respect of the Series C Preferred Units that are accrued and unpaid as of the date of such distribution in priority over any entitlement of any other Partners or Assignees with respect to any distributions by the Partnership to such other Partners or Assignees (other than Series A Preferred Units as to which the Series C Preferred Units are pari passu ); provided, however , that the General Partner, as such, will have no liability for any obligations with respect to such distributions to any Record Holder(s) of Series C Preferred Units.
 
83 

 
(v)                                  Voting Rights .
 
(A)                                Except as provided in Section 5.14(b)(v)(B)  below, the Outstanding Series C Preferred Units shall have voting rights that are identical to the voting rights of the Common Units and shall vote with the Common Units as a single class, so that each Outstanding Series C Preferred Unit will be entitled to one vote for each Common Unit into which such Series C Preferred Unit is then convertible on each matter with respect to which each Common Unit is entitled to vote. Each reference in this Agreement to a vote of Record Holders of Common Units shall be deemed to be a reference to the holders of Common Units, Series A Preferred Units, Series B Units, and Series C Preferred Units on an “as if” converted basis, and the definition of “ Unit Majority ” shall correspondingly be construed to mean at least a majority of the Common Units, the Series A Preferred Units, the Series B Units, and Series C Preferred Units, on an “as if” converted basis, voting together as a single class during any period in which any Series C Preferred Units are Outstanding.
 
(B)                                Notwithstanding any other provision of this Agreement, in addition to all other requirements imposed by Delaware law, and all other voting rights granted under this Agreement, the affirmative vote of the Record Holders of a majority of the Outstanding Series C Preferred Units, voting separately as a class based upon one vote per Series C Preferred Unit, shall be necessary on any matter (including a merger, consolidation or business combination) that adversely affects any of the rights, preferences and privileges of the Series C Preferred Units or amends or modifies any of the terms of the Series C Preferred Units; provided that the Partnership shall be able to amend this Section 5.14 without the approval by the Record Holders of Outstanding Series C Preferred Units so long as the amendment does not adversely affect the holders of the Series C Preferred Units in any material respect and does not affect the holders of the Series C Preferred Units disproportionately in relation to the holders of Common Units; provided, however , that the Partnership may, without the consent or approval of the Record Holders of Outstanding Series C Preferred Units, create (by reclassification or otherwise) and issue Junior Interests (including by amending the provisions of any existing class of Partnership Interests to make such class of Partnership Interests a class of Junior Interests) in an unlimited amount. Without limiting the generality of the preceding sentence, any action shall be deemed to adversely affect the holders of the Series C Preferred Units in a material respect if such action would:
 
(1)                                  reduce the Series C Distribution Rate, change the form of payment of distributions on the Series C Preferred Units, defer the date from which distributions on the Series C Preferred Units will
 
84 

 
accrue, cancel accrued and unpaid distributions on the Series C Preferred Units or any interest accrued thereon, or change the seniority rights of the Series C Unitholders as to the payment of distributions in relation to the Unitholders of any other class or series of Units or, except as determined to be appropriate in connection with the issuance of Junior Interests, amend this Section 5.14 ;
 
(2)                                  reduce the amount payable or change the form of payment to the holders of the Series C Preferred Units upon the voluntary or involuntary liquidation, dissolution or winding up, or sale of all or substantially all of the assets, of the Partnership, or change the seniority of the liquidation preferences of the holders of the Series C Preferred Units in relation to the rights upon liquidation of the holders of any other class or series of Units;
 
(3)                                  make the Series C Preferred Units convertible at the option of the Partnership; or
 
(4)                                  result in a Preferred Unit Change of Control.
 
(vi)                               No Series C Parity Securities or Series C Senior Securities . Other than Series C PIK Preferred Units issued in connection with the Series C Quarterly Distribution, the Partnership shall not, without the affirmative vote of the holders of a majority of the Outstanding Series C Preferred Units, issue any Series C Parity Securities or Series C Senior Securities.
 
(vii)                            Certificates .
 
(A)                                The Series C Preferred Units shall be evidenced by Certificates in such form as the General Partner may approve and, subject to the satisfaction of any applicable legal, regulatory and contractual requirements, may be assigned or transferred in a manner identical to the assignment and transfer of other Units; unless and until the General Partner determines to assign the responsibility to another Person, the Partnership will act as the registrar and transfer agent for the Series C Preferred Units. The Certificates evidencing Series C Preferred Units shall be separately identified and shall not bear the same CUSIP number as the Certificates evidencing Common Units.
 
(B)                                The certificate(s) representing the Series C Preferred Units may be imprinted with a legend in substantially the following form:
 
“NEITHER THE OFFER NOR SALE OF THESE SECURITIES HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
 
85 

 
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER AND, IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT OR THE PARTNERSHIP HAS RECEIVED DOCUMENTATION REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER SUCH ACT. THIS SECURITY IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN THE FIFTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF THE PARTNERSHIP, DATED AS OF APRIL 25, 2016, A COPY OF WHICH MAY BE OBTAINED FROM THE PARTNERSHIP AT ITS PRINCIPAL EXECUTIVE OFFICES.”
 
(viii)                         Conversion .
 
(A)                                At the Option of the Series C Unitholder . At any time and from time to time, subject to any applicable limitations in the New Credit Agreement, the Series C Preferred Units owned by any Series C Unitholder shall be convertible, in whole or in part, upon the request of the Series C Unitholder into a number of Common Units determined by multiplying the number of Series C Preferred Units to be converted by the Series C Conversion Rate. Immediately upon any conversion of Series C Preferred Units, all rights of the Series C Converting Unitholder in respect thereof shall cease, including, without limitation, any accrual of distributions, and such Series C Converting Unitholder shall be treated for all purposes as the owner of Common Units. Fractional Common Units shall not be issued to any person pursuant to this Section 5.14(b)(viii)(A)  (each fractional Common Unit shall be rounded to the nearest whole Common Unit (and a 0.5 Common Unit shall be rounded up to the next higher Common Unit)).
 
(B)                                Conversion Notice . To convert Series C Preferred Units into Common Units pursuant to Section 5.14(b)(viii)(A) , the Series C Converting Unitholder shall give written notice (a “ Series C Conversion Notice ”) to the Partnership in the form of Exhibit D attached hereto stating that such Series C Unitholder elects to so convert Series C Preferred Units and shall state therein with respect to Series C Preferred Units to be converted pursuant to Section 5.14(b)(viii)(A)  the following: (a) the number of Series C Convertible Preferred Units to be converted, (b) the
 
86 

 
Certificate(s) evidencing the Series C Preferred Units to be converted and duly endorsed, (c) the name or names in which such Series C Unitholder wishes the Certificate or Certificates for Series C Conversion Units to be issued, and (d) such Series C Unitholder’s computation of the number of Series C Conversion Units to be received by such Series C Unitholder (or designated recipient(s)) upon the Series C Conversion Date. The date any Series C Conversion Notice is received by the Partnership shall be hereinafter be referred to as a “ Series C Conversion Notice Date .”
 
(C)                                Timing; Certificates . If a Series C Conversion Notice is delivered by a Series C Unitholder to the Partnership in accordance with Section 5.14(b)(viii)(B) , the Partnership shall issue the Series C Conversion Units no later than seven (7) days after a Series C Conversion Notice Date (any date of issuance of such Common Units, a “ Series C Conversion Date ”). On the Series C Conversion Date, the Partnership shall issue to such Series C Unitholder (or designated recipient(s)) a Certificate or Certificates for the number of Series C Conversion Units to which such holder shall be entitled. In lieu of delivering physical Certificates representing the Series C Conversion Units issuable upon conversion of Series C Preferred Units, provided the Transfer Agent is participating in the Depository’s Fast Automated Securities Transfer program, upon request of the Series C Unitholder, the Partnership shall use its commercially reasonable efforts to cause its Transfer Agent to electronically transmit the Series C Conversion Units issuable upon conversion or distribution payment to such Series C Unitholder (or designated recipient(s)), by crediting the account of the Series C Unitholder (or designated recipient(s)) prime broker with the Depository through its Deposit Withdrawal Agent Commission system. The parties agree to coordinate with the Depository to accomplish this objective. Upon issuance of Series C Conversion Units to the Series C Converting Unitholder, all rights under the converted Series C Preferred Units shall cease, and such Series C Converting Unitholder shall be treated for all purposes as the Record Holder of such Series C Conversion Units.
 
(D)                                Distributions, Combinations, Subdivisions and Reclassifications by the Partnership . If the Partnership (i) makes a distribution on its Common Units in Common Units, (ii) subdivides or splits its outstanding Common Units into a greater number of Common Units, (iii) combines or reclassifies its Common Units into a smaller number of Common Units or (iv) issues by reclassification of its Common Units any Partnership Interests (including any reclassification in connection with a merger, consolidation or business combination in which the Partnership is the surviving Person), then the Series C Conversion Rate in effect at the time of the Record Date for such distribution or the effective date of such subdivision, split, combination, or reclassification shall be proportionately adjusted so that the conversion of the Series C Preferred Units after such
 
87 

 
time shall entitle each Series C Unitholder to receive the aggregate number of Common Units (or any Partnership Interests into which such Common Units would have been combined, consolidated, merged or reclassified pursuant to clauses (iii) and (iv) above) that such Series C Unitholder would have been entitled to receive if the Series C Preferred Units had been converted into Common Units immediately prior to such Record Date or effective date, as the case may be, and in the case of a merger, consolidation or business combination in which the Partnership is the surviving Person, the Partnership shall provide effective provisions to ensure that the provisions in this Section 5.14 relating to the Series C Preferred Units shall not be abridged or amended and that the Series C Preferred Units shall thereafter retain the same powers, preferences and relative participating, optional and other special rights, and the qualifications, limitations and restrictions thereon, that the Series C Preferred Units had immediately prior to such transaction or event. An adjustment made pursuant to this Section 5.14(b)(viii)(E)  shall become effective immediately after the Record Date in the case of a distribution and shall become effective immediately after the effective date in the case of a subdivision, combination, reclassification (including any reclassification in connection with a merger, consolidation or business combination in which the Partnership is the surviving Person) or split. Such adjustment shall be made successively whenever any event described above shall occur.
 
If, in the future, the Partnership issues any Convertible Securities, the General Partner shall, at the direction and at the option of the holders of a majority of the Outstanding Series C Preferred Units in their sole discretion, either (i) amend the provisions of this Agreement relating to antidilution protection to (A) revise any such provision that is less favorable than the corresponding provision offered in the terms of such Convertible Securities (or any related purchase agreement) so that such provision is the same as such provision offered in the terms of such Convertible Securities (or any related purchase agreement) and (B) incorporate any provision(s) offered in the terms of such Convertible Securities (or any related purchase agreement) that is not currently provided for in this Agreement and which would make the antidilution protection provisions of this Agreement more favorable to the holders of Series C Preferred Units, which amendment shall be effective concurrently with the issuance and/or execution of documentation relating to such Convertible Securities, or (ii) retain the antidilution language applicable to the Series C Preferred Units at such time. The Partnership agrees to provide as much prior notice of the proposed issuance of any such Convertible Securities and/or execution of documentation relating to such issuance of Convertible Securities as is reasonably practicable (and in any event, such notice shall be provided at least ten (10) Business Days prior to such issuance and/or execution).
 
88 

 
(E)                                 Follow-On Adjustments . Except in connection with the exercise of a Warrant, if the Partnership shall issue or sell, or grant any Follow-on Units at a Follow-on Price that is less than one hundred percent (100%) of the Series C Adjusted Issue Price, then the Series C Conversion Rate will be reset so that it will equal the number determined by dividing the Series C Adjusted Issue Price immediately before the issuance of the Follow-On Units by the result achieved through application of the following formula:
 
((CP x OB) + (FP x Q)) / OA
 
Where:
 
CP = the Series C Adjusted Issue Price in effect immediately before the issuance of the Follow-On Units
 
FP = the Follow-On Price
 
OB = the total number of fully diluted Common Units outstanding before the issuance of the Follow-On Units
 
Q = the total number of fully diluted Follow-On Units issued
 
OA = the total number of fully diluted Common Units outstanding after giving effect to the issuance of the Follow-On Units.
 
For purposes of this Section 5.14(b)(viii)(E) , the indicative price per Common Unit resulting from the issuance of Convertible Securities will be determined using the principles set forth in Section 5.14(b)(viii)(H)(3) .
 
(F)                                  Other Extraordinary Transactions Affecting the Partnership .
 
(1)                                  Prior to the consummation of a Partnership Event, the Partnership shall, as promptly as practicable, but in any event no later than twelve (12) Business Days prior to the consummation of the Partnership Event, make an irrevocable written offer (a “ Series C Partnership Event Change of Control Offer ”), subject to consummation of the Partnership Event, to each holder of Series C Preferred Units to redeem all (but not less than all) of such holder’s Series C Preferred Units for a price per Series C Preferred Unit payable in cash equal to the greater of (x) the sum of the Series C Issue Price and the Series C Unpaid Cash Distributions and (y) an amount equal to the product of (1) the number of Common Units into which each Series C Preferred Unit is convertible pursuant to Section 5.14(b)(viii)  on the day immediately prior to the date of the Series C Partnership Event Change of Control Offer and (2) the sum of (A) the cash consideration per Common Unit to be paid to the holders of Common Units pursuant to the Partnership Event
 
89 

 
plus (B) the fair market value per Common Unit of the securities or other assets to be distributed to the holders of the Common Units pursuant to the Partnership Event (as applicable, the “ Series C Partnership Event Payment ”).
 
(2)                                  Upon receipt by a Series C Unitholder of a Series C Partnership Event Change of Control Offer, such Series C Unitholder may elect, by written notice received by the Partnership no later than five (5) Business Days after the receipt by such holder of a Series C Partnership Event Change of Control Offer, to receive Series C Survivor Preferred Securities (as defined below) pursuant to this Section 5.14(b)(viii)(F)(2)  in lieu of a Series C Partnership Event Payment. Upon receipt of such Series C Unitholder’s election to receive Series C Survivor Preferred Securities, the Partnership shall as promptly as practicable, but in any event prior to the consummation of any Partnership Event, make appropriate provision to ensure that such electing holders of Series C Preferred Units receive in such Partnership Event a preferred security, issued by the Person surviving or resulting from such Partnership Event and containing provisions substantially equivalent to the provisions set forth in this Agreement with respect to the Series C Preferred Units, including Section 5.14 and Section 7.3 hereof, without material abridgement, including, without limitation, the same powers, preferences, rights to distributions, rights to accumulation and compounding upon failure to pay distributions, and relative participating, optional or other special rights and the qualifications, limitations or restrictions thereon, that the Series C Preferred Unit had immediately prior to such Partnership Event (the “ Series C Survivor Preferred Security ”). The Series C Conversion Rate in effect at the time of the effective date of such Partnership Event shall be proportionately adjusted so that the conversion of a unit of Series C Survivor Preferred Security after such time shall entitle the holder to the number of securities or amount of cash or other assets which, if a Series C Preferred Unit had been converted into Common Units immediately prior to such Partnership Event, such holder would have been entitled to receive immediately following such Partnership Event. Subsequent adjustments to the Series C Conversion Rate of the Series C Survivor Preferred Security shall be made successively thereafter whenever any event described in Section 5.14(b)(viii)(D) , Section 5.14(b)(viii)(E)  or this Section 5.14(b)(viii)(F)  shall occur. Notwithstanding the foregoing, the Partnership may consummate a Partnership Event without making appropriate provision to ensure that the holders of Series C Preferred Units receive a Series C Partnership Event Payment or Series C Survivor Preferred Security, as applicable, with respect to
 
90 

 
such Partnership Event if prior to such consummation the Partnership has received the prior written approval of the holders of a majority of the Outstanding Series C Preferred Units.
 
(3)                                  A Series C Partnership Event Change of Control Offer shall be mailed to each Series C Unitholder and shall describe the transaction or transactions that constitute the Partnership Event and state:
 
i)                                          that the Series C Partnership Event Change of Control Offer is being made pursuant to this Section 5.14(b)(viii)(F)  and that the Partnership is making an offer to redeem all Series C Preferred Units of such Unitholder (subject to the consummation of the Partnership Event);
 
ii)                                       the amount of the Series C Partnership Event Payment and the redemption date, which shall be the date on which the Partnership Event is consummated or as soon thereafter as practicable (the “ Series C Partnership Event Payment Date ”); and
 
iii)                                    the amount per Common Unit that each Common Unitholder is receiving in connection with the Partnership Event.
 
On the Series C Partnership Event Payment Date, the Partnership (or its successor) shall pay to each Unitholder of Series C Preferred Units that accepts the Series C Partnership Event Change of Control Offer an amount in cash equal to such holder’s applicable Series C Partnership Event Payment, and all of such holder’s rights and privileges under the Series C Preferred Units or as a Series C Unitholder shall be extinguished.
 
(G)                                Notwithstanding any of the other provisions of this Section 5.14(b)(viii) , no adjustment shall be made to the Series C Conversion Rate pursuant to Section 5.14(b)(viii)(D) - (F)  as a result of any of the following:
 
(1)                                  the grant of Common Units or options, warrants or rights to purchase Common Units or the issuance of Common Units upon the exercise of any such options, warrants or rights to employees, officers or directors of the General Partner or the Partnership and its Subsidiaries in respect of services provided to or for the benefit of the Partnership or its Subsidiaries, under compensation plans and agreements approved in good faith by the General Partner (including any Long Term Incentive Plan); provided that, in the case of options, warrants or rights to purchase Common Units, the exercise price per Common Unit shall not be less than the Closing Price on the date such option, warrant or other right is issued;
 
91 

 
(2)                                  the issuance of any Common Units as all or part of the consideration to effect (i) the closing of any acquisition by the Partnership of assets of an unrelated third party in an arm’s-length transaction or (ii) the consummation of a merger, consolidation or other business combination of the Partnership with or into another entity to the extent such transaction(s) is or are validly approved by the vote or consent of the General Partner; and
 
(3)                                  the issuance of Partnership Interests for which an adjustment is made under another provision of this Section 5.14(b)(viii) .
 
(H)                               The following rules shall apply for purposes of this Section 5.14(b)(viii) :
 
(1)                                  In the case of the issuance or sale (or deemed issuance or sale) of Common Units for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable underwriting discounts or placement agent fees, commissions or the expenses allowed, paid or incurred by the Partnership for any underwriting or placement agent or otherwise in connection with the issuance and sale thereof.
 
(2)                                  In the case of the issuance or sale (or deemed issuance or sale) of Common Units for consideration in whole or in part other than cash, the consideration other than cash shall be valued at the Agreed Value thereof;
 
(3)                                  In the case of the issuance or sale of Convertible Securities, the following provisions shall apply for all purposes of this Section 5.14(b)(viii)(H) :
 
i)                                          The aggregate maximum number of Common Units deliverable upon exercise (assuming the satisfaction of any conditions to exercisability, including, without limitation, the passage of time, but without taking into account potential antidilution adjustments) of options or warrants to purchase or rights to subscribe for Common Units shall be deemed to have been issued at the time such options, warrants or rights were issued and for consideration equal to the consideration (determined in the manner provided in this Section 5.14(b)(viii)(H) ), if any, received by the Partnership upon the issuance of such options, warrants or rights plus the minimum exercise price provided in such options, warrants or rights (without taking into account potential antidilution adjustments) for the Common Units covered thereby.
 
92 

 
ii)                                       The aggregate maximum number of Common Units deliverable upon conversion of or in exchange (assuming the satisfaction of any conditions to convertibility or exchangeability, including, without limitation, the passage of time, but without taking into account potential antidilution adjustments) for any such convertible or exchangeable securities or upon the exercise of options or warrants to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof shall be deemed to have been issued at the time such securities were issued or such options, warrants or rights were issued and for a consideration equal to the consideration, if any, received by the Partnership for any such securities or options, warrants or rights, plus the minimum additional consideration, if any, to be received by the Partnership (without taking into account potential antidilution adjustments) upon the conversion or exchange of such securities or upon the exercise of such options, warrants or rights and subsequent conversion or exchange of the underlying convertible or exchangeable securities, as appropriate (the consideration in each case to be determined in the manner provided in this Section 5.14(b)(viii) ).
 
iii)                                    In the event of any change in (x) the number of Common Units deliverable or (y) the consideration payable to the Partnership upon exercise of such options, warrants or rights with respect to either Common Units or such convertible or exchangeable securities or upon conversion of or in exchange for such convertible or exchangeable securities and not otherwise entitled to any appropriate antidilution adjustment pursuant to this Section 5.14 , including, but not limited to, a change resulting from the antidilution provisions thereof, the Series C Conversion Rate, to the extent in any way affected by or computed using such options, warrants, rights or securities, shall be recomputed to reflect such change, but no further adjustment shall be made for the actual issuance of Common Units or any payment of such consideration upon the exercise of any such options, warrants or rights or the conversion or exchange of such securities.
 
iv)                                   Upon the expiration of any such options, warrants or rights with respect to either Common Units or such convertible or exchangeable securities or the termination of any such rights to convert or exchange, the Series C
 
93 

 
Conversion Rate, to the extent in any way affected by or computed using such options, warrants, rights or securities shall be recomputed to reflect the issuance of only the number of Common Units actually issued upon the exercise of such options, warrants or rights with respect to Common Units, upon the conversion or exchange of such securities, or the number of Common Units issuable upon conversion or exchange of the convertible or exchangeable securities that were actually issued upon exercise of options, warrants or rights related to such securities.
 
v)                                      The number of Common Units deemed issued and the consideration deemed paid therefor pursuant to Section 5.14(b)(viii)(H)(3)i) and ii) shall be appropriately adjusted to reflect any change, termination or expiration of the type described in either Section 5.14(b)(viii)(H)(3)iii) or iv) .
 
(4)                                  Notwithstanding any of the other provisions of this Section 5.14(b)(viii)(H) , no adjustment shall be made to the number of Common Units issuable upon conversion of the Series C Preferred Units or the Series C Conversion Rate as a result of an event for which an adjustment is made under another provision of this Section 5.14(b)(viii)(H) .
 
(5)                                  For purposes of this Section 5.14(b)(viii) , no adjustment to the Series C Conversion Rate shall be made in an amount less than 1/100th of one cent per Unit; provided that any adjustments that are not required to be made by reason of this sentence shall be carried forward and shall be taken into account in any subsequent adjustment made.
 
(I)                                    In the event of any taking by the Partnership of a Record Date of the holders of any class of Partnership Interests for the purpose of determining the holders thereof who are entitled to receive any distribution thereon, any security or right convertible into or entitling the holder thereof to receive additional Common Units, or any right to subscribe for, purchase or otherwise acquire any Partnership Interests or any other securities or property of the Partnership, or to receive any other right, the Partnership shall notify each holder of Series C Preferred Units at least fifteen (15) days prior to the Record Date, of which any such Record Date is to be taken for the purpose of such distribution, security or right and the amount and character of such distribution, security or right; provided, however , that the foregoing requirement shall be deemed satisfied with respect to any holder of Series C Preferred Units if at least fifteen (15) days prior to the Record Date, the Partnership shall have issued a press release which shall be posted on the Partnership’s website and carried by one or more wire services, containing the required information.
 
94 

 
(J)                                    The Partnership shall pay any and all issue, documentary, stamp and other taxes, excluding any income, franchise, property or similar taxes, that may be payable in respect of any issue or delivery of Series C Conversion Units on conversion of, or payment of distributions on, Series C Preferred Units pursuant hereto. However, the holder of any Series C Preferred Units shall pay any tax that is due because the Series C Conversion Units issuable upon conversion thereof or distribution payment thereon are issued in a name other than such Series C Unitholder’s name.
 
(K)                                The Partnership agrees that it will act in good faith to make any adjustment(s) required by this Section 5.14(b)(viii)  equitably and in such a manner as to afford the Series C Unitholders the benefits of the provisions hereof, and will not take any action that could reasonably be expected to deprive such Series C Unitholders of the benefit hereof.
 
(ix)                               Reserved.
 
(x)                                  Tax Estimates . Upon receipt of a written request from any Series C Unitholder stating the number of Series C Preferred Units owned by such holder (which requests shall be made no more than two (2) times per calendar year and the first such request per calendar year shall be at the Partnership’s expense, and the second at the expense of such requesting holder), the Partnership shall, within ten (10) days, provide such Series C Unitholder with a good faith estimate (and reasonable supporting calculations) of whether there is sufficient Unrealized Gain attributable to the Partnership property such that, if such Series C Unitholder converted its Series C Preferred Units pursuant to Section 5.14(b)(viii)(A)  or (B)  and such Unrealized Gain was allocated to such holder pursuant to Section 5.5(d)(iii) , such holder’s Capital Account in respect of its converted Series C Preferred Units would be equal to the Per Unit Capital Amount for a then Outstanding Common Unit (other than a Series C Conversion Unit received in connection with such conversion of a Series C Preferred Unit).
 
(xi)                               Fully Paid and Nonassessable . Any Series C Conversion Unit(s) delivered pursuant to this Section 5.14 shall be validly issued, fully paid and nonassessable (except as such nonassessability may be affected by matters described in Sections 17-303, 17¬ 607 and 17-804 of the Delaware Act), free and clear of any liens, claims, rights or encumbrances other than those arising under the Delaware Act or this Agreement or created by the holders thereof.
 
(xii)                            Listing of Common Units . The Partnership will procure, at its sole expense, the listing of the Series C Conversion Units issuable upon conversion of the Series C Preferred Units, subject to issuance or notice of issuance on any National Securities Exchange on which the Common Units are listed or admitted to trading.
 
(c)                                   Call Right on Series C Convertible Preferred Units.   At any time which shall be no later than 10 days or earlier than 30 days before April 24, 2017, the Partnership may exercise the right (the “ Series C Call Right ”), but shall have no obligation, to require the holder or holders of the Series C Preferred Units (the “ Series C Holders ”) to sell, assign and transfer all or a portion of the then outstanding Series C Preferred Units to the Partnership in accordance with
 
95 

 
this Section 5.14(c) .  The Partnership may exercise the Series C Call Right with respect to any Series C Preferred Unit unless: (A) the exercise of the Series C Call Right would result in a default under any applicable financing agreements, or other financing obligations of the Partnership or any of its Affiliates, or would otherwise be prohibited by any securities or other applicable law, or (B) a Series C Holder has delivered, on or prior to the date of the Series C Call Exercise Notice (as defined below), a Series C Conversion Notice with respect to such Series C Preferred Unit (and then no Series C Call Right may be made as to such Series C Preferred Unit).
 
(i)                                      Reserved.
 
(ii)                                   The purchase price to be paid by the Partnership in connection with the exercise of the Series C Call Right shall be the Series C Adjusted Issue Price, plus any Series C Unpaid Cash Distributions per Series C Preferred Unit acquired pursuant to the Series C Call Right (subject to appropriate adjustment for any equity distribution, subdivision or combination of Partnership Interests).
 
(iii)                                If the Partnership elects to exercise the Series C Call Right, the Partnership shall deliver a written notice (the “ Series C Call Exercise Notice ”) to the Series C Holders informing the Series C Holders of the Partnership’s intention to exercise its Series C Call Right.  The Series C Call Exercise Notice shall include a certificate in substantially the form attached hereto as Annex D , setting forth (A) the number of Series C Preferred Units held by each Series C Holder, (B) the number of Series C Preferred Units with respect to which the Series C Call Right is being exercised, (C) the bank account information for wire transfer of the purchase price or address for delivery of the purchase price by check, and (D) the closing date for the purchase (the “ Series C Call Closing Date ”), which shall be no earlier than 10 days or later than 30 days after the date of the Series C Call Exercise Notice.  If any Series C Holder does not notify the Partnership of a change to the bank account information or address for delivery of the purchase prices set forth in Annex D prior to the date that is two days before the Series C Call Closing Date, the Partnership shall wire or deliver to each Series C Holder its portion of the purchase price in immediately available funds to such bank account or address set forth on Annex D .
 
(iv)                               The Series C Call Right may be exercised as to any portion of the outstanding Series C Preferred Units outstanding at the time a Series C Call Exercise Notice is delivered, but must be exercised pro-rata as to all Series C Preferred Units subject to the Series C Call Right.
 
(v)                                  At the closing of the Series C Call Right, (A) the Partnership shall deliver to each Series C Holder subject thereto a certificate executed on behalf of the Partnership in the form attached hereto as Annex E , and (B) each such Series C Holder shall deliver to the Partnership a certificate executed by such Series C Holder in the form attached hereto as Annex F , the certificates representing the Series C Preferred Units with transfer powers, executed in blank, or, if uncertificated, transfer powers executed in blank, and such other documentation as may reasonably be requested by the Partnership.
 
96 

 
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS SECTION
 
Section 6.1                                    Allocations for Capital Account Purposes.
 
Except as otherwise required pursuant to Section 5.12(b)(i)  and (iv)  and Section 5.14(b)(i)  and (iv) , for purposes of maintaining Capital Accounts and in determining the rights of the Partners among themselves, the Partnership’s items of income, gain, loss and deduction (computed in accordance with Section 5.5(b)  shall be allocated among the Partners in each taxable period as provided herein below:
 
(a)                                  Net Income . After giving effect to the special allocations set forth in Section 6.1(d) , Net Income for each taxable period and all items of income, gain, loss and deduction taken into account in computing Net Income for such taxable period shall be allocated as follows:
 
(i)                                      First, to the General Partner until the aggregate of the Net Income allocated to the General Partner pursuant to this Section 6.1(a)(i)  and the Net Termination Gain allocated to the General Partner pursuant to Section 6.1(c)(i)(A)  for the current and all previous taxable periods is equal to the aggregate of the Net Loss allocated to the General Partner pursuant to Section 6.1(b)(ii)  for all previous taxable periods and the Net Termination Loss allocated to the General Partner pursuant to Section 6.1(c)(ii)(D)  for the current and all previous taxable periods; and
 
(ii)                                   The balance, if any, (x) to the General Partner in accordance with its Percentage Interest, and (y) to all Unitholders, Pro Rata, a percentage equal to 100% less the percentage applicable to subclause (x).
 
(b)                                  Net Loss . After giving effect to the special allocations set forth in Section 6.1(d) , Net Loss for each taxable period and all items of income, gain, loss and deduction taken into account in computing Net Loss for such taxable period shall be allocated as follows:
 
(i)                                      First, to the General Partner and the Unitholders, Pro Rata; provided, that Net Losses shall not be allocated pursuant to this Section 6.1(b)(i)  to the extent that such allocation would cause any Unitholder to have a deficit balance in its Adjusted Capital Account at the end of such taxable period (or increase any existing deficit balance in its Adjusted Capital Account); and
 
(ii)                                   The balance, if any, 100% to the General Partner.
 
(c)                                   Net Termination Gains and Losses . After giving effect to the special allocations set forth in Section 6.1(d) , Net Termination Gain or Net Termination Loss (including a pro rata part of each item of income, gain, loss and deduction taken into account in computing Net Termination Gain or Net Termination Loss) for such taxable period shall be allocated in the manner set forth in this Section 6.1(c) . All allocations under this Section 6.1(c)  shall be made after Capital Account balances have been adjusted by all other allocations provided under this Section 6.1 and after all distributions of Available Cash provided under Section 6.4 and Section
 
97 

 
6.5 have been made; provided, however , that solely for purposes of this Section 6.1(c) , Capital Accounts shall not be adjusted for distributions made pursuant to Section 12.4 .
 
(i)                                      Net Termination Gain (including a pro rata part of each item of income, gain, loss, and deduction taken into account in computing Net Termination Gain) shall be allocated:
 
(A)                                First , to the General Partner until the aggregate of the Net Termination Gain allocated to the General Partner pursuant to this Section 6.1(c)(i)(A)  and the Net Income allocated to the General Partner pursuant to Section 6.1(a)(i)  for the current and all previous taxable periods is equal to the aggregate of the Net Loss allocated to the General Partner pursuant to Section 6.1(b)(ii)  for all previous taxable periods and the Net Termination Loss allocated to the General Partner pursuant to Section 6.1(c)(ii)(D)  for all previous taxable periods;
 
(B)                                Second , (x) to the General Partner in accordance with its Percentage Interest and (y) to all Unitholders holding Common Units, Pro Rata, a percentage equal to 100% less the General Partner’s Percentage Interest, until the Capital Account in respect of each Common Unit then Outstanding is equal to the sum of (1) its Unrecovered Initial Unit Price, (2) the Minimum Quarterly Distribution for the Quarter during which the Liquidation Date occurs, reduced by any distribution pursuant to Section 6.4(b)(i)  with respect to such Common Unit for such Quarter and (3) any then-existing Cumulative Common Unit Arrearage; and
 
(C)                                Third , (x) to the General Partner in accordance with its Percentage Interest, (y) 48% to the holders of the Incentive Distribution Rights, Pro Rata, and (z) to all Unitholders, Pro Rata, a percentage equal to 100% less the sum of the percentages applicable to subclauses (x) and (y) of this clause (C).
 
(ii)                                   Net Termination Loss (including a pro rata part of each item of income, gain, loss, and deduction taken into account in computing Net Termination Loss) shall be allocated:
 
(A)                                First , (x) to the General Partner in accordance with its Percentage Interest and (y) to all Unitholders holding Common Units, Pro Rata, a percentage equal to 100% less the General Partner’s Percentage Interest, until the Capital Account in respect of each Common Unit then Outstanding has been reduced to zero;
 
(B)                                Reserved.
 
(C)                                Second , to the General Partner and the Unitholders, Pro Rata; provided that Net Termination Loss shall not be allocated pursuant to this Section 6.1(c)(ii)(C)  to the extent such allocation would cause any
 
98 

 
Unitholder to have a deficit balance in its Adjusted Capital Account (or increase any existing deficit in its Adjusted Capital Account); and
 
(D)                                Third , the balance, if any, 100% to the General Partner.
 
(d)                                  Special Allocations . Notwithstanding any other provision of this Section 6.1 , the following special allocations shall be made for such taxable period:
 
(i)                                      Partnership Minimum Gain Chargeback . Notwithstanding any other provision of this Section 6.1 , if there is a net decrease in Partnership Minimum Gain during any Partnership taxable period, each Partner shall be allocated items of Partnership income and gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(f)(6), 1.704-2(g)(2) and 1.704-2(j)(2)(i), or any successor provision. For purposes of this Section 6.1(d) , each Partner’s Adjusted Capital Account balance shall be determined, and the allocation of income or gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 6.1(d)  with respect to such taxable period (other than an allocation pursuant to Section 6.1(d)(vi)  and Section 6.1(d)(vii) ). This Section 6.1(d)(i)  is intended to comply with the Partnership Minimum Gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.
 
(ii)                                   Chargeback of Partner Nonrecourse Debt Minimum Gain . Notwithstanding the other provisions of this Section 6.1 (other than Section 6.1(d)(i) ), except as provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Partner Nonrecourse Debt Minimum Gain during any Partnership taxable period, any Partner with a share of Partner Nonrecourse Debt Minimum Gain at the beginning of such taxable period shall be allocated items of Partnership income and gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(i)(4) and 1.704- 2(j)(2)(ii), or any successor provisions. For purposes of this Section 6.1(d) , each Partner’s Adjusted Capital Account balance shall be determined, and the allocation of income or gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 6.1(d) , other than Section 6.1(d)(i)  and other than an allocation pursuant to Section 6.1(d)(vi)  and Section 6.1(d)(iv) , 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)                                Priority Allocations.
 
(A)                                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 (other than a Series A Preferred Unit or a Series C Preferred Unit) exceeds the amount of cash or the Net Agreed Value of property distributed with respect to another Unit (other than a Series A Preferred Unit or a Series C Preferred 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 (1) there shall be allocated gross income and gain to each Unitholder receiving an Excess
 
99 

 
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)(iii)(A)  for the current taxable period and all previous taxable periods is equal to the amount of the Excess Distribution; and (2) the General Partner shall be allocated gross income and gain with respect to each such Excess Distribution in an amount equal to the product obtained by multiplying (aa) the quotient determined by dividing (x) the General Partner’s Percentage Interest at the time when the Excess Distribution occurs by (y) a percentage equal to 100% less the General Partner’s Percentage Interest at the time when the Excess Distribution occurs, times (bb) the total amount allocated in clause (1) above with respect to such Excess Distribution.
 
(B)                                After the application of Section 6.1(d)(iii)(A) , the remaining items of Partnership income or gain for the taxable period, if any, shall be allocated (1) to the holders of Incentive Distribution Rights, Pro Rata, until the aggregate amount of such items allocated to the holders of Incentive Distribution Rights pursuant to this Section 6.1(d)(iii)(B)  for the current taxable period and all previous taxable periods is equal to the cumulative amount of all Incentive Distributions made to the holders of Incentive Distribution Rights from the IPO Closing Date to a date 45 days after the end of the current taxable period; and (2) to the General Partner an amount equal to the product of (aa) an amount equal to the quotient determined by dividing (x) the General Partner’s Percentage Interest by (y) the sum of 100 less the General Partner’s Percentage Interest times (bb) the sum of the amounts allocated in clause (1) above.
 
(iv)                               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 , 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 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)(iv)  were not in this Agreement.
 
(v)                                  Gross Income Allocations . 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 Partnership gross income and gain in the amount of such excess as quickly as possible; provided , that an allocation pursuant to this Section 6.1(d)(v)  shall be made only if and to the extent that such Partner would have a
 
100 

 
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)(iv)  and this Section 6.1(d)(v)  were not in this Agreement.
 
(vi)                               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.
 
(vii)                            Partner Nonrecourse Deductions . Partner Nonrecourse Deductions for any taxable period shall be allocated 100% to the Partner that bears the Economic Risk of Loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i). If more than one Partner bears the Economic Risk of Loss with respect to a Partner Nonrecourse Debt, such Partner Nonrecourse Deductions attributable thereto shall be allocated between or among such Partners in accordance with the ratios in which they share such Economic Risk of Loss.
 
(viii)                         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.
 
(ix)                               Code Section 754 Adjustments . To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such item of gain or loss shall be specially allocated to the Partners in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Section of the Treasury Regulations.
 
(x)                                  Economic Uniformity; Changes in Law .
 
(A)                                Reserved.
 
(B)                                With respect to an event triggering an adjustment to the Carrying Value of Partnership property pursuant to Section 5.5(d)  during any taxable period of the Partnership ending upon, or after, the issuance of IDR Reset Common Units pursuant to Section 5.11 or of Post-Initial Issuance Series B Units, any Unrealized Gains and Unrealized Losses shall be allocated among the Partners in a manner that to the nearest extent possible results in the Capital Accounts maintained with respect to all IDR Reset Common Units and Post-Initial Issuance Series B Units equaling the product of (i) the Aggregate Quantity of IDR Reset Common Units and
 
101 

 
the total Post-Initial Issuance Series B Units Outstanding and (ii) the Per Unit Capital Amount for an IPO Common Unit that is Outstanding.
 
(C)                                With respect to any taxable period during which an IDR Reset Common Unit is transferred to any Person who is not an Affiliate of the transferor, all or a portion of the remaining items of Partnership gross income or gain for such taxable period shall be allocated 100% to the transferor Partner of such transferred IDR Reset Common Unit until such transferor Partner has been allocated an amount of gross income or gain that increases the Capital Account maintained with respect to such transferred IDR Reset Common Unit to an amount equal to the Per Unit Capital Amount for an IPO Common Unit.
 
(D)                                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, deduction, 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)(x)(D)  only if such conventions, allocations or amendments would not have a material adverse effect on the Partners, the holders of any class or classes of Limited Partner Interests issued and Outstanding or the Partnership, and if such allocations are consistent with the principles of Section 704 of the Code.
 
(E)                                 At the election of the General Partner, after application of Section 5.5(d)(iii) , with respect to any taxable period ending upon, or after, the conversion of the Series B Units into Common Units, all or a portion of the remaining items of Partnership gross income or gain for such taxable period shall be allocated to each Partner holding Series B Conversion Units in the proportion of the number of Series B Conversion Units held by such Partner to the total number of Series B Conversion Units then outstanding, until each such Partner has been allocated an amount of gross income or gain that increases the Capital Account maintained with respect to such Series B Conversion Units to an amount that, after taking into account the other allocations of income, gain, loss and deduction to be made with respect to such taxable period, will equal to the product of (i) the number of Series B Conversion Units held by such Partner and (ii) the Per Unit Capital Amount for a Common Unit that is not a Post-Initial Issuance Series B Unit. The purpose of this allocation is to establish
 
102 

 
uniformity between the Capital Accounts underlying Series B Conversion Units and the Capital Accounts underlying Common Units that are not Series B Conversion Units.
 
(xi)                               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 and deduction allocated to each Partner pursuant to the Required Allocations and the Agreed Allocations, together, shall be equal to the net amount of such items that would have been allocated to each such Partner under the Agreed Allocations had the Required Allocations and the related Curative Allocation not otherwise been provided in this Section 6.1 . Notwithstanding the preceding sentence, Required Allocations relating to (1) Nonrecourse Deductions shall not be taken into account except to the extent that there has been a decrease in Partnership Minimum Gain and (2) Partner Nonrecourse Deductions shall not be taken into account except to the extent that there has been a decrease in Partner Nonrecourse Debt Minimum Gain. In exercising its discretion under this Section 6.1(d)(xi)(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)(xi)(A)  shall only be made with respect to Required Allocations to the extent the General Partner determines that such allocations will otherwise be inconsistent with the economic agreement among the Partners. Further, allocations pursuant to this Section 6.1(d)(xi)(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)(xi)(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)(xi)(A)  among the Partners in a manner that is likely to minimize such economic distortions.
 
(xii)                            Corrective and other Allocations . In the event of any allocation of Additional Book Basis Derivative Items or any Book-Down Event or any recognition of a Net Termination Loss, the following rules shall apply:
 
(A)                                Except as provided in Section 6.1(d)(xi)(B) , in the case of any allocation of Additional Book Basis Derivative Items (other than an allocation of Unrealized Gain or Unrealized Loss under Section 5.5(d) ), the General Partner shall allocate such Additional Book Basis Derivative
 
103 

 
Items (1) to the holders of Incentive Distribution Rights and the General Partner to the same extent that the Unrealized Gain or Unrealized Loss giving rise to such Additional Book Basis Derivative Items was allocated to them pursuant to Section 5.5(d)  and (2) to all Unitholders, Pro Rata, to the extent that the Unrealized Gain or Unrealized Loss giving rise to such Additional Book Basis Derivative Items was allocated to any Unitholders pursuant to Section 5.5(d) .
 
(B)                                In the case of any allocation of Additional Book Basis Derivative Items (other than an allocation of Unrealized Gain or Unrealized Loss under Section 5.5(d)  or an allocation of Net Termination Gain or Net Termination Loss pursuant to Section 6.1(c) ) as a result of a sale or other taxable disposition of any Partnership asset that is an Adjusted Property (“ Disposed of Adjusted Property ”), the General Partner shall allocate (1) additional items of gross income and gain (aa) away from the holders of Incentive Distribution Rights and (bb) to the Unitholders, or (2) additional items of deduction and loss (aa) away from the Unitholders and (bb) to the holders of Incentive Distribution Rights, to the extent that the Additional Book Basis Derivative Items allocated to the Unitholders exceed their Share of Additional Book Basis Derivative Items with respect to such Disposed of Adjusted Property. Any allocation made pursuant to this Section 6.1(d)(xii)(B)  shall be made after all of the other Agreed Allocations have been made as if this Section 6.1(d)(xii)  were not in this Agreement and, to the extent necessary, shall require the reallocation of items that have been allocated pursuant to such other Agreed Allocations.
 
(C)                                In the case of any negative adjustments to the Capital Accounts of the Partners resulting from a Book-Down Event or from the recognition of a Net Termination Loss, such negative adjustment (1) shall first be allocated, to the extent of the Aggregate Remaining Net Positive Adjustments, in such a manner, as determined by the General Partner, that to the extent possible the aggregate Capital Accounts of the Partners will equal the amount that would have been the Capital Account balances of the Partners if no prior Book-Up Events had occurred, and (2) any negative adjustment in excess of the Aggregate Remaining Net Positive Adjustments shall be allocated pursuant to Section 6.1(c)  hereof.
 
(D)                                For purposes of this Section 6.1(d)(xii) , the Unitholders shall be treated as being allocated Additional Book Basis Derivative Items to the extent that such Additional Book Basis Derivative Items have reduced the amount of income that would otherwise have been allocated to the Unitholders under this Agreement. Without limiting the foregoing, if an Adjusted Property is contributed by the Partnership to another entity classified as a partnership for federal income tax purposes (the “lower tier partnership”), the General Partner may make allocations similar to those described in Section 6.1(d)(xii)(A) - (C)  to the extent the General Partner
 
104 

 
determines such allocations are necessary to account for the Partnership’s allocable share of income, gain, loss and deduction of the lower tier partnership that relate to the contributed Adjusted Property in a manner that is consistent with the purpose of this Section 6.1(d)(xii) .
 
(xiii)                         Reserved.
 
(xiv)                        Redemption of Series A Preferred Units or Series C Preferred Units . Notwithstanding any other provision of this Section 6.1 (other than the Regulatory Allocations), with respect to any taxable period during which Series A Preferred Units are redeemed pursuant to the terms of Section 5.12(b)(viii)(F)  or Series C Preferred Units are redeemed pursuant to the terms of Section 5.14(b)(viii)(F) , each Partner holding redeemed Series A Preferred Units or Series C Preferred Units shall, to the extent necessary after the allocation of Unrealized Gain and Unrealized Loss pursuant to Section 5.5(d)(ii) , be allocated items of income, gain, loss and deduction in a manner that results in the Capital Account balance of each such Partner attributable to its redeemed Series A Preferred Units or Series C Preferred Units, as appropriate, immediately prior to such redemption (and after taking into account any applicable Regulatory Allocations) to equal (i) the amount of cash paid to such Partner in redemption of such Series A Preferred Units or Series C Preferred Units, as appropriate, and (ii) the product of the number of Common Units received in the redemption and the Per Unit Capital Amount for a then Outstanding Common Unit.
 
Section 6.2                                    Allocations for Tax Purposes.
 
(a)                                  Except as otherwise provided herein, for federal income tax purposes, each item of income, gain, loss and deduction shall be allocated among the Partners in the same manner as its correlative item of “book” income, gain, loss or deduction is allocated pursuant to Section 6.1 .
 
(b)                                  In an attempt to eliminate Book-Tax Disparities attributable to a Contributed Property or Adjusted Property, items of income, gain, loss, depreciation, amortization and cost recovery deductions shall be allocated for federal income tax purposes among the Partners 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 (taking into account the General Partner’s discretion under Section 6.1(d)(x)(D) ); provided , that the General Partner shall apply the principles of Treasury Regulation Section 1.704-3(d) in all events.
 
(c)                                   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
 
105 

 
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.
 
(d)                                  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 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.
 
(e)                                   In accordance with Treasury Regulation Sections 1.704-1(b)(2)(iv)(s) and 1.704-1(b)(4)(x), if Capital Account balances are reallocated among Partners in accordance with Section 5.5(d)(iii) , beginning with the year of reallocation and continuing until the allocations required are fully taken into account, the Partnership will make corrective allocations to take into account the Capital Account reallocation.
 
(f)                                    All items of income, gain, loss, deduction and credit recognized by the Partnership for federal income tax purposes and allocated to the Partners in accordance with the provisions hereof shall be determined without regard to any election under Section 754 of the Code 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.
 
(g)                                   Each item of Partnership income, gain, loss and deduction, for federal income tax purposes, shall 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 on which the Partnership Interests are listed or admitted to trading on the first Business Day of each month; provided, however , that gain or loss on a sale or other disposition of any assets of the Partnership or any other extraordinary item of income or loss realized and recognized other than in the ordinary course of business, as determined by the General Partner, shall be allocated to the Partners as of the opening of the National Securities Exchange on which the Partnership Interests are listed or admitted to trading on the first Business Day of the month in which such gain or loss is recognized for federal income tax purposes. The General Partner may revise, alter or otherwise modify such methods of allocation to the extent permitted or required by Section 706 of the Code and the regulations or rulings promulgated thereunder.
 
(h)                                  Allocations that would otherwise be made to a Limited Partner under the provisions of this Article VI shall instead be made to the beneficial owner of Limited Partner Interests held by a nominee in any case in which the nominee has furnished the identity of such owner to the Partnership in accordance with Section 6031(c) of the Code or any other method determined by the General Partner.
 
106 

 
Section 6.3                                    Requirement and Characterization of Distributions; Distributions to Record Holders.
 
(a)                                  Except as described in Section 6.3(b)  or Section 6.3(c) , within 45 days following the end of each Quarter, 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 as of the Record Date selected by the General Partner. All amounts of Available Cash distributed by the Partnership on any date following the IPO Closing Date from any source shall be deemed to be Operating Surplus until the sum of all amounts of Available Cash distributed by the Partnership to the Partners following the IPO Closing Date pursuant to Section 6.4(b)  equals the Operating Surplus from the IPO Closing Date through the close of the immediately preceding Quarter. Any remaining amounts of Available Cash distributed by the Partnership on such date shall, except as otherwise provided in Section 6.5 , be deemed to be “Capital Surplus.” Notwithstanding any other provision of this Agreement, all distributions required to be made under this Agreement or otherwise made by the Partnership shall be made subject to Sections 17-607 and 17-804 of the Delaware Act. 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 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 cash received during or after the Quarter in which the Liquidation Date occurs, other than from Working Capital Borrowings, 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.
 
Section 6.4                                    Distributions of Available Cash from Operating Surplus.
 
(a)                                  Reserved.
 
(b)                                  Available Cash with respect to any Quarter that is deemed to be Operating Surplus pursuant to the provisions of Section 6.3 or Section 6.5 shall, subject to Section 17-607 of the Delaware Act, be distributed as follows, except as otherwise contemplated by Section 5.6 in respect of other Partnership Interests or other securities issued pursuant thereto:
 
(i)                                      First , (x) to the General Partner in accordance with its Percentage Interest and (y) to the Unitholders holding Common Units, Pro Rata, a percentage equal to 100% less the
 
107 

 
General Partner’s Percentage Interest until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Minimum Quarterly Distribution for such Quarter;
 
(ii)                                   Second , (x) to the General Partner in accordance with its Percentage Interest and (y) to the Unitholders holding Common Units, Pro Rata, a percentage equal to 100% less the General Partner’s Percentage Interest until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage existing with respect to such Common Unit; and
 
(iii)                                Thereafter, (A) to the General Partner in accordance with its Percentage Interest; (B) 48% to the holders of the Incentive Distribution Rights, Pro Rata; and (C) to all Unitholders holding Common Units, Pro Rata, a percentage equal to 100% less the sum of the percentages applicable to subclauses (A) and (B) of this clause (iii);
 
provided, however , that if the Minimum Quarterly Distribution has been reduced to zero pursuant to the second sentence of Section 6.6(a) , the distribution of Available Cash that is deemed to be Operating Surplus with respect to any Quarter will be made solely in accordance with Section 6.4(b)(iii) .
 
Section 6.5                                    Distributions of Available Cash from Capital Surplus.
 
Available Cash with respect to any Quarter ending on or after the IPO Closing Date that is deemed to be Capital Surplus pursuant to the provisions of  Section 6.3(a)  shall, subject to Section 17-607 of the Delaware Act, be distributed, unless the provisions of Section 6.3 require otherwise, 100% to the General Partner and the Unitholders, Pro Rata, until the Minimum Quarterly Distribution has been reduced to zero pursuant to the second sentence of Section 6.6(a) . Available Cash that is deemed to be Capital Surplus shall then be distributed (a) to the General Partner in accordance with its Percentage Interest and (b) to all Unitholders holding Common Units, Pro Rata, a percentage equal to 100% less the General Partner’s Percentage Interest, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage. Thereafter, all Available Cash shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4 .
 
Section 6.6                                    Adjustment of Minimum Quarterly Distribution
 
(a)                                  The Minimum Quarterly Distribution, Common Unit Arrearages and Cumulative Common Unit Arrearages shall be proportionately adjusted in the event of any distribution, combination or subdivision (whether effected by a distribution payable in Units or otherwise) of Units or other Partnership Interests. In the event of a distribution of Available Cash that is deemed to be from Capital Surplus, the then applicable Minimum Quarterly Distribution shall be reduced in the same proportion that the distribution had to the fair market value of the Common Units immediately prior to the announcement of the distribution. If the Common Units are publicly traded on a National Securities Exchange, the fair market value will be the Current Market Price before the ex-dividend date. If the Common Units are not publicly traded, the fair market value will be determined by the Board of Directors.
 
108 

 
(b)                                  The Minimum Quarterly Distribution shall also be subject to adjustment pursuant to Section 5.11 and Section 6.9 .
 
Section 6.7                                    Reserved.
 
Section 6.8                                    Special Provisions Relating to the Holders of Incentive Distribution Rights.
 
(a)                                  Notwithstanding anything to the contrary set forth in this Agreement, the holders of the Incentive Distribution Rights (i) shall (A) possess the rights and obligations provided in this Agreement with respect to a Limited Partner pursuant to Article III and Article VII and (B) have a Capital Account as a Partner pursuant to Section 5.5 and all other provisions related thereto and (ii) shall not (A) be entitled to vote on any matters requiring the approval or vote of the holders of Outstanding Units, except as provided by law or contemplated by Section 11.2 , (B) be entitled to any distributions other than as provided in Section 6.4(b)(ii)  and Section 12.4 or (C) be allocated items of income, gain, loss or deduction other than as specified in this Article VI .
 
(b)                                  The Unitholder holding Common Units that have resulted from the conversion of Incentive Distribution Rights pursuant to Section 5.11 shall not be issued a Common Unit Certificate pursuant to Section 4.1 if the Common Units are evidenced by Certificates, and shall not be permitted to transfer such Common 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 Common Unit should have, as a substantive matter, like intrinsic economic and U.S. federal income tax characteristics, in all material respects, to the intrinsic economic and U.S. federal income tax characteristics of an IPO Common Unit. In connection with the condition imposed by this Section 6.8(b) , the General Partner may take whatever steps are required to provide economic uniformity to such Common Units in preparation for a transfer of such Common Units, including the application of Section 5.5(c)(ii) , Section 6.1(d)(x)(B) , or Section 6.1(d)(x)(C) ; provided, however , that no such steps may be taken that would have a material adverse effect on the Unitholders holding Common Units.
 
Section 6.9                                    Entity-Level Taxation.
 
If legislation is enacted or the official interpretation of existing legislation is modified by a governmental authority, which after giving effect to such enactment or modification, results in a Group Member becoming subject to federal, state or local or non-U.S. income or withholding taxes in excess of the amount of such taxes due from the Group Member prior to such enactment or modification (including, for the avoidance of doubt, any increase in the rate of such taxation applicable to the Group Member), then the General Partner may, in its sole discretion, reduce the Minimum Quarterly Distribution by the amount of income or withholding taxes that are payable by reason of any such new legislation or interpretation (the “ Incremental Income Taxes ”), or any portion thereof selected by the General Partner, in the manner provided in this Section 6.9 . If the General Partner elects to reduce the Minimum Quality Distribution for any Quarter with respect to all or a portion of any Incremental Income Taxes, the General Partner shall estimate for such Quarter the Partnership Group’s aggregate liability (the “ Estimated Incremental Quarterly Tax Amount ”) for all (or the relevant portion of) such Incremental Income Taxes;
 
109 

 
provided that any difference between such estimate and the actual liability for Incremental Income Taxes (or the relevant portion thereof) for such Quarter may, to the extent determined by the General Partner, be taken into account in determining the Estimated Incremental Quarterly Tax Amount with respect to each Quarter in which any such difference can be determined. For each such Quarter, the Minimum Quarterly Distribution shall be the product obtained by multiplying (a) the then applicable Minimum Quarterly Distribution times (b) the quotient obtained by dividing (i) Available Cash with respect to such Quarter by (ii) the sum of Available Cash with respect to such Quarter and the Estimated Incremental Quarterly Tax Amount for such Quarter, as determined by the General Partner. For purposes of the foregoing, Available Cash with respect to a Quarter will be deemed reduced by the Estimated Incremental Quarterly Tax Amount for that Quarter.
 
Section 6.10                             Special Provisions Relating to Series A Unitholders , Series B Unitholders, and Series C Unitholders .
 
(a)                                  Subject to transfer restrictions in Section 4.8 of this Agreement, a Unitholder holding a Series A Conversion Unit or a Series C Conversion Unit shall provide notice to the Partnership of any Transfer of the Series A Conversion Unit or the Series C Conversion Unit, as applicable, by the earlier of (i) thirty (30) days following such Transfer and (ii) the last Business Day of the calendar year during which such transfer occurred, unless (x) the transfer is to an Affiliate of such Unitholder or (y) by virtue of the application of Section 5.5(d)(iii) , the Partnership has previously determined, based on the advice of counsel, that the Series A Conversion Unit or the Series C Conversion Unit should have, as a substantive matter, like intrinsic economic and federal income tax characteristics of an IPO Common Unit. In connection with the condition imposed by this Section 6.10 , the Partnership shall take whatever steps are required to provide economic uniformity to the Series A Conversion Unit or the Series C Conversion Unit in preparation for a Transfer of such Unit; provided, however , that no such steps may be taken that would have a material adverse effect on the Unitholders holding Common Units or Series B Units (for this purpose the allocations 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 5.5(d)(iii)  hereof and Treasury Regulation Section 1.704-1(b)(2)(iv)(s)(4) with respect to Series A Preferred Units, Series A Conversion Units, Series C Preferred Units, or Series C Conversion Units will be deemed not to have a material adverse effect on the Unitholders holding Common Units or Series B Units).
 
(b)                                  Subject to transfer restrictions in Section 4.8 of this Agreement, a Unitholder holding a Series B Conversion Unit shall provide notice to the Partnership of any Transfer of the Series B Conversion Unit by the earlier of (i) thirty (30) days following such Transfer and (ii) the last Business Day of the calendar year during which such Transfer occurred, unless (x) the Transfer is to an Affiliate of such Unitholder or (y) by virtue of the application of Section 5.5(d)(iii)  and Section 6.1(d)(x) , the Partnership has previously determined, based on the advice of counsel, that the Series B Conversion Unit should have, as a substantive matter, like intrinsic economic and federal income tax characteristics of an IPO Common Unit. In connection with the condition imposed by this Section 6.10 , the Partnership shall take whatever steps are required to provide economic uniformity to the Series B Conversion Unit in preparation for a Transfer of such Unit, including those provided under Section 5.5(c)(iv) ; provided, however , that no such
 
110 

 
steps may be taken that would have a material adverse effect on the Unitholders holding Common Units, Series A Preferred Units, or Series C Preferred Units (for this purpose the allocations 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 5.5(d)(iii)  hereof and Treasury Regulation Section 1.704-1(b)(2)(iv)(s)(4) with respect to Series B Units or Series B Conversion Units will be deemed not to have a material adverse effect on the Unitholders holding Common Units, Series A Preferred Units, or Series C Preferred Units).
 
(c)                                   Notwithstanding anything to the contrary set forth in this Agreement, the holders of the Series A Preferred Units (a) shall (i) possess the rights and obligations provided in this Agreement with respect to a Limited Partner pursuant to Article III and Article VII and (ii) have a Capital Account as a Partner pursuant to Section 5.5 and all other provisions related thereto and (b) shall not (i) be entitled to vote on any matters requiring the approval or vote of the holders of Outstanding Units, except as provided in Section 5.12 or (ii) be entitled to any distributions other than as provided in Section 5.12 and Article VI . Notwithstanding anything to the contrary set forth in this Agreement, the holders of the Series B Units (a) shall (i) possess the rights and obligations provided in this Agreement with respect to a Limited Partner pursuant to Article III and Article VII and (ii) have a Capital Account as a Partner pursuant to Section 5.5 and all other provisions related thereto and (b) shall not (i) be entitled to vote on any matters requiring the approval or vote of the holders of Outstanding Units, except as provided in Section 5.13 or (ii) be entitled to any distributions other than as provided in Section 5.13 , Article VI and Article XII . Notwithstanding anything to the contrary set forth in this Agreement, the holders of the Series C Preferred Units (a) shall (i) possess the rights and obligations provided in this Agreement with respect to a Limited Partner pursuant to Article III and Article VII and (ii) have a Capital Account as a Partner pursuant to Section 5.5 and all other provisions related thereto and (b) shall not (i) be entitled to vote on any matters requiring the approval or vote of the holders of Outstanding Units, except as provided in Section 5.14 or (ii) be entitled to any distributions other than as provided in Section 5.14 and Article VI .
 
ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS
 
Section 7.1                                    Management.
 
(a)                                  The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, 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:
 
111 

 
(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 and Article XIV );
 
(iv)                               the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; subject to Section 7.6(a) , the lending of funds to other Persons (including other Group Members); the repayment or guarantee of obligations of any Group Member; and 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 “president,” “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
 
112 

 
engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation;
 
(xi)                               the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
 
(xii)                            the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange (subject to any prior approval that may be required under Section 4.8 );
 
(xiii)                         the purchase, sale or other acquisition or disposition of Partnership Interests, or the issuance of options, rights, warrants, appreciation rights, tracking and phantom 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 any Group Member Agreement; 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 in the Partnership 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 and the Contribution Agreement and the consummation of the transactions contemplated hereby and thereby; (ii) 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 agreements referred to in clause (i) of this sentence 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 is 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 (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV ) shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement (or any other agreements) or of any duty existing at law, in equity or otherwise.
 
Section 7.2                                    Certificate of Limited Partnership.
 
The General Partner has caused the Certificate of Limited Partnership to be filed with the Secretary of State of the State of Delaware as required by the Delaware Act. 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,
 
113 

 
qualification and operation of a limited partnership (or a partnership in which the limited partners have limited liability) in the State of Delaware or any other state in which the Partnership may elect to do business or own property. To the extent the General Partner determines such action to be necessary or appropriate, the General Partner shall file amendments to and restatements of the Certificate of Limited Partnership and do all things to maintain the Partnership as a limited partnership (or a partnership or other entity in which the limited partners have limited liability) under the laws of the State of Delaware or of any other state in which the Partnership may elect to do business or own property. Subject to the terms of Section 3.4(a) , the General Partner shall not be required, before or after filing, to deliver or mail a copy of the Certificate of Limited Partnership, any qualification document or any amendment thereto to any Limited Partner.
 
Section 7.3                                    Restrictions on the General Partner’s Authority.
 
(a)                                  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 without the approval 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.
 
(b)                                  Notwithstanding any other provisions of this Agreement, the General Partner shall not, without the prior written consent of the Series A Preferred Unit Partner, for so long as the Series A Preferred Unit Partner holds at least 50% of the Units held by the Series A Preferred Unit Partner immediately following the closing of transactions contemplated by the Contribution Agreement (with respect to Series A Preferred Units, calculated on an as converted basis and including any Series A Conversion Units) and the Series C Preferred Unit Partner, for so long as the Series C Preferred Unit Partner holds at least 50% of the Units held by the Series C Preferred Unit Partner immediately following the closing of transactions contemplated by the Series C Unit Purchase Agreement (with respect to Series C Preferred Units, calculated on an as converted basis and including any Series C Conversion Units):
 
(i)                                      cause or permit the Partnership or any Group Member to invest in, or dispose of, the equity securities or debt securities of any Person or otherwise acquire or dispose of any interest in any Person, to acquire or dispose of interest in any joint venture or partnership or any similar arrangement with any Person, or to acquire or dispose of assets of any Person, or to make any capital expenditure (other than Maintenance Capital Expenditures), or to make any loan or advance to any Person if the total consideration (including cash, equity issued and debt assumed) paid or payable, or received or receivable, by the Partnership or any Group Member exceeds $15,000,000 in any one or series of related transactions or in the aggregate within the Partnership Group exceeds $50,000,000 in any twelve-month period;
 
(ii)                                   cause or permit the Partnership or any Group Member to (i) incur, create or guarantee any Indebtedness which exceeds (x) $75,000,000 in any one or series of related transactions to the extent the proceeds of such financing are used to refinance existing Indebtedness, or (y) $25,000,000 in any twelve-month period to the extent such Indebtedness
 
114 

 
increases the aggregate Indebtedness of the Partnership Group, taken as a whole, or (ii) incur, create or guarantee any Indebtedness with a yield to maturity exceeding ten percent (10)%;
 
(iii)                                authorize or permit the purchase, redemption or other acquisition of Partnership Interests (or any options, rights, warrants or appreciation rights relating to the Partnership Interests) by any Group Member;
 
(iv)                               select or dismiss, or enter into any employment agreement or amendment of any employment agreement of, the Chief Executive Officer and the Chief Financial Officer of the Partnership or the Operating Company;
 
(v)                                  enter into any agreement or effect any transaction between the Partnership or any Group Member, on the one hand, and any Affiliate of the Partnership or the General Partner, on the other hand, other than any transaction in the ordinary course of business and determined by the Board of Directors to be on an arm’s length basis; or
 
(vi)                               cause or permit the Partnership or any Group Member to enter into any agreement or make any commitment to do any of the foregoing.
 
Section 7.4                                    Reimbursement of the General Partner.
 
(a)                                  Except as provided in this Section 7.4 and elsewhere in this Agreement, the General Partner shall not be compensated for its services as a general partner or managing member of any Group Member.
 
(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 . Any allocation of expenses to the Partnership by Affiliates of the General Partner in a manner consistent with then-applicable accounting and allocation methodologies generally permitted by FERC for rate-making purposes (or in the absence of then-applicable methodologies permitted by FERC, consistent with the most-recently applicable methodologies) and past business practices shall be deemed to be fair and reasonable to the Partnership.
 
(c)                                   The General Partner, without the approval of the Limited Partners (who shall have no right to vote in respect thereof), may propose and adopt on behalf of the Partnership benefit plans, programs and practices (including the Long Term Incentive Plan and other 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
 
115 

 
interests in the Partnership or relating to Partnership Interests), or cause the Partnership to issue Partnership Interests or other securities 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, officers 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 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 or otherwise, to fulfill options or awards under such plans, programs and practices) shall be reimbursed in accordance with Section 7.4(b) . Any and all obligations of the General Partner under any benefit plans, programs or 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 .
 
(d)                                  The General Partner and its Affiliates may charge any member of the Partnership Group a management fee to the extent necessary to allow the Partnership Group to reduce the amount of any state franchise or income tax or any tax based upon the revenues or gross margin of any member of the Partnership Group if the tax benefit produced by the payment of such management fee or fees exceeds the amount of such fee or fees.
 
Section 7.5                                    Outside 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 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 any Affiliate of the General Partner.
 
(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 any Group Member, any Limited Partner or any other Person shall have
 
116 

 
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 Section 7.5(a)  and Section 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 the Unrestricted Persons (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) the Unrestricted Persons shall have no 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). 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 the Partnership, shall have any duty to communicate or offer such opportunity to the Partnership, and such Unrestricted Person (including the General Partner) shall not be liable to the Partnership, to any Limited Partner or any other Person 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 for itself, directs such opportunity to another Person or does not communicate such opportunity or information to the Partnership; provided 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.
 
(d)                                  The General Partner and each of its Affiliates may acquire Units or other Partnership Interests in addition to those acquired on the IPO Closing Date and, except as otherwise provided in this Agreement, shall be entitled to exercise, at their option, all rights relating to all Units or other Partnership Interests acquired by them. The term “Affiliates” when used in this Section 7.5(d)  with respect to the General Partner shall not include any Group Member.
 
(e)                                   Notwithstanding anything to the contrary in this Agreement, to the extent that any provision of this Agreement purports or is interpreted to have the effect of restricting or eliminating the fiduciary duties that might otherwise, as a result of Delaware or other applicable law, be owed by the General Partner to the Partnership and its Limited Partners, or to constitute a waiver or consent by the Limited Partners to any such restriction or elimination, such provisions shall be deemed to have been approved by the Partners.
 
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;
 
117 

 
provided, however , that, in any such case the lending party may not charge the borrowing party interest at a rate greater than the rate that would be charged the borrowing party, or impose terms less favorable to the borrowing party than would be charged or imposed on the borrowing party, by unrelated lenders on comparable loans made on an arm’s-length basis (without reference to the lending party’s financial abilities or guarantees), all as determined by the General Partner. The borrowing party shall reimburse the lending party for any costs (other than any additional interest costs) incurred by the lending party in connection with the borrowing of such funds. For purposes of this Section 7.6(a)  and Section 7.6(b) , the term “ Group Member ” shall include any Affiliate of a Group Member that is controlled by the Group Member.
 
(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. No Group Member may lend funds to the General Partner or any of its Affiliates (other than another Group Member).
 
(c)                                   No borrowing by any Group Member or the approval thereof by the General Partner shall be deemed to constitute a breach of any duty hereunder or otherwise existing at law, in equity or otherwise, of the General Partner or its Affiliates to the Partnership or the Limited Partners existing hereunder, or existing at law, in equity or otherwise by reason of the fact that the purpose or effect of such borrowing is directly or indirectly to enable distributions to the General Partner or its Affiliates (including in their capacities as Limited Partners) to exceed the General Partner’s Percentage Interest of the total amount distributed to all Partners.
 
Section 7.7                                    Indemnification.
 
(a)                                  To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, all Indemnitees shall be indemnified and held harmless by the Partnership from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened pending or completed 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 acting (or refraining to act) in such capacity; provided , 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 Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful. 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 or defending any claim, demand, action, suit or proceeding shall, from time to
 
118 

 
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 any undertaking by 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)                                   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, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
 
(d)                                  The Partnership may purchase and maintain (or reimburse the General Partner or its Affiliates for the cost of) insurance, on behalf of the General Partner, its Affiliates, 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, such Person in connection with the Partnership’s activities or such Person’s activities on behalf of the Partnership, regardless of whether the Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
 
(e)                                   For purposes of this Section 7.7 , the Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of  Section 7.7(a) ; and action taken or omitted by it with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Partnership.
 
(f)                                    In no event may an Indemnitee subject the Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
 
(g)                                   An Indemnitee shall not be denied indemnification in whole or in part under this Section 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
 
(h)                                  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.
 
(i)                                      No amendment, modification or repeal of this Section 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Partnership, nor the obligations of the Partnership to
 
119 

 
indemnify any such Indemnitee under and in accordance with the provisions of this Section 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
 
Section 7.8                                    Liability of Indemnitees.
 
(a)                                  Notwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall be liable for monetary damages to the Partnership, the Partners or any other Persons who have acquired interests in the Partnership Interests, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal.
 
(b)                                  Subject to its obligations and duties as General Partner set forth in Section 7.1(a) , the General Partner may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents, and the General Partner shall not be responsible for any misconduct or negligence on the part of any such agent appointed by the General Partner in good faith.
 
(c)                                   To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Partnership or to the Partners, the General Partner and any other Indemnitee acting in connection with the Partnership’s business or affairs shall not be liable to the Partnership or to any Partner for its good faith reliance on the provisions of this Agreement.
 
(d)                                  Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
 
Section 7.9                                    Resolution 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 its capacity as general partner, limited partner or holder of Incentive Distribution Rights) or any of its Affiliates, on the one hand, and the Partnership, any Group Member or any Partner, on the other, any resolution or course of action by the General Partner or its Affiliates in respect of such conflict of interest shall be permitted and deemed approved by all Partners, and shall not constitute a breach of this Agreement, of any Group Member Agreement, of any agreement contemplated herein or therein, or of any duty hereunder stated or implied by law or equity or otherwise, if the resolution or course of action in respect of such conflict of
 
120 

 
interest is (i) approved by Special Approval, (ii) approved by the vote 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 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. If Special Approval is sought, then it shall be presumed that, in making its decision, the Conflicts Committee acted in good faith, and if neither Special Approval nor Unitholder approval is sought 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 any proceeding brought by any Limited Partner or by or on behalf of such Limited Partner or any other Limited Partner or the Partnership challenging such approval, the Person bringing or prosecuting such proceeding shall have the burden of overcoming such presumption. Notwithstanding anything to the contrary in this Agreement or any duty otherwise existing at law or equity, the existence of the conflicts of interest described in the Registration Statement and any actions of the General Partner taken 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 of thereof (including the Conflicts Committee), makes a determination or takes or declines to take any other action, or any of its Affiliates causes the General Partner 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 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 any other law, rule or regulation or at equity. In order for a determination or other action to be in “good faith” for purposes of this Agreement, the Person or Persons making such determination or taking or declining to take such other action must subjectively believe that the determination or other action is in, or not opposed to, the best interests of the Partnership.
 
(c)                                   Whenever the General Partner makes a determination or takes or declines to take any other action, or any of its Affiliates causes it to do so, in its individual capacity as opposed to in its capacity as the general partner of the Partnership, whether under this Agreement, any Group Member Agreement or any other agreement contemplated hereby or otherwise, then the General Partner, or such Affiliates causing it to do so, are entitled, to the fullest extent permitted by law, to make such determination or to take or decline to take such other action free of any duty (including any fiduciary duty) or obligation whatsoever to the Partnership, any Limited
 
121 

 
Partner or any other Person bound by this Agreement, and the General Partner, or such Affiliates causing it to do so, shall not, to the fullest extent permitted by law, 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. By way of illustration and not of limitation, whenever the phrases, “at the option of the General Partner,” “in its sole discretion” or some variation of those phrases, are 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, or refrains from voting or transferring its Partnership Interests, or otherwise acts in its capacity as a limited partner or holder of Partnership Interests other than the General Partner Interest, it shall be acting in its individual capacity.
 
(d)                                  Notwithstanding anything to the contrary in this Agreement, the General Partner and its Affiliates shall have no duty or obligation, express or implied, to (i) sell or otherwise dispose of any asset of the Partnership Group other than in the ordinary course of business or (ii) permit any Group Member to use any facilities or assets of the General Partner and its Affiliates, except as may be provided in contracts entered into from time to time specifically dealing with such use. Any determination by the General Partner or any of its Affiliates to enter into such contracts shall be in its sole discretion.
 
(e)                                   Except as expressly set forth in this Agreement, neither the General Partner nor any other Indemnitee shall have any duties or liabilities, including fiduciary duties, to the Partnership or any Limited Partner and the provisions of this Agreement, to the extent that they restrict, eliminate or otherwise modify the duties and liabilities, including fiduciary duties, of the General Partner or any other Indemnitee otherwise existing at law or in equity, are agreed by the Partners to replace such other duties and liabilities of the General Partner or such other Indemnitee.
 
(f)                                    The Limited Partners hereby authorize the General Partner, on behalf of the Partnership as a partner or member of a Group Member, to approve of actions by the general partner or managing member of such Group Member similar to those actions permitted to be taken by the General Partner pursuant to this Section 7.9 .
 
Section 7.10                             Other Matters Concerning the General Partner.
 
(a)                                  The General Partner may rely upon, and shall be protected in acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties.
 
(b)                                  The General Partner may consult with legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisers selected by it, and any act taken or omitted to be taken in reliance upon the 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 presumed to have been done or omitted in good faith and in accordance with such advice or opinion.
 
122 

 
(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 7.11                             Purchase or Sale of Partnership Interests.
 
Subject to Section 5.12(b)(v)  and Section 5.14(b)(v) , the General Partner may cause the Partnership to purchase or otherwise acquire Partnership Interests; provided that, except as permitted pursuant to Section 4.10 or with approval of the Conflicts Committee, the General Partner may not cause any Group Member to purchase Incentive Distribution Rights. As long as Partnership Interests are held by any Group Member, such Partnership Interests 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 Article IV and Article X .
 
Section 7.12                             Registration Rights of the General Partner and its Affiliates.
 
(a)                                  If (i) the General Partner or any Affiliate of the General Partner (including for purposes of this Section 7.12 , any Person that is an Affiliate of the General Partner at the date hereof notwithstanding that it may later cease to be an Affiliate of the General Partner, but excluding any individual who is an Affiliate of the General Partner based on such individual’s status as an officer, director or employee of the General Partner or an Affiliate of the General Partner) holds Partnership Interests that it desires to sell and (ii) Rule 144 of the Securities Act (or any successor rule or regulation to Rule 144) or another exemption from registration is not available to enable such holder of Partnership Interests (the “ Holder ”) to dispose of the number of Partnership Interests it desires to sell at the time it desires to do so without registration under the Securities Act, then at the option and upon the request of the Holder, the Partnership shall file with the Commission as promptly as practicable after receiving such request, and use all commercially reasonable efforts to cause to become effective and remain effective for a period of not less than six months following its effective date or such shorter period as shall terminate when all Partnership Interests covered by such registration statement have been sold, a registration statement under the Securities Act registering the offering and sale of the number of Partnership Interests specified by the Holder; provided, however , that the Partnership shall not be required to effect more than six registrations pursuant to this Section 7.12(a) ; and provided further , however, that if the General Partner determines that a postponement of the requested registration would be in the best interests of the Partnership and its Partners due to a pending transaction, investigation or other event, the filing of such registration statement or the effectiveness thereof may be deferred for up to six months, but not thereafter. In connection with any registration pursuant to the immediately preceding sentence, the Partnership shall (i) promptly prepare and file (A) such documents as may be necessary to register or qualify the securities subject to such registration under the securities laws of such states as the Holder shall reasonably request; provided, however , that no such qualification shall be required in any jurisdiction where, as a result thereof, the Partnership would become subject to general service of process or to taxation or qualification to do business as a foreign corporation or partnership doing business in such jurisdiction solely as a result of such registration, and (B) such documents
 
123 

 
as may be necessary to apply for listing or to list the Partnership Interests subject to such registration on such National Securities Exchange as the Holder shall reasonably request, and (ii) do any and all other acts and things that may be necessary or appropriate to enable the Holder to consummate a public sale of such Partnership Interests in such states. Except as set forth in Section 7.12(c) , all costs and expenses of any such registration and offering (other than the underwriting discounts and commissions) shall be paid by the Partnership, without reimbursement by the Holder.
 
(b)                                  If the Partnership shall at any time propose to file a registration statement under the Securities Act for an offering of Partnership Interests for cash (other than an offering relating solely to a benefit plan), the Partnership shall use all commercially reasonable efforts to include such number or amount of Partnership Interests held by any Holder in such registration statement as the Holder shall request; provided , that the Partnership is not required to make any effort or take any action to so include the Partnership Interests of the Holder once the registration statement becomes or is declared effective by the Commission, including any registration statement providing for the offering from time to time of Partnership Interests pursuant to Rule 415 of the Securities Act. If the proposed offering pursuant to this Section 7.12(b)  shall be an underwritten offering, then, in the event that the managing underwriter or managing underwriters of such offering advise the Partnership and the Holder that in their opinion the inclusion of all or some of the Holder’s Partnership Interests would adversely and materially affect the timing or success of the offering, the Partnership shall include in such offering only that number or amount, if any, of Partnership Interests held by the Holder that, in the opinion of the managing underwriter or managing underwriters, will not so adversely and materially affect the offering. Except as set forth in Section 7.12(c) , all costs and expenses of any such registration and offering (other than the underwriting discounts and commissions) shall be paid by the Partnership, without reimbursement by the Holder.
 
(c)                                   If underwriters are engaged in connection with any registration referred to in this Section 7.12 , the Partnership shall provide indemnification, representations, covenants, opinions and other assurance to the underwriters in form and substance reasonably satisfactory to such underwriters. Further, in addition to and not in limitation of the Partnership’s obligation under Section 7.7 , the Partnership shall, to the fullest extent permitted by law, indemnify and hold harmless the Holder, its officers, directors and each Person who controls the Holder (within the meaning of the Securities Act) and any agent thereof (collectively, “ Indemnified Persons ”) from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any Indemnified Person may be involved, or is threatened to be involved, as a party or otherwise, under the Securities Act or otherwise (hereinafter referred to in this Section 7.12(c)  as a “ claim ” and in the plural as “ claims ”) based upon, arising out of or resulting from any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which any Partnership Interests were registered under the Securities Act or any state securities or Blue Sky laws, in any preliminary prospectus (if used prior to the effective date of such registration statement), or in any summary or final prospectus or issuer free writing prospectus or in any amendment or supplement thereto (if used during the period the Partnership is required to keep the registration statement current),
 
124 

 
or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein not misleading; provided, however , that the Partnership shall not be liable to any Indemnified Person to the extent that any such claim arises out of, is based upon or results from an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, such preliminary, summary or final prospectus or any free writing prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Partnership by or on behalf of such Indemnified Person specifically for use in the preparation thereof.
 
(d)                                  The provisions of  Section 7.12(a)  and Section 7.12(b)  shall continue to be applicable with respect to the General Partner (and any of the General Partner’s Affiliates) after it ceases to be a general partner of the Partnership, during a period of two years subsequent to the effective date of such cessation and for so long thereafter as is required for the Holder to sell all of the Partnership Interests with respect to which it has requested during such two-year period inclusion in a registration statement otherwise filed or that a registration statement be filed; provided, however , that the Partnership shall not be required to file successive registration statements covering the same Partnership Interests for which registration was demanded during such two-year period. The provisions of  Section 7.12(c)  shall continue in effect thereafter.
 
(e)                                   The rights to cause the Partnership to register Partnership Interests pursuant to this Section 7.12 may be assigned (but only with all related obligations) by a Holder to a transferee or assignee of such Partnership Interests, provided (i) the Partnership is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee or assignee and the Partnership Interests with respect to which such registration rights are being assigned; and (ii) such transferee or assignee agrees in writing to be bound by and subject to the terms set forth in this Section 7.12 .
 
(f)                                    Any request to register Partnership Interests pursuant to this Section 7.12 shall (i) specify the Partnership Interests intended to be offered and sold by the Person making the request, (ii) express such Person’s present intent to offer such Partnership Interests for distribution, (iii) describe the nature or method of the proposed offer and sale of Partnership Interests, and (iv) contain the undertaking of such Person to provide all such information and materials and take all action as may be required in order to permit the Partnership to comply with all applicable requirements in connection with the registration of such Partnership Interests.
 
(g)                                   The Partnership may enter into separate registration rights agreements with the General Partner or any of its Affiliates.
 
Section 7.13                             Reliance by Third Parties.
 
Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Partnership shall be entitled to assume that the General Partner and any officer of the General Partner authorized by the General Partner to act on behalf of and in the name of the Partnership has full power and authority to encumber, sell or otherwise use in any manner any and all assets of the Partnership and to enter into any authorized contracts on behalf of the Partnership, and such Person shall be entitled to deal with the General Partner or any such officer as if it were the
 
125 

 
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.
 
ARTICLE VIII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
 
Section 8.1                                    Records and Accounting.
 
The General Partner shall keep or cause to be kept at the principal office of the Partnership appropriate books and records with respect to the Partnership’s business, including all books and records necessary to provide to the Limited Partners any information required to be provided pursuant to Section 3.4(a) . Any books and records maintained by or on behalf of the Partnership in the regular course of its business, including the record of the Record Holders of Units or other Partnership 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 , 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. The Partnership shall not be required to keep books maintained on a cash basis and the General Partner shall be permitted to calculate cash-based measures, including Operating Surplus and Adjusted Operating Surplus, by making such adjustments to its accrual basis books to account for non-cash items and other adjustments as the General Partner determines to be necessary or appropriate.
 
Section 8.2                                    Fiscal Year.
 
The fiscal year of the Partnership shall be a fiscal year ending December 31.
 
Section 8.3                                    Reports.
 
(a)                                  As soon as practicable, but in no event later than 120 days after the close of each fiscal year of the Partnership, the General Partner shall cause to be 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
 
126 

 
Partnership for such fiscal year of the Partnership, presented in accordance with U.S. GAAP, including a balance sheet and statements of operations, Partnership equity and cash flows, such statements to be audited by a firm of independent public accountants selected by the General Partner.
 
(b)                                  As soon as practicable, but in no event later than 90 days after the close of each Quarter except the last Quarter of each fiscal year, the General Partner shall cause to be 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 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.
 
ARTICLE IX
TAX MATTERS
 
Section 9.1                                    Tax Returns and Information.
 
The Partnership shall timely file all returns of the Partnership that are required for federal, state and local income tax purposes on the basis of the accrual method and 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 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 9.2                                    Tax Elections.
 
(a)                                  The Partnership shall make the election under Section 754 of the Code in accordance with applicable regulations thereunder, subject to the reservation of the right to seek to revoke any such election upon the General Partner’s determination that such revocation is in the best interests of the Limited Partners. Notwithstanding any other provision herein contained, for the purposes of computing the adjustments under Section 743(b) of the Code, the General Partner shall be authorized (but not required) to adopt a convention whereby the price paid by a transferee of a Limited Partner Interest will be deemed to be the lowest quoted closing price of the Limited Partner Interests on any National Securities Exchange on which such Limited Partner Interests are listed or admitted to trading during the calendar month in which such
 
127 

 
transfer is deemed to occur pursuant to Section 6.2(f)  without regard to the actual price paid by such transferee.
 
(b)                                  Except as otherwise provided herein, the General Partner shall determine whether the Partnership should make any other elections permitted by the Code.
 
Section 9.3                                    Tax Controversies.
 
Subject to the provisions hereof, the General Partner is designated as the Tax Matters Partner (as defined in the Code) and is authorized and required to represent the Partnership (at the Partnership’s expense) in connection with all examinations of the Partnership’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Partnership funds for professional services and costs associated therewith. Each Partner agrees to cooperate with the General Partner and to do or refrain from doing any or all things reasonably required by the General Partner to conduct such proceedings.
 
Section 9.4                                    Withholding.
 
(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 or distribution of income 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 10.1                             Admission of Limited Partners.
 
(a)                                  The General Partner and AIM Midstream were admitted to the Partnership as Initial Limited Partners on November 4, 2009. The LTIP Partners were admitted to the Partnership as Limited Partners at various dates prior to the date hereof.
 
(b)                                  A Person shall be admitted as a Limited Partner and shall become bound by the terms of this Agreement if such Person purchases or otherwise lawfully acquires any Limited Partner Interest and becomes the Record Holder of such Limited Partner Interests in accordance with the provisions of Article IV or Article V . A Person may become a Record Holder of a Limited Partner Interest without the consent or approval of any of the Partners. A Person may
 
128 

 
not become a Limited Partner without acquiring a Limited Partner Interest and until such Person is reflected on 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 Holder shall be determined in accordance with Section 4.9 .
 
(c)                                   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 Partnership or the Transfer Agent. The General Partner shall update the books and records of the Partnership from time to time as necessary to reflect accurately the information therein (or shall cause the Transfer Agent to do so, as applicable). A Limited Partner Interest may be represented by a Certificate, as provided in Section 4.1 .
 
(d)                                  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(b) .
 
Section 10.2                             Admission of Successor General Partner.
 
A 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 Interest (represented by Notional General Partner Units) 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 Section 11.2 or the transfer of the General Partner Interest (represented by Notional General Partner Units) pursuant to Section 4.6 , provided, however , that no such successor shall be admitted to the Partnership until compliance with the terms of Section 4.6 has occurred and such successor has executed and delivered such other documents or instruments as may be required to effect such admission. Any such successor 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 10.3                             Amendment of Agreement and Certificate of Limited Partnership.
 
To effect the admission to the Partnership of any Partner, the General Partner shall take all steps necessary 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.
 
129 

 
ARTICLE XI
WITHDRAWAL OR REMOVAL OF PARTNERS
 
Section 11.1                             Withdrawal of the General Partner.
 
(a)                                  The General Partner shall be deemed to have withdrawn from the Partnership upon the occurrence of any one of the following events (each such event herein referred to as an “ Event of Withdrawal ”);
 
(i)                                      The General Partner voluntarily withdraws from the Partnership by giving written notice to the other Partners;
 
(ii)                                   The General Partner transfers all of its 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 debtor-in-possession), receiver or liquidator of the General Partner or of all or any substantial part of its properties;
 
(v)                                  A final and non-appealable order of relief under Chapter 7 of the United States Bankruptcy Code is entered by a court with appropriate jurisdiction pursuant to a voluntary or involuntary petition by or against the General Partner; or
 
(vi)                               (A) in the event the General Partner is a corporation, a certificate of dissolution or its equivalent is filed for the General Partner, or 90 days expire after the date of notice to the General Partner of revocation of its charter without a reinstatement of its charter, under the laws of its state of incorporation; (B) in the event the General Partner is a partnership or a limited liability company, the dissolution and commencement of winding up of the General Partner; (C) in the event the General Partner is acting in such capacity by virtue of being a trustee 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) , Section 11.1(a)(v) , Section 11.1(a)(vi)(A) , Section 11.1(a)(vi)(B) , Section 11.1(a)(vi)(C)  or Section 11.1(a)(vi)(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.
 
130 

 
(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 before 12:00 midnight, Central Time, on June 30, 2021, the General Partner voluntarily withdraws by giving at least 90 days’ advance notice of its intention to withdraw to the Limited Partners; provided , that prior to the effective date of such withdrawal, the withdrawal is approved by Unitholders holding at least a majority of the Outstanding Common Units (excluding Common Units held by the General Partner and its Affiliates) and the General Partner delivers to the Partnership an Opinion of Counsel (“ Withdrawal Opinion of Counsel ”) that such withdrawal (following the selection of the successor General Partner) would not result in the loss of the limited liability under the Delaware Act of any Limited Partner or any Group Member or cause any Group Member to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for U.S. federal income tax purposes (to the extent not already so treated or taxed); (ii) at any time after 12:00 midnight, Central Time, on June 30, 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, the holders of a Unit Majority, may, prior to the effective date of such withdrawal, elect a successor General Partner. The Person so elected as successor General Partner shall automatically become the successor general partner or managing member, to the extent applicable, of the other Group Members of which the General Partner is a general partner or a managing member. If, prior to the effective date of the General Partner’s withdrawal pursuant to Section 11.1(a)(i) , a successor is not selected by the Unitholders as provided herein or the Partnership does not receive a Withdrawal Opinion of Counsel, the Partnership shall be dissolved in accordance with Section 12.1 unless the business of the Partnership is continued 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 11.2                             Removal of the General Partner.
 
The General Partner may be removed if such removal is approved by (i) the Unitholders holding at least 66 2/3% of the Outstanding Units (including Units held by the General Partner and its Affiliates) voting as a single class, and (ii) prior to August 9, 2018, so long as the holders of the Incentive Distribution Rights as of August 9, 2013, together with their Affiliates, continue to own a majority of the Incentive Distribution Rights, the holders of a majority of the Incentive Distribution Rights. Any such action by such holders for removal of the General Partner must also provide for the election of a successor General Partner by (i) the Unitholders holding a majority of the Outstanding Common Units (including, in each case, Units held by the General
 
131 

 
Partner and its Affiliates), and (ii) prior to August 9, 2018, so long as the holders of the Incentive Distribution Rights as of August 9, 2013, together with their Affiliates, continue to own a majority of the Incentive Distribution Rights, the holders of a majority of the Incentive Distribution Rights. Such removal shall be effective immediately following the admission of a successor General Partner pursuant to Section 10.2 . The removal of the General Partner shall also automatically constitute the removal of the General Partner as general partner or managing member, to the extent applicable, of the other Group Members of which the General Partner is a general partner or a managing member. If a Person is elected as a successor General Partner in accordance with the terms of this Section 11.2 , such Person shall, upon admission pursuant to Section 10.2 , automatically become a successor general partner or managing member, to the extent applicable, of the other Group Members of which the General Partner is a general partner or a managing member. The right of the holders of Outstanding Units to remove the General Partner shall not exist or be exercised unless the Partnership has received an opinion opining as to the matters covered by a Withdrawal Opinion of Counsel. Any successor General Partner elected in accordance with the terms of this Section 11.2 shall be subject to the provisions of Section 10.2 .
 
Section 11.3                             Interest of Departing General Partner and Successor General Partner.
 
(a)                                  In the event of (i) withdrawal of the General Partner under circumstances where such withdrawal does not violate this Agreement or (ii) removal of the General Partner by the holders of Outstanding Units under circumstances where Cause does not exist, if 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 and all of its or its Affiliates’ Incentive Distribution Rights (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 business of the Partnership is continued pursuant to Section 11.2 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 business of the Partnership is continued, prior to the date the business of the Partnership is continued), to purchase the Combined Interest for such fair market value of such Combined Interest. 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.
 
132 

 
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 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 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, the value of the Incentive Distribution Rights and the General Partner Interest 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 (and its Affiliates, if applicable) 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 as to all debts and liabilities of the Partnership arising on or after the date on which the Departing General Partner becomes a Limited Partner. For purposes of this Agreement, conversion of the Combined Interest to Common Units will be characterized as if the Departing General Partner (and its Affiliates, if applicable) contributed the Combined Interest to the Partnership in exchange for the newly issued Common Units.
 
(c)                                   If a successor General Partner is elected in accordance with the terms Section 11.1 or Section 11.2 (or if the business of the Partnership is continued pursuant to Section 12.2 and the successor General Partner is not the former General Partner) and the option described in Section 11.3(a)  is not exercised by the party entitled to do so, the successor General Partner shall, at the effective date of its admission to the Partnership, contribute to the Partnership cash in the amount equal to the product of (x) the quotient obtained by dividing (A) the Percentage Interest of the General Partner Interest of the Departing General Partner by (B) a percentage equal to 100% less the Percentage Interest of the General Partner Interest of the Departing General Partner and (y) the Net Agreed Value of the Partnership’s assets on such date. In such event, such successor General Partner shall, subject to the following sentence, be entitled to its Percentage Interest of all Partnership allocations and distributions to which the Departing General Partner was entitled in respect of its General Partner Interest. In addition, the successor General Partner shall cause this Agreement to be amended to reflect that, from and after the date
 
133 

 
of such successor General Partner’s admission, the successor General Partner’s interest in all Partnership distributions and allocations shall be its Percentage Interest.
 
Section 11.4                             Extinguishment of Cumulative Common Unit Arrearages.
 
Notwithstanding any provision of this Agreement, if the General Partner is removed as general partner of the Partnership under circumstances where Cause does not exist and Units held by the General Partner and its Affiliates are not voted in favor of such removal, (i) all Cumulative Common Unit Arrearages on the Common Units will be extinguished and (ii) the General Partner will have the right to convert its General Partner Interest (represented by Notional General Partner Units) and its Incentive Distribution Rights into Common Units or to receive cash in exchange therefor in accordance with Section 11.3 .
 
Section 11.5                             Withdrawal of Limited Partners.
 
No Limited Partner shall have any right to withdraw from the Partnership; provided, however , that when a transferee of a Limited Partner’s Limited Partner Interest becomes a Record Holder of the Limited Partner Interest so transferred, such transferring Limited Partner shall cease to be a Limited Partner with respect to the Limited Partner Interest so transferred.
 
ARTICLE XII
DISSOLUTION AND LIQUIDATION
 
Section 12.1                             Dissolution.
 
The Partnership shall not be dissolved by the admission of Additional Limited Partners or by the admission of a successor General Partner in accordance with the terms of this Agreement. Upon the removal or withdrawal of the General Partner, if a successor General Partner is elected 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. Subject to Section 12.2 , the Partnership shall dissolve, and its affairs shall be wound up, upon:
 
(a)                                  an Event of Withdrawal of the General Partner as provided in Section 11.1(a) , unless a successor is admitted to the Partnership pursuant to this Agreement;
 
(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.
 
134 

 
Section 12.2                             Continuation of the Business of the Partnership After Dissolution.
 
Upon an Event of Withdrawal caused by (a) 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 Section 11.2 , then within 90 days thereafter, or (b) an event constituting an Event of Withdrawal as defined in Section 11.1(a)(iv) , Section 11.1(a)(v)  or Section 11.1(a)(vi) , then, to the maximum extent permitted by law, within 180 days thereafter, the holders of a Unit Majority may elect 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 conduct only activities necessary to wind up its affairs. If such an election is so made, then:
 
(i)                                      the Partnership shall continue without dissolution unless earlier dissolved in accordance with this Article XII ;
 
(ii)                                   if the successor General Partner is not the former General Partner, then the interest of the former General Partner shall be treated in the manner provided in Section 11.3 ; and
 
(iii)                                the successor General Partner shall be admitted to the Partnership as General Partner, effective as of the Event of Withdrawal, by agreeing in writing to be bound by this Agreement;
 
provided , that the right of the holders of a Unit Majority to approve a successor General Partner and to continue the business of the Partnership shall not exist and may not be exercised unless the Partnership has received an Opinion of Counsel that (x) the exercise of the right would not result in the loss of limited liability 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 12.3                             Liquidator.
 
Upon dissolution of the Partnership, the General Partner shall select one or more Persons to act as Liquidator. The Liquidator (if other than the General Partner) shall be entitled to receive such compensation for its services as may be approved by holders of at least a majority of the Outstanding Common Units. 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
 
135 

 
XII , the Liquidator approved in the manner provided herein shall have and may exercise, without further authorization or consent of any of the parties hereto, all of the powers conferred upon the General Partner under the terms of this Agreement (but subject to all of the applicable limitations, contractual and otherwise, upon the exercise of such powers, other than the limitation on sale set forth in Section 7.3 ) necessary or appropriate to carry out the duties and functions of the Liquidator hereunder for and during the period of time required to complete the winding up and liquidation of the Partnership as provided for herein.
 
Section 12.4                             Liquidation.
 
The Liquidator shall proceed to dispose of the assets of the Partnership, discharge its liabilities, and otherwise wind up its affairs in such manner and over such period as 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)                                  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.
 
(c)                                   All property and all cash in excess of that required to (i) discharge liabilities as provided in Section 12.4(b) , (ii) satisfy liquidation preferences of the Series A Preferred Units provided for under Section 5.12(b)(iv) , and (iii) satisfy liquidation preferences of the Series C Preferred Units provided for under Section 5.14(b)(iv)  shall be distributed to the Partners (including the holder of the HPIP Equity Interest) 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).
 
136 

 
Section 12.5                             Cancellation of Certificate of Limited Partnership.
 
Upon the completion of the distribution of Partnership cash and property as provided in Section 12.4 in connection with the liquidation of the Partnership, the Certificate of Limited Partnership and all qualifications of the Partnership as a foreign limited partnership in jurisdictions other than the State of Delaware shall be canceled and such other actions as may be necessary to terminate the Partnership shall be taken.
 
Section 12.6                             Return of Contributions.
 
The General Partner shall not be personally liable for, and shall have no obligation to contribute or loan any monies or property to the Partnership to enable it to effectuate, the return of the Capital Contributions of the Limited Partners or Unitholders, or any portion thereof, it being expressly understood that any such return shall be made solely from Partnership assets.
 
Section 12.7                             Waiver of Partition.
 
To the maximum extent permitted by law, each Partner hereby waives any right to partition of the Partnership property.
 
Section 12.8                             Capital Account Restoration.
 
No 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.
 
Section 12.9                             Series A Liquidation Value and Series C Liquidation Value.
 
Notwithstanding anything to the contrary set forth in this Agreement, the holders of the Series A Preferred Units and Series C Preferred Units shall have the rights, preferences and privileges set forth in Section 5.12(b)(iv)  and Section 5.14(b)(iv) , respectively, upon liquidation of the Partnership pursuant to this Article XII .
 
ARTICLE XIII
AMENDMENT OF PARTNERSHIP AGREEMENT;
MEETINGS; RECORD DATE
 
Section 13.1                             Amendments to be Adopted Solely by the General Partner.
 
Except as set forth in Section 5.12(b)(v)  and Section 5.14(b)(v)  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:
 
137 

 
(a)                                  a change in the name of the Partnership, the location of the principal place of business of the Partnership, the registered agent of the Partnership or the registered office of the Partnership;
 
(b)                                  the admission, substitution, withdrawal or removal of Partners in accordance with this Agreement;
 
(c)                                   a change that the General Partner determines to be necessary or appropriate to qualify or continue the qualification of the Partnership as a limited partnership or a partnership in which the Limited Partners have limited liability under the laws of any state or to ensure that the Group Members will not be treated as associations taxable as corporations or otherwise taxed as entities for federal income tax purposes;
 
(d)                                  a change that the General Partner determines, (i) does not adversely affect in any material respect the Limited Partners considered as a whole or any particular class of Partnership Interests as compared to other classes of Partnership Interests, (ii) to be necessary or appropriate to (A) satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or regulation of any federal or state agency or judicial authority or contained in any federal or state statute (including the Delaware Act) or (B) facilitate the trading of the 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 on which the Units are or will be listed or admitted to trading, (iii) to be necessary or appropriate in connection with action taken by the General Partner pursuant to Section 5.9 or (iv) 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 Partnership Interests and options, rights, warrants, appreciation rights, tracking and phantom interests or other economic interests in the Partnership relating to Partnership Interests pursuant to Section 5.9 , including any amendment that the General Partner determines is necessary or appropriate in connection with (i) the adjustments of the Minimum Quarterly Distribution pursuant to the
 
138 

 
provisions of Section 5.11 , (ii) the implementation of the provisions of  Section 5.11 or (iii) any modifications to the Incentive Distribution Rights made in connection with the issuance of Partnership Interests pursuant to Section 5.6 , provided that, with respect to this clause (iii), the modifications to the Incentive Distribution Rights and the related issuance of Partnership Interests have received Special Approval;
 
(h)                                  any amendment expressly permitted in this Agreement to be made by the General Partner acting alone;
 
(i)                                      an amendment effected, necessitated or contemplated by a Merger Agreement approved in accordance with Section 14.3 ;
 
(j)                                     an amendment that the General Partner determines to be necessary or appropriate to reflect and account for the formation by the Partnership of, or investment by the Partnership in, any corporation, partnership, joint venture, limited liability company or other entity, in connection with the conduct by the Partnership of activities permitted by the terms of Section 2.4 or Section 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 13.2                             Amendment 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 full 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 Section 13.1 and Section 13.3 , the holders of a Unit Majority, unless a greater or different percentage is 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. 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.
 
139 

 
Section 13.3                             Amendment Requirements.
 
(a)                                  Notwithstanding the provisions of Section 13.1 and Section 13.2 , no provision of this Agreement 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 in the case of any provision of this Agreement other than Section 11.2 or Section 13.4 , reducing 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 or the affirmative vote of Partners whose aggregate Percentage Interest constitutes not less than the voting requirement sought to be reduced, 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 (including requiring any holder of a class of Partnership Interests to make additional Capital Contributions to the Partnership) any Limited Partner without its consent, unless such shall be deemed to have occurred as a result of an amendment approved pursuant to Section 13.3(c) , or (ii) enlarge the obligations of, restrict, 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 its consent, which consent may be given or withheld at its option.
 
(c)                                   Except as provided in Section 14.3 and Section 13.1 (this Section 13.3(c)  being subject to the General Partner’s authority to adopt amendments to this Agreement without the approval of any Partners as contemplated in Section 13.1 ), any amendment that would have a material adverse effect on the rights or preferences of any class of Partnership Interests in relation to other classes of Partnership Interests must be approved by the holders of not less than a majority of the Outstanding Partnership Interests of the class or series affected. If the General Partner determines an amendment does not satisfy the requirements of Section 13.1(d)(i)  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 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 Partners (including the General Partner and its Affiliates) holding at least 90% of the Percentage Interests of all Limited Partners.
 
140 

 
Section 13.4                             Special Meetings.
 
All acts of Limited Partners to be taken pursuant to this Agreement shall be taken in the manner provided in this Article XIII . Special meetings of the Limited Partners may be called by the General Partner or by Limited Partners owning 20% or more of the Outstanding Units of the class or classes for which a meeting is proposed. Limited Partners shall call a special meeting by delivering to the General Partner one or more requests in writing stating that the signing Limited Partners wish to call a special meeting and indicating the general or specific purposes for which the special meeting is to be called. Within 60 days after receipt of such a call from Limited Partners or within such greater time as may be reasonably necessary for the Partnership to comply with any statutes, rules, regulations, listing agreements or similar requirements governing the holding of a meeting or the solicitation of proxies for use at such a meeting, the General Partner shall send a notice of the meeting to the Limited Partners either directly or indirectly through the Transfer Agent. A meeting shall be held at a time and place determined by the General Partner on a date not less than 10 days nor more than 60 days after the time notice of the meeting is given as provided in Section 16.1 . 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 13.5                             Notice of a Meeting.
 
Notice of a meeting called pursuant to Section 13.4 shall be given to the Record Holders of the class or classes of Units for which a meeting is proposed in writing by mail or other means of written communication in accordance with Section 16.1 . The notice shall be deemed to have been given at the time when deposited in the mail or sent by other means of written communication.
 
Section 13.6                             Record Date.
 
For purposes of determining the Limited Partners entitled to notice of or to vote at a meeting of the Limited Partners or to give approvals without a meeting as provided in Section 13.11 the General Partner may set a Record Date, which shall not be less than 10 nor more than 60 days before (a) the date of the meeting (unless such requirement conflicts with any rule, regulation, guideline or requirement of any National Securities Exchange on which the 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 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 the Partnership in care of the General Partner in accordance with Section 13.11 .
 
141 

 
Section 13.7                             Adjournment.
 
When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting and a new Record Date need not be fixed, if the time and place thereof are announced at the meeting at which the adjournment is taken, unless such adjournment shall be for more than 45 days. At the adjourned meeting, the Partnership may transact any business 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 13.8                             Waiver of Notice; Approval of Meeting; Approval of Minutes.
 
The transactions of any meeting of Limited Partners, however called and noticed, and whenever held, shall be as valid as if it had occurred at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy. Attendance of a Limited Partner at a meeting shall constitute a waiver of notice of the meeting, except when the Limited Partner attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened; and except that attendance at a meeting is not a waiver of any right to disapprove the consideration of matters required to be included in the notice of the meeting, but not so included, if the disapproval is expressly made at the meeting.
 
Section 13.9                             Quorum and Voting.
 
The holders of a majority, by Percentage Interest, of the Partnership Interests of the class or classes for which a meeting has been called (including Partnership Interests deemed owned by the General Partner) represented in person or by proxy shall constitute a quorum at a meeting of Partners of such class or classes unless any such action by the Partners requires approval by holders of a greater Percentage Interest, in which case the quorum shall be such greater Percentage Interest. At any meeting of the Partners duly called and held in accordance with this Agreement at which a quorum is present, the act of Partners holding Partnership Interests that in the aggregate represent a majority of the Percentage Interest of those present in person or by proxy at such meeting shall be deemed to constitute the act of all 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 Partners holding Partnership Interests that in the aggregate represent at least such greater or different percentage shall be required; provided, however , that if, as a matter of law or amendment to this Agreement, approval by plurality vote of Partners (or any class thereof) is required to approve any action, no minimum quorum shall be required. The 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 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 Partners may be adjourned from time to time by the affirmative vote of Partners with at least a majority, by Percentage Interest, of the Partnership Interests entitled to vote at such meeting (including Partnership Interests deemed owned by the General Partner) represented either in person or by proxy, but no other business may be transacted, except as provided in Section 13.7 .
 
142 

 
Section 13.10                      Conduct of a Meeting.
 
The General Partner shall have full power and authority concerning the manner of conducting any meeting of the Limited Partners or solicitation of approvals in writing, including the determination of Persons entitled to vote, the existence of a quorum, the satisfaction of the requirements of  Section 13.4 , the conduct of voting, the validity and effect of any proxies and the determination of any controversies, votes or challenges arising in connection with or during the meeting or voting. The General Partner shall designate a Person to serve as chairman of any meeting and shall further designate a Person to take the minutes of any meeting. All minutes shall be kept with the records of the Partnership maintained by the General Partner. The General Partner may make such other regulations consistent with applicable law and this Agreement as it may deem advisable concerning the conduct of any meeting of the Limited Partners or solicitation of approvals in writing, including regulations in regard to the appointment of proxies, the appointment and duties of inspectors of votes and approvals, the submission and examination of proxies and other evidence of the right to vote, and the revocation of approvals in writing.
 
Section 13.11                      Action Without a Meeting.
 
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 setting forth the action so taken is signed by Limited Partners owning not less than the minimum percentage, by Percentage Interest, of the Partnership Interests of the class or classes for which a meeting has been called (including Partnership Interests deemed owned by the General Partner), as the case may be, 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 approved in writing. 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 Units held by the Limited Partners, the Partnership shall be deemed to have failed to receive a ballot for the Units that were not voted. If approval of the taking of any action by the Limited Partners is solicited by any Person other than by or on behalf of the General Partner, the written approvals shall have no force and effect unless and until (a) they are deposited with the Partnership in care of the General Partner 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 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 acting by written consent without a meeting.
 
143 

 
Section 13.12                      Right to Vote and Related Matters.
 
(a)                                  Only those Record Holders of the Outstanding Units on the Record Date set pursuant to Section 13.6 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 Units 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 Units shall be deemed to be references to the votes or acts of the Record Holders of such Outstanding Units.
 
(b)                                  With respect to Units 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 Units are registered, such other Person shall, in exercising the voting rights in respect of such Units on any matter, and unless the arrangement between such Persons provides otherwise, vote such Units in favor of, and at the direction of, the Person who is the beneficial owner, and the Partnership shall be entitled to assume it is so acting without further inquiry. The provisions of this Section 13.12(b)  (as well as all other provisions of this Agreement) are subject to the provisions of  Section 4.3 .
 
ARTICLE XIV
MERGER, CONSOLIDATION OR CONVERSION
 
Section 14.1                             Authority.
 
The Partnership may merge or consolidate with or into one or more corporations, limited liability companies, statutory trusts or associations, real estate investment trusts, common law trusts or unincorporated businesses, including a partnership (whether general or limited (including a limited liability partnership)) or convert into any such entity, whether such entity is formed under the laws of the State of Delaware or any other state of the United States of America, pursuant to a written plan of merger or consolidation (“ Merger Agreement ”) or a written plan of conversion (“ Plan of Conversion ”), as the case may be, in accordance with this Article XIV .
 
Section 14.2                             Procedure for Merger, Consolidation or Conversion.
 
(a)                                  Merger, consolidation or conversion of the Partnership pursuant to this Article XIV requires the prior consent of the General Partner, provided, however, that, to the fullest extent permitted by law, the General Partner shall have no duty or obligation to consent to any merger, consolidation or conversion of the Partnership and may decline to do so free of any fiduciary duty or obligation whatsoever to the Partnership, any Limited Partner and, in declining to consent to a merger, consolidation or conversion, shall not be required to act in good faith or pursuant to any other standard imposed by this Agreement, any other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity.
 
(b)                                  If the General Partner shall determine to consent to the merger or consolidation, the General Partner shall approve the Merger Agreement, which shall set forth:
 
144 

 
(i)                                      the name and jurisdiction of formation or organization of each of the business entities proposing to merge or consolidate;
 
(ii)                                   the name and jurisdiction of formation or organization of the business entity that is to survive the proposed merger or consolidation (the “ Surviving Business Entity ”);
 
(iii)                                the terms and conditions of the proposed merger or consolidation;
 
(iv)                               the manner and basis of exchanging or converting the equity interests of each constituent business entity for, or into, cash, property or interests, rights, securities or obligations of the Surviving Business Entity; and (i) if any interests, securities or rights of any constituent business entity are not to be exchanged or converted solely for, or into, cash, property or interests, rights, securities or obligations of the Surviving Business Entity, then the cash, property or interests, rights, securities or obligations of any general or limited partnership, corporation, trust, limited liability company, unincorporated business or other entity (other than the Surviving Business Entity) that the holders of such interests, securities or rights are to receive in exchange for, or upon conversion of their interests, securities or rights, and (ii) in the case of equity interests represented by certificates, upon the surrender of such certificates, which cash, property or interests, rights, securities or obligations of the Surviving Business Entity or any general or limited partnership, corporation, trust, limited liability company, unincorporated business or other entity (other than the Surviving Business Entity), or evidences thereof, are to be delivered;
 
(v)                                  a statement of any changes in the constituent documents or the adoption of new constituent documents (the articles or certificate of incorporation, articles of trust, declaration of trust, certificate or agreement of limited partnership, certificate of formation or limited liability company agreement or other similar charter or governing document) of the Surviving Business Entity to be effected by such merger or consolidation;
 
(vi)                               the effective time of the merger, which may be the date of the filing of the certificate of merger pursuant to Section 14.5 or a later date specified in or determinable in accordance with the Merger Agreement ( provided , that if the effective time of the merger is to be later than the date of the filing of such certificate of merger, the effective time shall be fixed at a date or time certain and stated in the certificate of merger); and
 
(vii)                            such other provisions with respect to the proposed merger or consolidation that the General Partner determines to be necessary or appropriate.
 
(c)                                   If the General Partner shall determine to consent to the conversion, the General Partner shall approve the Plan of Conversion, which shall set forth:
 
(i)                                      the name of the converting entity and the converted entity;
 
(ii)                                   a statement that the Partnership is continuing its existence in the organizational form of the converted entity;
 
145 

 
(iii)                                a statement as to the type of entity that the converted entity is to be and the state or country under the laws of which the converted entity is to be incorporated, formed or organized;
 
(iv)                               the manner and basis of exchanging or converting the equity interests or other rights or securities of the converting entity for, or into, cash, property, rights, securities or interests of the converted entity, or, in addition to or in lieu thereof, cash, property, rights, securities or interests of another entity;
 
(v)                                  in an attachment or exhibit, the certificate of conversion; and
 
(vi)                               in an attachment or exhibit, the articles of incorporation, or other organizational documents of the converted entity;
 
(vii)                            the effective time of the conversion, which may be the date of the filing of the certificate of conversion or a later date specified in or determinable in accordance with the Plan of Conversion ( provided , that if the effective time of the conversion is to be later than the date of the filing of such certificate of conversion, the effective time shall be fixed at a date or time certain at or prior to the time of the filing of such certificate of conversion and stated therein); and
 
(viii)                         such other provisions with respect to the proposed conversion that the General Partner determines to be necessary or appropriate.
 
Section 14.3                             Approval by Limited Partners.
 
(a)                                  Except as provided in Section 14.3(d) , Section 5.12(b)(v) , and Section 5.14(b)(v) , the General Partner, upon its approval of the Merger Agreement or the Plan of Conversion, as the case may be, shall direct that the Merger Agreement or the Plan of Conversion, as applicable, be submitted to a vote of Limited Partners, whether at a special meeting or by written consent, in either case in accordance with the requirements of Article XIII . A copy or a summary of the Merger Agreement or the Plan of Conversion, as the case may be, shall be included in or enclosed with the notice of a special meeting or the written consent.
 
(b)                                  Except as provided in Section 14.3(d) , Section 14.3(e) , Section 5.12(b)(v) , and Section 5.14(b)(v), the Merger Agreement or the Plan of Conversion, as the case may be, shall be approved upon receiving the affirmative vote or consent of the holders of a Unit Majority unless the Merger Agreement or the Plan of Conversion, as the case may be, effects an amendment to any provision of this Agreement that, if contained in an amendment to this Agreement adopted pursuant to Article XIII , would require for its approval the vote or consent of the holders of a greater percentage of the Outstanding Units or of any class of Limited Partners, in which case such greater percentage vote or consent shall be required for approval of the Merger Agreement or the Plan of Conversion, as the case may be.
 
(c)                                   Except as provided in Section 14.3(d) , Section 14.3(e), Section 5.12(b)(v) , and Section 5.14(b)(v), after such approval by vote or consent of the Limited Partners, and at any time prior to the filing of the certificate of merger or certificate of conversion pursuant to Section
 
146 

 
14.5 , the merger, consolidation or conversion may be abandoned pursuant to provisions therefor, if any, set forth in the Merger Agreement or the Plan of Conversion, as the case may be.
 
(d)                                  Notwithstanding anything else contained in this Article XIV or in this Agreement, the General Partner is permitted, without Limited Partner approval, to convert the Partnership or any Group Member into a new limited liability entity, to merge the Partnership or any Group Member into, or convey all of the Partnership’s assets to, another limited liability entity that shall be newly formed and shall have no assets, liabilities or operations at the time of such merger, conveyance or conversion other than those it receives from the Partnership or other Group Member if (i) the General Partner has received an Opinion of Counsel that the merger, conveyance or conversion, as the case may be, would not result in the loss of the limited liability of any Limited Partner as compared to its limited liability under the Delaware Act or cause the Partnership or any Group Member to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for U.S. federal income tax purposes (to the extent not already treated as such), (ii) the sole purpose of such merger, conveyance or conversion is to effect a mere change in the legal form of the Partnership into another limited liability entity and (iii) the General Partner determines that the governing instruments of the new entity provide the Limited Partners and the General Partner with substantially the same rights and obligations as are herein contained.
 
(e)                                   Additionally, notwithstanding anything else contained in this Article XIV or in this Agreement, the General Partner is permitted, without Limited Partner approval, to merge or consolidate the Partnership with or into another entity if (A) the General Partner has received an Opinion of Counsel that the merger or consolidation, as the case may be, would not result in the loss of the limited liability of any Limited Partner as compared to its limited liability under the Delaware Act or cause the Partnership or any Group Member to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for U.S. federal income tax purposes (to the extent not already treated as such), (B) the merger or consolidation would not result in an amendment to this Agreement, other than any amendments that could be adopted pursuant to Section 13.1 , (C) the Partnership is the Surviving Business Entity in such merger or consolidation, (D) each Partnership Interest outstanding immediately prior to the effective date of the merger or consolidation is to be an identical Partnership Interest of the Partnership after the effective date of the merger or consolidation, and (E) the number of Partnership Interests to be issued by the Partnership in such merger or consolidation does not exceed 20% of the Partnership Interests (other than the Incentive Distribution Rights) Outstanding immediately prior to the effective date of such merger or consolidation.
 
Section 14.4                             Amendment of Partnership Agreement.
 
Pursuant to Section 17-211(g) of the Delaware Act, an agreement of merger or consolidation approved in accordance with this Article XIV may (a) effect any amendment to this Agreement or (b) effect the adoption of a new partnership agreement for the Partnership if it is the Surviving Business Entity. Any such amendment or adoption made pursuant to this Section 14.4 shall be effective at the effective time or date of the merger or consolidation.
 
147 

 
Section 14.5                             Certificate of Merger or Certificate of Conversion.
 
Upon the required approval by the General Partner and the Unitholders of a Merger Agreement or the Plan of Conversion, as the case may be, a certificate of merger or certificate of conversion, as applicable, shall be executed and filed with the Secretary of State of the State of Delaware in conformity with the requirements of the Delaware Act.
 
Section 14.6                             Effect of Merger, Consolidation or Conversion.
 
(a)                                  At the effective time of the merger:
 
(i)                                      all of the rights, privileges and powers of each of the business entities that has merged or consolidated, and all property, real, personal and mixed, and all debts due to any of those business entities and all other things and causes of action belonging to each of those business entities, shall be vested in the Surviving Business Entity and after the merger or consolidation shall be the property of the Surviving Business Entity to the extent they were of each constituent business entity;
 
(ii)                                   the title to any real property vested by deed or otherwise in any of those constituent business entities shall not revert and is not in any way impaired because of the merger or consolidation;
 
(iii)                                all rights of creditors and all liens on or security interests in property of any of those constituent business entities shall be preserved unimpaired; and
 
(iv)                               all debts, liabilities and duties of those constituent business entities shall attach to the Surviving Business Entity and may be enforced against it to the same extent as if the debts, liabilities and duties had been incurred or contracted by it.
 
(b)                                  At the effective time of the conversion:
 
(i)                                      the Partnership shall continue to exist, without interruption, but in the organizational form of the converted entity rather than in its prior organizational form;
 
(ii)                                   all rights, title, and interests to all real estate and other property owned by the Partnership shall continue to be owned by the converted entity in its new organizational form without reversion or impairment, without further act or deed, and without any transfer or assignment having occurred, but subject to any existing liens or other encumbrances thereon;
 
(iii)                                all liabilities and obligations of the Partnership shall continue to be liabilities and obligations of the converted entity in its new organizational form without impairment or diminution by reason of the conversion;
 
(iv)                               all rights of creditors or other parties with respect to or against the prior interest holders or other owners of the Partnership in their capacities as such in existence as of the effective time of the conversion will continue in existence as to those liabilities and obligations and may be pursued by such creditors and obligees as if the conversion did not occur;
 
148 

 
(v)                                  a proceeding pending by or against the Partnership or by or against any of Partners in their capacities as such may be continued by or against the converted entity in its new organizational form and by or against the prior partners without any need for substitution of parties; and
 
(vi)                               the Partnership Units or other rights, securities or interests of the Partnership that are to be converted into cash, property, rights, securities or interests in the converted entity, or rights, securities or interests in any other entity, as provided in the Plan of Conversion shall be so converted, and Partners shall be entitled only to the rights provided in the Plan of Conversion.
 
ARTICLE XV
RIGHT TO ACQUIRE LIMITED PARTNER INTERESTS
 
Section 15.1                             Right to Acquire Limited Partner Interests.
 
(a)                                  Notwithstanding any other provision of this Agreement, if at any time the General Partner and its Affiliates hold more than 80% of the total Limited Partner Interests of any class then Outstanding, the General Partner shall then have the right, which right it may assign and transfer in whole or in part to the Partnership or any Affiliate of the General Partner, exercisable in its sole discretion, to purchase all, but not less than all, of such Limited Partner Interests of such class then Outstanding held by Persons other than the General Partner and its Affiliates, at the greater of (x) the Current Market Price as of the date three days prior to the date that the notice described in Section 15.1(b)  is mailed and (y) the highest price paid by the General Partner or any of its Affiliates for any such Limited Partner Interest of such class purchased during the 90-day period preceding the date that the notice described in Section 15.1(b)  is mailed.
 
(b)                                  If the General Partner, any Affiliate of the General Partner or the Partnership elects to exercise the right to purchase Limited Partner Interests granted pursuant to Section 15.1(a) , the General Partner shall deliver to the Transfer Agent notice of such election to purchase (the “ Notice of Election to Purchase ”) and shall cause the Transfer Agent to mail a copy of such Notice of Election to Purchase to the Record Holders of Limited Partner Interests of such class or classes (as of a Record Date selected by the General Partner) at least 10, but not more than 60, days prior to the Purchase Date. Such Notice of Election to Purchase shall also be published for a period of at least three consecutive days in at least two daily newspapers of general circulation printed in the English language and published in the Borough of Manhattan, New York. The Notice of Election to Purchase shall specify the Purchase Date and the price (determined in accordance with Section 15.1(a) ) at which Limited Partner Interests will be purchased and state that the General Partner, its Affiliate or the Partnership, as the case may be, elects to purchase such Limited Partner Interests, upon surrender of Certificates representing such Limited Partner Interests in the case of Limited Partner Interests evidenced by Certificates in exchange for payment, at such office or offices of the Transfer Agent as the Transfer Agent may specify, or as may be required by any National Securities Exchange on which such Limited Partner Interests are listed or admitted to trading. Any such Notice of Election to Purchase mailed to a Record Holder of Limited Partner Interests at his address as reflected in the records of the Transfer Agent shall be conclusively presumed to have been given regardless of whether
 
149 

 
the owner receives such notice. On or prior to the Purchase Date, the General Partner, its Affiliate or the Partnership, as the case may be, shall deposit with the Transfer Agent cash in an amount sufficient to pay the aggregate purchase price of all of such Limited Partner Interests to be purchased in accordance with this Section 15.1 . If the Notice of Election to Purchase shall have been duly given as aforesaid at least 10 days prior to the Purchase Date, and if on or prior to the Purchase Date the deposit described in the preceding sentence has been made for the benefit of the holders of Limited Partner Interests subject to purchase as provided herein, then from and after the Purchase Date, notwithstanding that any Certificate shall not have been surrendered for purchase, all rights of the holders of such Limited Partner Interests shall thereupon cease, except the right to receive the purchase price (determined in accordance with Section 15.1(a) ) for Limited Partner Interests therefor, without interest, upon surrender to the Transfer Agent of the Certificates representing such Limited Partner Interests in the case of Limited Partner Interests evidenced by Certificates, and such Limited Partner Interests shall thereupon be deemed to be transferred to the General Partner, its Affiliate or the Partnership, as the case may be, on the record books of the Transfer Agent and the Partnership, and the General Partner or any Affiliate of the General Partner, or the Partnership, as the case may be, shall be deemed to be the owner of all such Limited Partner Interests from and after the Purchase Date and shall have all rights as the owner of such Limited Partner Interests.
 
(c)                                   In the case of Limited Partner Interests evidenced by Certificates, at any time from and after the Purchase Date, a holder of an Outstanding Limited Partner Interest subject to purchase as provided in this Section 15.1 may surrender his Certificate evidencing such Limited Partner Interest to the Transfer Agent in exchange for payment of the amount described in Section 15.1(a) , therefor, without interest thereon.
 
ARTICLE XVI
GENERAL PROVISIONS
 
Section 16.1                             Addresses and Notices; Written Communications.
 
(a)                                  Any notice, demand, request, report or proxy materials required or permitted to be given or made to a Partner under this Agreement shall be in writing and shall be deemed given or made when delivered in person or when sent by first class United States mail or by other means of written communication to the Partner at the address described below. Any notice, payment or report to be given or made to a Partner hereunder shall be deemed conclusively to have been given or made, and the obligation to give such notice or report or to make such payment shall be deemed conclusively to have been fully satisfied, upon sending of such notice, payment or report to the Record Holder of such Partnership Interests at his address as shown on the records of the Transfer Agent or as otherwise shown on the records of the Partnership, regardless of any claim of any Person who may have an interest in such Partnership Interests by reason of any assignment or otherwise. Notwithstanding the foregoing, if (i) a Partner shall consent to receiving notices, demands, requests, reports or proxy materials via electronic mail or by the Internet or (ii) the rules of the Commission shall permit any report or proxy materials to be delivered electronically or made available via the Internet, any such notice, demand, request, report or proxy materials shall be deemed given or made when delivered or made available via such mode of delivery. An affidavit or certificate of making of any notice, payment or report in accordance with the provisions of this Section 16.1 executed by the General Partner, the Transfer
 
150 

 
Agent or the mailing organization shall be prima facie evidence of the giving or making of such notice, payment or report. If any notice, payment or report given or made in accordance with the provisions of this Section 16.1 is returned marked to indicate that such notice, payment or report was unable to be delivered, such notice, payment or report and, in the case of notices, payments or reports returned by the United States Postal Service (or other physical mail delivery mail service outside the United States of America), any subsequent notices, payments and reports shall be deemed to have been duly given or made without further mailing (until such time as such Record Holder or another Person notifies the Transfer Agent or the Partnership of a change in his address) or other delivery if they are available for the Partner at the principal office of the Partnership for a period of one year from the date of the giving or making of such notice, payment or report to the other Partners. Any notice to the Partnership shall be deemed given if received by the General Partner at the principal office of the Partnership designated pursuant to Section 2.3 . The General Partner may rely and shall be protected in relying on any notice or other document from a Partner or other Person if believed by it to be genuine.
 
(b)                                  The terms “in writing”, “written communications,” “written notice” and words of similar import shall be deemed satisfied under this Agreement by use of e-mail and other forms of electronic communication.
 
Section 16.2                             Further Action.
 
The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement.
 
Section 16.3                             Binding Effect.
 
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
 
Section 16.4                             Integration.
 
This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
 
Section 16.5                             Creditors.
 
None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Partnership.
 
Section 16.6                             Waiver.
 
No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach of any other covenant, duty, agreement or condition.
 
151 

 
Section 16.7                             Third-Party Beneficiaries.
 
Each Partner agrees that (a) any Indemnitee shall be entitled to assert rights and remedies hereunder as a third-party beneficiary hereto with respect to those provisions of this Agreement affording a right, benefit or privilege to such Indemnitee and (b) any Unrestricted Person shall be entitled to assert rights and remedies hereunder as a third-party beneficiary hereto with respect to those provisions of this Agreement affording a right, benefit or privilege to such Unrestricted Person.
 
Section 16.8                             Counterparts.
 
This Agreement may be executed in counterparts, all of which together shall constitute an agreement binding on all the parties hereto, notwithstanding that all such parties are not signatories to the original or the same counterpart. Each party shall become bound by this Agreement (a) immediately upon affixing its signature hereto, (b) in the case of the General Partner and the holders of Limited Partner Interests outstanding immediately prior to the closing of the Initial Public Offering, immediately upon the closing of the Initial Public Offering, without the execution hereof, or (c) in the case of a Person acquiring a Limited Partner Interest pursuant to Section 10.1(b) , immediately upon the acquisition of such Limited Partner Interest, without execution hereof.
 
Section 16.9                             Applicable Law; Forum; Venue and Jurisdiction; Waiver of Trial by Jury.
 
(a)                                  This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware, without regard to the principles of conflicts of law.
 
(b)                                  Each of the Partners and each Person holding any beneficial interest in the Partnership (whether through a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing or otherwise):
 
(i)                                      irrevocably agrees that any claims, suits, actions or proceedings (A) arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of this Agreement or the duties, obligations or liabilities among Partners or of Partners to the Partnership, or the rights or powers of, or restrictions on, the Partners or the Partnership), (B) brought in a derivative manner on behalf of the Partnership, (C) asserting a claim of breach of duty (including any fiduciary duty) owed by any director, officer, or other employee of the Partnership or the General Partner, or owed by the General Partner, to the Partnership or the Partners, (D) asserting a claim arising pursuant to or to interpret or enforce any provision of the Delaware Act or (E) asserting a claim governed by the internal affairs doctrine, shall be exclusively brought in the Court of Chancery of the State of Delaware, in each case regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims;
 
(ii)                                   irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware in connection with any such claim, suit, action or proceeding;
 
152 

 
(iii)                                agrees not to, and waives any right to, assert in any such claim, suit, action or proceeding that (A) it is not personally subject to the jurisdiction of the Court of Chancery of the State of Delaware or of any other court to which proceedings in the Court of Chancery of the State of Delaware may be appealed, (B) such claim, suit, action or proceeding is brought in an inconvenient forum, or (C) the venue of such claim, suit, action or proceeding is improper;
 
(iv)                               expressly waives any requirement for the posting of a bond by a party bringing such claim, suit, action or proceeding;
 
(v)                                  consents to process being served in any such claim, suit, action or proceeding by mailing, certified mail, return receipt requested, a copy thereof to such party at the address in effect for notices hereunder, and agrees that such services shall constitute good and sufficient service of process and notice thereof; provided, nothing in clause (v) hereof shall affect or limit any right to serve process in any other manner permitted by law; and
 
(vi)                               IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION TO ENFORCE OR INTERPRET THE PROVISIONS OF THIS AGREEMENT.
 
Section 16.10                      Invalidity of Provisions.
 
If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and part thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.
 
Section 16.11                      Consent of Partners.
 
Each Partner hereby expressly consents and agrees that, whenever in this Agreement it is specified that an action may be taken upon the affirmative vote or consent of less than all of the Partners, such action may be so taken upon the concurrence of less than all of the Partners and each Partner and each other Person bound by the provisions of this Agreement shall be bound by the results of such action.
 
Section 16.12                      Facsimile Signatures.
 
The use of facsimile signatures affixed in the name and on behalf of the transfer agent and registrar of the Partnership on Certificates representing Common Units is expressly permitted by this Agreement.
 
153 

 
IN WITNESS WHEREOF , the General Partner has executed this Agreement as of the date first written above.

 	GENERAL PARTNER	
 	 	
 	AMERICAN MIDSTREAM GP, LLC	

 	By:	/s/ Lynn L. Bourdon III	
 	Name:	Lynn L. Bourdon III	
 	Title:	President and Chief Executive Officer	
 
154 

 
EXHIBIT A
to the Fifth Amended and Restated
Agreement of Limited Partnership of
American Midstream Partners, LP
 
Certificate Evidencing Common Units
Representing Limited Partner Interests in
American Midstream Partners, LP
 
Certificate No.                          Number of Common Units:
 
In accordance with Section 4.1 of the Fifth Amended and Restated Agreement of Limited Partnership of American Midstream Partners, LP, as amended, supplemented or restated from time to time (the “ Partnership Agreement ”), American Midstream Partners, LP, a Delaware limited partnership (the “Partnership”), hereby certifies that                 (the “ Holder ”) is the registered owner of Common Units representing limited partner interests in the Partnership (the “ Common Units ”) transferable on the books of the Partnership, in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed. The rights, preferences and limitations of the Common Units are set forth in, and this Certificate and the Common Units represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Partnership Agreement. Copies of the Partnership Agreement are on file at, and will be furnished without charge on delivery of written request to the Partnership at, the principal office of the Partnership located at 1400 16th Street, Suite 310, Denver, Colorado 80202. Capitalized terms used herein but not defined shall have the meanings given them in the Partnership Agreement.
 
THE HOLDER OF THIS SECURITY ACKNOWLEDGES FOR THE BENEFIT OF AMERICAN MIDSTREAM PARTNERS, LP 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 AMERICAN MIDSTREAM PARTNERS, LP UNDER THE LAWS OF THE STATE OF DELAWARE OR (C) CAUSE AMERICAN MIDSTREAM PARTNERS, LP 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). AMERICAN MIDSTREAM GP, LLC OR ITS SUCCESSOR, THE GENERAL PARTNER OF AMERICAN MIDSTREAM PARTNERS, LP, MAY IMPOSE ADDITIONAL RESTRICTIONS ON THE TRANSFER OF THIS SECURITY IF IT RECEIVES AN OPINION OF COUNSEL THAT SUCH RESTRICTIONS ARE NECESSARY TO AVOID A SIGNIFICANT RISK OF AMERICAN MIDSTREAM PARTNERS, LP BECOMING TAXABLE AS A CORPORATION OR OTHERWISE BECOMING TAXABLE AS AN ENTITY FOR FEDERAL INCOME TAX PURPOSES. THE RESTRICTIONS SET FORTH ABOVE SHALL NOT PRECLUDE THE SETTLEMENT OF ANY TRANSACTIONS
 
A- 1 

 
INVOLVING THIS SECURITY ENTERED INTO THROUGH THE FACILITIES OF ANY NATIONAL SECURITIES EXCHANGE ON WHICH THIS SECURITY IS LISTED OR ADMITTED TO TRADING.
 
The Holder, by accepting this Certificate, (i) shall become bound by the terms of the Partnership Agreement, (ii) represents and warrants that the Holder has all right, power and authority and, if an individual, the capacity necessary to enter into the Partnership Agreement and (iii) makes the waivers and gives the consents and approvals contained in the Partnership Agreement.
 
This Certificate shall not be valid for any purpose unless it has been countersigned and registered by the Transfer Agent and Registrar.
 
Dated:            American Midstream Partners, LP
 
Countersigned and Registered by: By: American Midstream GP, LLC,
its General Partner

By:	 	 	
as Transfer Agent and Registrar Name:	 	
 	 	 	
By:	 	 	
 	 	 	
By:	 	 	
Authorized Signature Secretary	 	
 
A- 2 

 
ABBREVIATIONS
 
The following abbreviations, when used in the inscription on the face of this Certificate, shall be construed as follows according to applicable laws or regulations:

TEN COM - as tenants in common UNIF GIFT/TRANSFERS MIN ACT	 	
TEN ENT - as tenants by the entireties	Custodian	 	 	
 	(Cust)	(Minor)	 	
 
JT TEN - as joint tenants with right of under Uniform Gifts/Transfers to CD survivorship and not as tenants Minors Act (State) in common
 
Additional abbreviations, though not in the above list, may also be used.
 
FOR VALUE RECEIVED,                                       hereby assigns, conveys, sells and transfers unto

(Please print or typewrite name and (Please insert Social Security or other address of assignee) identifying number of assignee)
 
Common Units representing limited partner interests evidenced by this Certificate, subject to the Partnership Agreement, and does hereby irrevocably constitute and appoint as its attorney-in-fact with full power of substitution to transfer the same on the books of American Midstream Partners, LP
 
Date:                   NOTE: The signature to any endorsement hereon
must correspond with the name as written upon
the face of this Certificate in every particular, without
alteration, enlargement or change.
 
THE SIGNATURE(S) MUST BE
GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND (Signature)
LOAN ASSOCIATIONS AND CREDIT
UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15 (Signature)
 
No transfer of the Common Units evidenced hereby will be registered on the books of the Partnership, unless the Certificate evidencing the Common Units to be transferred is surrendered for registration.
 
A- 3 

Exhibit 10.1
 
Execution Version
 
SECURITIES PURCHASE AGREEMENT
 
by and between
 
AMERICAN MIDSTREAM PARTNERS, LP
 
and
 
MAGNOLIA INFRASTRUCTURE HOLDINGS, LLC

 
TABLE OF CONTENTS

 

ARTICLE I	
 	
DEFINITIONS	
 	 	 	
Section 1.1	Definitions	1	
 	 	 	
ARTICLE II	
AGREEMENT TO SELL AND PURCHASE	
 	 	 	
Section 2.1	Sale and Purchase	4	
Section 2.2	Closing	4	
Section 2.3	Mutual Conditions	4	
Section 2.4	Purchaser’s Conditions	4	
Section 2.5	AMID’s Conditions	5	
Section 2.6	AMID Deliveries	5	
Section 2.7	Purchaser’s Deliveries	56	
 	 	 	
ARTICLE III	
REPRESENTATIONS AND WARRANTIES OF AMID	
 	 	 	
Section 3.1	Existence	6	
Section 3.2	Purchased Units; Capitalization	7	
Section 3.3	No Conflict	7	
Section 3.4	No Default	7	
Section 3.5	Authority	7	
Section 3.6	Approvals	7	
Section 3.7	Compliance with Laws	8	
Section 3.8	Due Authorization	8	
Section 3.9	Valid Issuance; No Options or Preemptive Rights of Units	8	
Section 3.10	Periodic Reports	8	
Section 3.11	Litigation	9	
Section 3.12	No Material Adverse Change	9	
Section 3.13	Certain Fees	9	
Section 3.14	No Registration	9	
Section 3.15	No Integration	9	
Section 3.16	Investment Company Status	9	
Section 3.17	Form S-3 Eligibility	9	
 	 	 	
ARTICLE IV	
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER	
 	 	 	
Section 4.1	Existence	10	
Section 4.2	Authorization, Enforceability	10	
Section 4.3	No Breach	10	
Section 4.4	Certain Fees	10	
Section 4.5	Investment	10	
Section 4.6	Nature of Purchaser	11	
Section 4.7	Restricted Securities	11	
Section 4.8	Legend	11	

 

ARTICLE V	
COVENANTS	
 	 	 	
Section 5.1	Taking of Necessary Action	11	
Section 5.2	Other Actions	11	
Section 5.3	Use of Proceeds	12	
Section 5.4	Tax Characterization	12	
 	 	 	
ARTICLE VI	
INDEMNIFICATION	
 	 	 	
Section 6.1	Indemnification by AMID	12	
Section 6.2	Indemnification by the Purchaser	12	
Section 6.3	Indemnification Procedure	12	
 	 	 	
ARTICLE VII	
MISCELLANEOUS	
 	 	 	
Section 7.1	Interpretation and Survival of Provisions	13	
Section 7.2	Survival of Provisions	13	
Section 7.3	No Waiver; Modifications in Writing	13	
Section 7.4	Binding Effect; Assignment	14	
Section 7.5	Communications	14	
Section 7.6	Removal of Legend	14	
Section 7.7	Entire Agreement	15	
Section 7.8	Governing Law	15	
Section 7.9	Execution in Counterparts	15	
Section 7.10	Termination	15	
Section 7.11	Recapitalization, Exchanges, Etc. Affecting the LP Units	16	
 	 	 	
Exhibit A —	Form of Transfer Application	 	
Exhibit B —	Form of Warrant	 	

 
SECURITIES PURCHASE AGREEMENT
 
This SECURITIES PURCHASE AGREEMENT, dated as of April 25, 2016 (this “ Agreement ”), is entered into by and between AMERICAN MIDSTREAM PARTNERS, LP, a Delaware limited partnership (“ AMID ”), and Magnolia Infrastructure Holdings, LLC, a Delaware limited liability company (the “ Purchaser ”).
 
WHEREAS, AMID desires to sell to the Purchaser, and the Purchaser desires to purchase from AMID, certain Series C Units (as defined below), in accordance with the provisions of this Agreement.
 
WHEREAS, to induce Purchaser to enter into this Agreement, AMID has agreed to issue to the Purchaser that certain Warrant (as defined below), in accordance with the provisions of this Agreement.
 
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 is hereby acknowledged, AMID and the Purchaser hereby agree as follows:
 
ARTICLE I
DEFINITIONS
 
Section 1.1 Definitions . As used in this Agreement, and unless the context requires a different meaning, the following terms have the meanings indicated:
 
“ 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, “control” (including, with correlative meanings, “controlling,” “controlled by,” and “under common control with”) means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
 
“ Agreement ” has the meaning set forth in the introductory paragraph.
 
“ AMID ” has the meaning set forth in the introductory paragraph.
 
“ AMID Entities ” and each an “ AMID Entity ” means the General Partner, AMID and each of AMID’s Subsidiaries, other than those Subsidiaries which, individually or in the aggregate, would not constitute a “significant subsidiary” as defined in Regulation S-X.
 
“ AMID Related Parties ” has the meaning specified in Section 6.2 .
 
“ AMID SEC Documents ” has the meaning specified in Section 3.10 .
 
“ Business Day ” means a day other than (i) a Saturday or Sunday or (ii) any day on which banks located in New York, New York, U.S.A. are authorized or obligated to close.
 
“ Closing ” has the meaning specified in Section 2.2 .
 
“ Closing Date ” has the meaning specified in Section 2.2 .
 
“ Code ” means the Internal Revenue Code of 1986, as amended.
 
“ Commission ” means the United States Securities and Exchange Commission.
 
“ Common Units ” means common units representing limited partnership interests in AMID.
 
1 

 
“ Delaware LP Act ” means the Delaware Revised Uniform Limited Partnership Act.
 
“ D-Day PSA ” means that certain Purchase Agreement, by and between Purchaser and American Midstream Delta House, LLC, with respect to the purchase of membership interests in D-Day Offshore Holdings, LLC.
 
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.
 
“ General Partner ” means American Midstream GP, LLC, a Delaware limited liability company.
 
“ Governmental Authority ” means, with respect to a particular Person, any country, state, county, city and political subdivision in which such Person or such Person’s Property is located or that exercises valid jurisdiction over any such Person or such Person’s Property, and any court, agency, department, commission, board, bureau or instrumentality of any of them and any monetary authority that exercises valid jurisdiction over any such Person or such Person’s Property. Unless otherwise specified, all references to Governmental Authority herein with respect to AMID mean a Governmental Authority having jurisdiction over AMID, its Subsidiaries or any of their respective Properties.
 
“ Indemnified Party ” has the meaning specified in Section 6.3 .
 
“ Indemnifying Party ” has the meaning specified in Section 6.3 .
 
“ Law ” means any federal, state, local or foreign order, writ, injunction, judgment, settlement, award, decree, statute, law, rule or regulation.
 
“ Lien ” means any interest in Property securing an obligation owed to, or a claim by, a Person other than the owner of the Property, whether such interest is based on the common law, statute or contract, and whether such obligation or claim is fixed or contingent, and including the lien or security interest arising from a mortgage, encumbrance, pledge, security agreement, conditional sale or trust receipt or a lease, consignment or bailment for security purposes. For the purpose of this Agreement, a Person shall be deemed to be the owner of any Property that it has acquired or holds subject to a conditional sale agreement, or leases under a financing lease or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person in a transaction intended to create a financing.
 
“ LP Units ” means units representing limited partnership interests in AMID other than the Series C Units.
 
“ Material Adverse Effect ” has the meaning specified in Section 3.1 .
 
“ NYSE ” means The New York Stock Exchange, Inc.
 
“ O PSA ” means that certain Purchase and Sale Agreement, by and between Emerald Midstream, LLC and American Midstream Emerald, LLC, with respect to the purchase of membership interests in Okeanos Gas Gathering, LLC.
 
“ Operative Documents ” means, collectively, this Agreement, the Warrant, or any amendments, supplements, continuations or modifications thereto.
 
“ Partnership Agreement ” means the Fifth Amended and Restated Agreement of Limited Partnership of AMID dated as of April 25, 2016.
 
“ Person ” means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other form of entity.
 
2 

 
“ Property ” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.
 
“ Purchased Units ” means that number of Series C Units required to result in the Purchase Price being equal to $120 million or an amount just in excess of $120 million so as not to result in the issuance of fractional units.
 
“ Purchase Price ” means, an amount equal to the number of Purchased Units multiplied by the Series C Unit Price.
 
“ Purchaser Related Parties ” has the meaning specified in Section 6.1 .
 
“ Purchaser ” has the meaning set forth in the introductory paragraph.
 
“ Representatives ” of any Person means the Affiliates, officers, directors, managers, employees, agents, counsel, accountants, investment bankers and other representatives of such Person.
 
“ Securities ” means the Purchased Units, the Series C PIK Units, the Warrant and the Common Units underlying the Series C Units and the Warrant.
 
“ Securities Act ” means the Securities Act of 1933, as amended from time to time, and the rules and regulations of the Commission promulgated thereunder.
 
“ Series C PIK Units ” means the Series C Units issuable to holders of Series C Units as a distribution in kind in lieu of cash distributions on the Series C Units
 
“ Series C Unit Price ” has the meaning specified in Section 2.1(b) .
 
“ Series C Units ” means the Series C Convertible Preferred Units representing limited partnership interests in AMID having the rights and obligations specified in the Partnership Agreement.
 
“ 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 more than 50% of the partnership interests of such partnership (considering all of the partnership interests of the partnership as a single class) is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person, or a combination thereof, or (c) any other Person (other than a corporation 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 Person.
 
“ TWD PSA ” means that certain Purchase and Sale Agreement, by and between Emerald Midstream, LLC and American Midstream Emerald, LLC, with respect to the purchase of membership interests in Tri-States NGL Pipeline, L.L.C., Wilprise Pipeline Company, L.L.C. and Destin Pipeline Company, L.L.C.
 
“ Warrant ” means the warrant to purchase up to 800,000 Common Units (subject to adjustment in accordance with the form of warrant attached hereto as Exhibit B ) at an exercise price of $7.25 per Common Unit.
 
3 

 
ARTICLE II
AGREEMENT TO SELL AND PURCHASE
 
Section 2.1 Sale and Purchase.
 
(a) Subject to the terms and conditions hereof, AMID hereby agrees to issue and sell to the Purchaser and the Purchaser hereby agrees to purchase from AMID 8,571,429 Purchased Units and to pay AMID the Series C Unit Price for each Purchased Unit as set forth in paragraph (b) below.
 
(b) The amount per Series C Unit the Purchaser will pay to AMID to purchase the Purchased Units (the “ Series C Unit Price ”) hereunder shall be equal to $14.00.
 
(c) Purchaser will also receive the Warrant to purchase in the aggregate 800,000 fully paid and nonassessable Common Units at an exercise price (subject to adjustment in accordance with the provisions of the form of warrant) of $7.25 per Common Unit.
 
Section 2.2 Closing . Subject to the terms and conditions hereof, the consummation of the purchase and sale of the Purchased Units and the issuance of the Warrant hereunder (the “ Closing ”) shall take place at the offices of American Midstream Partners, LP, 1400 16 th  Street, Suite 310, Denver, Colorado 80202, or such other location as mutually agreed by the parties, and upon the first Business Day following the satisfaction or waiver of the conditions set forth in Sections 2.3, 2.4 and 2.5 (other than those conditions that are by their terms to be satisfied at the Closing), or such other date as mutually agreed by the parties (the date of such closing, the “ Closing Date ”).
 
Section 2.3 Mutual Conditions . The respective obligations of each party to consummate the purchase and issuance and sale of the Purchased Units and the issuance of the Warrant shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by a party on behalf of itself in writing, in whole or in part, to the extent permitted by applicable Law):
 
(a) no Law shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Authority of competent jurisdiction that temporarily, preliminarily or permanently restrains, precludes, enjoins or otherwise prohibits the consummation of the transactions contemplated hereby or makes the transactions contemplated hereby illegal; and
 
(b) there shall not be pending any suit, action or proceeding by any Governmental Authority seeking to restrain, preclude, enjoin or prohibit the transactions contemplated by this Agreement.
 
Section 2.4 Purchaser’s Conditions . The obligation of the Purchaser to consummate the purchase of the Purchased Units shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by the Purchaser in writing with respect to the Purchased Units, in whole or in part, to the extent permitted by applicable Law):
 
(a) AMID shall have performed and complied with the covenants and agreements contained in this Agreement that are required to be performed and complied with by AMID on or prior to the Closing Date;
 
(b) (i) The representations and warranties of AMID (A) set forth in Sections 3.1, 3.2 and 3.5 and (B) contained in this Agreement that are qualified by materiality or a Material Adverse Effect shall be true and correct when made and as of the Closing Date and (ii) all other representations and warranties of AMID shall be true and correct, individually and in the aggregate, in all material respects when made and as of the Closing Date, in each case as though made at and as of the Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct as of such date only, it being expressly understood and agreed that representations and warranties made “As of the date hereof” or “As of the date of this Agreement”, or a similar phrase, are made as of April 25, 2016);
 
4 

 
(c) No notice of delisting from the NYSE shall have been received by AMID with respect to the LP Units; and
 
(d) AMID shall have delivered, or caused to be delivered, to each Purchaser at the Closing, AMID’s closing deliveries described in Section 2.6 .
 
Section 2.5 AMID’s Conditions . The obligation of AMID to consummate the sale of the Purchased Units and the issuance of the Warrant to the Purchaser shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be waived by AMID in writing, in whole or in part, to the extent permitted by applicable Law):
 
(a) the representations and warranties of the Purchaser contained in this Agreement that are qualified by materiality shall be true and correct when made and as of the Closing Date and all other representations and warranties of the Purchaser shall be true and correct in all material respects as of the Closing Date (except that representations of the Purchaser made as of a specific date shall be required to be true and correct as of such date only); and
 
(b) the Purchaser shall have delivered, or caused to be delivered, to AMID at the Closing the Purchaser’s closing deliveries described in Section 2.7 .
 
By acceptance of (i) the certificate or certificates representing the Purchased Units and (ii) the Warrant, the Purchaser shall be deemed to have represented to AMID that the Purchaser has performed and complied with the covenants and agreements contained in this Agreement that are required to be performed and complied with by it on or prior to the Closing Date; and the representations and warranties of the Purchaser contained in this Agreement that are qualified by materiality are true and correct as of the Closing Date and all other representations and warranties of the Purchaser are true and correct in all material respects as of the Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct as of such date only).
 
Section 2.6 AMID Deliveries . At the Closing, subject to the terms and conditions hereof, AMID will deliver, or cause to be delivered, to the Purchaser:
 
(a) (i) A certificate or certificates representing the Purchased Units (bearing the legend set forth in Section 4.8 ) and meeting the requirements of the Partnership Agreement, free and clear of any Liens, other than transfer restrictions under the Partnership Agreement and applicable federal and state securities laws and (ii) the Warrant, stock powers or other instruments of transfer with respect to the Warrant duly endorsed in blank ;
 
(b) A certificate of the Secretary of State of the State of Delaware, dated a recent date, to the effect that each of the General Partner and AMID is in good standing;
 
(c) A cross-receipt executed by AMID and delivered to the Purchaser certifying that it has received the Purchase Price from the Purchaser as of the Closing Date;
 
(d) A certificate, dated the Closing Date and signed by an officer of the General Partner, on behalf of AMID, in its capacity as such, stating that:
 
(i) AMID has performed and complied with the covenants and agreements contained in this Agreement that are required to be performed and complied with by AMID on or prior to the Closing Date; and
 
(ii) The representations and warranties of AMID contained in this Agreement that are qualified by materiality or Material Adverse Effect are true and correct as of the Closing Date and all other representations and warranties of AMID are, individually and in the aggregate, true and correct in all
 
5 

 
material respects as of the Closing Date (except that representations and warranties made as of a specific date shall be required to be true and correct as of such date only); and
 
(e) A certificate of the Secretary or Assistant Secretary of the General Partner, on behalf of AMID, certifying as to (1) the Amended and Restated Certificate of Limited Partnership of AMID, as amended, and the Partnership Agreement, (2) board resolutions authorizing the execution and delivery of the Operative Documents and the consummation of the transactions contemplated thereby, including the issuance of the Purchased Units and the Warrant, and including the special approval of the Conflicts Committee of the Board of Directors of the General Partner, and (3) its incumbent officers authorized to execute the Operative Documents, setting forth the name and title and bearing the signatures of such officers.
 
Section 2.7 Purchaser’s Deliveries . At the Closing, subject to the terms and conditions hereof, the Purchaser will deliver, or cause to be delivered, to AMID:
 
(a) Payment to AMID of the Purchase Price by wire transfer of immediately available funds to an account designated by AMID in writing at least two Business Days prior to the Closing Date;
 
(b) A cross-receipt executed by the Purchaser and delivered to AMID certifying that it has received the Purchased Units and the Warrant as of the Closing Date; and
 
(c) A transfer application in substantially the form attached hereto as Exhibit A , which shall have been duly executed by the Purchaser.
 
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF AMID
 
AMID represents and warrants to the Purchaser as follows:
 
Section 3.1 Existence . Each of the AMID Entities has been duly incorporated or formed, as the case may be, and is validly existing as a limited liability company, limited partnership or corporation, as the case may be, in good standing under the Laws of its jurisdiction of incorporation or formation, as the case may be, and has the full limited liability company, limited partnership or corporate, as the case may be, power and authority, and has all governmental licenses, authorizations, consents and approvals, necessary to own, lease or hold its Properties and assets and to conduct the businesses in which it is engaged, and is duly registered or qualified to do business and in good standing as a foreign limited liability company, limited partnership or corporation, as the case may be, in each jurisdiction in which its ownership or lease of Property or the conduct of its business requires such qualification, except where the failure to so register or qualify could not reasonably be expected to (i) have, individually or in the aggregate, a material adverse effect on the condition (financial or other), results of operations, securityholders’ equity, Properties or business of the AMID Entities taken as a whole, the ability of the AMID Entities to meet their obligations under the Operative Documents or the ability of the AMID Entities to consummate the transactions under any Operative Document on a timely basis (a “ Material Adverse Effect ”) or (ii) subject the limited partners of AMID to any material liability or disability.
 
Section 3.2 Purchased Units; Capitalization .
 
(a) On the Closing Date, the Purchased Units shall have those rights, preferences, privileges and restrictions governing the Series C Units as set forth in the Partnership Agreement.
 
(b) The General Partner is the sole general partner of AMID, with an economic general partner interest in AMID; such general partner interest is the only general partner interest of the Partnership that is issued and outstanding; and such general partner interest has been duly authorized and validly issued.
 
6 

 
(c) The limited partners of AMID hold LP Units in AMID, represented as of April 22, 2016 by approximately 40,396,089 LP Units; such LP Units are the only limited partner interests of AMID that are issued and outstanding; all of such LP Units have been duly authorized and validly issued pursuant to the Partnership Agreement and are fully paid and nonassessable (except to the extent such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
 
Section 3.3 No Conflict . None of (i) the offering, issuance and sale by AMID of the Purchased Units and the application of the proceeds therefrom, (ii) the issuance of the Warrant, (iii) the execution, delivery and performance of the Operative Documents by AMID or the General Partner, or (iv) the consummation of the transactions contemplated hereby or thereby conflicts or will conflict with, or results or will result in a breach or violation of or imposition of any Lien upon any Property or assets of the AMID Entities pursuant to, (A) the formation or governing documents of any of the AMID Entities, (B) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which any of the AMID Entities is a party, by which any of them is bound or to which any of their respective Properties or assets is subject, or (C) any Law applicable to any of the AMID Entities or injunction of any court or governmental agency or body to which any of the AMID Entities of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over any of the AMID Entities or any of their Properties, except in the case of clauses (B) and (C) for such conflict, breach, violation or default that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially impair the ability of the AMID Entities to consummate the transactions contemplated by this Agreement.
 
Section 3.4 No Default . None of the AMID Entities is in violation or default of (i) any provision of its respective formation or governing documents, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party, by which it is bound or to which its property is subject, or (iii) any Law of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the AMID Entities or any of their Properties, as applicable, except, in the case of clauses (ii) or (iii), as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially impair the ability of the AMID Entities to consummate the transactions contemplated by this Agreement.
 
Section 3.5 Authority . On the Closing Date, AMID will have all requisite power and authority to execute, deliver and perform its obligations, in accordance with and upon the terms and conditions set forth in the Operative Documents. On the Closing Date, all partnership or limited liability company action, as the case may be, required to be taken by the General Partner and AMID for the authorization, issuance, sale and delivery of the Purchased Units and the issuance of the Warrant, the execution and delivery of the Operative Documents and the consummation of the transactions contemplated hereby and thereby shall have been validly taken. No approval from the holders of outstanding LP Units is required under the Partnership Agreement or the rules of the NYSE in connection with AMID’s issuance and sale of the Purchased Units or issuance of the Warrant to the Purchaser.
 
Section 3.6 Approvals . No authorization, consent, approval, waiver, license, qualification or written exemption from, nor any filing, declaration, qualification or registration with, any Governmental Authority or any other Person is required in connection with the execution, delivery or performance by AMID of any of the Operative Documents to which it is a party or AMID’s issuance and sale of the Purchased Units or issuance of the Warrant, except (i) as may be required under the state securities or “Blue Sky” Laws, or (ii) where the failure to receive such authorization, consent, approval, waiver, license, qualification or written exemption or to make such filing, declaration, qualification or registration would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
 
Section 3.7 Compliance with Laws . As of the date hereof, neither AMID nor any of its Subsidiaries is in violation of any Law applicable to AMID or its Subsidiaries, except as would not, individually or in the aggregate, have a Material Adverse Effect. AMID and its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such certificates, authorizations or permits would not, individually or in the aggregate, have a
 
7 

 
Material Adverse Effect, and neither AMID nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit, except where such potential revocation or modification would not, individually or in the aggregate, have a Material Adverse Effect.
 
Section 3.8 Due Authorization . Each of the Operative Documents has been duly and validly authorized and has been or, with respect to the Operative Documents to be delivered at the Closing Date, will be, validly executed and delivered by AMID or the General Partner, as the case may be, and constitutes, or will constitute, the legal, valid and binding obligations of AMID or the General Partner, as the case may be, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
 
Section 3.9 Valid Issuance; No Options or Preemptive Rights of Units .
 
(a) The Purchased Units to be issued and sold and the Warrant to be issued by AMID to the Purchaser hereunder have been duly authorized in accordance with the Partnership Agreement and, when issued and delivered against payment therefor pursuant to this Agreement, will be validly issued in accordance with the Partnership Agreement, fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
 
(b) The Purchased Units shall have those rights, preferences, privileges and restrictions governing the Series C Units, which shall be reflected in the Partnership Agreement.
 
(c) The Common Units issuable upon conversion of the Purchased Units, the Series C PIK Units and the exercise of the Warrant and, in each case, the limited partner interests represented thereby, upon issuance in accordance with the terms of the Series C Units as reflected in the Partnership Agreement, have been and will be duly authorized in accordance with the Partnership Agreement and will be validly issued, fully paid (to the extent required by applicable law and the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by matters described in Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
 
(d) Other than the General Partner’s right to maintain its general partner interest, the holders of outstanding LP Units are not entitled to statutory, preemptive or other similar contractual rights to subscribe for LP Units or Series C Units; and, except for the Warrant, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, partnership securities or ownership interests in AMID are outstanding.
 
Section 3.10 Periodic Reports . AMID’s forms, registration statements, reports, schedules and statements required to be filed by it under the Exchange Act or the Securities Act during the 12 months preceding the date hereof (all such documents filed prior to the date hereof, collectively the “ AMID SEC Documents ”) have been filed with the Commission on a timely basis. The AMID SEC Documents, including, without limitation, any audited or unaudited financial statements and any notes thereto or schedules included therein, at the time filed (or in the case of registration statements, solely on the dates of effectiveness) (except to the extent corrected by a subsequent AMID SEC Document) (a) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, (b) complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be, (c) complied as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect thereto, (d) were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited statements, as permitted by Form 10-Q of the Commission), and (e) fairly present (subject in the case of unaudited statements to normal and recurring audit adjustments) in all material respects the consolidated financial position of AMID and its consolidated subsidiaries as of the dates thereof and the consolidated results of its operations and cash flows for the periods then ended. PricewaterhouseCoopers, LLP is an independent registered public accounting firm with respect to AMID and the
 
8 

 
General Partner and has not resigned or been dismissed as independent registered public accountants of AMID as a result of or in connection with any disagreement with AMID on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedures.
 
Section 3.11 Litigation . As of the date hereof, except as described in the AMID SEC Documents, there are no legal or governmental proceedings pending to which any AMID Entity is a party or to which any Property or asset of any AMID Entity is subject that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or which challenges the validity of any of the Operative Documents or the right of any AMID entity to enter into any of the Operative Documents or to consummate the transactions contemplated hereby and thereby and, to the knowledge of AMID, no such proceedings are threatened by Governmental Authorities or others.
 
Section 3.12 No Material Adverse Change . As of the date hereof, except as set forth in the AMID SEC Documents filed with the Commission on or prior to the date hereof, since December 31, 2015, there has not occurred any material adverse change in the condition (financial or other), results of operations, securityholders’ equity, Properties, prospects or business of the AMID Entities, taken as a whole.
 
Section 3.13 Certain Fees . No fees or commissions are or will be payable by AMID to brokers, finders, or investment bankers with respect to the sale of any of the Securities or the consummation of the transaction contemplated by this Agreement. AMID agrees that it will indemnify and hold harmless the Purchaser from and against any and all claims, demands, or liabilities for broker’s, finder’s, placement, or other similar fees or commissions incurred by AMID in connection with the sale of the Securities or the consummation of the transactions contemplated by this Agreement.
 
Section 3.14 No Registration . Assuming the accuracy of the representations and warranties of the Purchaser contained in Section 4.5 and Section 4.6 , the issuance and sale of the Securities pursuant to this Agreement is exempt from registration requirements of the Securities Act, and neither AMID nor, to the knowledge of AMID, any authorized Representative acting on its behalf has taken or will take any action hereafter that would cause the loss of such exemption.
 
Section 3.15 No Integration . Neither AMID nor any of its Affiliates have, directly or indirectly through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the Purchased Units or the issuance of the Warrant in a manner that would require registration under the Securities Act.
 
Section 3.16 Investment Company Status . None of the AMID Entities currently is, or following the sale of the Purchased Units or the issuance of the Warrant hereby and the application of proceeds therefrom, will be an “investment company” or a company “controlled by” an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
 
Section 3.17 Form S-3 Eligibility . As of the date hereof, AMID has been, since the time of filing its most recent Form S-3 Registration Statement, and continues to be eligible to use Form S-3.
 
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
 
The Purchaser hereby represents and warrants to AMID that:
 
Section 4.1 Existence . The Purchaser is duly organized and validly existing and in good standing under the Laws of the State of Delaware, with all requisite limited liability company power and authority, to own, lease, use and operate its Properties and to conduct its business as currently conducted.
 
9 

 
Section 4.2 Authorization, Enforceability . The Purchaser has all necessary limited liability company power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated thereby, and the execution, delivery and performance by the Purchaser of this Agreement has been duly authorized by all necessary action on the part of the Purchaser; and this Agreement constitutes the legal, valid and binding obligations of the Purchaser, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer and similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
 
Section 4.3 No Breach . The execution, delivery and performance of this Agreement by the Purchaser and the consummation by the Purchaser of the transactions contemplated hereby and thereby will not (a) conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a default under, any material agreement to which the Purchaser is a party or by which the Purchaser is bound or to which any of the property or assets of the Purchaser is subject, (b) conflict with or result in any violation of the provisions of the organizational documents of the Purchaser, or (c) materially violate any statute, order, rule or regulation of any court or governmental agency or body having jurisdiction over the Purchaser or the property or assets of the Purchaser, except in the cases of clauses (a) and (c), for such conflicts, breaches, violations or defaults as would not prevent the consummation of the transactions contemplated by this Agreement.
 
Section 4.4 Certain Fees . No fees or commissions are or will be payable by the Purchaser to brokers, finders, or investment bankers with respect to the purchase of any of the Securities or the consummation of the transaction contemplated by this Agreement. The Purchaser agrees that it will indemnify and hold harmless AMID from and against any and all claims, demands, or liabilities for broker’s, finder’s, placement, or other similar fees or commissions incurred by the Purchaser in connection with the purchase of the Securities or the consummation of the transactions contemplated by this Agreement.
 
Section 4.5 Investment . The Purchased Units and the Warrant are being acquired for the Purchaser’s own account, the account of its Affiliates, or the accounts of clients for whom the Purchaser exercises discretionary investment authority (all of whom the Purchaser hereby represents and warrants are “accredited investors” within the meaning of Rule 501(a) of Regulation D promulgated by the Commission pursuant to the Securities Act), not as a nominee or agent, and with no present intention of distributing the Purchased Units, the Warrant or any part thereof or securities issuable pursuant thereto, and the Purchaser has no present intention of selling or granting any participation in or otherwise distributing the same in any transaction in violation of the securities laws of the United States or any state, without prejudice, however, to the Purchaser’s right at all times to sell or otherwise dispose of all or any part of the Purchased Units or the Warrant or securities issuable pursuant thereto under a registration statement under the Securities Act and applicable state securities laws or under an exemption from such registration available thereunder (including, without limitation, if available, Rule 144 promulgated thereunder). If the Purchaser should in the future decide to dispose of any of the Purchased Units or the Warrant or securities issuable pursuant thereto, the Purchaser understands and agrees (a) that it may do so only in compliance with the Securities Act and applicable state securities law, as then in effect, including a sale contemplated by any registration statement pursuant to which such securities are being offered, or pursuant to an exemption from the Securities Act, and (b) that stop-transfer instructions to that effect will be in effect with respect to such securities.
 
Section 4.6 Nature of Purchaser . The Purchaser represents and warrants to, and covenants and agrees with, AMID that, (a) it is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated by the Commission pursuant to the Securities Act and (b) by reason of its business and financial experience it has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investment.
 
Section 4.7 Restricted Securities . The Purchaser understands that the Securities are characterized as “restricted securities” under the federal securities Laws inasmuch as they are being acquired from AMID in a
 
10 

 
transaction not involving a public offering and that under such Laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, the Purchaser represents that it is knowledgeable with respect to Rule 144 of the Commission promulgated under the Securities Act.
 
Section 4.8 Legend . The Purchaser understands that the certificates evidencing the Securities will bear the following legend: “THE OFFER OR SALE OF THESE SECURITIES, THE UNDERLYING SECURITIES OR THE SECURITIES INTO WHICH THEY ARE CONVERTIBLE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.  THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER AND, IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT OR THE PARTNERSHIP HAS RECEIVED DOCUMENTATION REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER SUCH ACT.  THESE SECURITIES ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTH IN THE FIFTH AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF THE PARTNERSHIP, DATED AS OF APRIL 25, 2016, AS AMENDED, A COPY OF WHICH MAY BE OBTAINED FROM THE PARTNERSHIP AT ITS PRINCIPAL EXECUTIVE OFFICES.”
 
Section 4.9  Tax Matters . Purchaser represents that the Purchaser and the seller under the D-Day PSA, the O PSA and the TWD PSA are disregarded as separate from the same Person for U.S. federal income tax purposes and for purposes of certain state income tax laws that incorporate or follow U.S. federal income tax principles.
 
ARTICLE V
COVENANTS
 
Section 5.1 Taking of Necessary Action . Each of the parties hereto shall use its commercially reasonable efforts promptly to take or cause to be taken all action and promptly to do or cause to be done all things necessary, proper or advisable under applicable Law and regulations to consummate and make effective the transactions contemplated by this Agreement. Without limiting the foregoing, each of AMID and the Purchaser shall use its commercially reasonable efforts to make all filings and obtain all consents of Governmental Authorities that may be necessary or, in the reasonable opinion of the other parties, as the case may be, advisable for the consummation of the transactions contemplated by the Operative Documents.
 
Section 5.2 Other Actions . AMID shall (a) promptly following the Closing, file a supplemental listing application with the NYSE to list the Common Units underlying the Purchased Units and the Warrant and (b) file a supplemental listing application with the NYSE to list any Common Units underlying any Series C PIK Units issued by AMID promptly following any such issuance.
 
Section 5.3 Use of Proceeds . AMID shall use the proceeds from the sale of the Securities to provide financing for certain acquisitions by AMID.
 
Section 5.4. Tax Characterization . The Parties intend and agree, solely for U.S. federal income tax purposes and for purposes of certain state income tax laws that incorporate or follow U.S. federal income tax principles, that the transactions contemplated by this Agreement taken together with the transactions contemplated by the D-Day PSA, the O PSA and the TWD PSA, shall, except as otherwise required by Section 707(a)(2)(B) and its implementing Treasury regulations (including, to the extent applicable, Treasury Regulation section 1.707-4(d) and Treasury Regulation section 1.721-2(b)(1)), be treated as contributions to AMID in exchange for a partner interest therein in a transaction consistent with the requirements of Section 721(a) of the Code.
 
11 

 
ARTICLE VI
INDEMNIFICATION
 
Section 6.1 Indemnification by AMID . AMID agrees to indemnify the Purchaser and its respective Representatives (collectively, “ Purchaser Related Parties ”) from, and hold each of them harmless against, any and all actions, suits, proceedings (including any investigations, litigation or inquiries), demands, and causes of action, and, in connection therewith, promptly upon demand, to pay or reimburse each of them for all reasonable costs, losses, liabilities, damages, or expenses of any kind or nature whatsoever, including, without limitation, the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them as a result of, arising out of, or in any way related to the breach of any of the representations, warranties or covenants of AMID contained herein, provided that such claim for indemnification relating to a breach of the representations or warranties is made prior to the expiration of such representations or warranties; and provided further, that no Purchaser Related Party shall be entitled to recover special, consequential (including lost profits or diminution in value) or punitive damages. Notwithstanding anything to the contrary, consequential damages shall be deemed not to include diminution in value of the Purchased Units or the Warrant, which is specifically excluded from damages covered by Purchaser Related Parties’ indemnification.
 
Section 6.2 Indemnification by the Purchaser . The Purchaser agrees to indemnify AMID, the General Partner and their respective Representatives (collectively, “ AMID Related Parties ”) from, and hold each of them harmless against, any and all actions, suits, proceedings (including any investigations, litigation or inquiries), demands, and causes of action, and, in connection therewith, promptly upon demand, to pay or reimburse each of them for all reasonable costs, losses, liabilities, damages, or expenses of any kind or nature whatsoever, including, without limitation, the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them as a result of, arising out of, or in any way related to the breach of any of the representations, warranties or covenants of the Purchaser contained herein, provided that such claim for indemnification relating to a breach of the representations and warranties is made prior to the expiration of such representations and warranties; and provided further, that no AMID Related Party shall be entitled to recover special, consequential (including lost profits or diminution in value) or punitive damages.
 
Section 6.3 Indemnification Procedure . Promptly after any AMID Related Party or Purchaser Related Party (hereinafter, the “ Indemnified Party ”) has received notice of any indemnifiable claim hereunder, or the commencement of any action, suit or proceeding by a third person, which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement, the Indemnified Party shall give the indemnitor hereunder (the “ Indemnifying Party ”) written notice of such claim or the commencement of such action, suit or proceeding, but failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability it may have to such Indemnified Party hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure. Such notice shall state the nature and the basis of such claim to the extent then known. The Indemnifying Party shall have the right to defend and settle, at its own expense and by its own counsel who shall be reasonably acceptable to the Indemnified Party, any such matter as long as the Indemnifying Party pursues the same diligently and in good faith. If the Indemnifying Party undertakes to defend or settle, it shall promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party shall cooperate with the Indemnifying Party and its counsel in all commercially reasonable respects in the defense thereof and the settlement thereof. Such cooperation shall include, but shall not be limited to, furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or control. Such cooperation of the Indemnified Party shall be at the cost of the Indemnifying Party. After the Indemnifying Party has notified the Indemnified Party of its intention to undertake to defend or settle any such asserted liability, and for so long as the Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability; provided, however, that the Indemnified Party shall be entitled (i) at its expense, to participate in the defense of such asserted liability and the negotiations of the settlement thereof and (ii) if (A) the Indemnifying Party has failed to assume the defense or employ counsel reasonably acceptable to the
 
12 

 
Indemnified Party or (B) if the defendants in any such action include both the Indemnified Party and the Indemnifying Party and counsel to the Indemnified Party shall have concluded that there may be reasonable defenses available to the Indemnified Party that are different from or in addition to those available to the Indemnifying Party or if the interests of the Indemnified Party reasonably may be deemed to conflict with the interests of the Indemnifying Party, then the Indemnified Party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the Indemnifying Party as incurred. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not settle any indemnified claim without the consent of the Indemnified Party, unless the settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, and does not include any admission of wrongdoing or malfeasance by, the Indemnified Party.
 
ARTICLE VII
MISCELLANEOUS
 
Section 7.1 Interpretation and Survival of Provisions . Article, Section and Exhibit references are to this Agreement, unless otherwise specified. All references to instruments, documents, contracts, and agreements are references to such instruments, documents, contracts, and agreements as the same may be amended, supplemented, and otherwise modified from time to time, unless otherwise specified. The word “including” shall mean “including but not limited to.” Whenever any party has an obligation under the Operative Documents, the expense of complying with that obligation shall be an expense of such party unless otherwise specified. Whenever any determination, consent, or approval is to be made or given by the Purchaser, such action shall be in the Purchaser’s sole discretion unless otherwise specified in this Agreement. If any provision in the Operative Documents is held to be illegal, invalid, not binding, or unenforceable, such provision shall be fully severable and the Operative Documents shall be construed and enforced as if such illegal, invalid, not binding, or unenforceable provision had never comprised a part of the Operative Documents, and the remaining provisions shall remain in full force and effect. The Operative Documents have been reviewed and negotiated by sophisticated parties with access to legal counsel and shall not be construed against the drafter.
 
Section 7.2 Survival of Provisions . The representations and warranties set forth in Sections 3.1 , 3.2 , 3.5 , 3.9 , 3.10 , 3.15 , 4.1 , 4.2 , 4.5 , 4.6 and 4.7 hereunder shall survive the execution and delivery of this Agreement indefinitely, and the other representations and warranties set forth herein shall survive for a period of twelve months following the Closing Date regardless of any investigation made by or on behalf of AMID or the Purchaser. The covenants made in this Agreement or any other Operative Document shall survive the Closing of the transactions described herein and remain operative and in full force and effect regardless of acceptance of any of the Purchased Units and the Warrant and payment therefor and repayment, conversion, exercise or repurchase thereof.
 
Section 7.3 No Waiver; Modifications in Writing .
 
(a)  Delay . No failure or delay on the part of any party in exercising any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to a party at law or in equity or otherwise.
 
(b)  Specific Waiver . Except as otherwise provided herein, no amendment, waiver, consent, modification, or termination of any provision of this Agreement or any other Operative Document (except in the case of the Partnership Agreement, for amendments adopted pursuant to the terms thereof) shall be effective unless signed by each of the parties hereto or thereto affected by such amendment, waiver, consent, modification, or termination. Any amendment, supplement or modification of or to any provision of this Agreement or any other Operative Document, any waiver of any provision of this Agreement or any other Operative Document, and any consent to any departure by AMID from the terms of any provision of this Agreement or any other Operative Document shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is
 
13 

 
specifically required by this Agreement, no notice to or demand on a party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
 
Section 7.4 Binding Effect; Assignment .
 
(a)  Binding Effect . This Agreement shall be binding upon AMID, the Purchaser, and their respective successors and permitted assigns. Except as expressly provided in this Agreement, this Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and their respective successors and permitted assigns.
 
(b)  Assignment of Rights . All or any portion of the rights and obligations of the Purchaser under this Agreement may be transferred by the Purchaser to any Affiliate of the Purchaser without the consent of AMID. No portion of the rights and obligations of the Purchaser under this Agreement may be transferred by the Purchaser to a non-Affiliate without the written consent of AMID (which consent shall not be unreasonably withheld by AMID).
 
Section 7.5 Communications . All notices and demands provided for hereunder shall be in writing and shall be given by registered or certified mail, return receipt requested, telecopy, air courier guaranteeing overnight delivery or personal delivery to the following addresses:

(a)	If to the Purchaser:	
 	 	
 	Magnolia Infrastructure Holdings, LLC	
 	c/o ArcLight Capital Partners, LLC	
 	200 Clarendon Street, 55 th  Floor	
 	Boston, MA 02116	
 	Attention: General Counsel	
 	Facsimile: 617-867-4698	
 	 	
(b)	If to AMID:	
 	 	
 	American Midstream Partners, LP	
 	1400 16th Street, Suite 300	
 	Denver, CO 80202	
 	Attention: General Counsel	
 	Facsimile: 720.457.6040	
 
or to such other address as AMID or the Purchaser may designate in writing. All notices and communications shall be deemed to have been duly given: (i) at the time delivered by hand, if personally delivered; (ii)  if sent via electronic mail, upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “read receipt requested” function, if applicable, return e-mail or other written acknowledgment) excluding “out of office” and similar automatic replies; (iii) upon actual receipt if sent by certified mail, return receipt requested, or regular mail, if mailed; (iv) when receipt acknowledged, if sent via facsimile (except, that, if not given during normal business hours for the recipient, such notice shall be deemed to have been given at the opening of business on the next Business Day for the recipient); and (v) upon actual receipt when delivered to an air courier guaranteeing overnight delivery.
 
Section 7.6 Removal of Legend . In connection with a sale of any Securities by the Purchaser in reliance on Rule 144, the Purchaser or its broker shall deliver to the transfer agent and AMID a broker representation letter providing to the transfer agent and AMID any information AMID deems necessary to determine that the sale of such Securities is made in compliance with Rule 144, including a certification that the Purchaser is not an Affiliate of
 
14 

 
AMID and regarding the length of time such Securities have been held. Upon receipt of such representation letter, AMID shall promptly direct its transfer agent to exchange unit certificates bearing a restrictive legend for unit certificates without the legend (or a credit for such units to book-entry accounts maintained by the transfer agent), including the legend referred to in Section 4.8 , and AMID shall bear all costs associated therewith. After the Purchaser or its permitted assigns have held the Securities for one year, if the certificate for such Purchased Units still bears the restrictive legend referred to in Section 4. 8, AMID agrees, upon request of the Purchaser or permitted assignee, to take all steps necessary to promptly effect the removal of the legend described in Section 4.8 from the Securities, and AMID shall bear all costs associated therewith, regardless of whether the request is made in connection with a sale or otherwise, so long as the Purchaser or its permitted assigns provide to AMID any information AMID deems necessary to determine that the legend is no longer required under the Securities Act or applicable state laws, including a certification that the holder is not an Affiliate of AMID (and a covenant to inform AMID if it should thereafter become an Affiliate and to consent to exchange its certificates for certificates bearing an appropriate restrictive legend) and regarding the length of time the Securities have been held.
 
Section 7.7 Entire Agreement . This Agreement, the other Operative Documents and the other agreements and documents referred to herein are intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein or the other Operative Documents with respect to the rights granted by AMID or any of its Affiliates or the Purchaser or any of its Affiliates set forth herein or therein. This Agreement, the other Operative Documents and the other agreements and documents referred to herein or therein supersede all prior agreements and understandings between the parties with respect to such subject matter.
 
Section 7.8 Governing Law . This Agreement will be construed in accordance with and governed by the laws of the State of New York.
 
Section 7.9 Execution in Counterparts . This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement.
 
Section 7.10 Termination .
 
(a) Notwithstanding anything herein to the contrary, this Agreement may be terminated at any time at or prior to the Closing by the Purchaser, upon a breach in any material respect by AMID of any covenant or agreement set forth in this Agreement.
 
(b) Notwithstanding anything herein to the contrary, this Agreement shall automatically terminate at any time at or prior to the Closing:
 
(i) if a statute, rule, order, decree or regulation shall have been enacted or promulgated, or if any action shall have been taken by any Governmental Authority of competent jurisdiction that permanently restrains, permanently precludes, permanently enjoins or otherwise permanently prohibits the consummation of the transactions contemplated by this Agreement or makes the transactions contemplated by this Agreement illegal; or
 
(ii) if the Closing shall not have occurred by April 26, 2016.
 
(c) In the event of the termination of this Agreement as provided in this Section 7.10 , this Agreement shall forthwith become null and void. In the event of such termination, there shall be no liability on the part of any party hereto, except as set forth in Article VI of this Agreement; provided that nothing herein shall relieve any party from any liability or obligation with respect to any willful breach of this Agreement.
 
Section 7.11 Recapitalization, Exchanges, Etc. Affecting the Securities . The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all equity interests of AMID or any successor or
 
15 

 
assign of AMID (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for or in substitution of, the Securities, and shall be appropriately adjusted for combinations, recapitalizations and the like occurring after the date of this Agreement and prior to the Closing.
 
[Signature pages follow.]
 
16 

 
IN WITNESS WHEREOF, the parties hereto execute this Agreement, effective as of the date first above written.

 	American Midstream Partners, L.P.	
 	 	
 	By: American Midstream GP, LLC	
 	Its: General Partner	
 	 	 	
 	By	/s/ Daniel C. Campbell	
 	Name:	Daniel C. Campbell	
 	Title:	Senior Vice President and Chief	
 	 	Financial Officer	

 	Magnolia Infrastructure Holdings, LLC	

 	By	/s/ Daniel R. Revers	
 	Name:	Daniel R. Revers	
 	Title:	President	
 
Signature Page to Securities Purchase Agreement

 
Exhibit A — Form of Transfer Application
 
No transfer of the Series C Convertible Preferred Units evidenced hereby will be registered on the books of the Partnership, unless the Partnership provides authentication instructions to the Transfer Agent and Registrar and an Application for Transfer of Units has been executed by a transferee on the form set forth below. A transferor of the Series C Units shall have no duty to the transferee with respect to execution of the transfer application in order for such transferee to obtain registration of the transfer of the Series C Convertible Preferred Units.
 
APPLICATION FOR TRANSFER OF SERIES C CONVERTIBLE PREFERRED UNITS
 
The undersigned (“ Assignee ”) hereby applies for transfer to the name of the Assignee of the Series C Convertible Preferred Units evidenced hereby.
 
The Assignee (a) requests admission as an additional Limited Partner and agrees to comply with and be bound by, and hereby executes, the Fifth Amended and Restated Agreement of Limited Partnership of American Midstream Partners, LP (the “ Partnership ”), as amended, supplemented or restated to the date hereof (the “ Partnership Agreement ”), (b) represents and warrants that the Assignee has all right, power and authority and, if an individual, the capacity necessary to enter into the Partnership Agreement, (c) appoints the General Partner of the Partnership and, if a Liquidator shall be appointed, the Liquidator of the Partnership as the Assignee’s attorney-in-fact, to execute, swear to, acknowledge and file any document, including, without limitation, the Partnership Agreement and any amendment thereto and the Amended and Restated Certificate of Limited Partnership of the Partnership and any amendment thereto, necessary or appropriate for the Assignee’s admission as an additional Limited Partner and as a party to the Partnership Agreement, (d) gives the power of attorney provided for in the Partnership Agreement, and (e) makes the waivers and gives the consents and approvals contained in the Partnership Agreement. Capitalized terms not defined herein have the meanings assigned to such terms in the Partnership Agreement.
 
Date: April   , 2016

Tax Identification Number of assignee	 	 	
 	 	 	 	
$120,000,006	 	By:	 	
Purchase Price including commissions, if any	 	 	Name:	
 	 	 	Title:	
 	 	 	 	
 	 	 	Magnolia Infrastructure Holdings, LLC
200 Clarendon Street, 55th Floor	
 	 	 	Boston, MA 02116	
 	 	Name and address of assignee	

Type of Entity (check one):	 	
 	 	 	 	 	
 	o Individual	o Partnership	o Corporation	 	
 	 	 	 	 	
 	o Trust	o Other (specify)	 	 	
 	 	 	 	 	
Nationality (check one):	 	 	 	
 	 	 	 	 	
 	o U.S. Citizen, Resident or Domestic Entity	 	 	
 	 	 	 	
 	o Foreign Corporation	o Non resident Alien	 	

If the U. S. Citizen, Resident or Domestic Entity box is checked, the following certification must be completed.
 
Under Section 1445(e) of the Internal Revenue Code of 1986, as amended (the “ Code ”), the Partnership must withhold tax with respect to certain transfers of property if a holder of an interest in the Partnership is a foreign person. To inform the Partnership that no withholding is required with respect to the undersigned interestholder’s interest in it, the undersigned hereby certifies the following (or, if applicable, certifies the following on behalf of the interestholder).

 
Complete Either A or B:

 	A.	 	Individual Interestholder	
 	 	1.	 	I am not a non-resident alien for purposes of U.S. income taxation.	
 	 	 	 	 	
 	 	 	 	My U.S. taxpayer identification number (Social Security Number) is                      .	
 	 	 	 	 	
 	 	 	 	My home address is                       .	
 	B.	 	Partnership, Corporation or Other Interestholder	
 	1.	 	                   . is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Code and Treasury Regulations).	
 	2.	 	                  . is not a disregarded entity as defined in Section 1.1445-2(b)(2)(iii) of the Treasury Regulations.	
 	 	2.	 	The interestholder’s U.S. employer identification number is               .	
 	3.	 	The interestholder’s office address and place of incorporation (if applicable) is                   (incorporated in                 .	
 
The interestholder agrees to notify the Partnership within sixty (60) days of the date the interestholder becomes a foreign person.
 
The interestholder understands that this certificate may be disclosed to the Internal Revenue Service by the Partnership and that any false statement contained herein could be punishable by fine, imprisonment or both.
 
[The remainder of this page is intentionally left blank]

 
Under penalties of perjury, I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct and complete and, if applicable, I further declare that I have authority to sign this document on behalf of:
 
Date:                , 2016

 	By:	 	
 	 	Name:	
 	 	Title:	
 
Note: If the Assignee is a broker, dealer, bank, trust company, clearing corporation, other nominee holder or an agent of any of the foregoing, and is holding for the account of any other person, this application should be completed by an officer thereof or, in the case of a broker or dealer, by a registered representative who is a member of a registered national securities exchange or a member of the National Association of Securities Dealers, Inc., or, in the case of any other nominee holder, a person performing a similar function. If the Assignee is a broker, dealer, bank, trust company, clearing corporation, other nominee owner or an agent of any of the foregoing, the above certification as to any person for whom the signee will hold the Units shall be made to the best of the Assignee’s knowledge.
 
[The remainder of this page is intentionally left blank.]

 

Acknowledged by:	 	
 	 	
AMERICAN MIDSTREAM PARTNERS, LP	 	
 	 	
By: American Midstream GP, LLC	 	
Its: General Partner	 	

Name:	Daniel C. Campbell	 	
Title:	Senior Vice President and Chief Financial Officer	 	

 
Exhibit B — Form of Warrant
 
THIS WARRANT HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE (THE “STATE LAWS”).  THIS WARRANT MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF, IN WHOLE OR IN PART, IN THE ABSENCE OF SUCH REGISTRATION OR QUALIFICATION OR THE AVAILABILITY OF AN APPLICABLE EXEMPTION FROM THE REGISTRATION AND QUALIFICATION REQUIREMENTS OF SUCH ACT AND STATE LAWS EVIDENCED BY AN OPINION OF LEGAL COUNSEL, WHICH OPINION AND LEGAL COUNSEL ARE SATISFACTORY TO THE PARTNERSHIP.
 
FORM OF WARRANT TO PURCHASE COMMON UNITS OF
 
AMERICAN MIDSTREAM PARTNERS, LP
 
This Warrant certifies that, for value received, Magnolia Infrastructure Holdings, LLC, or its registered assigns (collectively, the “ Holder ”), is entitled to purchase from American Midstream Partners, LP, a Delaware limited partnership (the “ Partnership ”), up to 800,000 common units representing limited partner interests in the Partnership (the “ Common Units ”), subject to adjustment as set forth herein, for an exercise price of $7.25 per Common Unit (the “ Exercise Price ”). This Warrant shall be exercisable after the date hereof and on or before the seventh anniversary of the date hereof (the “ Exercise Period ”).
 
As used herein, the term “ Warrant Exercised Units ” refers to the Common Units issuable upon exercise of this Warrant.  Terms used but not defined in this Warrant are defined in the Fifth Amended and Restated Agreement of Limited Partnership of the Partnership dated April 25, 2016 (the “ Fifth A/R Partnership Agreement ”).
 
This Warrant, together with all warrants issued upon transfer, exchange or in replacement hereof pursuant to Section 4 (collectively, the “ Warrants ”), is subject to the following additional terms, provisions and conditions:
 
Section 1.                                            Manner of Exercise; Issuance of Certificates; Payment for Warrant Exercised Units .  Subject to the provisions hereof, this Warrant may be exercised by the Holder, in whole or in part, during the Exercise Period by the surrender of this Warrant, together with a completed Exercise Agreement in the form attached hereto, to the Partnership during normal business hours on any Business Day at the Partnership’s office in Denver, Colorado (or such other office or agency of the Partnership as it may designate by notice to the Holder).
 
On a net unit settlement basis, the Warrant Exercised Units shall be deemed to be issued to the Holder or its designees as the record owner of such Common Units as of the close of business on the date or dates on which this Warrant shall have been surrendered and the completed Exercise Agreement delivered (the “ Exercise Date ”).
 
The Warrant Exercised Units deemed to be issued on the Exercise Date (which in no event will be less than zero) (the “ Net Unit Amount ”) shall equal (i) the number of Common Units with respect to which the Holder is exercising purchase rights as specified in the Exercise Agreement, multiplied by (ii) the Closing Sale Price (as defined below) on the relevant Exercise Date, minus the Exercise Price, divided by (iii) the arithmetic average of the daily VWAP (as defined below) for the ten (10) consecutive trading days ending on the Exercise Date, provided that any fractional units will be rounded up or down to the nearest whole Common Unit.
 
As used herein, the term “ VWAP ”means the dollar volume-weighted average price for the Common Units on the New York Stock Exchange during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg L.P. through its “Volume at Price” function or, if the foregoing does not apply, the dollar volume-weighted average price of the Common Units in the over-the-counter market on the electronic bulletin board for the Common Units during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg L.P., or, if no dollar volume weighted average price is reported for the Common Units by Bloomberg L.P. for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for the Common Units as reported in the OTC Link or “pink

 
sheets” by OTC Markets Group Inc. (formerly Pink OTC Markets Inc.). If the VWAP cannot be calculated for the Common Units on a particular date on any of the foregoing bases, the VWAP of the Common Units on such date shall be the fair market value as mutually determined by the Partnership and the Holder.
 
Section 2.                                            Certain Actions Prohibited .  The Partnership will not, by amendment of the Fifth A/R Partnership Agreement or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but will at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Holder of this Warrant in order to protect the exercise privilege of the Holder of this Warrant against dilution or other impairment, consistent with the tenor and purpose of this Warrant.
 
Section 3.                                            Anti-Dilution Provisions and Other Adjustments . The number and kind of securities purchasable upon the exercise of this Warrant and the Exercise Price shall be subject to adjustment, from time to time, as follows:
 
(a)                                  Consolidation or Merger .  If, at any time while this Warrant remains outstanding and unexpired, the Partnership shall (i) consolidate or merge with any other entity (regardless of whether the Partnership is the continuing or surviving entity, except that in connection with a consolidation or merger where the Partnership is not the continuing or surviving entity, the Common Units shall be changed into or exchanged for units, stock or other securities of the surviving entity or cash or any other property), (ii) transfer all or substantially all of its properties or assets to any other person or entity or (iii) effect a capital reorganization or reclassification of the Common Units, the Partnership, or such successor entity as the case may be, shall, without payment of any additional consideration therefor, execute a new warrant providing that the Holder shall have the right to exercise such new warrant (upon terms no less favorable to the Holder than those applicable to this Warrant and subject to the same Exercise Period that is applicable to this Warrant) and to receive upon such exercise, in lieu of each Common Unit theretofore issuable upon exercise of this Warrant, the kind and amount of units, shares of stock or other securities, money or property receivable upon such capital reorganization, reclassification, change, consolidation, merger or sale or conveyance by the holder of one Common Unit issuable upon exercise of this Warrant had it been exercised immediately prior to such capital reorganization, reclassification, change, consolidation, merger or sale or conveyance.  The provisions of this Section 3(a)  shall similarly apply to successive capital reorganizations, reclassifications, changes, consolidations, mergers, sales and conveyances.
 
(b)                                  Dividends and Distributions in Common Units .  If the Partnership shall pay or make a dividend or other distribution on its Common Units in additional Common Units, the Exercise Price in effect at the opening of business on the day following the date fixed for the determination of unitholders entitled to receive such dividend or other distribution (the “ Determination Date ”) shall be reduced by multiplying such Exercise Price by a fraction, (i) the numerator of which shall be the number of Common Units outstanding as of the close of business on the Determination Date and (ii) the denominator of which shall be the sum of (x) the number of Common Units outstanding at the close of business on the Determination Date and (y) the total number of Common Units constituting such dividend or other distribution.  Such reduction shall become effective immediately after the opening of business on the day following the Determination Date.  For the purposes of this Section 3(b) , the number of Common Units at any time outstanding shall not include Common Units held in the treasury of the Partnership.  The Partnership will not pay any dividend or make any distribution on Common Units held in the treasury of the Partnership.
 
(c)                                   Unit Splits or Combinations .  In case the outstanding Common Units shall be subdivided into a greater number of Common Units, the Exercise Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be reduced, and, conversely, in case the outstanding Common Units shall each be combined into a smaller number of Common Units, the Exercise Price in effect at the opening of business on the day following the date upon which such combination becomes effective shall be increased, in each case, to equal the product of the Exercise Price in effect on such date and a fraction, (i) the numerator of which shall be the number of Common Units outstanding immediately prior to such subdivision or combination, as applicable, and (ii) the denominator of which shall be the number of Common Units outstanding immediately after such subdivision or combination,
 
2 

 
as applicable.  Such reduction or increase, as applicable, shall become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective (the “ Alteration Date ”).
 
(d)                                  Reclassifications .  The reclassification or change of Common Units (other than any reclassification upon a consolidation or merger to which Section 3(a)  shall apply) into securities, including securities other than Common Units, shall be deemed to involve (i) a distribution of such securities other than Common Units to all holders of Common Units (and the effective date of such reclassification shall be deemed to be the Determination Date within the meaning of Section 3(b) ), and (ii) a subdivision or combination, as applicable, of the number of Common Units outstanding immediately prior to such reclassification into the number of Common Units outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be the Alteration Date within the meaning of Section 3(c) ).
 
(e)                                   Adjustment of Number of Units .  Upon each adjustment in the Exercise Price pursuant to Section 3.1(a)-(d) , the number of Common Units purchasable hereunder at the Exercise Price shall be adjusted, to the nearest whole Common Unit, to the product obtained by multiplying such number of Common Units purchasable immediately prior to such adjustment in the Exercise Price by a fraction, (i) the numerator of which shall be the Exercise Price immediately prior to such adjustment and (ii) the denominator of which shall be the Exercise Price immediately thereafter.
 
(f)                                    Increase in Warrant Exercised Units .  On the first anniversary of the date hereof, the number of Common Units purchasable hereunder at the Exercise Price shall be adjusted, to the nearest whole Common Unit, to the product obtained by performing the following calculation:
 
(i) 400,000 multiplied by (ii) (A) the Series C Issue Price multiplied by the number of Series C Preferred Units then outstanding less $45,000,000 divided by (B) the Series C Issue Price multiplied by the number of Series C Preferred Units issued less $45,000,000.
 
(g)                                   PIK Units .  Each issuance of the Series C PIK Preferred Units will result in an increase in the number of Warrant Exercised Units (to the nearest whole Common Unit) to the number that is equal to the product obtained by performing the following calculation:
 
(i) The total number of Warrant Exercised Units immediately before the most recent issuance of Series C PIK Preferred Units multiplied by (ii) (A) the total number of outstanding Series C Preferred Units immediately after the most recent issuance of Series C PIK Preferred Units divided by (B) the total number of outstanding Series C Preferred Units immediately before the most recent issuance of Series C PIK Preferred Units.
 
(h)                                  Other Provisions Applicable to Adjustments Under This Section .  The following provisions will be applicable to the making of adjustments in the Exercise Price provided in this Section 3 :
 
(i)                                      No adjustment in the Exercise Price need be made under Section 3(b)  if the Partnership issues or distributes (or holds in a segregated manner pending exercise of this Warrant into Common Units and upon such exercise distributes) to the Holder the Common Units, evidences of indebtedness, assets, rights, options or warrants referred to in those paragraphs that such Holder would have been entitled to receive had this Warrant been exercised for Common Units prior to the happening of such event or the record date with respect thereto.
 
(ii)                                   All calculations under this Section 3 shall be made to the nearest 1/100th of a cent or to the nearest whole Common Unit, as applicable.  No adjustment in the Exercise Price shall be required unless such adjustment (plus any adjustments not previously made by reason of this Section 3(h)(ii) ) would require an increase or decrease of at least 1% in such Exercise Price.
 
(i)                                      Notice to the Holder .  The Partnership will deliver to the Holder written notice, at the same time and in the same manner that it is required to give such notice under the Fifth A/R Partnership
 
3 

 
Agreement of any event or transaction potentially giving rise to an adjustment or modification of the terms and provisions of the Warrant Exercised Units.  The Partnership will take all steps reasonably necessary in order to insure that the Holder is able to exercise this Warrant prior to the time of such event or transaction so as to participate in or vote with respect to such event or transaction.
 
Section 4.                                            Transfer, Exchange and Replacement of Warrant; Representations and Covenants .
 
(a)                                  Warrant Transferable .  The Holder of this Warrant may transfer and assign it to any Affiliate, provided that such party is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “ Securities Act ”), as presently in effect. The Holder of this Warrant may not transfer and assign it to any other person without the prior written consent of the Partnership, which consent shall not be unreasonably withheld.  The permitted or approved transfer of this Warrant and all rights hereunder, in whole or in part, is registrable at the office or agency of the Partnership referred to in Section 5 by the Holder in person or by his duly authorized attorney, upon surrender of this Warrant properly endorsed. Upon any permitted or approved transfer of this Warrant to any person, other than a person who is at that time a holder of other Warrants, the Partnership shall have the right to require the Holder and the transferee to make customary representations to the extent reasonably necessary to assure that the transfer will comply with the Securities Act and any applicable state securities laws.  The Holder of this Warrant, by taking or holding the same, consents and agrees that this Warrant, when endorsed in blank, shall be deemed negotiable, and that the Holder, when this Warrant shall have been so endorsed, may be treated by the Partnership and all other persons dealing with this Warrant as the absolute owner and holder for any purpose and as the person entitled to exercise the rights represented by this Warrant and to the registration of transfer hereof on the books of the Partnership; but until due presentment for registration of transfer on such books the Partnership may treat the registered Holder as the owner and holder of this Warrant for all purposes, and the Partnership shall not be affected by any notice to the contrary.
 
(b)                                  Warrant Exchangeable for Different Denominations .  This Warrant is exchangeable, upon the surrender of this Warrant by the Holder at the office or agency of the Partnership referred to in Section 5 , for new warrants of like tenor representing in the aggregate the right to purchase the number of Common Units that may be purchased hereunder, each of such new warrants to be imprinted with the same legend appearing on the face of this Warrant and to represent the right to purchase such number of Common Units as shall be designated by the Holder at the time of such surrender.
 
(c)                                   Replacement of Warrant .  Upon receipt of evidence reasonably satisfactory to the Partnership of the loss, theft, destruction, or mutilation of this Warrant and, in the case of any such loss, theft, or destruction, upon delivery of an indemnity agreement reasonably satisfactory in form and amount to the Partnership, or, in the case of any such mutilation, upon surrender and cancellation of this Warrant, the Partnership, at its expense, will execute and deliver, in lieu thereof, a new warrant of like tenor.
 
(d)                                  Cancellation; Payment of Expenses .  Upon the surrender of this Warrant in connection with any transfer, exchange, or replacement as provided in Section 4(c) , this Warrant shall be promptly cancelled by the Partnership.  The Partnership shall pay all taxes (other than securities transfer taxes) and all other expenses and charges payable in connection with the preparation, execution and delivery of Warrants pursuant to this Section 4 .
 
(e)                                   Register .  The Partnership shall maintain, at its office in Denver, Colorado (or such other office or agency of the Partnership as it may designate by notice to the Holder), a register for this Warrant, in which the Partnership shall record the name and address of the person in whose name this Warrant has been issued, as well as the name and address of each transferee and each prior owner of this Warrant.
 
(f)                                    Representations and Covenants of the Partnership .  The Partnership represents and covenants that all Warrant Exercised Units will, when issued, be validly issued, fully paid and nonassessable (except to the extent such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act).  Upon the exercise of this Warrant, the issuance of the Warrant Exercised Units will not be subject to any preemptive or similar rights, other than pursuant to Section 5.8 of the Fifth A/R Partnership Agreement.
 
(g)                                   Representations and Covenants of the Holder .  The Holder is acquiring this Warrant and will acquire the Warrant Exercised Units for its own account, with no present intention of distributing or reselling this Warrant or
 
4 

 
the Warrant Exercised Units or any part thereof in violation of applicable securities laws.  The Holder acknowledges that this Warrant has not been, and when issued the Warrant Exercised Units will not be, registered under the Securities Act or the securities laws of any state in the United States or any other jurisdiction and may not be offered or sold by such Holder unless subsequently registered under the Securities Act (if applicable to the transaction) and any other securities laws or unless exemptions from the registration or other requirements of the Securities Act and any other securities laws are available for the transaction.  The Holder represents that it is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act, as presently in effect.
 
Section 5.                                            Notices .  All notices, requests, and other communications required or permitted to be given or delivered hereunder to the Holder of this Warrant shall be in writing, and shall be personally delivered, or shall be sent by certified or registered mail, postage prepaid, or by delivery service with proof of delivery, and addressed to the Holder at the address shown for the Holder on the books of the Partnership, or at such other address as shall have been furnished to the Partnership by notice from the Holder.  All notices, requests, and other communications required or permitted to be given or delivered hereunder to the Partnership shall be in writing, and shall be personally delivered, or shall be sent by certified or registered mail, postage prepaid, or by delivery service with proof of delivery, and addressed to the office of the Partnership at 1400 16 th  Street, Suite 310, Denver, Colorado 80202, Attention: General Counsel, or at such other address as shall have been furnished to the Holder of this Warrant by notice from the Partnership.  Any such notice, request, or other communication may be sent by facsimile but shall in such case be subsequently confirmed by a writing personally delivered or sent by certified or registered mail as provided above.  All notices, requests, and other communications shall be deemed to have been given either at the time of the delivery thereof to (or the receipt by, in the case of a facsimile) the person entitled to receive such notice at the address of such person for purposes of this Section 5 or, if mailed, at the completion of the third full day following the time of such mailing thereof to such address, as the case may be.
 
Section 6.                                            GOVERNING LAW .  THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY CHOICE OF LAW PRINCIPLES OF SUCH STATE.
 
Section 7.                                            Remedies .  The Partnership stipulates that the remedies at law of the Holder of this Warrant in the event of any default or threatened default by the Partnership in the performance of or compliance with any of the terms of this Warrant are not and will not be adequate, and that such terms may be specifically enforced by a decree for the specific enforcement of any agreement contained herein or by an injunction against a violation of any of the terms hereof or otherwise.
 
Section 8.                                            Miscellaneous .
 
(a)                                  Amendments .  This Warrant and any provision hereof may not be changed, waived, discharged, or terminated orally, but only by an instrument in writing signed by the party (or any predecessor in interest thereof) against which enforcement of the same is sought.
 
(b)                                  Descriptive Headings .  The descriptive headings of the several sections of this Warrant are inserted for purposes of reference only, and shall not affect the meaning or construction of any of the provisions hereof.
 
[Signature Page Follows]
 
5 

 
IN WITNESS WHEREOF, the Partnership has caused this Warrant to be signed by its duly authorized officer on this     day of April 2016.

 	AMERICAN MIDSTREAM PARTNERS, LP	
 	 	
 	By: American Midstream GP, LLC,	
 	Its: General Partner	

 	By:	 	
 	Name:	Daniel C. Campbell	
 	Title:	Senior Vice President and Chief Financial Officer	

 
FORM OF EXERCISE AGREEMENT
 
Dated:              

To:	American Midstream Partners, LP	
 	1400 16th Street, Suite 310	
 	Denver, CO 80202	
 
Attention:  General Counsel
 
The undersigned, Holder of the foregoing Warrant, hereby elects to exercise purchase rights represented thereby for, and to purchase thereunder,           Common Units covered by such Warrant pursuant to Section 1 of such Warrant and requests that book-entries evidencing such Common Units or certificates for such Common Units be issued in the name of, and delivered to                       .
 
The undersigned, Holder of the foregoing Warrant, is acquiring such Common Units for its own account, with no present intention of distributing or reselling such units or any part thereof in violation of applicable securities laws.  The Holder acknowledges that such units have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or the securities laws of any state in the United States or any other jurisdiction and may not be offered or sold by such Holder unless subsequently registered under the Securities Act (if applicable to the transaction) and any other securities laws or unless exemptions from the registration or other requirements of the Securities Act and any other securities laws are available for the transaction.  The Holder represents that it is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act.

 	Signature:	 	
 	Title of Signing Officer or Agent	
 	(if any):	 	
 	 	 	
 	Note:	The above signature should correspond exactly with the name on the face of the within Warrant or with the name of the assignee appearing in the assignment form.	

 
FORM OF ASSIGNMENT
 
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers all the rights represented by and under the within Warrant, with respect to the number of Common Units covered thereby set forth below, to:

Name of Assignee	 	Address	 	No. of Common Units	

 	 	 	 	 	
 
The undersigned hereby irrevocably constitutes and appoints                     as agent and attorney-in-fact to transfer said Warrant on the books of the within-named Partnership, with full power of substitution in the premises.
 
Dated:                   ,          

In the presence of	 	 	

 	Name:	 	
 	 	 	
 	Signature:	 	
 	Title of Signing Officer or Agent	
 	(if any):	 	
 	Address:	 	

 	 	 	
 	Note:	The above signature should correspond exactly with the name on the face of the within Warrant.	

2 

Exhibit 10.2
 
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND FIRST AMENDMENT TO AMENDED AND RESTATED GUARANTY AND COLLATERAL AGREEMENT
 
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND FIRST AMENDMENT TO AMENDED AND RESTATED GUARANTY AND COLLATERAL AGREEMENT (this “ Amendment ”) dated as of April 25, 2016, is by and among AMERICAN MIDSTREAM, LLC , a Delaware limited liability company (the “ AMID Borrower ”), BLACKWATER INVESTMENTS, INC. , a Delaware corporation (the “ Blackwater Borrower ” and together with the AMID Borrower, the “ Borrowers ”), AMERICAN MIDSTREAM PARTNERS, LP , a Delaware limited partnership (“ Parent ”), the other Loan Parties party hereto, BANK OF AMERICA, N.A. , as administrative agent (in such capacity, together with its successors in such capacity, the “ Administrative Agent ”) for the lenders party to the Credit Agreement referred to below (the “ Lenders ”), and the Lenders party hereto.
 
R E C I T A L S
 
A.                                     The Borrowers, Parent, the Lenders, the Administrative Agent and the other agents referred to therein are parties to that certain Amended and Restated Credit Agreement dated as of September 5, 2014, as amended by that certain First Amendment and Incremental Commitment Agreement dated as of September 18, 2015 (the “ Credit Agreement ”), pursuant to which the Lenders have made certain Loans and provided certain Commitments (subject to the terms and conditions thereof) to the Borrowers.
 
B.                                     In connection with the Credit Agreement, the Borrowers and the other Guarantors entered into that certain Amended and Restated Guaranty and Collateral Agreement dated as of September 5, 2014 (the “ Security Agreement ”), pursuant to which the Guarantors have provided Liens and security interests in respect of certain of their assets to secure the obligations of the Borrowers under the Credit Agreement.
 
C.                                     American Midstream Emerald, LLC, a Delaware limited liability company (the “ Emerald Buyer ”), a newly formed direct wholly-owned subsidiary of the AMID Borrower, as buyer, and Emerald Midstream, LLC, a Delaware limited liability company, as seller, have entered into (1) a Purchase and Sale Agreement (the “ Emerald PSA I ”) dated as of April 25, 2016 pursuant to which the Emerald Buyer has agreed to purchase (i) a 49.67% ownership interest in Destin Pipeline Company, L.L.C., a Delaware limited liability company (“ Destin ”);  (ii) a 16.67% ownership interest in Tri-States NGL Pipeline, L.L.C., a Delaware limited liability company (“ Tri-States ”); and (iii) a 25.30% ownership interest in Wilprise Pipeline Company, L.L.C., a Delaware limited liability company (“ Wilprise ”); and (2) a Purchase and Sale Agreement (the “ Emerald PSA II ” and together with the Emerald PSA I, the “ Emerald PSAs ”) pursuant to which the Emerald Buyer has agreed to purchase a 66.67% ownership interest in Okeanos Gas Gathering Company, LLC, a Delaware limited liability company (“ Okeanos ”) (such acquisitions collectively, the “ Emerald Acquisition ”).
 
D.                                     American Midstream AMPAN, LLC, a Delaware limited liability company (the “ AMP Panther ”), a newly formed direct wholly owned subsidiary of the AMID Borrower, holds
 
1 

 
60% of the Equity Interests in American Panther, LLC, a Delaware limited liability company (the “ American Panther ”). American Panther, as Buyer, has entered into that certain Asset Sale and Purchase Agreement (the “ Panther PSA ”), effective as of August 1, 2015, with Chevron Pipe Line Company, a Delaware corporation and Chevron Midstream Pipelines LLC, a Delaware limited liability company, as Sellers, resulting in, upon the consummation of the transactions in the Panther PSA, the acquisition of 194 miles of crude, natural gas and salt water pipelines in the Gulf of Mexico and certain associated assets more particularly described in the Panther PSA (the acquisition contemplated by the Panther PSA, the “ Panther Acquisition ,” and together with the Emerald Acquisition, the “ Offshore Acquisition ”).
 
E.                                      In connection with the Offshore Acquisition, the Borrowers have requested that the Credit Agreement be amended to permit the Offshore Acquisition and to make certain other changes as more fully described herein.
 
F.                                       The Lenders signatory hereto and the Administrative Agent are willing to amend the Credit Agreement as more fully described herein, and upon satisfaction of the conditions set forth herein, this Amendment shall become effective.
 
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
 
Section 1.                                           Defined Terms .  Each capitalized term used herein but not otherwise defined herein has the meaning given such term in the Credit Agreement.  Unless otherwise indicated, all article, schedule, exhibit and section references in this Amendment refer to articles and sections of the Credit Agreement.
 
1.1                                Amendments to Section 1.01 (Defined Terms) of the Credit Agreement .
 
(a)                                  The definition of “ Agreement ” is hereby amended by adding the words “and by the Second Amendment” after the words “, as amended by the First Amendment.”
 
(b)                                  The definition of “ Consolidated EBITDA ” is hereby amended by (i) replacing the words “, except with respect to the acquisition contemplated by the Delta House PSA which shall instead be subject to the penultimate sentence hereof,” after the first occurrence of the words “ provided that” therein with the words “, except with respect to (x) the acquisition contemplated by the Delta House PSA and (y) for purposes of calculating Consolidated EBITDA for each period of four fiscal quarters ending on each of March 31, 2016 and June 30, 2016 only, any additional investment in Delta House made in accordance with Section 7.02(n)(ii), each of which shall instead be subject to the penultimate sentence hereof”, (ii) replacing the penultimate sentence thereof with the following sentence:
 
With respect to each period of four fiscal quarters ending on each of June 30, 2015, September 30, 2015, December 31, 2015, March 31, 2016 and June 30, 2016, notwithstanding anything else herein to the contrary, Consolidated EBITDA in respect of Delta House Buyer shall be deemed to be (a) with respect to each period of four fiscal quarters ending on each of June 30, 2015 and September 30, 3015, $37,300,000, (b) with respect to the
 
2 

 
period of four fiscal quarters ending December 31, 2015, the aggregate amount of cash distributions received by Delta House Buyer from the Consolidated Net Income of Delta House Sub and attributable to Delta House during the most recently ended fiscal quarter multiplied by four, (c) with respect to the period of four fiscal quarters ending March 31, 2016, the aggregate amount of cash distributions received by Delta House Buyer from the Consolidated Net Income of Delta House Sub and attributable to Delta House during the two most recently ended fiscal quarters (after giving pro forma effect to any additional Equity Interests in Delta House Sub or any other ownership interest in Delta House, acquired (whether directly or indirectly) in each case since the Second Amendment Effective Date in accordance with Section 7.02(n)(ii)) multiplied by two, and (d) with respect to the period of four fiscal quarters ending June 30, 2016, the aggregate amount of cash distributions received by Delta House Buyer from the Consolidated Net Income of Delta House Sub and attributable to Delta House during the three most recently ended fiscal quarters (after giving pro forma effect to any additional Equity Interests in Delta House Sub or any other ownership interest in Delta House, acquired (whether directly or indirectly) in each case since the Second Amendment Effective Date in accordance with Section 7.02(n)(ii)) multiplied by 4/3.
 
and (iii) replacing clause (y) of the last sentence thereof as follows:
 
(y) Consolidated EBITDA shall be deemed to exclude the effect of any one-time non-recurring fees and expenses of Parent and its Subsidiaries incurred in connection with (1) the Existing Credit Agreement, (2) the 2013 Acquisition Transactions, (3) the 2013 Blackwater Transaction, (4) costs and expenses incurred by the Borrower in connection with the relocation of its chief executive offices, as determined in good faith by the Borrower in a manner satisfactory to the Administrative Agent in its reasonable discretion, and (5) Permitted Acquisitions and any amendments to this Agreement in connection therewith; provided that such exclusion of fees and expenses pursuant to clauses (4) and (5) may not exceed 10% of Consolidated EBITDA for the period of the most recent four fiscal quarters then ended (calculated without regard to such exclusions).
 
(c)                                   The definition of “ Consolidated Net Income ” is hereby amended by amending and restating clause (d) thereof as follows:
 
(d) any income (or loss) of any Person if such Person is not a Subsidiary, except that Parent’s equity in the Consolidated Net Income of any such Person (including but not limited to DCP MPOG and, for so long as they are non-wholly owned subsidiaries of Parent, EnerTrade, American Panther, Destin, and Okeanos and for so long as the Midla Natchez Lateral Debt is outstanding, Midla Financing, Midla and MLGT) shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person to Parent or a Subsidiary as a dividend or other
 
3 

 
distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to Parent as described in clause (c) of this proviso)
 
(d)                                  The definition of “ Consolidated Total Indebtedness ” is hereby amended and restated in its entirety as follows:
 
“ Consolidated Total Indebtedness ” means, as of any date of determination, an amount equal to the sum of all Indebtedness of Parent and its Subsidiaries (on a consolidated basis); provided , that Consolidated Total Indebtedness shall not include (a) the Convertible Preferred Units, (b) the Midla Natchez Lateral Debt or (c) the Transmission Bond, the Chevron Performance Bond and other unsecured surety bonds contemplated by Section 7.03(m)  to the extent undrawn.
 
(e)                                   The definition of “ Defaulting Lender ” is hereby amended by (i) deleting the word “or” immediately before clause (iii) of clause (d) thereof and (ii) inserting the following words “or (iv) become the subject of a Bail-in Action” immediately before the words “; provided that” at the end thereof.
 
(f)                                    The definition of “ Excluded Property ” is hereby amended and restated in its entirety as follows:
 
“ Excluded Property ” means (i) the Excluded Seacrest Assets, (ii) such interests owned by Blackwater Holdings or the Blackwater Subsidiaries as of the Closing Date with respect to the terminals located in Brunswick, Georgia and Salisbury, Maryland and reasonable expansions thereof, (iii) for so long as the Midla Natchez Lateral Debt is outstanding and is secured by such Equity Interests, Equity Interests in Midla Financing, Midla and MLGT, and (iv) Equity Interests in any Person (other than Loan Parties) to the extent a grant of a Lien in respect thereof under the Security Documents is not permitted by the terms of such Person’s organizational or joint venture documents, in each case solely to the extent that the applicable Loan Party (y) has previously used commercially reasonable efforts to obtain any required consents to eliminate or waive any such restrictions contained in such organizational or joint venture documents and (z) has not, and will not, directly or indirectly, create, assume, incur or suffer to exist any Lien on or with respect to such Equity Interests, other than Liens permitted under Section 7.01 .
 
(g)                                   The definition of “ Permitted Acquisition ” is hereby amended and restated in its entirety as follows:
 
“ Permitted Acquisition ” means each of (a) the Offshore Acquisition and (b) each purchase and other acquisition made pursuant to Section 7.02(g) .
 
4 

 
(h)                                  The definition of “ Specified Acquisition Period ” is hereby amended by amending and restating in its entirety as follows:
 
“ Specified Acquisition Period ” means a period, elected by the AMID Borrower by notice to the Administrative Agent, that commences from the funding date of the purchase price of a Specified Acquisition and ending on the earliest of (a) the third quarterly testing date occurring after the consummation of the Specified Acquisition (b) the date designated by the AMID Borrower as the termination date of such Specified Acquisition Period, such election to be exercised by the AMID Borrower delivering notice thereof to the Administrative Agent; or (c) other than with respect to the Specified Acquisition Period elected for the acquisition of Delta House, the quarterly testing date on which the AMID Borrower is in compliance with Section 7.19 , such compliance to be determined as if such period was not a Specified Acquisition Period; provided , following the election of a Specified Acquisition Period, the AMID Borrower may not elect a subsequent Specified Acquisition Period until (i) the termination of such Specified Acquisition Period then in effect and (ii) the Borrower has delivered at least one Compliance Certificate reflecting compliance with Section 7.19 with respect to a period of four fiscal quarters ending after the expiration of the last Specified Acquisition Period. Only one Specified Acquisition Period may be elected (or deemed elected) with respect to any particular Specified Acquisition.
 
(i)                                      The definition of “ Subsidiary ” is hereby amended by amending and restating the clause following the words “ provided , however ,” in its entirety as follows:
 
(i) DCP MPOG, (ii) for so long as the Midla Natchez Lateral Debt is outstanding, Midla Financing, Midla and MLGT, and, (iii) for so long as such entities are non-wholly owned subsidiaries of Parent, American Panther, Destin, Okeanos and EnerTrade, shall each be deemed not to be a Subsidiary for purposes of this Agreement and the other Loan Documents.
 
(j)                                     The following definitions are hereby added to Section 1.01 of the Credit Agreement where alphabetically appropriate:
 
“ American Panther ” means American Panther, LLC, a Delaware limited liability company.
 
“ AMP Panther ” means American Midstream AMPAN, LLC, a Delaware limited liability company.
 
“ Bail-In Action ” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
 
“ Bail-In Legislation ” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the
 
5 

 
European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
 
“ Chevron Performance Bond ” means that certain Performance Bond in the amount of $10,000,000 dated April 15, 2016 by and among American Panther, LLC, as principal, Aspen American Insurance Company, as surety, and Chevron Pipe Line Company and Chevron Midstream Pipelines LLC, as obligees, to provide support for certain contractual obligations of American Panther, LLC to Chevron Pipe Line Company and Chevron Midstream Pipelines LLC.
 
“ Destin ” means Destin Pipeline Company, LLC, a Delaware limited liability company.
 
“ EEA Financial Institution ” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
 
“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
 
“ EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
 
“ Emerald Buyer ” means American Midstream Emerald, LLC, a Delaware limited liability company.
 
“ Emerald PSA I ” means that Purchase and Sale Agreement, by and between Emerald Buyer, as buyer, and Emerald Midstream, LLC, as seller, dated as of April 25, 2016, pursuant to which the Emerald Buyer has agreed to purchase (i) a 49.67% ownership interest in Destin,  (ii) a 16.67% ownership interest in Tri-States, and (iii) a 25.30% ownership interest in Wilprise.
 
“ Emerald PSA II ” means that Purchase and Sale Agreement, by and between Emerald Buyer, as buyer, and Emerald Midstream, LLC, as seller, pursuant to which the Emerald Buyer has agreed to purchase a 66.67% ownership interest in Okeanos.
 
6 

 
“ Emerald PSAs ” means the Emerald PSA I and the Emerald PSA II.
 
“ EU Bail-In Legislation Schedule ” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
 
“ Midla ” means American Midstream (Midla), LLC, a Delaware limited liability company.
 
“ Midla Financing ” means American Midstream Midla Financing, LLC.
 
“ Midla Natchez Lateral Project ” means the construction of the Natchez lateral off of the “Midla mainline” transportation system owned by Midla.
 
“ Midla Natchez Lateral Debt ” means Indebtedness of Midla Financing, Midla and/or MLGT issued or incurred with one or more commercial banks or other financial institutions to finance or facilitate the Midla Natchez Lateral Project which Indebtedness may be secured by, in whole or in part, the assets or property owned or used by Midla Financing, Midla and/or MLGT related to the Midla Natchez Lateral Project and/or the Equity Interests in Midla Financing, Midla and/or MLGT; provided that, for the avoidance of doubt, the “Midla Natchez Lateral Debt” shall in all cases, except with respect to such Equity Interests in Midla Financing, Midla and/or MLGT, be non-recourse to the Loan Parties.
 
“ MLGT ” means Mid Louisiana Gas Transmission, LLC, a Delaware limited liability company.
 
“ Non-Wholly Owned Person ” means any Person (regardless of whether such Person otherwise constitutes a Subsidiary) that is owned jointly by the Parent (or any of its subsidiaries) and one or more Persons other than the Parent and its subsidiaries; provided that none of DCP MPOG, EnerTrade or Delta House Sub shall constitute a Non-Wholly Owned Person for purposes of this Agreement.
 
“ Offshore Acquisition ” means, collectively, the acquisitions contemplated by each of the Emerald PSAs and the Panther PSA.
 
“ Okeanos ” means Okeanos Gas Gathering Company, LLC, a Delaware limited liability company.
 
“ Panther PSA ” means that Asset Sale and Purchase Agreement dated as of August 1, 2015, by and among American Panther, LLC, a Delaware limited liability company, as buyer, Chevron Pipe Line
 
7 

 
Company, a Delaware corporation and Chevron Midstream Pipelines LLC, a Delaware limited liability company, as sellers.
 
“ Second Amendment ” means the Second Amendment to Amended and Restated Credit Agreement, dated as of April 25, 2016, by and among the Parent, the Borrowers, the Administrative Agent and the Lenders party thereto.
 
“ Second Amendment Effective Date ” has the meaning specified in the Second Amendment.
 
“ Tri-States ” means Tri-States NGL Pipeline, L.L.C., a Delaware limited liability company.
 
“ Wilprise ” means Wilprise Pipeline Company, L.L.C., a Delaware limited liability company.
 
“ Write-Down and Conversion Powers ” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
 
1.2                                Addition of new Section 5.25 (EEA Financial Institutions) to the Credit Agreement .  A new Section 5.25 is hereby added to Article V as follows:
 
5.25  EEA Financial Institutions . No Loan Party is an EEA Financial Institution.
 
1.3                                Amendments to Section 7.02 (Investments) of the Credit Agreement .
 
(a)                                  Section 7.02 is hereby amended by replacing subsection (c) thereof with the following new subsection (c):
 
(c)                                   Investments of (i) Parent in the AMID Borrower and Finance Co (subject to the limitations on the activities of Finance Co set forth in the definition thereof), (ii) either of the Borrowers in any wholly-owned Subsidiary that is a Guarantor, and (iii) any wholly-owned Subsidiary that is a Guarantor in either of the Borrowers or in another wholly-owned Subsidiary that is a Guarantor; provided , however, that clauses (ii) and (iii) shall not permit Investments in Burns Point Sub, Republic, Delta House Buyer, Emerald Buyer or AMP Panther, it being understood that Investments in Burns Point Sub may only be made pursuant to and to the extent permitted by Section 7.02(j) , Investments in Republic may only be made pursuant to and to the extent permitted by Section 7.02(j) , Investments in Delta House Buyer may only be made pursuant to and to the extent permitted by Section 7.02(n) , Investments in Emerald Buyer may only be made pursuant to and to the extent permitted by Section
 
8 

 
7.02(q)  or, for the avoidance of doubt, Section 7.02(j) , Investments in AMP Panther may only be made pursuant to and to the extent permitted by Section 7.02(r)  or, for the avoidance of doubt, Section 7.02(j)  and, for so long as the Midla Natchez Lateral Debt is outstanding, Investments in Midla Financing, Midla and MLGT may only be made pursuant to and to the extent permitted by Section 7.02(s) .
 
(b)                                  Section 7.02 is hereby amended by deleting the words “(each, a “ Permitted Acquisition ”)” in subsection (g) thereof.
 
(c)                                   Section 7.02 is hereby amended by replacing subsection (j) thereof with the following new subsection (j):
 
(j)                                     other Investments (it being understood that on and after the Second Amendment Effective Date, Investments made pursuant to this clause (j) prior to the Second Amendment Effective Date in connection with the acquisition contemplated by the Panther PSA shall be deemed made pursuant to Section 7.02(r) ) in an aggregate amount at any time outstanding not to exceed the greater of (i) $15,000,000 and (ii) 2.5% of Consolidated Net Tangible Assets; provided that no Default or Event of Default shall have occurred and be continuing or shall result from the making of such Investment;
 
(d)                                  Section 7.02 is hereby amended by replacing subsection (m) thereof with the following new subsection (m):
 
(m)                              [Reserved];
 
(e)                                   Section 7.02 is hereby amended by replacing subsection (n) thereof with the following new subsection (n):
 
(n)                                  (i) Investments made in connection with the acquisition contemplated by the Delta House PSA and (ii) after the Second Amendment Effective Date, other Investments of cash or cash equivalents in Delta House not to exceed $50,000,000 in the aggregate for all such investments made pursuant to this Section 7.02(n)(ii) ;
 
(f)                                    Section 7.02 is hereby amended by (i) deleting the word “and” at the end of subsection (n) thereof, (ii) deleting the period at the end of subsection (o) thereof and (iii) inserting the following new subsections (p), (q), (r) and (s) at the end thereof as follows:
 
(p)                                  Investments in DCP MPOG made as of the Second Amendment Effective Date;
 
(q)                                  (i) Investments in each of Destin,  Tri-States and Wilprise pursuant to the Emerald PSA I and (ii) Investments in Okeanos made pursuant to and in accordance with applicable law and the Emerald PSA II (which shall be in form and substance reasonably satisfactory to the
 
9 

 
Administrative Agent) so long as such Investments are made within fourteen (14) calendar days of the Second Amendment Effective Date;
 
(r)                                     Investments made in connection with the acquisition contemplated by the Panther PSA; and
 
(s)                                    for so long as the Midla Natchez Lateral Debt is outstanding, (i) Investments in Midla Financing, Midla and MLGT made as of the Second Amendment Effective Date and (ii) other Investments in Midla Financing, Midla and MLGT in an aggregate amount not to exceed $15,000,000.
 
1.4                                Amendments to Section 7.03 (Indebtedness) of the Credit Agreement .
 
(a)                                  Section 7.03 is hereby amended by replacing subsection (m) thereof with the following new subsection (m):
 
(m)                              Indebtedness in respect of (i) the Transmission Bond, not to exceed $15,000,000 at any time outstanding, (ii) the Chevron Performance Bond, not to exceed $10,000,000 at any time outstanding, and (iii) any other unsecured additional or replacement bonds required to be posted by the Bureau of Ocean Energy Management.
 
(b)                                  Section 7.03 is hereby amended by (i) deleting the period at the end of subsection (p) thereof and replacing it with “; and” and (ii) inserting the following new subsection (q) at the end thereof as follows:
 
(q)      Midla Natchez Lateral Debt.
 
1.5                                Amendment to Section 7.06 (Restricted Payments) of the Credit Agreement .
 
(a)                                  Section 7.06 is hereby amended by restating subsections (c) thereof as follows:
 
(c)                                   Parent may purchase, redeem or otherwise acquire Equity Interests (including, without limitation, “Series A Convertible Preferred Units” issued pursuant to the Partnership Agreement) issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests (other than Disqualified Equity Interests); provided that, to the extent any such purchase, redemption, or acquisition, as applicable, of common Equity Interests is funded with the proceeds of an issuance of “Series A Convertible Preferred Units” or other preferred Equity Interests, such issuance of new shares of preferred Equity Interests shall be deemed to be substantially concurrent for purposes of this clause (c) so long as the purchase, redemption or acquisition, as applicable, of common Equity Interests occurs within 180 days of such issuance of preferred Equity Interest.
 
10 

 
1.6                                Addition of new Section 7.26 (Limitations on Non-Wholly Owned Persons) to the Credit Agreement .  A new Section 7.26 is hereby added to Article VII as follows:
 
7.26  Limitations on Non-Wholly Owned Persons . Notwithstanding anything to the contrary in this Agreement, and without limiting any restrictions on Subsidiaries of the Parent otherwise set forth in this Article VII , neither Parent nor AMID Borrower shall:
 
(a)                                  permit any Non-Wholly Owned Person to create, issue, incur, assume or permit to exist any Indebtedness or Disqualified Equity Interest;
 
(b)                                  permit any Non-Wholly Owned Person to create, incur, assume or permit to exist any Lien on any Property now owned or hereafter acquired by it, except Liens permitted by Section 7.01 or permit any Lien to exist on the Equity Interests of such Non-Wholly Owned Person other than pursuant to the Loan Documents; and
 
(c)                                   permit any Non-Wholly Owned Person to enter into, incur or permit to exist any Contractual Obligation that prohibits, restricts or imposes any condition on the ability of such any Non-Wholly Owned Person to make Restricted Payments with respect to any of its Equity Interests.
 
1.7                                Addition of new Section 10.21 (Acknowledgement and Consent to Bail-In of EEA Financial Institutions) to the Credit Agreement .  A new Section 10.21 is hereby added to Article X as follows:
 
10.21  Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
 
(a)                                  the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
 
(b)                                  the effects of any Bail-in Action on any such liability, including, if applicable:
 
(i)                                      a reduction in full or in part or cancellation of any such liability;
 
11 

 
(ii)                                   a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
 
(iii)                                the variation of the terms of such liability  in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
 
1.8                                Amendments to Section 1.01 (Definitions) of the Security Agreement .           The following definitions are hereby added to Section 1.01 of the Security Agreement where alphabetically appropriate:
 
“ JV LLC Agreements ” shall mean, collectively, the Tri-States Agreement and the Wilprise Agreement.
 
“ Tri-States Agreement ” shall mean that certain Limited Liability Company Agreement of Tri-States NGL Pipeline, L.L.C. dated January 13, 1999, as amended prior to the Second Amendment Effective Date.
 
“ Wilprise Agreement ” shall mean that certain Amended and Restated Limited Liability Company Agreement of Wilprise Pipeline Company, L.L.C. dated May 27, 1999, as amended prior to the Second Amendment Effective Date.
 
1.9                                Amendment to Section 3.01 (Grant of Security Interest) of the Security Agreement .     Section 3.01 of the Security Agreement is hereby amended by adding the following as the last sentence thereof:
 
Notwithstanding anything to the contrary, the Liens created hereby on Pledged Securities in respect of each of Tri-States and Wilprise shall be subject to, and the exercise of any remedies hereunder in respect of such Pledged Securities shall be taken in accordance with, the terms and conditions of the applicable JV LLC Agreement, including, without limitation, Articles XII and XIV of the applicable JV LLC Agreement.
 
1.10                         Amendment to Section 3.02 (Transfer of Pledged Securities) of the Security Agreement .   Section 3.02 of the Security Agreement is hereby amended by restating the third, fourth and fifth sentences thereof in their entirety as follows:
 
During the continuance of an Event of Default, after the expiration of any applicable cure period, the Collateral Agent shall have the right (subject, in the case of the Pledged Securities in respect of each of Tri-States and Wilprise, to the terms and conditions of the applicable JV LLC Agreement), at any time in its discretion and after prior written notice by
 
12 

 
the Collateral Agent of its intent to exercise the rights provided for in this section to the relevant Grantor or Grantors or Pledgor, to transfer to or to register in the name of the Collateral Agent, any Secured Party or any of its nominees any or all of the Pledged Securities. In addition, during the continuance of an Event of Default, the Collateral Agent shall have the right (subject, in the case of the Pledged Securities in respect of each of Tri-States and Wilprise, to the terms and conditions of the applicable JV LLC Agreement) at any time to exchange certificates or instruments representing or evidencing limited partnership interests or shares for certificates or instruments of smaller or larger denominations. Each of Pledgor and each of the Grantors hereunder agrees that upon the exercise of remedies in respect of the Pledged Securities (subject, in the case of the Pledged Securities in respect of each of Tri-States and Wilprise, to the terms and conditions of the applicable JV LLC Agreement), a transferee or assignee of a membership interest or partnership interest, as the case may be, of such Person, shall become a member or partner, as the case may be, of such Person, entitled to participate in the management thereof and, upon the transfer of the entire interest of Pledgor or such Grantor, as the case may be, Pledgor or such Grantor shall cease to be a member or partner, as the case may be.
 
1.11                         Amendment to Section 5.07 (Pledged Securities) of the Security Agreement .   Section 5.07 of the Security Agreement is hereby amended by restating the fourth and fifth sentences thereof in their entirety as follows:
 
Notwithstanding anything to the contrary in this Section 5.07 , other than as set forth in the JV LLC Agreements, there are no restrictions on transfer (that have not been waived or otherwise consented to) in the Organization Documents governing the Pledged Securities or any other agreement relating thereto which would limit or restrict (a) the grant of a security interest in the Pledged Securities; (b) the perfection of such security interest; or (c) the exercise of remedies in respect of such perfected security interest in the Pledged Securities; in each case, as contemplated by this Agreement. Upon the exercise of remedies in respect of the Pledged Securities (in the case of the Pledged Securities in respect of each of Tri-States and Wilprise, in accordance with the terms and conditions of the applicable JV LLC Agreement), a transferee or assignee of a membership interest or partnership interest, as the case may be, of such Person, shall become a member or partner, as the case may be, of such Person, entitled to participate in the management thereof and, upon the transfer of the entire interest of Pledgor or such Grantor, Pledgor or such Grantor shall cease to be a member or partner, as the case may be.
 
1.12                         Amendment to Section 6.05 (Pledged Securities) of the Security Agreement .   Section 6.05 of the Security Agreement is hereby amended by (a) inserting the words “and as set forth in the JV LLC Agreements” immediately after the words “the security interests created by this Agreement” in clause (iii) of Section 6.05(b) , (b) inserting the words “except as set forth in
 
13 

 
the JV LLC Agreements,” immediately before the words “enter into any agreement” in clause (iv) of Section 6.05(b) , (c) inserting the words “, or with respect to each of Destin, Tri-States and Wilprise, within forty-five (45) days of the Second Amendment Effective Date,” immediately after the word “promptly” in the last sentence of Section 6.05(c)  and (d) inserting the words “, or with respect to each of Destin, Tri-States and Wilprise, use commercially reasonable efforts to cause,” immediately after the word “cause” in the last sentence of Section 6.05(c) .
 
1.13                         Amendment to Section 7.01 (Pledged Securities) of the Security Agreement .   Section 7.01 of the Security Agreement is hereby amended by inserting the words “and, to the extent applicable, the terms and conditions of the JV LLC Agreements” immediately after the words “Article VIII of the Credit Agreement” in Section 7.01(b)  thereof.
 
Section 2.                                           Conditions Precedent .  This Amendment shall become effective on the date (the “ Second Amendment Effective Date ”) on which each of the following conditions is satisfied (or waived in accordance with Section 10.01 of the Credit Agreement):
 
2.1                                Amendment Counterparts .  The Administrative Agent shall have received executed counterparts (in such number as may be requested by the Administrative Agent) of this Amendment from the Administrative Agent, the Collateral Agent, the L/C Issuers, the Required Lenders and the Loan Parties.
 
2.2                                Corporate Documents .  The Administrative Agent shall have received (a) with respect to each of the Joinder Parties (defined below): (A) certificates of good standing as of a recent date issued by the appropriate Governmental Authority of the state or jurisdiction of its incorporation or organization, where applicable; (B) a certificate of the Secretary, Assistant Secretary or a Responsible Officer of AMID Borrower dated the Second Amendment Effective Date and certifying (1) that attached thereto are true and correct copies of the organizational documents of each such Joinder Party, (2) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or other governing body of the General Partner authorizing the execution, delivery and performance of this Amendment and any related Loan Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (3) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith; and (C) a certificate of another officer as to the incumbency and specimen signature of the Secretary, Assistant Secretary or such Responsible Officer executing the certificate pursuant to clause (B) above, and (b) true and correct copies of the organizational documents of each of Tri-States NGL Pipeline, L.L.C. and Wilprise Pipeline Company, L.L.C.
 
2.3                                Security Documents . The Collateral Agent shall have received (a) from Emerald Buyer, AMP Panther, American Midstream Terminaling, LLC, a Delaware limited liability company, American Midstream Piney Woods, LLC, a Delaware limited liability company, American Midstream Midla Financing, LLC, and American Midstream Midla Reconfiguration, LLC (collectively, the “ Joinder Parties ”) an executed counterpart of the Guaranty and Collateral Agreement or a joinder thereto in form and substance satisfactory to the Collateral Agent; (b) with respect to the Joinder Parties, (i) all necessary financing statements, (ii) all judgment, tax and lien searches reasonably requested by the Collateral Agent and (iii) all duly completed UCC-3 termination statements requested by the Collateral Agent with respect to any Liens reflected in
 
14 

 
such search results that are not permitted by the Credit Agreement; and (c) such supplements or amendments to the Security Documents and/or other deliverables as the Collateral Agent shall reasonably request in order for each applicable Loan Party to grant to the Collateral Agent for the benefit of the Secured Parties a first priority Lien of record on all of the Equity Interests in the Joinder Parties that constitute Collateral owned by such Loan Party, in each case, duly completed and executed (as applicable) in sufficient number of counterparts and in proper form for recording, if necessary, in form and substance satisfactory to the Collateral Agent.
 
2.4                                Approvals .  The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower Representative satisfactory to the Administrative Agent either (A) attaching copies of all consents, licenses and approvals required in connection with the Emerald Acquisition or Panther Acquisition, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required.
 
2.5                                Insurance .  The Administrative Agent shall have received, in form satisfactory to the Administrative Agent, evidence that all insurance required to be maintained pursuant to the Credit Agreement has been obtained and is in full force and effect, including certificates of insurance naming the Collateral Agent, on behalf of the Lenders, as loss payee and as an additional insured, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Joinder Parties that constitute Collateral.
 
2.6                                Legal Opinion . The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders party hereto and each L/C Issuer on the Second Amendment Effective Date, the favorable written opinion of Andrews Kurth LLP, special counsel to the Loan Parties, covering such matters relating to the Joinder Parties, this Amendment and the Loan Documents as the Administrative Agent shall reasonably request and in form and substance satisfactory to the Administrative Agent, dated as of the Second Amendment Effective Date.  The Borrowers hereby request such counsel to deliver such opinions.
 
2.7                                Patriot Act .  The Administrative Agent and each of the Lenders shall have received, at least five (5) Business Days prior to the Second Amendment Effective Date, and be reasonably satisfied in form and substance with, all documentation and other information with respect to the Joinder Parties required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including but not restricted to the USA Patriot Act and the Anti-Terrorism Laws.
 
2.8                                Corporate Structure . The Borrowers shall have delivered the necessary supplements to Schedule 5.13 of the Credit Agreement as required by Section 5.13 of the Credit Agreement.
 
2.9                                Consummation of the Offshore Acquisition .  Prior to or substantially simultaneously with the Second Amendment Effective Date, the Emerald Acquisition (other than the Investment in Okeanos contemplated by the Emerald PSA II) and Panther Acquisition will be consummated in accordance with applicable law and the terms of the Emerald PSA I and Panther PSA, as applicable, in all material respects.  The Administrative Agent shall have received full and complete copies of all material documents relating to the Panther Acquisition and the portion of the Emerald Acquisition to be consummated as of the Second Amendment Effective Date
 
15 

 
including an executed copy of the Emerald PSA I and Panther PSA which shall be in form and substance reasonably satisfactory to the Administrative Agent.
 
2.10                         Financial Information . The Administrative Agent shall have received (a) pro forma projected financial information regarding the Emerald Acquisition and Panther Acquisition, (b) audited financial statements with respect to each of Destin, Okeanos, Tri-States and Wilprise for the fiscal year ended December 31, 2014 and (c) such historical financial information with respect to the Panther Acquisition as shall be delivered to the Borrowers in connection with the Panther Acquisition, in each case, in form and substance reasonably satisfactory to the Administrative Agent.
 
2.11                         Equity Contribution . After March 31, 2016 and on or prior to the Second Amendment Effective Date, the AMID Borrower shall have received at least $115,000,000 in cash proceeds from the issuance or sale of Equity Interests in the form of common units or other qualified preferred equity of the Parent (in the case of qualified preferred equity, on terms reasonably satisfactory to the Administrative Agent), which net cash proceeds are applied, on the Second Amendment Effective Date, to finance in part the portion of the Offshore Acquisition to be consummated as of the Second Amendment Effective Date.
 
2.12                         Representations and Warranties; No Default; Pro Forma Compliance . The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower Representative certifying that as of the Second Amendment Effective Date (A) before and after giving effect to the portion of the Offshore Acquisition to be consummated as of the Second Amendment Effective Date, the representations and warranties contained in Article V of the Credit Agreement and the other Loan Documents are true and correct on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement; (B) no Default or Event of Default exists and is continuing; and (C) the financial covenants contained in Section 7.19 of the Credit Agreement are satisfied on a pro forma basis after giving effect to this Amendment and the portion of the Offshore Acquisition to be consummated as of the Second Amendment Effective Date.
 
2.13                         Fees . The Administrative Agent, on behalf of each of the Arrangers and each of the Lenders, shall have received all fees and other amounts due and payable on or prior to the Second Amendment Effective Date, including (A) to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrowers under the Credit Agreement and (B) all upfront fees payable for the account of the Lenders due and payable under the Fee Letter, dated as of April 12, 2016 (the “ Fee Letter ”), by and among the Borrowers, Parent, Bank of America, N.A. and Merrill Lynch, Pierce, Fenner & Smith Incorporated.
 
2.14                         Other Documents .  The Administrative Agent and the Collateral Agent shall have received such other documents as the Administrative Agent, the Collateral Agent or special counsel to the Administrative Agent or Collateral Agent may reasonably request.
 
16 

 
Section 3.                                           Miscellaneous .
 
3.1                                Confirmation .  The provisions of the Loan Documents, as amended by this Amendment, shall remain in full force and effect in accordance with their terms following the effectiveness of this Amendment.
 
3.2                                Ratification and Affirmation; Representations and Warranties .  Each of the undersigned does hereby adopt, ratify, and confirm each Loan Document to which it is a party, as amended hereby, and its obligations thereunder.  Each of the Loan Parties hereby (a) acknowledges, renews and extends its continued liability under, each Loan Document to which it is a party and agrees that each Loan Document to which it is a party remains in full force and effect, except as expressly amended hereby, notwithstanding the amendments contained herein and (b) represents and warrants to the Lenders that:  (i) as of the date hereof, after giving effect to the terms of this Amendment, all of the representations and warranties contained in each Loan Document to which it is a party are true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects), except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, such representations and warranties shall continue to be true and correct in all material respects (except for such representations and warranties that have a materiality or Material Adverse Effect qualification, which shall be true and correct in all respects) as of such specified earlier date as supplemented or subject to such qualifications as are set forth in the applicable Schedule(s) as of the Second Amendment Effective Date and (ii) (A) as of the date hereof, no Default has occurred and is continuing and (B) immediately after giving effect to this Amendment, no Default will have occurred and be continuing.
 
3.3                                Loan Document .  This Amendment and each agreement, instrument, certificate or document executed by the Borrowers or any of their respective officers in connection therewith are “Loan Documents” as defined and described in the Credit Agreement and all of the terms and provisions of the Loan Documents relating to other Loan Documents shall apply hereto and thereto.
 
3.4                                Counterparts .  This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument.  Delivery of this Amendment by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
 
3.5                                NO ORAL AGREEMENT .  THIS AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
 
3.6                                GOVERNING LAW .  THIS AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND ENFORCEABILITY HEREOF) SHALL BE
 
17 

 
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
3.7                                FATCA . For purposes of determining withholding Taxes imposed under FATCA, from and after the Second Amendment Effective Date, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Credit Agreement (as amended hereby) and the Loans as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
 
[signature pages follow]
 
18 

 
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first written above.

 	AMERICAN MIDSTREAM PARTNERS, LP ,	
 	 	By: American Midstream GP, LLC, its sole general partner	
 	AMERICAN MIDSTREAM, LLC ,	
 	AMERICAN MIDSTREAM FINANCE CORPORATION ,	
 	AMERICAN MIDSTREAM MARKETING, LLC ,	
 	AMERICAN MIDSTREAM (ALABAMA GATHERING), LLC ,	
 	AMERICAN MIDSTREAM (ALABAMA INTRASTATE), LLC ,	
 	AMERICAN MIDSTREAM (ALATENN), LLC ,	
 	AMERICAN MIDSTREAM (LOUISIANA INTRASTATE), LLC ,	
 	AMERICAN MIDSTREAM (MIDLA), LLC ,	
 	AMERICAN MIDSTREAM (MISSISSIPPI), LLC ,	
 	AMERICAN MIDSTREAM (SIGCO INTRASTATE), LLC ,	
 	AMERICAN MIDSTREAM (TENNESSEE RIVER), LLC ,	
 	AMERICAN MIDSTREAM ONSHORE PIPELINES, LLC ,	
 	MID LOUISIANA GAS TRANSMISSION, LLC ,	
 	AMERICAN MIDSTREAM OFFSHORE (SEACREST), LP ,	
 	 	By: American Midstream, LLC, its general partner	
 	AMERICAN MIDSTREAM (BURNS POINT), LLC ,	
 	AMERICAN MIDSTREAM CHATOM, LLC ,	
 	AMERICAN MIDSTREAM CHATOM UNIT 1, LLC ,	
 	AMERICAN MIDSTREAM CHATOM UNIT 2, LLC ,	
 	AMERICAN MIDSTREAM MADISON, LLC ,	
 	HIGH POINT GAS TRANSMISSION HOLDINGS, LLC ,	
 	HIGH POINT GAS TRANSMISSION, LLC ,	
 	HIGH POINT GAS GATHERING HOLDINGS, LLC ,	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	HIGH POINT GAS GATHERING, L.L.C. ,	
 	AMERICAN MIDSTREAM (LAVACA), LLC ,	
 	CENTANA GATHERING, LLC ,	
 	CENTANA OIL GATHERING, LLC ,	
 	AMERICAN MIDSTREAM REPUBLIC, LLC ,	
 	AMERICAN MIDSTREAM COSTAR, LLC ,	
 	AMERICAN MIDSTREAM GAS SOLUTIONS, LP ,	
 	 	By: American Midstream Gas Solutions GP, LLC, its general partner	
 	AMERICAN MIDSTREAM GAS SOLUTIONS GP, LLC ,	
 	AMERICAN MIDSTREAM GAS SOLUTIONS LP, LLC ,	
 	AMERICAN MIDSTREAM BAKKEN, LLC ,	
 	AMERICAN MIDSTREAM PERMIAN, LLC ,	
 	AMERICAN MIDSTREAM EAST TEXAS RAIL, LLC ,	
 	AMERICAN MIDSTREAM DELTA HOUSE, LLC	
 	AMERICAN MIDSTREAM MESQUITE, LLC	
 	AMERICAN MIDSTREAM TRANSTAR GAS PROCESSING, LLC	

 	By:	/s/ Daniel C. Campbell	
 	Name:	Daniel C. Campbell	
 	Title:	Senior Vice President and Chief Financial Officer	

 	BLACKWATER INVESTMENTS, INC. ,	
 	AMERICAN MIDSTREAM BLACKWATER, LLC ,	
 	BLACKWATER MIDSTREAM CORP. ,	
 	BLACKWATER GEORGIA, L.L.C. ,	
 	BLACKWATER HARVEY, LLC ,	
 	BLACKWATER MARYLAND, L.L.C. ,	
 	BLACKWATER NEW ORLEANS, L.L.C. ,	
 	 	 	
 	By:	/s/ Daniel C. Campbell	
 	Name:	Daniel C. Campbell	
 	Title:	Executive Vice President	

[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	BANK OF AMERICA, N.A.,	
 	as Administrative Agent and Collateral Agent	

 	By:	/s/ Kevin L. Ahart	
 	Name:	Kevin L. Ahart	
 	Title:	Vice President	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	BANK OF AMERICA, N.A.,	
 	as a Lender	
 	 	 	
 	By:	/s/ Adam H. Fey	
 	Name:	Adam H. Fey	
 	Title:	Director	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	ABN AMRO CAPITAL USA LLC,	
 	as a Lender	
 	 	 	
 	By:	/s/ Darrell Holley	
 	Name:	Darrell Holley	
 	Title:	Managing Director	

 	By:	/s/ Kaylan Hopson	
 	Name:	Kaylan Hopson	
 	Title:	Vice President	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	BARCLAYS BANK PLC,	
 	as a Lender	
 	 	 	
 	By:	/s/ Ronnie Glenn	
 	Name:	Ronnie Glenn	
 	Title:	Vice President	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	BNP PARIBAS,	
 	as a Lender	
 	 	 	
 	By:	/s/ Vincent Trapet	
 	Name:	Vincent Trapet	
 	Title:	Director	

 	By:	/s/ Sriram Chandrasekaran	
 	Name:	Sriram Chandrasekaran	
 	Title:	Director	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	CADENCE BANK, N.A.,	
 	as a Lender	
 	 	 	
 	By:	/s/ William W. Brown	
 	Name:	William W. Brown	
 	Title:	Executive Vice President	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	CAPITAL ONE, N.A.,	
 	as a Lender	
 	 	 	
 	By:	/s/ Victor Ponce de Leon	
 	Name:	Victor Ponce de Leon	
 	Title:	Senior Vice President	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	CITIBANK, N.A.,	
 	as a Lender	
 	 	 	
 	By:	/s/ Thomas Benavides	
 	Name:	Thomas Benavides	
 	Title:	Director	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	COMERICA BANK,	
 	as a Lender	
 	 	 	
 	By:	/s/ Garrett R. Merrell	
 	Name:	Garrett R. Merrell	
 	Title:	Relationship Manager	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	COMPASS BANK,	
 	as a Lender	
 	 	 	
 	By:	/s/ Mark H. Wolf	
 	Name:	Mark H. Wolf	
 	Title:	Senior Vice President	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	DEUTSCHE BANK AG — NEW YORK BRANCH,	
 	as a Lender	
 	 	 	
 	By:	/s/ Shai Bandner	
 	Name:	Shai Bandner	
 	Title:	Vice President	

 	By:	/s/ Susana Fornies	
 	Name:	Susana Fornies	
 	Title:	Assistant Vice President	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	BANK MIDWEST, A DIVISION OF NBH BANK,	
 	as a Lender	
 	 	 	
 	By:	/s/ Ben W. Suh	
 	Name:	Ben W. Suh	
 	Title:	Vice President	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	NATIXIS, NEW YORK BRANCH,	
 	as a Lender	
 	 	 	
 	By:	/s/ Carlos Quinteros	
 	Name:	Carlos Quinteros	
 	Title:	Managing Director	

 	By:	/s/ Jarrett C. Price	
 	Name:	Jarrett C. Price	
 	Title:	Director	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	ROYAL BANK OF CANADA,	
 	as a Lender	
 	 	 	
 	By:	/s/ Jay T. Sartain	
 	Name:	Jay T. Sartain	
 	Title:	Authorized Signatory	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	SANTANDER BANK, N.A.,	
 	as a Lender	
 	 	 	
 	By:	/s/ George Louis McKinley	
 	Name:	George Louis McKinley	
 	Title:	Vice President	

 	By:	/s/ Puiki Lok	
 	Name:	Puiki Lok	
 	Title:	Vice President	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	SUNTRUST BANK,	
 	as a Lender	
 	 	 	
 	By:	/s/ Shannon Juhan	
 	Name:	Shannon Juhan	
 	Title:	Director	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	UBS AG, STAMFORD BRANCH	
 	as a Lender	
 	 	 	
 	By:	/s/ Darlene Arias	
 	Name:	Darlene Arias	
 	Title:	Director	

 	By:	/s/ Craig Pearson	
 	Name:	Craig Pearson	
 	Title:	Associate Director	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

 

 	WELLS FARGO BANK, NATIONAL ASSOCIATION	
 	as a Lender	
 	 	 	
 	By:	/s/ Jacob L. Osterman	
 	Name:	Jacob L. Osterman	
 	Title:	Vice President	
 
[Signature Page to Second Amendment to Amended and Restated Credit Agreement]

Exhibit 10.3
 
THIS WARRANT HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE (THE “STATE LAWS”).  THIS WARRANT MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF, IN WHOLE OR IN PART, IN THE ABSENCE OF SUCH REGISTRATION OR QUALIFICATION OR THE AVAILABILITY OF AN APPLICABLE EXEMPTION FROM THE REGISTRATION AND QUALIFICATION REQUIREMENTS OF SUCH ACT AND STATE LAWS EVIDENCED BY AN OPINION OF LEGAL COUNSEL, WHICH OPINION AND LEGAL COUNSEL ARE SATISFACTORY TO THE PARTNERSHIP.
 
FORM OF WARRANT TO PURCHASE COMMON UNITS OF
 
AMERICAN MIDSTREAM PARTNERS, LP
 
This Warrant certifies that, for value received, Magnolia Infrastructure Holdings, LLC, or its registered assigns (collectively, the “ Holder ”), is entitled to purchase from American Midstream Partners, LP, a Delaware limited partnership (the “ Partnership ”), up to 800,000 common units representing limited partner interests in the Partnership (the “ Common Units ”), subject to adjustment as set forth herein, for an exercise price of $7.25 per Common Unit (the “ Exercise Price ”). This Warrant shall be exercisable after the date hereof and on or before the seventh anniversary of the date hereof (the “ Exercise Period ”).
 
As used herein, the term “ Warrant Exercised Units ” refers to the Common Units issuable upon exercise of this Warrant.  Terms used but not defined in this Warrant are defined in the Fifth Amended and Restated Agreement of Limited Partnership of the Partnership dated April 25, 2016 (the “ Fifth A/R Partnership Agreement ”).
 
This Warrant, together with all warrants issued upon transfer, exchange or in replacement hereof pursuant to Section 4 (collectively, the “ Warrants ”), is subject to the following additional terms, provisions and conditions:
 
Section 1.              Manner of Exercise; Issuance of Certificates; Payment for Warrant Exercised Units .  Subject to the provisions hereof, this Warrant may be exercised by the Holder, in whole or in part, during the Exercise Period by the surrender of this Warrant, together with a completed Exercise Agreement in the form attached hereto, to the Partnership during normal business hours on any Business Day at the Partnership’s office in Denver, Colorado (or such other office or agency of the Partnership as it may designate by notice to the Holder).
 
On a net unit settlement basis, the Warrant Exercised Units shall be deemed to be issued to the Holder or its designees as the record owner of such Common Units as of the close of business on the date or dates on which this Warrant shall have been surrendered and the completed Exercise Agreement delivered (the “ Exercise Date ”).
 
The Warrant Exercised Units deemed to be issued on the Exercise Date (which in no event will be less than zero) (the “ Net Unit Amount ”) shall equal (i) the number of Common Units with respect to which the Holder is exercising purchase rights as specified in the Exercise Agreement, multiplied by (ii) the Closing Sale Price (as defined below) on the relevant Exercise Date, minus the Exercise Price, divided by (iii) the arithmetic average of the daily VWAP (as defined below) for the ten (10) consecutive trading days ending on the Exercise Date, provided that any fractional units will be rounded up or down to the nearest whole Common Unit.
 
As used herein, the term “ VWAP ”means the dollar volume-weighted average price for the Common Units on the New York Stock Exchange during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg L.P. through its “Volume at Price” function or, if the foregoing does not apply, the dollar volume-weighted average price of the Common Units in the over-the-counter market on the electronic bulletin board for the Common Units during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg L.P., or, if no dollar volume weighted average price is reported for the Common Units by Bloomberg L.P. for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for the Common Units as reported in the OTC Link or “pink sheets” by OTC Markets Group Inc. (formerly Pink OTC Markets Inc.). If the

 
VWAP cannot be calculated for the Common Units on a particular date on any of the foregoing bases, the VWAP of the Common Units on such date shall be the fair market value as mutually determined by the Partnership and the Holder.
 
Section 2.              Certain Actions Prohibited .  The Partnership will not, by amendment of the Fifth A/R Partnership Agreement or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but will at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Holder of this Warrant in order to protect the exercise privilege of the Holder of this Warrant against dilution or other impairment, consistent with the tenor and purpose of this Warrant.
 
Section 3.              Anti-Dilution Provisions and Other Adjustments . The number and kind of securities purchasable upon the exercise of this Warrant and the Exercise Price shall be subject to adjustment, from time to time, as follows:
 
(a)           Consolidation or Merger .  If, at any time while this Warrant remains outstanding and unexpired, the Partnership shall (i) consolidate or merge with any other entity (regardless of whether the Partnership is the continuing or surviving entity, except that in connection with a consolidation or merger where the Partnership is not the continuing or surviving entity, the Common Units shall be changed into or exchanged for units, stock or other securities of the surviving entity or cash or any other property), (ii) transfer all or substantially all of its properties or assets to any other person or entity or (iii) effect a capital reorganization or reclassification of the Common Units, the Partnership, or such successor entity as the case may be, shall, without payment of any additional consideration therefor, execute a new warrant providing that the Holder shall have the right to exercise such new warrant (upon terms no less favorable to the Holder than those applicable to this Warrant and subject to the same Exercise Period that is applicable to this Warrant) and to receive upon such exercise, in lieu of each Common Unit theretofore issuable upon exercise of this Warrant, the kind and amount of units, shares of stock or other securities, money or property receivable upon such capital reorganization, reclassification, change, consolidation, merger or sale or conveyance by the holder of one Common Unit issuable upon exercise of this Warrant had it been exercised immediately prior to such capital reorganization, reclassification, change, consolidation, merger or sale or conveyance.  The provisions of this Section 3(a)  shall similarly apply to successive capital reorganizations, reclassifications, changes, consolidations, mergers, sales and conveyances.
 
(b)           Dividends and Distributions in Common Units .  If the Partnership shall pay or make a dividend or other distribution on its Common Units in additional Common Units, the Exercise Price in effect at the opening of business on the day following the date fixed for the determination of unitholders entitled to receive such dividend or other distribution (the “ Determination Date ”) shall be reduced by multiplying such Exercise Price by a fraction, (i) the numerator of which shall be the number of Common Units outstanding as of the close of business on the Determination Date and (ii) the denominator of which shall be the sum of (x) the number of Common Units outstanding at the close of business on the Determination Date and (y) the total number of Common Units constituting such dividend or other distribution.  Such reduction shall become effective immediately after the opening of business on the day following the Determination Date.  For the purposes of this Section 3(b) , the number of Common Units at any time outstanding shall not include Common Units held in the treasury of the Partnership.  The Partnership will not pay any dividend or make any distribution on Common Units held in the treasury of the Partnership.
 
(c)           Unit Splits or Combinations .  In case the outstanding Common Units shall be subdivided into a greater number of Common Units, the Exercise Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be reduced, and, conversely, in case the outstanding Common Units shall each be combined into a smaller number of Common Units, the Exercise Price in effect at the opening of business on the day following the date upon which such combination becomes effective shall be increased, in each case, to equal the product of the Exercise Price in effect on such date and a fraction, (i) the numerator of which shall be the number of
 
2 

 
Common Units outstanding immediately prior to such subdivision or combination, as applicable, and (ii) the denominator of which shall be the number of Common Units outstanding immediately after such subdivision or combination, as applicable.  Such reduction or increase, as applicable, shall become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective (the “ Alteration Date ”).
 
(d)           Reclassifications .  The reclassification or change of Common Units (other than any reclassification upon a consolidation or merger to which Section 3(a)  shall apply) into securities, including securities other than Common Units, shall be deemed to involve (i) a distribution of such securities other than Common Units to all holders of Common Units (and the effective date of such reclassification shall be deemed to be the Determination Date within the meaning of Section 3(b) ), and (ii) a subdivision or combination, as applicable, of the number of Common Units outstanding immediately prior to such reclassification into the number of Common Units outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be the Alteration Date within the meaning of Section 3(c) ).
 
(e)           Adjustment of Number of Units .  Upon each adjustment in the Exercise Price pursuant to Section 3.1(a)-(d) , the number of Common Units purchasable hereunder at the Exercise Price shall be adjusted, to the nearest whole Common Unit, to the product obtained by multiplying such number of Common Units purchasable immediately prior to such adjustment in the Exercise Price by a fraction, (i) the numerator of which shall be the Exercise Price immediately prior to such adjustment and (ii) the denominator of which shall be the Exercise Price immediately thereafter.
 
(f)            Increase in Warrant Exercised Units .  On the first anniversary of the date hereof, the number of Common Units purchasable hereunder at the Exercise Price shall be adjusted, to the nearest whole Common Unit, to the product obtained by performing the following calculation:
 
(i) 400,000 multiplied by (ii) (A) the Series C Issue Price multiplied by the number of Series C Preferred Units then outstanding less $45,000,000 divided by (B) the Series C Issue Price multiplied by the number of Series C Preferred Units issued less $45,000,000.
 
(g)           PIK Units .  Each issuance of the Series C PIK Preferred Units will result in an increase in the number of Warrant Exercised Units (to the nearest whole Common Unit) to the number that is equal to the product obtained by performing the following calculation:
 
(i) The total number of Warrant Exercised Units immediately before the most recent issuance of Series C PIK Preferred Units multiplied by (ii) (A) the total number of outstanding Series C Preferred Units immediately after the most recent issuance of Series C PIK Preferred Units divided by (B) the total number of outstanding Series C Preferred Units immediately before the most recent issuance of Series C PIK Preferred Units.
 
(h)           Other Provisions Applicable to Adjustments Under This Section .  The following provisions will be applicable to the making of adjustments in the Exercise Price provided in this Section 3 :
 
(i)            No adjustment in the Exercise Price need be made under Section 3(b)  if the Partnership issues or distributes (or holds in a segregated manner pending exercise of this Warrant into Common Units and upon such exercise distributes) to the Holder the Common Units, evidences of indebtedness, assets, rights, options or warrants referred to in those paragraphs that such Holder would have been entitled to receive had this Warrant been exercised for Common Units prior to the happening of such event or the record date with respect thereto.
 
(ii)           All calculations under this Section 3 shall be made to the nearest 1/100th of a cent or to the nearest whole Common Unit, as applicable.  No adjustment in the Exercise Price shall be required unless such adjustment (plus any adjustments not previously made by reason of this Section 3(h)(ii) ) would require an increase or decrease of at least 1% in such Exercise Price.
 
3 

 
(i)            Notice to the Holder .  The Partnership will deliver to the Holder written notice, at the same time and in the same manner that it is required to give such notice under the Fifth A/R Partnership Agreement of any event or transaction potentially giving rise to an adjustment or modification of the terms and provisions of the Warrant Exercised Units.  The Partnership will take all steps reasonably necessary in order to insure that the Holder is able to exercise this Warrant prior to the time of such event or transaction so as to participate in or vote with respect to such event or transaction.
 
Section 4.              Transfer, Exchange and Replacement of Warrant; Representations and Covenants .
 
(a)           Warrant Transferable .  The Holder of this Warrant may transfer and assign it to any Affiliate, provided that such party is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended (the “ Securities Act ”), as presently in effect. The Holder of this Warrant may not transfer and assign it to any other person without the prior written consent of the Partnership, which consent shall not be unreasonably withheld.  The permitted or approved transfer of this Warrant and all rights hereunder, in whole or in part, is registrable at the office or agency of the Partnership referred to in Section 5 by the Holder in person or by his duly authorized attorney, upon surrender of this Warrant properly endorsed. Upon any permitted or approved transfer of this Warrant to any person, other than a person who is at that time a holder of other Warrants, the Partnership shall have the right to require the Holder and the transferee to make customary representations to the extent reasonably necessary to assure that the transfer will comply with the Securities Act and any applicable state securities laws.  The Holder of this Warrant, by taking or holding the same, consents and agrees that this Warrant, when endorsed in blank, shall be deemed negotiable, and that the Holder, when this Warrant shall have been so endorsed, may be treated by the Partnership and all other persons dealing with this Warrant as the absolute owner and holder for any purpose and as the person entitled to exercise the rights represented by this Warrant and to the registration of transfer hereof on the books of the Partnership; but until due presentment for registration of transfer on such books the Partnership may treat the registered Holder as the owner and holder of this Warrant for all purposes, and the Partnership shall not be affected by any notice to the contrary.
 
(b)           Warrant Exchangeable for Different Denominations .  This Warrant is exchangeable, upon the surrender of this Warrant by the Holder at the office or agency of the Partnership referred to in Section 5 , for new warrants of like tenor representing in the aggregate the right to purchase the number of Common Units that may be purchased hereunder, each of such new warrants to be imprinted with the same legend appearing on the face of this Warrant and to represent the right to purchase such number of Common Units as shall be designated by the Holder at the time of such surrender.
 
(c)           Replacement of Warrant .  Upon receipt of evidence reasonably satisfactory to the Partnership of the loss, theft, destruction, or mutilation of this Warrant and, in the case of any such loss, theft, or destruction, upon delivery of an indemnity agreement reasonably satisfactory in form and amount to the Partnership, or, in the case of any such mutilation, upon surrender and cancellation of this Warrant, the Partnership, at its expense, will execute and deliver, in lieu thereof, a new warrant of like tenor.
 
(d)           Cancellation; Payment of Expenses .  Upon the surrender of this Warrant in connection with any transfer, exchange, or replacement as provided in Section 4(c) , this Warrant shall be promptly cancelled by the Partnership.  The Partnership shall pay all taxes (other than securities transfer taxes) and all other expenses and charges payable in connection with the preparation, execution and delivery of Warrants pursuant to this Section 4 .
 
(e)           Register .  The Partnership shall maintain, at its office in Denver, Colorado (or such other office or agency of the Partnership as it may designate by notice to the Holder), a register for this Warrant, in which the Partnership shall record the name and address of the person in whose name this Warrant has been issued, as well as the name and address of each transferee and each prior owner of this Warrant.
 
(f)            Representations and Covenants of the Partnership .  The Partnership represents and covenants that all Warrant Exercised Units will, when issued, be validly issued, fully paid and nonassessable (except to the extent such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act).  Upon the exercise of this Warrant, the issuance of the Warrant Exercised Units will not
 
4 

 
be subject to any preemptive or similar rights, other than pursuant to Section 5.8 of the Fifth A/R Partnership Agreement.
 
(g)           Representations and Covenants of the Holder .  The Holder is acquiring this Warrant and will acquire the Warrant Exercised Units for its own account, with no present intention of distributing or reselling this Warrant or the Warrant Exercised Units or any part thereof in violation of applicable securities laws.  The Holder acknowledges that this Warrant has not been, and when issued the Warrant Exercised Units will not be, registered under the Securities Act or the securities laws of any state in the United States or any other jurisdiction and may not be offered or sold by such Holder unless subsequently registered under the Securities Act (if applicable to the transaction) and any other securities laws or unless exemptions from the registration or other requirements of the Securities Act and any other securities laws are available for the transaction.  The Holder represents that it is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act, as presently in effect.
 
Section 5.              Notices .  All notices, requests, and other communications required or permitted to be given or delivered hereunder to the Holder of this Warrant shall be in writing, and shall be personally delivered, or shall be sent by certified or registered mail, postage prepaid, or by delivery service with proof of delivery, and addressed to the Holder at the address shown for the Holder on the books of the Partnership, or at such other address as shall have been furnished to the Partnership by notice from the Holder.  All notices, requests, and other communications required or permitted to be given or delivered hereunder to the Partnership shall be in writing, and shall be personally delivered, or shall be sent by certified or registered mail, postage prepaid, or by delivery service with proof of delivery, and addressed to the office of the Partnership at 1400 16 th  Street, Suite 310, Denver, Colorado 80202, Attention: General Counsel, or at such other address as shall have been furnished to the Holder of this Warrant by notice from the Partnership.  Any such notice, request, or other communication may be sent by facsimile but shall in such case be subsequently confirmed by a writing personally delivered or sent by certified or registered mail as provided above.  All notices, requests, and other communications shall be deemed to have been given either at the time of the delivery thereof to (or the receipt by, in the case of a facsimile) the person entitled to receive such notice at the address of such person for purposes of this Section 5 or, if mailed, at the completion of the third full day following the time of such mailing thereof to such address, as the case may be.
 
Section 6.              GOVERNING LAW .  THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY CHOICE OF LAW PRINCIPLES OF SUCH STATE.
 
Section 7.              Remedies .  The Partnership stipulates that the remedies at law of the Holder of this Warrant in the event of any default or threatened default by the Partnership in the performance of or compliance with any of the terms of this Warrant are not and will not be adequate, and that such terms may be specifically enforced by a decree for the specific enforcement of any agreement contained herein or by an injunction against a violation of any of the terms hereof or otherwise.
 
Section 8.              Miscellaneous .
 
(a)           Amendments .  This Warrant and any provision hereof may not be changed, waived, discharged, or terminated orally, but only by an instrument in writing signed by the party (or any predecessor in interest thereof) against which enforcement of the same is sought.
 
(b)           Descriptive Headings .  The descriptive headings of the several sections of this Warrant are inserted for purposes of reference only, and shall not affect the meaning or construction of any of the provisions hereof.
 
[Signature Page Follows]
 
5 

 
IN WITNESS WHEREOF, the Partnership has caused this Warrant to be signed by its duly authorized officer on this 25th day of April 2016.

 	AMERICAN MIDSTREAM PARTNERS, LP	
 	 	 	
 	By:	American Midstream GP, LLC,	
 	Its:	General Partner	

 	By:	/s/ Daniel C. Campbell	
 	Name:	Daniel C. Campbell	
 	Title:	Senior Vice President and Chief Financial Officer	

 
FORM OF EXERCISE AGREEMENT
 
Dated:

To:	American Midstream Partners, LP	
 	1400 16th Street, Suite 310	
 	Denver, CO 80202	
 
Attention:  General Counsel
 
The undersigned, Holder of the foregoing Warrant, hereby elects to exercise purchase rights represented thereby for, and to purchase thereunder,           Common Units covered by such Warrant pursuant to Section 1 of such Warrant and requests that book-entries evidencing such Common Units or certificates for such Common Units be issued in the name of, and delivered to                       .
 
The undersigned, Holder of the foregoing Warrant, is acquiring such Common Units for its own account, with no present intention of distributing or reselling such units or any part thereof in violation of applicable securities laws.  The Holder acknowledges that such units have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or the securities laws of any state in the United States or any other jurisdiction and may not be offered or sold by such Holder unless subsequently registered under the Securities Act (if applicable to the transaction) and any other securities laws or unless exemptions from the registration or other requirements of the Securities Act and any other securities laws are available for the transaction.  The Holder represents that it is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act.

 	Signature:	 	
 	Title of Signing Officer or Agent	
 	(if any):	 	
 	 	 	
 	Note:	The above signature should correspond exactly with the name on the face of the within Warrant or with the name of the assignee appearing in the assignment form.	

 
FORM OF ASSIGNMENT
 
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers all the rights represented by and under the within Warrant, with respect to the number of Common Units covered thereby set forth below, to:

Name of Assignee	 	Address	 	No. of Common Units	

 	 	 	 	 	
 
The undersigned hereby irrevocably constitutes and appoints                     as agent and attorney-in-fact to transfer said Warrant on the books of the within-named Partnership, with full power of substitution in the premises.
 
Dated:                   ,       

In the presence of	 	 	 	

 	 	Name:	 	
 	 	 	 	
 	 	Signature:	 	
 	 	Title of Signing Officer or Agent	
 	 	(if any):	 	
 	 	Address:	 	

 	 	 	
 	 	Note:	The above signature should correspond exactly with the name on the face of the within Warrant.	

2