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): October 31, 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.)	

2103 CityWest Boulevard
Building #4, Suite 800
Houston, Texas	 	77042	
(Address of principal executive offices)	 	(Zip Code)	
(713) 815-3900
(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:
 
☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)	
 
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)	
 
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under Exchange Act (17 CFR 240.14d-2(b))	
 
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))	

 

Item 1.01	Entry into a Material Definitive Agreement	
Securities Purchase Agreement and Issuance of Series D Preferred Units
On October 31, 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 2,333,333 shares of newly-designated Series D convertible preferred units (the “Series D Preferred Units”) representing limited partnership interests in the Partnership in a private placement for $15.00 per unit, less a closing fee of 1.5%, for approximately $34.4 million in net proceeds. The Securities Purchase Agreement provides that if any of the Series D Preferred Units remain outstanding on June 30, 2017, the Partnership will issue Magnolia a warrant (the “Warrant” and, together with the issuance of the Series D Preferred Units, the “Securities Issuance”) to purchase 700,000 common units representing limited partnership interests in the Partnership (“Common Units”) with an exercise price of $22.0 per Common Unit. The Series D Preferred Units were issued, and the Warrant, if issued, will be 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”), reviewed and recommended the Securities Issuance to the Board for adoption and approval and the Board approved the Securities Issuance.
Series D Preferred Units
The Series D Preferred Units were created and issued pursuant to that certain Amendment No. 2 to Fifth Amended and Restated Agreement of Limited Partnership of American Midstream Partners, LP (“Second Amendment”), which is filed as Exhibit 3.1 hereto.
The Series D Preferred Units have the right to receive cumulative distributions in the same priority as the Series A convertible preferred units representing limited partnership interests in the Partnership (the “Series A Preferred Units”) and the Series C convertible preferred units representing limited partnership interests in the Partnership (the “Series C Preferred Units”) and prior to any other distributions made in respect of any other partnership interests (the “Series D Quarterly Distribution”), in the amounts described herein. The Series D Quarterly Distribution will be paid entirely in cash at the Series D Distribution Rate (as defined below). The aggregate amount of cash for each quarter to be distributed in respect of the Series D Preferred Units outstanding will be paid out of Available Cash (as defined in the Fifth Amended and Restated Agreement of Limited Partnership of American Midstream Partners, LP, as amended (the “Partnership Agreement”)) in the same priority as any cash distributions made to the holders of Series A Preferred Units and Series C Preferred Units, which will be made prior to any distributions to the General Partner or the Partnership’s common unitholders. To the extent that any portion of a quarterly distribution on Series A Preferred Units, a quarterly distribution on Series C Preferred Units and Series D Quarterly Distribution paid in cash with regard to any 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 holders of Series A Preferred Units, the holders of Series C Preferred Units and the holders of Series D Preferred Units, pro rata, and the balance of such Series D Quarterly Distributions will be unpaid and will become an arrearage and accrue interest until paid in a future quarter. If the Partnership fails to pay in full any Series D Quarterly Distribution, the amount of such unpaid distribution will accrue, accumulate and bear interest at a rate of 6.00% 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 D Distribution Rate” means an amount per quarter per Series D Preferred Unit payable in arrears equal to the greater of (i) $0.4125 and (ii) the Series D Distribution Amount. The “Series D Distribution Amount” with respect to any particular quarter is the cash distribution amount for such quarter that each Series D Preferred Unit would have received on an as-converted basis if it had been converted to Common Units immediately prior to the beginning of such quarter into which such Series D Preferred Unit is convertible pursuant to the Conversion Right (as defined below).
The record date for the determination of holders entitled to receive Series D Quarterly Distributions will be the same as the record date for determination of Common Unit holders entitled to receive quarterly distributions.
The Series D 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 D Preferred Unit initially entitled to one vote for each Common Unit into which such Series D Preferred Unit is convertible. The Series D 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 D Preferred Units. The Series D Preferred Units are convertible in whole or in part into Common Units at the election of the holder of the Series D Preferred Unit at any
 
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time after June 30, 2017 (the “Conversion Right”). As of the date of issuance, the conversion rate for each Series D Preferred Unit was one -to-one (the “Conversion Rate”). The Conversion Rate is subject to adjustment as described in the Partnership Agreement to account for additional issuances, distributions, combinations, subdivisions and reclassifications of the Partnership’s securities.
In the event that the Partnership issues, sells or grants any Common Units or securities convertible into Common Units at an indicative per Common Unit price that is less than $15.00 per 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 D Preferred Units are convertible.
Prior to the consummation of 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”), the Partnership is obligated to make an irrevocable written offer, subject to consummation of the Partnership Event, to the holders of Series D Preferred Units to redeem all (but not less than all) of the Series D Preferred Units for a price per Series D Preferred Unit payable in cash equal to the greater of:
(i) the sum of $15.00 and all accrued and accumulated but unpaid distributions for each Series D Preferred Unit; and
(ii) an amount equal to the product of:
(A) the number of Common Units into which each Series D Preferred Unit is then convertible; and
(B) the sum of the cash consideration per Common Unit to be paid to the holders of Common Units in connection with the Partnership Event, plus the fair market value per Common Unit of the securities or other assets to be distributed to the holders of the Common Units in connection with the Partnership Event.
Upon receipt of a redemption offer, each holder of Series D 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 Partnership Agreement with respect to the Series D Preferred Units without material abridgement.
At any time prior to June 30, 2017, the Partnership has the right (the “Series D Call Right”) to redeem the Series D Preferred Units for the product of (i) the sum of $15.00 and all accrued and accumulated but unpaid distributions for each Series D Preferred Unit (including a proportionate amount of the distribution on each Series D Preferred Unit that has accrued for the quarter in which the redemption occurs); and (ii) 1.03.
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 D Preferred Units generally will be entitled to receive, in preference to the holders of any of the Partnership’s other securities (other than Series A Preferred Units and Series C Preferred Units), an amount equal to the sum of the $15.00 multiplied by the number of Series D Preferred Units owned by such holders, plus all accrued but unpaid distributions.
Warrant
Pursuant to the Securities Purchase Agreement, the Partnership is required to issue the Warrant to Magnolia if Series D Preferred Units remain outstanding as of June 30, 2017. Under the Warrant, Magnolia would have the right to purchase up to 700,000 Common Units at an exercise price of $22.00 per Common Unit.
The Warrant, if issued, will be subject to standard anti-dilution adjustments and will be exercisable at any time after June 30, 2017 and on or before the seventh anniversary of June 30, 2017.
The foregoing description of the Securities Purchase Agreement, the Series D 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 Second Amendment, which is filed as Exhibit 3.1 hereto and incorporated by reference herein and the Warrant, a form of which is attached as an exhibit to the Securities Purchase Agreement. The Securities Purchase Agreement contains customary representations, warranties, covenants and agreements by the Partnership and other parties thereto, indemnification obligations of the Partnership and
 
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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 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 unanimously granted its special approval of the Securities Issuance as contemplated by the Securities Purchase Agreement and the Second Amendment.
The foregoing description of the Securities Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the Securities Purchase Agreement, a copy of which is attached hereto as Exhibit 10.1, and the terms of which are incorporated by reference herein.
Amendment No. 2 to Fifth Amended and Restated Partnership Agreement
Effective as of October 31, 2016, the Partnership entered into the Second Amendment. As noted above, the Second Amendment reflects the issuance of the Series D Preferred Units, the potential future issuance of the Warrant, and other corrections and clarifications.
As the amendments in the Second Amendment are specific to the Securities Issuance to Magnolia, the Board, with the assistance of its legal and financial advisors, evaluated the terms of the Second Amendment, determined that it was in the best interests of the Partnership, and recommended the Second Amendment to the holders of Series A Preferred Units and the Series C Preferred Units for adoption and approval.
The description of the Second Amendment contained in this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the Second Amendment, a copy of which is attached hereto as Exhibit 3.1, and the terms of which are incorporated by reference herein.
Delta House Purchase Agreements
On October 31, 2016, D-Day Offshore Holdings, LLC (“D-Day”), a wholly-owned, indirect subsidiary of the Partnership, entered into Purchase Agreements with (a) Red Willow Offshore, LLC (“Red Willow,” and such Purchase Agreement, the “Red Willow Purchase Agreement”), pursuant to which D-Day acquired from Red Willow (i) 1,555.26730 Class A Units of Delta House FPS LLC (“FPS LLC”) and (ii) 91.27621 Class A Units of Delta House Oil and Gas Lateral LLC (“Lateral LLC”), in exchange for a cash purchase price of approximately $13.25 million (the “Red Willow Transaction”); (b) ILX Prospect Niedermeyer, LLC (“ILX Niedermeyer,” and such Purchase Agreement, the “ILX Niedermeyer Purchase Agreement”), pursuant to which D-Day acquired from ILX Niedermeyer (i) 122.84877 Class A Units of FPS LLC and (ii) 7.20980 Class A Units of Lateral LLC, in exchange for a cash purchase price of approximately $1.05 million (the “ILX Niedermeyer Transaction”); (c) ILX Prospect Diller, LLC (“ILX Diller,” and such Purchase Agreement, the “ILX Diller Purchase Agreement”), pursuant to which D-Day acquired from ILX Diller (i) 268.91079 Class A Units of FPS LLC and (ii) 15.78196 Class A Units of Lateral LLC, in exchange for a cash purchase price of approximately $2.29 million (the “ILX Diller Transaction”); (d) ILX Prospect Marmalard, LLC (“ILX Marmalard”, and such Purchase Agreement, the “ILX Marmalard Purchase Agreement”), pursuant to which D-Day acquired from ILX Marmalard (i) 268.91079 Class A Units of FPS LLC and (ii) 15.78196 Class A Units of Lateral LLC, in exchange for a cash purchase price of approximately $2.29 million (the “ILX Marmalard Transaction”); (e) LLOG Bluewater Holdings, L.L.C. (“LLOG BW,” and such Purchase Agreement, the “LLOG BW Purchase Agreement”), pursuant to which D-Day acquired from LLOG BW (i) 2,855.28098 Class A Units of FPS LLC and (ii) 167.57201 Class A Units of Lateral LLC, in exchange for a cash purchase price of approximately $24.33 million (the “LLOG BW Transaction”); and (f) Ridgewood Energy Investment Funds (as defined in the Ridgewood Purchase Agreement, and referenced herein as “Ridgewood”) and Ridgewood Energy Corporation (such Purchase Agreement, the “Ridgewood Purchase Agreement,” and together with the Red Willow Purchase Agreement, the ILX Niedermeyer Purchase Agreement, the ILX Diller Purchase Agreement, the ILX Marmalard Purchase Agreement, and the LLOG BW Purchase Agreement, the “Delta House Purchase Agreements”), pursuant to which D-Day acquired from Ridgewood (i) 660.67032 Class A Units of FPS LLC and (ii) 38.77372 Class A Units of Lateral LLC, in exchange for a cash purchase price of approximately $5.63 million (the “Ridgewood Transaction,” and together with the Red Willow Transaction,
 
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the ILX Niedermeyer Transaction, the ILX Diller Transaction, the ILX Marmalard Transaction, and the LLOG BW Transaction, the “Delta House Transactions”). The Partnership funded the aggregate purchase price for the Delta House Transactions with the net proceeds of the Securities Issuance and borrowings under that certain Amended and Restated Credit Agreement by and among the Partnership, American Midstream, LLC, Blackwater Investments, Inc., the Guarantors (as defined therein), Bank of America, N.A. as administrative agent, and the lenders party thereto dated as of September 5, 2014 (as further amended, the “Credit Agreement”).
The Delta House Purchase Agreements contain customary representations, warranties, covenants and agreements by D-Day and other parties thereto, indemnification obligations of D-Day and other parties thereto, and other obligations of the parties. The representations, warranties and covenants contained in each of the Delta House Purchase Agreements were made only for purposes of such agreement as of specific dates, were solely for the benefit of the parties to each such agreement, and may be subject to limitations agreed upon by the contracting parties.
The description of the Delta House Transactions and the Delta House Purchase Agreements contained in this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the Delta House Purchase Agreements, copies of which are attached hereto as Exhibits 2.1 through 2.6 hereto and the terms of which are incorporated by reference herein.
 
Item 2.01	Completion of Acquisition or Disposition of Assets.	
On October 31, 2016, D-Day completed the Delta House Transactions as described in Item 1.01 above. The description of the Delta House Transactions and the Delta House Purchase Agreements contained in Item 1.01 are incorporated by reference herein.
 
Item 3.02	Unregistered Sales of Equity Securities.	
On October 31, 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 and the Series D Preferred Units 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 October 31, 2016, the Partnership entered into the Second Amendment to create the Series D Preferred Units described in Item 1.01 above. The description of the Series D Preferred Units and the Second Amendment contained in Item 1.01 is incorporated by reference herein.
 
Item 7.01	Regulation FD Disclosure.	
FPS LLC and Lateral LLC own the Delta House fee-based, semi-submersible floating production system platform with associated oil and gas export pipelines (“Delta House”). The Partnership owns 20.1% of the issued and outstanding membership interests in Delta House, with the Delta House Transactions representing an incremental 6.2% increase in the Partnership’s percentage ownership interest in Delta House.
Delta House is operated by LLOG Exploration Offshore, L.L.C. and is located in the highly prolific Mississippi Canyon region of the deep-water Gulf of Mexico. The facility has 100,000 barrels of crude oil and 240 million cubic feet of natural gas and liquids per day of peak processing capacity. Cash flows for Delta House are supported by long-term volumetric-tiered fee-based tariffs with ship-or-pay components and life-of-lease dedications with well positioned counterparties. Delta House commenced operations in April 2015 and currently has eleven wells online. The eleventh well tie-back was online in mid-October and brought the floating production system to peak capacity. Producers are continually evaluating additional tie-backs to keep Delta House operating at peak capacity for the foreseeable future.
“We are pleased with the performance of Delta House and the associated strong returns since our initial acquisition. We continue to see substantial resource development where the production growth and producer economics in the Gulf of Mexico are exceeding expectations. To take advantage of significant future production growth, we have decided to increase our investment. We are excited about further integrating this strategic asset as part of our long-term Gulf Coast strategy,” stated Lynn Bourdon III, Chairman, President and Chief Executive Officer. “Delta House is a world-class offshore production handling facility which contributes significant long-term, fee-based cash flows.”
 
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The information in this Item 7.01 shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934 (the “Exchange Act”) nor shall it be deemed incorporated by reference into any filing under the Securities Act of 1933 or the Exchange Act, except as specifically identified therein as being incorporated by reference.
This Current Report on Form 8-K contains forward-looking statements within the meaning of the federal securities laws. These forward-looking statements are based on current expectations, speak only as of the date of this report and are not guarantees of future performance. Further, the forward-looking statements are subject to the limitations and risks described in our reports filed with the Securities and Exchange Commission. Actual events or results may differ materially from those in the forward-looking statements.
 
Item 9.01	Financial Statements and Exhibits.	
To the extent financial statements are required by Item 9.01(a) and pro forma financial information is required by Item 9.01(b), they will be filed with the SEC by amendment to this Current Report on Form 8-K no later than 71 days after the date on which this Current Report on Form 8-K is required to be filed.
(d) Exhibits.

Exhibit
Number	  	Description	
		
  2.1*	  	Unit Purchase Agreement by and between Red Willow Offshore, LLC and D-Day Offshore Holdings, LLC dated October 31, 2016.	
		
  2.2*	  	Unit Purchase Agreement by and between ILX Prospect Niedermeyer, LLC and D-Day Offshore Holdings, LLC dated October 31, 2016.	
		
  2.3*	  	Unit Purchase Agreement by and between ILX Prospect Diller, LLC and D-Day Offshore Holdings, LLC dated October 31, 2016.	
		
  2.4*	  	Unit Purchase Agreement by and between ILX Prospect Marmalard, LLC and D-Day Offshore Holdings, LLC dated October 31, 2016.	
		
  2.5*	  	Unit Purchase Agreement by and between LLOG Bluewater Holdings, L.L.C. and D-Day Offshore Holdings, LLC dated October 31, 2016.	
		
  2.6*	  	Unit Purchase Agreement by and among Ridgewood Energy Investment Funds (as defined in such Unit Purchase Agreement), Ridgewood Energy Corporation and D-Day Offshore Holdings, LLC dated October 31, 2016.	
		
  3.1	  	Amendment No. 2 to Fifth Amended and Restated Agreement of Limited Partnership of American Midstream Partners, LP dated October 31, 2016.	
		
10.1	  	Securities Purchase Agreement by and between American Midstream Partners, LP and Magnolia Infrastructure Partners, LLC dated October 31, 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.	
 
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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/ Eric Kalamaras	
	 	Name:	 	Eric Kalamaras	
	 	Title:	 	Senior Vice President and Chief Financial Officer	
November 4, 2016
 
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EXHIBITS INDEX

Exhibit
Number	  	Description	
		
  2.1*	  	Unit Purchase Agreement by and between Red Willow Offshore, LLC and D-Day Offshore Holdings, LLC dated October 31, 2016.	
		
  2.2*	  	Unit Purchase Agreement by and between ILX Prospect Niedermeyer, LLC and D-Day Offshore Holdings, LLC dated October 31, 2016.	
		
  2.3*	  	Unit Purchase Agreement by and between ILX Prospect Diller, LLC and D-Day Offshore Holdings, LLC dated October 31, 2016.	
		
  2.4*	  	Unit Purchase Agreement by and between ILX Prospect Marmalard, LLC and D-Day Offshore Holdings, LLC dated October 31, 2016.	
		
  2.5*	  	Unit Purchase Agreement by and between LLOG Bluewater Holdings, L.L.C. and D-Day Offshore Holdings, LLC dated October 31, 2016.	
		
  2.6*	  	Unit Purchase Agreement by and among Ridgewood Energy Investment Funds (as defined in such Unit Purchase Agreement), Ridgewood Energy Corporation and D-Day Offshore Holdings, LLC dated October 31, 2016.	
		
  3.1	  	Amendment No. 2 to Fifth Amended and Restated Agreement of Limited Partnership of American Midstream Partners, LP dated October 31, 2016.	
		
10.1	  	Securities Purchase Agreement by and between American Midstream Partners, LP and Magnolia Infrastructure Partners, LLC dated October 31, 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.	
 
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Exhibit 2.1
EXECUTION VERSION
UNIT PURCHASE AGREEMENT
BY AND BETWEEN
RED WILLOW OFFSHORE, LLC
AS SELLER
AND
D-DAY OFFSHORE HOLDINGS, LLC
AS BUYER

TABLE OF CONTENTS

ARTICLE I DEFINITIONS	  	 	1	  	
				
	 	Section 1.01	 	Definitions	  	 	1	  	
	 	Section 1.02	 	Rules of Interpretation	  	 	5	  	
		
ARTICLE II SALE AND PURCHASE	  	 	5	  	
				
	 	Section 2.01	 	Sale and Purchase	  	 	5	  	
	 	Section 2.02	 	Closing	  	 	6	  	
	 	Section 2.03	 	Seller Deliverables	  	 	6	  	
	 	Section 2.04	 	Buyer Deliverables	  	 	7	  	
	 	Section 2.05	 	Withholding	  	 	7	  	
		
ARTICLE III REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER	  	 	7	  	
				
	 	Section 3.01	 	Organization	  	 	7	  	
	 	Section 3.02	 	Validity of Agreement; Authorization	  	 	7	  	
	 	Section 3.03	 	Consents and Approvals	  	 	7	  	
	 	Section 3.04	 	Noncontravention	  	 	8	  	
	 	Section 3.05	 	Ownership, Due Authorization and Transfer of Purchased Units	  	 	8	  	
	 	Section 3.06	 	Litigation	  	 	8	  	
	 	Section 3.07	 	Financial Advisors	  	 	8	  	
		
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER	  	 	8	  	
				
	 	Section 4.01	 	Organization; Affiliated Status	  	 	8	  	
	 	Section 4.02	 	Validity of Agreement; Authorization	  	 	9	  	
	 	Section 4.03	 	Consents and Approvals	  	 	9	  	
	 	Section 4.04	 	Noncontravention	  	 	9	  	
	 	Section 4.05	 	Investment Intent	  	 	9	  	
	 	Section 4.06	 	Available Funds	  	 	10	  	
	 	Section 4.07	 	Financial Advisors	  	 	10	  	
	 	Section 4.08	 	Litigation	  	 	10	  	
		
ARTICLE V COVENANTS	  	 	10	  	
				
	 	Section 5.01	 	Transfer Taxes	  	 	10	  	
	 	Section 5.02	 	Other Tax Matters	  	 	10	  	
	 	Section 5.03	 	Further Assurances	  	 	10	  	
		
ARTICLE VI INDEMNIFICATION	  	 	10	  	
				
	 	Section 6.01	 	Survival of Representations and Warranties	  	 	10	  	
	 	Section 6.02	 	Indemnification	  	 	11	  	
	 	Section 6.03	 	Indemnification Procedure	  	 	12	  	
 
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 	 	 	 	 	  	Page	 	
				
	 	Section 6.04	 	Limitations	  	 	13	  	
	 	Section 6.05	 	Calculation of Losses	  	 	13	  	
	 	Section 6.06	 	No Duplication	  	 	13	  	
	 	Section 6.07	 	Tax Treatment of Indemnity Payments	  	 	13	  	
	 	Section 6.08	 	Exclusive Remedy	  	 	13	  	
		
ARTICLE VII MISCELLANEOUS	  	 	14	  	
				
	 	Section 7.01	 	Amendments and Modifications	  	 	14	  	
	 	Section 7.02	 	Waiver	  	 	14	  	
	 	Section 7.03	 	Notices	  	 	14	  	
	 	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	  	 	16	  	
	 	Section 7.10	 	Severability	  	 	16	  	
	 	Section 7.11	 	Facsimiles; Electronic Transmission; Counterparts	  	 	16	  	
EXHIBITS AND SCHEDULES

	 	Exhibit A	  	Assignment and Assumption Agreement	
	 	Exhibit B	  	Purchase Price Allocation	
	 	Schedule 1.01(a)	  	Seller Knowledge	
	 	Schedule 1.01(b)	  	Buyer Knowledge	
	 	Schedule 2.01(b)	  	Wire Transfer Instructions	
 
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UNIT PURCHASE AGREEMENT
This UNIT PURCHASE AGREEMENT (this “ Agreement ”), dated as of October 31, 2016, is entered into between Red Willow Offshore, LLC, a Colorado limited liability company (the “ Seller ”), and D-Day Offshore Holdings, LLC, a Delaware limited liability company (the “ Buyer ”).
WHEREAS, Seller is (a) a Member of (i) Delta House FPS LLC, a Delaware limited liability company (“ FPS LLC ”), and (ii) Delta House Oil and Gas Lateral LLC, a Delaware limited liability company (“ Lateral LLC ”), and (b) a party to (i) that certain Amended and Restated Limited Liability Company Operating Agreement of FPS LLC, dated as of December 6, 2012, as amended by that certain First Amendment thereto, dated as of June 20, 2014, that certain Second Amendment thereto, dated as of September 17, 2014, and that certain Third Amendment thereto, dated as of August 27, 2015 (the “ FPS LLC Agreement ”), and (ii) that certain Amended and Restated Limited Liability Company Operating Agreement of Lateral LLC, dated as of December 6, 2012, as amended by that certain First Amendment thereto, dated as of September 17, 2014, and that Second Amendment thereto, dated as of August 27, 2015 (the “ Lateral LLC Agreement ,” together with the FPS LLC Agreement, the “ LLC Agreements ,” and each, an “ LLC Agreement ”);
WHEREAS, Buyer is an “Affiliate” (as defined in the LLC Agreements) of (a) Stork Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of FPS LLC and a party to the FPS LLC Agreement, (b) Otter Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of Lateral LLC and a party to the Lateral LLC Agreement, and (c) Pinto Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of each of the FPS LLC and the Lateral LLC and a party to each of the FPS LLC Agreement and the Lateral LLC Agreement;
WHEREAS, the Seller owns 1,555.26731 Class A Units of FPS LLC and 91.27622 Class A Units of Lateral LLC; and
WHEREAS, the Buyer desires to purchase from the Seller, and the Seller desires to sell to the Buyer, 1,555.26730 Class A Units of FPS LLC and 91.27621 Class A Units of Lateral LLC (together, the “ Purchased Units ”), 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
 
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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.
“ 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.
“ Buyer ” has the meaning specified in the preamble of this Agreement.
“ Buyer Indemnified Parties ” has the meaning specified in Section 6.02(a) .
“ 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.
“ Collateral Agent ” has the meaning specified in the FPS LLC Pledge Agreement.
“ Commission ” means the United States Securities and Exchange Commission.
“ 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.
“ FPS LLC ” has the meaning specified in the recitals to this Agreement.
“ FPS LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ FPS LLC Pledge Agreement ” means that certain Pledge Agreement dated as of June 20, 2014, from the pledgors referred to therein and Deutsche Bank Trust Company Americas, as collateral agent.
 
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“ 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.
“ 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) .
“ Lateral LLC ” has the meaning specified in the recitals to this Agreement.
“ Lateral LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ 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.
 
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“ LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ Loss ” has the meaning specified in Section 6.02(a) .
“ Member ” has the meaning specified in the FPS LLC Agreement or the Lateral LLC Agreement, as applicable.
“ 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 FPS LLC Agreement or the Lateral LLC Agreement, as applicable, (b) restrictions on sales of securities under applicable securities Laws and, (c) solely with respect to FPS LLC, Liens securing Indebtedness of FPS LLC.
“ Person ” means any individual, partnership, limited partnership, limited liability company, corporation, joint venture, trust, cooperative, association, foreign trust, unincorporated organization, foreign business organization or Governmental Authority or any department or agency thereof, and the heirs, executors, administrators, legal representatives, successors, and assigns of such “Person” where the context so permits.
“ 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 Units ” 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 .
 
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“ 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 (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 Units free and clear of any and all Liens (other than Permitted Liens), and in consideration therefor, the Buyer agrees to pay Seller $13,252,810.37 (the “ Purchase Price ”), in accordance with Section 2.01(b).
 
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(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 Parties have agreed upon the purchase price allocation set forth in Exhibit B, 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. Each Party shall prepare and file all tax returns in a manner consistent with such 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 ”).
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 a duly authorized representative of the 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 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;
(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; and
(d) a copy of (i) the notice delivered by Seller to the Collateral Agent pursuant to and in accordance with Section 9(b) of the FPS LLC Pledge Agreement dated as of a date at least five (5) Business Days prior to the Closing Date and (ii) any other documentation reasonably requested by the Collateral Agent under the FPS LLC Pledge Agreement pursuant to Section 9(b) of the FPS LLC Pledge Agreement (including any transfer powers relating to newly-issued membership interest certificates).
 
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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 the sole and managing member of the Buyer 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.
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 action 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.
 
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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 Units .
(a) The Seller is the record and beneficial owner of the Purchased Units.
(b) The Seller has good and valid title to the Purchased Units 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 Units held by it as provided in this Agreement, and such delivery will convey to the Buyer good and marketable title to such Purchased Units free and clear of any and all Liens (other than Permitted Liens and those arising under this Agreement).
(c) All of the Purchased Units have been duly authorized and validly issued.
(d) Except as set forth in the FPS LLC Agreement or the Lateral LLC Agreement, as applicable, and 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 any of the Purchased Units.
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 transactions contemplated by the Transaction Documents or otherwise relating to such transactions, the Purchased Units 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; Affiliated Status . The Buyer is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. Buyer is an “Affiliate” (as defined in the LLC Agreements) of (a) Stork Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of FPS LLC and a party to the FPS LLC Agreement, (b) Otter Offshore Holdings, LLC, a Delaware limited liability company, which is a
 
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Member of Lateral LLC and a party to the Lateral LLC Agreement, and (c) Pinto Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of each of the FPS LLC and the Lateral LLC and a party to each of the FPS LLC Agreement and the Lateral LLC Agreement.
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 action 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).
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 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 Units and (c) is not relying on any representations of Seller other than those set forth in Article III . The Buyer acknowledges and agrees that other than the representations and warranties set forth in Article III hereof, the Buyer is acquiring the Purchased Units on an “as-is, where-is basis” without representations and warranties of any type whatsoever. The Buyer agrees that it will not transfer all or any number of the Purchased Units, or solicit offers to buy from or otherwise approach or negotiate in respect thereof with any Person or Persons whomsoever, all or any number of the Purchased Units in any manner that would violate the applicable LLC Agreements 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 Units.
 
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Section 4.06 Available Funds . The Buyer has access to all of the funds necessary to pay the Purchase Price for the Purchased Units 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 Units or the Transaction Documents.
ARTICLE V
COVENANTS
Section 5.01 Transfer Taxes . Notwithstanding Section 7.07 , any Transfer Tax will be borne by the Seller, and the Seller will provide the Buyer with evidence satisfactory to the Buyer 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 Other Tax Matters . For purposes of allocating the taxable income of FPS LLC and Lateral LLC for the 2016 tax year between Seller and Buyer, the Parties shall cause FPS LLC and Lateral LLC to use an interim closing of the books as of the Closing Date.
Section 5.03 Further Assurances . Following the Closing, the Parties shall each (i) take all further action as may be required or reasonably requested by the Collateral Agent pursuant to the FPS LLC Pledge Agreement in connection with the transfer of the Class A Units of FPS LLC pursuant to this Agreement and (ii) execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions consistent with the terms of this Agreement 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
 
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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 .
(a) 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 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, the Assignment and Assumption Agreement, or any certificate delivered pursuant hereto; and
(ii) any breach of any covenant or other agreement on the part of the Seller under this Agreement, the Assignment and Assumption 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 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, the Assignment and Assumption Agreement, or any certificate delivered pursuant hereto; and
(ii) any breach of any covenant or other agreement on the part of the Buyer under this Agreement, the Assignment and Assumption 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
 
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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 .
(a) 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 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
 
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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 .
(a) 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.
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.
 
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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:
c/o American Midstream Partners, LP
2103 CityWest Blvd, Building 4, Suite 800
Houston, TX 77042
Attention:     Regina Gregory
Facsimile:    (713) 278-8870
If to the Seller:
Red Willow Offshore, LLC
1415 Louisiana Street, Suite 4000
Houston, TX 77002
Attention:     Rex Richardson
Facsimile:    281-822-7501
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
 
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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 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 Units 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 applicable 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, each Party shall pay its own costs and expenses (including legal, accounting, financial advisory and consulting fees and expenses) incurred by such Party in connection with the negotiation and consummation of the transactions contemplated by this Agreement and the other Transaction Documents.
Section 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.
 
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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 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 .]
 
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IN WITNESS WHEREOF, the Parties execute and deliver this Agreement, effective as of the date first above written.

THE BUYER:	
	
D-DAY OFFSHORE HOLDINGS, LLC	
		
By:	 	/s/ Eric T. Kalamaras	
Name:	 	Eric T. Kalamaras	
Title:	 	Senior Vice President and Chief Financial Officer	
[Signature Page to Unit Purchase Agreement]

			
	 	THE SELLER:	
	
RED WILLOW OFFSHORE, LLC	
		
By:	 	/s/ Richard L. Smith	
Name:	 	Richard L. Smith	
Title:	 	Authorized Representative	
[Signature Page to Unit Purchase Agreement]

Exhibit 2.2
EXECUTION VERSION
UNIT PURCHASE AGREEMENT
BY AND BETWEEN
ILX PROSPECT NIEDERMEYER, LLC
AS SELLER
AND
D-DAY OFFSHORE HOLDINGS, LLC
AS BUYER

TABLE OF CONTENTS

ARTICLE I DEFINITIONS	  	 	1	  	
				
	 	Section 1.01	 	Definitions	  	 	1	  	
	 	Section 1.02	 	Rules of Interpretation	  	 	5	  	
		
ARTICLE II SALE AND PURCHASE	  	 	5	  	
				
	 	Section 2.01	 	Sale and Purchase	  	 	5	  	
	 	Section 2.02	 	Closing	  	 	6	  	
	 	Section 2.03	 	Seller Deliverables	  	 	6	  	
	 	Section 2.04	 	Buyer Deliverables	  	 	7	  	
	 	Section 2.05	 	Withholding	  	 	7	  	
		
ARTICLE III REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER	  	 	7	  	
				
	 	Section 3.01	 	Organization	  	 	7	  	
	 	Section 3.02	 	Validity of Agreement; Authorization	  	 	7	  	
	 	Section 3.03	 	Consents and Approvals	  	 	7	  	
	 	Section 3.04	 	Noncontravention	  	 	8	  	
	 	Section 3.05	 	Ownership, Due Authorization and Transfer of Purchased Units	  	 	8	  	
	 	Section 3.06	 	Litigation	  	 	8	  	
	 	Section 3.07	 	Financial Advisors	  	 	8	  	
		
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER	  	 	8	  	
				
	 	Section 4.01	 	Organization; Affiliated Status	  	 	8	  	
	 	Section 4.02	 	Validity of Agreement; Authorization	  	 	9	  	
	 	Section 4.03	 	Consents and Approvals	  	 	9	  	
	 	Section 4.04	 	Noncontravention	  	 	9	  	
	 	Section 4.05	 	Investment Intent	  	 	9	  	
	 	Section 4.06	 	Available Funds	  	 	9	  	
	 	Section 4.07	 	Financial Advisors	  	 	10	  	
	 	Section 4.08	 	Litigation	  	 	10	  	
		
ARTICLE V COVENANTS	  	 	10	  	
				
	 	Section 5.01	 	Transfer Taxes	  	 	10	  	
	 	Section 5.02	 	Other Tax Matters	  	 	10	  	
	 	Section 5.03	 	Further Assurances	  	 	10	  	
		
ARTICLE VI INDEMNIFICATION	  	 	10	  	
				
	 	Section 6.01	 	Survival of Representations and Warranties	  	 	10	  	
	 	Section 6.02	 	Indemnification	  	 	11	  	
	 	Section 6.03	 	Indemnification Procedure	  	 	11	  	
 
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 	 	 	 	 	  	Page	 	
				
	 	Section 6.04	 	Limitations	  	 	13	  	
	 	Section 6.05	 	Calculation of Losses	  	 	13	  	
	 	Section 6.06	 	No Duplication	  	 	13	  	
	 	Section 6.07	 	Tax Treatment of Indemnity Payments	  	 	13	  	
	 	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	  	 	14	  	
	 	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	
 
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UNIT PURCHASE AGREEMENT
This UNIT PURCHASE AGREEMENT (this “ Agreement ”), dated as of October 31, 2016, is entered into between ILX Prospect Niedermeyer, LLC, a Delaware limited liability company (the “ Seller ”), and D-Day Offshore Holdings, LLC, a Delaware limited liability company (the “ Buyer ”).
WHEREAS, Seller is (a) a Member of (i) Delta House FPS LLC, a Delaware limited liability company (“ FPS LLC ”), and (ii) Delta House Oil and Gas Lateral LLC, a Delaware limited liability company (“ Lateral LLC ”), and (b) a party to (i) that certain Amended and Restated Limited Liability Company Operating Agreement of FPS LLC, dated as of December 6, 2012, as amended by that certain First Amendment thereto, dated as of June 20, 2014, that certain Second Amendment thereto, dated as of September 17, 2014, and that certain Third Amendment thereto, dated as of August 27, 2015 (the “ FPS LLC Agreement ”), and (ii) that certain Amended and Restated Limited Liability Company Operating Agreement of Lateral LLC, dated as of December 6, 2012, as amended by that certain First Amendment thereto, dated as of September 17, 2014, and that Second Amendment thereto, dated as of August 27, 2015 (the “ Lateral LLC Agreement ,” together with the FPS LLC Agreement, the “ LLC Agreements ,” and each, an “ LLC Agreement ”);
WHEREAS, Buyer is an “Affiliate” (as defined in the LLC Agreements) of (a) Stork Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of FPS LLC and a party to the FPS LLC Agreement, (b) Otter Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of Lateral LLC and a party to the Lateral LLC Agreement, and (c) Pinto Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of each of the FPS LLC and the Lateral LLC and a party to each of the FPS LLC Agreement and the Lateral LLC Agreement;
WHEREAS, the Seller owns 165.93205 Class A Units of FPS LLC and 9.73829 Class A Units of Lateral LLC; and
WHEREAS, the Buyer desires to purchase from the Seller, and the Seller desires to sell to the Buyer, 122.84877 Class A Units of FPS LLC and 7.20980 Class A Units of Lateral LLC (together, the “ Purchased Units ”), 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
 
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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.
“ 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.
“ Buyer ” has the meaning specified in the preamble of this Agreement.
“ Buyer Indemnified Parties ” has the meaning specified in Section 6.02(a) .
“ 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.
“ Collateral Agent ” has the meaning specified in the FPS LLC Pledge Agreement.
“ Commission ” means the United States Securities and Exchange Commission.
“ 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.
“ FPS LLC ” has the meaning specified in the recitals to this Agreement.
“ FPS LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ FPS LLC Pledge Agreement ” means that certain Pledge Agreement dated as of June 20, 2014, from the pledgors referred to therein and Deutsche Bank Trust Company Americas, as collateral agent.
 
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“ 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.
“ 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) .
“ Lateral LLC ” has the meaning specified in the recitals to this Agreement.
“ Lateral LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ 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.
 
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“ LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ Loss ” has the meaning specified in Section 6.02(a) .
“ Member ” has the meaning specified in the FPS LLC Agreement or the Lateral LLC Agreement, as applicable.
“ 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 FPS LLC Agreement or the Lateral LLC Agreement, as applicable, (b) restrictions on sales of securities under applicable securities Laws and, (c) solely with respect to FPS LLC, Liens securing Indebtedness of FPS LLC.
“ Person ” means any individual, partnership, limited partnership, limited liability company, corporation, joint venture, trust, cooperative, association, foreign trust, unincorporated organization, foreign business organization or Governmental Authority or any department or agency thereof, and the heirs, executors, administrators, legal representatives, successors, and assigns of such “Person” where the context so permits.
“ 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 Units ” 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 .
 
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“ 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 (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 Units free and clear of any and all Liens (other than Permitted Liens), and in consideration therefor, the Buyer agrees to pay Seller $1,046,824.15 (the “ Purchase Price ”), in accordance with Section 2.01(b).
 
5

(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 ”).
Section 2.03 Seller Deliver ables . 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 an authorized officer of the sole member of the 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 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;
(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; and
(d) a copy of (i) the notice delivered by Seller to the Collateral Agent pursuant to and in accordance with Section 9(b) of the FPS LLC Pledge Agreement dated as of a date at least five (5) Business Days prior to the Closing Date and (ii) any other documentation reasonably requested by the Collateral Agent under the FPS LLC Pledge Agreement pursuant to Section 9(b) of the FPS LLC Pledge Agreement (including any transfer powers relating to newly-issued membership interest certificates).
 
6

Section 2.04 Buyer Deliver ables . 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 the sole and managing member of the Buyer 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.
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.
 
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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 Units .
(a) The Seller is the record and beneficial owner of the Purchased Units.
(b) The Seller has good and valid title to the Purchased Units 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 Units held by it as provided in this Agreement, and such delivery will convey to the Buyer good and marketable title to such Purchased Units free and clear of any and all Liens (other than Permitted Liens and those arising under this Agreement).
(c) All of the Purchased Units have been duly authorized and validly issued.
(d) Except as set forth in the FPS LLC Agreement or the Lateral LLC Agreement, as applicable, and 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 any of the Purchased Units.
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 transactions contemplated by the Transaction Documents or otherwise relating to such transactions, the Purchased Units 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; Affiliated Status . The Buyer is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. Buyer is an “Affiliate” (as defined in the LLC Agreements) of (a) Stork Offshore Holdings, LLC, a Delaware limited liability company, which is a
 
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Member of FPS LLC and a party to the FPS LLC Agreement, (b) Otter Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of Lateral LLC and a party to the Lateral LLC Agreement, and (c) Pinto Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of each of the FPS LLC and the Lateral LLC and a party to each of the FPS LLC Agreement and the Lateral LLC Agreement.
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).
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 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 Units 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 Units, or solicit offers to buy from or otherwise approach or negotiate in respect thereof with any Person or Persons whomsoever, all or any number of the Purchased Units in any manner that would violate the applicable LLC Agreements 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 Units.
Section 4.06 Available Funds . The Buyer has access to all of the funds necessary for the acquisition of all of the Purchased Units pursuant to this Agreement, as and when needed, and to perform its obligations under this Agreement.
 
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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 Units or the Transaction Documents.
ARTICLE V
COVENANTS
Section 5.01 Transfer Taxes . Notwithstanding Section 7.07 , any Transfer Tax will be borne by the Seller, and the Seller will provide the Buyer with evidence satisfactory to the Buyer 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 Other Tax Matters . For purposes of allocating the taxable income of FPS LLC and Lateral LLC for the 2016 tax year between Seller and Buyer, the Parties shall cause FPS LLC and Lateral LLC to use an interim closing of the books as of the Closing Date.
Section 5.03 Further Assurances . Following the Closing, the Parties shall each (i) take all further action as may be required or reasonably requested by the Collateral Agent pursuant to the FPS LLC Pledge Agreement in connection with the transfer of the Class A Units of FPS LLC pursuant to this Agreement and (ii) 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,
 
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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 .
(a) 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 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
(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 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 .
(a) 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
 
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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 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.
 
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Section 6.04 Limitations .
(a) 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.
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
 
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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:

c/o American Midstream Partners, LP
2103 CityWest Blvd, Building 4, Suite 800
Houston, TX 77042	
Attention:	  	Regina Gregory	
Facsimile:	  	(713) 278-8870	
If to the Seller:

ILX Prospect Niedermeyer, LLC
712 Fifth Avenue, 51st Floor
New York, NY 10019	
Attention:	  	General Counsel	
Facsimile:	  	(888) 801-9301	
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) the 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) the 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
 
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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 Units 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 applicable 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, each Party shall pay its own costs and expenses (including legal, accounting, financial advisory and consulting fees and expenses) incurred by such Party in connection with the negotiation and consummation of the transactions contemplated by this Agreement and the other Transaction Documents.
Section 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 Agreement, or the application of such provision to Persons or circumstances other than those as
 
15

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

THE BUYER:	
	
D-DAY OFFSHORE HOLDINGS, LLC	
		
By:	 	/s/ Eric T. Kalamaras	
Name:	 	Eric T. Kalamaras	
Title:	 	Senior Vice President and Chief Financial Officer	
[Signature Page to Unit Purchase Agreement]

			
	 	THE SELLER:	
	
ILX PROSPECT NIEDERMEYER, LLC	
		
By:	 	ILX Holdings, LLC, its sole member	
		
By:	 	/s/ W. Greg Tabor	
Name:	 	W. Greg Tabor	
Title:	 	Director	
 
[Signature Page to Unit Purchase Agreement]

Exhibit 2.3
EXECUTION VERSION
UNIT PURCHASE AGREEMENT
BY AND BETWEEN
ILX PROSPECT DILLER, LLC
AS SELLER
AND
D-DAY OFFSHORE HOLDINGS, LLC
AS BUYER

TABLE OF CONTENTS

ARTICLE I DEFINITIONS	  	 	1	  	
				
	 	Section 1.01	 	Definitions	  	 	1	  	
	 	Section 1.02	 	Rules of Interpretation	  	 	5	  	
		
ARTICLE II SALE AND PURCHASE	  	 	5	  	
				
	 	Section 2.01	 	Sale and Purchase	  	 	5	  	
	 	Section 2.02	 	Closing	  	 	6	  	
	 	Section 2.03	 	Seller Deliverables	  	 	6	  	
	 	Section 2.04	 	Buyer Deliverables	  	 	7	  	
	 	Section 2.05	 	Withholding	  	 	7	  	
		
ARTICLE III REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER	  	 	7	  	
				
	 	Section 3.01	 	Organization	  	 	7	  	
	 	Section 3.02	 	Validity of Agreement; Authorization	  	 	7	  	
	 	Section 3.03	 	Consents and Approvals	  	 	7	  	
	 	Section 3.04	 	Noncontravention	  	 	8	  	
	 	Section 3.05	 	Ownership, Due Authorization and Transfer of Purchased Units	  	 	8	  	
	 	Section 3.06	 	Litigation	  	 	8	  	
	 	Section 3.07	 	Financial Advisors	  	 	8	  	
		
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER	  	 	8	  	
				
	 	Section 4.01	 	Organization; Affiliated Status	  	 	8	  	
	 	Section 4.02	 	Validity of Agreement; Authorization	  	 	9	  	
	 	Section 4.03	 	Consents and Approvals	  	 	9	  	
	 	Section 4.04	 	Noncontravention	  	 	9	  	
	 	Section 4.05	 	Investment Intent	  	 	9	  	
	 	Section 4.06	 	Available Funds	  	 	9	  	
	 	Section 4.07	 	Financial Advisors	  	 	10	  	
	 	Section 4.08	 	Litigation	  	 	10	  	
		
ARTICLE V COVENANTS	  	 	10	  	
				
	 	Section 5.01	 	Transfer Taxes	  	 	10	  	
	 	Section 5.02	 	Other Tax Matters	  	 	10	  	
	 	Section 5.03	 	Further Assurances	  	 	10	  	
		
ARTICLE VI INDEMNIFICATION	  	 	10	  	
				
	 	Section 6.01	 	Survival of Representations and Warranties	  	 	10	  	
	 	Section 6.02	 	Indemnification	  	 	11	  	
	 	Section 6.03	 	Indemnification Procedure	  	 	11	  	
 
i

									
 	 	 	 	 	  	Page	 	
				
	 	Section 6.04	 	Limitations	  	 	13	  	
	 	Section 6.05	 	Calculation of Losses	  	 	13	  	
	 	Section 6.06	 	No Duplication	  	 	13	  	
	 	Section 6.07	 	Tax Treatment of Indemnity Payments	  	 	13	  	
	 	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	  	 	14	  	
	 	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	
 
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UNIT PURCHASE AGREEMENT
This UNIT PURCHASE AGREEMENT (this “ Agreement ”), dated as of October 31, 2016, is entered into between ILX Prospect Diller, LLC, a Delaware limited liability company (the “ Seller ”), and D-Day Offshore Holdings, LLC, a Delaware limited liability company (the “ Buyer ”).
WHEREAS, Seller is (a) a Member of (i) Delta House FPS LLC, a Delaware limited liability company (“ FPS LLC ”), and (ii) Delta House Oil and Gas Lateral LLC, a Delaware limited liability company (“ Lateral LLC ”), and (b) a party to (i) that certain Amended and Restated Limited Liability Company Operating Agreement of FPS LLC, dated as of December 6, 2012, as amended by that certain First Amendment thereto, dated as of June 20, 2014, that certain Second Amendment thereto, dated as of September 17, 2014, and that certain Third Amendment thereto, dated as of August 27, 2015 (the “ FPS LLC Agreement ”), and (ii) that certain Amended and Restated Limited Liability Company Operating Agreement of Lateral LLC, dated as of December 6, 2012, as amended by that certain First Amendment thereto, dated as of September 17, 2014, and that Second Amendment thereto, dated as of August 27, 2015 (the “ Lateral LLC Agreement ,” together with the FPS LLC Agreement, the “ LLC Agreements ,” and each, an “ LLC Agreement ”);
WHEREAS, Buyer is an “Affiliate” (as defined in the LLC Agreements) of (a) Stork Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of FPS LLC and a party to the FPS LLC Agreement, (b) Otter Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of Lateral LLC and a party to the Lateral LLC Agreement, and (c) Pinto Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of each of the FPS LLC and the Lateral LLC and a party to each of the FPS LLC Agreement and the Lateral LLC Agreement;
WHEREAS, the Seller owns 363.21828 Class A Units of FPS LLC and 21.31672 Class A Units of Lateral LLC; and
WHEREAS, the Buyer desires to purchase from the Seller, and the Seller desires to sell to the Buyer, 268.91079 Class A Units of FPS LLC and 15.78196 Class A Units of Lateral LLC (together, the “ Purchased Units ”), 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
 
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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.
“ 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.
“ Buyer ” has the meaning specified in the preamble of this Agreement.
“ Buyer Indemnified Parties ” has the meaning specified in Section 6.02(a) .
“ 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.
“ Collateral Agent ” has the meaning specified in the FPS LLC Pledge Agreement.
“ Commission ” means the United States Securities and Exchange Commission.
“ 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.
“ FPS LLC ” has the meaning specified in the recitals to this Agreement.
“ FPS LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ FPS LLC Pledge Agreement ” means that certain Pledge Agreement dated as of June 20, 2014, from the pledgors referred to therein and Deutsche Bank Trust Company Americas, as collateral agent.
 
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“ 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.
“ 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) .
“ Lateral LLC ” has the meaning specified in the recitals to this Agreement.
“ Lateral LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ 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.
 
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“ LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ Loss ” has the meaning specified in Section 6.02(a) .
“ Member ” has the meaning specified in the FPS LLC Agreement or the Lateral LLC Agreement, as applicable.
“ 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 FPS LLC Agreement or the Lateral LLC Agreement, as applicable, (b) restrictions on sales of securities under applicable securities Laws and, (c) solely with respect to FPS LLC, Liens securing Indebtedness of FPS LLC.
“ Person ” means any individual, partnership, limited partnership, limited liability company, corporation, joint venture, trust, cooperative, association, foreign trust, unincorporated organization, foreign business organization or Governmental Authority or any department or agency thereof, and the heirs, executors, administrators, legal representatives, successors, and assigns of such “Person” where the context so permits.
“ 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 Units ” 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 .
 
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“ 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 (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 Units free and clear of any and all Liens (other than Permitted Liens), and in consideration therefor, the Buyer agrees to pay Seller $2,291,454.11 (the “ Purchase Price ”), in accordance with Section 2.01(b).
 
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(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 ”).
Section 2.03 Seller Deliver ables . 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 an authorized officer of the sole member of the 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 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;
(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; and
(d) a copy of (i) the notice delivered by Seller to the Collateral Agent pursuant to and in accordance with Section 9(b) of the FPS LLC Pledge Agreement dated as of a date at least five (5) Business Days prior to the Closing Date and (ii) any other documentation reasonably requested by the Collateral Agent under the FPS LLC Pledge Agreement pursuant to Section 9(b) of the FPS LLC Pledge Agreement (including any transfer powers relating to newly-issued membership interest certificates).
 
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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 the sole and managing member of the Buyer 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.
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.
 
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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 Units .
(a) The Seller is the record and beneficial owner of the Purchased Units.
(b) The Seller has good and valid title to the Purchased Units 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 Units held by it as provided in this Agreement, and such delivery will convey to the Buyer good and marketable title to such Purchased Units free and clear of any and all Liens (other than Permitted Liens and those arising under this Agreement).
(c) All of the Purchased Units have been duly authorized and validly issued.
(d) Except as set forth in the FPS LLC Agreement or the Lateral LLC Agreement, as applicable, and 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 any of the Purchased Units.
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 transactions contemplated by the Transaction Documents or otherwise relating to such transactions, the Purchased Units 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; Affiliated Status . The Buyer is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. Buyer is an “Affiliate” (as defined in the LLC Agreements) of (a) Stork Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of FPS LLC and a party to the FPS LLC Agreement, (b) Otter Offshore Holdings, LLC, a Delaware limited liability company, which is a
 
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Member of Lateral LLC and a party to the Lateral LLC Agreement, and (c) Pinto Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of each of the FPS LLC and the Lateral LLC and a party to each of the FPS LLC Agreement and the Lateral LLC Agreement.
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).
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 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 Units 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 Units, or solicit offers to buy from or otherwise approach or negotiate in respect thereof with any Person or Persons whomsoever, all or any number of the Purchased Units in any manner that would violate the applicable LLC Agreements 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 Units.
Section 4.06 Available Funds . The Buyer has access to all of the funds necessary for the acquisition of all of the Purchased Units pursuant to this Agreement, as and when needed, and to perform its obligations under this Agreement.
 
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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 Units or the Transaction Documents.
ARTICLE V
COVENANTS
Section 5.01 Transfer Taxes . Notwithstanding Section 7.07 , any Transfer Tax will be borne by the Seller, and the Seller will provide the Buyer with evidence satisfactory to the Buyer 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 Other Tax Matters . For purposes of allocating the taxable income of FPS LLC and Lateral LLC for the 2016 tax year between Seller and Buyer, the Parties shall cause FPS LLC and Lateral LLC to use an interim closing of the books as of the Closing Date.
Section 5.03 Further Assurances . Following the Closing, the Parties shall each (i) take all further action as may be required or reasonably requested by the Collateral Agent pursuant to the FPS LLC Pledge Agreement in connection with the transfer of the Class A Units of FPS LLC pursuant to this Agreement and (ii) 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,
 
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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 .
(a) 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 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
(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 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 .
(a) 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
 
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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 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.
 
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Section 6.04 Limitations .
(a) 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.
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
 
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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:
c/o American Midstream Partners, LP
2103 CityWest Blvd, Building 4, Suite 800
Houston, TX 77042
Attention:       Regina Gregory
Facsimile:    (713) 278-8870
If to the Seller:
ILX Prospect Diller, LLC
712 Fifth Avenue, 51st Floor
New York, NY 10019
Attention:       General Counsel
Facsimile:    (888) 801-9301
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) the 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) the 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
 
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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 Units 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 applicable 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, each Party shall pay its own costs and expenses (including legal, accounting, financial advisory and consulting fees and expenses) incurred by such Party in connection with the negotiation and consummation of the transactions contemplated by this Agreement and the other Transaction Documents.
Section 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 Agreement, or the application of such provision to Persons or circumstances other than those as
 
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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 .]
 
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IN WITNESS WHEREOF, the Parties execute and deliver this Agreement, effective as of the date first above written.

THE BUYER:	
	
D-DAY OFFSHORE HOLDINGS, LLC	
		
By:	 	/s/ Eric T. Kalamaras	
Name:	 	Eric T. Kalamaras	
Title:	 	Senior Vice President and Chief Financial Officer	
 
[Signature Page to Unit Purchase Agreement]

			
THE SELLER:	
	
ILX PROSPECT DILLER, LLC	
		
By:	 	ILX Holdings, LLC, its sole member	
		
By:	 	/s/ W. Greg Tabor	
Name:	 	W. Greg Tabor	
Title:	 	Director	
 
[Signature Page to Unit Purchase Agreement]

Exhibit 2.4
EXECUTION VERSION
UNIT PURCHASE AGREEMENT
BY AND BETWEEN
ILX PROSPECT MARMALARD, LLC
AS SELLER
AND
D-DAY OFFSHORE HOLDINGS, LLC
AS BUYER

TABLE OF CONTENTS

ARTICLE I DEFINITIONS	  	 	1	  	
				
	 	Section 1.01	 	Definitions	  	 	1	  	
	 	Section 1.02	 	Rules of Interpretation	  	 	5	  	
		
ARTICLE II SALE AND PURCHASE	  	 	5	  	
				
	 	Section 2.01	 	Sale and Purchase	  	 	5	  	
	 	Section 2.02	 	Closing	  	 	6	  	
	 	Section 2.03	 	Seller Deliverables	  	 	6	  	
	 	Section 2.04	 	Buyer Deliverables	  	 	7	  	
	 	Section 2.05	 	Withholding	  	 	7	  	
		
ARTICLE III REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER	  	 	7	  	
				
	 	Section 3.01	 	Organization	  	 	7	  	
	 	Section 3.02	 	Validity of Agreement; Authorization	  	 	7	  	
	 	Section 3.03	 	Consents and Approvals	  	 	7	  	
	 	Section 3.04	 	Noncontravention	  	 	8	  	
	 	Section 3.05	 	Ownership, Due Authorization and Transfer of Purchased Units	  	 	8	  	
	 	Section 3.06	 	Litigation	  	 	8	  	
	 	Section 3.07	 	Financial Advisors	  	 	8	  	
		
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER	  	 	8	  	
				
	 	Section 4.01	 	Organization; Affiliated Status	  	 	8	  	
	 	Section 4.02	 	Validity of Agreement; Authorization	  	 	9	  	
	 	Section 4.03	 	Consents and Approvals	  	 	9	  	
	 	Section 4.04	 	Noncontravention	  	 	9	  	
	 	Section 4.05	 	Investment Intent	  	 	9	  	
	 	Section 4.06	 	Available Funds	  	 	9	  	
	 	Section 4.07	 	Financial Advisors	  	 	10	  	
	 	Section 4.08	 	Litigation	  	 	10	  	
		
ARTICLE V COVENANTS	  	 	10	  	
				
	 	Section 5.01	 	Transfer Taxes	  	 	10	  	
	 	Section 5.02	 	Other Tax Matters	  	 	10	  	
	 	Section 5.03	 	Further Assurances	  	 	10	  	
		
ARTICLE VI INDEMNIFICATION	  	 	10	  	
				
	 	Section 6.01	 	Survival of Representations and Warranties	  	 	10	  	
	 	Section 6.02	 	Indemnification	  	 	11	  	
	 	Section 6.03	 	Indemnification Procedure	  	 	11	  	
 
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 	 	 	 	 	  	Page	 	
				
	 	Section 6.04	 	Limitations	  	 	13	  	
	 	Section 6.05	 	Calculation of Losses	  	 	13	  	
	 	Section 6.06	 	No Duplication	  	 	13	  	
	 	Section 6.07	 	Tax Treatment of Indemnity Payments	  	 	13	  	
	 	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	  	 	14	  	
	 	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	
 
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UNIT PURCHASE AGREEMENT
This UNIT PURCHASE AGREEMENT (this “ Agreement ”), dated as of October 31, 2016, is entered into between ILX Prospect Marmalard, LLC, a Delaware limited liability company (the “ Seller ”), and D-Day Offshore Holdings, LLC, a Delaware limited liability company (the “ Buyer ”).
WHEREAS, Seller is (a) a Member of (i) Delta House FPS LLC, a Delaware limited liability company (“ FPS LLC ”), and (ii) Delta House Oil and Gas Lateral LLC, a Delaware limited liability company (“ Lateral LLC ”), and (b) a party to (i) that certain Amended and Restated Limited Liability Company Operating Agreement of FPS LLC, dated as of December 6, 2012, as amended by that certain First Amendment thereto, dated as of June 20, 2014, that certain Second Amendment thereto, dated as of September 17, 2014, and that certain Third Amendment thereto, dated as of August 27, 2015 (the “ FPS LLC Agreement ”), and (ii) that certain Amended and Restated Limited Liability Company Operating Agreement of Lateral LLC, dated as of December 6, 2012, as amended by that certain First Amendment thereto, dated as of September 17, 2014, and that Second Amendment thereto, dated as of August 27, 2015 (the “ Lateral LLC Agreement ,” together with the FPS LLC Agreement, the “ LLC Agreements ,” and each, an “ LLC Agreement ”);
WHEREAS, Buyer is an “Affiliate” (as defined in the LLC Agreements) of (a) Stork Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of FPS LLC and a party to the FPS LLC Agreement, (b) Otter Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of Lateral LLC and a party to the Lateral LLC Agreement, and (c) Pinto Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of each of the FPS LLC and the Lateral LLC and a party to each of the FPS LLC Agreement and the Lateral LLC Agreement;
WHEREAS, the Seller owns 363.21828 Class A Units of FPS LLC and 21.31672 Class A Units of Lateral LLC; and
WHEREAS, the Buyer desires to purchase from the Seller, and the Seller desires to sell to the Buyer, 268.91079 Class A Units of FPS LLC and 15.78196 Class A Units of Lateral LLC (together, the “ Purchased Units ”), 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
 
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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.
“ 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.
“ Buyer ” has the meaning specified in the preamble of this Agreement.
“ Buyer Indemnified Parties ” has the meaning specified in Section 6.02(a) .
“ 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.
“ Collateral Agent ” has the meaning specified in the FPS LLC Pledge Agreement.
“ Commission ” means the United States Securities and Exchange Commission.
“ 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.
“ FPS LLC ” has the meaning specified in the recitals to this Agreement.
“ FPS LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ FPS LLC Pledge Agreement ” means that certain Pledge Agreement dated as of June 20, 2014, from the pledgors referred to therein and Deutsche Bank Trust Company Americas, as collateral agent.
 
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“ 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.
“ 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) .
“ Lateral LLC ” has the meaning specified in the recitals to this Agreement.
“ Lateral LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ 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.
 
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“ LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ Loss ” has the meaning specified in Section 6.02(a) .
“ Member ” has the meaning specified in the FPS LLC Agreement or the Lateral LLC Agreement, as applicable.
“ 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 FPS LLC Agreement or the Lateral LLC Agreement, as applicable, (b) restrictions on sales of securities under applicable securities Laws and, (c) solely with respect to FPS LLC, Liens securing Indebtedness of FPS LLC.
“ Person ” means any individual, partnership, limited partnership, limited liability company, corporation, joint venture, trust, cooperative, association, foreign trust, unincorporated organization, foreign business organization or Governmental Authority or any department or agency thereof, and the heirs, executors, administrators, legal representatives, successors, and assigns of such “Person” where the context so permits.
“ 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 Units ” 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 .
 
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“ 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 (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 Units free and clear of any and all Liens (other than Permitted Liens), and in consideration therefor, the Buyer agrees to pay Seller $2,291,454.11 (the “ Purchase Price ”), in accordance with Section 2.01(b).
 
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(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 ”).
Section 2.03 Seller Deliver ables . 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 an authorized officer of the sole member of the 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 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;
(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; and
(d) a copy of (i) the notice delivered by Seller to the Collateral Agent pursuant to and in accordance with Section 9(b) of the FPS LLC Pledge Agreement dated as of a date at least five (5) Business Days prior to the Closing Date and (ii) any other documentation reasonably requested by the Collateral Agent under the FPS LLC Pledge Agreement pursuant to Section 9(b) of the FPS LLC Pledge Agreement (including any transfer powers relating to newly-issued membership interest certificates).
 
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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 the sole and managing member of the Buyer 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.
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.
 
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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 Units .
(a) The Seller is the record and beneficial owner of the Purchased Units.
(b) The Seller has good and valid title to the Purchased Units 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 Units held by it as provided in this Agreement, and such delivery will convey to the Buyer good and marketable title to such Purchased Units free and clear of any and all Liens (other than Permitted Liens and those arising under this Agreement).
(c) All of the Purchased Units have been duly authorized and validly issued.
(d) Except as set forth in the FPS LLC Agreement or the Lateral LLC Agreement, as applicable, and 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 any of the Purchased Units.
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 transactions contemplated by the Transaction Documents or otherwise relating to such transactions, the Purchased Units 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; Affiliated Status . The Buyer is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. Buyer is an “Affiliate” (as defined in the LLC Agreements) of (a) Stork Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of FPS LLC and a party to the FPS LLC Agreement, (b) Otter Offshore Holdings, LLC, a Delaware limited liability company, which is a
 
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Member of Lateral LLC and a party to the Lateral LLC Agreement, and (c) Pinto Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of each of the FPS LLC and the Lateral LLC and a party to each of the FPS LLC Agreement and the Lateral LLC Agreement.
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).
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 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 Units 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 Units, or solicit offers to buy from or otherwise approach or negotiate in respect thereof with any Person or Persons whomsoever, all or any number of the Purchased Units in any manner that would violate the applicable LLC Agreements 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 Units.
Section 4.06 Available Funds . The Buyer has access to all of the funds necessary for the acquisition of all of the Purchased Units pursuant to this Agreement, as and when needed, and to perform its obligations under this Agreement.
 
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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 Units or the Transaction Documents.
ARTICLE V
COVENANTS
Section 5.01 Transfer Taxes . Notwithstanding Section 7.07 , any Transfer Tax will be borne by the Seller, and the Seller will provide the Buyer with evidence satisfactory to the Buyer 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 Other Tax Matters . For purposes of allocating the taxable income of FPS LLC and Lateral LLC for the 2016 tax year between Seller and Buyer, the Parties shall cause FPS LLC and Lateral LLC to use an interim closing of the books as of the Closing Date.
Section 5.03 Further Assurances . Following the Closing, the Parties shall each (i) take all further action as may be required or reasonably requested by the Collateral Agent pursuant to the FPS LLC Pledge Agreement in connection with the transfer of the Class A Units of FPS LLC pursuant to this Agreement and (ii) 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,
 
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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 .
(a) 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 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
(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 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 .
(a) 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
 
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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 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.
 
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Section 6.04 Limitations .
(a) 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.
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
 
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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:
c/o American Midstream Partners, LP
2103 CityWest Blvd, Building 4, Suite 800
Houston, TX 77042
			
Attention:	  	Regina Gregory	
Facsimile:	  	(713) 278-8870	
If to the Seller:
ILX Prospect Marmalard, LLC
712 Fifth Avenue, 51st Floor
New York, NY 10019
			
Attention:	  	General Counsel	
Facsimile:	  	(888) 801-9301	
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) the 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) the 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
 
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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 Units 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 applicable 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, each Party shall pay its own costs and expenses (including legal, accounting, financial advisory and consulting fees and expenses) incurred by such Party in connection with the negotiation and consummation of the transactions contemplated by this Agreement and the other Transaction Documents.
Section 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 Agreement, or the application of such provision to Persons or circumstances other than those as
 
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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 .]
 
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IN WITNESS WHEREOF, the Parties execute and deliver this Agreement, effective as of the date first above written.

THE BUYER:	
	
D-DAY OFFSHORE HOLDINGS, LLC	
		
By:	 	/s/ Eric T. Kalamaras	
Name:	 	Eric T. Kalamaras	
Title:	 	Senior Vice President and Chief Financial Officer	
[Signature Page to Unit Purchase Agreement]

			
   THE SELLER:	
	
ILX PROSPECT MARMALARD, LLC	
		
By:	 	ILX Holdings, LLC, its sole member	
		
By:	 	/s/ W. Greg Tabor	
Name:	 	W. Greg Tabor	
Title:	 	Director	
[Signature Page to Unit Purchase Agreement]

Exhibit 2.5
EXECUTION VERSION
UNIT PURCHASE AGREEMENT
BY AND BETWEEN
LLOG BLUEWATER HOLDINGS, L.L.C.
AS SELLER
AND
D-DAY OFFSHORE HOLDINGS, LLC
AS BUYER

TABLE OF CONTENTS

ARTICLE I DEFINITIONS	  	 	1	  	
				
	 	Section 1.01	  	Definitions	  	 	1	  	
	 	Section 1.02	  	Rules of Interpretation	  	 	5	  	
		
ARTICLE II SALE AND PURCHASE	  	 	5	  	
				
	 	Section 2.01	  	Sale and Purchase	  	 	5	  	
	 	Section 2.02	  	Closing	  	 	6	  	
	 	Section 2.03	  	Seller Deliverables	  	 	6	  	
	 	Section 2.04	  	Buyer Deliverables	  	 	7	  	
	 	Section 2.05	  	Withholding	  	 	7	  	
		
ARTICLE III REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER	  	 	7	  	
				
	 	Section 3.01	  	Organization	  	 	7	  	
	 	Section 3.02	  	Validity of Agreement; Authorization	  	 	7	  	
	 	Section 3.03	  	Consents and Approvals	  	 	7	  	
	 	Section 3.04	  	Noncontravention	  	 	8	  	
	 	Section 3.05	  	Ownership, Due Authorization and Transfer of Purchased Units	  	 	8	  	
	 	Section 3.06	  	Litigation	  	 	8	  	
	 	Section 3.07	  	Financial Advisors	  	 	8	  	
		
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER	  	 	8	  	
				
	 	Section 4.01	  	Organization; Affiliated Status	  	 	8	  	
	 	Section 4.02	  	Validity of Agreement; Authorization	  	 	9	  	
	 	Section 4.03	  	Consents and Approvals	  	 	9	  	
	 	Section 4.04	  	Noncontravention	  	 	9	  	
	 	Section 4.05	  	Investment Intent	  	 	9	  	
	 	Section 4.06	  	Available Funds	  	 	9	  	
	 	Section 4.07	  	Financial Advisors	  	 	10	  	
	 	Section 4.08	  	Litigation	  	 	10	  	
		
ARTICLE V COVENANTS	  	 	10	  	
				
	 	Section 5.01	  	Transfer Taxes	  	 	10	  	
	 	Section 5.02	  	Other Tax Matters	  	 	10	  	
	 	Section 5.03	  	Further Assurances	  	 	10	  	
		
ARTICLE VI INDEMNIFICATION	  	 	10	  	
				
	 	Section 6.01	  	Survival of Representations and Warranties	  	 	10	  	
	 	Section 6.02	  	Indemnification	  	 	11	  	
	 	Section 6.03	  	Indemnification Procedure	  	 	11	  	
 
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 	 	 	  	 	  	Page	 	
				
	 	Section 6.04	  	Limitations	  	 	13	  	
	 	Section 6.05	  	Calculation of Losses	  	 	13	  	
	 	Section 6.06	  	No Duplication	  	 	13	  	
	 	Section 6.07	  	Tax Treatment of Indemnity Payments	  	 	13	  	
	 	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	  	 	14	  	
	 	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	  	 	16	  	
	 	Section 7.10	  	Severability	  	 	16	  	
	 	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	
 
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UNIT PURCHASE AGREEMENT
This UNIT PURCHASE AGREEMENT (this “ Agreement ”), dated as of October 31, 2016, is entered into between LLOG Bluewater Holdings, L.L.C., a Delaware limited liability company (the “ Seller ”), and D-Day Offshore Holdings, LLC, a Delaware limited liability company (the “ Buyer ”).
WHEREAS, Seller is (a) a Member of (i) Delta House FPS LLC, a Delaware limited liability company (“ FPS LLC ”), and (ii) Delta House Oil and Gas Lateral LLC, a Delaware limited liability company (“ Lateral LLC ”), and (b) a party to (i) that certain Amended and Restated Limited Liability Company Operating Agreement of FPS LLC, dated as of December 6, 2012, as amended by that certain First Amendment thereto, dated as of June 20, 2014, that certain Second Amendment thereto, dated as of September 17, 2014, and that certain Third Amendment thereto, dated as of August 27, 2015 (the “ FPS LLC Agreement ”), and (ii) that certain Amended and Restated Limited Liability Company Operating Agreement of Lateral LLC, dated as of December 6, 2012, as amended by that certain First Amendment thereto, dated as of September 17, 2014, and that Second Amendment thereto, dated as of August 27, 2015 (the “ Lateral LLC Agreement ,” together with the FPS LLC Agreement, the “ LLC Agreements ,” and each, an “ LLC Agreement ”);
WHEREAS, Buyer is an “Affiliate” (as defined in the LLC Agreements) of (a) Stork Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of FPS LLC and a party to the FPS LLC Agreement, (b) Otter Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of Lateral LLC and a party to the Lateral LLC Agreement, and (c) Pinto Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of each of the FPS LLC and the Lateral LLC and a party to each of the FPS LLC Agreement and the Lateral LLC Agreement;
WHEREAS, the Seller owns 4,176.62166 Class A Units of FPS LLC and 245.11944 Class A Units of Lateral LLC; and
WHEREAS, the Buyer desires to purchase from the Seller, and the Seller desires to sell to the Buyer, 2,855.28098 Class A Units of FPS LLC and 167.57201 Class A Units of Lateral LLC (together, the “ Purchased Units ”), 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
 
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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.
“ 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.
“ Buyer ” has the meaning specified in the preamble of this Agreement.
“ Buyer Indemnified Parties ” has the meaning specified in Section 6.02(a) .
“ 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.
“ Collateral Agent ” has the meaning specified in the FPS LLC Pledge Agreement.
“ Commission ” means the United States Securities and Exchange Commission.
“ 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.
“ FPS LLC ” has the meaning specified in the recitals to this Agreement.
“ FPS LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ FPS LLC Pledge Agreement ” means that certain Pledge Agreement dated as of June 20, 2014, from the pledgors referred to therein and Deutsche Bank Trust Company Americas, as collateral agent.
 
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“ 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.
“ 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) .
“ Lateral LLC ” has the meaning specified in the recitals to this Agreement.
“ Lateral LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ 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.
 
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“ LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ Loss ” has the meaning specified in Section 6.02(a) .
“ Member ” has the meaning specified in the FPS LLC Agreement or the Lateral LLC Agreement, as applicable.
“ 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 FPS LLC Agreement or the Lateral LLC Agreement, as applicable, (b) restrictions on sales of securities under applicable securities Laws and, (c) solely with respect to FPS LLC, Liens securing Indebtedness of FPS LLC.
“ Person ” means any individual, partnership, limited partnership, limited liability company, corporation, joint venture, trust, cooperative, association, foreign trust, unincorporated organization, foreign business organization or Governmental Authority or any department or agency thereof, and the heirs, executors, administrators, legal representatives, successors, and assigns of such “Person” where the context so permits.
“ 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 Units ” 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 .
 
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“ 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 (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 Units free and clear of any and all Liens (other than Permitted Liens), and in consideration therefor, the Buyer agrees to pay Seller $24,330,542.51 (the “ Purchase Price ”), in accordance with Section 2.01(b).
 
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(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 ”).
Section 2.03 Seller Deliver ables . 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 board of managers, board of directors or similar governing body 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;
(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; and
(d) a copy of (i) the notice delivered by Seller to the Collateral Agent pursuant to and in accordance with Section 9(b) of the FPS LLC Pledge Agreement dated as of a date at least five (5) Business Days prior to the Closing Date and (ii) any other documentation reasonably requested by the Collateral Agent under the FPS LLC Pledge Agreement pursuant to Section 9(b) of the FPS LLC Pledge Agreement (including any transfer powers relating to newly-issued membership interest certificates).
 
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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 the sole and managing member of the Buyer 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.
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.
 
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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 Units .
(a) The Seller is the record and beneficial owner of the Purchased Units.
(b) The Seller has good and valid title to the Purchased Units 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 Units held by it as provided in this Agreement, and such delivery will convey to the Buyer good and marketable title to such Purchased Units free and clear of any and all Liens (other than Permitted Liens and those arising under this Agreement).
(c) All of the Purchased Units have been duly authorized and validly issued.
(d) Except as set forth in the FPS LLC Agreement or the Lateral LLC Agreement, as applicable, and 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 any of the Purchased Units.
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 transactions contemplated by the Transaction Documents or otherwise relating to such transactions, the Purchased Units 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; Affiliated Status . The Buyer is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. Buyer is an “Affiliate” (as defined in the LLC Agreements) of (a) Stork Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of FPS LLC and a party to the FPS LLC Agreement, (b) Otter Offshore Holdings, LLC, a Delaware limited liability company, which is a
 
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Member of Lateral LLC and a party to the Lateral LLC Agreement, and (c) Pinto Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of each of the FPS LLC and the Lateral LLC and a party to each of the FPS LLC Agreement and the Lateral LLC Agreement.
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).
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 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 Units 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 Units, or solicit offers to buy from or otherwise approach or negotiate in respect thereof with any Person or Persons whomsoever, all or any number of the Purchased Units in any manner that would violate the applicable LLC Agreements 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 Units.
Section 4.06 Available Funds . The Buyer has access to all of the funds necessary for the acquisition of all of the Purchased Units pursuant to this Agreement, as and when needed, and to perform its obligations under this Agreement.
 
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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 Units or the Transaction Documents.
ARTICLE V
COVENANTS
Section 5.01 Transfer Taxes . Notwithstanding Section 7.07 , any Transfer Tax will be borne by the Seller, and the Seller will provide the Buyer with evidence satisfactory to the Buyer 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 Other Tax Matters . For purposes of allocating the taxable income of FPS LLC and Lateral LLC for the 2016 tax year between Seller and Buyer, the Parties shall cause FPS LLC and Lateral LLC to use an interim closing of the books as of the Closing Date.
Section 5.03 Further Assurances . Following the Closing, the Parties shall each (i) take all further action as may be required or reasonably requested by the Collateral Agent pursuant to the FPS LLC Pledge Agreement in connection with the transfer of the Class A Units of FPS LLC pursuant to this Agreement and (ii) 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,
 
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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 .
(a) 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 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
(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 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 .
(a) 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
 
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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 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.
 
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Section 6.04 Limitations .
(a) 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.
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
 
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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:
c/o American Midstream Partners, LP
2103 CityWest Blvd, Building 4, Suite 800
Houston, TX 77042
			
Attention:	  	Regina Gregory	
Facsimile:	  	(713) 278-8870	
If to the Seller:
LLOG Bluewater Holdings, L.L.C.
c/o LLOG Exploration Offshore, L.L.C.
1001 Ochsner Blvd. Suite 200
Covington, LA 70433
			
Attention:	  	Rick Fowler	
Facsimile:	  	(985) 801-4796	
with a copy to:
Jones Walker LLP
201 St. Charles Avenue, Suite 5100
New Orleans, LA 70170-5100
			
Attention:	  	Rudolph R. Ramelli, Seth Levine	
Facsimile:	  	(504) 589-8206	
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
 
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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 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 Units 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 applicable 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, each Party shall pay its own costs and expenses (including legal, accounting, financial advisory and consulting fees and expenses) incurred by such Party in connection with the negotiation and consummation of the transactions contemplated by this Agreement and the other Transaction Documents.
Section 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.
 
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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 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 .]
 
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IN WITNESS WHEREOF, the Parties execute and deliver this Agreement, effective as of the date first above written.

THE BUYER:	
	
D-DAY OFFSHORE HOLDINGS, LLC	
		
By:	 	/s/ Eric T. Kalamaras	
Name:	 	Eric T. Kalamaras	
Title:	 	Senior Vice President and Chief Financial Officer	
[Signature Page to Unit Purchase Agreement]

			
   THE SELLER:	
	
LLOG BLUEWATER HOLDINGS, L.L.C.	
		
By:	 	/s/ Richard Fowler	
Name:	 	Richard Fowler	
Title:	 	Vice President Deepwater Operations	
[Signature Page to Unit Purchase Agreement]

Exhibit 2.6
EXECUTION VERSION
UNIT PURCHASE AGREEMENT
BY AND BETWEEN
RIDGEWOOD ENERGY INVESTMENT FUNDS
AS SELLERS
AND
D-DAY OFFSHORE HOLDINGS, LLC
AS BUYER

TABLE OF CONTENTS

ARTICLE I DEFINITIONS	  	 	1	  	
				
	 	Section 1.01	  	Definitions	  	 	1	  	
	 	Section 1.02	  	Rules of Interpretation	  	 	5	  	
		
ARTICLE II SALE AND PURCHASE	  	 	6	  	
				
	 	Section 2.01	  	Sale and Purchase	  	 	6	  	
	 	Section 2.02	  	Closing	  	 	6	  	
	 	Section 2.03	  	Sellers’ Deliverables	  	 	6	  	
	 	Section 2.04	  	Buyer Deliverables	  	 	7	  	
	 	Section 2.05	  	Withholding	  	 	7	  	
		
ARTICLE III REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLERS	  	 	7	  	
				
	 	Section 3.01	  	Organization	  	 	7	  	
	 	Section 3.02	  	Validity of Agreement; Authorization	  	 	8	  	
	 	Section 3.03	  	Consents and Approvals	  	 	8	  	
	 	Section 3.04	  	Noncontravention	  	 	8	  	
	 	Section 3.05	  	Ownership, Due Authorization and Transfer of Purchased Units	  	 	8	  	
	 	Section 3.06	  	Litigation	  	 	8	  	
	 	Section 3.07	  	Financial Advisors	  	 	8	  	
		
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER	  	 	9	  	
				
	 	Section 4.01	  	Organization; Affiliated Status	  	 	9	  	
	 	Section 4.02	  	Validity of Agreement; Authorization	  	 	9	  	
	 	Section 4.03	  	Consents and Approvals	  	 	9	  	
	 	Section 4.04	  	Noncontravention	  	 	9	  	
	 	Section 4.05	  	Investment Intent	  	 	10	  	
	 	Section 4.06	  	Available Funds	  	 	10	  	
	 	Section 4.07	  	Financial Advisors	  	 	10	  	
	 	Section 4.08	  	Litigation	  	 	10	  	
		
ARTICLE V COVENANTS	  	 	10	  	
				
	 	Section 5.01	  	Transfer Taxes	  	 	10	  	
	 	Section 5.02	  	Other Tax Matters	  	 	10	  	
	 	Section 5.03	  	The Sellers’ Representative	  	 	10	  	
	 	Section 5.04	  	Further Assurances	  	 	11	  	
		
ARTICLE VI INDEMNIFICATION	  	 	11	  	
				
	 	Section 6.01	  	Survival of Representations and Warranties	  	 	11	  	
	 	Section 6.02	  	Indemnification	  	 	11	  	
 
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 	 	 	  	 	  	Page	 	
				
	 	Section 6.03	  	Indemnification Procedure	  	 	12	  	
	 	Section 6.04	  	Limitations	  	 	13	  	
	 	Section 6.05	  	Calculation of Losses	  	 	13	  	
	 	Section 6.06	  	No Duplication	  	 	14	  	
	 	Section 6.07	  	Tax Treatment of Indemnity Payments	  	 	14	  	
	 	Section 6.08	  	Exclusive Remedy	  	 	14	  	
		
ARTICLE VII MISCELLANEOUS	  	 	14	  	
				
	 	Section 7.01	  	Amendments and Modifications	  	 	14	  	
	 	Section 7.02	  	Waiver	  	 	14	  	
	 	Section 7.03	  	Notices	  	 	14	  	
	 	Section 7.04	  	Governing Law	  	 	15	  	
	 	Section 7.05	  	Consent to Jurisdiction; Waiver of Jury Trial	  	 	15	  	
	 	Section 7.06	  	Assignment; Third-Party Beneficiaries	  	 	15	  	
	 	Section 7.07	  	Expenses	  	 	16	  	
	 	Section 7.08	  	Specific Performance	  	 	16	  	
	 	Section 7.09	  	Entire Agreement	  	 	16	  	
	 	Section 7.10	  	Severability	  	 	16	  	
	 	Section 7.11	  	Facsimiles; Electronic Transmission; Counterparts	  	 	16	  	
EXHIBITS AND SCHEDULES

	 	Exhibit A	    	Assignment and Assumption Agreement	
	 	Schedule A	    	Sellers’ Allocation	
	 	Schedule 1.01(a)	    	Sellers’ Knowledge	
	 	Schedule 1.01(b)	    	Buyer Knowledge	
	 	Schedule 2.01(b)	    	Wire Transfer Instructions	
 
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UNIT PURCHASE AGREEMENT
This UNIT PURCHASE AGREEMENT (this “ Agreement ”), dated as of October 31, 2016, is entered into between Ridgewood Energy Investment Funds (as defined below) (the “ Sellers ”), Ridgewood Energy Corporation, a Delaware corporation, as the Sellers’ agent and representative in accordance with Section 5.03 for the purposes set forth therein (the “ Seller’s Representative ”), and D-Day Offshore Holdings, LLC, a Delaware limited liability company (the “ Buyer ”).
WHEREAS, Sellers are (a) Members of (i) Delta House FPS LLC, a Delaware limited liability company (“ FPS LLC ”), and (ii) Delta House Oil and Gas Lateral LLC, a Delaware limited liability company (“ Lateral LLC ”), and (b) parties to (i) that certain Amended and Restated Limited Liability Company Operating Agreement of FPS LLC, dated as of December 6, 2012, as amended by that certain First Amendment thereto, dated as of June 20, 2014, that certain Second Amendment thereto, dated as of September 17, 2014, and that certain Third Amendment thereto, dated as of August 27, 2015 (the “ FPS LLC Agreement ”), and (ii) that certain Amended and Restated Limited Liability Company Operating Agreement of Lateral LLC, dated as of December 6, 2012, as amended by that certain First Amendment thereto, dated as of September 17, 2014, and that Second Amendment thereto, dated as of August 27, 2015 (the “ Lateral LLC Agreement ,” together with the FPS LLC Agreement, the “ LLC Agreements ,” and each, an “ LLC Agreement ”);
WHEREAS, Buyer is an “Affiliate” (as defined in the LLC Agreements) of (a) Stork Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of FPS LLC and a party to the FPS LLC Agreement, (b) Otter Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of Lateral LLC and a party to the Lateral LLC Agreement, and (c) Pinto Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of each of the FPS LLC and the Lateral LLC and a party to each of the FPS LLC Agreement and the Lateral LLC Agreement;
WHEREAS, the Sellers collectively own 892.36861 Class A Units of FPS LLC and 52.37173 Class A Units of Lateral LLC; and
WHEREAS, the Buyer desires to purchase from the Sellers, and the Sellers desire to sell to the Buyer, 660.67032 Class A Units of FPS LLC and 38.77372 Class A Units of Lateral LLC in the allocations set forth opposite each Seller’s name on Schedule A (together, the “ Purchased Units ”), 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 Sellers 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.
 
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“ 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 Sellers 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.
“ Buyer ” has the meaning specified in the preamble of this Agreement.
“ Buyer Indemnified Parties ” has the meaning specified in Section 6.02(a) .
“ 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.
“ Collateral Agent ” has the meaning specified in the FPS LLC Pledge Agreement.
“ Commission ” means the United States Securities and Exchange Commission.
“ 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.
“ FPS LLC ” has the meaning specified in the recitals to this Agreement.
“ FPS LLC Agreement ” has the meaning specified in the recitals to this Agreement.
 
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“ FPS LLC Pledge Agreement ” means that certain Pledge Agreement dated as of June 20, 2014, from the pledgors referred to therein and Deutsche Bank Trust Company Americas, as collateral agent.
“ 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.
“ 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 Sellers, the individuals listed in Schedule 1.01(a) and, in the case of the Buyer, the individuals listed in Schedule 1.01(b) .
“ Lateral LLC ” has the meaning specified in the recitals to this Agreement.
“ Lateral LLC Agreement ” has the meaning specified in the recitals to this Agreement.
“ 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,
 
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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) .
“ Member ” has the meaning specified in the FPS LLC Agreement or the Lateral LLC Agreement, as applicable.
“ 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 Sellers, 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 Sellers.
“ Permitted Liens ” means (a) Liens existing under the FPS LLC Agreement or the Lateral LLC Agreement, as applicable, (b) restrictions on sales of securities under applicable securities Laws and, (c) solely with respect to FPS LLC, Liens securing Indebtedness of FPS LLC.
“ Person ” means any individual, partnership, limited partnership, limited liability company, corporation, joint venture, trust, cooperative, association, foreign trust, unincorporated organization, foreign business organization or Governmental Authority or any department or agency thereof, and the heirs, executors, administrators, legal representatives, successors, and assigns of such “Person” where the context so permits.
“ 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 Units ” 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.
“ Ridgewood Energy Investment Funds ” means (a) (i) Ridgewood Energy O Fund, LLC; Ridgewood Energy U Fund, LLC; (ii) Ridgewood Energy X Fund, LLC; (iii) Ridgewood Energy Y Fund, LLC; (iv) Ridgewood Energy Z Fund, LLC; (v) Ridgewood Energy B-1 Fund, LLC; (vi) Ridgewood Energy Bluewater Oil Fund II, LLC; (vii) Ridgewood Energy Bluewater Oil Fund III, LLC, each of which are Delaware limited liability companies; and (b) Ridgewood Energy Gulf of Mexico Oil and Gas Fund, L.P., a Delaware limited partnership.
 
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“ Securities Act ” means the Securities Act of 1933 and the rules and regulations of the Commission promulgated thereunder.
“ Seller Indemnified Parties ” has the meaning specified in Section 6.02(b) .
“ Sellers ” has the meaning specified in the preamble of this Agreement.
“ Sellers’ Representative ” has the meaning set forth in the preamble.
“ 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 (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
 
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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, each Seller hereby agrees to sell to the Buyer, and the Buyer hereby agrees to purchase from such Seller, all of such Seller’s right, title and interest in and to the Purchased Units free and clear of any and all Liens (other than Permitted Liens), and in consideration therefor, the Buyer agrees to pay to the Sellers’ Representative $5,629,732.37 (the “ Purchase Price ”), in accordance with Section 2.01(b).
(b) The Purchase Price shall be paid at Closing to in cash by wire transfer of immediately available funds accordance with the wire transfer instructions set forth on Schedule 2.01(b) to the account designated therein, for further allocation by the Sellers’ Representative to the Sellers pro rata in accordance with the percentages set forth opposite each Seller’s name on Schedule A .
(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 Sellers’ Representative 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 Sellers’ Representative 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 Sellers’ Representative 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 ”).
Section 2.03 Sellers ’ Deliver ables . At the Closing, subject to the terms and conditions of this Agreement, the Sellers’ Representative shall deliver, or cause to be delivered, to the Buyer:
(a) a counterpart duly executed by each Seller of the Assignment and Assumption Agreement;
 
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(b) a certificate duly executed by the Secretary or an Assistant Secretary of each 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 such Seller authorizing the execution and delivery of the Transaction Documents to which such 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;
(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 such Seller is not a foreign person within the meaning of the Code; and
(d) a copy of (i) the notice delivered by each Seller to the Collateral Agent pursuant to and in accordance with Section 9(b) of the FPS LLC Pledge Agreement dated as of a date at least five (5) Business Days prior to the Closing Date and (ii) any other documentation reasonably requested by the Collateral Agent under the FPS LLC Pledge Agreement pursuant to Section 9(b) of the FPS LLC Pledge Agreement (including any transfer powers relating to newly-issued membership interest certificates).
Section 2.04 Buyer Deliver ables . At the Closing, subject to the terms and conditions of this Agreement, the Buyer shall deliver, or cause to be delivered to the Sellers’ Representative:
(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 the sole and managing member of the Buyer 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 S
Except with respect to representations or warranties expressly made as of a specified date, each Seller represents and warrant to the Buyer as of the date hereof as follows:
Section 3.01 Organization . Each Seller is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization.
 
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Section 3.02 Validity of Agreement; Authorization . Each 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 such 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 such Seller is necessary to authorize such execution, delivery and performance. Each of the Transaction Documents to which such Seller is a party has been duly executed and delivered by such Seller and constitutes such Seller’s valid and binding obligation, enforceable against such 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 each Seller for such 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 such Seller to consummate the transactions contemplated by the Transaction Documents.
Section 3.04 Noncontravention . Neither the execution and delivery by each Seller of the Transaction Documents to which it is a party, nor the consummation by such Seller of the transactions contemplated thereby conflicts with any provision of the Organizational Documents of such Seller or violates any Law to which such 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 such Seller to consummate the transactions contemplated by the Transaction Documents.
Section 3.05 Ownership, Due Authorization and Transfer of Purchased Units .
(a) Each Seller is the record and beneficial owner of the Purchased Units.
(b) Such Seller has good and valid title to the Purchased Units free and clear of any and all Liens (other than Permitted Liens). Such Seller has the power, authority and legal capacity to sell, transfer, assign and deliver the Purchased Units held by it as provided in this Agreement, and such delivery will convey to the Buyer good and marketable title to such Purchased Units free and clear of any and all Liens (other than Permitted Liens and those arising under this Agreement).
(c) All of the Purchased Units have been duly authorized and validly issued.
(d) Except as set forth in the FPS LLC Agreement or the Lateral LLC Agreement, as applicable, and other than the Buyer’s rights under this Agreement, there are no outstanding options, warrants or similar rights to purchase or acquire from such Seller any of the Purchased Units.
Section 3.06 Litigation . As of the date hereof, there are no Proceedings pending or, to the Knowledge of such Seller, threatened, against each Seller or to which such Seller is otherwise a party or, to the Knowledge of such Seller, a threatened party, challenging the transactions contemplated by the Transaction Documents or otherwise relating to such transactions, the Purchased Units or the Transaction Documents.
Section 3.07 Financial Advisors . No Seller has 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.
 
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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 Sellers as of the date hereof as follows:
Section 4.01 Organization; Affiliated Status . The Buyer is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. Buyer is an “Affiliate” (as defined in the LLC Agreements) of (a) Stork Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of FPS LLC and a party to the FPS LLC Agreement, (b) Otter Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of Lateral LLC and a party to the Lateral LLC Agreement, and (c) Pinto Offshore Holdings, LLC, a Delaware limited liability company, which is a Member of each of the FPS LLC and the Lateral LLC and a party to each of the FPS LLC Agreement and the Lateral LLC Agreement.
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).
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 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.
 
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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 Units and (c) is not relying on any representations of Sellers other than those set forth in Article III . The Buyer agrees that it will not transfer all or any number of the Purchased Units, or solicit offers to buy from or otherwise approach or negotiate in respect thereof with any Person or Persons whomsoever, all or any number of the Purchased Units in any manner that would violate the applicable LLC Agreements 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 Units.
Section 4.06 Available Funds . The Buyer has access to all of the funds necessary for the acquisition of all of the Purchased Units 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 any 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 Units or the Transaction Documents.
ARTICLE V
COVENANTS
Section 5.01 Transfer Taxes . Notwithstanding Section 7.07 , any Transfer Tax will be borne by the Sellers, and the Sellers’ Representative will provide the Buyer with evidence satisfactory to the Buyer 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 Sellers’ Representative 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 Other Tax Matters . For purposes of allocating the taxable income of FPS LLC and Lateral LLC for the 2016 tax year between Sellers and Buyer, the Parties shall cause FPS LLC and Lateral LLC to use an interim closing of the books as of the Closing Date.
Section 5.03 The Sellers ’ Representative . Each Seller hereby irrevocably makes, constitutes and appoints Ridgewood Energy Corporation as its agent and representative for all
 
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purposes under this Agreement. Each Seller hereby authorizes the Sellers’ Representative, on its behalf and in its name, to (a) receive and accept all payments (with discharging effect for the Buyer vis-à-vis all Sellers), notices or documents given or delivered or to be given or delivered to such Seller pursuant hereto or in connection herewith and to receive and accept service of legal process in connection with any suit or proceeding arising under this Agreement, a copy of which the Sellers’ Representative shall promptly forward to such Seller; (b) deliver at the Closing all certificates and documents required to be delivered to Buyer hereunder; (c) upon confirmation of the receipt of wire transfer to the account designated by the Sellers’ Representative, forward such Seller’s portion of such Purchase Price to such Seller; and (d) take such action on behalf of each Seller as the Sellers’ Representative may deem necessary, advisable or appropriate to consummate this Agreement and the transactions contemplated hereby.
Section 5.04 Further Assurances . Following the Closing, the Parties shall each (i) take all further action as may be required or reasonably requested by the Collateral Agent pursuant to the FPS LLC Pledge Agreement in connection with the transfer of the Class A Units of FPS LLC pursuant to this Agreement and (ii) 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 .
(a) From and after the Closing, subject to Section 6.01 and Section 6.04 , the Sellers hereby agree to indemnify and hold the Buyer, its Affiliates 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,
 
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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 any of the Sellers in this Agreement or any certificate delivered pursuant hereto; or
(ii) any breach of any covenant or other agreement on the part of any of the Sellers 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 Sellers, their Affiliates 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 .
(a) 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
 
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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 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 .
(a) 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
 
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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.
Section 6.07 Tax Treatment of Indemnity Payments . The Sellers 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 Sellers 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:
c/o American Midstream Partners, LP
2103 CityWest Blvd, Building 4, Suite 800
Houston, TX 77042
			
Attention:	 	Regina Gregory	
Facsimile:	 	(713) 278-8870	
 
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If to the Sellers:
c/o Ridgewood Energy Corporation
1254 Enclave Parkway, Suite 600
Houston, TX 77077
			
Attention:	  	Pete Zwart	
Facsimile:	  	(281) 293-7391	
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) the 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) the 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 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
 
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having such Affiliate take ownership of all or a portion of the Purchased Units 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 applicable 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, each Party shall pay its own costs and expenses (including legal, accounting, financial advisory and consulting fees and expenses) incurred by such Party in connection with the negotiation and consummation of the transactions contemplated by this Agreement and the other Transaction Documents.
Section 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 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.
 
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* * * * *
[ Signature pages follow .]
 
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IN WITNESS WHEREOF, the Parties execute and deliver this Agreement, effective as of the date first above written.

THE BUYER:	
	
D-DAY OFFSHORE HOLDINGS, LLC	
		
By:	 	/s/ Eric T. Kalamaras	
Name:	 	Eric T. Kalamaras	
Title:	 	Senior Vice President and Chief Financial Officer	
 
[Signature Page to Unit Purchase Agreement]

			
	 	THE SELLERS:	
	
RIDGEWOOD ENERGY O FUND, LLC	
RIDGEWOOD ENERGY U FUND, LLC	
RIDGEWOOD ENERGY X FUND, LLC	
RIDGEWOOD ENERGY Y FUND, LLC	
RIDGEWOOD ENERGY Z FUND, LLC	
RIDGEWOOD ENERGY B-1 FUND, LLC	
RIDGEWOOD ENERGY BLUEWATER OIL FUND II, LLC	
RIDGEWOOD ENERGY BLUEWATER OIL FUND III, LLC	
		
By:	 	RIDGEWOOD ENERGY CORPORATION, as Manager	
		
By:	 	/s/ W. Greg Tabor	
Name:	 	W. Greg Tabor	
Title:	 	Executive Vice President	
 
[Signature Page to Unit Purchase Agreement]

			
RIDGEWOOD ENERGY GULF OF MEXICO OIL AND GAS FUND, L.P.	
	
By: RIDGEWOOD ENERGY CORPORATION, as General Partner	
		
By:	 	/s/ W. Greg Tabor	
Name:	 	W. Greg Tabor	
Title:	 	Executive Vice President	
 
[Signature Page to Unit Purchase Agreement]

			
THE SELLERS’ REPRESENTATIVE:	
	
RIDGEWOOD ENERGY CORPORATION	
		
By:	 	/s/ W. Greg Tabor	
Name:	 	W. Greg Tabor	
Title:	 	Executive Vice President	
 
[Signature Page to Unit Purchase Agreement]

Exhibit 3.1
AMENDMENT NO. 2 TO
FIFTH AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF
AMERICAN MIDSTREAM PARTNERS, LP
This Amendment No. 2 (this “ Amendment ”) to the Fifth Amended and Restated Agreement of Limited Partnership of American Midstream Partners, LP (the “ Partnership ”), dated as of April 25, 2016 (the “ Partnership Agreement ”), is hereby adopted effective as of October 31, 2016 by American Midstream GP, LLC, a Delaware limited liability company (the “ General Partner ”), as general partner of the Partnership, pursuant to the authority granted to it in Section   5.6 , Section 5.12(b)(v) , Section 5.14(b)(v) and Section 13.1 of the Partnership Agreement. Capitalized terms used but not defined herein have the meaning given such terms in the Partnership Agreement.
WHEREAS , Section 13.1(d)(iv) of the Partnership Agreement provides that the General Partner, without the approval of any Partner, may amend any provision of the Partnership Agreement to reflect a change that the General Partner determines is required to effect the intent expressed in the Registration Statement or the intent of the provisions of the Partnership Agreement or is otherwise contemplated by the Partnership Agreement; and
WHEREAS , Section 13.1(g) of the Partnership Agreement provides that the General Partner, without the approval of any Partner, may amend any provision of the Partnership Agreement to reflect a change 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; and
WHEREAS , Section 13.3(c) of the Partnership Agreement provides that, if the General Partner determines an amendment adversely affects one or more classes of Partnership Interest, 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; and
WHEREAS , Section 5.12(b)(v)(B) of the Partnership Agreement provides that the affirmative vote of the Record 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 that amends or modifies any of the terms of the Series A Preferred Units; and
WHEREAS , Section 5.14(b)(v)(B) of the Partnership Agreement provides that 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 that amends or modifies any of the terms of the Series C Preferred Units; and
WHEREAS , the board of directors of the General Partner has determined that the standards specified in Section 13.1(d)(iv) , Section 13.1(g) , Section 5.12(b)(v)(B) and Section   5.14(b)(v)(B) are satisfied with respect to the amendments to be made by this Amendment upon the approval of Record Holders of a majority of the Outstanding Series A Preferred Units and a majority of the Outstanding Series C Preferred Units; and
 
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WHEREAS , a wholly owned subsidiary of the Partnership entered into several Purchase Agreements, dated as of October 31, 2016 (collectively, the “ Delta House Purchase Agreements ”), with (i) Red Willow Offshore, LLC, (ii) LLOG Bluewater Holdings LLC and (iii) others (collectively, the “ Sellers ”) whereby the Partnership will, pursuant to the terms of each Delta House Purchase Agreement, acquire from each Seller additional interests in Delta House FPS LLC and Delta House Oil and Gas Lateral LLC; and
WHEREAS , to fund a portion of the purchase set forth in the Delta House Purchase Agreements, the Partnership intends to issue (i) a certain number of Limited Partner Interests to be designated as Series D Preferred Units having the terms set forth herein and (ii) subject to the terms set forth in the Series D Unit Purchase Agreement (defined below), the Series D Warrant; and
WHEREAS , the Partnership has entered into a Securities Purchase Agreement, dated as of October 31, 2016 (the “ Series D Unit Purchase Agreement ”), with MIH for the acquisition by MIH of Series D Preferred Units; and
WHEREAS , the General Partner deems it in the best interest of the Partnership to effect this Amendment in order to (i) specify the rights and obligations of the Partnership Interests designated as “Series D Preferred Units,” (ii) reflect the potential issuance of the Series D Warrant, and (iii) provide for such other matters as are provided herein.
NOW THEREFORE , the General Partner does hereby amend the Partnership Agreement as follows:
A. Amendment . The Partnership Agreement is hereby amended as follows:
1. Section 1.1 is hereby amended to add or restate, as applicable, the following definitions:
“ 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, any Series D Preferred Unit prior to the conversion of such Series D 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.
“ 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, Series C Preferred Units or Series D Preferred Units.
“ 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,
 
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ranks junior to the Series A Preferred Units, the Series C Preferred Units or the Series D Preferred Units, including but not limited to Common Units, Series B Units and Incentive Distribution Rights.
“ 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, Series D 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 .
“ 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
 
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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 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, (4) the Board of Directors has approved the issuance of the Series D Preferred Units to Investor pursuant to the Series D Unit Purchase Agreement in accordance with clause (iii) of the immediately preceding sentence, and any Series D Conversion 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 Series D Preferred Units and Series D Conversion Units, and (5) 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.
“ 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 held by such Unitholder (or, (1) 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) , (2) 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) , (3) 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) , or (4) in the case of Series D Preferred Units, the number of Series D Conversion Units issuable upon the conversion of such Series D Preferred Units held by such Unitholder or Assignee if such Series D Preferred Units were then converted in accordance with Section 5.15(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.
 
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“ 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, the Series C Preferred Unit Partner and the Series D 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
(e) consummation of a “Rule 13e-3 transaction” as defined in Rule 13e-3 under the Exchange Act with respect to the Partnership.
“ 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, (v) the identity of the Record Holders of Series C Preferred Units entitled to convert such Units, or (vi) the identity of the Record Holders of Series D Preferred Units entitled to convert such Units.
“ 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, Series C Preferred Units, or Series D Preferred Units, the excess of (A) the Net Positive Adjustments of the Unitholders holding Common Units, Series A Preferred Units, Series B Units, Series C Preferred Units or Series D 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
 
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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.
“ Series D Adjusted Issue Price ” means (i) the Series D Issue Price, divided by (ii) the Series D Conversion Rate.
“ Series   D Call Closing Date ” has the meaning assigned to such term in Section   5.15(c)(iii) .
“ Series   D Call Exercise Notice ” has the meaning assigned to such term in Section   5.15(c)(iii) .
“ Series   D Call Right ” has the meaning assigned to such term in Section   5.15(c) .
“ Series D Call Value ” means, with respect to each Series D Preferred Unit Outstanding as of the date of such determination, an amount equal to the sum of (i) the Series D Issue Price, plus (ii) all Series D Unpaid Cash Distributions and all accrued and unpaid interest thereon (determined in accordance with Section 5.15(b)(ii)(B) ), plus (iii) an amount equal to the product of (A) the amount of distribution declared on such Series D Preferred Unit with respect to the Quarter immediately preceding the Quarter in which the Series D Call Exercise Notice was given times (B) a fraction, of which the numerator is the number of days from the end of such preceding Quarter to and including the date of the Series D Call Exercise Notice and the denominator is 91.
“ Series D Conversion Date ” has the meaning assigned to such term in Section   5.15(b)(viii)(C) .
“ Series D Conversion Notice ” has the meaning assigned to such term in Section   5.15(b)(viii)(B) .
“ Series D Conversion Notice Date ” has the meaning assigned to such term in Section   5.15(b)(viii)(B) .
“ Series D Conversion Rate ” means the number of Common Units issuable upon the conversion of each Series D Preferred Unit, which shall be 1.0 until such rate is adjusted as set forth in Section 5.15(b)(viii)(D)-(F) .
“ Series D Conversion Unit ” means the Common Unit(s) issued upon conversion of a Series D Preferred Unit pursuant to Section 5.15(b)(viii) .
“ Series D Converting Unitholder ” means a Person entitled to receive Common Units upon conversion of any Series D Preferred Units.
 
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“ Series D Distribution Amount ” means the cash distribution for the relevant Quarter that each Series D Preferred Unit would have received on an as-converted basis if such Series D Preferred Unit had been converted to a Common Unit pursuant to Section 5.15(b)(viii) immediately prior to the beginning of such Quarter.
“ Series D Distribution Payment Date ” has the meaning assigned to such term in Section 5.15(b)(ii)(A) .
“ Series D Distribution Rate ” means an amount per Quarter per Series D Preferred Unit payable in arrears equal to the greater of (i) $0.4125 and (ii) the Series D Distribution Amount.
“ Series   D Holders ” has the meaning assigned to such term in Section   5.15(c) .
“ Series D Issuance Date ” means, with respect to a Series D Preferred Unit, October 31, 2016.
“ Series D Issue Price ” means $15.00 per Series D Preferred Unit.
“ Series D Liquidation Value ” means, with respect to each Series D Preferred Unit Outstanding as of the date of such determination, an amount equal to the sum of (i) the Series D Issue Price, plus (ii) all Series D Unpaid Cash Distributions and all accrued and unpaid interest thereon (determined in accordance with Section 5.15(b)(ii)(B) ), plus (iii) all accrued but unpaid distributions on such Series D Preferred Unit with respect to the Quarter in which the liquidation occurs.
“ Series D Optional Conversion Start Date ” means June 30, 2017.
“ Series D 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 D Preferred Units.
“ Series D Partnership Event Change of Control Offer ” has the meaning assigned to such term in Section 5.15(b)(viii)(F)(1) .
“Series D Partnership Event Payment” has the meaning assigned to such term in Section 5.15(b)(viii)(F)(1) .
“ Series D Partnership Event Payment Date ” has the meaning assigned to such term in Section 5.15(b)(viii)(F)(3)ii) .
“ Series D Preferred Unit Partner ” means, collectively, MIH in its capacity as the holder of Units and any Affiliate of MIH that holds any Series D Preferred Units or Series D Conversion Units, including, but not limited to, any such Affiliate that (i) acquired Units by transfer from MIH or (ii) holds Series D Conversion Units pursuant to this Agreement.
“ Series D Preferred Units ” has the meaning assigned to such term in Section 5.15(a) .
 
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“ Series D Quarterly Distribution ” has the meaning assigned to such term in Section   5.15(b)(ii)(A) .
“ Series D 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 D Preferred Units.
“ Series D Survivor Preferred Security ” has the meaning assigned to such term in Section   5.15(b)(viii)(F)(2) .
“ Series D Unit Purchase Agreement” has the meaning assigned to such term in the recitals to this Agreement.
“ Series D Unitholder ” means a Record Holder of Series D Preferred Units.
“ Series D Unpaid Cash Distributions ” has the meaning assigned to such term in Section   5.15(b)(ii)(B) .
“ Series D Warrant ” means that certain warrant to purchase up to 700,000 Common Units, subject to adjustment as set forth in the warrant agreement, with a $22.00 per Common Unit exercise price, to be issued pursuant to Section 5.15(b)(iii) , which warrant shall be in accordance with the form of warrant attached to Amendment No. 2 to this Agreement as Exhibit   A thereto) and which warrant, if issued, 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).
“ Series D Warrant Start Date ” means June 30, 2017.
“ 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, Series C Preferred Units, or Series D 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.
“ Unit ” means a Partnership Interest that is designated as a “Unit” and shall include Common Units, Series A Preferred Units, Series B Units, Series C Preferred Units, and Series D 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.
 
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“ Warrant ” means any of (i) the AIM Warrant, (ii) the Series C Warrant or (iii) the Series D Warrant.
2. Section 2.3 is hereby amended and restated as follows:
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 2103 CityWest Boulevard, Building #4, Suite 800, Houston, TX 77042, 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 2103 CityWest Boulevard, Building #4, Suite 800, Houston, TX 77042, or such other place as the General Partner may from time to time designate by notice to the Limited Partners.
3. Section 4.1 is hereby amended and restated as follows:
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, Series C Preferred Units, or Series D Preferred Units, the Partnership shall issue such Certificates in accordance with Section   5.12(b)(vii) , Section 5.13(f) , Section 5.14(b)(vii) and Section 5.15(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.
4. Section 4.5(e) is hereby amended and restated as follows:
(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, Series C Preferred Units or Series D Preferred Units to one or more Persons.
5. Section 4.8(e) is hereby amended and restated as follows:
(e) Any transfer of a Series A Conversion Unit, a Series B Conversion Unit, a Series C Conversion Unit, or a Series D Conversion Unit shall be subject to the restrictions imposed by Section 6.10 .
 
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6. Section 5.5(a) is hereby amended and restated as follows:
(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, the Series C Preferred Units and the Series D 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, Series C Preferred Unit or Series D 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, Series C Preferred Unit or Series D Preferred Unit. The initial Capital Account balance in respect of each 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. The initial Capital Account balance in respect of each Series D Preferred Unit issued on the Series D Issuance Date shall be the Series D Issue Price. The Capital Account balance of each holder of Series D Preferred Units in respect of its Series D Preferred Units shall not be increased or decreased as a result of the accrual and accumulation of an unpaid distribution pursuant to Section 5.15(b)(ii)(A) or Section 5.15(b)(ii)(B) in respect of such Series D Preferred Units except as otherwise provided in this Agreement.
 
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7. Section 5.5(d)(iii) is hereby amended and restated as follows:
(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, Series C Preferred Unit, or Series D Preferred Unit into Common Units in accordance with Section 5.12(b)(viii) , Section   5.13(c) , Section 5.14(b)(viii) or Section 5.15(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, Series C Conversion Unit, or Series D 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, Series C Conversion Unit, or Series D 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, Series C Conversion Units, or Series D Conversion Units received upon such conversion until the Capital Account of each such Series A Conversion Unit, Series B Conversion Unit, Series C Conversion Unit, or Series D 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, Series C Preferred Unit, or Series D 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 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, Series C Conversion Unit, or Series D Conversion Unit, as applicable, received upon such conversion of the Series A Preferred Unit, Series B Unit, Series C Preferred Unit, or Series D 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, Series C Conversion Units, and Series D Conversion Units) and Partners holding Series A Conversion Units, Series B Conversion Units, Series C Conversion Units, and Series D Conversion Units, as applicable, so as to cause the Capital Account of each Partner holding a Series A Conversion Unit, Series B Conversion Unit, Series C Conversion Unit, or Series D Conversion Unit, as applicable, to equal, on a per Unit basis with respect to each such Series A Conversion Unit, Series B Conversion Unit, Series C Conversion Unit, or Series D Conversion Unit, the Per Unit Capital Amount for a then Outstanding IPO Common Unit.
 
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8. Section 5.9(a) is hereby amended and restated as follows:
(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, Series C Preferred Units or Series D Preferred Units may be converted into) are proportionately adjusted.
9. The fifth sentence of Section 5.12(a) is hereby amended and restated as follows:
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 and the Series D Preferred Units.
10. The last sentence of Section 5.12(b)(i)(A) is hereby amended and restated as follows:
Allocations to Series A Preferred Units pursuant to this Section 5.12(b)(i)(A) , to Series C Preferred Units pursuant to Section 5.14(b)(i)(A) and to Series D Preferred Units pursuant to Section 5.15(b)(i)(A) shall be made Pro Rata.
11. The last sentence of Section 5.12(b)(i)(B) is hereby amended and restated as follows:
Allocations to Series A Preferred Units pursuant to this Section 5.12(b)(i)(B) , to Series C Preferred Units pursuant to Section 5.14(b)(i)(B) and to Series D Preferred Units pursuant to Section 5.15(b)(i)(B) shall be made Pro Rata.
12. The last sentence of Section 5.12(b)(i)(C) is hereby amended and restated as follows:
Allocations to Series A Preferred Units pursuant to this Section 5.12(b)(i)(C) , to Series C Preferred Units pursuant to Section 5.14(b)(i)(C) and to Series D Preferred Units pursuant to Section 5.15(b)(i)(C) shall be made Pro Rata.
 
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13. The last sentence of Section 5.12(b)(i)(D) is hereby amended and restated as follows:
Allocations to Series A Preferred Units pursuant to this Section 5.12(b)(i)(D) , to Series C Preferred Units pursuant to Section 5.14(b)(i)(D) and to Series D Preferred Units pursuant to Section 5.15(b)(i)(D) shall be made Pro Rata.
14. Section 5.12(b)(ii)(D) is hereby amended and restated as follows:
(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 and Series D Quarterly Distribution 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, the Series C Unitholders and the Series D Unitholders Pro Rata and the balance of such Series A Quarterly Distribution (and Series C Quarterly Distribution and Series D 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.
15. Section 5.12(b)(iv) is hereby amended and restated as follows:
(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 and the Series D 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 allocation made pursuant to the second sentences of
 
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Section 5.14(b)(iv) and Section 5.15(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 sentences of Section 5.14(b)(iv) and Section   5.15(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 and the Series D 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.
16. Section 5.12(b)(v)(A) is hereby amended and restated as follows:
(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, Series C Preferred Units, and Series D 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, the Series C Preferred Units, and the Series D 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.
17. The reference to “Series C Warrant” in Section 5.12(b)(viii)(E) is hereby changed to “Series C Warrant or the Series D Warrant” and the reference to “either Warrant” in such Section is hereby changed to “any Warrant”.
 
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18. The third sentence of Section 5.14(a) is hereby amended and restated as follows:
The Series C Preferred Units shall be considered pari passu as to allocations and distributions with the Series A Preferred Units and the Series D Preferred Units.
19. The last sentence of Section 5.14(b)(i)(A) is hereby amended and restated as follows:
Allocations to Series C Preferred Units pursuant to this Section 5.14(b)(i)(A) , to Series A Preferred Units pursuant to Section 5.12(b)(i)(A) , and to Series D Preferred Units pursuant to Section 5.15(b)(i)(A) shall be made Pro Rata.
20. The last sentence of Section 5.14(b)(i)(B) is hereby amended and restated as follows:
Allocations to Series C Preferred Units pursuant to this Section 5.14(b)(i)(B) , to Series A Preferred Units pursuant to Section 5.12(b)(i)(B) , and to Series D Preferred Units pursuant to Section 5.15(b)(i)(B) shall be made Pro Rata.
21. The last sentence of Section 5.14(b)(i)(C) is hereby amended and restated as follows:
Allocations to Series C Preferred Units pursuant to this Section 5.14(b)(i)(C) , to Series A Preferred Units pursuant to Section 5.12(b)(i)(C) , and to Series D Preferred Units pursuant to Section 5.15(b)(i)(C) shall be made Pro Rata.
22. The last sentence of Section 5.14(b)(i)(D) is hereby amended and restated as follows:
Allocations to Series C Preferred Units pursuant to this Section 5.14(b)(i)(D) , to Series A Preferred Units pursuant to Section 5.12(b)(i)(D) , and to Series D Preferred Units pursuant to Section 5.15(b)(i)(D) shall be made Pro Rata.
23. Section 5.14(b)(ii)(D) is hereby amended and restated as follows:
(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 and a Series D Quarterly Distribution 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, the Series C Unitholders and the Series D Unitholders Pro Rata and the balance of such Series C Quarterly Distribution (and Series A Quarterly Distribution and Series D 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
 
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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.
24. Section 5.14(b)(iv) is hereby amended and restated as follows:
(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 and the Series D 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 sentences of Section 5.12(b)(iv) and Section 5.15(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 sentences of Section 5.12(b)(iv) and Section   5.15(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 and the Series D 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.
 
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25. Section 5.14(b)(v)(A) is hereby amended and restated as follows:
(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, Series C Preferred Units, and Series D 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, the Series C Preferred Units, and Series D 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.
26. Article V is hereby amended to add a new Section 5.15 as follows:
Section 5.15 Establishment of Series D Preferred Units.
(a) General . The Partnership hereby designates and creates a series of Units to be designated as “ Series D Preferred Units ” and consisting of a total of 2,333,333 Series D 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 5.15 , Section   6.10 , and Section 12.9 . The Series D Preferred Units shall be considered pari passu as to allocations and distributions with the Series A Preferred Units and the Series C Preferred Units. Immediately following the Series D Issuance Date and thereafter, no additional Series D 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 D Preferred Units.
(b) Rights of Series D Preferred Units . The Series D 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 D Preferred Units, Pro Rata, until the aggregate of the Net Income allocated to such Unitholders pursuant to this Section   5.15(b)(i)(A) for the current and all previous taxable periods since issuance of the Series D Preferred Units is equal to the aggregate amount of cash distributed with respect to such Series D 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 D Preferred Units. Allocations
 
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to Series D Preferred Units pursuant to this Section 5.15(b)(i)(A) , to the Series A Preferred Units pursuant to Section 5.12(b)(i)(A), and to the 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 D Preferred Units shall not receive any allocation pursuant to Section 6.1(b)(i) with respect to their Series D 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 D Preferred Units, Pro Rata, until the Adjusted Capital Account of each such Unitholder in respect of each Outstanding Series D Preferred Unit has been reduced to zero. Allocations to Series D Preferred Units pursuant to this Section 5.15(b)(i)(B) , to the Series A Preferred Units pursuant to Section 5.12(b)(i)(B), and to the 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 D Preferred Units shall not receive any allocation pursuant to Section 6.1(c)(i) with respect to their Series D Preferred Units, and (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 D Preferred Units, Pro Rata, until the Capital Account in respect of each Outstanding Series D Preferred Unit is equal to the Series D Liquidation Value. Allocations to Series D Preferred Units pursuant to this Section 5.15(b)(i)(C) , to the Series A Preferred Units pursuant to Section 5.12(b)(i)(C), and to the 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 D Preferred Units shall not receive any allocation pursuant to Section 6.1(c)(ii) with respect to their Series D 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 D Preferred Units, Pro Rata, until the Capital Account in respect of each Outstanding Series D Preferred Unit has been reduced to zero. Allocations to Series D Preferred Units pursuant to this Section 5.15(b)(i)(D) , to the Series A Preferred Units pursuant to Section 5.12(b)(i)(D), and to the 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 December 31, 2016, the holders of the Series D Preferred Units Outstanding as of an applicable Record Date shall be entitled to receive cumulative distributions (each, a “ Series D 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
 
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this Section 5.15(b)(ii)(A) in respect of each Outstanding Series D 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 D Distribution Payment Date ”). For the Quarter ending December 31, 2016, and for each Quarter thereafter through and including the Quarter ending immediately prior to the Series D Conversion Date, the Series D Quarterly Distributions shall be paid entirely in cash at the Series D Distribution Rate per Series D 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 5.15(b)(ii)(A) for a Series D 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.
(B) Beginning with the Quarter ending December 31, 2016, if in violation of this Agreement, the Partnership fails to pay in full any Series D Quarterly Distribution when due, then, without limiting any rights of the holders of the Series D 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 D Quarterly Distribution, including accrued but unpaid interest thereon, (w) the amount of such unpaid distributions (“ Series D 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 D Unpaid Cash Distribution shall accrue interest from the applicable Series D Distribution Payment Date at rate equal to 6.00% 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 D Parity Securities.
(C) The aggregate amount of cash to be distributed in respect of the Series D Preferred Units Outstanding as of the Record Date for such Series D 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 D Quarterly Distribution to be paid in cash with respect to any Quarter, together with any portion of a Series A Quarterly Distribution and 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, the Series C Unitholders and the Series D Unitholders Pro Rata and the balance of such Series D Quarterly Distribution (and 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 5.15(b)(ii)(B) . The Partnership shall provide written notice to the Series D 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 D Quarterly Distribution the Partnership will be unable to pay on the applicable Series D Distribution Payment Date.
 
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(D) Notwithstanding anything in this Section 5.15(b)(ii) to the contrary, with respect to Series D Preferred Units that are converted into Common Units, the holder thereof shall not be entitled to a Series D 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 D 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 D Preferred Units shall receive only the Common Unit distribution with respect to such period.
(E) 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 D Preferred Units, regardless of whether the amounts so distributed or allocated in respect of the Series D Preferred Units were determined under clause (ii) of the definition of “Series D Distribution Rate” or were otherwise determined on an “as converted” basis.
(iii) Issuance of Series D Preferred Units and Series D Warrant . The Series D Preferred Units shall be issued by the Partnership pursuant to the terms and conditions of the Series D Unit Purchase Agreement. If, on the Series D Warrant Start Date, any Series D Preferred Units remain outstanding, the Partnership shall issue promptly thereafter the Series D Warrant to the Record Holders of the Series D Preferred Units (in proportion to their relative number of Series D Preferred Units) as of the Series D Warrant Start Date.
(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 D 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 or the Series C Preferred Units as to which the Series D Preferred Units are pari passu ), the positive value in each such holder’s Capital Account in respect of such Series D 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 D Preferred Units is less than the aggregate Series D Liquidation Value of such Series D 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 D Preferred Units, Pro Rata, until the Capital Account
 
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in respect of each Outstanding Series D Preferred Unit is equal to the Series D 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 sentences of Section 5.12(b)(iv) and 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 D Preferred Units is less than the aggregate Series D Liquidation Value of such Series D 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 D Preferred Units, Pro Rata, until the Capital Account in respect of each such Outstanding Series D Preferred Unit after making allocations pursuant to this and the immediately preceding sentence is equal to the Series D 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 sentences of Section 5.12(b)(iv) and Section 5.14(b)(iv) . At such time as such allocations have been made to the Outstanding Series D 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 D Preferred Units shall become entitled to receive any distributions in respect of the Series D 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 and the Series C Preferred Units as to which the Series D 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 D Preferred Units.
(v) Voting Rights .
(A) Except as provided in Section 5.15(b)(v)(B) below, the Outstanding Series D 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 D Preferred Unit will be entitled to one vote for each Common Unit into which such Series D 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, Series C Preferred Units, and Series D 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, the Series C Preferred Units, and Series D Preferred Units, on an “as if” converted basis, voting together as a single class during any period in which any Series D Preferred Units are Outstanding.
 
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(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 D Preferred Units, voting separately as a class based upon one vote per Series D 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 D Preferred Units or amends or modifies any of the terms of the Series D Preferred Units; provided that the Partnership shall be able to amend this Section 5.15 without the approval by the Record Holders of Outstanding Series D Preferred Units so long as the amendment does not adversely affect the holders of the Series D Preferred Units in any material respect and does not affect the holders of the Series D 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 D 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 D Preferred Units in a material respect if such action would:
(1) reduce the Series D Distribution Rate, change the form of payment of distributions on the Series D Preferred Units, defer the date from which distributions on the Series D Preferred Units will accrue, cancel accrued and unpaid distributions on the Series D Preferred Units or any interest accrued thereon, or change the seniority rights of the Series D 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 5.15 ;
(2) reduce the amount payable or change the form of payment to the holders of the Series D 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 D Preferred Units in relation to the rights upon liquidation of the holders of any other class or series of Units; or
(3) result in a Preferred Unit Change of Control.
(vi) No Series D Parity Securities or Series D Senior Securities . The Partnership shall not, without the affirmative vote of the holders of a majority of the Outstanding Series D Preferred Units, issue any Series D Parity Securities or Series D Senior Securities.
 
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(vii) Certificates .
(A) The Series D 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 D Preferred Units. The Certificates evidencing Series D 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 D 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 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.”
(viii) Conversion.
(A) At the Option of the Series D Unitholder . At any time and from time to time after the Series D Optional Conversion Start Date, subject to any applicable limitations in the New Credit Agreement and subject to no Series D Call Exercise Notice having been given, the Series D Preferred Units owned by any Series D Unitholder shall be convertible, in whole or in part, upon the request of the Series D Unitholder into a number of Common Units determined by multiplying the number of Series D Preferred Units to be converted by the Series D Conversion Rate. Immediately upon any conversion of Series D Preferred Units, all rights of the Series D Converting Unitholder in respect thereof shall cease, including, without limitation, any accrual of distributions, and such Series D 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 5.15(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)).
 
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(B) Conversion Notice . To convert Series D Preferred Units into Common Units pursuant to Section 5.15(b)(viii)(A) , the Series D Unitholder shall give written notice (a “ Series D Conversion Notice ”) to the Partnership in the form of Exhibit B attached to Amendment No. 2 to this Agreement stating that such Series D Unitholder elects to so convert Series D Preferred Units and shall state therein with respect to Series D Preferred Units to be converted pursuant to Section 5.15(b)(viii)(A) the following: (a) the number of Series D Preferred Units to be converted, (b) the Certificate(s) evidencing the Series D Preferred Units to be converted and duly endorsed, (c) the name or names in which such Series D Unitholder wishes the Certificate or Certificates for Series D Conversion Units to be issued, and (d) the Series D Unitholder’s computation of the number of Series D Conversion Units to be received by such Series D Unitholder (or designated recipient(s)) upon the Series D Conversion Date. The date any Series D Conversion Notice is received by the Partnership shall be hereinafter be referred to as a “ Series D Conversion Notice Date .”
(C) Timing; Certificates . If a Series D Conversion Notice is delivered by a Series D Unitholder to the Partnership, in accordance with Section 5.15(b)(viii)(B) , the Partnership shall issue the Series D Conversion Units no later than seven (7) days after a Series D Conversion Notice Date (any date of issuance of such Common Units, a “ Series D Conversion Date ”). On the Series D Conversion Date, the Partnership shall issue to such Series D Unitholder (or designated recipient(s)) a Certificate or Certificates for the number of Series D Conversion Units to which such holder shall be entitled. In lieu of delivering physical Certificates representing the Series D Conversion Units issuable upon conversion of Series D Preferred Units, provided the Transfer Agent is participating in the Depository’s Fast Automated Securities Transfer program, upon request of the Series D Unitholder, the Partnership shall use its commercially reasonable efforts to cause its Transfer Agent to electronically transmit the Series D Conversion Units issuable upon conversion or distribution payment to such Series D Unitholder (or designated recipient(s)), by crediting the account of the Series D 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 D Conversion Units to the Series D Converting Unitholder, all rights under the converted Series D Preferred Units shall cease, and such Series D Converting Unitholder shall be treated for all purposes as the Record Holder of such Series D Conversion Units.
(D) Distributions, Combinations, Subdivisions and Reclassifications by the Partnershi p. 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
 
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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 D 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 D Preferred Units after such time shall entitle each Series D 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 D Unitholder would have been entitled to receive if the Series D 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 5.15 relating to the Series D Preferred Units shall not be abridged or amended and that the Series D 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 D Preferred Units had immediately prior to such transaction or event. An adjustment made pursuant to this Section   5.15(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 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 D 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 D 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 D 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).
 
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(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 D Adjusted Issue Price, then the Series D Conversion Rate will be reset so that it will equal the number determined by dividing the Series D 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 D 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 5.15(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 5.15(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 D Partnership Event Change of Control Offer ”), subject to consummation of the Partnership Event, to each holder of Series D Preferred Units to redeem all (but not less than all) of such holder’s Series D Preferred Units for a price per Series D Preferred Unit payable in cash equal to the greater of (x) the sum of the Series D Issue Price and the Series D Unpaid Cash Distributions and (y) an amount equal to the product of (1) the number of Common Units into which each Series D Preferred Unit is convertible pursuant to Section 5.15(b)(viii) on the day immediately prior to the date of the Series D 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 D Partnership Event Payment ”).
 
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(2) Upon receipt by a Series D Unitholder of a Series D Partnership Event Change of Control Offer, such Series D 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 D Partnership Event Change of Control Offer, to receive Series D Survivor Preferred Securities (as defined below) pursuant to this Section 5.15(b)(viii)(F)(2) in lieu of a Series D Partnership Event Payment. Upon receipt of such Series D Unitholder’s election to receive Series D 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 D 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 D Preferred Units, including Section 5.15 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 D Preferred Unit had immediately prior to such Partnership Event (the “ Series D Survivor Preferred Security ”). The Series D 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 D 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 D 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 D Conversion Rate of the Series D Survivor Preferred Security shall be made successively thereafter whenever any event described in Section 5.15(b)(viii)(D) , Section 5.15(b)(viii)(E) or this Section 5.15(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 D Preferred Units receive a Series D Partnership Event Payment or Series D 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 D Preferred Units.
(3) A Series D Partnership Event Change of Control Offer shall be mailed to each Series D Unitholder and shall describe the transaction or transactions that constitute the Partnership Event and state:
i) that the Series D Partnership Event Change of Control Offer is being made pursuant to this
 
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Section   5.15(b)(viii)(F) and that the Partnership is making an offer to redeem all Series D Preferred Units of such Unitholder (subject to the consummation of the Partnership Event);
ii) the amount of the Series D 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 D 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 D Partnership Event Payment Date, the Partnership (or its successor) shall pay to each Unitholder of Series D Preferred Units that accepts the Series D Partnership Event Change of Control Offer an amount in cash equal to such holder’s applicable Series D Partnership Event Payment, and all of such holder’s rights and privileges under the Series D Preferred Units or as a Series D Unitholder shall be extinguished.
(G) Notwithstanding any of the other provisions of this Section 5.15(b)(viii) , no adjustment shall be made to the Series D Conversion Rate pursuant to Section 5.15(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 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 5.15(b)(viii) .
 
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(H) The following rules shall apply for purposes of this Section   5.15(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   5.15(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 5.15(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 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
 
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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 5.15(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 5.15 , including, but not limited to, a change resulting from the antidilution provisions thereof, the Series D 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 D 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   5.15(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 5.15(b)(viii)(H)(3)iii) or iv) .
(4) Notwithstanding any of the other provisions of this Section   5.15(b)(viii)(H) , no adjustment shall be made to the number of Common Units issuable upon conversion of the Series D Preferred Units or the Series D Conversion Rate as a result of an event for which an adjustment is made under another provision of this Section 5.15(b)(viii)(H) .
(5) For purposes of this Section 5.15(b)(viii) , no adjustment to the Series D 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.
 
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(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 D 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 D 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.
(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 D Conversion Units on conversion of, or payment of distributions on, Series D Preferred Units pursuant hereto. However, the holder of any Series D Preferred Units shall pay any tax that is due because the Series D Conversion Units issuable upon conversion thereof or distribution payment thereon are issued in a name other than such Series D Unitholder’s name.
(K) The Partnership agrees that it will act in good faith to make any adjustment(s) required by this Section 5.15(b)(viii) equitably and in such a manner as to afford the Series D Unitholders the benefits of the provisions hereof, and will not take any action that could reasonably be expected to deprive such Series D Unitholders of the benefit hereof.
(ix) Reserved.
(x) Tax Estimates . Upon receipt of a written request from any Series D Unitholder stating the number of Series D 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 D Unitholder with a good faith estimate (and reasonable supporting
 
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calculations) of whether there is sufficient Unrealized Gain attributable to the Partnership property such that, if such Series D Unitholder converted its Series D Preferred Units pursuant to Section 5.15(b)(viii)(A) 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 D Preferred Units would be equal to the Per Unit Capital Amount for a then Outstanding Common Unit (other than a Series D Conversion Unit received in connection with such conversion of a Series D Preferred Unit).
(xi) Fully Paid and Nonassessable . Any Series D Conversion Unit(s) delivered pursuant to this Section 5.15 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 D Conversion Units issuable upon conversion of the Series D 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 D Preferred Units . At any time prior to the Series D Warrant Start Date, the Partnership may exercise the right (the “ Series D Call Right ”), but shall have no obligation, to require the holder or holders of the Series D Preferred Units (the “ Series D Holders ”) to sell, assign and transfer all or a portion of the then outstanding Series D Preferred Units to the Partnership in accordance with this Section 5.15(c) . The Partnership may exercise the Series D Call Right with respect to any Series D Preferred Unit unless the exercise of the Series D 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.
(i) Reserved.
(ii) The purchase price to be paid by the Partnership in connection with the exercise of the Series D Call Right shall be the product of (A) the Series D Call Value per Series D Preferred Unit to be acquired pursuant to the Series D Call Right (subject to appropriate adjustment for any equity distribution, subdivision or combination of Partnership Interests), multiplied by (B) 1.03.
(iii) If the Partnership elects to exercise the Series D Call Right, the Partnership shall deliver a written notice (the “ Series D Call Exercise Notice ”) to the Series D Holders informing the Series D Holders of the Partnership’s intention to exercise its Series D Call Right. The Series D Call Exercise Notice shall be in substantially the form attached as Exhibit C to Amendment No. 2 to this Agreement, setting forth (A) the number of Series D Preferred Units held by each Series D Holder, (B) the number of Series D Preferred Units with respect to which the Series D Call Right is being exercised, and (C) the address on the books and records of the Partnership to be used for delivery of the purchase price by check, and (D) the closing date for the purchase (the “ Series D Call Closing Date ”), which shall be no earlier than 10 days or later than 30 days after the date of the Series D Call Exercise Notice.
 
32

(iv) The Series D Call Right may be exercised as to any portion of the outstanding Series D Preferred Units outstanding at the time a Series D Call Exercise Notice is delivered, but must be exercised pro-rata as to all Series D Preferred Units subject to the Series D Call Right.
(v) If any Series D Holder does not notify the Partnership of a change to the address for delivery of the purchase prices set forth in the Series D Call Exercise Notice or provide the Partnership with bank account information for wire transfer prior to the date that is two days before the Series D Call Closing Date, the Partnership shall deliver to each Series D Holder its portion of the purchase price in immediately available funds to such address set forth on the Series D Call Exercise Notice on or before the Series D Call Closing Date. If any Series D Holder does notify the Partnership of a change to the address for delivery of the purchase prices set forth in the Series D Call Exercise Notice or provide the Partnership with bank account information for wire transfer prior to the date that is two days before the Series D Call Closing Date, the Partnership shall write or deliver to each Series D Holder its portion of the purchase price in immediately available funds to such address or bank account which were provided to the Partnership on or before the Series D Call Closing Date. At the closing of the Series D Call Right, each such Series D Holder shall deliver to the Partnership the certificates representing the Series D Preferred Units to be acquired 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. The failure of any Series D Holder to comply with the preceding sentence shall not prevent the closing of the Series D Call Right.
27. Section 6.1(d)(iii)(A) is hereby amended and restated as follows:
(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, a Series C Preferred Unit, or a Series D 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, a Series C Preferred Unit or a Series D 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 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.
 
33

28. Section 6.10 is hereby amended and restated as follows:
Section 6.10 Special Provisions Relating to Series A Unitholders, Series B Unitholders, Series C Unitholders and Series D Unitholders.
(a) Subject to transfer restrictions in Section 4.8 of this Agreement, a Unitholder holding a Series A Conversion Unit, a Series C Conversion Unit, or a Series D Conversion Unit shall provide notice to the Partnership of any Transfer of the Series A Conversion Unit, the Series C Conversion Unit, or the Series D 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, the Series C Conversion Unit, or the Series D 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, the Series C Conversion Unit, or the Series D 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, Series C Conversion Units, Series D Preferred Units, or Series D 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 steps may be taken that would have a material adverse effect on the Unitholders holding Common Units, Series A Preferred Units, Series C Preferred or Series D 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, Series C Preferred or Series D Preferred Units).
 
34

(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. Notwithstanding anything to the contrary set forth in this Agreement, the holders of the Series D 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 5.15 or (ii) be entitled to any distributions other than as provided in Section 5.15 and Article VI.
29. Section 7.3(b) is hereby amended and restated as follows:
(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), 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), and the Series D Preferred Unit Partner, for so long as the Series D Preferred Unit Partner holds at least 50% of the Units held by the Series D Preferred Unit Partner immediately following the closing of transactions contemplated by the Series D Unit Purchase Agreement (with respect to Series D Preferred Units, calculated on an as-converted basis and including any Series D 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
 
35

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 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.
30. Section 12.4(c) shall be amended and restated as follows:
(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) , (iii) satisfy liquidation preferences of the Series C Preferred Units provided for under Section 5.14(b)(iv) , and (iv) satisfy liquidation preferences of the Series D Preferred Units provided for under Section 5.15(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).
 
36

31. Section 12.9 shall be amended and restated as follows:
Section 12.9 Series A Liquidation Value, Series C Liquidation Value and Series D Liquidation Value.
Notwithstanding anything to the contrary set forth in this Agreement, the holders of the Series A Preferred Units, the Series C Preferred Units and the Series D Preferred Units shall have the rights, preferences and privileges set forth in Section 5.12(b)(iv) , Section 5.14(b)(iv) and Section 5.15(b)(iv) , respectively, upon liquidation of the Partnership pursuant to this Article XII.
B. Agreement in Effect . Except as hereby amended, the Partnership Agreement shall remain unchanged and unmodified and in full force and effect.
C. Applicable Law . This Amendment shall be construed in accordance with and governed by the laws of the State of Delaware, without regard to principles of conflicts of laws that would apply the laws of any other state.
D. Severability . Each provision of this Amendment shall be considered severable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Amendment that are valid, enforceable and legal.
E. Counterparts . This Amendment may be executed in any number of counterparts, each of which shall be any original, but such counterparts shall together constitute but one and the same instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY BLANK]

37

IN WITNESS WHEREOF , the undersigned have executed this Amendment effective as of October 31, 2016.

AMERICAN MIDSTREAM PARTNERS, LP	
		
By:	 	AMERICAN MIDSTREAM GP, LLC
its General Partner	
		
By:	 	/s/ Eric Kalamaras	
Name:	 	Eric Kalamaras	
Title:	 	Senior Vice President, Chief Financial Officer	
Signature Page to Amendment No. 2 to Fifth Amended and Restated Agreement of Limited Partnership of
American Midstream Partners, LP

The undersigned hereby consents to the adoption of Amendment No. 2 to Fifth Amended and Restated Agreement of Limited Partnership of American Midstream Partners, LP effective as of October 31, 2016.

RECORD HOLDERS OF ALL OF THE SERIES A PREFERRED UNITS:	
	
MAGNOLIA INFRASTRUCTURE PARTNERS, LLC	
		
By:	 	/s/ Daniel R. Revers	
Name:	 	Daniel R. Revers	
Title:	 	President	
	
HIGHPOINT INFRASTRUCTURE PARTNERS, LLC	
		
By:	 	/s/ Daniel R. Revers	
Name:	 	Daniel R. Revers	
Title:	 	President	
	
RECORD HOLDERS OF ALL OF THE SERIES C PREFERRED UNITS:	
	
MAGNOLIA INFRASTRUCTURE HOLDINGS, LLC	
		
By:	 	/s/ Daniel R. Revers	
Name:	 	Daniel R. Revers	
Title:	 	President	
 
Signature Page to Amendment No. 2 to Fifth Amended and Restated Agreement of Limited Partnership of
American Midstream Partners, LP

E XHIBIT  A
TO
AMENDMENT NO. 2 TO
FIFTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
AMERICAN MIDSTREAM PARTNERS, LP
Form of Warrant
See Exhibit 10.1 to this Form 8-K

E XHIBIT  B
TO
AMENDMENT NO. 2 TO
FIFTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
AMERICAN MIDSTREAM PARTNERS, LP
NOTICE OF CONVERSION
This Notice of Conversion is executed by the undersigned holder (the “ Holder ”) in connection with the conversion of Series D Preferred Units of American Midstream Partners, LP, a Delaware limited partnership (the “ Partnership ”), pursuant to the terms and conditions of that certain Fifth Amended and Restated Agreement of Limited Partnership of the Partnership, as amended (the “ Partnership Agreement ”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Partnership Agreement.
Conversion : In accordance with and pursuant to such Partnership Agreement, the Holder hereby elects to convert the number of Series D Preferred Units indicated below into Common Units of the Partnership as of the date specified below.
Series D Preferred Units held Prior to Conversion:                    
Certificates evidencing Series D Preferred Units to be Converted (attached herewith, duly endorsed):                    
Series D Preferred Units Being Converted Hereby:                    
Common Units Due:                    
Series D Preferred Units held After Conversion:                    
Name(s) for Common Unit Certificate:                    
Address for Delivery of Certificate:                    
Authority : Any individual executing this Notice of Conversion on behalf of an entity has authority to act on behalf of such entity and has been duly and properly authorized to sign this Notice of Conversion on behalf of such entity.
[SIGNATURE PAGE FOLLOWS]

			
American Midstream Partners, LP: Notice of Conversion of Series D Preferred Units	  	Page 1	

IN WITNESS WHEREOF, the undersigned has executed this Notice of Conversion.
HOLDER:
[INSERT SIGNATURE BLOCK]

E XHIBIT  C
TO
AMENDMENT NO. 2 TO
FIFTH AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
AMERICAN MIDSTREAM PARTNERS, LP
SERIES D CALL EXERCISE NOTICE
This Series D Call Exercise Notice is executed by American Midstream Partners, LP, a Delaware limited partnership (the “ Partnership ”), pursuant to the terms and conditions of that certain Fifth Amended and Restated Agreement of Limited Partnership of the Partnership, as amended (the “ Partnership Agreement ”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Partnership Agreement.
Series D Call Right : In accordance with and pursuant to Section 5.15(c) of the Partnership Agreement, the Partnership hereby elects to purchase the number of Series D Preferred Units indicated below as of the date specified below as the Series D Call Closing Date.
Series D Preferred Units held:                    
Series D Preferred Units to be Acquired:                    
Address to be Used for Delivery of the Purchase Price:                    
Series D Call Closing Date:                    
Delivery of Purchase Price : If the recipient of this Series D Call Exercise Notice desires for the purchase price to be provided by wire transfer, the recipient must provide bank account information at least two (2) days before the Series D Call Closing Date above. If the recipient of this Series D Call Exercise Notice desires for a check for the purchase price to be delivered to an address other than the address above, the recipient must provide such alternative address at least two (2) days before the Series D Call Closing Date above.
[SIGNATURE PAGE FOLLOWS]

American Midstream Partners, LP: Series D Call Exercise Notice Page 1

IN WITNESS WHEREOF, the undersigned has executed this Series D Call Exercise Notice.

American Midstream Partners, L.P.	
		
By:	 	American Midstream GP, LLC	
	 	      Its General Partner	
	
By	
Name:	
Title:	

Exhibit 10.1
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	 	AMID Deliveries	  	 	4	  	
Section 2.4	 	Purchaser’s Deliveries	  	 	4	  	
	
ARTICLE III	  	
REPRESENTATIONS AND WARRANTIES OF AMID	  	
			
Section 3.1	 	Existence	  	 	5	  	
Section 3.2	 	Purchased Units; Capitalization	  	 	5	  	
Section 3.3	 	No Conflict	  	 	5	  	
Section 3.4	 	No Default	  	 	6	  	
Section 3.5	 	Authority	  	 	6	  	
Section 3.6	 	Approvals	  	 	6	  	
Section 3.7	 	Compliance with Laws	  	 	6	  	
Section 3.8	 	Due Authorization	  	 	6	  	
Section 3.9	 	Valid Issuance; No Options or Preemptive Rights of Units	  	 	7	  	
Section 3.10	 	Periodic Reports	  	 	7	  	
Section 3.11	 	Litigation	  	 	7	  	
Section 3.12	 	No Material Adverse Change	  	 	8	  	
Section 3.13	 	Certain Fees	  	 	8	  	
Section 3.14	 	No Registration	  	 	8	  	
Section 3.15	 	No Integration	  	 	8	  	
Section 3.16	 	Investment Company Status	  	 	8	  	
Section 3.17	 	Form S-3 Eligibility	  	 	8	  	
	
ARTICLE IV	  	
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER	  	
			
Section 4.1	 	Existence	  	 	8	  	
Section 4.2	 	Authorization, Enforceability	  	 	8	  	
Section 4.3	 	No Breach	  	 	8	  	
Section 4.4	 	Certain Fees	  	 	9	  	
Section 4.5	 	Investment	  	 	9	  	
Section 4.6	 	Nature of Purchaser	  	 	9	  	
Section 4.7	 	Restricted Securities	  	 	9	  	
Section 4.8	 	Legend	  	 	9	  	

							
	
ARTICLE V	  	
COVENANTS	  	
			
Section 5.1	 	Taking of Necessary Action	  	 	10	  	
Section 5.2	 	Other Actions	  	 	10	  	
Section 5.3	 	Use of Proceeds	  	 	10	  	
Section 5.4	 	Tax Characterization	  	 	10	  	
Section 5.5	 	NYSE	  	 	10	  	
Section 5.6	 	Warrant Issuance	  	 	10	  	
	
ARTICLE VI	  	
INDEMNIFICATION	  	
			
Section 6.1	 	Indemnification by AMID	  	 	10	  	
Section 6.2	 	Indemnification by the Purchaser	  	 	11	  	
Section 6.3	 	Indemnification Procedure	  	 	11	  	
	
ARTICLE VII	  	
MISCELLANEOUS	  	
			
Section 7.1	 	Interpretation and Survival of Provisions	  	 	12	  	
Section 7.2	 	Survival of Provisions	  	 	12	  	
Section 7.3	 	No Waiver; Modifications in Writing	  	 	12	  	
Section 7.4	 	Binding Effect; Assignment	  	 	12	  	
Section 7.5	 	Communications	  	 	13	  	
Section 7.6	 	Removal of Legend	  	 	13	  	
Section 7.7	 	Entire Agreement	  	 	14	  	
Section 7.8	 	Governing Law	  	 	14	  	
Section 7.9	 	Execution in Counterparts	  	 	14	  	
Section 7.10	 	Recapitalization, Exchanges, Etc. Affecting the LP Units	  	 	14	  	
		
Exhibit A —	 	Partnership Agreement Amendment	  	
Exhibit B —	 	Form of Warrant	  	
Exhibit C —	 	Form of Transfer Application	  	

SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT, dated as of October 31, 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, the Series D Units (as defined below), in accordance with the provisions of this Agreement.
WHEREAS, to induce Purchaser to enter into this Agreement, AMID has agreed, under certain circumstances described herein, to issue to the Purchaser the 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 .
“ Closing Fee ” means 1.5% of the Purchase Price which is payable to the Purchaser by AMID upon Closing to compensate the Purchaser for transaction costs.
“ Code ” means the Internal Revenue Code of 1986, as amended.
 
1

“ Commission ” means the United States Securities and Exchange Commission.
“ Common Units ” means common units representing limited partnership interests in AMID.
“ Delaware LP Act ” means the Delaware Revised Uniform Limited Partnership Act.
“ 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 D Units.
“ Material Adverse Effect ” has the meaning specified in Section 3.1 .
“ NYSE ” means The New York Stock Exchange, Inc.
“ Operative Documents ” means, collectively, this Agreement, the Partnership Agreement Amendment, 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, as amended by that certain Amendment No. 1 to the Fifth Amended and Restated Agreement of Limited Partnership of AMID, adopted effective as of May 1, 2016 and as further amended by the Partnership Agreement Amendment.
“ Partnership Agreement Amendment ” means Amendment No. 2 to the Partnership Agreement, substantially in the form of Exhibit A , to be entered into and effectuated by the General Partner on the Closing Date.
 
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“ 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.
“ Property ” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.
“ Purchased Units ” means 2,333,333 Series D Units.
“ Purchase Price ” means, an amount equal to the number of Purchased Units multiplied by the Series D 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 Warrant and the Common Units underlying the Series D 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 Warrant ” means that certain Warrant to Purchase Common Units of AMID, dated April 25, 2016, issued to Purchaser.
“ Series D Unit Price ” has the meaning specified in Section 2.1(b) .
“ Series D Units ” means the Series D Convertible Preferred Units representing limited partnership interests in AMID having the rights and obligations specified in the Partnership Agreement Amendment.
“ 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.
“ Warrant ” means the warrant to purchase up to 700,000 Common Units (subject to adjustment in accordance with the form of warrant attached hereto as Exhibit B ) at an exercise price of $22.00 per Common Unit, which may be issued to the Purchaser in accordance with and under the circumstances described in this Agreement.
 
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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 the Purchased Units and to pay AMID the Series D Unit Price for each Purchased Unit as set forth in paragraph (b) below.
(b) The amount per Series D Unit the Purchaser will pay to AMID to purchase the Purchased Units (the “ Series D Unit Price ”) hereunder shall be equal to $15.00.
(c) In accordance with the Section 5.6 below, Purchaser may also receive the Warrant to purchase in the aggregate up to 700,000 fully paid and nonassessable Common Units at an exercise price (subject to adjustment in accordance with the provisions of the form of warrant) of $22.00 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 hereunder (the “ Closing ”) shall take place at the offices of American Midstream Partners, LP, 2103 CityWest Boulevard, Building #4, Suite 800, Houston, Texas 77042, or such other location as mutually agreed by the parties, on the date hereof, or such other date as mutually agreed by the parties (the date of such closing, the “ Closing Date ”).
Section 2.3 AMID Deliveries . At the Closing, subject to the terms and conditions hereof, AMID will deliver, or cause to be delivered, to the Purchaser:
(a) 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;
(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, less the Closing Fee, from the Purchaser as of the Closing Date;
(d) An executed copy of the Partnership Agreement Amendment, the form of which is attached as Exhibit A to this Agreement; 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, subject to the conditions set forth in Section 5.6 , 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 2.4 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, less the Closing Fee, 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;
 
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(b) A cross-receipt executed by the Purchaser and delivered to AMID certifying that it has received the Purchased Units as of the Closing Date; and
(c) A transfer application in substantially the form attached hereto as Exhibit C , 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 D Units as set forth in the Partnership Agreement Amendment.
(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.
(c) The limited partners of AMID hold LP Units in AMID, represented as of October 25, 2016 by approximately 51,726,424 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
 
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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 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).
 
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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 Common Units issuable upon conversion of the Purchased Units and, if the Warrant is issued in accordance with the terms set forth in Section 5.6 , 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 D Units as reflected in the Partnership Agreement Amendment, 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).
(c) 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 D Units; and, except for the Series C Warrant and 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 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.
 
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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 June 30, 2016, 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.
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
 
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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 are being, and if issued pursuant to Section 5.6 , the Warrant will be, 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, if applicable, 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 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
 
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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.”
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 . If the Warrant is issued in accordance with Section 5.6 , AMID shall, promptly following such issuance, file a supplemental listing application with the NYSE to list any Common Units underlying the Warrant.
Section 5.3 Use of Proceeds . AMID shall use the proceeds from the sale of the Securities in order to finance the Partnership’s purchase of additional interests in Delta House FPS LLC, a Delaware limited liability company, and Delta House Oil and Gas Lateral LLC, a Delaware limited liability company from Red Willow Offshore, LLC, LLOG Bluewater Holdings LLC, and a producer group substantially upon the terms as previously approved by the Board of Directors of the General Partner.
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, shall 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.
Section 5.5 NYSE . Promptly after the Closing Date, AMID shall submit a supplemental listing application to the NYSE to list the LP Units issuable upon conversion of Series D Units, as set forth in the Partnership Agreement Amendment.
Section 5.6 Warrant Issuance . If the Series D Units remain outstanding at 5:00 p.m. New York City time on June 30, 2017, AMID shall promptly, but in no event later than July 2, 2017, issue to the Purchaser the Warrant in the form attached hereto as Exhibit B .
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
 
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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 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
 
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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 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).
 
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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
2103 CityWest Boulevard, Building #4, Suite 800
Houston, Texas 77042
Attention: General Counsel
Facsimile: 713.815.3900
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 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
 
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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 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 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.]
 
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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/ Eric Kalamaras	
Name:	 	Eric Kalamaras	
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 — Partnership Agreement Amendment
See Exhibit 3.1 to this Form 8-K

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 700,000 common units representing limited partner interests in the Partnership (the “ Common Units ”), subject to adjustment as set forth herein, for an exercise price of $22.00 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, as amended (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 Houston, Texas (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 VWAP (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,
 
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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) 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(g)(ii) ) would require an increase or decrease of at least 1% in such Exercise Price.
(g) 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
 
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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(a)-(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 Houston, Texas (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 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 2103 CityWest Boulevard, Building #4, Suite 800, Houston, Texas 77042, 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
 
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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]
 
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IN WITNESS WHEREOF, the Partnership has caused this Warrant to be signed by its duly authorized officer on this [1 st] day of July 2017.

AMERICAN MIDSTREAM PARTNERS, LP	
	
By: American Midstream GP, LLC,	
Its: General Partner	
		
By:	 	     	
Name:	 	Eric Kalamaras	
Title:	 	Senior Vice President and Chief Financial Officer	

FORM OF EXERCISE AGREEMENT
Dated:                     
 
To:	American Midstream Partners, LP	
2103 CityWest Boulevard, Building #4, Suite 800
Houston, Texas 77042
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.	

Exhibit C — Form of Transfer Application
No transfer of the Series D 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 D 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 D Convertible Preferred Units.
APPLICATION FOR TRANSFER OF SERIES D CONVERTIBLE PREFERRED UNITS
The undersigned (“ Assignee ”) hereby applies for transfer to the name of the Assignee of the Series D 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: October      , 2016

 Tax Identification Number of assignee	 		 		 		
				
$34,999,995	 		 	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):	  		
				
☐ Individual	  	☐ Partnership	  	☐ Corporation	  		
				
☐ Trust	  	☐ Other (specify)                      	  		  		

Nationality (check one):	
	
☐ U.S. Citizen, Resident or Domestic Entity	
		
☐ Foreign Corporation	  	☐ 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.
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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.
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Acknowledged by:
 
AMERICAN MIDSTREAM PARTNERS, LP
 
By: American Midstream GP, LLC
Its: General Partner	
	
/s/ Eric Kalamaras	
Name:	 	Eric Kalamaras	
Title:	 	Senior Vice President and Chief Financial Officer