mcep-8k_20180131.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report: January 31, 2018

Date of Earliest Event Reported: January 31, 2018

MID-CON ENERGY PARTNERS, LP

(Exact name of registrant as specified in its charter)

 

 

 

 

Delaware

001-35374

45-2842469

(State or other jurisdiction

of incorporation)

(Commission

File Number)

(IRS Employer

Identification No.)

 

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

(Address of principal executive offices)

74136

(Zip code)

(918) 743-7575

(Registrant’s telephone number, including area code)

Not Applicable

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

 

 

 

 

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

 

 

 

 

 

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

 

 

 

 

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

 

 

 

 

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

 

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

Emerging growth company

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

 


Item 1.01

Entry into a Material Definitive Agreement

On January 31, 2018 (the “Closing Date”), Mid-Con Energy Partners, LP, a Delaware limited partnership (the “Partnership”), completed its previously announced private placement (the “Private Placement”) of $15 million aggregate principal amount of the Partnership’s Class B Convertible Preferred Units (the “Preferred Units”) pursuant to that certain Class B Convertible Preferred Unit Purchase Agreement, dated January 23, 2018 (the “Purchase Agreement”), by and among the Partnership and each of the purchasers named on Schedule A thereto (collectively, the “Purchasers”).  Pursuant to the Purchase Agreement, the Purchasers acquired the Preferred Units at a price of $1.53 per Preferred Unit (the “Unit Purchase Price”).

Mid-Con Energy III, LLC, a Delaware limited liability company (“Mid-Con III”) and an affiliate of Mid-Con Energy GP, LLC, a Delaware limited liability company and the general partner of the Partnership (the “General Partner”), is a Purchaser under the Purchase Agreement.  Pursuant to the Purchase Agreement, Mid-Con III acquired $800,000 of the Preferred Units issued in the Private Placement; such Preferred Units were purchased on the same terms and subject to the same conditions as the Preferred Units purchased by the other Purchasers.

The Partnership used net proceeds from the Private Placement to fund its acquisition of certain oil and natural gas properties located in Campbell and Converse Counties, Wyoming (the “PRB Acquisition”) and excess net proceeds will be used for general partnership purposes, including repayment of borrowings outstanding under the Partnership’s revolving credit facility.

The description of the Purchase Agreement contained in this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, which is filed as Exhibit 10.1 to the Partnership’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 29, 2018.

Registration Rights Agreement

On January 31, 2018, in connection with the closing of the Private Placement, the Partnership entered into a Registration Rights Agreement (the “Registration Rights Agreement”) by and among the Partnership and the Purchasers.

Pursuant to the Registration Rights Agreement, within 90 days of the Closing Date, the Partnership is required to prepare and file a registration statement (the “Registration Statement”) to permit the public resale of the Common Units issued or issuable upon conversion of the Preferred Units, including any Common Units issued or issuable upon conversion of any PIK Units (as defined in the Partnership Agreement Amendment (as defined in Item 5.03 hereof)).  The Partnership is also required to use its commercially reasonable efforts to cause the Registration Statement to become effective no later than 180 days after the Closing Date.  In addition, the Registration Rights Agreement grants the Purchasers demand and piggyback registration rights under certain circumstances.  These registration rights are transferable to affiliates of the Purchasers and, in certain circumstances, to third parties.

The description of the Registration Rights Agreement contained in this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the full text of the Registration Rights Agreement, which is filed as Exhibit 4.1 hereto and incorporated by reference herein.

Credit Agreement Amendment

On January 31, 2018, in connection with the PRB Acquisition and the Private Placement, the Partnership and its lenders entered into Amendment No. 12 to that certain Credit Agreement, dated as of December 20, 2011, among Mid-Con Properties, LLC, as borrower, Wells Fargo Bank, National Association, as administrative agent and collateral agent, and the lenders party thereto (the “Credit Agreement Amendment”).


Among other changes, the Credit Agreement Amendment increased the borrowing base of the Partnership’s senior secured revolving credit facility to $125 million, and extended the maturity to November 2020.

The description of the Credit Agreement Amendment contained in this Item 1.01 does not purport to be complete and is qualified in its entirety by reference to the full text of the Credit Agreement Amendment, which is filed as Exhibit 10.1 hereto and incorporated by reference herein.

Item 2.03

Creation of Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant

The information regarding the Credit Agreement Amendment set forth in Item 1.01 of this Current Report is incorporated by reference into this Item 2.03.

Item 3.02

Unregistered Sales of Equity Securities

On January 31, 2018, the Partnership completed its Private Placement of 9,803,921 Preferred Units for an aggregate offering price of $15 million. Pursuant to the Purchase Agreement, the Private Placement was made in reliance upon an exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), pursuant to Section 4(a)(2) thereof, as a transaction by an issuer not involving any public offering.  The terms of the Preferred Units, and the Common Units issuable upon conversion thereof, are set forth in the Partnership Agreement Amendment.

At any time during the period beginning on July 31, 2018 and ending immediately prior to the first to occur of (i) August 11, 2021 or (ii) the effective date of a Change of Control (as defined in the Partnership Agreement Amendment), each holder of Preferred Units (a “Holder”) shall have the right, subject to certain conditions, to convert all or any portion of such Holder’s Preferred Units into common units representing limited partner interests in the Partnership (“Common Units”) on a one-for-one basis, subject to adjustment for splits, reverse splits, subdivisions, combinations and reclassifications.

Upon a Change of Control, each Holder shall have the right, at its election, to either (i) if the Partnership is the surviving entity of such Change of Control, continue to hold Preferred Units; or (ii) convert all or any portion of the Preferred Units held by such Holder into Common Units on a one-for-one basis, subject to adjustment for splits, reverse splits, subdivisions, combinations and reclassifications.  If any Preferred Units remain outstanding following a Change of Control in which the Partnership is not the surviving entity, then immediately following effectiveness of such Change of Control, the Partnership shall redeem in cash all, but not less than all, of the outstanding Preferred Units at a price per Preferred Unit equal to the Unit Purchase Price multiplied by the change of control redemption multiple then in effect.

On August 11, 2021, each Holder shall have the right to cause the Partnership to redeem all or any portion of such Holder’s outstanding Preferred Units for cash at the Unit Purchase Price, and any remaining Preferred Units will thereafter be converted to Common Units on a one-for-one basis, subject to adjustment for splits, reverse splits, subdivisions, combinations and reclassifications.

Upon any conversion or redemption of Preferred Units, the Partnership shall pay any accrued but unpaid and accumulated distributions on such Preferred Units in cash.

The description of the Preferred Units contained in this Item 3.02 does not purport to be complete and is qualified in its entirety by reference to the full text of the Partnership Agreement Amendment, which is filed as Exhibit 3.1 hereto and incorporated by reference herein.  The information regarding the Preferred Units set forth in Item 5.03 of this Current Report is incorporated by reference into this Item 3.02.

Item 3.03

Material Modification to Rights of Security Holders

As described in the First Amended and Restated Agreement of Limited Partnership of the Partnership, as amended by the Partnership Agreement Amendment (the “Amended Partnership Agreement”), the


Preferred Units entitle the Holders to certain rights that are senior to the rights of holders of Common Units, such as rights to certain distributions and rights upon liquidation of the Partnership.

If the Partnership fails to pay any Preferred Unit distribution in full on the applicable payment date, then the Partnership shall not be permitted to, and shall not, declare or make any distributions in respect of any Junior Securities (as defined in the Partnership Agreement Amendment), including Common Units, or Class B Parity Securities (as defined in the Partnership Agreement Amendment), other than distributions on the Preferred Units, until such time as all accrued and unpaid Preferred Unit distributions have been paid in full in cash.  The Preferred Units rank senior to the Junior Securities, including the Common Units, and rank pari passu with the Partnership’s existing Class A Preferred Units in respect of liquidation.  Upon liquidation of the Partnership, each Preferred Unit Holder shall be entitled to receive, in respect of each Preferred Unit then-owned, a liquidation preference equal to the sum of the Unit Purchase Price (subject to adjustments for any stock splits, combinations or recapitalization with respect to the Preferred Units), plus all accrued but unpaid and accumulated distributions, if any, on such Preferred Unit to, but not including, the liquidation date.

The description of the Preferred Units contained in this Item 3.03 does not purport to be complete and is qualified in its entirety by reference to the full text of the Partnership Agreement Amendment, which is filed as Exhibit 3.1 hereto and is incorporated by reference herein.  The information regarding the Preferred Units set forth in Items 1.01, 3.02 and 5.03 hereof is incorporated by reference into this Item 3.03.

Item 5.03

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

Partnership Agreement Amendment

On January 31, 2018, in connection with the closing of the Private Placement, the General Partner executed the First Amendment to the Second Amended and Restated Agreement of Limited Partnership of the Partnership (the “Partnership Agreement Amendment”), setting forth the terms of the Preferred Units and the preferences, rights, powers and duties of the Holders.  The Partnership Agreement Amendment is effective as of January 31, 2018.

The Partnership will pay Holders a cumulative, quarterly distribution in cash at an annual rate of 8.00% or, under certain circumstances, in additional Preferred Units at an annual rate of 10.00%.  The Preferred Units rank senior to the Common Units, with respect to the payment of distributions and distribution of assets upon liquidation, dissolution and winding up, in each case, as described in Item 3.03 hereof. As described in Item 3.02 hereof, if not earlier redeemed or converted, on the fifth anniversary of the Closing Date, all outstanding Preferred Units will be redeemed by the Partnership or converted into Common Units, at the Holder’s election.  The Preferred Units are not subject to any sinking fund.

The Preferred Units vote together with the Common Units, as a single class, with each Preferred Unit having such voting rights as such Preferred Unit would have if it were converted into Common Units, at the conversion rate then in effect, except that the Preferred Units shall be entitled to vote as a separate class on any matter on which unitholders are entitled to vote that adversely affects the rights, powers, privileges or preferences of the Preferred Units in relation to other classes of Partnership Interests (as defined in the Amended Partnership Agreement) or as required by law.  The consent of a majority of the then-outstanding Preferred Units, with one vote per Preferred Unit, shall be required to approve any matter for which the Preferred Unit Holders are entitled to vote as a separate class.

The description of the Partnership Agreement Amendment contained in this Item 5.03 does not purport to be complete and is qualified in its entirety by reference to the full text of the Partnership Agreement Amendment, which is filed as Exhibit 3.1 hereto and incorporated by reference herein.  The information regarding the Preferred Units set forth in Items 3.02 and 3.03 hereof is incorporated by reference into this Item 5.03.


Item 7.01

Regulation FD Disclosure

On January 31, 2018, the Partnership issued a press release announcing the consummation of the PRB Acquisition, the closing of the Private Placement and the entry into the Credit Agreement Amendment.  The Partnership also announced that the Board of Directors of its general partner declared a cash distribution for its Class A Convertible Preferred Units for the 3rd and 4th quarters of 2017, according to terms outlined in the Partnership Agreement.  A cash distribution of $0.086 per Class A Preferred Unit will be paid on February 14, 2018 to holders of record as of the close of business on February 7, 2018.  A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated by reference herein.

The information disclosed in this Item 7.01, including Exhibit 99.1 hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities under that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act, or the Exchange Act except as expressly set forth by specific reference in such filing.

Item 9.01

Financial Statements and Exhibits

Exhibits

 

3.1

Second Amendment to First Amended and Restated Agreement of Limited Partnership of Mid-Con Energy Partners, LP, dated as of January 31, 2018.

 

4.1

Registration Rights Agreement, dated January 31, 2018, by and among Mid-Con Energy Partners, LP and the Purchasers named therein.

 

10.1

Amendment No. 12 to Credit Agreement, dated as of January 31, 2018, among Mid-Con Energy Properties, LLC, as Borrower, Wells Fargo Bank, National Association, as Administrative Agent and Collateral Agent and the lenders party thereto.

 

99.1

Press release dated January 31, 2018.

 

 

 

 

 

 

 

 

 

 

MID-CON ENERGY PARTNERS, LP

 

 

 

By:

Mid-Con Energy GP, LLC

 

 

 

 

its general partner

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dated:

January 31, 2018

By:

/s/Charles L. McLawhorn, III

 

 

 

 

Charles L. McLawhorn, III

 

 

 

 

Vice President, General Counsel and Secretary

 

mcep-ex31_7.htm

EXHIBIT 3.1

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

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

RECITALS

WHEREAS, Section 5.6(a) of the Partnership Agreement provides that the Partnership may issue additional Partnership Interests for any Partnership purpose at any time and from time to time to such Persons and for such consideration and on such terms and conditions as the General Partner in its sole discretion shall determine, all without the approval of any Limited Partners;

WHEREAS, Section 5.6(b) of the Partnership Agreement provides that the Partnership Interests authorized to be issued by the Partnership pursuant to Section 5.6(a) may be issued in one or more classes, or one or more series of any such classes, with such designations, preferences, rights, powers and duties (which may be senior to existing classes and series of Partnership Interests) as shall be fixed by the General Partner;

WHEREAS, Section 13.1(g) of the Partnership Agreement provides that the General Partner may, without the approval of any Limited Partner, amend any provision of the Partnership Agreement that the General Partner determines to be necessary or appropriate in connection with the creation, authorization or issuance of any class or series of Partnership Interests pursuant to Section 5.6 of the Partnership Agreement; and

WHEREAS, the General Partner deems it advisable and in the best interest of the Partnership to effect this Amendment to provide for (i) the creation of a new class of Units to be designated as Class B Preferred Units and to fix the preferences and the relative participating, optional and other special rights, powers and duties pertaining to the Class B Preferred Units, including, without limitation, the conversion of the Class B Preferred Units into Common Units in accordance with the terms described herein, (ii) the issuance of the Class B Preferred Units to the Purchasers pursuant to the Class B Preferred Unit Purchase Agreement and (iii) such other matters as are provided herein; and


 

WHEREAS, pursuant to Section 5.10(c)(iv) of the Partnership Agreement, the General Partner has received the approval of a Class A Preferred Unit Majority approving the creation and issuance of the Class B Preferred Units, with such rights, preferences and privileges as are set forth in this Amendment.

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

A.

Amendment. The Partnership Agreement is hereby amended as follows:

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

Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. For purposes of this Agreement, and not in limitation of the foregoing (i) the Partnership, on the one hand, and the Purchasers, on the other hand, shall not be considered Affiliates solely by virtue of such Purchasers holding Class A Preferred Units, (ii) the Partnership, on the one hand, and the Class B Purchasers, on the other hand, shall not be considered Affiliates solely by virtue of such Class B Purchasers holding Class B Preferred Units and (iii) any fund, entity or account managed, advised or sub-advised, directly or indirectly, by a Purchaser, a Class B Purchaser, or any of their respective Affiliates, or the direct or indirect equity owners, including limited partners of a Purchaser, a Class B Purchaser, or any of their respective Affiliates, shall be considered an Affiliate of such Purchaser or Class B Purchaser, as applicable.

Class A Parity Securities” means any class or series of Partnership Interests that, with respect to distributions on such Partnership Interests of cash or property and/or distributions upon liquidation of the Partnership (taking into account the intend effects of the allocation of gains and losses as provided in this Agreement), ranks pari passu with the Class A Preferred Units, including the Class B Preferred Units.

Class B Change of Control” means the occurrence of any of the following events: (i) the Class B Permitted Holders cease to beneficially own, directly or indirectly, at least 50% of the outstanding voting securities of the General Partner, measured by voting power rather than number of units; (ii) the Common Units are no longer listed or admitted to trading on the NASDAQ or another National Securities Exchange; (iii) the direct or indirect sale, lease, transfer, conveyance or other disposition (including by way of merger or consolidation), in one or more series of related transactions, of all or substantially all of the assets of the Partnership and its Subsidiaries, taken as a whole, to any Section 13(d) Person or Persons; or (iv) the General Partner withdraws or is removed by the Limited Partners in accordance with the terms of this Agreement.

Class B Closing Date” has the meaning ascribed to the term “Closing Date” in the Class B Preferred Unit Purchase Agreement.

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Class B COC Redemption Premium” means, with respect to a Class B Redemption Date occurring (i) prior to the second anniversary of the Class B Closing Date, 150% of the Class B Preferred Unit Price; (ii) during the period commencing on the second anniversary, and ending on the date immediately preceding the third anniversary, of the Class B Closing Date, 130% of the Class A Preferred Unit Price; (iii) during the period commencing on the third anniversary, and ending on the date immediately preceding the fourth anniversary, of the Class B Closing Date, 110% of the Class B Preferred Unit Price; and (iv) thereafter, 100% of the Class B Preferred Unit Price.

Class B Conversion Price” means, subject to Section 5.12(d)(ix), the Class B Preferred Unit Price.

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

Class B Minimum Conversion Amount” means (i) a number of Class B Preferred Units having an aggregate value of $1.0 million, which value is calculated by multiplying (A) the number of Class B Preferred Units to be converted by (B) the Class B Preferred Unit Price, or (ii) if the value of the Class B Preferred Units (calculated in accordance with clause (i) above) to be converted by the Class A Preferred Holder requesting conversion does not equal or exceed $1.0 million, then all of the Class B Preferred Units held by such Class B Preferred Holder.

Class B Parity Securities” means any class or series of Partnership Interests that, with respect to distributions on such Partnership Interests of cash or property and/or distributions upon liquidation of the Partnership (taking into account the intend effects of the allocation of gains and losses as provided in this Agreement), ranks pari passu with the Class B Preferred Units, including the Class A Preferred Units.

Class B Payment Date” has the meaning set forth in Section 5.12(b)(iv).

Class B Permitted Affiliate” has the meaning set forth in Section 4.11(c).

Class B Permitted Holder” means: (i) Charles R. Olmstead and Jeffrey R. Olmstead; (ii) any wife, lineal descendant, legal guardian or other legal representative or estate of any of Charles R. Olmstead and Jeffrey R. Olmstead; (iii) any estate planning trust of which at least one of the trustees is any of Charles R. Olmstead and Jeffrey R. Olmstead; and (iv) any other Person that is controlled directly or indirectly by any one or more of Charles R. Olmstead and Jeffrey R. Olmstead.

Class B PIK Distribution Amount” has the meaning set forth in Section 5.12(b)(i)(B).

Class B PIK Payment” has the meaning set forth in Section 5.12(b)(i)(B).

Class B PIK Payment Date” has the meaning set forth in Section 5.12(b)(v).

Class B PIK Unit” means a Class B Preferred Unit issued pursuant to a Class B Preferred Unit Distribution in accordance with Section 5.12(b)(i)(B).

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Class B Preferred Holder” means a holder of a Class B Preferred Unit.

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

Class B Preferred Unit Distribution” has the meaning assigned to such term in Section 5.12(b)(i)(A).

Class B Preferred Unit Distribution Amount” has the meaning assigned to such term in Section 5.12(b)(i)(A).

Class B Preferred Unit Majority” means the affirmative vote or consent of a majority of the Outstanding Class B Preferred Units, voting separately as a class with one vote per Class B Preferred Unit.

Class B Preferred Unit Price” means $1.53 per Class B Preferred Unit.

Class B Preferred Unit Purchase Agreement” means the Class B Preferred Unit Purchase Agreement, dated as of January 23, 2018, among the Partnership and the Class B Purchasers.

Class B Prohibited Paymenthas the meaning set forth in Section 5.12(b)(i)(B).

Class B Purchaser” and “Class B Purchasers” have the meaning given to such terms in the introductory paragraph of the Class B Preferred Unit Purchase Agreement.

Class B Redemption Date” means, with respect to each Class B Preferred Unit, the date on which the Partnership has completed the redemption of such Class B Preferred Unit pursuant to Section 5.12(e)(ii) or Section 5.12(f).

Class B Transfer Agent” means the Person who is then serving as the Transfer Agent with respect to the Common Units.

Class B Transfer Limitation Period” has the meaning set forth in Section 4.11(a).

Common Unit” means a Partnership Interest representing a fractional part of the Partnership Interests of all Limited Partners and assignees, and having the rights and obligations specified with respect to the Common Units in this Agreement. The term “Common Unit” does not refer to or include any Class A Preferred Unit or Class B Preferred Unit prior to its conversion into a Common Unit pursuant to the terms of this Agreement.

Conversion Date” means, with respect to each Class A Preferred Unit, the date on which the Partnership has completed the conversion of such Class A Preferred Unit pursuant to Section 5.10(d) and, with respect to each Class B Preferred Unit, the date on which the Partnership has completed the conversion of such Class B Preferred Unit pursuant to Section 5.12(d).

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Liquidation Preferencemeans, with respect to each Class A Preferred Unit, the sum of the Class A Preferred Unit Price (subject to adjustments for any stock splits, combinations or recapitalization with respect to the Class A Preferred Units) plus all accrued but unpaid and accumulated distributions, if any, on such Class A Preferred Unit to, but not including, the Liquidation Date, and, with respect to each Class B Preferred Unit, the sum of the Class B Preferred Unit Price (subject to adjustments for any stock splits, combinations or recapitalization with respect to the Class B Preferred Units) plus all accrued but unpaid and accumulated distributions, if any, on such Class B Preferred Unit to, but not including, the Liquidation Date.

Junior Securities” means any class or series of Partnership Interests that, with respect to distributions on such Partnership Interests of cash or property and distributions upon liquidation of the Partnership (taking into account the intended effects of the allocation of gains and losses as provided in this Agreement), ranks junior to the Class A Preferred Units and the Class B Preferred Units, including but not limited to Common Units and General Partner Interests.

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

Percentage Interest” means as of any date of determination (a) as to the General Partner, with respect 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 deemed held by the General Partner or the number of Units held by such Unitholder, 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 part of such issuance. The Percentage Interest with respect to a Class A Preferred Unit and a Class B Preferred Unit shall, in each case, at all times be zero.

Preferred Holder” means a Record Holder of Preferred Units.

Preferred Units” means any class or series of Partnership Interests that, with respect to distributions on such Partnership Interests of cash or property and distributions upon liquidation of the Partnership (taking into account the intended effects of the allocation of gains and losses as provided in this Agreement), ranks senior to the Common Units, including the Class A Preferred Units and the Class B Preferred Units.

Pro Rata means (a) when used with respect to Units or any class thereof, apportioned equally among all designated Units in accordance with their relative Percentage Interests, (b) when used with respect to Partners or Record Holders, apportioned among all Partners or Record Holders in accordance with their relative Percentage Interests, (c) when used with respect to Class A Preferred Holders or Class B Preferred Holders, apportioned equally among all Class A Preferred Holders or Class B Preferred Holders, as applicable, in accordance with the relative number or percentage of Class A Preferred Units or Class B Preferred Units, respectively, held

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by each such Class A Preferred Holder or Class B Preferred Holder, as applicable, and (d) when used with respect to Preferred Holders, apportioned equally among all Preferred Holders in accordance with the relative number or percentage of Preferred Units held by each such Preferred Holder.

Senior Securities” means any class or series of Partnership Interests that, with respect to distributions on such Partnership Interests of cash or property and/or distributions upon liquidation of the Partnership (taking into account the intended effects of the allocation of gains and losses as provided in this Agreement), ranks senior to the Class A Preferred Units and the Class B Preferred Units.

Stated Class B Liquidation Preference” means an amount equal to $1.53 per Class B Preferred Unit.

Stated Liquidation Preference” means (a) when used with respect to a Class A Preferred Unit, the Stated Class A Liquidation Preference, and (b) when used with respect to a Class B Preferred Unit, the Stated Class B Liquidation Preference.

Suspension Period” means the period beginning on the Class A Closing Date and ending on the fifth anniversary of the Class A Closing Date, unless earlier terminated with the consent of the Class A Preferred Holders and the Class B Preferred Holders in accordance with Section 5.10(c)(iv) and Section 5.12(c)(iv), respectively.

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

2.Article I is hereby amended to delete the following definitions in Section 1.1:

(a) “Parity Securities”

3.The Partnership Agreement is hereby amended to replace all references to “Parity Securities” with “Class A Parity Securities.”

4.Article IV is hereby amended to add a new Section 4.11 implementing certain transfer restrictions on the Class B Preferred Units:

Section 4.11Restrictions on Transfer of Class B Preferred Units.

(a)During the period beginning on the Class B Closing Date and ending on the date immediately preceding the first anniversary of the Class B Closing Date (the “Class B Transfer Limitation Period”), no Class B Purchaser nor any Affiliate of a Class B Purchaser shall, except as provided in Section 4.11(c), transfer any Class B Preferred Units held by such Class B Purchaser or Affiliate without the approval of the General Partner.

(b)After the Class B Transfer Limitation Period, each Class B Purchaser may transfer any Class B Preferred Units held by it to any other Person or Persons, except for any transfers to any Section 13(d) Persons that, after giving effect to such transfer, would own more

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than 15% of the Outstanding Common Units, including the number of Common Units into which such Class B Preferred Units to be transferred to such Section 13(d) Persons are then convertible; provided, however, that the foregoing restriction shall not apply to any transfer of Class B Preferred Units to (i) any investment bank or similar institution that assists in the brokering or marketing of the Class B Preferred Units on behalf of any Class B Purchaser or (ii) any Affiliate of such Class B Purchaser, provided, that, in the case of this clause (ii), subsequent transferees (including such Affiliates) shall remain subject to the restriction.

(c)Notwithstanding anything to the contrary contained herein, a Class B Purchaser shall at all times from and after the Class B Closing Date be permitted to transfer any Class B Preferred Units held by such Class B Purchaser to any Person that is an Affiliate of such Class B Purchaser or to another Class B Purchaser (each such Person, a “Class B Permitted Affiliate”), provided that any such transfer would not result in a Technical Termination; provided further, that the Partnership shall provide any Class B Purchaser, upon its request, with information sufficient for such Class B Purchaser to determine if a proposed transfer of Class B Preferred Units would result in a Technical Termination.

(d)Notwithstanding anything to the contrary contained herein, no Class B Purchaser shall transfer any Class B Preferred Units to any Person that is a Competitor; provided, however, that the foregoing restriction shall not apply to any transfer of Class B Preferred Units on any National Securities Exchange on which the Class B Preferred Units are then-listed or admitted for trading; provided, further, that there shall be no obligation to list or admit the Class B Preferred Units for trading on any National Securities Exchange.

(e)This Section 4.11 sets forth all restrictions on transfer applicable to Class B Preferred Units.

5.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 Simulated Gain and 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 made with respect to such Partnership Interest; provided that the Capital Account of a holder in respect of Class A Preferred Units or Class B Preferred Units shall not be decreased by the amount of any Class A Preferred Unit Distributions or Class B Preferred Unit Distributions, as applicable, and (y) all items of Partnership deduction and loss (including Simulated Depletion and Simulated Loss) computed in accordance with Section 5.5(b) and allocated with respect to such Partnership Interest pursuant to Section 6.1. The initial Capital Account with respect to the Class A Preferred Units shall be Stated Class A Liquidation Preference. The initial Capital Account with respect to

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the Class B Preferred Units shall be Stated Class B Liquidation Preference.  In connection with the foregoing, the Partnership shall adopt the methodology set forth in the noncompensatory option regulations under Treasury Regulation Sections 1.704-1 and 1.721-2 with respect to the issuance and conversion of Class A Preferred Units and Class B Preferred Units, unless otherwise required by applicable law.

6.Section 5.5(d)(i) is hereby amended and restated as follows:

(d)(i) Consistent with Treasury Regulation Sections 1.704-1(b)(2)(iv)(f) and 1.704-1(b)(2)(iv)(h)(2), on an issuance of additional Partnership Interests for cash or Contributed Property, the issuance of a Noncompensatory Option (including the conversion of a Class A Preferred Unit or a Class B Preferred Unit in accordance with Section 5.10(d) and Section 5.12(d), as applicable), the issuance of Partnership Interests as consideration for the provision of services, or the conversion of the Combined Interest to Common Units pursuant to Section 11.3(b), the Capital Accounts of all Partners and the Carrying Value of each Partnership property immediately prior to such issuance (or, in the case of a Conversion Date, immediately after such Conversion Date) shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Partnership property, as if such Unrealized Gain or Unrealized Loss had been recognized on an actual sale of each such property for an amount equal to its fair market value immediately prior to such issuance; provided, however, that in the event of the issuance of a Partnership Interest pursuant to the exercise of a Noncompensatory Option where the right to share in Partnership capital represented by such Partnership Interest differs from the consideration paid to acquire and exercise such option, the Carrying Value of each Partnership property immediately after the issuance of such Partnership Interest shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Partnership property and the Capital Accounts of the Partners shall be adjusted in a manner consistent with Treasury Regulation Section 1.704-1(b)(2)(iv)(s); provided, further, that in the event of an issuance of Partnership Interests for a de minimis amount of cash or Contributed Property, in the event of an issuance of a Noncompensatory Option to acquire a de minimis Partnership Interest, or in the event of an issuance of a de minimis amount of Partnership Interests as consideration for the provision of services, the General Partner may determine that such adjustments are unnecessary for the proper administration of the Partnership. Any such Unrealized Gain or Unrealized Loss (or items thereof) shall be allocated (A) if the operation of this sentence is triggered by the conversion of a Class A Preferred Unit or Class B Preferred Unit, first among the Partners holding Common Units as may be necessary to cause the Capital Account attributable to each Common Unit to be the same, and (B) any remaining Unrealized Gain or Unrealized Loss shall be allocated among the Partners pursuant to Section 6.1 in the same manner as any item of gain, loss, Simulated Gain or Simulated Loss actually recognized would have been allocated. If the Unrealized Gain or Unrealized Loss allocated as a result of the occurrence of a Conversion Date is not sufficient to cause the Capital Account attributable to each Common Unit to be the same, then Capital Account balances shall be reallocated between the Partners holding such Units so as to cause the Capital Account attributable to each Common Unit to be the same, in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(s)(3). In determining Unrealized Gain or Unrealized Loss in connection with the issuance of additional Partnership Interests or a Conversion Date, the aggregate cash amount and fair market value of all Partnership assets (including cash or cash equivalents) immediately prior to the issuance of additional Partnership Interests (or, in the case of an adjustment to the Carrying Value of Partnership property resulting from the exercise of a Noncompensatory Option (including

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conversion of a Class A Preferred Unit or Class B Preferred Unit) immediately after the issuance of the Partnership Interest acquired pursuant to the exercise of the Noncompensatory Option) shall be determined by the General Partner using such method of valuation as it may adopt in its sole discretion. For this purpose, the General Partner may determine that it is appropriate to first determine an aggregate value for the Partnership, based on the current trading price of the Common Units, the fair market value of all other Partnership Interests at such time (on a fully converted basis) of all Partners at such time, and the amount of Partnership liabilities; and, if before the Conversion Date of any Preferred Units or other Noncompensatory Options, may adjust the fair market value of all Partnership assets to reflect the difference, if any, between the fair market value of any Preferred Units or other Noncompensatory Options for which the Conversion Date has not occurred and the aggregate Capital Accounts attributable to such Preferred Units to the extent of any Unrealized Gain or Unrealized Loss that has not been reflected in the Partners’ Capital Accounts previously, consistent with the methodology of 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) to arrive at a fair market value for individual properties.

7.Section 5.10(b)(iv) is hereby amended and restated as follows:

(iv)All Class A Preferred Unit Distributions shall be paid Quarterly, in arrears, on the earliest of: (A) the date that distributions are made on the Class B Preferred Units for such Quarter pursuant to Section 5.12(b); (B) the date that distributions are made on the Common Units for such Quarter pursuant to Section 6.3(a) and (C) the date that is forty-five (45) days after the end of such Quarter (such date, the “Payment Date”).

8.Article V is hereby amended to add a new Section 5.12 creating a new series of Units as follows:

Section 5.12Establishment of Class B Preferred Units

(a)General. The General Partner hereby designates and creates a series of Units to be designated as “Class B Preferred Units,” having the terms and conditions set forth herein.

(b)Distributions.

(i)Beginning with the Quarter ending March 31, 2018, the Class B Preferred Holders as of the applicable Record Date shall be entitled to receive distributions in accordance with the following provisions:

A)The Partnership shall pay a cumulative distribution equal to $0.0306 per Quarter in respect of each Outstanding Class B Preferred Unit, subject to adjustment in accordance with Section 5.12(d)(ix) (the Class B Preferred Unit Distribution Amount and such distribution, a Class B Preferred Unit Distribution). The Class B Preferred Unit Distribution Amount for the period ending March 31, 2018 shall be pro-rated for the period commencing on the Class B Closing Date and ending on, and including, March 31, 2018.

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B)Each Class B Preferred Unit Distribution shall be paid in cash at the Class B Preferred Unit Distribution Amount; provided, however, that if the Credit Agreement prohibits the Partnership from paying the Class B Preferred Unit Distribution in respect of any Quarter to all Class B Preferred Holders in cash (a “Class B Prohibited Payment”), then the Class B Preferred Unit Distribution for such Quarter shall be paid in additional Class B Preferred Units (a “Class B PIK Payment”), and the Class B Preferred Unit Distribution Amount for such Quarter shall be $0.03825 in respect of each Outstanding Class B Preferred Unit, subject to adjustment in accordance with Section 5.12(d)(ix) (the “Class B PIK Distribution Amount”). If the Partnership fails to pay in full any Class B Preferred Unit Distribution (or portion thereof) on the applicable Class B Payment Date, then (1) the Class B Preferred Unit Distribution Amount in respect of such Quarter will accumulate until paid in full in cash (or until the earlier conversion or redemption of the Class B Preferred Unit), and (2) the Partnership shall not be permitted to, and shall not, declare or make (x) any distributions in respect of any Junior Securities, or (y) any distribution in respect of any Class B Parity Securities, unless and until all accrued and unpaid Class B Preferred Unit Distributions have been paid in full in cash; provided, however, that distributions may be declared and paid in respect of the Class B Preferred Units and any Class B Parity Securities, as long as such distributions are declared and paid pro rata such that the amounts of distributions declared per Class B Preferred Unit and per unit of such Class B Parity Security shall in all cases bear to each other the same ratio that accrued but unpaid and accumulated distributions per Class B Preferred Unit and per unit of such Class B Parity Security bear to each other.

(ii)The number of Class B PIK Units to be issued in connection with any Class B PIK Payment shall be equal to the quotient of (A) the Class B PIK Distribution Amount divided by (B) the Class B Preferred Unit Price; provided that instead of issuing any fractional Class B PIK Unit, the Partnership shall round the number of Class B PIK Units issued to each Class B Preferred Holder down to the nearest whole Class B PIK Unit and pay cash in lieu of such fractional Unit.

(iii)Class B Preferred Unit Distributions shall accrue on a daily basis; provided, however, that, with respect to any Class B Preferred Unit that is converted into Common Units in accordance with Section 5.12(d), the holder thereof shall not be entitled to both a Class B Preferred Unit Distribution and a Common Unit distribution in respect of (A) the most recently completed Quarter or (B) the Quarter in which the conversion is consummated, 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 Record Date in respect of each such Quarter, which Record Date shall not be later than 10 days prior to the Class B Payment Date.

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(iv)All Class B Preferred Unit Distributions shall be paid Quarterly, in arrears, on the earliest of: (A) the date that distributions are made on the Class A Preferred Units for such Quarter pursuant to Section 5.10(b); (B) the date that distributions are made on the Common Units for such Quarter pursuant to Section 6.3(a) or such earlier date after the end of such Quarter as the General Partner may determine, and (C) the date that is forty-five (45) days after the end of such Quarter (such date, the “Class B Payment Date”).

(v)When Class B PIK Units are payable to a Class B Preferred Holder pursuant to this Section 5.12, the Partnership shall issue the Class B PIK Units to such holder in accordance with Section 5.12(b)(iv) above (the date of issuance of such Class B PIK Units, the “Class B PIK Payment Date”). On the Class B PIK Payment Date, the Partnership shall issue to such Class B Preferred Holder the number of Class B PIK Units to which such holder shall be entitled by a notation in book entry form in the books of the Class B Transfer Agent or, at the request of such Class B Preferred Holder, by a certificate or certificates for the number of Class B PIK Units to which such Class B Preferred Holder shall be entitled. All Class B PIK Units shall, when so issued, be duly authorized, validly issued fully paid and non-assessable Limited Partner Interests in the Partnership, except as such non-assessability may be affected by Section 17-303, 17-607 or 17-804 of the Delaware Act, and shall be free from preemptive rights and free of any lien, claim, rights or encumbrances, other than those arising under the Delaware Act or the Partnership Agreement, as amended by this Amendment.

(vi)For purposes of maintaining Capital Accounts, if the Partnership issues one or more Class B PIK Units with respect to a Class B Preferred Unit, (i) the Partnership shall be treated for federal income tax purposes as having made a guaranteed payment for the use of capital under Section 707(c) of the Code with respect to such Class B Preferred Unit in an amount equal to the Class B PIK Distribution Amount, and (ii) the holder of such Class B Preferred Unit shall be treated as having contributed to the Partnership in exchange for such newly issued Class B PIK Units an amount of cash equal to the Class B PIK Distribution Amount less the amount of any cash distributed by the Partnership in lieu of fractional Class B PIK Units, with such holder’s Capital Account being increased by the amount of such deemed contribution.

(vii)For the avoidance of doubt and not withstanding anything in Sections 6.3(a) to the contrary, any Available Cash that is to be distributed pursuant to Sections 6.3(a) shall be distributed first in accordance with this Section 5.12(b).

(viii)All Class B Preferred Unit Distributions payable by the Partnership pursuant to this Section 5.12 shall be payable without regard to income of the Partnership and shall be treated for federal income tax purposes as guaranteed payments for the use of capital under Section 707(c) of the Code.

(c)Voting Rights.

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(i)Notwithstanding anything to the contrary in this Agreement, the Class B Preferred Units shall have no voting rights and no rights to consent or approve any action or matter, except as set forth in this Section 5.12(c), Section 13.3, or as otherwise required by Delaware law.

(ii)The Class B Preferred Units will have such voting rights pursuant to this Agreement as such Class B Preferred Units would have if they were converted into Common Units, at the Class B Conversion Rate then in effect, and shall vote together with the Common Units as a single class, except that the Class B Preferred Units shall be entitled to vote as a separate class on any matter on which Unitholders are entitled to vote that adversely affects the rights, powers, privileges or preferences of the Class B Preferred Units in relation to other classes of Partnership Interests or as required by law.

(iii)The approval of a Class B Preferred Unit Majority shall be required to approve any matter for which the Class B Preferred Holders are entitled to vote as a separate class.

(iv)The approval of a Class B Preferred Unit Majority shall be required to:

A)amend this Agreement in any manner that adversely alters or changes the rights, powers, privileges or preferences or duties and obligations of the Class B Preferred Units;

B)amend this Agreement in any manner that modifies any terms of the Class B Preferred Units;

C)issue additional Class B Preferred Units;

D)create (by reclassification or otherwise) and issue any class of Senior Securities or Class B Parity Securities (or amend the provisions of any existing class of Partnership Interests to make any such class of Partnership Interests a class of Senior Securities or Class B Parity Securities);

E)incur any indebtedness for borrowed money (other than under the Credit Agreement, including any increase in the borrowing base thereunder or any amendment or restatement thereof, and trade accounts payable arising in the ordinary course of business);

F)terminate the Suspension Period under the Equity Distribution Agreement; or

G)enter into any oral or written agreement, including any agreement effecting a merger or consolidation, or otherwise commit to do any of the foregoing.

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(d)Conversion.

(i)(A) At any time during the period beginning on July 31, 2018, and ending on the Business Day immediately prior to the first to occur of (1) the fifth anniversary of the Class A Closing Date, and (2) the effective date of a Class B Change of Control, each Class B Preferred Holder shall have the right, at its sole election, to convert all or any portion of the Class B Preferred Units held by such electing Class B Preferred Holder, in an aggregate amount equaling or exceeding the Class B Minimum Conversion Amount, into Common Units at the Class B Conversion Rate then in effect, and (B) immediately prior to effectiveness of a Change of Control, in accordance with an election made pursuant to Section 5.12(e)(i)(B), each Class B Preferred Holder shall have the right, at its sole election, to convert all or any portion of the Class B Preferred Units held by such electing Class B Preferred Holder into Common Units at the Class B Conversion Rate then in effect, in each case, by delivery of: (x) written notice to the Partnership, in the form set forth as Exhibit C hereto, setting forth the number of Class B Preferred Units it holds and the number of Class B Preferred Units it is electing to convert, and (y) if such Class B Preferred Units are Certificated, a Class B Preferred Unit Certificate to the Class B Transfer Agent representing an amount of Class B Preferred Units at least equal to the amount such Class B Preferred Holder is electing to convert (or an instruction letter to the Class B Transfer Agent if the Class B Preferred Units are in book-entry form), together with such additional information as may be requested by the Class B Transfer Agent. The Partnership shall give each Class B Preferred Holder at least ten (10) Business Days prior written notice of any Change of Control. In the case of any Certificate representing Class B Preferred Units which are converted in part only, upon such conversion, the Class B Transfer Agent shall authenticate and deliver to the Class B Preferred Holder thereof, at the expense of the Partnership, a new Certificate representing the number of Class B Preferred Units not so converted.

(ii)On the fifth anniversary of the Class A Closing Date, if a Class B Preferred Holder has not elected, pursuant to Section 5.12(f), to cause the Partnership to redeem all of the Class B Preferred Units held by such Class B Preferred Holder, then immediately following the Partnership’s redemption of Class B Preferred Units pursuant to Section 5.12(f), all of such Class B Preferred Holder’s Outstanding Class B Preferred Units shall automatically convert into Common Units at the Class B Conversion Rate then in effect.

(iii)The Partnership shall make a cash payment with respect to each Class B Preferred Unit converted pursuant to this Section 5.12(d), in an amount equal to all accrued but unpaid and accumulated distributions on such Class B Preferred Unit to, but not including, the Conversion Date; provided, however, that such accrued but unpaid and accumulated distributions shall not include any Class B Preferred Unit Distribution accrued in respect of (A) the most recently completed Quarter, if the Record Date in respect of such Quarter has not yet passed, or (B) the Quarter in which the conversion is consummated.

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

(v)Upon conversion, the rights of a holder of converted Class B Preferred Units as a Class B Preferred Holder shall cease with respect to such converted Class B Preferred Units, including any rights under this Agreement with respect to Class B Preferred Holders, and such Person shall continue to be a Limited Partner and have the rights of a holder of Common Units under this Agreement and the rights of a Class B Preferred Holder in respect of any Class B Preferred Units not converted. Each Class B Preferred Unit shall, upon its Conversion Date, be deemed to be transferred to, and cancelled by, the Partnership in exchange for the issuance of the Common Unit(s) into which such Class B Preferred Unit converted. Notwithstanding the foregoing, as the result of a conversion, a holder shall not lose or relinquish any claims or rights of action such holder may then or thereafter have as a result of such holder’s ownership of the converted Class B Preferred Units.

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

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

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

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quoted or admitted to trading the Common Units issuable upon conversion of the Class B Preferred Units to the extent permitted or required by the rules of such exchange or market.

(ix)If, after the Class B Closing Date, the Partnership (A) makes a distribution on its Common Units in Common Units, (B) subdivides or splits its outstanding Common Units into a greater number of Common Units, (C) combines or reclassifies its Common Units into a smaller number of Common Units or (D) issues by reclassification of its Common Units any Partnership Interests (including any reclassification in connection with a merger, consolidation or business combination in which the Partnership is the surviving Person), then the Class B Conversion Price in effect at the time of the Record Date for such distribution or of the effective date of such subdivision, split, combination, or reclassification shall be proportionately adjusted so that the conversion of the Class B Preferred Units after such time shall entitle the holder to receive (x) the aggregate number of Common Units (or shares of any Partnership Interests into which such shares of Common Units would have been combined, consolidated, merged or reclassified pursuant to clauses (C) and (D) above) that such holder would have been entitled to receive if the Class B Preferred Units had been converted into Common Units immediately prior to such Record Date or effective date, as the case may be, and (y) in the case of clause (A), the aggregate number of Common Units that such holder would have been entitled to receive in connection with such distribution.  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 of this Section 5.12 relating to the Class B Preferred Units shall not be abridged or amended and that the Class B 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 Class B Preferred Units had immediately prior to such transaction or event. An adjustment made pursuant to this Section 5.12(d)(ix) 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.

(e)Change of Control.

(i)In the event of a Class B Change of Control, each Class B Preferred Holder shall have the option, at its sole election, to:

A)if the Partnership is the surviving entity following such Class B Change of Control, continue to hold Class B Preferred Units; or

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B)immediately prior to effectiveness of such Class B Change of Control, convert all or any portion of the Class B Preferred Units held by such Class B Preferred Holder into Common Units, at the Class B Conversion Rate then in effect, in accordance with applicable provisions of Section 5.12(d).

(ii)If (A) a Class B Preferred Holder does not elect to convert all of the Class B Preferred Units held by such Class B Preferred Holder into Common Units pursuant to Section 5.12(e)(i)(B), and (B) the Partnership is not the surviving entity following such Class B Change of Control, then immediately following effectiveness of such Class B Change of Control, the Partnership shall redeem in cash all, but not less than all, of the Class B Preferred Units held by such Class B Preferred Holder at a price per Class B Preferred Unit equal to the Class B COC Redemption Premium, plus any accrued but unpaid and accumulated distributions on such Class B Preferred Units to, but not including, the Class B Redemption Date.

(f)Redemption.

(i)On the fifth anniversary of the Class A Closing Date, each Class B Preferred Holder shall be entitled to elect to cause the Partnership to redeem in cash all or any portion of the Class B Preferred Units held by such Class B Preferred Holder at a price per Class B Preferred Unit equal to the Unit Purchase Price, plus any accrued but unpaid and accumulated distributions on such Class B Preferred Units to, but not including, the Class B Redemption Date.

(g)Certificates.

(i)If requested by a Class B Preferred Holder, the Class B Preferred Units shall be evidenced by certificates in such form as the Board of Directors may approve; unless and until the Board of Directors determines to assign the responsibility to another Person, Wells Fargo Shareowner Services will act as the Class B Transfer Agent for the Class B Preferred Units. The certificates evidencing Class B Preferred Units shall be separately identified and shall not bear the same CUSIP number, if any, as the certificates evidencing Common Units.

(ii)The certificate(s) representing the Class B Preferred Units may be imprinted with a legend in substantially the following form:

(iii)“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED 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

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AND, IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT OR THE ISSUER 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 (i) THE FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF THE PARTNERSHIP, DATED AS OF DECEMBER 20, 2011, AS AMENDED OR RESTATED FROM TIME TO TIME, AND (ii) THE CLASS B CONVERTIBLE PREFERRED UNIT PURCHASE AGREEMENT, DATED AS OF JANUARY 23, 2018, BY AND BETWEEN THE PARTNERSHIP AND THE CLASS B PURCHASERS PARTY THERETO, IN EACH CASE, A COPY OF WHICH MAY BE OBTAINED FROM THE PARTNERSHIP AT ITS PRINCIPAL EXECUTIVE OFFICES.”

(iv)In connection with a sale of Class B Preferred Units pursuant to an effective registration statement or in reliance on Rule 144 of the rules and regulations promulgated under the Securities Act, upon receipt by the Partnership of such information as the Partnership reasonably deems necessary to determine that the sale of the Class B Preferred Units is made in compliance with Rule 144, the Partnership shall remove or cause to be removed the restrictive legend from the certificate(s) representing such Class B Preferred Units (or the book-entry account maintained by the Class B Transfer Agent), and the Partnership shall bear all costs associated therewith.

9.Article V is hereby amended to add a new Section 5.13 as follows:

Section 5.13Special Provisions Relating to the Class B Preferred Holders.

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

(b)A Unitholder holding a Class B Preferred Unit that has converted into a Common Unit pursuant to Section 5.12(d) shall not be issued a Common Unit Certificate pursuant to Section 4.1 and shall not be permitted to transfer its converted Class B Preferred Units to a Person that is not an Affiliate of the holder until such time as the General Partner determines, based on advice of counsel, that upon transfer, each such converted Class B Preferred Unit should have intrinsic economic and U.S. federal income tax characteristics to the transferee, in all material respects, that are the same as the intrinsic economic and U.S. federal income tax characteristics that a Common Unit (other than a converted Class B Preferred Unit) would have to such transferee upon transfer, provided that in all events such determination shall be made within five (5) Business Days of the date of conversion or receipt by the Partnership of

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the notice of transfer, as applicable. The General Partner shall act in good faith and shall make the determinations set forth in this Section 5.13(b) as soon as practicable following a Conversion Date or as earlier provided herein.

(c)Except as expressly set forth herein, all payments and distributions to holders of Class B Preferred Units shall be made ratably to them in accordance with the Class B Preferred Units held by them.

10.Section 6.1(a) is hereby amended and restated as follows:

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

(i)First, 100% to the General Partner until the General Partner has been allocated cumulative Net Income for the current and all prior taxable periods equal to the cumulative Net Loss previously allocated to the General Partner pursuant to Section 6.1(b)(iii); and

(ii)The balance, if any, to all Partners (other than Preferred Holders in respect of their Preferred Units), Pro Rata.

11.Section 6.1(b) is hereby amended and restated as follows:

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

(i)First, to all Partners (other than Preferred Holders in respect of their Preferred Units), Pro Rata; provided, however, that Net Loss shall not be allocated pursuant to this Section 6.1(b)(i) to the extent that such allocation would cause any Partner to have a deficit balance in its Adjusted Capital Account at the end of such taxable period (or increase any existing deficit balance in its Adjusted Capital Account) as such Adjusted Capital Account would be determined without regard to any Preferred Units then held by such Partner;

(ii)Second, to the Class A Preferred Holders and Class B Preferred Holders, Pro Rata; provided that the Net Loss shall not be allocated pursuant to this Section 6.1(b)(ii) to the extent that such allocation would cause any such Class A Preferred Holder or Class B Preferred Holder to have a deficit balance in its Adjusted Capital Account at the end of such taxable period (or increase any existing deficit balance in its Adjusted Capital Account); and

(iii)The balance, if any, 100% to the General Partner.

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12.Section 6.1(c) is hereby amended and restated as follows:

(a)Net Termination Gains and Losses. After giving effect to the special allocations set forth in Sections 6.1(d) and (e) and any allocations to other Partnership Interests, Net Termination Gain or Net Termination Loss (including a pro rata part of each item of income, gain, loss, deduction, and Simulated Gain taken into account in computing Net Termination Gain or Net Termination Loss) for such taxable period shall be allocated in the manner set forth in this Section 6.1(c). All allocations under this Section 6.1(c) shall be made after Capital Account balances have been adjusted by all other allocations provided under this Section 6.1 and after all distributions of Available Cash provided under Section 6.3 have been made; provided, however, that solely for purposes of this Section 6.1(c), Capital Accounts shall not be adjusted for distributions made pursuant to Section 12.4.

(i)If a Net Termination Gain (including a pro rata part of each item of income, gain, loss, deduction and Simulated Gain taken into account in computing Net Termination Gain) is recognized, such Net Termination Gain shall be allocated in the following manner:

A)First, to the General Partner until the Net Termination Gain allocated to the General Partner pursuant to this Section 6.1(c)(i)(A) for the current and all previous taxable periods is equal to the aggregate of the Net Termination Loss allocated to the General Partner pursuant to Section 6.1(c)(ii)(C) for all previous taxable periods;

B)Second, to each Partner having a deficit balance in its Capital Account, in the proportion that such deficit balance bears to the total deficit balances in the Capital Accounts of all Partners, until each such Partner has been allocated Net Termination Gain equal to any such deficit balance in its Capital Account; and

C)Third, 100% to all Partners (other than Preferred Holders in respect of their Preferred Units), Pro Rata.

(ii)If a Net Termination Loss is recognized, such Net Termination Loss shall be allocated among the Partners in the following manner:

A)First, to all Partners (other than Preferred Holders in respect of their Preferred Units), Pro Rata, until the Capital Account in respect of each Common Unit then Outstanding has been reduced to zero;

B)Second, to Class A Preferred Holders and Class B Preferred Holders, Pro Rata, until the Capital Account in respect of each Class A Preferred Unit and Class B Preferred Unit then Outstanding has been reduced to zero; and

C)The balance, if any, 100% to the General Partner.

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13.Section 6.1(d)(xii) is hereby amended and restated as follows:

(i)(xii)Allocations with respect to Preferred Units.

A)Net Termination Gain, if any, for the taxable period (or, to the extent necessary, items of income or gain for the taxable period) shall be allocated to each Preferred Holder in proportion to, and to the extent of, an amount equal to the excess, if any, of (x) the Stated Liquidation Preference with respect to such holder’s Preferred Units over (y) such holder’s existing Capital Account balance in respect of such Preferred Units, until the Capital Account balance of each such holder in respect of its Preferred Units is equal to the Stated Liquidation Preference in respect of such Preferred Units.

B)With respect to any taxable period ending upon, or after, an applicable Conversion Date, items of Partnership income, gain or loss, as applicable, shall be allocated 100% to each Partner holding such Preferred Units until each such Partner has been allocated an amount of Partnership income or gain that increases the Capital Account maintained with respect to such converted Preferred Units to an amount equal to the product of (X) the number of converted Preferred Units multiplied by (Y) the Per Unit Capital Account for a Common Unit. The purpose for this allocation is to establish uniformity between the Capital Accounts underlying converted Preferred Units and the Capital Accounts underlying Common Units.

C)Notwithstanding any other provision of this Section 6.1 (other than the Required Allocations), if (1) the Liquidation Date occurs prior to the conversion of the last Outstanding Preferred Unit and (2) after having made all other allocations provided for in this Section 6.1 for the taxable period in which the Liquidation Date occurs, the Per Unit Capital Amount of each Preferred Unit does not equal or exceed the applicable  Liquidation Preference, then items of income, gain, loss and deduction for such taxable period shall be allocated among the Partners in a manner determined appropriate by the General Partner so as to cause, to the maximum extent possible, the Per Unit Capital Amount in respect of each Preferred Unit to equal the applicable Liquidation Preference. For the avoidance of doubt, the reallocation of items set forth in the immediately preceding sentence provides that, to the extent necessary to achieve the Per Unit Capital Amount balances described above, items of income and gain that would otherwise be included in Net Income or Net Loss, as the case may be, for the taxable period in which the Liquidation Date occurs, shall be reallocated from the Unitholders holding Units other than Preferred Units to Unitholders holding Preferred Units. In the event that (i) the Liquidation Date occurs on or before the date (not including any extension of time) prescribed by law for the filing of the Partnership’s federal income tax return for the taxable period immediately prior to the taxable period in which the Liquidation Date occurs and (ii) the

20


 

reallocation of items for the taxable period in which the Liquidation Date occurs as set forth above in this Section 6.1(d)(xii)(C) fails to achieve the Per Unit Capital Amounts described above, items of income, gain, loss and deduction that would otherwise be included in the Net Income or Net Loss, as the case may be, for such prior taxable period shall be reallocated among all Partners in a manner that will, to the maximum extent possible and after taking into account all other allocations made pursuant to this Section 6.1(d)(xii)(C), cause the Per Unit Capital Amount in respect of each Preferred Unit to equal the applicable Liquidation Preference.

14.Section 9.3 is hereby amended and restated as follows:

Section 9.2    Tax ControversiesSubject to the provisions hereof, the General Partner is designated as the “tax matters partner” (as defined in Section 6231(a)(7) of the Code as in effect prior to the enactment of the Bipartisan Budget Act of 2015) and the “partnership representative” (as defined in Section 6223 of the Code following the enactment of the Bipartisan Budget Act of 2015) (the “Tax Matters Partner”). The Tax Matters Partner shall be authorized and required to represent the Partnership (at the Partnership’s expense) in connection with all examinations of the Partnership’s affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Partnership funds for professional services and costs associated therewith. In its capacity as “partnership representative,” the Tax Matters Partner shall exercise, in its sole discretion, any and all authority of the “partnership representative” under the Code, including, without limitation, (i) binding the Partnership and its Partners with respect to tax matters and (ii) determining whether to make any available election under Section 6226 of the Code. Each Partner agrees to cooperate with the Tax Matters Partner and to do or refrain from doing any or all things reasonably required by the Tax Matters Partner to conduct such proceedings. Notice of or updates regarding tax controversies shall be deemed conclusively to have been given to or made by the Tax Matters Partner to the Partners if the Partnership has either (a) filed the information for which notice is required with the Commission via its Electronic Data Gathering, Analysis and Retrieval system and such information is publicly available on such system or (b) made the information for which notice is required available on any publicly available website maintained by the Partnership, whether or not such Partner remains a Partner in the Partnership at the time such information is made publicly available. The Tax Matters Partner may amend the provisions of this Agreement as appropriate to reflect the proposal or promulgation of Treasury Regulations implementing the partnership audit, assessment and collection rules adopted by the Bipartisan Budget Act of 2015, including any amendments to those rules.

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

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

21


 

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

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

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

(Signature page follows)

 

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

 

GENERAL PARTNER:

 

 

 

MID-CON ENERGY GP, LLC

 

 

 

 

 

 

By:

 

/s/Jeffrey R. Olmstead

Name:

 

Jeffrey R. Olmstead

Title:

 

Chief Executive Officer

 

 

 

 

SECOND AMENDMENT TO

FIRST AMENDED AND RESTATED AGREEMENT

OF LIMITED PARTNERSHIP OF MID-CON ENERGY PARTNERS, LP


 

FORM OF NOTICE OF CONVERSION

 

CLASS B PREFERRED UNIT CONVERSION NOTICE
(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER
TO CONVERT CLASS A PREFERRED UNITS)

[Date]

The undersigned hereby elects to convert the number of Class B Preferred Units (“Class B Preferred Units”) of Mid-Con Energy Partners, LP, a Delaware limited partnership (the “Partnership”), indicated below into common units (“Common Units”) of the Partnership, according to the conditions hereof, as of the date written below. If Common Units are to be issued in the name of a person other than the holder of such Class B Preferred Units, such holder will pay all transfer taxes payable with respect thereto and will deliver such certificates and opinions as may be required by the Partnership or its transfer agent. No fee will be charged to the holders for any conversion, except for any such transfer taxes.

Conversion calculations:

Date to Effect Conversion:

 

 

Number of Class B Preferred Units to be Converted:

 

 

Total Amount of Accrued, Accumulated and Unpaid
Class B Preferred Unit Distributions:


 

Applicable Class B Conversion Ratio:

 

 

Number of Common Units to be Issued:

 

 

Name in which Certificate for Common Units to be Issued:

 

 

Address for Delivery:

 

 

[REGISTERED HOLDER]

 

 

 

By:

 

 

 

 

Authorized Officer:

 

 

Title:

 

 

 

mcep-ex41_8.htm

EXHIBIT 4.1

REGISTRATION RIGHTS AGREEMENT

BY AND AMONG

MID-CON ENERGY PARTNERS, LP

AND

THE PURCHASERS NAMED ON SCHEDULE A HERETO

This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of January 31, 2018, by and among Mid-Con Energy Partners, LP, a Delaware limited partnership (the “Partnership”), and each of the Purchasers set forth on Schedule A to this Agreement (each, a “Purchaser” and collectively, the “Purchasers”).

WHEREAS, this Agreement is entered into in connection with the closing of the issuance and sale of the Class B Preferred Units (as defined below), pursuant to the Class B Convertible Preferred Unit Purchase Agreement, dated as of January 23, 2018 (the “Purchase Agreement”), by and among the Partnership and the Purchasers;

WHEREAS, the Partnership has agreed to provide the registration and other rights set forth in this Agreement for the benefit of the Purchasers pursuant to the Purchase Agreement; and

WHEREAS, it is a condition to the respective obligations of the Partnership and each of the Purchasers to consummate the transactions contemplated by the Purchase Agreement that each of the parties hereto execute and deliver this Agreement, contemporaneously with the Closing of the transactions contemplated by the Purchase Agreement;

NOW THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows

Article I
DEFINITIONS

Section 1.01Definitions.  Capitalized terms used herein without definition shall have the meanings given to them in the Purchase Agreement.  The terms set forth below are used herein as so defined:

Agreement” has the meaning specified therefor in the introductory paragraph of this Agreement.

Closing Date” means January 31, 2018.

Demand Notice” has the meaning specified therefor in Section 2.04 of this Agreement.

 


 

Effective Date” means, with respect to a particular Shelf Registration Statement, the date of effectiveness of such Shelf Registration Statement.

Effectiveness Deadline” has the meaning specified therefor in Section 2.01(a) of this Agreement.

Effectiveness Period” means the period beginning on the Effective Date for the Registration Statement and ending at the time all Registrable Securities covered by such Registration Statement have ceased to be Registrable Securities.

Holder” means the record holder of any Registrable Securities under this Agreement.  For the avoidance of doubt, in accordance with Section 3.05 of this Agreement, for purposes of determining the availability of any rights and applicability of any obligations under this Agreement, including, calculating the amount of Registrable Securities held by a Holder, a Holder’s Registrable Securities shall be aggregated together with all Registrable Securities held by other Holders who are Affiliates of such Holder.

Included Registrable Securities” has the meaning specified therefor in Section 2.02(a) of this Agreement.

Launch” has the meaning specified therefor in Section 2.04 of this Agreement.

Law” means any statute, law, ordinance, regulation, rule, order, code, governmental restriction, decree, injunction or other requirement of law, or any judicial or administrative interpretation thereof, of any Governmental Authority.

Losses” has the meaning specified therefor in Section 2.09(a) of this Agreement.

Managing Underwriter” means, with respect to any Underwritten Offering, the book-running lead manager of such Underwritten Offering.

Opt-Out Notice” has the meaning specified therefor in Section 2.02(a) of this Agreement.

Partnership” has the meaning specified therefor in the introductory paragraph of this Agreement.

Person” means any individual, corporation, company, voluntary association, partnership, joint venture, trust, limited liability company, unincorporated organization or government or any agency, instrumentality or political subdivision thereof, or any other form of entity.

Piggyback Threshold Amount” means $1.0 million.

Post-Launch Withdrawing Selling Holders” has the meaning specified therefor in Section 2.04 of this Agreement.

Preferred Units” means the Class B Convertible Preferred Units of the Partnership initially purchased and sold pursuant to the Purchase Agreement (including, with respect to a

 


 

Selling Holder, Preferred Units acquired from another Selling Holder) and any Class B PIK Units, in each case, issued pursuant to the Amended Partnership Agreement.

Purchase Agreement” has the meaning specified therefor in the recitals of this Agreement.

Purchaser” and “Purchasers” have the meanings specified therefor in the introductory paragraph of this Agreement.

Registrable Securities” means the Common Units issued or issuable upon conversion of any of the Preferred Units, and includes any type of ownership interest issued to the Holder as a result of Section 3.04 of this Agreement.

Registrable Securities Amount” means the calculation based on the product of the Unit Purchase Price times the number of Registrable Securities.

Registration Effective Date” has the meaning specified therefor in Section 2.01(a) of this Agreement.

Registration Expenses” has the meaning specified therefor in Section 2.08(b) of this Agreement.

Registration Statement” has the meaning specified therefor in Section 2.01(a) of this Agreement.

Selling Expenses” has the meaning specified therefor in Section 2.08(b) of this Agreement.

Selling Holder” means a Holder who is selling Registrable Securities under a Registration Statement pursuant to the terms of this Agreement.

Selling Holder Indemnified Persons” has the meaning specified therefor in Section 2.09(a) of this Agreement.

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

Underwritten Offering” means an offering (including an offering pursuant to a Shelf Registration Statement) in which Registrable Securities are sold to one or more underwriters on a firm commitment basis for reoffering to the public or an offering that is a “bought deal” with one or more investment banks.

Unit Purchase Price” means $1.53.

 


 

VWAP Price” means, for each such period of measurement, the volume weighted average closing price of a Common Unit on the national securities exchange on which the Common Units are then listed (or admitted to trading).

Section 1.02Registrable Securities.  Any Registrable Security shall cease to be a Registrable Security at the earliest of the following:  (a) when a registration statement covering such Registrable Security becomes or has been declared effective by the SEC and such Registrable Security has been sold or disposed of pursuant to such effective registration statement; (b) when such Registrable Security has been sold or disposed of (excluding transfers or assignments by a Holder to an Affiliate) pursuant to Rule 144 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect) under circumstances in which all of the applicable conditions of Rule 144 (as then in effect) are met; (c) when such Registrable Security is held by the Partnership or one of its Affiliates (other than a Purchaser or its Affiliates); (d) when such Registrable Security has been sold or disposed of in a private transaction in which the transferor’s rights under this Agreement are not assigned to the transferee of such securities pursuant to Section 2.11 hereof; or (e) the third anniversary of the Effectiveness Deadline (as defined in Section 2.01(a)).

Article II
REGISTRATION RIGHTS

Section 2.01Shelf Registration.

(a)Shelf Registration.  Within 90 calendar days of the Closing Date, the Partnership shall use its reasonable best efforts to prepare and file a Shelf Registration Statement with the SEC to permit the public resale of all Registrable Securities on the terms and conditions specified in this Section 2.01 (a “Registration Statement”).  The Registration Statement filed with the SEC pursuant to this Section 2.01(a) shall be on Form S‑3 or, if Form S‑3 is not then available to the Partnership, on Form S‑1 or such other form of registration statement as is then available to effect a registration for resale of the Registrable Securities, covering the Registrable Securities, and shall contain a prospectus in such form as to permit any Selling Holder covered by such Registration Statement to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect) at any time beginning on the Effective Date for such Registration Statement.  The Partnership shall use its reasonable best efforts to cause a Registration Statement filed pursuant to this Section 2.01(a) to be declared effective no later than 180 calendar days after the Closing Date (the “Effectiveness Deadline”).  During the Effectiveness Period, the Partnership shall use its reasonable best efforts to cause a Registration Statement filed pursuant to this Section 2.01(a) to remain continuously effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another registration statement is available for the resale of the Registrable Securities until all Registrable Securities have ceased to be Registrable Securities.  The Partnership shall prepare and file a listing of additional shares with the NASDAQ (or such other national securities exchange on which the Registrable Securities are then listed and traded) to list the Registrable Securities covered by a Registration Statement and shall have received approval for such Registrable Securities to be listed on the NASDAQ (or such other national securities exchange on which the Registrable Securities are then listed and traded) by the Effective Date of such Registration Statement,

 


 

subject only to official notice of issuance.  As soon as practicable following the Effective Date of a Registration Statement, but in any event within three Business Days of such date, the Partnership shall notify the Selling Holders of the effectiveness of such Registration Statement.

Section 2.02Piggyback Rights.

(a)Participation.  So long as a Holder has Registrable Securities, if the Partnership proposes to file (i) a shelf registration statement, other than a Registration Statement contemplated by Section 2.01(a), (ii) a prospectus supplement to an effective shelf registration statement relating to the sale of equity securities of the Partnership, other than a Registration Statement contemplated by Section 2.01(a), and Holders may be included without the filing of a post-effective amendment thereto, or (iii) a registration statement, other than a shelf registration statement, in each case, for the sale of Common Units in an Underwritten Offering for its own account or that of another Person, or both, then promptly following the selection of the Managing Underwriter for such Underwritten Offering, the Partnership shall give notice of such Underwritten Offering to each Holder (together with its Affiliates) holding at least the Piggyback Threshold Amount of the then-outstanding Registrable Securities (calculated based on the Unit Purchase Price) and such notice shall offer such Holders the opportunity to include in such Underwritten Offering such number of Registrable Securities (the “Included Registrable Securities”) as each such Holder may request in writing; provided, however, that (A) the Partnership shall not be required to provide such opportunity if, in the aggregate, the Holders do not offer a minimum of the Piggyback Threshold Amount of Registrable Securities (based on the Unit Purchase Price), and (B) if the Partnership has been advised by the Managing Underwriter that the inclusion of Registrable Securities for sale for the benefit of the Holders will have an adverse effect on the price, timing or distribution of the Common Units in the Underwritten Offering, then (x) if, in the opinion of the Managing Underwriter, no Registrable Securities can be included in the Underwritten Offering, the Partnership shall not be required to offer such opportunity to the Holders or (y) if, in the opinion of the Managing Underwriter, any Registrable Securities can be included in the Underwritten Offering, then the amount of Registrable Securities to be offered for the accounts of Holders shall be determined based on the provisions of Section 2.02(b).  Any notice required to be provided in this Section 2.02(a) to Holders shall be provided on a Business Day and receipt of such notice shall be confirmed by the Holder.  Each such Holder shall then have three Business Days (or one Business Day in connection with any overnight or bought Underwritten Offering) after notice has been delivered to request in writing the inclusion of Registrable Securities in the Underwritten Offering.  If a Holder’s written request for inclusion is not received within the specified time, such Holder shall have no further right to participate in such Underwritten Offering.  If, at any time after giving written notice of its intention to undertake an Underwritten Offering and prior to the closing of such Underwritten Offering, the Partnership shall determine for any reason to delay or not to undertake such Underwritten Offering, the Partnership may, at its election, give written notice of such determination to the Selling Holders and, (1) in the case of a determination not to undertake such Underwritten Offering, shall be relieved of its obligation to sell any Included Registrable Securities in connection with such terminated Underwritten Offering, and (2) in the case of a determination to delay such Underwritten Offering, shall be permitted to delay offering any Included Registrable Securities as part of such Underwritten Offering for the same period as the delay in the Underwritten Offering.  Any Selling Holder shall have the right to withdraw such Selling Holder’s request for inclusion of such Selling Holder’s Registrable Securities in such

 


 

Underwritten Offering by giving written notice to the Partnership of such withdrawal at or prior to the time of pricing of such Underwritten Offering.  Any Holder may deliver written notice (an “Opt-Out Notice”) to the Partnership requesting that such Holder not receive notice from the Partnership of any proposed Underwritten Offering.  Following receipt of an Opt-Out Notice from a Holder, the Partnership shall not be required to deliver any notice to such Holder pursuant to this Section 2.02(a) and such Holder shall no longer be entitled to participate in Underwritten Offerings by the Partnership pursuant to this Section 2.02(a).

(b)Priority.  Except as provided in Section 2.04(b) of this Agreement, if the Managing Underwriter advises the Partnership that the total amount of Common Units that the Selling Holders and any other Persons intend to include in such offering exceeds the number of Common Units that can be sold in such offering without being likely to have an adverse effect on the price, timing or distribution of the Common Units offered or the market for the Common Units, then the Common Units to be included in such Underwritten Offering shall include the number of Registrable Securities that such Managing Underwriter advises the Partnership can be sold without having such adverse effect, with such number to be allocated (i) first, to the Partnership and (ii) second, to (A) the Selling Holders and Affiliates of the Partnership who have requested participation in such Underwritten Offering and (B) to the other holders of Common Units (other than holders of Registrable Securities) with registration rights entitling them to participate in such Underwritten Offering (if any), allocated among such Selling Holders, Affiliates of the Partnership, and other holders pro rata on the basis of the number of Registrable Securities or Common Units held by each applicable Selling Holder, Affiliate of the Partnership or other holder or in such manner as they may agree.

(c)Termination of Piggyback Registration Rights.  The Holders’ rights under this Section 2.02 shall terminate at such time as the Holders (together with their Affiliates) cease to hold at least the Piggyback Threshold Amount of Registrable Securities (calculated based on the Unit Purchase Price).

Section 2.03Delay Rights.

Notwithstanding anything to the contrary contained herein, the Partnership may, upon written notice to (i) all Holders, delay the filing of a Registration Statement required under Section 2.01(a), or (ii) any Selling Holder whose Registrable Securities are included in a Registration Statement or other registration statement contemplated by this Agreement, suspend such Selling Holder’s use of any prospectus that is a part of such Registration Statement or other registration statement (in which event the Selling Holder shall discontinue sales of the Registrable Securities pursuant to such Registration Statement or other registration statement contemplated by this Agreement but may settle any previously made sales of Registrable Securities) if the Partnership (x) is pursuing an acquisition, merger, reorganization, disposition or other similar transaction and the General Partner determines in good faith that the Partnership’s ability to pursue or consummate such a transaction would be materially adversely affected by any required disclosure of such transaction in such Registration Statement or other registration statement or (y) has experienced some other material non-public event the disclosure of which at such time, in the good faith judgment of the General Partner, would materially adversely affect the Partnership.  Upon disclosure of such information or the termination of the condition described above, the Partnership shall provide prompt notice, but in any event within one

 


 

Business Day of such disclosure or termination, to the Selling Holders whose Registrable Securities are included in such Registration Statement and shall promptly terminate any suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated in this Agreement.

Section 2.04Demand Rights.

(a)Underwritten Offerings.  The Partnership shall, upon the request of one or more Holders holding, in the aggregate, at least $5.0 million of Registrable Securities (calculated based on the Unit Purchase Price) (such request, an “Demand Notice” and such electing Holders, the “Electing Holders”), retain underwriters in order to permit the Electing Holders to effect such sale through an Underwritten Offering; provided, however, that the Partnership shall not be required to effect more than one Underwritten Offering during any 12-month period pursuant to and subject to the conditions of this Section 2.04(a).  Upon delivery of such Demand Notice to the Partnership, the Partnership shall as soon as practicable (but in no event later than one Business Day following the date of delivery of the Demand Notice to the Partnership) deliver notice of such Demand Notice to all other Holders, who shall then have five Business Days from the date that such notice is given to them to notify the Partnership in writing of the number of Registrable Securities held by such Holder that they want to be included in such Underwritten Offering.  For the avoidance of doubt, any Holders notified about an Underwritten Offering by the Partnership after the Partnership has received the corresponding Demand Notice may participate in such Underwritten Offering, but shall not count toward the $5.0 million of Registrable Securities required under the first sentence of this Section 2.04(a) to request an Underwritten Offering pursuant to a Demand Notice.  In connection with any Underwritten Offering under this Section 2.04, the Partnership shall be entitled to select the Managing Underwriter or Underwriters.  In connection with an Underwritten Offering contemplated by this Agreement in which a Selling Holder participates, each Selling Holder and the Partnership shall be obligated to enter into an underwriting agreement that contains such representations, covenants, indemnities and other rights and obligations as are customary in underwriting agreements for firm commitment offerings of securities.  No Selling Holder may participate in such Underwritten Offering unless such Selling Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement.  No Selling Holder shall be required to make any representations or warranties to or agreements with the Partnership or the underwriters other than representations, warranties or agreements regarding such Selling Holder, its authority to enter into such underwriting agreement and to sell, and its ownership of, the securities whose offer and resale will be registered, on its behalf, its intended method of distribution and any other representation required by Law.  If any Selling Holder disapproves of the terms of an Underwritten Offering, such Selling Holder may elect to withdraw therefrom by notice to the Partnership, the Electing Holders and the Managing Underwriter; provided, however, that any such withdrawal must be made no later than the time of pricing of such Underwritten Offering.  If all Selling Holders withdraw from an Underwritten Offering prior to the public announcement at launch (the “Launch”) of such Underwritten Offering, the events will not be considered an Underwritten Offering and will not decrease the number of available Underwritten Offerings the Holders have the right and option to request under this Section 2.04(a).  No such withdrawal or abandonment shall affect the Partnership’s obligation to pay Registration Expenses pursuant to

 


 

Section 2.08; provided, however, that if all Selling Holders withdraw from such Underwritten Offering after the Launch, other than as a result of the occurrence of any event that would reasonably be expected to permit the Partnership to exercise its rights to suspend the use of a Registration Statement or other registration statement pursuant to Section 2.03, then such Selling Holders shall pay (pro rata on the basis of the number of Registrable Securities held by each such Selling Holder) for all reasonable Registration Expenses incurred by the Partnership during the period from the Launch of such Underwritten Offering until the time all Selling Holders have withdrawn from such Underwritten Offering.

(b)Priority.  If the Managing Underwriter of any proposed Underwritten Offering that involves Registrable Securities of Electing Holders pursuant to Section 2.04(a) advises the Partnership that the inclusion of all of the Registrable Securities that the Selling Holders intend to include in such offering exceeds the number that can be sold in such offering without being likely to have an adverse effect on the price, timing or distribution of the Registrable Securities offered or the market for the Registrable Securities, then the Registrable Securities to be included in such Underwritten Offering shall include the number of Registrable Securities that such Managing Underwriter advises the Partnership can be sold without having such adverse effect, with such number to be allocated (i) first, to the Selling Holders, allocated among such Selling Holders pro rata on the basis of the number of Registrable Securities held by each such Selling Holder or in such other manner as such Selling Holders may agree, and (ii) second, to the Partnership and any other holder of securities of the Partnership having rights of registration that rank pari passu with the Holders in respect of the Registrable Securities.

Section 2.05Sale Procedures.

In connection with its obligations under this Article II, the Partnership shall, as expeditiously as possible:

(a)use its reasonable best efforts to prepare and file with the SEC such amendments and supplements to a Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the Effectiveness Period and as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement;

(b)furnish to each Selling Holder (i) as far in advance as reasonably practicable before filing a Registration Statement or any other registration statement contemplated by this Agreement or any supplement or amendment thereto and provide each such Selling Holder the opportunity to object to any information pertaining to such Selling Holder that is contained therein and make the corrections reasonably requested by such Selling Holder with respect to such information prior to filing a Registration Statement or such other registration statement or supplement or amendment thereto, and (ii) such number of copies of such Registration Statement or such other registration statement and the prospectus included therein and any supplements and amendments thereto as such Selling Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities covered by such Registration Statement or other registration statement;

 


 

(c)if applicable, use its reasonable best efforts to register or qualify the Registrable Securities covered by a Registration Statement or any other registration statement contemplated by this Agreement under the securities or blue sky laws of such jurisdictions as the Selling Holders or, in the case of an Underwritten Offering, the Managing Underwriter, shall reasonably request; provided, however, that the Partnership shall not be required to qualify generally to transact business in any jurisdiction where it is not then required to so qualify or to take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject;

(d)promptly notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered by any of them under the Securities Act, of (i) the filing of a Registration Statement or any other registration statement contemplated by this Agreement or any prospectus or prospectus supplement to be used in connection therewith, or any amendment or supplement thereto, and, with respect to such Registration Statement or any other registration statement or any post-effective amendment thereto, when the same has become effective; and (ii) the receipt of any written comments from the SEC with respect to any filing referred to in clause (i) and any written request by the SEC for amendments or supplements to such Registration Statement or any other registration statement or any prospectus or prospectus supplement thereto;

(e)immediately notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of (i) the happening of any event as a result of which the prospectus or prospectus supplement contained in a Registration Statement or any other registration statement contemplated by this Agreement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any prospectus contained therein, in the light of the circumstances under which a statement is made); (ii) the issuance or express threat of issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or any other registration statement contemplated by this Agreement, or the initiation of any proceedings for that purpose; or (iii) the receipt by the Partnership of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction.  Following the provision of such notice, the Partnership agrees to as promptly as practicable amend or supplement the prospectus or prospectus supplement or take other appropriate action so that the prospectus or prospectus supplement does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing and to take such other commercially reasonable action as is necessary to remove a stop order, suspension, threat thereof or proceedings related thereto;

(f)upon request and subject to appropriate confidentiality obligations, furnish to each Selling Holder copies of any and all transmittal letters or other correspondence with the SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to such offering of Registrable Securities;

 


 

(g)in the case of an Underwritten Offering, use its reasonable best efforts to furnish to the underwriters upon request, (i) an opinion of counsel for the Partnership dated the date of the closing under the underwriting agreement and (ii) a “comfort” letter, dated the pricing date of such Underwritten Offering and a letter of like kind dated the date of the closing under the underwriting agreement, in each case, signed by the independent public accountants who have certified the Partnership’s financial statements included or incorporated by reference into the applicable registration statement, and each of the opinion and the “comfort” letter shall be in customary form and covering substantially the same matters with respect to such registration statement (and the prospectus and any prospectus supplement included therein) as have been customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters in Underwritten Offerings of securities by the Partnership and such other matters as such underwriters and Selling Holders may reasonably request;

(h)make available to its security holders, as soon as reasonably practicable, an earnings statement, covering a period of twelve months beginning within three months after the Effective Date of such Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;

(i)make available to the appropriate representatives of the Managing Underwriter and Selling Holders access to such information and Partnership and General Partner personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the Securities Act; provided, that the Partnership need not disclose any non-public information to any such representative unless and until such representative has entered into a confidentiality agreement with the Partnership;

(j)use its reasonable best efforts to cause all such Registrable Securities registered pursuant to this Agreement to be listed on each securities exchange or nationally recognized quotation system on which the Common Units are then listed or quoted;

(k)provide a transfer agent and registrar for all Registrable Securities covered by such registration statement not later than the Effective Date of such registration statement;

(l)enter into customary agreements and take such other actions as are reasonably requested by the Selling Holders or the underwriters, if any, in order to expedite or facilitate the disposition of such Registrable Securities (including, making appropriate officers of the General Partner available to participate in any “road show” presentations before analysts, and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Securities)), provided, however, that in the event the Partnership is unable to make such appropriate officers of the General Partner available to participate in connection with any “road show” presentations and other customary marketing activities (whether in person or otherwise), the Partnership shall make such appropriate officers available to participate via conference call or other means of communication in connection with no more than one “road show” presentation per Underwritten Offering; and

(m)if requested by a Selling Holder, (i) incorporate in a prospectus supplement or post-effective amendment such information as such Selling Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including

 


 

information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering, and (ii) make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment.

The Partnership shall not name a Holder as an underwriter as defined in Section 2(a)(11) of the Securities Act in any Registration Statement without such Holder’s consent.  If the staff of the SEC requires the Partnership to name any Holder as an underwriter as defined in Section 2(a)(11) of the Securities Act, and such Holder does not consent thereto, then such Holder’s Registrable Securities shall not be included on such Registration Statement and the Partnership shall have no further obligations hereunder with respect to Registrable Securities held by such Holder.

Each Selling Holder, upon receipt of notice from the Partnership of the happening of any event of the kind described in Section 2.05(e), shall forthwith discontinue offers and sales of the Registrable Securities by means of a prospectus or prospectus supplement until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.05(e) or until it is advised in writing by the Partnership that the use of the prospectus may be resumed and has received copies of any additional or supplemental filings incorporated by reference in the prospectus, and, if so directed by the Partnership, such Selling Holder shall, or shall request the Managing Underwriter, if any, to deliver to the Partnership (at the Partnership’s expense) all copies in their possession or control, other than permanent file copies then in such Selling Holder’s possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice.

Section 2.06Cooperation by Holders.

The Partnership shall have no obligation to include in a Registration Statement Registrable Securities of a Holder who has failed to timely furnish, after receipt of a written request from the Partnership, such information that the Partnership determines, after consultation with its counsel, is reasonably required in order for the registration statement or prospectus supplement, as applicable, to comply with the Securities Act.

Section 2.07Restrictions on Public Sale by Holders of Registrable Securities.

Each Holder of Registrable Securities that participates in an Underwritten Offering will enter into a customary letter agreement with underwriters providing such Holder will not effect any public sale or distribution of Registrable Securities during the 60 calendar-day period beginning on the date of a prospectus or prospectus supplement filed with the SEC with respect to the pricing of any Underwritten Offering, provided that (i) the duration of the foregoing restrictions shall be no longer than the duration of the shortest restriction generally imposed by the underwriters on the Partnership or the officers, directors or any other Affiliate of the Partnership or the General Partner on whom a restriction is imposed and (ii) the restrictions set forth in this Section 2.07 shall not apply to any Registrable Securities that are included in such Underwritten Offering by such Holder.  In addition, this Section 2.07 shall not apply to any Holder that is not entitled to participate in such Underwritten Offering, whether because such

 


 

Holder delivered an Opt-Out Notice prior to receiving notice of the Underwritten Offering or because the Registrable Securities held by such Holder may be disposed of without restriction pursuant to any section of Rule 144 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect).

Section 2.08Expenses.

(a)Expenses.  Subject to the last sentence of Section 2.04(a), the Partnership shall pay all reasonable Registration Expenses as determined in good faith by the General Partner, including, in the case of an Underwritten Offering, the reasonable Registration Expenses of such Underwritten Offering, regardless of whether any sale is made pursuant to such Underwritten Offering.  Each Selling Holder shall pay its pro rata share of all Selling Expenses in connection with any sale of its Registrable Securities hereunder.  For the avoidance of doubt, each Selling Holder’s pro rata allocation of Selling Expenses shall be the percentage derived by dividing (i) the number of Registrable Securities sold by such Selling Holder in connection with such sale by (ii) the aggregate number of Registrable Securities sold by all Selling Holders in connection with such sale.  In addition, except as otherwise provided in Sections 2.08 and 2.09 hereof, the Partnership shall not be responsible for legal fees incurred by Holders in connection with the exercise of such Holders’ rights hereunder.

(b)Certain Definitions.  “Registration Expenses” means all expenses incident to the Partnership’s performance under or compliance with this Agreement to effect the registration of Registrable Securities on a Registration Statement pursuant to Section 2.01(a) or an Underwritten Offering covered under this Agreement, and the disposition of such Registrable Securities, including, without limitation, all registration, filing, securities exchange listing and NASDAQ fees, all registration, filing, qualification and other fees and expenses of complying with securities or blue sky laws, fees of the Financial Industry Regulatory Authority, Inc., fees of transfer agents and registrars, all word processing, duplicating and printing expenses, any transfer taxes, and the fees and disbursements of counsel and independent public accountants for the Partnership, including the expenses of any special audits or “comfort” letters required by or incident to such performance and compliance, and the reasonable fees and disbursements of one counsel for the Selling Holders participating in such Registration Statement or Underwritten Offering to effect the disposition of such Registrable Securities, selected by the Holders of a majority of the Registrable Securities initially being registered under such Registration Statement or other registration statement as contemplated by this Agreement, subject to the reasonable consent of the Partnership.  “Selling Expenses” means all underwriting discounts and selling commissions or similar fees or arrangements allocable to the sale of the Registrable Securities, and fees and disbursements of counsel to the Selling Holders, except for the reasonable fees and disbursements of counsel for the Selling Holders required to be paid by the Partnership pursuant to Sections 2.08 and 2.09.

Section 2.09Indemnification.

(a)By the Partnership.  In the event of a registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Partnership shall indemnify and hold harmless each Selling Holder thereunder, its directors, officers, managers, employees and agents and each Person, if any, who controls such Selling Holder within the meaning of the Securities

 


 

Act and the Exchange Act, and its directors, officers, employees or agents (collectively, the “Selling Holder Indemnified Persons”), against any losses, claims, damages, expenses or liabilities (including reasonable attorneys’ fees and expenses) (collectively, “Losses”), joint or several, to which such Selling Holder Indemnified Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) (i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact (in the case of any prospectus, in light of the circumstances under which such statement is made) contained in (which, for the avoidance of doubt, includes documents incorporated by reference in) such Registration Statement or any other registration statement contemplated by this Agreement, any preliminary prospectus, prospectus supplement or final prospectus contained therein, or any amendment or supplement thereof, or any free writing prospectus relating thereto or (ii) arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, and shall reimburse each such Selling Holder Indemnified Person for any legal or other expenses reasonably incurred by them in connection with investigating, defending or resolving any such Loss or actions or proceedings; provided, however, that the Partnership shall not be liable in any such case if and to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by or on behalf of such Selling Holder Indemnified Person in writing specifically for use in such Registration Statement or such other registration statement, or prospectus supplement, as applicable.  Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Selling Holder Indemnified Person, and shall survive the transfer of such securities by such Selling Holder.  The Parties hereby designate each Seller Holder Indemnified Person who is not a party to this Agreement as a third-party beneficiary of this Section 2.09 with the right to enforce this Section 2.09.

(b)By Each Selling Holder.  Each Selling Holder agrees severally and not jointly to indemnify and hold harmless the Partnership, the General Partner, its directors, officers, employees and agents and each Person, if any, who controls the Partnership within the meaning of the Securities Act or of the Exchange Act, and its directors, officers, employees and agents the “Partnership Indemnified Persons”), to the same extent as the foregoing indemnity from the Partnership to the Selling Holders, but only with respect to information regarding such Selling Holder furnished in writing by or on behalf of such Selling Holder expressly for inclusion in such Registration Statement or any other registration statement contemplated by this Agreement, any preliminary prospectus, prospectus supplement or final prospectus contained therein, or any amendment or supplement thereof, or any free writing prospectus relating thereto; provided, however, that the liability of each Selling Holder shall not be greater in amount than the dollar amount of the proceeds (net of any Selling Expenses) received by such Selling Holder from the sale of the Registrable Securities giving rise to such indemnification.  The Parties hereby designate each Partnership Indemnified Person who is not a party to this Agreement as a third-party beneficiary of this Section 2.09 with the right to enforce this Section 2.09.

(c)Notice.  Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof,

 


 

but such omission so to notify the indemnifying party shall not relieve it from any liability that it may have to any indemnified party other than under this Section 2.09.  In any action brought against any indemnified party, it shall notify the indemnifying party of the commencement thereof.  The indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 2.09 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected; provided, however, that, (i) if the indemnifying party has failed to assume the defense or employ counsel reasonably acceptable to the indemnified party or (ii) 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 additional 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 reasonable expenses and fees of such separate counsel and other reasonable expenses related to such participation to be reimbursed by the indemnifying party as incurred.  Notwithstanding any other provision of this Agreement, no indemnifying party shall settle any action brought against any indemnified party with respect to which such indemnified party is entitled to indemnification hereunder without the consent of the indemnified party, unless the settlement thereof imposes no liability or obligation on, and includes a complete and unconditional release from all liability of, the indemnified party.

(d)Contribution.  If the indemnification provided for in this Section 2.09 is held by a court or government agency of competent jurisdiction to be unavailable to any indemnified party or is insufficient to hold them harmless in respect of any Losses, then each such indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Loss in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of such indemnified party on the other in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations; provided, however, that in no event shall such Selling Holder be required to contribute an aggregate amount in excess of the dollar amount of proceeds (net of Selling Expenses) received by such Selling Holder from the sale of Registrable Securities giving rise to such indemnification.  The relative fault of the indemnifying party on the one hand and the indemnified party on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact has been made by, or relates to, information supplied by such party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  The parties hereto agree that it would not be just and equitable if contributions pursuant to this paragraph were to be determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to herein.  The amount paid by an indemnified party as a result of the Losses referred to in the first sentence of this paragraph shall be deemed to include any legal and other expenses reasonably incurred by such indemnified party in connection with investigating,

 


 

defending or resolving any Loss that is the subject of this paragraph.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who is not guilty of such fraudulent misrepresentation.

(e)Other Indemnification.  The provisions of this Section 2.09 shall be in addition to any other rights to indemnification or contribution that an indemnified party may have pursuant to law, equity, contract or otherwise.

Section 2.10Rule 144 Reporting.

With a view to making available the benefits of certain rules and regulations of the SEC that may permit the sale of the Registrable Securities to the public without registration, the Partnership agrees to use its reasonable best efforts to:

(a)make and keep public information regarding the Partnership available, as those terms are understood and defined in Rule 144 under the Securities Act (or any successor or similar provision adopted by the SEC then in effect), at all times from and after the date hereof;

(b)file with the SEC in a timely manner all reports and other documents required of the Partnership under the Securities Act and the Exchange Act at all times from and after the date hereof; and

(c)so long as a Holder owns any Registrable Securities, furnish, unless otherwise available electronically at no additional charge via the SEC’s EDGAR system, to such Holder forthwith upon request a copy of the most recent annual or quarterly report of the Partnership, and such other reports and documents as such Holder may reasonably request in availing itself of any rule or regulation of the SEC allowing such Holder to sell any such securities without registration.

Section 2.11Transfer or Assignment of Registration Rights.

The rights to cause the Partnership to register Registrable Securities granted to the Purchasers by the Partnership under this Article II may be transferred or assigned by any Purchaser to one or more transferees or assignees of Registrable Securities, subject to the transfer restrictions set forth in Section 4.11 of the Amended Partnership Agreement, provided, however, that (a) the Partnership is given written notice prior to any said transfer or assignment, stating the name and address of each of the transferee or assignee and identifying the Registrable Securities with respect to which such registration rights are being transferred or assigned and (b) each such transferee or assignee assumes in writing responsibility for its portion of the obligations of such Purchaser under this Agreement.

Section 2.12Limitation on Subsequent Registration Rights.

From and after the date hereof, the Partnership shall not, without the prior written consent of the Holders of at least a majority of the then outstanding Registrable Securities, enter into any agreement with any current or future holder of any equity securities of the Partnership that would allow such current or future holder to require the Partnership to include equity securities in any

 


 

registration statement filed by the Partnership on a basis that is superior in any respect to the piggyback rights granted to the Holders pursuant to Section 2.02.

Article III
MISCELLANEOUS

Section 3.01Communications.

All notices and other communications provided for or permitted hereunder shall be made in writing by facsimile, electronic mail, courier service or personal delivery:

(a)if to any Purchaser, to such Purchaser’s address listed on Schedule A hereof or such other address as such Purchaser shall have specified by written notice to the Partnership

(b)if to a transferee of a Purchaser, to such Holder at the address provided pursuant to Section 2.11 above; and

(c)if to the Partnership:

Mid-Con Energy Partners, LP
2431 East 61st Street, Suite 850
Tulsa, Oklahoma 74136
Attention: Charles L. McLawhorn, III
Email: cmclawhorn@midcon-energy.com

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

Sidley Austin LLP
1501 K Street, N.W.
Washington, DC 20005
Attention:  William J. Cooper
Email:  wcooper@sidley.com

All such notices and communications shall be deemed to have been received at the time delivered by hand, if personally delivered; when receipt acknowledged, if sent via facsimile or sent via Internet electronic mail; and when actually received, if sent by courier service or any other means.

Section 3.02Successor and Assigns.

This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties, including subsequent Holders of Registrable Securities to the extent permitted herein.

Section 3.03Assignment of Rights.

All or any portion of the rights and obligations of any Purchaser under this Agreement may be transferred or assigned by such Purchaser only in accordance with Section 2.11 hereof.

 


 

Section 3.04Recapitalization, Exchanges, Etc. Affecting the Common Units.

The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all units of the Partnership or any successor or assign of the Partnership (whether by merger, consolidation, sale of assets or otherwise) that may be issued in respect of, in exchange for or in substitution of, the Registrable Securities, and shall be appropriately adjusted for combinations, unit splits, recapitalizations, pro rata distributions of units and the like occurring after the date of this Agreement.

Section 3.05Aggregation of Registrable Securities.

All Registrable Securities held or acquired by Persons who are Affiliates of one another shall be aggregated together for the purpose of determining the availability of any rights and applicability of any obligations under this Agreement.

Section 3.06Specific Performance.

Damages in the event of breach of this Agreement by a party hereto may be difficult, if not impossible, to ascertain, and it is therefore agreed that each such Person, in addition to and without limiting any other remedy or right it may have, shall have the right to an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach, and enforcing specifically the terms and provisions hereof, and each of the parties hereto hereby waives any and all defenses it may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief.  The existence of this right shall not preclude any such Person from pursuing any other rights and remedies at law or in equity that such Person may have.

Section 3.07Counterparts.

This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, including facsimile or.pdf 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 3.08Headings.

The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

Section 3.09Governing Law; Submission to Jurisdiction.

This Agreement, including all issues and questions concerning its application, construction, validity, interpretation and enforcement, shall be construed in accordance with, and governed by, the laws of the State of Delaware.  The Parties hereby submit to the non-exclusive jurisdiction of any U.S. federal or state court located in Dallas, Texas in any action, suit or proceeding arising out of or based upon this Agreement or any of the transactions contemplated hereby.  The Parties hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection which they may now or hereafter have to the laying of venue of any such dispute

 


 

brought in such court or any defense of inconvenient forum for the maintenance of such dispute.  Each of the Parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

Section 3.10Severability of Provisions.

Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting or impairing the validity or enforceability of such provision in any other jurisdiction.

Section 3.11Entire Agreement.

This Agreement is 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.  There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the rights granted by the Partnership set forth herein.  This Agreement, the Purchase Agreement and the Amended Partnership Agreement supersede all prior agreements and understandings between the parties with respect to such subject matter.

Section 3.12Amendment.

This Agreement may be amended only by means of a written amendment signed by the Partnership and the Holders of a majority of the then outstanding Registrable Securities; provided, however, that no such amendment shall materially and adversely affect the rights of any Holder hereunder without the consent of such Holder.

Section 3.13No Presumption.

If any claim is made by a party relating to any conflict, omission or ambiguity in this Agreement, no presumption or burden of proof or persuasion shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a particular party or its counsel.

Section 3.14Obligations Limited to Parties to Agreement.

Each of the parties hereto covenants, agrees and acknowledges that no Person other than the Purchasers (and their permitted transferees and assignees) and the Partnership shall have any obligation hereunder.  Notwithstanding that one or more of the Purchasers may be a corporation, partnership or limited liability company, no recourse under this Agreement or under any documents or instruments delivered in connection herewith or therewith shall be had against any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the Purchasers or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate thereof, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future director, officer, employee, agent, general or limited partner, manager,

 


 

member, stockholder or Affiliate of any of the Purchasers or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate thereof, as such, for any obligations of the Purchasers under this Agreement or any documents or instruments delivered in connection herewith or therewith or for any claim based on, in respect of or by reason of such obligation or its creation, except in each case for any transferee or assignee of a Purchaser hereunder.

Section 3.15Independent Nature of Purchaser’s Obligations.

The obligations of each Purchaser under this Agreement are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under this Agreement.  Nothing contained herein, and no action taken by any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement.  Each Purchaser shall be entitled to independently protect and enforce its rights, including, the rights arising out of this Agreement, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose.

Section 3.16Interpretation.

Article and Section 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 words “include,” “includes” and “including” or words of similar import shall be deemed to be followed by the words “without limitation.”  Whenever any determination, consent or approval is to be made or given by a Purchaser under this Agreement, such action shall be in such Purchaser’s sole discretion unless otherwise specified.  Unless expressly set forth or qualified otherwise (e.g., by “Business” or “trading”), all references herein to a “day” are deemed to be a reference to a calendar day.

[signature page follows]

 

 


 

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

 

PARTNERSHIP:

 

 

 

Mid-Con Energy Partners, LP

 

 

 

 

 

 

By:

 

Mid-Con Energy GP, LLC,

 

 

its General Partner

 

 

 

 

 

 

By:

 

/s/Jeffrey R. Olmstead

Name:

 

Jeffrey R. Olmstead

Title:

 

Chief Executive Officer

 

 


Signature Page to Registration Rights Agreement


 

 

PURCHASERS

 

 

 

Goff Focused Energy Strategies, LP

 

 

 

By:

 

GFS Energy GP, LLC

 

 

its General Partner

 

 

 

By:

 

GFS Management, LLC

 

 

its Managing Member

 

 

 

By:

 

Goff Focused Strategies, LLC

 

 

its Managing Member

 

 

 

 

 

 

By:

 

/s/John C. Goff

Name:

 

John C. Goff

Title:

 

Managing Member

 

Goff MCEP II, LP

 

 

 

 

By:

 

GFS MCEP GP, LLC

 

 

its General Partner

 

 

 

By:

 

GFS Management, LLC

 

 

its Managing Member

 

 

 

By:

 

Goff Focused Strategies, LLC

 

 

its Managing Member

 

 

 

 

 

 

 

 

 

By:

 

/s/John C. Goff

Name:

 

John C. Goff

Title:

 

Managing Member

 

 


Signature Page to Registration Rights Agreement


 

 

Goff REN Holdings, LLC

 

 

 

 

By:

 

GFS REN GP, LLC

 

 

its Manager

 

 

 

By:

 

GFS Management, LLC

 

 

its Managing Member

 

 

 

By:

 

Goff Focused Strategies, LLC

 

 

its Managing Member

 

 

 

 

 

 

By:

 

/s/John C. Goff

Name:

 

John C. Goff

Title:

 

Managing Member

 

Goff REN Holdings II, LLC

 

 

 

 

By:

 

GFS REN GP, LLC

 

 

its Manager

 

 

 

By:

 

GFS Management, LLC

 

 

its Managing Member

 

 

 

 

 

 

By:

 

Goff Focused Strategies, LLC

 

 

its Managing Member

 

 

 

By:

 

/s/John C. Goff

Name:

 

John C. Goff

Title:

 

Managing Member

 


Signature Page to Registration Rights Agreement


 

 

Mid-Con Energy III, LLC

 

 

 

 

 

 

By:

 

/s/Charles L. McLawhorn, III

Name:

 

Charles L. McLawhorn, III

Title:

 

Vice President, General Counsel and  Corporate Secretary

 

 

 

Signature Page to Registration Rights Agreement


 

SCHEDULE A

Purchaser Name; Notice and Contact Information

Purchaser

 

Contact Information

Goff Focused Energy Strategies, LP

 

c/o Goff Focused Strategies, LLC

500 Commerce Street

Suite 700

Fort Worth, TX 76102

Attention: Jennifer Terrell

Email: jterrell@gofffocusedstrategies.com

 

 

Goff MCEP II, LP

 

c/o Goff Focused Strategies, LLC

500 Commerce Street

Suite 700

Fort Worth, TX 76102

Attention: Jennifer Terrell

Email: jterrell@gofffocusedstrategies.com

 

 

Goff REN Holdings, LLC

 

c/o Goff Focused Strategies, LLC

500 Commerce Street

Suite 700

Fort Worth, TX 76102

Attention: Jennifer Terrell

Email: jterrell@gofffocusedstrategies.com

 

Goff REN Holdings II, LLC

 

c/o Goff Focused Strategies, LLC

500 Commerce Street

Suite 700

Fort Worth, TX 76102

Attention: Jennifer Terrell

Email: jterrell@gofffocusedstrategies.com

 

Mid-Con Energy, III

 

Mid-Con Energy III, LLC

2431 East 61st Street

Suite 850

Tulsa, Oklahoma 74136

Attention: Charles L. McLawhorn, III

Email: cmclawhorn@midcon-energy.com

 

 

 

 

mcep-ex101_6.htm

EXHIBIT 10.1

 

AMENDMENT NO. 12 TO
CREDIT AGREEMENT

This Amendment No. 12 to Credit Agreement (this "Amendment") dated as of January 31, 2018 is among Mid-Con Energy Properties, LLC, a Delaware limited liability company (the "Borrower"), the Guarantor (as defined below), the financial institutions that are identified below as Existing Lenders, the financial institutions defined below as the Exiting Lenders, and Fifth Third Bank, Cadence Bank, CIT Bank, N.A., and West Texas National Bank, as new Lenders (collectively, the "New Lenders"; and together with the Existing Lenders and the Exiting Lenders, the "Lenders" and individually, a "Lender"), and Wells Fargo Bank, National Association, as administrative agent (in such capacity, the "Administrative Agent") and as collateral agent (in such capacity, the "Collateral Agent") for the Lenders.

RECITALS

A.The Borrower, the Existing Lenders, the Exiting Lenders and Wells Fargo Bank, National Association, as the Administrative Agent, are parties to that certain Credit Agreement dated as of December 20, 2011, as amended by that certain Agreement and Amendment No. 1 to Credit Agreement dated as of April 23, 2012, as amended by that certain Agreement and Amendment No. 2 to Credit Agreement dated as of November 26, 2012, as amended by that certain Agreement and Amendment No. 3 to Credit Agreement dated as of November 5, 2013, as amended by that certain Amendment No. 4 to Credit Agreement dated as of April 11, 2014, as amended by that certain Agreement and Amendment No. 5 to Credit Agreement dated as of November 17, 2014, as amended by that certain Amendment No. 6 to Credit Agreement dated as of February 12, 2015, as amended by that certain Agreement and Amendment No. 7 to Credit Agreement dated as of November 30, 2015, as amended by that certain Agreement and Amendment No. 8 to Credit Agreement dated as of April 29, 2016, as amended by that certain Amendment No. 9 to Credit Agreement dated as of May 31, 2016, as amended by that certain Amendment No. 10 to Credit Agreement dated as of August 11, 2016, and as amended by that certain Amendment No. 11 to Credit Agreement and Limited Waiver dated as of December 22, 2017 (as the same may be amended, modified or supplemented from time to time, the "Credit Agreement").

B.In connection with such Credit Agreement, Mid-Con Energy Partners, LP, a Delaware limited partnership and owner of 100% of the membership interests in the Borrower, executed and delivered that certain Guaranty dated as of December 20, 2011 (as the same may be amended, modified or supplemented from time to time, the "Guaranty") in favor of the Administrative Agent for the benefit of the Guaranteed Parties (as defined in the Guaranty) pursuant to which it became a Guarantor.

C.The Borrower has requested certain amendments to the Credit Agreement including the addition of the New Lenders to the credit facility created under the Credit Agreement and all of the Existing Lenders and New Lenders have agreed to amend the Credit Agreement on the terms and conditions set forth herein.

THEREFORE, the parties hereto hereby agree as follows:

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement


 

Article I
DEFINITIONS

Section 1.01Terms Defined Above.  As used in this Amendment, each of the terms defined in the opening paragraph and the Recitals above shall have the meanings assigned to such terms therein. In addition, the following capitalized terms used in this Amendment shall have the following meanings:

Existing Lenders” means Wells Fargo Bank, National Association, Frost Bank and Royal Bank of Canada.

 

Exiting Lenders” means BOKF, NA, d/b/a The Bank of Texas, Comerica Bank, The Bank of Nova Scotia, and MUFG Union Bank, N.A.

 

Increasing Lender” means Royal Bank of Canada.

 

PRB Acquisition” means the purchase of the Oil and Gas Properties and other properties acquired by the Borrower pursuant to the PRB Acquisition Documents.

 

PRB Acquisition Documents” means (a) that certain Purchase and Sale Agreement, dated January 31, 2018, by and between the Borrower and Devon Energy Production Company, L.P. and (b) all bills of sale, assignments, agreements, instruments and documents executed and delivered in connection therewith.

 

Section 1.02Terms Defined in the Credit Agreement.  Each term defined in the Credit Agreement and used herein without definition shall have the meaning assigned to such term in the Credit Agreement, unless expressly provided to the contrary.

Section 1.03Other Definitional Provisions.  The words "hereby", "herein", "hereinafter", "hereof", "hereto" and "hereunder" when used in this Amendment shall refer to this Amendment as a whole and not to any particular Article, Section, subsection or provision of this Amendment.  Section, subsection and Schedule references herein are to such Sections, subsections and Schedules to this Amendment unless otherwise specified.  All titles or headings to Articles, Sections, subsections or other divisions of this Amendment or the schedules hereto, if any, are only for the convenience of the parties and shall not be construed to have any effect or meaning with respect to the other content of such Articles, Sections, subsections, other divisions or schedules, such other content being controlling as the agreement among the parties hereto.  Whenever the context requires, reference herein made to the single number shall be understood to include the plural; and likewise, the plural shall be understood to include the singular.  Words denoting gender shall be construed to include the masculine, feminine and neuter, when such construction is appropriate; and specific enumeration shall not exclude the general but shall be construed as cumulative.  Definitions of terms defined in the singular or plural shall be equally applicable to the plural or singular, as the case may be, unless otherwise indicated.

 

 

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Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 


 

Section 1.04Incorporation by Reference. The Recitals to this Amendment are incorporated herein by reference and made a part hereof for all purposes as though set forth in this Amendment verbatim.

Article II
AMENDMENTS

Section 2.01Amendments to Credit Agreement.  The Credit Agreement, including the Schedules and Exhibits thereto, as applicable, is hereby amended (i) to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and (ii) to add the double-underlined text (indicated textually in the same manner as the following example:  double-underlined text) as set forth in the compiled copy of the Credit Agreement attached as Exhibit A hereto.

Article III
LIMITED WAIVER

Section 3.01Limited Waiver.  Subject to the conditions precedent set forth in Article V hereof, Administrative Agent and the Lenders hereby waive any Default or Event of Default that occurred as a result of Borrower’s failure to maintain the ratios required under Section 7.13 of the Credit Agreement for the fiscal quarter ending September 30, 2017.

Article IV
REPRESENTATIONS AND WARRANTIES

Section 4.01Borrower Representations and Warranties.  The Borrower represents and warrants that (a) the representations and warranties contained in the Credit Agreement and the representations and warranties contained in the other Loan Documents are true and correct in all material respects on and as of the Effective Date (defined below) as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and (b) the Liens under the Security Documents are valid and subsisting and secure Borrower's obligations under the Loan Documents.

Section 4.02Guarantor's Representations and Warranties.  Guarantor represents and warrants that (a) the representations and warranties of Guarantor contained in the Guaranty and the representations and warranties contained in the other Loan Documents to which Guarantor is a party are true and correct in all material respects on and as of the Effective Date as if made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date; (b) no Default or Event of Default has occurred which is continuing; and (c) the Liens under the Security Documents to which Guarantor is a party are valid and subsisting and secure Guarantor's obligations under the Loan Documents.

 

 

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Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 


 

Article V
CONDITIONS; ETC.

Section 5.01The Credit Agreement shall be amended as provided herein upon the date all of the following conditions precedent have been met (the "Effective Date"):

(a)The Administrative Agent's receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by an Authorized Officer of the Borrower, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders party hereto:

(i)counterparts of this Amendment executed by the Borrower, the Administrative Agent, and each of the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;

(ii)executed original Notes, if any, requested by the New Lenders made by the Borrower payable to such requesting New Lender in the amount of such New Lender’s respective Commitment;

(iii)such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Amendment and the other Loan Documents to which the Borrower is a party or is to be a party;

(iv)such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Change;

(v)a certificate signed by an Authorized Officer of the Borrower as of the Effective Date certifying that:

(A)to the knowledge of such responsible officer, as of the Effective Date, all the conditions precedent set forth in Section 5.01 of this Amendment have been satisfied or waived; and

(B)there has been no event or circumstance since December 31, 2016, that has had or that could be reasonably be expected to have, either individually or in the aggregate, a Material Adverse Change; and

 

 

-4-

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 


 

(vi)a representation certificate of an Authorized Officer of the Borrower certifying, as of the Effective Date, as to the value of Oil and Gas Properties constituting part of the Mortgaged Property as a percentage of the value of all Oil and Gas Properties of the Borrower, such valuation to be based upon the most recent Reserve Report and other acquisition-related information available to such officer;

(b)All of the information (other than projections) made available by the Borrower to the Administrative Agent prior to the Effective Date shall be complete and correct in all material respects, and no changes or developments shall have occurred, and no new or additional information shall have been received or discovered by the Administrative Agent or the Lenders regarding the Borrower after October 31, 2017 that (A) either individually or in the aggregate could reasonably be expected to have a Material Adverse Change or (B) purports to adversely affect the Loan Documents or the rights of the Lenders thereunder;

(c)The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower certifying: (i) that the Borrower has consummated the PRB Acquisition in accordance with the terms of the PRB Acquisition Documents in all material respects and has acquired substantially all of the Oil and Gas Properties and other properties contemplated by the PRB Acquisition Documents, subject only to the filing or recording of applicable conveyance documents; and (ii) as to such other related documents and information as the Administrative Agent shall have reasonably requested;

(d)The Administrative Agent shall have received evidence satisfactory to it that all Liens on the Oil and Gas Properties acquired pursuant to the PRB Acquisition Documents (other than Liens permitted by Section 7.2 of the Credit Agreement) have been released or terminated, subject only to the filing or recording of applicable terminations and releases;

(e)The Borrower shall have received the cash proceeds of the 2018 Preferred Units;

(f)After giving pro forma effect to the transactions contemplated by this Amendment, Facility Usage will not exceed $93,000,000; and

(g)The Borrower shall have paid all commitment, facility, agency and other fees required to be paid and then due to Administrative Agent or any Lender pursuant to any Loan Documents or any commitment letter or agreement heretofore entered into, and payment of all expenses for which invoices have been presented prior to the Effective Date.

Without limiting the generality of the provisions of Section 10.1 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.

 

 

-5-

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 


 

Section 5.02Attorneys' Fees and Expenses.  The Borrower shall have paid or reimbursed the Administrative Agent for all of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the fees and disbursements of the Administrative Agent's outside legal counsel, in each case, pursuant to all invoices of the Administrative Agent and/or such counsel presented to the Borrower for payment prior to the Effective Date.

Article VI
POST-CLOSING Covenants

Section 6.01Hedging Requirements.  Within three (3) Business Days following the Effective Date, the Borrower shall deliver to Administrative Agent evidence satisfactory to Administrative Agent that the Borrower is in compliance with the hedging requirements set forth in Section 6.23 of the Credit Agreement, as amended by this Amendment, and any incremental volumes hedged in order to be in compliance with Section 6.23 shall be swaps.

Section 6.02Mortgage and Title.  Within ten (10) Business Days following the Effective Date (or such longer period as may be agreed to by the Administrative Agent), the Borrower shall deliver to the Administrative Agent such Security Documents and related title opinions and/or other title information and data acceptable to the Administrative Agent as are necessary for the Borrower to be in compliance with Section 6.15 of the Credit Agreement.

Article VII
NEW LENDERS

Section 7.01Assignment and Assumption.  For an agreed consideration, each Exiting Lender hereby irrevocably sells and assigns to the New Lenders and the Increasing Lender, and the New Lenders and the Increasing Lender, severally and not jointly, hereby irrevocably purchase and assume from each of the Exiting Lenders, subject to and in accordance with the terms and conditions of this Article VII and the Credit Agreement, as of the Effective Date (as defined in Article V hereof) (i) all of each Exiting Lender's rights and obligations as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent required to result in each of the New Lenders having the Maximum Credit Amount, Commitment and Percentage Share identified on Schedule 1 attached to this Amendment (including, without limitation, the Letters of Credit included in such facilities) and (ii) to the extent permitted to be assigned under applicable Law, all claims, suits, causes of action and any other right of such Exiting Lender (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the "Assigned Interest").  Such sale and assignment is without recourse

 

 

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Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 


 

to the Exiting Lenders and, except as expressly provided in this Article VII, without representation or warranty by the Exiting Lenders. On the Effective Date, the Maximum Credit Amount, Commitment and Percentage Share of each Lender shall be as set forth on Schedule 1 attached hereto, and each Exiting Lender is released of its Commitment and all other obligations under the Credit Agreement.

Section 7.02New Lender Agreement.  Each New Lender:

(a)represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit Agreement (subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest assigned to it, it shall have the obligations of a Lender thereunder and (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.2 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and to purchase the Assigned Interest assigned to it on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any Existing Lender;

(b)agrees that (i) it will, independently and without reliance on the Administrative Agent, any Existing Lender or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender;

(c)appoints and authorizes Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers and discretion under the Loan Documents as are delegated to the Administrative Agent thereby, together with such powers and discretion as are reasonably incidental thereto; and

(d)specifies as its Applicable Lending Office and (address for notices) the office(s) set forth beneath its name on Schedule 1 "Lenders Schedule" attached to this Amendment.

Section 7.03Existing Lender Representations and Warranties.  Each Existing Lender:

(a)represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest being assigned by it to each New Lender, (ii) the Assigned Interest being assigned by such Existing Lender to such New Lender is free and clear of any lien, encumbrance or other adverse claim created by such Existing Lender and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby; and

 

 

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Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 


 

(b)assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.

Section 7.04Payments.  From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the respective Existing Lender for amounts which have accrued to but excluding the Effective Date and to each of the New Lenders for amounts which have accrued from and after the Effective Date.

Article VIII
MISCELLANEOUS

Section 8.01Effect on Loan Documents; Acknowledgements.

(a)Each of the Borrower, the Guarantor, Administrative Agent, the LC Issuers and the Lenders does hereby adopt, ratify, and confirm the Credit Agreement and each other Loan Document, as amended hereby, and acknowledges and agrees that the Credit Agreement and each other Loan Document, as amended hereby, is and remains in full force and effect, and the Borrower and the Guarantor acknowledge and agree that their respective liabilities and obligations under the Credit Agreement and the other Loan Documents are not impaired in any respect by this Amendment.

(b)From and after the Effective Date, all references to the Credit Agreement and the Loan Documents shall mean such Credit Agreement and such Loan Documents as amended by this Amendment.

(c)This Amendment is a Loan Document for the purposes of the provisions of the other Loan Documents.  Without limiting the foregoing, any breach of representations, warranties, and covenants under this Amendment shall be a Default under the Credit Agreement, subject to all applicable cure or grace periods provided for under the Credit Agreement.

(d)Captions.  Section captions used in this Amendment are for convenience only and shall not affect the construction of this Amendment.

(e)Administrative Agent, LC Issuer and Lenders Make No Representations or Warranties. None of the Administrative Agent, the LC Issuer nor any Lender (a) makes any representation or warranty nor assumes any responsibility with respect to any statements, warranties, or representations made in or in connection with the Loan Documents or the execution, legality, validity, enforceability, genuineness, sufficiency, or value of the Credit Agreement, the Loan Documents, or any other instrument or document furnished pursuant

 

 

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Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 


 

thereto or (b) makes any representation or warranty nor assumes any responsibility with respect to the financial condition of the Borrower or any other Person or the performance or observance by such Persons of any of their obligations under the Loan Documents, or any other instrument or document furnished pursuant thereto.

Section 8.02Reaffirmation of the Guaranty.  Guarantor hereby ratifies, confirms, acknowledges and agrees that its obligations under the Guaranty are in full force and effect and that Guarantor continues to unconditionally and irrevocably guarantee the full and punctual payment, when due, whether at stated maturity or earlier by acceleration or otherwise, of the Guaranteed Obligations (as defined in the Guaranty), as such Guaranteed Obligations may have been amended by this Agreement, and its execution and delivery of this Amendment does not indicate or establish an approval or consent requirement by Guarantor under the Guaranty in connection with the execution and delivery of amendments to the Credit Agreement, the Notes or any of the other Loan Documents (other than the Guaranty or any other Loan Document to which Guarantor is a party).

Section 8.03Counterparts.  This Amendment may be separately executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to constitute one and the same agreement.  This Amendment shall become effective when it shall have been executed by Administrative Agent and when Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  This Amendment may be transmitted and/or signed by facsimile, telecopy or electronic mail.  The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as manually-signed originals and shall be binding on all Restricted Persons and Lender Parties.  The Administrative Agent may also require that any such documents and signatures be confirmed by a manually-signed original thereof; provided, however, that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature.

Section 8.04Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted pursuant to the Credit Agreement.

Section 8.05Invalidity.  In the event that any one or more of the provisions contained in this Amendment shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Amendment.

Section 8.06Governing Law.  This Amendment shall be deemed to be a contract made under and shall be governed by, construed and enforced in accordance with the laws of the State of New York and the laws of the United States, without regard to principles of conflicts of laws.

 

 

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Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 


 

Section 8.07RELEASE. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Credit Party hereby, for itself and its successors and assigns, fully and without reserve, releases, acquits, and forever discharges each of the Lender Parties and each Lender Counterparty, its respective successors and assigns, officers, directors, employees, representatives, trustees, attorneys, agents and affiliates (collectively the "Released Parties" and individually a "Released Party") from any and all actions, claims, demands, causes of action, judgments, executions, suits, liabilities, costs, damages, expenses or other obligations of any kind and nature whatsoever, direct and/or indirect, at law or in equity, whether now existing or hereafter asserted, whether absolute or contingent, whether due or to become due, whether disputed or undisputed, whether known or unknown (INCLUDING, WITHOUT LIMITATION, ANY OFFSETS, REDUCTIONS, REBATEMENT, CLAIMS OF USURY OR CLAIMS WITH RESPECT TO THE NEGLIGENCE OF ANY RELEASED PARTY) (collectively, the "Released Claims"), for or because of any matters or things occurring, existing or actions done, omitted to be done, or suffered to be done by any of the Released Parties, in each case, on or prior to the effective date of this Amendment and are in any way directly or indirectly arising out of or in any way connected to any of this Amendment, the Credit Agreement or any other Loan Document (collectively, the "Released Matters").  In entering into this Amendment, each Credit Party consulted with, and has been represented by, legal counsel and expressly disclaim any reliance on any representations, acts or omissions by any of the Released Parties and hereby agrees and acknowledges that the validity and effectiveness of the releases set forth herein do not depend in any way on any such representations, acts and/or omissions or the accuracy, completeness or validity hereof. The provisions of this Section 5.07 shall survive the termination of this Amendment, the Credit Agreement and the other Loan Documents and payment in full of the Obligations.

Section 8.08Entire Agreement.  THIS AMENDMENT, THE CREDIT AGREEMENT AS AMENDED BY THIS AMENDMENT, THE NOTES, AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.

THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

[The remainder of this page has been left blank intentionally.]

 

 

 

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Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 


 

EXECUTED to be effective as of the date first above written.

 

BORROWER:

 

 

 

MID-CON ENERGY PROPERTIES, LLC, a

Delaware limited liability company

 

 

 

By:

 

Mid-Con Energy Partners, LP, a

 

 

Delaware limited partnership, its

 

 

Sole Member

 

 

 

By:

 

Mid-Con Energy GP, LLC, a

 

 

Delaware limited liability company,

 

 

Its General Partner

 

By:

 

/s/Jeffrey R. Olmstead

 

 

Jeffrey R. Olmstead

 

 

President and Chief Executive Officer

 

GUARANTOR:

 

 

 

MID-CON ENERGY PARTNERS, LP, a

Delaware limited partnership

 

 

 

By:

 

Mid-Con Energy GP, LLC, a

 

 

Delaware limited liability company,

 

 

Its General Partner

 

By:

 

/s/Jeffrey R. Olmstead

 

 

Jeffrey R. Olmstead

 

 

President and Chief Executive Officer

 


 

 

Signature Page  1

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 

 


 

 

ADMINISTRATIVE AGENT AND COLLATERAL AGENT:

 

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

as Administrative Agent, as Collateral Agent, as an LC Issuer and as a Lender

 

 

 

By:

 

/s/ John Mammen

Name:

 

John Mammen

Title:

 

Director

 


 

 

Signature Page  2

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 

 


 

 

LENDERS:

 

 

 

ROYAL BANK OF CANADA

as a Lender

 

 

 

By:

 

/s/ Don J. McKinnerney

Name:

 

Don J. McKinnerney

Title:

 

Authorized Signatory


 

 

Signature Page  3

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 

 


 

 

FROST BANK,

as a Lender

 

 

 

By:

 

/s/ Alex ZemKoski

Name:

 

Alex ZemKoski

Title:

 

Senior Vice President

 

 


 

 

Signature Page  4

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 

 


 

 

FIFTH THIRD BANK,

as a Lender

 

 

 

By:

 

/s/ Thomas Kleiderer

Name:

 

Thomas Kleiderer

Title:

 

Director

 

 


 

 

Signature Page  5

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 

 


 

 

CIT BANK, N.A.,

as a Lender

 

 

 

By:

 

/s/ Katya Evseev

Name:

 

Katya Evseev

Title:

 

Vice President

 

 


 

 

Signature Page  6

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 

 


 

 

CADENCE BANK,

as a Lender

 

 

 

By:

 

/s/ Anthony Blanco

Name:

 

Anthony Blanco

Title:

 

Senior Vice President

 


 

 

Signature Page  7

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 

 


 

 

WEST TEXAS NATIONAL BANK,

as a Lender

 

 

 

By:

 

/s/ Thomas E. Stelmar, Jr.

Name:

 

Thomas E. Stelmar, Jr.

Title:

 

Senior Vice President

 


 

 

Signature Page  8

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 

 


 

 

BOKF, NA, d/b/a The Bank of Texas,

as an Exiting Lender

 

 

 

By:

 

/s/ Mynan C. Feldman

Name:

 

Mynan C. Feldman

Title:

 

Senior Vice President

 

 


 

 

Signature Page  9

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 

 


 

 

COMERICA BANK,

as an Exiting Lender

 

 

 

By:

 

/s/ Cassandra M. Lucas

Name:

 

Cassandra M. Lucas

Title:

 

Portfolio Manager

 


 

 

Signature Page  10

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 

 


 

 

THE BANK OF NOVA SCOTIA, HOUSTON BRANCH,

as an Exiting Lender

 

 

 

By:

 

/s/ Alan Dawson

Name:

 

Alan Dawson

Title:

 

Director


 

 

Signature Page  11

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 

 


 

 

MUFG UNION BANK, N.A.,

as an Exiting Lender

 

 

 

By:

 

/s/ Rachel Bowman

Name:

 

Rachel Bowman

Title:

 

Vice President

 

 

 

 

 

Signature Page  12

 

 

 

Amendment No. 12
Mid-Con Energy Properties, LLC
Credit Agreement

 

 


 

Schedule 1

UPDATED LENDERS SCHEDULE

Lender

Maximum Credit Amount

Commitment

Percentage Share

WELLS FARGO BANK, NATIONAL ASSOCIATION

$49,410,636

$24,705,318

19.7642544%

Domestic Lending Office and Eurodollar

Lending Office Address:

 

Wells Fargo Bank, N.A.

1445 Ross Avenue, Suite 4500

Dallas, Texas 75202

Attention: Jason M. Hicks

Telephone: (214) 721-8214

Facsimile: (214) 721-8215

 

 

 

 

FROST BANK

$49,410,636

$24,705,318

19.7642544%

Domestic Lending Office and Eurodollar

Lending Office Address:

 

100 West Houston Street

San Antonio, TX 78296

Attention: Alex Zemkoski

Telephone: (817) 420-5090

Facsimile: (817) 420-5250

 

 

 

FIFTH THIRD BANK

$40,000,000

$20,000,000

16.0000000%

Domestic Lending Office and Eurodollar

Lending Office Address:

 

Fifth Third Bank

1001 Fannin Street, Suite 4750

Houston, TX 77002

Attention: Thomas Kleiderer

Telephone: 713-401-6103

Facsimile: 713-658-0078

 

 

 

 

CADENCE BANK

$30,000,000

$15,000,000

12.0000000%

Domestic Lending Office and Eurodollar

Lending Office Address:

 

Cadence Bank

2800 Post Oak Boulevard

Suite 3800

Houston, TX 77056

Attention: Jeanne Patterson

Telephone: 713-871-4081

 

 

 

 

 

Schedule 1 – Page 1


 

CIT BANK, N.A.

 

$30,000,000

$15,000,000

12.0000000%

Domestic Lending Office and Eurodollar

Lending Office Address:

 

CIT Bank, N.A.

134 Wooding Avenue

Danville,  VA 24541

Attention: Melanie Livengood

Telephone: 434-791-6235

Facsimile: 888-209-0206

 

 

 

 

WEST TEXAS NATIONAL BANK

 

$30,000,000

$15,000,000

12.0000000%

Domestic Lending Office and Eurodollar

Lending Office Address:

 

West Texas National Bank

200 Crescent Court, Suite 820

Dallas, Texas 75201

Attention: Thomas Stelmar

Telephone: 214-459-4760

Facsimile: 214-953-3989

 

 

 

 

ROYAL BANK OF CANADA

$21,178,728

$10,589,364

8.4714912%

Domestic Lending and Eurodollar

Lending Office Address:

 

Royal Bank of Canada

New York Branch

One Liberty Plaza, 3rd Floor

New York, New York 10006-1404

Attention: Manager, Loans Administration

Telephone: (212) 428-6332

Facsimile: (212) 428-2372

 

 

 

 

For matters related to letters of credit:

Attention: Manager, Trade Products

Telephone: (212) 428-6235

Facsimile: (212) 428-3015

 

 

 

 

TOTAL:

$250,000,000.00

$125,000,000.00

100%

 

 

Schedule 1 – Page 2


 

 

EXHIBIT A TO AMENDMENT NO. 1112 TO CREDIT AGREEMENT

 

COMPILED CREDIT AGREEMENT

Amendment No. 1 – April 23, 2012
Amendment No. 2 – November 26, 2012
Amendment No. 3 – November 5, 2013
Amendment No. 4 – April 11, 2014
Amendment No. 5 – November 17, 2014
Amendment No. 6 – February 12, 2015
Amendment No. 7 – November 30, 2015
Amendment No. 8 – April 29, 2016
Amendment No. 9 – May 31, 2016
Amendment No. 10 – August 11, 2016
Amendment No. 11 – December 22, 2017
Amendment No. 12 – January 31, 2018

____________________________________________________



MID-CON ENERGY PROPERTIES, LLC

as Borrower


and


WELLS FARGO BANK, NATIONAL ASSOCIATION
as Administrative Agent and Collateral Agent

and

CERTAIN FINANCIAL INSTITUTIONS

as Lenders

____________________________________________________

WELLS FARGO SECURITIES, LLC

As Sole Arranger and Bookrunner

Originally dated December 20, 2011

 

 

 

 

Mid-Con Energy Properties, LLC

Compiled Credit Agreement


 

TABLE OF CONTENTS

 

 

 

Page

ARTICLE I - Definitions and References

 

1

 

 

Section 1.1

 

Defined Terms

 

1

 

 

Section 1.2

 

Exhibits and Schedules; Additional Definitions

 

25

 

 

Section 1.3

 

Amendment of Defined Instruments

 

25

 

 

Section 1.4

 

Terms Generally; References and Titles

 

25

 

 

Section 1.5

 

Calculations and Determinations

 

25

 

 

Section 1.6

 

Joint Preparation; Construction of Indemnities and Releases

 

26

ARTICLE II - The Loans and Letters of Credit

 

26

 

 

Section 2.1

 

Commitment to Lend; Notes

 

26

 

 

Section 2.2

 

Requests for Loans

 

22

 

 

Section 2.3

 

Continuations and Conversions of Existing Loans

 

27

 

 

Section 2.4

 

Use of Proceeds

 

28

 

 

Section 2.5

 

Interest Rates and Fees

 

28

 

 

Section 2.6

 

Optional Prepayments

 

29

 

 

Section 2.7

 

Mandatory Prepayments

 

30

 

 

Section 2.8

 

Initial Borrowing Base

 

31

 

 

Section 2.9

 

Subsequent Determinations of Borrowing Base

 

31

 

 

Section 2.10

 

Borrower's Reduction of Borrowing Base

 

32

 

 

Section 2.11

 

Letters of Credit

 

32

 

 

Section 2.12

 

Requesting Letters of Credit

 

33

 

 

Section 2.13

 

Reimbursement and Participations

 

34

 

 

Section 2.14

 

Letter of Credit Fees

 

35

 

 

Section 2.15

 

No Duty to Inquire

 

37

 

 

Section 2.16

 

Cash Collateral

 

37

 

 

Section 2.17

 

Obligations of Lenders Several

 

38

 

 

Section 2.18

 

Defaulting Lenders

 

39

ARTICLE III - Payments to Lenders

 

40

 

 

Section 3.1

 

General Procedures

 

40

 

 

Section 3.2

 

Increased Costs

 

41

 

 

Section 3.3

 

Illegality

 

43

 

 

Section 3.4

 

Funding Losses

 

43

 

 

Section 3.5

 

Taxes

 

43

 

 

Section 3.6

 

Alternative Rate of Interest

 

46

 

 

Section 3.7

 

Mitigation Obligations; Replacement of Lenders

 

46

 

 

Section 3.8

 

Payments by Borrower; Presumptions by Agent

 

47

ARTICLE IV - Conditions Precedent

 

47

 

 

Section 4.1

 

Conditions Precedent to Closing

 

47

 

 

Section 4.2

 

Additional Conditions Precedent

 

49

ARTICLE V - Representations and Warranties

 

50

 

 

Section 5.1

 

No Default

 

50

 

 

Section 5.2

 

Organization and Good Standing

 

50

 

 

Section 5.3

 

Authorization

 

51

 

 

i

 

 

 

Mid-Con Energy Properties, LLC

Compiled Credit Agreement

 


 

 

 

Section 5.4

 

No Conflicts or Consents

 

51

 

 

Section 5.5

 

Enforceable Obligations

 

51

 

 

Section 5.6

 

Initial Proforma Financial Statements

 

51

 

 

Section 5.7

 

[Reserved]

 

51

 

 

Section 5.8

 

Full Disclosure

 

51

 

 

Section 5.9

 

Litigation

 

52

 

 

Section 5.10

 

Labor Disputes and Acts of God

 

52

 

 

Section 5.11

 

ERISA Plans and Liabilities

 

52

 

 

Section 5.12

 

Environmental and Other Laws

 

52

 

 

Section 5.13

 

Names and Places of Business

 

53

 

 

Section 5.14

 

Borrower’s Subsidiaries

 

53

 

 

Section 5.15

 

Title to Properties; Licenses

 

53

 

 

Section 5.16

 

Government Regulation

 

53

 

 

Section 5.17

 

Insider

 

54

 

 

Section 5.18

 

Solvency

 

54

 

 

Section 5.19

 

Leases and Contracts; Performance of Obligations

 

54

 

 

Section 5.20

 

Sale of Production

 

54

 

 

Section 5.21

 

Operation of Oil and Gas Properties

 

55

 

 

Section 5.22

 

Ad Valorem and Severance Taxes

 

55

 

 

Section 5.23

 

Hedging Contracts

 

55

 

 

Section 5.24

 

Anti-Terrorism; Anti-Money Laundering; Etc

 

55

 

 

Section 5.25

 

EEA Financial Institutions

 

56

ARTICLE VI - Affirmative Covenants

 

56

 

 

Section 6.1

 

Payment and Performance

 

56

 

 

Section 6.2

 

Books, Financial Statements and Reports

 

56

 

 

Section 6.3

 

Other Information and Inspections

 

58

 

 

Section 6.4

 

Notice of Material Events and Change of Address

 

59

 

 

Section 6.5

 

Maintenance of Properties

 

59

 

 

Section 6.6

 

Maintenance of Existence and Qualifications

 

60

 

 

Section 6.7

 

Payment of Trade Liabilities, Taxes, etc

 

60

 

 

Section 6.8

 

Insurance

 

60

 

 

Section 6.9

 

Performance on Borrower’s Behalf

 

60

 

 

Section 6.10

 

Interest

 

61

 

 

Section 6.11

 

Compliance with Agreements and Law

 

61

 

 

Section 6.12

 

Environmental Matters; Environmental Reviews

 

61

 

 

Section 6.13

 

Evidence of Compliance

 

62

 

 

Section 6.14

 

Agreement to Deliver Security Documents

 

62

 

 

Section 6.15

 

Additional Collateral

 

62

 

 

Section 6.16

 

Perfection and Protection of Security Interests and Liens

 

63

 

 

Section 6.17

 

Bank Accounts; Offset

 

63

 

 

Section 6.18

 

Production Proceeds

 

63

 

 

Section 6.19

 

Mortgaged Property Covenants

 

64

 

 

Section 6.20

 

Leases and Contracts; Performance of Obligations

 

65

 

 

Section 6.21

 

Representation to Continue to be True

 

65

 

 

Section 6.22

 

Guaranties of Borrower’s Subsidiaries

 

65

 

 

Section 6.23

 

Hedging Contracts

 

66

 

 

ii

 

 

 

Mid-Con Energy Properties, LLC

Compiled Credit Agreement

 


 

ARTICLE VII - Negative Covenants

 

66

 

 

Section 7.1

 

Indebtedness

 

66

 

 

Section 7.2

 

Limitation on Liens

 

67

 

 

Section 7.3

 

Hedging Contracts

 

68

 

 

Section 7.4

 

Limitation on Mergers, Issuances of Securities

 

70

 

 

Section 7.5

 

Limitation on Sales of Property

 

70

 

 

Section 7.6

 

Limitation on Restricted Payments

 

71

 

 

Section 7.7

 

Limitation on Investments; Nature of Business

 

71

 

 

Section 7.8

 

Limitation on Credit Extensions

 

73

 

 

Section 7.9

 

Transactions with Affiliates

 

73

 

 

Section 7.10

 

Prohibited Contracts; Multiemployer ERISA Plans

 

73

 

 

Section 7.11

 

Subsidiaries

 

74

 

 

Section 7.12

 

Current Ratio

 

74

 

 

Section 7.13

 

Leverage Ratio

 

74

 

 

Section 7.14

 

Amendments to Organizational Documents

 

75

ARTICLE VIII - Events of Default and Remedies

 

75

 

 

Section 8.1

 

Events of Default

 

75

 

 

Section 8.2

 

Remedies

 

77

 

 

Section 8.3

 

Application of Proceeds after Acceleration

 

77

ARTICLE IX - Administrative Agent and Collateral Agent

 

78

 

 

Section 9.1

 

Appointment and Authority

 

78

 

 

Section 9.2

 

Exculpation, Administrative Agent’s and Collateral Agent’s Reliance, Etc

 

79

 

 

Section 9.3

 

Reliance by Administrative Agent and Collateral Agent

 

80

 

 

Section 9.4

 

Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders

 

80

 

 

Section 9.5

 

Rights as a Lender

 

80

 

 

Section 9.6

 

Sharing of Set-Offs and Other Payments

 

80

 

 

Section 9.7

 

Investments

 

81

 

 

Section 9.8

 

Resignation of Administrative Agent and Collateral Agent

 

81

 

 

Section 9.9

 

Delegation of Duties

 

82

 

 

Section 9.10

 

No Other Duties

 

82

 

 

Section 9.11

 

Administrative Agent May File Proofs of Claim

 

82

 

 

Section 9.12

 

Guaranty Matters

 

83

 

 

Section 9.13

 

Collateral Matters

 

83

 

 

Section 9.14

 

Lender Hedging Obligations

 

85

ARTICLE X - Miscellaneous

 

85

 

 

Section 10.1

 

Waivers and Amendments; Acknowledgements

 

85

 

 

Section 10.2

 

Survival of Agreements; Cumulative Nature

 

87

 

 

Section 10.3

 

Notices; Effectiveness; Electronic Communication

 

87

 

 

Section 10.4

 

Expenses; Indemnity; Damage Waiver

 

88

 

 

Section 10.5

 

Successors and Assigns; Joint and Several Liability

 

90

 

 

Section 10.6

 

Confidentiality

 

93

 

 

Section 10.7

 

Governing Law; Submission to Process

 

93

 

 

Section 10.8

 

Limitation on Interest

 

94

 

 

Section 10.9

 

Termination; Limited Survival

 

95

 

 

iii

 

 

 

Mid-Con Energy Properties, LLC

Compiled Credit Agreement

 


 

 

 

Section 10.10

 

Severability

 

95

 

 

Section 10.11

 

Counterparts

 

95