EXHIBIT 10.1


 


AMENDED AND RESTATED


 


CLASS B MEMBERSHIP INTEREST

CONTRIBUTION AGREEMENT


 


dated as of


 


October 26, 2007


 


by and among


 


MARKWEST ENERGY PARTNERS, L.P.,


 


and


 


THE SELLERS NAMED HEREIN


 





















 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
  2

  
	
  Section 1.2

  	
  Rules of Construction

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
  CONTRIBUTION OF
  CLASS B INTERESTS; CLOSING

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Contribution of Class B Interests

  	
  5

  
	
  Section 2.2

  	
  Closing

  	
  5

  
	
  Section 2.3

  	
  Sellers’ Closing Deliveries

  	
  6

  
	
  Section 2.4

  	
  Buyer’s Closing Deliveries

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
  REPRESENTATIONS AND
  WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Representations of the Sellers

  	
  7

  
	
  Section 3.2

  	
  Representations of Buyer

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
  ADDITIONAL
  AGREEMENTS, COVENANTS, RIGHTS AND OBLIGATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Commercially Reasonable Best Efforts; Further Assurances

  	
  12

  
	
  Section 4.2

  	
  Registration Rights Agreement

  	
  12

  
	
  Section 4.3

  	
  No Solicitation

  	
  12

  
	
  Section 4.4

  	
  Expenses

  	
  12

  
	
  Section 4.5

  	
  Public Announcements

  	
  13

  
	
  Section 4.6

  	
  Reimbursement for Certain Contributions to the Company

  	
  13

  
	
  Section 4.7

  	
  Seller Capacity

  	
  13

  
	
  Section 4.8

  	
  Distributions

  	
  13

  
	
  Section 4.9

  	
  Legends

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
  CLOSING CONDITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Mutual Conditions

  	
  14

  
	
  Section 5.2

  	
  Buyer’s Conditions

  	
  14

  
	
  Section 5.3

  	
  Sellers’ Conditions

  	
  15

  



 


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  ARTICLE VI

  	
   

  
	
  TERMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Termination

  	
  15

  
	
  Section 6.2

  	
  Effect of Termination

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
  INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Seller’s Indemnity

  	
  16

  
	
  Section 7.2

  	
  Survival

  	
  16

  
	
  Section 7.3

  	
  Enforcement of this Agreement

  	
  17

  
	
  Section 7.4

  	
  No Waiver Relating to Claims for Fraud or Willful Misconduct

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Notices

  	
  17

  
	
  Section 8.2

  	
  Waiver and Amendment; Entire Agreement

  	
  18

  
	
  Section 8.3

  	
  Binding Effect and Assignment

  	
  19

  
	
  Section 8.4

  	
  Severability

  	
  19

  
	
  Section 8.5

  	
  Headings

  	
  19

  
	
  Section 8.6

  	
  Governing Law; Jurisdiction

  	
  19

  
	
  Section 8.7

  	
  Waiver of Jury Trial

  	
  20

  
	
  Section 8.8

  	
  Negotiated Agreement

  	
  20

  
	
  Section 8.9

  	
  Counterparts

  	
  20

  
	
  Section 8.10

  	
  No Act or Failure to Act

  	
  20

  



 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  —

  	
  Form of
  Assignment for Class B Membership Interest

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  —

  	
  Form of
  Seller’s Closing Certificate

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  —

  	
  Form of
  FIRPTA Certificate

  
	
   

  	
   

  	
   

  
	
  Exhibit D

  	
  —

  	
  Form of
  Buyer’s Closing Certificate

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
  —

  	
  Form of
  Registration Rights Agreement

  



 


ii





















 


AMENDED AND RESTATED


 


CLASS B MEMBERSHIP INTEREST


 


CONTRIBUTION AGREEMENT


 


THIS AMENDED
AND RESTATED CLASS B MEMBERSHIP INTEREST CONTRIBUTION AGREEMENT, dated as
of October 26, 2007 (this “Agreement”), is entered into by and among
each of the Sellers listed in Schedule 2.1 attached hereto (each
referred to herein as a “Seller” and collectively, the “Sellers”),
and MarkWest Energy Partners, L.P., a Delaware limited partnership (“Buyer”).
The Sellers and the Buyer are collectively referred to herein as the “Parties,”
with each a “Party.”


 


WITNESSETH:


 


WHEREAS, Buyer
previously entered into the Class B Membership Interest Contribution Agreement,
dated September 5, 2007 (the “Original Agreement”), with the holders of
Class B Membership Interests named therein (the “Original Sellers”);


 


WHEREAS,
pursuant to Section 8.2 of the Original Agreement, Denney & Denney Capital,
LLLP, a Colorado limited liability limited partnership (“DDC”), has requested
that the Original Agreement be amended to include DDC as a party;


 


WHEREAS,
pursuant to Section 8.2 of the Original Agreement, the Buyer and the Original
Sellers agree to amend, restate and replace the Original Agreement in its
entirety to include DDC as a party to this Agreement and the transactions
contemplated herein;


 


WHEREAS, the
Sellers collectively own all of the outstanding Class B Membership
Interests (as defined below) in the Company, representing, in the aggregate, a
10.3% Membership Interest (as defined below) in MarkWest Energy GP, L.L.C., a
Delaware limited liability company (the “Company”), with each Seller
owning the Class B Membership Interest specified on Schedule 2.1
attached hereto, and MarkWest Hydrocarbon, Inc., a Delaware corporation (“Hydrocarbon”),
owns all of the outstanding Class A Membership Interests (as defined
below) representing a 89.7% Membership Interest 
in the Company;


 


WHEREAS,
subject to the terms and conditions set forth herein, each of the Sellers
desires to contribute to Buyer, and Buyer desires for the Sellers to contribute
to it, their respective Class B Membership Interests in exchange for cash
and common units representing limited partnership interests in the Buyer (“Common
Units”);


 


WHEREAS, as a
material inducement to the Sellers entering into this Agreement, the Buyer has
agreed to enter into a Registration Rights Agreement on the Closing Date and
grant the Sellers certain registration rights as provided therein;


 


WHEREAS, as of
the date hereof, pursuant to the requirements of Section 12.1 of the Company
LLC Agreement (as defined below), in its capacity as the Class A Member of the
Company, Hydrocarbon has consented to the transactions contemplated by this
Agreement; and


 





















 


WHEREAS, on
September 5, 2007, the Buyer, Hydrocarbon and MWEP, L.L.C. (“MergerCo”)
have entered into an Agreement and Plan of Redemption and Merger (the “Merger
Agreement”), pursuant to which (i) Hydrocarbon will redeem a portion of its
outstanding shares of common stock (the “Redemption”) and then (ii)
MergerCo will merge (the “Merger”) with and into Hydrocarbon, with
Hydrocarbon surviving, such that following the Redemption and Merger,
Hydrocarbon will be a direct, wholly owned subsidiary of the Buyer.


 


NOW, THEREFORE,
in consideration of the mutual covenants, representations, warranties and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follow:


 


ARTICLE I

DEFINITIONS


 


Section 1.1                                      Definitions.
In this Agreement, unless
the context otherwise requires, the following terms shall have the following
meanings respectively:


 


“Affiliate,”
when used with respect to a Person, means any other Person that directly or
indirectly controls, is controlled by or is under common control with such
first Person.


 


“Aggregate
Consideration Value,” with respect to a Seller, means the sum of (i) the
cash received by such Seller pursuant to this Agreement plus (ii) the product
of (A) the number of Common Units received by such Seller pursuant to this
Agreement multiplied by (B) the Common Unit Price.


 


“Agreement”
has the meaning set forth in the Preamble.


 


“Business
Day” means any day on which commercial banks are generally open for
business in Denver, Colorado other than a Saturday, a Sunday or a day observed
as a holiday in Denver, Colorado under the Laws of the State of Colorado or the
federal Laws of the United States of America.


 


“Buyer”
has the meaning set forth in the Preamble.


 


“Buyer
Disclosure Schedule” means the disclosure schedule prepared by Buyer and
delivered to Sellers as of the date of this Agreement.


 


“Buyer
Indemnified Parties” has the meaning set forth in Section 7.1.


 


“Closing”
has the meaning set forth in Section 2.2.


 


“Closing
Date” has the meaning set forth in Section 2.2.


 


“Class A
Membership Interests” has the meaning assigned to such term in the Company
LLC Agreement.


 


“Class B
Membership Interests” has the meaning assigned to such term in the Company
LLC Agreement.


 


2





















 


“Class B
Proposal” has the meaning set forth in Section 4.3.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Common
Unit Price” means $33.32.


 


“Common
Units” has the meaning set forth in the recitals.


 


“Company”
has the meaning set forth in the recitals.


 


“Company
LLC Agreement” means the Amended and Restated Limited Liability Company
Agreement of the Company, dated May 24, 2002, as amended by Amendment
No. 1 thereto, dated effective December 31, 2004, and Amendment No. 2
thereto, dated effective January 19, 2005.


 


“Conflicts
Committee” means the Conflicts Committee of the Board of Directors of the
Company.


 


“Current
Quarter” has the meaning set forth in Section 4.8(b).


 


“control,” and its derivatives,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person.


 


“Delaware
LLC Act” means Delaware Revised Limited Liability Company Act.


 


“Encumbrances”
means pledges, restrictions on transfer, proxies and voting or other
agreements, liens, claims, charges, mortgages, security interests or other
legal or equitable encumbrances, limitations or restrictions of any nature
whatsoever, other than restrictions on transfer under the Company LLC
Agreement, which have been waived, and federal and state securities laws.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“FIRPTA”
means the Foreign Investment in Real Property Tax Act.


 


“Fox
Support Agreement” means the Voting Agreement, dated the date hereof, among
the Buyer and the Stockholders (as defined therein).


 


“GAAP”
means United States generally accepted accounting principles applied on a
consistent basis during the periods involved.


 


“governing
documents” means, with respect to any person, the certificate or articles
of incorporation, by-laws, articles of organization, limited liability company
agreement, partnership agreement, formation agreement, joint venture agreement,
operating agreement, unanimous equityholder agreement or declaration or other
similar governing documents of such person.


 


“Governmental
Authority” means any (a) multinational, federal, national, provincial,
territorial, state, regional, municipal, local or other government,
governmental or public department, central bank, court, tribunal, arbitral
body, commission, administrative agency, 


 


3





















 


board, bureau or agency, domestic or foreign, (b) subdivision, agent,
commission, board, or authority of any of the foregoing, or (c)
quasi-governmental or private body exercising any regulatory, expropriation or
taxing authority under, or for the account of, any of the foregoing, in each
case which has jurisdiction or authority with respect to the applicable party.


 


“GP Capital
Contribution” has the meaning set forth in Section 4.6.


 


“Indemnified
Parties” has the meaning set forth in Section 7.1.


 


“IDRs”
means the Incentive Distribution Rights (as such term in defined in the
Partnership Agreement).


 


“Laws”
means all statutes, regulations, statutory rules, orders, judgments, decrees
and terms and conditions of any grant of approval, permission, authority,
permit or license of any court, Governmental Authority, statutory body or
self-regulatory authority (including the NYSE).


 


“Material
Adverse Effect” means, with respect to Buyer, any effect that (i) is
material and adverse to the financial position, results of operations,
business, assets or prospects of Buyer and its Subsidiaries taken as a whole or
(ii) would materially impair the ability of Buyer to perform its obligations
under this Agreement or otherwise materially threaten or materially impede the
consummation of the transactions contemplated by this Agreement.


 


“Membership
Interests” has the meaning assigned to such term in the Company LLC
Agreement.


 


“Merger”
has the meaning set forth in the recitals.


 


“Merger
Agreement” has the meaning set forth in the recitals.


 


“NYSE”
means the New York Stock Exchange.


 


“Order”
means any judgment, decree, injunction, ruling, award, settlement, stipulation
or orders of a Governmental Authority.


 


“Partnership
Agreement” means the Second Amended and Restated Agreement of Limited
Partnership of Buyer.


 


“Person”
or “person” means any individual, corporation, limited liability
company, limited or general partnership, joint venture, association, joint
stock company, trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity, or any group comprised of
two or more of the foregoing.


 


“Previously
Disclosed” by Buyer shall mean information set forth in Buyer Disclosure
Schedule.


 


4





















 


“Representatives”
means with respect to a Person, its directors, officers, employees, agents and
representatives, including any investment banker, financial advisor, attorney,
accountant or other advisor, agent or representative.


 


“Rights”
shall mean, with respect to any person, securities or obligations convertible
into or exchangeable for, or giving any person any right to subscribe for or
acquire, or any options, calls or commitments relating to, equity securities of
such person.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Seller”
has the meaning set forth in the Preamble.


 


“Subsidiary”
shall mean an Affiliate of a Person that is controlled by such Person directly,
or indirectly through one or more intermediaries.


 


“Tax”
or “Taxes” shall mean any and all taxes, including any interest,
penalties or other additions to tax that may become payable in respect thereof,
imposed by any federal, state, local or foreign government or any agency or
political subdivision of any such government, which taxes shall include,
without limiting the generality of the foregoing, all income or profits taxes,
payroll and employee withholding taxes, unemployment insurance taxes, social
security taxes, severance taxes, license charges, taxes on stock, sales and use
taxes, ad valorem taxes, excise taxes, franchise taxes, gross receipts taxes,
business license taxes, occupation taxes, real and personal property taxes,
stamp taxes, environmental taxes, transfer taxes, workers’ compensation and
other obligations of the same or of a similar nature to any of the foregoing.


 


“Unaffiliated
Common Unitholders” means holders of Common Units other than Hydrocarbon or
holders affiliated with Hydrocarbon or the Company.


 


Section 1.2                                      Rules
of Construction. In
constructing this Agreement:  (a) the
word “includes” and its derivatives means “includes, without limitation” and
corresponding derivative expressions; (b) the currency amounts referred to
herein, unless otherwise specified, are in United States dollars;
(c) whenever this Agreement refers to a number of days, such number shall
refer to calendar days unless business days are specified; (d) unless otherwise
specified, all references in this Agreement to “Article,” “Section,” “Schedule,”
“Disclosure Schedule,” “Exhibit,” “preamble” or “recitals” shall be references
to an Article, Section, “Schedule,” Disclosure Schedule, Exhibit, preamble or
recitals hereto; and (e) whenever the context requires, the words used in
this Agreement shall include the masculine, feminine and neuter and singular
and the plural.


 


ARTICLE II

CONTRIBUTION OF CLASS B INTERESTS; CLOSING


 


Section 2.1                                      Contribution
of Class B Interests. Upon
the terms and subject to the conditions set forth in this Agreement, at the
Closing (as defined below), each Seller agrees, severally and not jointly, to
contribute to the Buyer the Class B Membership Interest specified on Schedule 2.1
attached hereto as owned by such Seller, and the Buyer agrees to accept the
contribution of each such Class B Membership Interest from each Seller and
(a) pay to each 


 


5





















 


Seller the amount in
cash and (b) issue to each Seller the number of Common Units, in each case, set
forth opposite the name of such Seller on Schedule 2.1 attached
hereto.


 


Section 2.2                                      Closing.
The closing of the
contribution of the Class B Membership Interests pursuant to this
Agreement (the “Closing”) shall take place concurrently with the closing
of the Merger, subject to satisfaction or waiver of all of the conditions to
each of the respective Parties’ obligations to consummate the contribution of
the Class B Membership Interest hereunder (such date, the “Closing Date”);
provided, that the Buyer shall have given the Sellers three (3) Business Days
(or such shorter period as shall be agreeable to the Parties) prior written
notice of such designated Closing Date. The Closing shall take place at the
offices of Hogan & Hartson LLP, 1200 Seventeenth Street, Suite 1500,
Denver, Colorado 80202.


 


Section 2.3                                      Sellers’
Closing Deliveries. At the
Closing, each of the Sellers shall deliver, or cause to be delivered, to the
Buyer the following:


 


(a)                                  a
duly executed Assignment in substantially the form attached hereto as Exhibit A,
transferring the Class B Membership Interest of such Seller;


 


(b)                                 a
closing certificate, substantially in the form attached as Exhibit B,
duly executed by, or on behalf of, such Seller;


 


(c)                                  a
FIRPTA certificate, in the form attached hereto as Exhibit C duly
executed by, or on behalf of, such Seller (i) stating that such Seller is
not a foreign individual, foreign corporation, foreign partnership, foreign
trust or foreign estate, (ii) providing such Seller’s U.S. Employer
Identification Number and (iii) providing such Seller’s address;


 


(d)                                 the
Registration Rights Agreement, in the form attached hereto as Exhibit E
duly executed by, or on behalf of, such Seller; and


 


(e)                                  such
other certificates, instruments of conveyance or contribution and documents as
may be reasonably requested by the Buyer prior to the Closing Date to carry out
the intent and purposes of this Agreement.


 


Section 2.4                                      Buyer’s
Closing Deliveries. At the
Closing, Buyer shall deliver, or cause to be delivered, to each of the Sellers
the following:


 


(a)                                  the
full amount in cash set forth opposite the name of such Seller on Schedule 2.1
by wire transfer of immediately available funds to the respective accounts
designated in writing by such Seller at least two (2) Business Days prior to
Closing;


 


(b)                                 a
duly executed certificate, countersigned by the appropriate officer(s) of the
Company, representing the number of Common Units set forth opposite the name of
such Seller on Schedule 2.1 hereto;


 


(c)                                  a
closing certificate, substantially in the form attached as Exhibit D,
duly executed by, or on behalf of, Buyer;


 


6





















 


(d)                                 the
Registration Rights Agreement, in the form attached hereto as Exhibit E
duly executed by, or on behalf of, Buyer;


 


(e)                                  a
long-form certificate of good standing of recent date of Buyer; and


 


(f)                                    such
other certificates, instruments of conveyance or contribution and documents as
may be reasonably requested by such Seller prior to the Closing Date to carry
out the intent and purposes of this Agreement.


 


ARTICLE III

REPRESENTATIONS AND WARRANTIES


 


Section 3.1                                      Representations
of the Sellers. Each Seller
hereby represents and warrants, severally and not jointly, to Buyer that:


 


(a)                                  Organization; Authorization; Validity of Agreement; Necessary Action.
This Agreement has been duly executed and delivered by such Seller and
constitutes a legal, valid and binding agreement of such Seller, enforceable
against such Seller in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general
equitable principles.


 


(b)                                 Ownership. Such Seller’s Class B Membership Interest
is, and on the Closing Date will be, owned beneficially and of record by such
Seller and, to the best knowledge of such Seller, has been duly authorized and
is validly issued, fully paid (to the extent required under the Company LLC
Agreement) and non-assessable (except as provided under the Delaware LLC Act or
the Company LLC Agreement). Such Seller has good and marketable title to such
Seller’s Class B Membership Interest, free and clear of any Encumbrances,
including any liens for Taxes. Such Seller has and will have at all times
through the Closing Date sole voting power, sole power of disposition and sole
power to agree to all of the matters set forth in this Agreement, in each case
with respect to such Seller’s Class B Membership Interest at all times
through the Closing Date.


 


(c)                                  No Violation. Neither the execution and delivery of this
Agreement by such Seller, the performance by such Seller of such Seller’s
obligations under this Agreement, nor the consummation by such Seller of the
transactions contemplated hereby nor compliance by such Seller with any of the
provisions herein will (i) result in the creation of any Encumbrance upon the
Class B Membership Interest or (ii) violate any Orders or Laws applicable
to such Seller or any of such Seller’s properties, rights or assets.


 


(d)                                 Consents and Approvals. No consent, approval, Order or
authorization of, or registration, declaration or filing with, any Governmental
Authority is necessary to be obtained or made by such Seller in connection with
such Seller’s execution, delivery and performance of this Agreement or the
consummation by such Seller of the transactions contemplated by this Agreement.


 


(e)                                  Absence of Litigation. There is no action, litigation or
proceeding pending and no Order of any Governmental Authority outstanding nor,
to the knowledge of such Seller, is


 


7





















 


any such
action, litigation, proceeding or Order threatened, against such Seller or such
Seller’s Class B Membership Interest which may prevent or materially delay
such Seller from performing such Seller’s obligations under this Agreement or
consummating the transactions contemplated hereby on a timely basis.


 


(f)                                    Brokerage and Finder’s Fee. No fees or commissions will be
payable by such Seller to any broker, finder, or investment banker with respect
to the disposition or contribution of any of such Seller’s Class B
Membership Interest or the consummation of the transactions contemplated by
this Agreement.


 


(g)                                 No Side Agreements. Except for this Agreement and the
agreements contemplated by this Agreement and the Merger Agreement (if and to
the extent such Seller is a party to any such agreements), there are no other
agreements by, among or between such Seller or any of such Seller’s Affiliates,
on the other hand, and the Company or its Affiliates, on the other hand, with
respect to the transactions contemplated hereby.


 


(h)                                 Community Property. Except for DDC, each Seller is a natural
person. Except in the case of Jan Kindrick and Kevin Kubat, each Seller that is
a natural person is domiciled and residing in the State of Colorado, and such
Seller’s Class B Membership Interest is not subject to community property
rights. Kevin Kubat is domiciled and residing in the State of Oklahoma and such
Seller’s Class B Membership Interest is not subject to community property
rights. Jan Kindrick is domiciled and residing in the State of Texas and such
Seller’s Class B Membership Interest may be subject to community property
rights.


 


(i)                                     Investment Intent; Investment Experience; Restricted Securities.
In acquiring the Common Units hereunder, such Seller is not offering or
selling, and shall not offer or sell the Common Units, in connection with any
distribution of any of such Common Units, and such Seller shall not participate
in any such undertaking or in any underwriting of such an undertaking, except
in compliance with applicable federal and state securities Laws. Such Seller
acknowledges that Seller can bear the economic risk of such Seller’s investment
in the Common Units, and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of an
investment in the Common Units. Such Seller is an “accredited investor” as such
term is defined in Regulation D under the Securities Act. Such Seller
understands that none of the Common Units received pursuant to this Agreement
shall have been registered pursuant to the Securities Act or any applicable
state securities Laws, that all of such Common Units shall be characterized as “restricted
securities” under federal securities Laws and that under such Laws and
applicable regulations none of such Common Units can be sold or otherwise
disposed of without registration under the Securities Act or an exemption
therefrom.


 


(j)                                     Limitation of Representations and Warranties. EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 3.1, SUCH
SELLER IS NOT MAKING ANY OTHER REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL,
STATUTORY, EXPRESS OR IMPLIED.


 


Section 3.2                                      Representations
of Buyer. Except as set
forth in a section of the Buyer Disclosure Schedule delivered concurrently
herewith corresponding to the applicable sections of 


 


8





















 


this Section 3.2
to which such disclosure applies, Buyer hereby represents and warrants to each
Seller that:


 


(a)                                  Organization; Qualification. Buyer has the requisite power
and authority to execute and deliver this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby. The
execution and delivery by Buyer of this Agreement, its performance of its
obligations hereunder and the consummation of the transactions contemplated
hereby have been duly and validly authorized by Buyer and no other actions or
proceedings on the part of Buyer to authorize the execution and delivery of
this Agreement, the performance by Buyer of the obligations hereunder or the
consummation of the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Buyer and constitutes a legal, valid and binding
agreement of Buyer, enforceable against Buyer in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equitable principles.


 


(b)                                 No Violations. Neither the execution and delivery of this
Agreement by Buyer, the performance by Buyer of its obligations under this
Agreement, nor the consummation by Buyer of the transactions contemplated
hereby nor compliance by Buyer with any of the provisions herein will (i)
result in a violation or breach of or conflict with the Partnership Agreement
or Buyer’s certificate of limited partnership, (ii) result in a violation or
breach of or conflict with any provisions of, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, or result in the termination, cancellation of, or give rise to a right
of purchase under, or accelerate the performance required by, or result in a
right of termination or acceleration under, or result in the creation of any
Encumbrance upon any of the properties, rights or assets owned or operated by
Buyer, or result in being declared void, voidable, or without further binding
effect, or otherwise result in a detriment to Buyer under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, contract, lease, agreement or other instrument or obligation of any
kind to which Buyer is a party or by which Buyer or any of Buyer’s properties,
rights or assets may be bound, (iii) violate any Orders or Laws applicable to
Buyer or any of Buyer’s properties, rights or assets, except in the case of
clauses (ii) and (iii) as would not have a Material Adverse Effect.


 


(c)                                  Consents and Approvals. No consent, approval, Order or
authorization of, or registration, declaration or filing with, any Governmental
Authority is necessary to be obtained or made by Buyer in connection with Buyer’s
execution, delivery and performance of this Agreement or the consummation by
Buyer of the transactions contemplated by this Agreement, except as provided
under Section 4.2, or as would not have a Material Adverse Effect.


 


(d)                                 Absence of Litigation. There is no action, litigation or
proceeding pending and no Order of any Governmental Authority outstanding nor,
to the knowledge of Buyer, is any such action, litigation, proceeding or Order
threatened, against Buyer which may prevent or materially delay Buyer from
performing Buyer’s obligations under this Agreement or consummating the
transactions contemplated hereby on a timely basis, except as would not have a
Material Adverse Effect.


 


9





















 


(e)                                  Independent Investigation. Buyer has conducted its own
independent investigation, review and analysis of the business, operations,
assets, liabilities, results of operations, financial condition and prospects
of the Company which investigation, review and analysis was done by Buyer and,
to the extent Buyer deemed necessary or appropriate, by its representatives.


 


(f)                                    Investment Intent; Investment Experience; Restricted Securities.
In acquiring the Class B Membership Interests, Buyer is not offering or
selling, and shall not offer or sell the Class B Membership Interests, in
connection with any distribution of any of such Class B Membership
Interests, and Buyer shall not participate in any such undertaking or in any
underwriting of such an undertaking, except in compliance with applicable
federal and state securities Laws. Buyer acknowledges that it can bear the
economic risk of its investment in the Class B Membership Interests, and
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of an investment in the Class B
Membership Interests. Buyer is an “accredited investor” as such term is defined
in Regulation D under the Securities Act. Buyer understands that none of the
Class B Membership Interests shall have been registered pursuant to the
Securities Act or any applicable state securities Laws, that all of such
Class B Membership Interests shall be characterized as “restricted
securities” under federal securities Laws and that under such Laws and
applicable regulations none of such Class B Membership Interests can be
sold or otherwise disposed of without registration under the Securities Act or
an exemption therefrom.


 


(g)                                 Capitalization. As of the date hereof, there are 36,500,455
Common Units issued and outstanding, and all of such Common Units and the
limited partner interests represented thereby were duly authorized and validly
issued in accordance with the Partnership Agreement and are fully paid (to the
extent required under the Partnership Agreement) and nonassessable (except as
such nonassessability may be affected by the Delaware LP Act and the
Partnership Agreement). As of the date hereof, the Company owns a 2.0% general
partner interest in the Buyer and all of the IDRs, and such general partner
interest was duly authorized and validly issued in accordance with the
Partnership Agreement. As of the date hereof, except as Previously Disclosed in
Schedule 3.2(g) of the Buyer Disclosure Schedule, Buyer has no
equity securities authorized and reserved for issuance, Buyer does not have any
Rights issued or outstanding with respect to its equity securities, and Buyer
does not have any commitment to authorize, issue or sell any such equity
securities or Rights, except pursuant to this Agreement and the Merger
Agreement. The number of Common Units that are issuable upon exercise of any
employee or director options to purchase Common Units or Subordinated Units as
of the date hereof are Previously Disclosed in Schedule 3.2(g) of
the Buyer Disclosure Schedule. At Closing, the Common Units issued to each
Seller hereunder and the limited partner interests represented thereby will be
duly authorized and validly issued in accordance with the Partnership Agreement
and will be fully paid (to the extent required under the Partnership Agreement)
and nonassessable (except as such nonassessability may be affected by the
Delaware LP Act and the Partnership Agreement).


 


(h)                                 Financial Reports and SEC Documents. Buyer’s annual report
on Form 10-K for the fiscal year ended December 31, 2006, and all other
reports, registration statements, definitive proxy statements or information
statements filed or to be filed by Buyer or any of its Subsidiaries subsequent
to December 31, 2004 under the Securities Act, or under Sections 13(a), 


 


10





















 


13(c), 14 and
15(d) of the Exchange Act, in the form filed, or to be filed (collectively, its
“SEC Documents”), with the SEC (i) complied or will comply in all
material respects as to form with the applicable requirements under the
Securities Act or the Exchange Act, as the case may be, and (ii) did not and
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading; and each of the balance sheets contained in or incorporated by
reference into any such SEC Document (including the related notes and schedules
thereto) fairly presents the financial position of the Buyer as of its date,
and each of the statements of income and changes in partners’ equity and cash
flows in such SEC Documents (including any related notes and schedules thereto)
fairly presents the results of operations, changes in partners’ equity and
changes in cash flow of Buyer for the periods to which it relates, in each case
in accordance with GAAP consistently applied during the periods involved,
except in each case as may be noted therein, subject to normal year-end audit
adjustments in the case of unaudited statements. Except as and to the extent
set forth on its balance sheet as of December 31, 2006 (or such later date of
any balance sheet filed with the SEC as an SEC Document), as of such date,
neither Buyer nor any of its Subsidiaries had any liabilities or obligations of
any nature (whether accrued, absolute, contingent or otherwise) that would be
required to be reflected on, or reserved against in, a balance sheet or in the
notes thereto prepared in accordance with GAAP consistently applied.


 


(i)                                     No Brokers. No action has been taken by Buyer that would
give rise to any valid claim against any party hereto for a brokerage
commission, finder’s fee or other like payment with respect to the transactions
contemplated by this Agreement, excluding, fees to be paid by Buyer to Lehman
Brothers Inc. and RBC Capital Markets in connection with the transactions
contemplated by the Merger Agreement and this Agreement.


 


(j)                                     No Material Adverse Change. Except as disclosed in its SEC
Documents filed with the SEC on or before the date hereof, since December 31,
2006, (i) Buyer and its Subsidiaries have conducted their respective businesses
in the ordinary and usual course (excluding the incurrence of expenses related
to this Agreement and the transactions contemplated hereby), (ii) Buyer has not
made any material change in its accounting methods, principles or practices or
its Tax methods, practices or elections and (iii) no event has occurred or
circumstance arisen that, individually or taken together with all other facts,
circumstances and events is reasonably likely to result in a Material Adverse
Effect.


 


(k)                                  Conflicts Committee Action. At a meeting duly called and held, the
Conflicts Committee determined that this Agreement and the transactions
contemplated hereby, together with the Merger Agreement and the transaction
contemplated thereby, are fair and reasonable to, and in the best interests of,
the Unaffiliated Common Unitholders and the Partnership, and recommended that
the Board of Directors of the Company approve this Agreement and the
transactions contemplated hereby.


 


(l)                                     Energy Partners Fairness Opinion. Lehman Brothers Inc. has
delivered to the Conflicts Committee its written opinion dated September 5,
2007, that as of such date, the Redemption/Merger Consideration paid in the
Redemption and the Merger and the consideration paid to the Sellers pursuant to
this Agreement, in the aggregate, are fair, from a financial point of view, to
the Unaffiliated Common Unitholders.


 


11





















 


(m)                               Limitation of Representations and Warranties. EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 3.2, BUYER
IS NOT MAKING ANY OTHER REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL,
STATUTORY, EXPRESS OR IMPLIED.


 


ARTICLE IV

ADDITIONAL AGREEMENTS, COVENANTS, RIGHTS AND OBLIGATIONS


 


Section 4.1                                      Commercially
Reasonable Best Efforts; Further Assurances. From and after the date hereof, upon the terms and subject
to the conditions hereof, the Buyer and each Seller shall use its or his
commercially reasonable best efforts to take, or cause to be taken, all
appropriate action, and to do or cause to be done, all things necessary, proper
or advisable under applicable Laws to consummate and make effective the
transactions contemplated by this Agreement. Without limiting the foregoing but
subject to the other terms of this Agreement, the parties hereto agree that,
from time to time, whether before, at or after the Closing Date, each of them
will execute and deliver, or cause to be executed and delivered, such
instruments of assignment, transfer, contribution, conveyance, endorsement,
direction or authorization as may be necessary to consummate and make effective
such transactions.


 


Section 4.2                                      Registration
Rights Agreement. On the
Closing Date, Buyer and each of the Sellers shall execute and deliver the
Registration Rights Agreement, in the form attached hereto as Exhibit E
pursuant to which Buyer will agree to grant certain registration rights to the
Sellers with respect to Common Units issued to the Sellers pursuant to this
Agreement.


 


Section 4.3                                      No
Solicitation. Each Seller
agrees that Seller will not, and shall use his or its reasonable best efforts
to cause such Seller’s Representatives not to, directly or indirectly through
another Person, (i) solicit, initiate or encourage or facilitate, any proposal
to acquire all or a portion of such Seller’s Class B Membership Interest
(a “Class B Proposal”) or the making or consummation thereof, (ii)
enter into, continue or otherwise participate in any discussions or
negotiations regarding, or furnish to any person any information in connection
with, or otherwise cooperate in any way with, any such Class B Proposal,
(iii) waive, terminate, modify or fail to enforce any provision of any “standstill”
or similar obligation of any person other than Buyer, (iv) approve, adopt or
recommend, or publicly propose to approve, adopt or recommend, execute or enter
into, any letter of intent, memorandum of understanding, agreement in
principle, merger agreement, acquisition agreement, option agreement, joint
venture agreement, partnership agreement, or other similar contract or any
tender or exchange offer providing for, with respect to, or in connection with,
any such Class B Proposal or (v) agree or publicly propose to do any of
the foregoing. Without limiting the foregoing, it is agreed that any violation
of the restrictions set forth in the preceding sentence by any Representative
of a Seller shall be a breach of this Section 4.3 by such Seller. Each
Seller hereby represents that, as of the date hereof, such Seller is not
engaged in any discussions or negotiations with respect to any Class B
Proposal other than with Buyer and agrees not to, and shall use best efforts to
cause such Seller’s Representatives to, immediately cease and cause to be
terminated all existing discussions or negotiations with any Person conducted
heretofore with respect to any Class B Proposal and will take commercially
reasonable steps to inform such Seller’s Representatives of the obligations
undertaken by such Seller pursuant to this Agreement, including this Section 4.3.


 


12





















 


Section 4.4                                      Expenses.
Whether or not the
transactions contemplated by this Agreement are consummated, all reasonable and
documented costs and expenses incurred of the Sellers in connection with this
Agreement, including legal fees, accounting fees, financial advisory fees and other
professional and non-professional fees and expenses of the Sellers, up to a
maximum of $10,000 per Seller, shall be reimbursed or paid by the Buyer, except
to the extent otherwise provided in this Agreement.


 


Section 4.5                                      Public
Announcements. No Seller will
issue any press release or other written statement for general circulation or
otherwise make a public announcement relating to the transactions contemplated
hereby without the prior approval of the Buyer and the Conflicts Committee.


 


Section 4.6                                      Reimbursement
for Certain Contributions to the Company. If after the date of this Agreement and prior to the Closing
Date, the Buyer issues Common Units or other equity securities other than
pursuant to this Agreement and, in connection therewith, any Seller makes one
or more capital contributions to the Company pursuant to Section 3.5 of
the Company LLC Agreement in connection with the Company’s obligation to make a
capital contribution to the Buyer pursuant to Section 5.2(b) of the
Partnership Agreement (a “GP Capital Contribution”), such Seller shall
promptly give notice to the Buyer thereof and provide such other documents,
information and materials as the Buyer may reasonably request documenting such
GP Capital Contribution, and upon Closing, Buyer shall reimburse each Seller
for the amount of any GP Capital Contribution made by such Seller.


 


Section 4.7                                      Seller
Capacity. Each Seller has
entered into this Agreement solely in the capacity as the beneficial owner of
such Seller’s Class B Membership Interest; provided nothing herein shall in any
way restrict or limit any Seller from taking any action in such Seller’s
capacity as a director or officer of the Company or of Hydrocarbon or otherwise
fulfilling his or her fiduciary obligations as director or officer of the
Company or of Hydrocarbon.


 


Section 4.8                                      Distributions.


 


(a)                                  Prior to Closing. Until the Closing Date, all Class B
Members shall continue to be entitled to distributions to be paid pursuant to
the Company LLC Agreement.


 


(b)       
Payment in Lieu of Final
Quarterly Distribution.


 


(1)       
If the Closing Date occurs during a calendar quarter before the Company has
made a Company Distribution to the Class B Membership Interests in respect of
the previous  calendar quarter, the
Partnership shall pay to each Seller who has contributed such Seller’s Class B
Membership Interest to Buyer at Closing pursuant to this Agreement:


 


 (A)                           within five days after
making its quarterly distribution in respect of such previous quarter, an
amount equal to the remainder of (i) such Seller’s Hypothetical Company
Distribution Amount for such previous quarter less
(ii) such Aggregate Common Unit Distribution Amount paid to such
Seller for such previous quarter, and


 


(B)                                within
five days after making its next quarterly distribution (i.e. its quarterly
distribution in respect of the calendar quarter in which the Closing Date
occurs


 


13




















 


(the “Current Quarter”)), an amount
equal to the remainder of (i) the sum of (I) the product of (a) such Seller’s
Hypothetical Company Distribution Amount for the Current Quarter times (b) the
Pro Rata GP Quarterly Period, plus (II) the
product of (x) such Seller’s Aggregate Common Units Distribution Amount for the
Current Quarter times (y) the Pro Rata LP Unit Quarterly Period; less (ii) the Aggregate Common Units Distribution Amount for
the Current Quarter.


 


(2)                                  If
the Closing Date occurs during a calendar quarter after the Company has made a
Company Distribution to the Class B Membership Interests in respect of the
previous calendar quarter, the Partnership shall, within five days of making
its next quarterly distribution (i.e. its
quarterly distribution in respect of the Current Quarter), pay to each Seller
who has contributed such Seller’s Class B Membership Interest to Buyer at
Closing pursuant to this Agreement, an amount equal to the remainder of: (i)
the sum of (I) the product of (a) such Seller’s Hypothetical Company
Distribution Amount for the Current Quarter times (b) the Pro Rata GP Quarterly
Period, plus (II) the product of (x) such Seller’s
Aggregate Common Units Distribution Amount for the Current Quarter times (y)
the Pro Rata LP Unit Quarterly Period; less (ii) the
Aggregate Common Units Distribution Amount for the Current Quarter.


 


The following
terms used in this Section 4.8(b) shall have the definitions assigned to them:


 


“Aggregate Common Unit Distribution Amount,” with respect to a Seller,
means the aggregate amount of the distributions by the Partnership for such
calendar quarter in respect of the Common Units issued to such Seller pursuant
to this Agreement, regardless of whether such Seller subsequently sells or
otherwise disposes of any of such Common Units;


 


“Company Distribution” means the quarterly distribution payable by the
Company to its Members of the amounts distributed to the Company by the
Partnership each quarter in respect of the Company’s general partner interest
and incentive distribution rights pursuant to the terms and provisions of the
Partnership Agreement as in effect on the date of this Agreement;


 


“Hypothetical Company Distribution Amount,” with respect to a Seller,
means the product of (i) such Seller’s Pro Rata Interest times (ii) an amount equal to 10.3% of the
amount that would have been payable by the Partnership to the Company for such
calendar quarter in respect of the Company’s general partner interest and
incentive distribution rights pursuant to the terms and provisions of the
Partnership Agreement as in effect on the date of this Agreement. The
Hypothetical Company Distribution Amount for the Current Quarter
under clauses (1)(B) and (2) above, shall be calculated based on the total
number of outstanding Common Units outstanding immediately prior to the
Closing Date, and the actual distribution declared by the Partnership for that
Current Quarter;


 


”Pro Rata GP Quarterly Period,” is a fraction, the numerator of which
is the number of days in the period beginning from the first day of the
calendar quarter in which the Closing Date occurs and ending the day of the
Closing Date, and the denominator of which is the total number of days in the
calendar quarter in which the Closing Date occurs.


 


14

















 


“Pro Rata Interest,” with respect to a Seller, is a fraction, the
numerator of which is such Seller’s Class B Membership Interest percentage, as
set forth on Schedule 2.1, and the denominator of which is 10.3%.


 


“Pro Rata LP Unit Quarterly Period,” is a fraction, the numerator of
which is the number of days in the period beginning from the day after the
Closing Date and ending the last day of the calendar quarter in which the
Closing Date occurs, and the denominator of which is the total number of days
in the calendar quarter in which the Closing Date occurs.


 


Section 4.9                                      Legends.
The certificate or
certificates representing the Common Units issued pursuant to Section 2.1(b)
shall bear a legend that such shares have not been registered under the
Securities Act or any state securities.


 


ARTICLE V

CLOSING CONDITIONS


 


Section 5.1                                      Mutual
Conditions. The respective
obligation of the Buyer and each of the Sellers to consummate the contribution
of the Class B Membership Interests by the Sellers, and the issuance of the
Common Units and payment of cash by Buyer as contemplated in Section 2.1 above
shall be subject to the satisfaction on or prior to the Closing Date of each of
the following conditions (any or all of which may be waived by a particular
Party on behalf of itself in writing, in whole or in part, to the extent
permitted by applicable Law):


 


(a)                                  no
order, decree or injunction of any court or agency of competent jurisdiction
shall be in effect, and no Law shall have been enacted or adopted, that
enjoins, prohibits or makes illegal consummation of any of the transactions
contemplated hereby, and no action, proceeding or investigation by any
Governmental Authority with respect to this Agreement or the transactions
contemplated hereby shall be pending that seeks to restrain, enjoin, prohibit
or delay consummation of such transaction or to impose any material
restrictions or requirements thereon or Buyer or any Seller with respect
thereto; provided, however,
that prior to invoking this condition, each party shall have complied fully
with its obligations under Section 4.1;


 


(b)                                 all
filings required to be made prior to the Closing Date with, and all other
consents, approvals, permits and authorizations required to be obtained prior to
the Closing Date from, any Governmental Authority in connection with the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by the parties hereto or their Affiliates
shall have been made or obtained;


 


(c)                                  the
Buyer and Hydrocarbon shall have concurrently closed the Merger.


 


Section 5.2                                      Buyer’s
Conditions. The obligation
of Buyer to consummate the contribution of the Class B Membership Interests by
the Sellers, and the issuance of the Common Units and payment of cash by Buyer
as contemplated in Section 2.1 above shall be subject to the satisfaction on or
prior to the Closing Date of each of the following conditions with respect to
each Seller individually and not the Sellers jointly (any or all of which may
be waived by the Buyer in writing, in whole or in part, to the extent permitted
by applicable Law):


 


15





















 


(a)                                  the
representations and warranties of such Seller contained in this Agreement that
are qualified by materiality or Material Adverse Effect shall be true and
correct when made and as of the Closing Date and all other representations and
warranties shall be true and correct in all material respects when made and as
of the Closing Date, in each case as though made at and as of the Closing Date
(except that representations made as of a specific date shall be required to be
true and correct as of such date only);


 


(b)                                 such
Seller shall have performed and complied with the covenants and agreements
contained in this Agreement that are required to be performed and complied with
by such Seller on or prior to the Closing Date; and


 


(c)                                  such
Seller shall have delivered to Buyer all of the documents, certificates and
other instruments required to be delivered under, and otherwise complied with
the provisions of, Section 2.3.


 


Section 5.3                                      Sellers’
Conditions. The respective
obligation of each Seller to consummate the contribution of such Seller’s Class
B Membership Interest, and receive the Common Units and payment of cash by
Buyer as contemplated in Section 2.1 above shall be subject to the satisfaction
on or prior to the Closing Date of each of the following conditions (any or all
of which may be waived by the applicable Seller on behalf of such Seller in
writing, in whole or in part, to the extent permitted by applicable Law):


 


(a)                                  the
representations and warranties of Buyer contained in this Agreement that are
qualified by materiality or Material Adverse Effect shall be true and correct
when made and as of the Closing Date and all other representations and
warranties shall be true and correct in all material respects when made and as
of the Closing Date, in each case as though made at and as of the Closing Date
(except that representations made as of a specific date shall be required to be
true and correct as of such date only);


 


(b)                                 Buyer
shall have performed and complied with the covenants and agreements contained
in this Agreement that are required to be performed and complied with by Buyer
on or prior to the Closing Date; and


 


(c)                                  Buyer
shall have delivered to each Seller all of the documents, certificates and
other instruments required to be delivered under, and otherwise complied with
the provisions of, Section 2.4.


 


ARTICLE VI

TERMINATION


 


Section 6.1                                      Termination.
Notwithstanding anything
herein to the contrary, this Agreement may be terminated at any time prior to
Closing:


 


(a)                                  by
the mutual consent of Buyer and any Seller on behalf of such Seller in a
written instrument;


 


16





















 


(b)                                 by
Buyer, or any Seller on behalf of such Seller, after February 27, 2008, if the
Closing has not occurred by such date; provided that
as of such date the terminating party is not in default under this Agreement;


 


(c)                                  if
a statute, rule, order, decree or regulation shall have been enacted or
promulgated, or if any action shall have been taken by any Governmental
Authority of competent jurisdiction which permanently restrains, precludes,
enjoins or otherwise prohibits the consummation of the transactions
contemplated by this Agreement or makes the transactions contemplated by this
Agreement illegal;


 


(d)                                 by
either the Buyer, on the one hand, or any Seller (solely with respect to such
Seller) on the other hand, in writing without prejudice to other rights and
remedies which the terminating party or its Affiliates may have (provided the
terminating party and its Affiliates are not otherwise in material default or
breach of this Agreement, or have not failed or refused to close without
justification hereunder), if the other party (i) has materially failed to
perform its covenants or agreements contained herein required to be performed
on or prior to the Closing Date, or (ii) has materially breached any of its
representations or warranties contained herein; provided,
however, that in the case of clause (i)
or (ii), the defaulting party shall have a period of thirty (30) days following
written notice from the non-defaulting party to cure any breach of this
Agreement, if such breach is curable; or


 


(e)                                  automatically,
without any action on the part of Buyer or any Seller, at any time prior to
Closing, upon the public announcement of the termination of the Merger
Agreement.


 


Section 6.2                                      Effect
of Termination. If a party
terminates this Agreement as provided in Section 6.1 above, such
termination shall be without liability and none of the provisions of this
Agreement shall remain effective or enforceable, except for those contained in Section
4.4, this Section 6.2 and Article VIII. Notwithstanding
and in addition to the foregoing, in the event that this Agreement is
terminated pursuant to Section 6.1(d) or if any party is otherwise
in breach of this Agreement, (a) such breaching party or parties shall remain
liable for its or their obligations under Article VII and (b) such
termination shall not relieve such breaching party of any liability for a
willful breach of any covenant or agreement under this Agreement or be deemed a
waiver of any available remedy (including specific performance, if available)
for any such breach.


 


ARTICLE VII

INDEMNIFICATION


 


Section 7.1                                      Seller’s
Indemnity. Each Seller,
severally and not jointly, shall indemnify and hold harmless Buyer and its
respective officers, directors and employees (the “Buyer Indemnified Parties”)
from any and all claims, liabilities, damages, penalties, judgments,
assessments, losses, costs, expenses, including reasonable attorneys’ fees and
expenses, incurred by Buyer in seeking indemnification under this Agreement in
connection with the breach of a representation or warranty set forth in paragraphs
(a) through (i) of Section 3.1 by such Seller. The liability
of each Seller under this Section 7.1 shall not exceed 50% of the
Aggregate Consideration Value received by such Seller pursuant to this
Agreement.


 


17





















 


Section 7.2                                      Survival.
In the event of termination
of this Agreement pursuant to Section 6.1, all rights and obligations of the
parties hereto under this Agreement shall terminate, except the provisions of Section 4.4,
Section 6.2, this Article VII, and Article VIII shall
survive such termination; provided that nothing herein shall relieve any party
hereto from any liability for any material breach by such party of any of its
representations, warranties, covenants or agreements set forth in this
Agreement and all rights and remedies of a nonbreaching party under this
Agreement in the case of such a material breach, at law or in equity, shall be
preserved. In the event the Closing occurs, the representations and warranties
of Seller and Buyer contained in paragraphs (a) through (i) of Section
3.1 shall survive the Closing indefinitely. Other than the obligations
contained in paragraphs (a) through (i) of Section 3.1, Section
4.1, Section 4.2, Section 4.4, Section 4.6, Section
4.8(b), this Article VII and Article VIII of this Agreement,
none of the representations, warranties, agreements, covenants or obligations
in this Agreement or in any instrument delivered pursuant to this Agreement
shall survive the Closing.


 


Section 7.3                                      Enforcement
of this Agreement. The
parties hereto acknowledge and agree that an award of money damages would be
inadequate for any breach of this Agreement by any party and any such breach
would cause the non-breaching parties irreparable harm. Accordingly, the
parties hereto agree that, in the event of any breach or threatened breach of
this Agreement by one of the parties, the parties will also be entitled,
without the requirement of posting a bond or other security, to equitable
relief, including injunctive relief and specific performance, provided such
party is not in material default hereunder. Such remedies will not be the
exclusive remedies for any breach of this Agreement but will be in addition to
all other remedies available at law or equity to each of the parties.


 


Section 7.4                                      No
Waiver Relating to Claims for Fraud or Willful Misconduct. The liability of any party under
this Article VII shall be in addition to, and not exclusive of, any
other liability that such party may have at law or in equity based on such
party’s (a) fraudulent acts or omissions or (b) willful misconduct. None of the
provisions set forth in this Agreement shall be deemed to be a waiver by or
release of any party of any right or remedy that such party may have at law or
equity based on any other party’s fraudulent acts or omissions or willful
misconduct nor shall any such provisions limit, or be deemed to limit, (i) the
amounts of recovery sought or awarded in any such claim for fraud or willful
misconduct, (ii) the time period during which a claim for fraud or willful
misconduct may be brought, or (iii) the recourse that any such party may seek
against another party with respect to a claim for fraud or willful misconduct.


 


ARTICLE VIII

MISCELLANEOUS


 


Section 8.1                                      Notices.
All notices and demands
provided for hereunder shall be in writing and shall be given by regular mail,
registered or certified mail, return receipt requested, facsimile, air courier
guaranteeing overnight delivery, electronic mail or personal delivery to the
address listed below, in the case of Buyer, or the addresses listed in Schedule 8.1,
in the case of the respective Sellers, or to such other address as the Buyer or
a Seller may designate in writing. All notices and communications shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; when notice that the recipient has read the message, if sent via
electronic mail; upon actual receipt, if sent by registered or certified mail,
return receipt requested, or regular mail, if mailed; when receipt
acknowledged, if sent via facsimile; and upon 


 


18





















 


actual receipt when
delivered to an air courier guaranteeing overnight delivery; provided, that
copies to be delivered below or on such schedule shall not be required for
effective notice and shall not constitute notice.


 


If to Buyer,
addressed to:


 


MarkWest
Energy Partners, L.P.

1515 Arapahoe St.

Tower 2, Suite 700

Denver, CO  80202

Attention:  Board of Directors/Conflicts Committee

Telecopy:  (303) 662-8870


 


with a copy
to:


 


MarkWest
Energy Partners, L.P.

1515 Arapahoe St.

Tower 2, Suite 700

Denver, CO  80202

Attention:  General Counsel

Telecopy:  (303) 925-9308


 


with a copy
to:


 


Vinson &
Elkins L.L.P.

666 Fifth Avenue 26th Floor

New York, NY  10103-0040

Attention:  Michael J. Swidler

Telecopy:  (917) 849-5367


 


with a copy
to:


 


Andrews Kurth
LLP

1350 I Street, NW

Suite 1100

Washington, DC 20005

Attention:  Bill Cooper

Telecopy:  (202) 974-9537


 


Section 8.2                                      Waiver
and Amendment; Entire Agreement. Subject to compliance with applicable Law, prior to the Closing, any
provision of this Agreement may be (a) waived in writing by any of the Sellers
individually, or the Conflicts Committee, on behalf of the Buyer, or (b)
amended or modified as to any Seller individually at any time by an agreement
in writing between any such Seller individually, and the Conflicts Committee,
on behalf of the Buyer. Notwithstanding the foregoing, at any time prior to
Closing, upon the request of any two or more Sellers, the Buyer shall amend
this Agreement solely for the purpose of changing the amount of cash to be paid
and/or the number of Common Units to be issued to one or more of the Sellers as



 


19





















 


reflected in Schedule
2.1, as the requesting Sellers may request in writing; provided, that any such changes do not increase the total amount of
cash or the total number of Common Units to be issued by the Buyer pursuant to
Section 2.1; and provided, further, that any such amendment shall be
agreed to in writing by the Buyer and each of the affected Sellers.


 


This Agreement
and the agreements contemplated by this Agreement and the Merger Agreement (if
and to the extent a Party is a party thereto) represent the entire
understanding of the parties hereto with reference to the transactions
contemplated hereby and supersedes any and all other oral or written agreements
heretofore made.


 


Section 8.3                                      Binding
Effect and Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns. Except as contemplated
in Section 7.1, nothing in this Agreement, express or implied, is
intended to confer upon any person other than the Parties hereto and their
respective permitted successors and assigns, any rights, benefits or
obligations hereunder. No Party hereto may assign, transfer, dispose of or
otherwise alienate this Agreement or any of its rights, interests or
obligations under this Agreement (whether by operation of law or otherwise),
except in the case of a Seller that is a natural person, by probate to such
Seller’s estate; provided that Buyer may assign its rights under this Agreement
to an Affiliate of Buyer, but any such assignment shall not relieve Buyer of
its obligations hereunder. Any attempted assignment, transfer, disposition or
alienation in violation of this Agreement shall be null, void and ineffective.


 


Section 8.4                                      Severability.
If any term or other
provision of this Agreement is invalid, illegal, or incapable of being enforced
by any rule of applicable Law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated by
this Agreement are not affected in any manner materially adverse to any party
hereto. Upon such determination that any term or other provision is invalid,
illegal, or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties hereto as closely as possible in a mutually acceptable manner in order
that the transactions contemplated by this Agreement are consummated as
originally contemplated to the fullest extent possible.


 


Section 8.5                                      Headings.
The headings contained in
this Agreement are for reference purposes only and are not part of this
Agreement.


 


Section 8.6                                      Governing
Law; Jurisdiction. This
Agreement shall be governed by, and interpreted in accordance with, the laws of
the State of Delaware, without regard to the conflict of law principles thereof
(except to the extent that mandatory provisions of federal or Delaware law
govern). The parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall
be brought in any federal court located in the State of Colorado (or state
court if subject matter jurisdiction prevents maintaining an action in federal
court), and each of the Parties hereby irrevocably consents to the jurisdiction
of such courts (and of the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding in any such court 


 


20





















 


or that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party
agrees that service of process on such Party as provided in Section 8.1
shall be deemed effective service of process on such Party.


 


Section 8.7                                      Waiver
of Jury Trial. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 8.8                                      Negotiated
Agreement. The provisions of
this Agreement were negotiated by the parties hereto, and this Agreement shall
be deemed to have been drafted by all of the parties hereto.


 


Section 8.9                                      Counterparts.
This Agreement may be
executed in one or more counterparts, each of which shall be deemed to
constitute an original.


 


Section 8.10                                No
Act or Failure to Act. No
act or failure to act shall constitute a breach by Buyer of this Agreement
unless such act or failure to act is expressly approved by the Conflicts
Committee; provided, however, this provision shall not be
applicable in the case of DDC.


 


21





















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be signed by their
respective officers hereunto duly authorized, all as of the date first written
above.


 


 


	
   

  	
  MARKWEST ENERGY PARTNERS, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  MarkWest Energy GP, L.L.C., its general

  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ NANCY K. BUESE

  
	
   

  	
  Name:

  	
    Nancy K. Buese

  
	
   

  	
  Title:

  	
    SVP & Chief Financial
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  -OR-

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ FRANK M. SEMPLE

  
	
   

  	
  Name:

  	
    Frank M. Semple

  
	
   

  	
  Title:

  	
    President & Chief Executive
  Officer

  
				



 

















 


	
   

  	
  Frank M.
  Semple

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ FRANK M. SEMPLE

  	
   

  
	
   

  	
   

  



 

















 


	
   

  	
  John M.
  Fox

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ JOHN M. FOX

  	
   

  
	
   

  	
   

  



 

















 


	
   

  	
  Randy S.
  Nickerson

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ RANDY S. NICKERSON

  	
   

  
	
   

  	
   

  



 

















 


	
   

  	
  John C.
  Mollenkopf

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ JOHN C. MOLLENKOPF

  	
   

  



 

















 


	
   

  	
  Donald
  C. Heppermann

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ DONALD C. HEPPERMANN

  	
   

  



 

















 


	
   

  	
  Andrew
  L. Schroeder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ ANDREW L. SCHROEDER

  	
   

  



 
















 


	
   

  	
  Jan
  Kindrick

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ JAN KINDRICK

  	
   

  
	
   

  	
   

  
	
   

  	
  I, the spouse of Jan Kindrick, have read and hereby approve the
  foregoing Agreement. In consideration of Buyer granting my spouse the right
  to transfer and contribute his Class B Membership Interest to Buyer on the
  terms and for the consideration set forth in the Agreement, I hereby agree to
  be bound irrevocably by the Agreement and further agree that any community
  property or similar interest that I may have in the Class B Membership
  Interest transferred and assigned or the consideration received shall hereby
  be similarly bound. I hereby appoint my spouse as my attorney-in-fact with
  respect to any amendment or exercise of any right under the Agreement.

  
	
   

  	
   

  
	
   

  	
  Cindy
  Kindrick

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ CINDY KINDRICK

  	
   

  



 

















 


	
   

  	
  Kevin Kubat

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ KEVIN KUBAT

  	
   

  



 

















 


	
   

  	
  Nancy K.
  Buese

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ NANCY K. BUESE

  	
   

  



 

















 


	
   

  	
  C.
  Corwin Bromley

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ C. CORWIN BROMLEY

  	
   

  



 

















 


	
   

  	
  Denney
  & Denney Capital, LLLP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ ARTHUR J. DENNEY

  	
   

  
	
   

  	
   

  	
   Arthur J. Denney

  
	
   

  	
   

  	
   President and Chief Executive Officer

  



 

















 


EXHIBIT A


 


ASSIGNMENT


 


                                                 ,
a natural person residing in the state of                        
(the “Seller”), for good and valuable
consideration, receipt of which is hereby acknowledged, and pursuant to the
Amended and Restated Class B Membership Interest Contribution Agreement, dated
as of October 26, 2007, (the “Agreement”)
among the Seller, MarkWest Energy Partners, L.P., a Delaware limited
partnership (“Buyer”), and the other parties
named as Sellers therein, by these presents, contributes, assigns, transfers
and delivers, or will cause to be contributed, assigned, transferred and
delivered, to Buyer all of the Seller’s right, title and interest in and to
Seller’s            %
limited liability company membership interest (the “Subject
Interest”) in MarkWest Energy GP LLC, a Delaware limited liability
company, subject to and in accordance with the terms of the Agreement. All
capitalized terms not otherwise defined herein shall have the definitions given
to such terms in the Agreement.


 


TO HAVE AND TO
HOLD such Subject Interest, as a going concern, unto Buyer and its successors
and assigns to and for its or their use forever.


 


The contribution and assignment of the Subject Interest pursuant to
this Assignment is made free and clear of all Encumbrances.


 


The Seller and the Buyer agree to execute and
deliver such further agreements, instruments, documents of contribution and
assignment, and certificates, and take such further actions as may be reasonably
required to further evidence, confirm and effect the contribution and
assignment of the Subject Interest pursuant to this Assignment.


 


The Seller
hereby constitutes and appoints Buyer, its successors and assigns, the Seller’s
true and lawful attorney and attorneys, with full power of substitution, in the
Seller’s name and stead, by, on behalf of and for the benefit of Buyer, its
successors and assigns, to demand and receive the Subject Interest transferred
hereunder and to give receipts and release for and in respect of the same, and
any part thereof, and from time to time to institute and prosecute in the
Seller’s name, or otherwise, for the benefit of Buyer, its successors and
assigns, any and all proceedings at law, in equity or otherwise, which Buyer,
its successors or assigns, may deem proper for the collection or reduction to
possession of the Subject Interest transferred hereunder or for the collection
and enforcement of any claim or right of any kind hereby contributed, assigned,
transferred, and delivered, or intended so to be, and to do all acts and the
things in relation to the Subject Interest transferred hereunder which Buyer,
its successors or assigns, shall deem desirable, the Seller hereby declaring
that the foregoing powers are coupled with an interest and are and shall be
irrevocable by the Seller in any manner or for any reason whatsoever. Except as
set forth in the Purchase Agreement, this Assignment is made, and is accepted
by Buyer, without warranty of title, express, implied or statutory, and without
recourse.


 


This Assignment shall be
governed and construed in accordance with the substantive laws of the State of
Delaware without reference to principles of conflicts of law.


 


A-1

















 


EXHIBIT A


 


IN WITNESS
WHEREOF, the undersigned has executed this Assignment as of                           ,
200      .


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


A-2

















 


EXHIBIT B


 


SELLER CLOSING CERTIFICATE


 


The undersigned                         ,
a natural person residing in the state of
                            
(the “Seller”), hereby certifies to
MarkWest Energy Partners, L.P., a Delaware limited partnership (the “Buyer”), in accordance with the
requirements of Section 5.2(c) of the Amended and Restated Class B Membership
Interest Contribution Agreement, dated October 26, 2007 (the “Agreement”), by and between the
Seller, the Buyer and the other parties named as sellers therein, as follows:


 


1.             The representations
and warranties of the Seller set forth in the Agreement that are qualified by
materiality or Material Adverse Effect were true and correct as of the date of
the Agreement and as of the date hereof and all other representations and
warranties were true and correct in all material respects as of the date of the
Agreement and as of the date hereof (except that representations made as of a
specific date are true and correct as of such date).


 


2.             The Seller has
performed and complied with the covenants and agreements contained in the
Agreement that are required to be performed and complied with by such Seller on
or prior to the date hereof.


 


Capitalized terms not otherwise defined herein shall have those
meanings assigned to them in the Agreement.


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


 


B-1

















 


EXHIBIT C


 


FIRPTA CERTIFICATE


 


Under Section
1445 of the Internal Revenue Code of 1986, as amended, a corporation,
partnership, trust or estate must withhold tax with respect to certain
transfers of property if a holder of an interest in the entity is a foreign
person. To inform MarkWest Energy Partners, L.P. that withholding of tax is not
required upon my disposition of Class B Membership Interests in MarkWest Energy
GP LLC, I,                                     ,
hereby certify the following:


 


1.               I am not a
nonresident alien for purposes of U.S. income taxation;


 


2.               My U.S. taxpayer
identification number (Social Security Number) is                             ;


and


 


3.               My home address is


 


 


I understand
that this certification may be disclosed to the Internal Revenue Service by
MarkWest Energy Partners, L.P. and that any false statement I have made here
could be punished by fine, imprisonment, or both.


 


Under
penalties of perjury I declare that I have examined this certification and to
the best of my knowledge and belief it is true, correct and complete.


 


C-1

















 


EXHIBIT D


 


BUYER CLOSING CERTIFICATE


 


MarkWest Energy Partners, L.P., a Delaware limited partnership (the “Buyer”), hereby certifies to the
Sellers (as defined), in accordance with the requirements of Section 5.3(c) of
the Amended and Restated Class B Membership Interest Contribution Agreement,
dated October 26, 2007 (the “Agreement”),
by and between the Buyer and the other parties named as sellers therein (the “Sellers”), as follows:


 


1.             The representations
and warranties of the Buyer set forth in the Agreement that are qualified by
materiality or Material Adverse Effect were true and correct as of the date of
the Agreement and as of the date hereof and all other representations and
warranties were true and correct in all material respects as of the date of the
Agreement and as of the date hereof (except that representations made as of a
specific date are true and correct as of such date).


 


2.             The Buyer has
performed and complied with the covenants and agreements contained in the
Agreement that are required to be performed and complied with by the Buyer on
or prior to the date hereof.


 


Capitalized terms not otherwise defined herein shall have those
meanings assigned to them in the Agreement.


 


D-1

















 


EXHIBIT E


 


REGISTRATION RIGHTS AGREEMENT


 


E-1

















 


Schedule 2.1


	
  Holder

  	
   

  	
  Class B

  Membership

  Interest

  	
   

  	
  Cash to be received

  pursuant to

  Section 2.1(a)

  	
   

  	
  Common Units to

  be received

  pursuant to

  Section 2.1(b)

  	
   

  	
  Aggregate Value

  of Consideration

  	
   

  
	
  Frank M. Semple

  	
   

  	
  2.00

  	
  %

  	
  $

  	
  4,075,325

  	
   

  	
  183,794

  	
   

  	
  $

  	
  10,188,313

  	
   

  
	
  John M. Fox

  	
   

  	
  1.60

  	
  %

  	
  $

  	
  3,260,260

  	
   

  	
  147,035

  	
   

  	
  $

  	
  8,150,644

  	
   

  
	
  Randy S. Nickerson

  	
   

  	
  1.60

  	
  %

  	
  $

  	
  3,260,260

  	
   

  	
  147,035

  	
   

  	
  $

  	
  8,150,644

  	
   

  
	
  John C. Mollenkopf

  	
   

  	
  1.60

  	
  %

  	
  $

  	
  3,260,260

  	
   

  	
  147,035

  	
   

  	
  $

  	
  8,150,644

  	
   

  
	
  Denney & Denney Capital, LLLP

  	
   

  	
  1.60

  	
  %

  	
  $

  	
  3,260,260

  	
   

  	
  147,035

  	
   

  	
  $

  	
  8,150,644

  	
   

  
	
  Donald C. Heppermann

  	
   

  	
  1.00

  	
  %

  	
  $

  	
  2,037,663

  	
   

  	
  91,897

  	
   

  	
  $

  	
  5,094,157

  	
   

  
	
  Andrew L. Schroeder

  	
   

  	
  0.20

  	
  %

  	
  $

  	
  407,533

  	
   

  	
  18,379

  	
   

  	
  $

  	
  1,018,819

  	
   

  
	
  Jan Kindrick

  	
   

  	
  0.20

  	
  %

  	
  $

  	
  407,533

  	
   

  	
  18,379

  	
   

  	
  $

  	
  1,018,819

  	
   

  
	
  Kevin Kubat

  	
   

  	
  0.20

  	
  %

  	
  $

  	
  407,533

  	
   

  	
  18,379

  	
   

  	
  $

  	
  1,018,819

  	
   

  
	
  Nancy K. Buese

  	
   

  	
  0.20

  	
  %

  	
  $

  	
  407,533

  	
   

  	
  18,379

  	
   

  	
  $

  	
  1,018,819

  	
   

  
	
  C. Corwin Bromley

  	
   

  	
  0.10

  	
  %

  	
  $

  	
  203,766

  	
   

  	
  9,190

  	
   

  	
  $

  	
  509,425

  	
   

  
	
  TOTAL

  	
   

  	
  10.30

  	
  %

  	
  $

  	
  21,016,996

  	
   

  	
  946,146

  	
   

  	
  $

  	
  52,542,582

  	
   

  



 

















 


Schedule 8.1


 


Class B Members (“Sellers”)


 


 


NAME & ADDRESS


 


John M.
Fox


 


Donald C.
Heppermann


 


Randy S.
Nickerson


 


John C.
Mollenkopf


 


Frank M.
Semple


 


Denney
& Denney Capital, LLLP


 


Andrew L.
Schroeder


 


Jan
Kindrick


 


Kevin
Kubat


 


Nancy K.
Buese


 


C. Corwin
Bromley


 


Buyer Disclosure Schedule


 

















 


BUYER’S DISCLOSURE SCHEDULES


 


to


 


AMENDED AND RESTATED CLASS B MEMBERSHIP INTEREST

CONTRIBUTION AGREEMENT


 


 


                In connection with the Amended and Restated
Class B Membership Interest Contribution Agreement (the “Agreement”), dated as
of October 26, 2007, by and among MARKWEST ENERGY PARTNERS, L.P., a Delaware
limited partnership (the “Buyer”), and the sellers named therein (the
“Sellers”), Buyer hereby delivers the following disclosure schedules to its
covenants, representations and warranties given in the Agreement.  The section numbers in the Disclosure
Schedules correspond to the section numbers in the Agreement; provided, however,
that any information disclosed herein under any schedule, section number or
subsection shall be deemed to be disclosed and incorporated in any other
schedule, section or subsection of the Disclosure Schedules where such
disclosure would be appropriate and reasonably apparent.  Disclosure of any information or document
herein shall expressly not be deemed to constitute an admission by Buyer, or
otherwise imply, that any such matter rises to the level of a Material Adverse
Effect or is otherwise material for purposes of this Agreement or the
Disclosure Schedules.  Capitalized terms
used but not defined herein shall have the same meanings given them in the Agreement.


 

















 


SCHEDULE 3.2(g)



CAPITALIZATION


1.                                       Buyer
has reserved 120,650 units for issuance upon vesting of the phantom (notional)
common units (the “Phantom Units”) granted under the MarkWest Energy Partners,
L.P. Long-Term Incentive Plan (the “Plan”).


 


2.                                       Hydrocarbon
and Buyer are committing to implement a long term incentive plan if the Merger
is consummated, which Plan anticipates the issuance of Phantom Units, based on
time and performance vesting over a three year period, to its executive
officers and other key employees as determined by the Board of Directors of the
Company, in order to provide performance and retention incentives and be
competitive with market.  It is Buyer’s
expectation that the Plan will be amended to increase the number of units
authorized under the Plan.