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

  	
  6

  
	
   

  	
   

  	
   

  
	
  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

  
				



 


 


i





















 


	
  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 IVARTICLE 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
  Ener gy 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

















 


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


 


 


 


 


A-2

















 


 


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

  	
  %

  	
  $

  	
  4,080,977

  	
   

  	
  183,717

  	
   

  	
  $

  	
  10,202,443

  	
   

  
	
  John M. Fox

  	
   

  	
  1.60

  	
  %

  	
  $

  	
  3,264,782

  	
   

  	
  146,974

  	
   

  	
  $

  	
  8,161,954

  	
   

  
	
  Randy S. Nickerson

  	
   

  	
  1.60

  	
  %

  	
  $

  	
  3,264,782

  	
   

  	
  146,974

  	
   

  	
  $

  	
  8,161,954

  	
   

  
	
  John C. Mollenkopf

  	
   

  	
  1.60

  	
  %

  	
  $

  	
  3,264,782

  	
   

  	
  146,974

  	
   

  	
  $

  	
  8,161,954

  	
   

  
	
  Denney & Denney Capital, LLLP

  	
   

  	
  1.60

  	
  %

  	
  $

  	
  3,264,782

  	
   

  	
  146,974

  	
   

  	
  $

  	
  8,161,954

  	
   

  
	
  Donald C. Heppermann

  	
   

  	
  1.00

  	
  %

  	
  $

  	
  2,040,489

  	
   

  	
  91,859

  	
   

  	
  $

  	
  5,101,222

  	
   

  
	
  Andrew L. Schroeder

  	
   

  	
  0.20

  	
  %

  	
  $

  	
  408,098

  	
   

  	
  18,372

  	
   

  	
  $

  	
  1,020,244

  	
   

  
	
  Jan Kindrick

  	
   

  	
  0.20

  	
  %

  	
  $

  	
  408,098

  	
   

  	
  18,372

  	
   

  	
  $

  	
  1,020,244

  	
   

  
	
  Kevin Kubat

  	
   

  	
  0.20

  	
  %

  	
  $

  	
  408,098

  	
   

  	
  18,372

  	
   

  	
  $

  	
  1,020,244

  	
   

  
	
  Nancy K. Buese

  	
   

  	
  0.20

  	
  %

  	
  $

  	
  408,098

  	
   

  	
  18,372

  	
   

  	
  $

  	
  1,020,244

  	
   

  
	
  C. Corwin Bromley

  	
   

  	
  0.10

  	
  %

  	
  $

  	
  204,011

  	
   

  	
  9,186

  	
   

  	
  $

  	
  510,122

  	
   

  
	
  TOTAL

  	
   

  	
  10.30

  	
  %

  	
  $

  	
  21,016,996

  	
   

  	
  946,146

  	
   

  	
  $

  	
  52,542,582

  	
   

  



 


 


	
  Accepted and Agreed

  
	
   

  
	
  November
  13, 2007

  
	
   

  
	
  Initials

  



 


 


 

















 


 


Schedule
8.1


 


Class B
Members (“Sellers”)


 


	
  

  NAME & ADDRESS

  	
   

  	
  

  NAME & ADDRESS

  
	
   

  	
   

  	
   

  
	
  John M. Fox



  	
   

  	
  Andrew L. Schroeder



  
	
   

  	
   

  	
   

  
	
  Donald C. Heppermann



  	
   

  	
  Jan Kindrick



  
	
   

  	
   

  	
   

  
	
  Randy S. Nickerson



  	
   

  	
  Kevin Kubat



  
	
   

  	
   

  	
   

  
	
  John C. Mollenkopf



  	
   

  	
  Nancy K. Buese



  
	
   

  	
   

  	
   

  
	
  Frank M. Semple



  	
   

  	
  C. Corwin Bromley



  
	
   

  	
   

  	
   

  
	
  Denney & Denney Capital,
  LLLP



  	
   

  	
   

  



 

















 


Buyer
Disclosure Schedule


 


[See
attached]