Exhibit
10.1


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PURCHASE
  AND SALE AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  



 


 


By and Among


 


Enterprise Products Operating L.P.


(Seller)


 


and


 


MarkWest Energy Partners, L.P.


(Buyer)


 


 


Covering the Acquisition of a


 


Fifty
Percent Membership Interest in


Starfish
Pipeline Company, LLC


(Acquired
Interest)


 


 


January 24,
2005


 





















 


TABLE
OF CONTENTS


 


	
  1.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Purchase
  and Sale

  	
   

  
	
   

  	
  (a)

  	
  Sale of Acquired Interest

  	
   

  
	
   

  	
  (b)

  	
  Purchase
  Price.

  	
   

  
	
   

  	
  (c)

  	
  The
  Closing

  	
   

  
	
   

  	
  (d)

  	
  Deliveries at the Closing

  	
   

  
	
   

  	
  (e)

  	
  Post-Closing Adjustment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Representations and Warranties Concerning
  the Transaction

  	
   

  
	
   

  	
  (a)

  	
  Representations and Warranties Concerning
  the Seller

  	
   

  
	
   

  	
  (b)

  	
  Representations and Warranties of the Buyer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Representations and Warranties Concerning
  the Acquired Interest and the Starfish Companies

  	
   

  
	
   

  	
  (a)

  	
  Organization, Qualification, Company Power,
  Capitalization

  	
   

  
	
   

  	
  (b)

  	
  Noncontravention

  	
   

  
	
   

  	
  (c)

  	
  Brokers’
  Fees

  	
   

  
	
   

  	
  (d)

  	
  Title to Tangible Assets

  	
   

  
	
   

  	
  (e)

  	
  Financial
  Data.

  	
   

  
	
   

  	
  (f)

  	
  Material
  Change

  	
   

  
	
   

  	
  (g)

  	
  Legal
  Compliance

  	
   

  
	
   

  	
  (h)

  	
  Tax
  Matters

  	
   

  
	
   

  	
  (i)

  	
  Contracts

  	
   

  
	
   

  	
  (j)

  	
  Litigation

  	
   

  
	
   

  	
  (k)

  	
  Environmental Matters

  	
   

  
	
   

  	
  (l)

  	
  Permits

  	
   

  
	
   

  	
  (m)

  	
  Employee
  Matters

  	
   

  
	
   

  	
  (n)

  	
  Disclaimer of Representations and Warranties Concerning Personal
  Property, Equipment, and Fixtures

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Pre-Closing Covenants

  	
   

  
	
   

  	
  (a)

  	
  General

  	
   

  
	
   

  	
  (b)

  	
  Notices and Consents

  	
   

  
	
   

  	
  (c)

  	
  Full
  Access

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Post-Closing Covenants

  	
   

  
	
   

  	
  (a)

  	
  General

  	
   

  
	
   

  	
  (b)

  	
  Litigation Support

  	
   

  
	
   

  	
  (c)

  	
  Delivery and Retention of Records

  	
   

  
	
   

  	
  (d)

  	
  Governmental Approvals

  	
   

  



 


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  7.

  	
  Conditions to Obligation to Close

  	
   

  
	
   

  	
  (a)

  	
  Conditions to Obligation of the Buyer

  	
   

  
	
   

  	
  (b)

  	
  Conditions to Obligation of the Seller

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Remedies for Breaches of this Agreement

  	
   

  
	
   

  	
  (a)

  	
  Survival of Representations, Warranties and
  Certain Covenants

  	
   

  
	
   

  	
  (b)

  	
  Indemnification Provisions for Benefit of
  the Buyer

  	
   

  
	
   

  	
  (c)

  	
  Indemnification Provisions for Benefit of
  the Seller

  	
   

  
	
   

  	
  (d)

  	
  Matters Involving Third Parties

  	
   

  
	
   

  	
  (e)

  	
  Determination of Amount of Adverse
  Consequences

  	
   

  
	
   

  	
  (f)

  	
  Tax Treatment of Indemnity Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Tax Matters

  	
   

  
	
   

  	
  (a)

  	
  Post-Closing Tax Returns

  	
   

  
	
   

  	
  (b)

  	
  Pre-Closing Tax Returns

  	
   

  
	
   

  	
  (c)

  	
  Straddle
  Periods

  	
   

  
	
   

  	
  (d)

  	
  Claims
  for Refund

  	
   

  
	
   

  	
  (e)

  	
  Indemnification

  	
   

  
	
   

  	
  (f)

  	
  Cooperation on Tax Matters

  	
   

  
	
   

  	
  (g)

  	
  Certain
  Taxes

  	
   

  
	
   

  	
  (h)

  	
  Confidentiality

  	
   

  
	
   

  	
  (i)

  	
  Audits

  	
   

  
	
   

  	
  (j)

  	
  Control of Proceedings

  	
   

  
	
   

  	
  (k)

  	
  Powers of Attorney

  	
   

  
	
   

  	
  (l)

  	
  Remittance of Refunds

  	
   

  
	
   

  	
  (m)

  	
  Purchase Price Allocation

  	
   

  
	
   

  	
  (n)

  	
  Closing Tax Certificate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Termination

  	
   

  
	
   

  	
  (a)

  	
  Termination of Agreement

  	
   

  
	
   

  	
  (b)

  	
  Effect of Termination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  Miscellaneous

  	
   

  
	
   

  	
  (a)

  	
  Press Releases and Public Announcements

  	
   

  
	
   

  	
  (b)

  	
  No Third Party Beneficiaries

  	
   

  
	
   

  	
  (c)

  	
  Succession and Assignment

  	
   

  
	
   

  	
  (d)

  	
  Counterparts

  	
   

  
	
   

  	
  (e)

  	
  Headings

  	
   

  
	
   

  	
  (f)

  	
  Notices

  	
   

  
	
   

  	
  (g)

  	
  Governing
  Law

  	
   

  
	
   

  	
  (h)

  	
  Amendments and Waivers

  	
   

  
	
   

  	
  (i)

  	
  Severability

  	
   

  
	
   

  	
  (j)

  	
  Transaction Expenses

  	
   

  
	
   

  	
  (k)

  	
  Construction

  	
   

  
	
   

  	
  (l)

  	
  Incorporation of Exhibits and Schedules

  	
   

  
	
   

  	
  (m)

  	
  Entire
  Agreement

  	
   

  



 


ii





















 


	
   

  	
  (n)

  	
  FTC
  Authorization

  	
   

  



 


	
  Exhibit
  A:

  	
  Form
  of Assignment of Membership Interest

  	
   

  
	
  Schedule 1(b):

  	
  Seller Knowledge

  	
   

  
	
  Schedule 1(c):

  	
  Buyer Knowledge

  	
   

  
	
  Schedule 3(a)(iii):

  	
  Contraventions Relating to Seller

  	
   

  
	
  Schedule 3(b)(iii):

  	
  Contraventions Relating to Buyer

  	
   

  
	
  Schedule 4(b):

  	
  Contraventions Relating to Acquired Interest and Starfish Companies

  	
   

  
	
  Schedule 4(d)(ii):

  	
  Encumbrances of Subject Assets

  	
   

  
	
  Schedule 4(e):

  	
  Financial Data

  	
   

  
	
  Schedule 4(f):

  	
  Material Changes

  	
   

  
	
  Schedule 4(h):

  	
  Tax Matters

  	
   

  
	
  Schedule 4(j):

  	
  Litigation

  	
   

  
	
  Schedule 4(k):

  	
  Environmental

  	
   

  
	
  Schedule 4(l):

  	
  Government Permits

  	
   

  



 


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PURCHASE AND SALE AGREEMENT


 


THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) dated as of January 21,
2005 is by and among Enterprise Products Operating L.P., a Delaware limited
partnership (the “Seller”), and MarkWest Energy Partners, L.P., a Delaware
limited partnership (the “Buyer”).  The
Seller and the Buyer are sometimes referred to collectively herein as the “Parties”
and individually as a “Party.”


RECITALS


 


WHEREAS, the Seller owns a 50% membership interest (the “Acquired Interest”)  in Starfish
Pipeline Company, LLC, a Delaware limited liability company (“Starfish”), which owns a 100% membership interest
in each of Stingray Pipeline Company, L.L.C., a Delaware limited liability
company (“Stingray”), West Cameron Dehydration Company, L.L.C., a Delaware
limited liability company (“West Cameron”), and Triton Gathering, L.L.C. (“Triton”
together with Starfish, Stingray and West Cameron, the “Starfish Companies”);


 


WHEREAS, Shell Gas Transmission, LLC (“Shell”), owns the other 50%
membership interest in Starfish and is the operator of Starfish and the
Starfish Companies; and


 


WHEREAS, this Agreement contemplates a transaction in which the Buyer
will purchase, and the Seller will sell, all of the Seller’s rights, title and
interests in and to the Acquired Interest in return for the consideration
specified herein.


 


NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows:


 


1.                                       Definitions.


 


“Acquired Interest” has the meaning set forth in the Recitals.


 


“Adverse Consequences” means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and
fees, including court costs and attorneys’ fees and expenses, but excluding
punitive (except as provided in Section 8 of this Agreement), exemplary,
special or consequential damages.


 


“Adverse Event” means any breach of any representation, warranty
or covenant of the Seller contained herein (other than the covenants in Section 2
and the representations and warranties in Sections 3(a)).


 


“Affiliate” has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act.


 


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


 





















 


“Assignment of Membership Interest” means the assignment of
membership interest substantially  in
the form of Exhibit A attached  hereto.


 


“Balance Sheet Date” has the meaning set forth in Section 4(e).


 


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


 


“Buyer Indemnitees” means, collectively, the Buyer and its
Affiliates and their officers (or persons performing similar functions),
directors (or persons performing similar functions), employees, agents and
representatives.


 


 “Closing” has the meaning
set forth in Section 2(c).


 


“Closing Date” has the meaning set forth in Section 2(c).


 


“Code” means the Internal Revenue Code of 1986, as amended, including rules and regulations issued pursuant thereto and judicial
and administrative determinations applicable thereto or
any successor Law.


 


“Commitment” means (a) options, warrants, convertible
securities, exchangeable securities, subscription rights, conversion rights,
exchange rights or other contracts that could require a Person to issue any of
its Equity Interests or to sell any Equity Interests it owns in another Person;
(b) any other securities convertible into, exchangeable or exercisable for, or
representing the right to subscribe for any Equity Interest of a Person or
owned by a Person; (c) statutory pre-emptive rights or pre-emptive rights granted
under a Person’s Organizational Documents; and (d) stock appreciation rights,
phantom stock, profit participation, or other similar rights with respect to a
Person.


 


“Confidentiality Agreement” means the Confidentiality Agreement
between the Seller and the Buyer dated September 3, 2004.


 


“Deductible Amount” means an aggregate amount equal to 1% of the
Purchase Price.


 


“Easements” has the meaning set forth in Section 4(d).


 


“Effective Time” has the
meaning set forth in Section 2(a).


 


“Encumbrance” means any
mortgage, pledge, lien, charge, security interest, charging  order, option,
right of first refusal, preferential purchase right, encroachment, reservation, Easement or other interest of similar nature.


 


“Environmental Law” or “Environmental Laws” has the meaning set
forth in Section 4(k).


 


“Equity Interest” means (a) with respect to a corporation, any
and all shares of capital stock and any Commitments with respect thereto, (b)
with respect to a partnership, limited liability company, trust or similar
Person, any and all units, interests or other partnership/limited liability


 


2





















 


company interest, and any Commitments with
respect thereto, and (c) any other direct equity ownership or participation in
a Person.


 


“ERISA” means the Employee Retirement Income Security Act of
1974, as amended, all regulations and rules issued
thereunder, and all judicial or administrative determinations applicable
thereto.


 


“Financial Data” has the meaning set forth in Section 4(e).


 


“FTC” has the meaning set forth in Section 3(a)(ii)(A).


 


“FTC Order” means that certain ORDER TO HOLD
SEPARATE AND MAINTAIN ASSETS In The Matter
of Enterprise Products Partners L.P. et al, before the U.S. Federal
Trade Commission, docket number 041-0039.


 


“GAAP” means generally accepted accounting principles and practices in effect from time to time  in
the United States consistently applied throughout the periods involved.


 


“Governmental Authority” means the government of the  United States, any territory or possession of the United States, the District of
Columbia, any international, maritime, foreign government or body,
and any state, county, city or other political subdivision, agency, court or
instrumentality, thereof.


 


“Hazardous Substances” means all materials, substances and
wastes which are regulated under any Environmental Law or which may form the
basis for Liability under any Environmental Law.


 


“Indemnified Party” has the meaning set forth in Section 8(d).


 


“Indemnifying Party” has the meaning set forth in Section 8(d).


 


“Knowledge” means, in the case of the Seller, the knowledge the
individuals listed on Schedule 1(b) hereto have or should have had
pursuant to conducting prudent business practices of a non-operating 50%
interest in Starfish, considering and acknowledging (i) that the Seller has
never been the operator of any of the Starfish Companies or their assets and
(ii) the restrictions imposed by the FTC Order on Seller’s access to
information concerning Starfish and, in the case of the Buyer, the knowledge
the individuals listed on Schedule 1(c) hereto have or should have had
pursuant to conducting prudent business practices in the natural gas pipeline
industry.


 


“Laws” means any statute, code, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any applicable
Governmental Authority.


 


“Legal Right” means the legal authority and right (without risk
of Liability, criminal, civil or otherwise) (A) such that the contemplated
conduct would not, to the extent arising from, related to or in any way
connected with any of the Subject Assets, including, without limitation, any
contracts, agreements or arrangements related thereto, constitute a violation,
termination or breach of, or require any payment or termination under, any
contract or agreement, applicable Law,


 


3





















 


fiduciary,
quasi-fiduciary or similar duty or any other obligation of or by any (i) of the
Seller, or any of the Starfish Companies or (ii) Affiliate of any Person
described in (i) above and (B) subject tothe FTC Order, and the condition
therein that required the Seller to vest all its rights, duties, powers and
authority over the ongoing management of the Acquired Interest in a designated monitor
for the period beginning October 1, 2004, and continuing until Seller
divests of the Acquired Interest.


 


“Liability” or “Liabilities” shall mean any debt, obligation, claim, action,
cause of action, demand, assessment, loss, damage, liability, judgment,
settlement, penalty, cost, and expense.


 


“Material Adverse Effect”
means any condition, change or
effect that, individually or in the aggregate with other changes or effects, is
materially adverse to the business, operations and properties of the Starfish Companies or of the  Acquired Interest,
provided that in determining whether a Material Adverse Effect has occurred,
changes or effects relating to (i) the natural gas pipeline industry generally
(including, but not limited to, the price of natural gas and the costs
associated with the drilling and/or production of natural gas), (ii) United
States or global economic conditions or financial markets in general, or (iii)
the transactions contemplated by this Agreement, shall not be considered.


 


 “Ordinary Course of Business”
means the ordinary course of business consistent with the affected party’s past
custom and practice (including with respect to quantity and frequency).


 


“Organizational Documents” means the articles of incorporation,
certificate of incorporation, charter, bylaws, articles or certificate of
formation, regulations, operating agreement, certificate of limited
partnership, partnership agreement, and all other similar documents,
instruments or certificates executed, adopted, or filed in connection with the
creation, formation, or organization of a Person, including any amendments
thereto.


 


“Party” and “Parties” have the meanings set forth in the
preface.


 


“Permits” has the meaning set forth in Section 4(l).


 


“Permitted Encumbrances” means any of the following: (i) any
liens for Taxes and assessments not yet delinquent or, if delinquent, that are
being contested in good faith in the Ordinary Course of Business, which do not or would not have a Material Adverse Effect on the
Acquired Interest or the Starfish Companies and
that adequate reserve accounts have been established in accordance with GAAP;
(ii) any obligations or duties reserved to or vested in any municipality or
other Governmental Authority to regulate any Subject Asset in any manner including
all applicable Laws; (iii) mechanic’s, materialman’s, and similar liens not in excess of $50,000 individually and for which adequate reserve
accounts have been established in accordance with GAAP, and in the aggregate do
not have a Material Adverse Effect; (iv) any liens or
other Encumbrances created in the Ordinary Course of Business  pursuant
to operating, farm-out, construction, operation and maintenance, space lease or
similar agreements or the Organizational Documents of Starfish which individually or in the aggregate do not or would not
have a Material Adverse Effect on  the Acquired Interest or the Starfish Companies; and (v) easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
Ordinary Course of Business which, individually or  in
the aggregate, are not substantial in amount and which do not in


 


4





















 


any case have a Material Adverse
Effect on the
value or the use of the property or interest subject thereto as it is currently
being used or materially interfere with the ordinary conduct of the business.


 


“Person” means an individual or entity, including, without
limitation, any partnership, corporation, association, joint stock company,
trust, joint venture, limited liability company, unincorporated organization,
or Governmental Authority (or any department, agency or political subdivision
thereof).


 


“Post-Closing Tax Period” means any
Tax period beginning after the Closing Date.


 


“Post-Closing Tax Return” means any Tax Return that is required
to be filed by or with respect to the
Acquired Interest or the Starfish Companies with respect to a Post-Closing Tax
Period.


 


“Pre-Closing Tax Period” means any Tax
periods or portions thereof ending on or before the Closing Date.


 


“Pre-Closing Tax Return” means any Tax Return that is required
to be filed by or  with
respect to the Acquired Interest or the Starfish Companies with respect to a
Pre-Closing Tax Period.


 


“Prime Rate” means the prime rate reported under “Money Rates”
in The Wall
Street Journal at the time such rate must be determined under the
terms of this Agreement.


 


“Purchase Price” has the meaning set forth in Section 2(b).


 


“Records” has the meaning set forth in Section 6(c).


 


 “Release” means any exposure to Hazardous Substances any presence, emission,
spill, seepage, leak, escape, leaching, discharge, injection, pumping, pouring,
emptying, dumping, disposal, migration, or release of Hazardous Substances into
or upon the environment, including the air, soil, improvements, surface water,
groundwater, the sewer, septic system, storm drain, publicly owned treatment
works, or waste treatment, storage, or disposal systems.


 


“Remediation” means any
investigation, clean-up, removal action, remedial action, restoration, repair,
response action, corrective action, monitoring, sampling and analysis,
installation, reclamation, closure, or post-closure in connection with the
suspected, threatened or actual Release of Hazardous Substances.


 


“Retained Liabilities” has the meaning set forth in Section 2(a).


 


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


 


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


 


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


 


5





















 


“Seller Indemnitees” means, collectively, the Seller, and each
of its Affiliates (other than the Acquired Interest) and each of their
respective officers (or persons performing similar functions), directors (or
persons performing similar functions), employees, agents, and representatives.


 


“Shell” has the meaning set forth in the Recitals, and shall include its
successors and assigns, including its “Transferee” under the Starfish Limited
Liability Company Agreement.


 


“Starfish” has the meaning set
forth in the Recitals.


 


“Starfish Companies” means collectively Starfish, Triton, Stingray
and West Cameron, including the Subject Assets.


 


 “Starfish Limited Liability
Company Agreement” means the Amended and Restated Limited Liability
Company Agreement of Starfish Pipeline Company LLC dated as of April 1,
2002.


 


“Stingray” has the meaning set forth in the Recitals.


 


“Straddle Period” means a Tax period or year commencing before
and ending after the Effective Time.


 


“Subject Asset(s)” means any or all of the assets of the Starfish Companies, including, without limitation, real property,
leaseholds, equipment, fixtures or personal property.


 


“Subsidiary” means, with respect to any relevant Person, any
other Person that is (directly or indirectly) controlled and more than
90%-owned (directly or indirectly) by the relevant Person.


 


“Tax” or “Taxes” means any federal, state, local, or
foreign income, gross receipts, license, payroll, employment, excise,
severance, stamp, occupation, premium, windfall profits, environmental
(including taxes under Code §59A), custom duties, capital stock, franchise,
profits, withholding, social security (or similar excises), unemployment,
disability, ad valorem, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated, or other
tax of any kind whatsoever, including any interest, penalty or addition
thereto, whether disputed or not.


 


“Tax Records” means all Tax Returns and Tax-related work papers
relating to the Acquired
Interest, the Subject Assets and/or the Starfish Companies.


 


“Tax Return” means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.


 


“Third Party Claim” has the meaning set forth in Section 8(d).


 


“Transaction Documents” has the meaning set forth in Section 3(a)(ii).


 


6





















 


“Triton” has the meaning set
forth in the Recitals.


 


“West Cameron” has the meaning set
forth in the Recitals.


 


2.                                       Purchase and Sale.


 


(a)                                  Sale of Acquired Interest.
Subject to the terms and conditions of this Agreement, the Seller agrees to
sell to the Buyer and the Buyer agrees to purchase from the Seller, effective January 1,
2005 (the “Effective Time”), all of the Seller’s
right, title and interest in and to the Acquired Interest, which is not
evidenced by a certificate.  The
Buyer hereby assumes and agrees to pay, honor and discharge when due and payable
any Liability relating to the ownership, operation, administration or use of
the Acquired Interest.  Notwithstanding
the foregoing, and notwithstanding anything to the contrary contained in this
Agreement, the Buyer shall not assume or perform or discharge any of the
following Liabilities (the “Retained Liabilities”):


 


(i)                                     any Liability of the Seller arising out of or relating to the execution,
delivery or performance of any of the Transaction Documents;


 


(ii)                                  any Liability arising out of or relating to financing and debt
instruments of Seller, or arising out of or relating to all accounts or trade
payable incurred by Seller;


 


(b)                                 Purchase Price.  In consideration for the sale of the Acquired
Interest, the Buyer agrees to pay to the Seller at the Closing Forty-Two
Million One Hundred Thousand Dollars ($42,100,000.00) (the “Purchase Price”)
payable by wire transfer of immediately available funds to one or more bank
accounts designated in a written notice by the Seller to the Buyer at least one business day
prior to the Closing Date. 


 


(c)                                  The Closing.  The closing of the transactions contemplated
by this Agreement (the “Closing”) shall take place at the offices of the
Seller, commencing at 10:00 a.m. local time on the third business day following
the satisfaction or waiver of all conditions to the obligations of the Parties
to consummate the transactions contemplated hereby (other than conditions with
respect to actions each Party will take at the Closing itself), or such other
date as the Buyer and the Seller may mutually determine (the
“Closing Date”).


 


(d)           Deliveries at the Closing.  At the Closing, (i) the Seller will deliver
to the Buyer the various certificates, instruments, and documents referred to
in Sections 7(a) and 9(i), (ii) the Buyer will deliver to the Seller the
various certificates, instruments, and documents referred to in Section 7(b),
(iii) the Seller will execute and deliver to the Buyer an Assignment of
Membership Interest, and (iv) the Buyer will execute and deliver to the Seller
an Assignment of Membership Interest.


 


3.                                       Representations and
Warranties Concerning the Transaction.


 


(a)                                  Representations and
Warranties Concerning the Seller.  The Seller hereby represents and warrants to
the Buyer as follows:


 


7





















 


(i)                                     Organization of
the Seller.  The Seller is a limited
partnership, duly organized, validly existing, and in good standing under the
Laws of the state of Delaware with all requisite power and authority to carry
on its business as it is now conducted.


 


(ii)                                  Authorization of
Transaction. The Seller has full power and authority to enter into,  execute and deliver this Agreement and
the related documents (the “Transaction Documents”) to which it is a party and
to consummate and perform
its obligations hereunder and thereunder. The Transaction Documents to which it
is a party constitute the valid and legally binding obligation of the Seller,
enforceable against it in accordance with their terms and conditions, subject,
however, to the effects of bankruptcy, insolvency, reorganization, moratorium
or similar Laws affecting creditors’ rights generally, and to general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law). 
The Seller has obtained all necessary authorizations, consents,
approvals and/or waivers, in order to consummate and perform
its obligations under the Transaction Documents and need not give any notice
to, make any filing with, or obtain any authorization, consent, or approval of (A)  any Governmental Authority in order to
consummate the transactions contemplated by this Agreement, except for the
prior approval of the Federal Trade Commission (“FTC”) or (B) any Person (other than a Governmental Authority) in order to
consummate the transactions contemplated by this Agreement, including, without
limitation, the prior approval of Shell.


 


(iii)                               Noncontravention.  Subject to prior approval of the FTC and except as set forth in Schedule 3(a)(iii),
which scheduled items do not, individually or in the aggregate,
constitute or give rise to a Material Adverse Effect with respect to the
consummation of the transactions contemplated hereby, neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (A) violate any statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any Governmental Authority to which the Seller is subject or any provision
of its Organizational Documents or (B) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which the Seller is a party or by which it is bound or to which any of its
assets is subject, except for such violations, defaults, breaches, or other
occurrences that do not, individually or in the aggregate, have or give rise to a Material Adverse Effect on the
ability of the Seller to consummate the transactions contemplated by this
Agreement.  Neither the
execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, are subject to any preferential rights to
purchase under the Organizational Documents or other agreements of the Starfish
Companies.


 


(iv)                           Brokers’
Fees.  The Seller has no Liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions


 


8





















 


contemplated by
this Agreement for which the Buyer could become liable or obligated.


 


(v)                                 The Acquired Interest.  The Seller owns of record and beneficially
all of the Acquired Interest and has good and valid title free and clear of any restrictions of
transfer and Encumbrances, except as set forth in the Organizational
Documents of the Starfish Companies, and there are no
Commitments with respect to the Equity Interest of the Acquired Interest.  The Acquired Interest has been
duly authorized, and is validly issued and fully paid and non-assessable.  The Acquired Interest represents 50% of the
Equity Interest in Starfish. The Seller is not a party to
any voting trust, proxy, or other agreement or understanding with respect to
voting the Equity Interest of the Acquired Interest.  Consummation of the Transactions and
compliance with the Starfish Limited Liability Company Agreement to the extent
within the Parties’ reasonable control, shall result in Buyer becoming a full
Substituted Member under the Starfish Limited Liability Company Agreement, with
the full right to exercise the powers, rights, privileges, preferences and
restrictions afforded a Member thereunder and to receive a 50% share of allocations
and distributions thereunder pertaining to all operations of the Starfish
Companies from and after the Closing Date.


 


(b)                                 Representations and
Warranties of the Buyer.  The Buyer hereby represents and warrants to the
Seller as follows:


 


(i)                                     Organization of
the Buyer.  The Buyer is a limited
partnership duly organized, validly existing, and in good standing under the
Laws of the state of Delaware with all requisite power and authority to carry
on its business as it is now conducted.


 


(ii)                                  Authorization of
Transaction.  The Buyer has full
power and authority to execute and deliver the Transaction Documents to which
it is a party and to perform its obligations hereunder and thereunder.  The Transaction Documents to which the Buyer
is a party constitute the valid and legally binding obligation of the Buyer,
enforceable against the Buyer in accordance with their terms and conditions,
subject, however, to the effects of bankruptcy, insolvency, reorganization,
moratorium, or similar Laws affecting creditors’ rights generally and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The Buyer need not give any
notice to, make any filing with, or obtain any authorization, consent, or approval
of any Governmental Authority, except with respect to FTC approval, to
consummate the transactions contemplated by this Agreement.


 


(iii)                               Noncontravention.  Subject to the prior approvals of the FTC and except as set forth in Schedule 3(b)(iii), which scheduled items do not, individually
or in the aggregate, constitute or give rise to a Material Adverse Effect with
respect to the consummation of the transactions


 


9





















 


contemplated hereby, neither
the execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (A) violate any statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any Governmental Authority to which the Buyer is subject or any provision of
its Organizational Documents or (B) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice,
approval or consent under any agreement, contract, lease, license, instrument,
or other arrangement to which the Buyer is a party or by which it is bound or
to which any of its assets is subject, except for such violations, defaults, breaches,
or other occurrences that do not, individually or in the aggregate, have a
material adverse effect on the ability of the Buyer to consummate the
transactions contemplated by this Agreement.


 


(iv)                              Brokers’
Fees.  The Buyer has no Liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the Seller
could become liable or obligated.


 


(v)                                 Investment.  The Buyer is not acquiring the Acquired
Interest with a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act. 
The Buyer, together with its directors and executive officers and
advisors, is familiar with investments of the nature of the Acquired Interest,
understands that this investment involves substantial risks, has adequately
investigated the Acquired Interest and each of the Starfish Companies, and has
substantial knowledge and experience in financial and business matters such
that it is capable of evaluating, and has evaluated, the merits and risks
inherent in purchasing the Acquired Interest, and is able to bear the economic
risks of such investment.


 


(vi)                              Financing.  The Buyer has sufficient immediately
available funds to enable it to make payment of the Purchase Price at Closing
without encumbrance or delay and without causing the Buyer to become insolvent
or to declare insolvency.


 


4.                                       Representations and
Warranties Concerning the Acquired Interest and the Starfish
Companies.  The Seller hereby represents
and warrants to the Buyer as follows:


 


(a)                                  Organization, Qualification,
Company Power, Subsidiaries.  Each
of the Starfish Companies (x) is a limited liability company duly organized and
validly existing, under the Laws of the jurisdiction of its formation; (y) is
duly authorized to conduct business and is in good standing under the Laws of
each jurisdiction where such qualification is required, except where the lack
of such qualification would not have a Material Adverse Effect; and (z) has and
will have full power and authority to carry on the businesses in which it is
engaged and to own and use the properties owned and used by it. The copies of
the limited liability company agreements of each of the Starfish Companies
provided to the Buyer by the Seller are full and complete copies of such
agreements as in effect on the date of this Agreement.  Stingray, Triton and West
Cameron are the only Subsidiaries of Starfish and no Starfish Company directly
or indirectly owns beneficially or otherwise, any Equity Interest of another
Person, except another Starfish Company.


 


10





















 


(b)                                 Noncontravention.  Subject to
the prior approval of the FTC and except as set
forth in Schedule 4(b), which scheduled items do not, individually
or in the aggregate, constitute or give rise to a Material Adverse Effect with
respect to the Starfish Companies, neither the execution
and delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will (i) violate any statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of
any Governmental Authority to which the Acquired Interest or any of the
Starfish Companies are subject or any
provision of the Organizational Documents of the Acquired Interest or any of
the Starfish Companies or (ii) conflict with, result in a breach of, constitute
a default under, result in the acceleration of, create in any party the right
to accelerate, terminate, modify, or cancel, or require any notice or trigger
any rights to payment or other compensation under any agreement, contract,
lease, license, instrument, or other arrangement (x) to which the Acquired
Interest or any of the Starfish Companies  are a party or by which they are bound, or (y) to
which any Subject Asset (or result in the imposition of any Encumbrance upon
any of the Subject Assets), except where the violation, conflict, breach,
default, acceleration, termination, modification, cancellation, failure to give
notice, right to payment or other compensation, or Encumbrance would not have a
Material Adverse Effect, or would not materially adversely affect the ability
of the Seller to consummate the transactions contemplated by this
Agreement.  Except for the prior approval
of the FTC, neither the Acquired Interest nor any of the Starfish Companies
need give notice to, make any filing with, or obtain any authorization,
consent, or approval of any Governmental Authority in order for the Parties to
consummate the transactions contemplated by this Agreement, except where the
failure to give notice, to file, or to obtain any authorization, consent, or
approval would not have a Material Adverse Effect or would not materially
adversely affect the ability of the Seller to consummate the transactions
contemplated by this Agreement.


 


(c)                                  Brokers’ Fees.  Neither the Seller
nor any of the Starfish Companies has any Liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement.


 


(d)                                 Title to Tangible Assets.  The Subject Assets are free and clear of all
Encumbrances, except for (i) Permitted Encumbrances, (ii) the Encumbrances
disclosed in Schedule 4(d)(ii) and (iii)
Encumbrances which do not have a Material Adverse Effect.  The Encumbrances disclosed in Schedule 4(d)
(ii) do not, individually or in the aggregate, constitute or give rise to a
Material Adverse Effect.  To the Seller’s
Knowledge, all real property easements or rights of way
necessary for operation of pipelines and facilities included in the Subject
Assets (“Easements”) are valid and in force and effect.


 


(e)                                  Financial Data.  Schedule 4 (e) sets forth (A) an audited statement of income for the Starfish Companies for the twelve month period ended December 31, 2003; (B) an unaudited statement of income for the Starfish Companies for the ten month period ended October 31, 2004; (C) an audited balance sheet for the Starfish Companies as of December 31, 2003; (D) an unaudited balance sheet for the Starfish
Companies as of October 31, 2004
(the “Balance Sheet Date”); (E) an audited
statement of cash flow for the Starfish Companies
for the twelve month period ended December 31, 2003; and (F) an unaudited statement of cash flow for the Starfish Companies for the ten month period ended October 31, 2004 (collectively, the “Financial
Data”).  The Financial Data was prepared
in accordance with GAAP (except as expressly set forth therein, the absence of
footnotes (other than to the extent footnotes are included in Schedule 4(e)(i)), and


 


11





















 


normal
year-end adjustments) and fairly presents, in all material respects, the
financial position and income and cash flow for the Starfish Companies as of the dates and for
the periods indicated. The Financial Data does not omit to state any Liability
required to be stated therein in accordance with GAAP (except as expressly set
forth therein, the absence of footnotes  (other than to the extent footnotes
are included in Schedule 4(e)), and normal year-end adjustments).


 


(f)                                    Material Change.  To the Seller’s Knowledge, except as set
forth in Schedule 4(f), since the Balance Sheet Date:


 


(i)                                     there
has not been any Material Adverse Effect;


 


(ii)                                  the
Subject Assets have been operated and maintained in the Ordinary Course of
Business in compliance with the standards which the operator operates its other
offshore pipelines;


 


(iii)                               there
has not been any damage, destruction or loss to any material portion of the
Subject Assets, whether or not covered by insurance, that would have a Material
Adverse Effect;


 


(iv)                              there
has been no repurchase or redemption of
the Acquired Interest;


 


(v)                                 there has been no
merger or consolidation of the Acquired Interest or any of the Starfish
Companies  with any other Person or
acquisition by the Acquired Interest or any of the Starfish Companies of the
Equity Interest or business of any other Person, nor any purchase, sale or
lease of material assets included in the Subject Assets;


 


(vi)                              there
has been no borrowing of funds, agreement to borrow funds or guaranty by the
Acquired Interest or any of the Starfish Companies except in the Ordinary
Course of Business and in no event where the Acquired Interest was collateral for such
borrowing or guaranty;


 


(vii)                           (A) neither the Seller nor
the Starfish Companies has received any written
notices from any customers, licensors, suppliers, distributors or sales
representatives informing the Seller or the Starfish Companies
that there has been a change in the relationship with the Starfish Companies or affecting any of the Subject Assets,
except for changes that do not have a Material Adverse Effect, and (B) there
has been no change in the relationship of the Starfish Companies
or affecting any of the Subject Assets, with any customers, licensors,
suppliers, distributors or sales representatives, except for changes that do
not have a Material Adverse Effect; and


 


(viii)                        there
is no contract, commitment or agreement to do any of the foregoing, except as
expressly permitted hereby.


 


(g)                                 Legal Compliance.  To the Seller’s Knowledge, each of the
Starfish Companies  have
complied in all material respects with all applicable Laws of all Governmental
Authorities.


 


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The Seller
makes no representations or warranties in this Section 4(g) with respect
to Taxes or Environmental Laws, for which the sole representations and
warranties of the Seller are set forth in Sections 4(h) and 4(k), respectively.


 


(h)                                 Tax Matters.  To the Seller’s Knowledge, except as set
forth in Schedule 4(h) or as would not
have a Material Adverse Effect:


 


(i)                                     The Starfish Companies have filed, or have had filed on their
behalf, all Tax Returns that they were required to file, and such Tax Returns
are accurate and correct  in all
respects.  All Taxes due and payable (a) by any Person as a result of holding the Acquired Interest and interests in each
of the Starfish Companies and (b) by the Starfish Companies have been
paid.  There are no liens for Taxes with
respect to the Acquired Interest or any of the Starfish Companies;


 


(ii)                                  There is no dispute
or claim (including any claim for a deficiency in Taxes)
concerning any Tax Liability of any of the Starfish Acquired Interest and the
Starfish Companies claimed or
raised by any Governmental Authority
in writing, and Seller has no knowledge of any such
dispute or claim;


 


(iii)                               There are no outstanding
agreements or waivers extending the statutory period of limitations applicable
to any Tax Returns required to be filed by or with respect to the Acquired
Interest or any of the the Starfish Companies or any closing
agreement under Section 7121 of the Code or any similar provision of
state, local or foreign Tax law that relates to the Acquired Interest or the
Starfish Companies;


 


(iv)                              The Acquired Interest and
the Starfish Companies have not, at
anytime prior to the Closing Date, filed an election under Treasury Regulations
§ 301.7701-3 to be classified as a corporation for federal income Tax
purposes;


 


(v)                                 The Starfish Companies
(other than Starfish) since their inception have been and are disregarded as an
entity separate from Starfish for federal
income tax purposes under Treasury Regulations §§ 301.7701-2 and -3 and
any comparable provision of applicable state or local Tax law that permits such
treatment;


 


(vi)                              The Seller is not a foreign
person within the meaning of Section 1445 of the Code;


 


(vii)                           Neither the Acquired Interest nor any of the Starfish Companies are a
party to, is bound by or has any obligations under any Tax sharing agreement,
any Tax indemnification agreement;


 


(viii)                        The Starfish Companies each has collected and withheld all Taxes that
they each have been required to collect or withhold and timely submitted all
such collected and withheld Taxes to the appropriate Tax authorities.  Each Starfish Company has complied and is in
compliance with all applicable laws, rules and


 


13





















 


regulations relating to the payment, withholding and information reporting
requirements relating to any Taxes required to be collected or withheld.


 


(ix)                                No claim has ever been made by an authority in a jurisdiction where the
Starfish Companies have not filed Tax Returns that any of them is or may be
subject to taxation by that jurisdiction;


 


(x)                                   The Starfish Companies will not be required to include any item of
income in, or exclude any item of deduction from, taxable income for any
Post-Closing Tax Period as a result of any (a) change in accounting method for
any Pre-Closing Tax Period under Section 481 of the Code (or any analogous
or comparable provision of U.S. state or local or non-U.S. Tax law), (b)
written agreement with a Tax authority with regard to the Tax Liability of any
Starfish Company for any Pre-Closing Tax Period, (c) installment sale or open
transaction disposition made prior to the Effective Time or prior to the
Closing on the Closing Date, or (d) prepaid amount received on or prior to the
Effective Time.


 


(i)                                     Contracts.  To
the Seller’s Knowledge, the Acquired Interest and each of the Starfish Companies have performed all material obligations required to be performed by them to date under applicable contracts, and is
not in default under any material obligation of any such contracts, except when
such default would not have a Material Adverse Affect.  To the Seller’s Knowledge, no other party to
any such contract is in default thereunder.


 


(j)                                     Litigation.  To the Seller’s Knowledge Schedule 4(j)  sets forth each instance in which the
Acquired Interest, any of the Starfish Companies or any of the Subject Assets
(i) are subject to any outstanding injunction, judgment, order, decree, ruling,
or charge or (ii) are a party to or the subject of any action, suit,
proceeding, hearing, or investigation of, in, or before any court or quasi-judicial
or administrative agency of any federal, state, local, or foreign jurisdiction,
or is the subject of any pending or, threatened claim, demand, or notice of
violation or Liability from any Person except where any of the foregoing would
not have a Material Adverse Effect.  


 


(k)                                  Environmental Matters.   To the Seller’s knowledge:


 


(i)                                     The Acquired
Interest and each of the Starfish Companies, except as set forth in Schedule 4(k)(i),  have complied, and they and their
operations and facilities  are in compliance with and have no Liability under any and  all applicable
maritime, federal, state and local Laws (including common law) relating to the
protection of human health or the environment, including,
without limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. section 9601, et seq. (“CERCLA”),
the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. section 6901,
et seq., the Clean Air Act, as amended, 42 U.S.C. section 7401, et seq.,
the Federal Water Pollution Control Act, as amended, 33 U.S.C. section 1251,
et seq., the


 


14





















 


Occupational Safety and Health Act, as amended, and the Oil Pollution Act of 1990, 33
U.S.C. section 2701, et seq (collectively,
the “Environmental Laws” and individually an “Environmental Law”), except for
such instances of noncompliance or Liability, that
individually or in the aggregate do not, and will not, have a Material Adverse
Effect;


 


(ii)                                  (A) Except as set forth in Schedule 4(k)(ii)(A),
the Acquired Interest and each of the Starfish Companies have obtained all
permits, licenses, franchises, authorities, consents, and approvals, and has
made all filings and maintained all material information, documentation, and
records, as necessary under applicable Environmental Laws for the operation of
its assets and business as  presently
conducted, and; (B) except as set forth in Schedule 4(k)(ii)(B),
all such permits, licenses, franchises, authorities, consents,
approvals, and filings remain in full force and effect; (C) except as set forth in Schedule 4(k)(ii)(C), none of such
permits require notice, consent or other action in connection with the
consummation of the transaction contemplated by this Agreement, and (D) except
as set forth in Schedule 4(k)(ii)(D), no event has occurred that permits,
or upon the giving of notice or the lapse of time or otherwise would permit,
revocation or termination of any such permit, except for
such matters that individually or in the aggregate do not, and will not, have a
Material Adverse Effect;


 


(iii)                               Except as do not, and
will not, have a Material Adverse Effect, and except as set forth
in Schedule 4(k)(iii), (A) there are no pending or
threatened claims, demands, orders, information requests from
governmental authorities, actions, administrative
proceedings or lawsuits against the Acquired Interest or any of the Starfish Companies, and (y) neither the Seller nor any of the Starfish Companies nor the Subject Assets are subject to
any outstanding injunction, judgment, order, decree or ruling, under any
Environmental Laws and there is no basis for such claims, demands, actions,
proceedings or lawsuits;


 


(iv)                              Except as set forth in Schedule 4(k)(iv), none
of the real property presently or formerly owned or operated by the Acquired
Interest or any of the Starfish Companies
is listed on the National Priorities List, CERCLIS
or any similar state list of sites requiring Remediation;


 


(v)                                 Except as set forth in Schedule 4(k)(v),
the Seller
has not received any written notice that the Acquired Interest or any of the
Starfish Companies is or may be
a potentially responsible party under CERCLA or any analogous state law in
connection with any site actually or allegedly containing or used for the
treatment, storage or disposal of Hazardous Substances;


 


(vi)                              Except as set forth in Schedule 4(k)(vi),
neither the Acquired Interest nor any of the Starfish
Companies is or will be subject to any Liability,
arising from any facts, circumstances or conditions, existing, initiated or
occurring prior to the Closing, including but not limited to any Release or
threatened Release


 


15





















 


of any Hazardous
Substances, except for such Liabilities that individually or in the aggregate
do not, and will not, have a Material Adverse Effect;


 


(vii)                           Except as set forth in Schedule 4(k)(vii),
none of the Starfish Companies has arranged, by contract, agreement or
otherwise, for the treatment, storage or disposal of Hazardous Substances at
any location such that they are or will be liable for the Remediation of such
location, except for such Liabilities that individually or in the aggregate do
not and will not have a Material Adverse Effect; and


 


(viii)                        Seller has furnished to Buyer copies of all environmental assessments,
reports, audits and other documents in its possession or under its control that
relate to the real property currently or formerly owned, operated or leased by
the Acquired Interest or any of the Starfish Companies or compliance with
Environmental Laws by any of the Starfish Companies.


 


The Seller makes no representation or warranty
regarding any compliance or failure to comply with, or any actual or contingent
liability under, any Environmental Law, except as expressly set forth in this Section 4(k).


 


(l)                                     Permits.  Except as set forth in Schedule 4(l),
each the Acquired Interest and each of the Starfish Companies owns or holds all
franchises, licenses, permits, consents, approvals, and authorizations of all
Governmental Authorities necessary for the conduct of its business
(collectively, the “Permits”), except for Permits whose absence would not have
a Material Adverse Effect.  Each Permit
is in full force and effect, and the Acquired Interest and each of the Starfish
Companies is in compliance with all obligations with respect to each Permit,
except where the failure to be in full force and effect or to be in compliance
would not have a Material Adverse Effect, and no event has occurred that
permits, or upon the giving of notice or the lapse of time or otherwise would
permit, revocation or termination of any Permit except such as would not have a
Material Adverse Effect. 


 


(m)                               Employee Matters.  Neither
the Acquired Interest nor any of the Starfish Companies has any employees.


 


(n)                                 Infringement. To the Seller’s
Knowledge, none of the Starfish Companies are infringing or received any notice
or other communication (in writing or otherwise) of any actual, alleged,
possible or potential infringement of, any proprietary asset owned or used by
any other Person, except such as would not have a Material Adverse Effect.  To the Seller’s Knowledge, no other Person is
infringing, an no proprietary asset owned or used by
any other Person infringes or conflicts with, any proprietary asset owned or
used by the Starfish Companies.


 


(o)                                 Condition
and Sufficiency of Assets.  To
the actual knowledge of Seller, the Subject Assets are in good operating
condition and repair, subject to ordinary wear and tear, and have been maintained
in accordance with standard industry practice.


 


16





















 


(p)                                 Disclaimer of
Representations and Warranties Concerning Personal Property,
Equipment, and Fixtures.  The Buyer
acknowledges that (a) it has had and pursuant to this Agreement will have
before Closing access to the Seller, to the Acquired Interest and to each of
the Starfish Companies and the Subject Assets, and the officers and employees
of the Seller and (b) in making the decision to enter into this Agreement and
consummate the transactions contemplated hereby, the Buyer has relied solely on
the basis of its own independent investigation and upon the express
representations, warranties, covenants, and agreements set forth in this
Agreement.  Accordingly, the Buyer
acknowledges that, except as expressly set forth in this Agreement, the Seller
has not made, and THE SELLER MAKES NO AND DISCLAIMS ANY REPRESENTATION OR
WARRANTY, WHETHER EXPRESS OR IMPLIED, AND WHETHER BY COMMON LAW, STATUTE, OR
OTHERWISE, REGARDING (i) THE QUALITY, CONDITION, OR OPERABILITY OF ANY PERSONAL
PROPERTY, EQUIPMENT, OR FIXTURES, (ii) ITS MERCHANTABILITY, (iii) ITS FITNESS
FOR ANY PARTICULAR PURPOSE, (iv) ITS CONFORMITY TO MODELS, SAMPLES OF MATERIALS
OR MANUFACTURER DESIGN, OR (v) AS TO WHETHER ANY SUBJECT ASSET IS YEAR 2000
COMPLIANT,  AND ALL PERSONAL PROPERTY AND
EQUIPMENT IS DELIVERED “AS IS, WHERE IS” IN THE CONDITION IN WHICH THE SAME
EXISTS.


 


5.                                       Pre-Closing Covenants. The Parties
agree as follows with respect to the period between the date of this Agreement
and the Closing:


 


(a)                                  General. 
Each Party will use its best efforts to take all action and to do all
things necessary, proper, or advisable in order to consummate and make
effective the transactions contemplated by this Agreement.


 


(b)                                 Notices and Consents.  Each of the Parties will give any notices to,
make any filings with, and use its best efforts to obtain any authorizations,
consents, and approvals of Governmental Authorities it is required to obtain in
connection with the matters referred to in Section 3(a)(ii), 3(a)(iii),
3(b)(iii), 4(b)(i) and (4)(k)(ii)(C) so as to permit the Closing to occur not
later than 5:00 p.m. (Houston time) on April 15, 2005. Without limiting
the generality of the foregoing, the Buyer and the Seller agree to work in good
faith with each other and the FTC to consummate the transactions contemplated
hereby as soon as reasonably practicable, but in no event later than 5:00 p.m.
(Houston time) on April 15, 2005; provided, that, notwithstanding anything
to the contrary contained herein, this sentence shall not obligate the Buyer to
divest or hold separate any assets or enter into any agreement not contemplated
by this Agreement or modify this Agreement or any of the Transaction Documents
in order to obtain FTC approval.


 


(c)                                  Full Access.  The Seller, to the extent within the Seller’s
Legal Right, will permit and will cause the Acquired Interest and each of the
Starfish Companies to permit representatives of the Buyer to have full access
at all reasonable times, and in a manner so as not to interfere with the normal
business operations of the Acquired Interest or the Starfish Companies, to all
premises, properties, personnel, books, records (including Tax records),
contracts, and documents of or pertaining to the Acquired Interest, each of the
Starfish Companies and the Subject Assets. Any information obtained by the
Buyer, its employees, representatives, consultants, attorneys, agents, lenders
and other advisors under this Section 5(c) shall be subject to the


 


17





















 


confidentiality and use restrictions
contained in the Confidentiality Agreement. 
All “due diligence” activities of the Buyer shall be conducted in
accordance with applicable Laws and the Buyer shall indemnify the Seller and
its Affiliates from and against all personal injury or property damages
incurred as a result of any Buyer’s negligence in connection with such
activities.


 


(d)                                 Governmental Approvals. If the FTC notifies the Seller (x) that the Buyer is not an
acceptable purchaser of any part, or all, of the Acquired Interest or the
Starfish Companies or (y) that the manner in which (i) the sale of the Acquired
Interest or (ii) the transactions contemplated hereby are to be accomplished, is
not acceptable to the FTC, then either Party, after such Party has fulfilled
its obligations under and is in conformity with Section 5(b) above, shall
have the unilateral right to immediately terminate this Agreement.


 


6.                                       Post-Closing Covenants.  The Parties agree as follows:


 


(a)                                  General. 
In case at any time after the Closing any further action is necessary to
carry out the purposes of this Agreement, each of the Parties will take such
further action (including the execution and delivery of such further instruments
and documents) as the other Parties reasonably may request, all at the sole
cost and expense of the requesting Party (unless the requesting Party is
entitled to indemnification thereof under Section 8).


 


(b)                                 Litigation Support.  In the event and for so long as any Party
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or before the Effective
Time involving the Acquired Interest, any of the Starfish Companies or the
Subject Assets, the other Party shall cooperate with the contesting or
defending Party and its counsel in the defense or contest, make available its
personnel, and provide such testimony and access to its books and records
(other than books and records which are subject to privilege or to
confidentiality restrictions) as shall be necessary in connection with the
defense or contest, all at the sole cost and expense of the contesting or
defending Party (unless the contesting or defending Party is entitled to
indemnification thereof under Section 8).


 


(c)                                  Delivery and Retention of
Records.  On or before the
Closing Date, the Seller will deliver or cause to be delivered to the Buyer, at
the Buyer’s request, copies of Tax Records, which are relevant to Post-Closing
Tax Periods and all other files, books, records, information and data relating
to the Acquired Interest, each of the Starfish Companies and the Subject Assets
(other than Tax Records) that are in the possession or control of the Seller or
any of its Affiliates (the “Records”). 
The Buyer agrees to (i) hold the Records and not to destroy or dispose
of any portion thereof for a period of time as may be required by Law, and (ii)
at any time, upon reasonable request, provide the Seller with copies of, or
full access to, any of the Records, and access to the Buyer’s employees to the
extent that such access may be requested for any legitimate purpose at no cost
to the Seller (other than for reasonable out-of-pocket expenses); provided,
that such access will not be construed to require the disclosure of Records
that would cause the waiver of any attorney-client, work-product or like
privilege; provided further, that in the event of any litigation nothing herein
shall limit any Party’s rights of discovery under applicable Law. The Buyer
shall


 


18





















 


have the same
rights, and the Seller shall have the same obligations, as are set forth in
this Section 6(c) with respect to any copies of the Records retained by
the Seller and access to the Seller’s (and its applicable Affiliate’s)
employees; provided, that such access will not be construed to require the
disclosure of Records that would cause the waiver of any attorney-client, work
product, or like privilege; provided further, that in the event of any
litigation nothing herein shall limit any Party’s rights of discovery under
applicable Law.


 


7.                                       Conditions to Obligation to
Close.


 


(a)                                  Conditions to Obligation of the
Buyer.  The obligation of
the Buyer to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:


 


(i)                                     the
representations and warranties of the Seller contained in Section 3(a) and
Section 4 shall be true and correct in all material respects when made and
at Closing (except for those which refer to a specific date, which shall be
true and correct as of such date);


 


(ii)                                  the
Seller shall have obtained all consents and approvals listed on Schedule 5(b);


 


(iii)                               the
Seller shall have performed and complied with all of its covenants hereunder in
all material respects through the Closing;


 


(iv)                              there shall not be any
injunction, judgment, order, decree, ruling, or charge in effect preventing
consummation of any of the transactions contemplated by this Agreement; and


 


(v)                                 the
Seller shall have delivered to the Buyer a certificate to the effect that each
of the conditions specified in Subsections 7(a)(i)-(iv) is satisfied in all
respects.


 


The Buyer may waive any condition specified in this Section 7(a)
if it executes a writing so stating at or before the Closing.


 


(b)                                 Conditions to Obligation of
the Seller.  The obligation of
the Seller to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:


 


(i)                                     the
representations and warranties of the Buyer contained in Section 3(b)
shall be true and correct in all material respects when made and at Closing
(except for those which refer to a specific date, which shall be true and
correct as of such date);


 


(ii)                                  the
Buyer shall have performed and complied with all of its covenants hereunder in
all material respects through the Closing;


 


19





















 


(iii)                               there shall not be any
injunction, judgment, order, decree, ruling, or charge in effect preventing
consummation of any of the transactions contemplated by this Agreement;


 


(iv)                              the Buyer shall have
delivered to the Seller a certificate to the effect that each of the conditions
specified in Subsections 7(b)(i)-(iii) is satisfied in all respects; and


 


(v)                                 referencingthe
FTC Order, the Federal Trade Commission shall have approved (i) Buyer as a
Pipeline Acquirer (as such term is defined in the Decision and Order) and (ii)
this Agreement as a Pipeline Divestiture Agreement (as such term is defined in
the Decision and Order).


 


The Seller may waive any condition specified in this Section 7(b)
if it executes a writing so stating at or before the Closing.


 


8.                                       Remedies for Breaches of
this Agreement.


 


(a)                                  Survival of Representations,
Warranties and Certain Covenants.


 


(i) All of the representations and warranties of the Seller contained
in Sections 3 and 4 and the certificates delivered at closing pursuant to Section 7(a)(v) (other than Sections 3(a)(v), 4(h) and 4(k)) shall survive the Closing
hereunder for a period of 12
months after the Closing Date;


 


(ii) the representations and warranties in Section 4(h)4(h) shall survive the Closing with respect
to any given claim that would constitute a breach of such representation or warranty
until the expiration of the statute of limitations applicable to the underlying
Tax matter giving rise to that claim;


 


(iii) the representations and warranties in Section 3(a)(v)
shall survive the Closing forever; and


 


(iv) the
representations and warranties in Section 4(k) shall survive the Closing
for a period of 24  months after
the Closing Date.  The representations
and warranties of the Buyer contained in Section 3 shall survive the
Closing for a period of 12  months
after the Closing Date.The covenants contained in Section 6 of this
Agreement and all other covenants contained in this Agreement to be performed
after the Closing shall survive the Closing indefinitely.


 


(b)                                 Indemnification Provisions
for Benefit of the Buyer.


 


(i)                                     In the event: (x)
the Seller breaches any of its representations, warranties, or covenants
contained herein (other than the covenants in Sections 2 and 6 and any other
covenants to be performed after the Closing, and the representations and
warranties in Section 3(a)); (y) there is an applicable survival period
pursuant to Section 8(a); and (z) the Buyer make a written claim for
indemnification against the Seller pursuant to Section 11(f) within such
survival


 


20





















 


period, then the Seller agrees to indemnify the Buyer Indemnitees from
and against any Adverse Consequences by reason of all Adverse Events to the
extent they are the result of, arise out of or are  caused
proximately by the breach and suffered by such Buyer Indemnitees; provided,
that, except in the case of fraud, the Seller shall not have any obligation to
indemnify any Buyer Indemnitees from and against any such Adverse Consequences
by reason of all Adverse Events (A) until the Buyer Indemnitees, in the
aggregate, have suffered Adverse Consequences by reason of all Adverse Events
in excess of the Deductible Amount (after which point the Seller will be
obligated only to indemnify the Buyer Indemnitees from and against further such
Adverse Consequences) or thereafter (B) to the extent the Adverse Consequences
the Buyer Indemnitees, in the aggregate, have suffered by reason of all Adverse
Events exceeds an aggregate ceiling amount equal to $10,000,000.00 (after which
point the Seller will have no obligation to indemnify the Buyer Indemnitees
from and against further such Adverse Consequences).


 


(ii)                                  In the event: (x) the
Seller breaches any of its covenants in Sections 2 or 6 or any other covenants
to be performed after the Closing, or any of its representations and warranties
in Sections 3(a); (y) there is an applicable survival period pursuant to Section 8(a)
(which, as to the covenants in Sections 2 and 6 and any other covenants to be
performed after the Closing, or as to any of the representations and warranties
in Sections 3(a)(v) shall be forever); and (z) the Buyer make a written claim
for indemnification against the Seller pursuant to Section 11(f) within
such survival period, then the Seller agrees to indemnify the Buyer Indemnitees
from and against the entirety of any Adverse Consequences caused proximately by
the breach and suffered by the Buyer Indemnitees.


 


(iii)                               The Seller will
indemnify and hold harmless the Buyer Indemnitees (including the Acquired
Interest and the Starfish Companies) against joint and several Liability with
the Seller arising by reason of the Acquired Interest or any of the Starfish
Companies having been a member of a “controlled group of partnerships,” under “common
control” or a member of an “affiliated service group” with the Seller within the
meaning of Sections 414(c) or (m) of the Code, or having been required to be
aggregated with the Seller under Section 414(o) of the Code, or having
been under “common control” with the Seller, within the meaning of Section 4001(a)(14)
of ERISA.


 


(iv)                              To the extent any Buyer
Indemnitee becomes liable to, and is ordered (pursuant to a final,
non-appealable order of a court of competent jurisdiction) to  pay to any third party, punitive damages
proximately caused by a material breach by the Seller of any representation,
warranty or covenant contained in this Agreement, then such punitive damages
shall be deemed actual damages to such Buyer Indemnitee and included within the
definition of Adverse Consequences for purposes of this Section 8.


 


(v)                                 Except for the rights
of indemnification provided in Sections 8 and 9(e), the Buyer hereby waives any
claim or cause of action pursuant to common or


 


21





















 


statutory law or
otherwise against the Seller arising from any breach by the Seller of any of
its representations, warranties or covenants under this Agreement or the
transactions contemplated hereby.


 


(c)                                  Indemnification Provisions
for Benefit of the Seller.


 


(i)                                     In the event: (x)
the Buyer breaches any of its representations, warranties and covenants
contained herein; (y) there is an applicable survival period pursuant to Section 8(a);
and (z) any Seller makes a written claim for indemnification against any Buyer
pursuant to Section 11(f) within such survival period, the Buyer agrees to
indemnify the Seller Indemnitees from and against the entirety of any Adverse
Consequences caused proximately by the breach and suffered by such Seller
Indemnitees.


 


(ii)                                  Except for those
Liabilities for which the Seller has agreed to indemnify the Buyer Indemnitees
pursuant to Section 8(b), including, without
limitation, the Retained Liabilities, the Buyer agrees to
indemnify the Seller Indemnitees from and against the entirety of any Adverse
Consequences relating in any way to the Acquired Interest, any of the Starfish
Companies, the Subject Assets, or the ownership and operation of the Acquired
Interest, any of the Starfish Companies, arising after the Effective Time.


 


(iii)                               To the extent any Seller
Indemnitee becomes liable to, and is ordered (pursuant to a final,
non-appealable order of a court of competent jurisdiction) to pay to any third
party, punitive damages proximately caused by a material breach by any Buyer of
any representation, warranty or covenant contained in this Agreement, then such
punitive damages shall be deemed actual damages to such Seller Indemnitee and
included within the definition of Adverse Consequences for purposes of this Section 8.


 


(iv)                              Except for the
rights of indemnification provided in Sections 8 and 9(e), the Seller hereby
waives any claim or cause of action pursuant to common or statutory law or
otherwise against the Buyer arising from any breach by the Buyer of any of its
representations, warranties or covenants under this Agreement or the
transactions contemplated hereby.


 


(d)                                 Matters Involving Third Parties.


 


(i)                                     If any third party
shall notify any Party (the “Indemnified Party”) with respect to any matter (a “Third
Party Claim”) that may give rise to a claim for indemnification against any
other Party (the “Indemnifying Party”) under this Section 8, then the
Indemnified Party shall promptly (and in any event within five business days
after receiving notice of the Third Party Claim) notify the Indemnifying Party
thereof in writing (although the failure to so notify the Indemnifying Party
shall not relieve the Indemnifying Party from any Liability that


 


22





















 


the Indemnifying
Party may have under this Section 8(d) except to the extent that such
failure prejudices the Indemnifying Party).


 


(ii)                                  The Indemnifying
Party will have the right to assume and thereafter conduct the defense of the
Third Party Claim with counsel of its choice reasonably satisfactory to the
Indemnified Party; provided, however, that the Indemnifying Party will not
consent to the entry of any judgment or enter into any settlement with respect
to the Third Party Claim without the prior written consent of the Indemnified
Party (not to be withheld unreasonably) unless the judgment or proposed settlement
involves only the payment of money damages and does not impose an injunction or
other equitable relief upon the Indemnified Party and provides a clear and
unconditional release of the Indemnified Party.


 


(iii)                               Unless and until the
Indemnifying Party assumes the defense of the Third Party Claim as provided in
Subsection 8(d)(ii), the Indemnified Party may
defend against the Third Party Claim in any manner it reasonably may deem
appropriate.


 


(iv)                              In no event will
the Indemnified Party consent to the entry of any judgment or enter into any
settlement with respect to the Third Party Claim without the prior written
consent of the Indemnifying Party which consent shall not be withheld or
delayed unreasonably.


 


(e)                                  Determination of Amount of
Adverse Consequences.  The
Adverse Consequences giving rise to any indemnification obligation hereunder
shall be limited to the actual loss suffered by the Indemnified Party (i.e.
reduced by any insurance proceeds or other payment or recoupment received from
any non-Affiliated third party insurance company (not to include captive
Subsidiary insurance carriers), realized or retained by the Indemnified Party
as a result of the events giving rise to the claim for indemnification net of
any expenses related to the receipt of such proceeds, payment or recoupment,
including retrospective premium adjustments, if any), and any reduction in
Taxes of the Indemnified Party (or the affiliated group of which it is a
member) occasioned by such loss or damage. 
The amount of the actual loss and the amount of the indemnity payment
shall be computed by taking into account the timing of the loss or payment, as
applicable, using a 10% interest or discount rate, as appropriate.  Upon the request of the Indemnifying Party,
the Indemnified Party shall provide the Indemnifying Party with information
sufficient to allow the Indemnifying Party to calculate the amount of the
indemnity payment in accordance with this Section 8(e).  An Indemnified Party shall take all
commercially reasonable steps to mitigate damages in respect of any claim for
which it is seeking indemnification and shall use reasonable efforts to avoid
any costs or expenses associated with such claim and, if such costs and
expenses cannot be avoided, to minimize the amount thereof.


 


(f)                                    Tax Treatment of Indemnity
Payments.  All indemnification
payments made under this Agreement, including any payment made under Section 9(e) hereof, shall be treated as purchase price
adjustments for Tax purposes.


 


23





















 


9.                                       Tax Matters.


 


(a)                                  Post-Closing Tax Returns.  The Buyer shall pay (or shall
cause to be paid) any Taxes due with respect to Post-Closing Tax Returns based
on Schedules K-1 issued by Starfish and other relevant information.


 


(b)                                 Pre-Closing Tax Returns.  The Seller shall pay (or shall
cause to be paid) any Taxes due with respect to Pre-Closing Tax Returns based
on Schedules K-1 issued by Starfish and other relevant information.


 


(c)                                  Straddle Periods.  The Buyer shall be responsible for Taxes of
the Acquired Interest related to the portion of any Straddle Period commencing
after the Closing Date.  The Seller shall
be responsible for Taxes of the Acquired Interest relating to the portion of
any Straddle Period commencing before and ending on the Closing Date.  With respect to any Straddle Period, to the
extent permitted by applicable Law, the Seller or the Buyer shall elect to
treat the Closing Date as the last day of the Tax period.  If applicable Law will not permit the Closing
Date to be the last day of a period, then (i) real or personal property Taxes
of the Acquired Interest shall be allocated based on the number of days in the
partial period before and after the Closing Date, (ii) in the case of all other
Taxes based on or in respect of income, the Tax computed on the basis of the
taxable income or loss of the Acquired Interest for each partial period as
determined from their books and records, and (iii) in the case of all other
Taxes, on the basis of the actual activities or attributes of the Acquired Interest
for each partial period as determined from their books and records.


 


(d)                                 Claims for Refund.  The Buyer shall not file any claim for refund
of taxes with respect to the Acquired Interest for whole or partial taxable
periods on or before the Closing Date.


 


(e)                                  Indemnification.  The Buyer agrees to indemnify the Seller
against all Taxes of or with respect to the Acquired Interest (including Taxes on income allocable thereto) for
any Post-Closing Tax Period and the portion of any Straddle Period ending after
the Closing Date.  The Seller agrees to
indemnify the Buyer against all Taxes of or with respect to the Acquired
Interest (including Taxes on income allocable
thereto)  for any Pre-Closing Tax Period and the portion of
any Straddle Period ending on or before the Closing Date.


 


(f)                                    Cooperation on Tax Matters.


 


(i)                                     The Buyer and the
Seller shall cooperate fully, as and to the extent reasonably requested by the
other Party, in connection with the filing of Tax Returns pursuant to this Section 9
and any audit, litigation or other proceeding and making employees available on
a mutually convenient basis to provide additional information and explanation
of any material provided hereunder.  The
Buyer and the Seller shall (A) retain all books and records with respect to Tax
matters pertinent to the Acquired Interest relating to any whole or partial
taxable period beginning before the Closing Date until the expiration of the
statute of limitations (and, to the extent notified by the Buyer or the Seller,
any extensions thereof) of the respective taxable periods, and to abide by all
record retention agreements entered


 


24





















 


into with any taxing authority, and (B) give the other Party reasonable
written notice prior to transferring, destroying or discarding any such books
and records and, if the other Party so requests, the Buyer or the Seller as the
case may be, shall allow the other Party to take possession of such books and
records.


 


(ii)                                  The Buyer and the
Seller further agree, upon request, to use their best efforts to obtain any
certificate or other document from any Governmental Authority or any other
Person as may be necessary to mitigate, reduce or eliminate any Tax that could
be imposed (including, but not limited to, with respect to the transactions
contemplated hereby).


 


(iii)                               The Buyer and the Seller
agree, upon request, to provide the other Parties with all information that any
Party may be required to report pursuant to Section 6043 of the Code and
all Treasury Department Regulations promulgated thereunder.


 


(g)                                 Certain Taxes.  The Seller will file all necessary Tax
Returns and other documentation with respect to all transfer, documentary,
sales, use, stamp, registration and other Taxes and fees, and, if required by
applicable Law, the Buyer will, and will cause their Affiliates to, join in the
execution of any such Tax Returns and other documentation.


 


(h)                                 Confidentiality.  Any information shared in connection with
Taxes shall be kept confidential, except as may otherwise be necessary in
connection with the filing of Tax Returns or reports, refund claims, tax
audits, tax claims and tax litigation, or as required by Law.


 


(i)                                     Closing Tax Certificate.  At the Closing, the Seller shall deliver to
the Buyer a certificate signed under penalties of perjury (i) stating that it
is not a foreign corporation, foreign partnership, foreign trust or foreign
estate, (ii) providing its U.S. Employer Identification Number and (iii)
providing its address, all pursuant to Section 1445 of the Code.


 


10.                                 Termination.


 


(a)                                  Termination of Agreement. The
Parties may terminate this Agreement, as provided below:


 


(i)                                     the Buyer and the
Seller may terminate this Agreement by mutual written consent at any time
before the Closing;


 


(ii)                                  the Buyer may
terminate this Agreement by giving written notice to the Seller at any time
before Closing (A) in the event the Seller has breached any representation,
warranty or covenant contained in this Agreement in any material respect, the
Buyer have notified the Seller of the breach, the breach has continued without
cure for a period of 10 days after the notice of breach and such breach would
result in a failure to satisfy a condition to the Buyer’s obligation to
consummate the transactions contemplated hereby; (B) if the Closing shall not
have occurred on or before 5:00 p.m. (Houston time) on March 31, 2005
(unless the


 


25





















 


failure results primarily from the Buyer itself breaching any
representation, warranty or covenant contained in this Agreement); or (C) if
any of the consents and approvals referred to in Section 5(b) are denied and the Buyer has fulfilled its obligations under and conforms with Section 5(b);


 


(iii)                               the Seller may terminate
this Agreement by giving written notice to the Buyer at any time before the
Closing (A) in the event the Buyer has breached any representation, warranty or
covenant contained in this Agreement in any material respect, the Seller has
notified the Buyer of the breach, the breach has continued without cure for a
period of 10 days after the notice of breach and such breach would result in a
failure to satisfy a condition to the Seller’s obligation to consummate the
transactions contemplated hereby; (B) if the Closing shall not have occurred on
or before 5:00 p.m. (Houston time) on March 31, 2005 (unless the failure
results primarily from the Seller itself breaching any representation, warranty
or covenant contained in this Agreement); (C) if the Seller
believes in its reasonable and good faith judgment that the transactions
contemplated hereby will not receive all necessary approvals of the FTC and the
Seller has fulfilled its obligations under and conforms with Section 5(b);
and


 


(iv)                              the Buyer or the Seller
may terminate this Agreement if any court of competent jurisdiction or any
governmental, administrative or regulatory authority, agency or body shall have
issued an order, decree or ruling or shall have taken any other action
permanently enjoining, restraining or otherwise prohibiting the transactions
contemplated hereby and such order, decree, ruling or other action shall have
become final and nonappealable.


 


(b)                                 Effect of Termination.  If any Party terminates this Agreement
pursuant to Section 10(a), all rights and obligations of the Parties
hereunder with respect to any Acquired Interest not theretofore sold to the
Buyer hereunder shall terminate without any Liability of any Party to any other
Party (except for any Liability of any Party then in breach); provided that the
confidentiality provisions contained in the Confidentiality Agreement shall
survive termination.


 


11.                                 Miscellaneous.


 


(a)                                  Press Releases and Public
Announcements. No Party shall issue any press release or make any
public announcement relating to the subject matter of this Agreement without
the prior written approval of the other Party; provided however, that no Party
shall unreasonably withhold or delay its approval to any Party’s request to
make a public disclosure that such requesting Party believes in good faith is
required by applicable Law or any listing or trading agreement concerning its
publicly traded securities.


 


(b)                                 No Third Party Beneficiaries.  This Agreement shall not confer any rights or
remedies upon any Person other than the Parties and their respective successors
and permitted assigns.


 


26





















 


(c)                                  Succession and Assignment.  This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. The Seller or the Buyer may assign either
this Agreement or any of its respective rights, interests or obligations
hereunder to an Affiliate without the prior written approval of the other
Party; provided, that no such assignment will relieve the Seller or the Buyer
from any of its respective obligations or Liabilities hereunder. Except as
provided in the foregoing sentence, neither of the Buyer nor the Seller may
assign either this Agreement or any of its respective rights, interests or
obligations hereunder without the prior written approval of the other Party.


 


(d)                                 Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original but which together will
constitute one and the same instrument.


 


(e)                                  Headings. 
The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.


 


(f)                                    Notices. 
All notices, requests, demands, claims, and other communications
hereunder will be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given two business days after it
is sent by registered or certified mail, return receipt requested, postage
prepaid, and addressed to the intended recipient as set forth below:


 


	
  If to the
  Seller by Mail:

  	
   

  	
  Enterprise
  Products Operating L.P.

  
	
   

  	
   

  	
  P.O. Box
  4324

  
	
   

  	
   

  	
  Houston,
  Texas 77210-4324

  
	
   

  	
   

  	
  Attn:
  President

  
	
   

  	
   

  	
  Phone: (713)
  880-6500

  
	
   

  	
   

  	
  Fax: (713)
  880-6570

  
	
   

  	
   

  	
   

  
	
  If to the
  Seller by hand-delivery:

  	
   

  	
  Enterprise
  Products Operating L.P.

  
	
   

  	
   

  	
  2727 North
  Loop West, Suite 700

  
	
   

  	
   

  	
  Houston,
  Texas 77008

  
	
   

  	
   

  	
  Attn:
  President

  
	
   

  	
   

  	
  Phone: (713)
  880-6500

  
	
   

  	
   

  	
  Fax: (713) 880-6570

  
	
   

  	
   

  	
   

  
	
  If to the Buyer:

  	
   

  	
  MarkWest Energy Partners, L.P.

  
	
   

  	
   

  	
  155 Inverness Drive West, Suite 200

  
	
   

  	
   

  	
  Englewood, CO 80112

  
	
   

  	
   

  	
  Phone: (303) 290-8700

  
	
   

  	
   

  	
  Fax: (303) 925-9305

  



 


Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the addresses set forth
above using any other means (including personal delivery, expedited courier,
messenger service, telecopy, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be 


27





















 


deemed to have
been duly given unless and until it actually is received by the intended
recipient.  Any Party may change the
address to which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Party notice in the manner herein
set forth.


 


(g)                                 Governing Law.  This Agreement shall be governed by and
construed in accordance with the domestic Laws of the state of Texas without
giving effect to any choice or conflict of law provision or rule (whether of
the state of Texas or any other jurisdiction) that would cause the application
of the Laws of any jurisdiction other than the state of Texas.


 


(h)                                 Amendments and Waivers.  No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Buyer and the Seller.  No waiver by any
Party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior
or subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.


 


(i)                                     Severability.  Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.


 


(j)                                     Transaction Expenses.  The Buyer and the Seller will bear its own
costs and expenses (including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.


 


(k)                                  Construction.  The Parties have participated jointly in the
negotiation and drafting of this Agreement. 
In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or disfavoring any
Party by virtue of the authorship of any of the provisions of this
Agreement.  Any reference to any federal,
state, local, or foreign statute or Law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context requires otherwise.  The word “including” shall mean including
without limitation.


 


(l)                                     Incorporation of Exhibits
and Schedules.  The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.


 


(m)                               Entire Agreement.  THIS AGREEMENT (INCLUDING THE DOCUMENTS
REFERRED TO HEREIN) CONSTITUTES THE ENTIRE AGREEMENT AMONG THE PARTIES AND
SUPERSEDES ANY PRIOR UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS BY OR AMONG
THE PARTIES, WRITTEN OR ORAL, TO THE EXTENT THEY HAVE RELATED IN ANY WAY TO THE
SUBJECT MATTER HEREOF.


 


(n)                                 FTC Authorization.  The Parties acknowledge that unless the FTC
approves all of the transactions under the terms contemplated in this
Agreement, the Parties will either (i)


 


28





















 


mutually agree
to modify the terms of this Agreement pursuant to requests made by the FTC or
(ii) terminate this Agreement in accordance with Sections 5(d) and 10(a).


 


Signature page
follows


 


29





















 


IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.


 


	
   

  	
  SELLER

  
	
   

  	
   

  
	
   

  	
  ENTERPRISE
  PRODUCTS OPERATING L.P.

  
	
   

  	
  By
  Enterprise Products OLPGP, INC.,

  
	
   

  	
  Its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Enterprise Products Operating L.P.

  	
   

  
	
   

  	
  Name:

  	
  Enterprise
  Products Operating L.P.

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BUYER

  
	
   

  	
   

  
	
   

  	
  MARKWEST
  ENERGY PARTNERS, L.P.

  
	
   

  	
  By MarkWest
  Energy GP, LLC

  
	
   

  	
  Its General
  Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ MarkWest
  Energy Partners, L.P.

  	
   

  
	
   

  	
  Name:

  	
  MarkWest
  Energy Partners, L.P.

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


30





















 


Exhibit A


To
Purchase and Sale Agreement


 


ASSIGNMENT
OF MEMBERSHIP INTEREST


 


	
  STATE OF
  TEXAS

  	
  §

  	
   

  
	
   

  	
  §

  	
  KNOW ALL MEN
  BY THESE PRESENTS:

  
	
  COUNTY OF
  HARRIS

  	
  §

  	
   

  



 


THIS ASSIGNMENT OF
MEMBERSHIP INTEREST (“Assignment”) dated March 31, 2005, is by and between
Enterprise Products Operating L.P., a Delaware limited partnership (“Assignor”),
and  MarkWest Energy Partners, L.P., ,a
Delaware Limited Partnership (“Assignee”).


 


RECITALS:


 


A.                                   Assignor
owns a 50% Membership Interest in Starfish Pipeline Company, LLC (“Starfish”),
which is governed by that certain Amended and Restated Limited Liability
Company Agreement of Starfish Pipeline Company, LLC, dated as of April 1,
2002, as amended, by and among Shell Gas Transmission, LLC, and Assignor (the “Starfish
LLC Agreement”).  Capitalized terms used
herein without definition shall have the meanings ascribed to them in the
Starfish LLC Agreement.


 


B.                                     Pursuant
to that certain Purchase and Sale Agreement between Assignor and Assignee dated
January 24, 2005 (the “Purchase and Sale Agreement”), Assignor has agreed
to sell, assign, transfer and convey all of Assignor’s 50% Membership Interest
in Starfish (“Assignor’s Membership Interest”) to Assignee, leaving Assignor with
no Membership Interest in Starfish, and Assignee has agreed to purchase and
accept all of Assignor’s Membership Interest at and as of the Effective Date.


 


C.                                     The
parties desire to enter into this Assignment to evidence the transfer and
assignment from Assignor to Assignee.


 


NOW, THEREFORE, for
and in consideration of the purchase price set forth in the Purchase and Sale
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows.


 


1.                                       Assignment.  Assignor hereby sells, assigns, transfers and
conveys to Assignee Assignor’s Membership Interest subject to the terms of the
Starfish LLC Agreement.


 


2.                                       Acceptance.  Assignee hereby (a) purchases and accepts the
Assignor’s Membership Interest, (b) assumes the obligations of the Starfish LLC
Agreement applicable to Assignor’s Membership Interest, and (c) agrees to be
bound as a Member to all terms and conditions of the Starfish LLC Agreement, to
assume all obligations, Liabilities, except for the Retained
Liabilities (as such terms are defined in the Purchase and Sale Agreement),
and duties


 





















 


with respect to the Assignor’s Membership
Interest to which Assignor was bound at and after the Effective Date, and to
become a party to the Starfish LLC Agreement by executing and delivering to the
Starfish Members a counterpart of the Starfish LLC Agreement.


 


3.                                       Amendment
of Documents.  It is the intention of the
parties hereto that Assignee be admitted to and become a Substituted Member in
the name, place and stead of Assignor with respect to the Assignor’s Membership
Interest.  Accordingly, Assignor and
Assignee agree to make, execute and deliver all documents, instruments and
certificates and to take such action that may be necessary or desirable to
accomplish such admission and substitution.


 


4.                                       Representations
and Warranties.  Assignor and Assignee
each represents and warrants that this Assignment is made in accordance with
all applicable Laws (including state and federal securities Laws) and the terms
and conditions of the Starfish LLC Agreement. 
Assignee further represents and warrants that the representations and
warranties set forth in Section 3.3 of the Starfish LLC Agreement are true
and correct with respect to Assignee.


 


5.                                       Applicability
of Purchase and Sale Agreement.  This
Assignment is made subject to, and without modification or amendment of, the
Purchase and Sale Agreement.  Such
representations and warranties therein as are expressly applicable to the
matters contained within this Assignment shall apply with respect thereto, in
accordance with the terms of the Purchase and Sale Agreement.


 


6.                                       Assignee
Notice Address.  Any notice intended to
be given Assignee under the Starfish LLC Agreement shall be addressed to the address
set forth below.


 


MarkWest Energy Partners, L.P.


155 Inverness Drive West, Suite 200


Englewood, CO 80112


Phone: (303) 290-8700


Fax: (303) 925-9305


 


7.                                       Further
Assurances.  Each of the parties hereto
agrees to execute such other, further and different documents and perform such
other, further and different acts as may be reasonably necessary or desirable
to carry out the intent and purpose of this Assignment.


 


8.                                       Successors
and Assigns.  This Assignment shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.


 


9.                                       Section Headings.  The section headings contained in this
Assignment are for reference purposes only and shall not affect the
interpretation of this Assignment.


 


10.                                 Governing
Law.  This Assignment shall be governed
in all respects, including validity, interpretation and effect, by and shall be
enforceable in accordance with the internal laws of the State of Texas, without
regard to conflicts of laws principles.


 


2





















 


11.                                 Counterpart
Execution.    This Assignment may be executed in multiple
counterparts, each one of which will be deemed an original, but all of which
shall be considered together as one and the same instrument.


 


12.                                 Entire
Agreement.  This Assignment contains the
entire agreement between the parties regarding the subject matter hereof.  Any prior agreements, discussions or
representations not expressly contained herein shall be deemed to be replaced
by the provisions hereof and no party has relied on any such prior agreements,
discussions or representations as an inducement to the execution hereof.


 


Signature page follows


 


3





















 


IN WITNESS WHEREOF, the
parties hereto, by their duly authorized representatives, have executed this
Assignment as of the date first set forth above but to be effective as of 12:01
a.m. Houston time on January 1, 2005 (the “Effective Time”).


 


	
  ASSIGNOR:

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
  ENTERPRISE PRODUCTS OPERATING

  L.P.

  	
  MARKWEST ENERGY PARTNERS,

  L.P.

  
	
  By Enterprise Products OLPGP, Inc.

  	
  By MarkWest Energy GP, LLC,

  
	
  Its General Partner

  	
  Its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Enterprise Products Operating L.P.

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Enterprise Products Operating L.P.

  	
   

  	
  By:

  	
  /s/ MarkWest Energy Partners, L.P.

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Name:

  	
  MarkWest Energy Partners, L.P.

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
											



 


4





















 




	
  STATE OF
  TEXAS

  	
   

  	
  §

  
	
   

  	
   

  	
  §

  
	
  COUNTY OF
  HARRIS

  	
   

  	
  §

  






 


This Assignment of Membership Interest was acknowledged before me on                   ,
200    , by                           ,
                                  
of Enterprise Products OLPGP, Inc., a Delaware corporation and the general
partner of Enterprise Products Operating L.P., a Delaware limited partnership,
on behalf of said limited partnership.


 


	
   

  	
   

  	
   

  
	
   

  	
   Notary
  Public, State of Texas

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   Printed/Typed
  Name of Notary

  
	
   

  	
   

  
	
   

  	
   My
  Commission Expires:

  	
   

  	
   

  
				



 




	
  STATE OF
  TEXAS

  	
   

  	
  §

  
	
   

  	
   

  	
  §

  
	
  COUNTY OF
  HARRIS

  	
   

  	
  §

  






 


 


This Assignment of Membership Interest was acknowledged before me on                 ,
200    , by                         ,
                        
of                         ,
a                         ,
on behalf of said                         .


 


	
   

  	
   

  	
   

  
	
   

  	
   Notary
  Public, State of Texas

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   Printed/Typed
  Name of Notary

  
	
   

  	
   

  
	
   

  	
   My Commission
  Expires:

  	
   

  	
   

  
				



 


5





















 


Schedule 1(b)


To
Purchase and Sale Agreement


 


Seller
Knowledge


 


Michael Creel


Mike Benigno


Jim Cisarik


Mario Rivera


Jim Schwarz


 


1





















 


Schedule 1(c)


To
Purchase and Sale Agreement


 


Buyer
Knowledge


 


[To come]


 


1





















 


Schedule 3(a)(iii)


To
Purchase and Sale Agreement


 


Contraventions
Relating to Seller


 


None.


 


2





















 


Schedule 3(b)(iii)


To
Purchase and Sale Agreement


 


Contraventions
Relating to Buyer


 


None.


 


3





















 


Schedule 4(b)


To
Purchase and Sale Agreement


 


Contraventions
Relating to Acquired Interest and Starfish Companies


 


None.


 


4





















 


Schedule 4(d)(ii)


To
Purchase and Sale Agreement


 


Encumbrances
of Subject Assets


 


None.


 


5





















 


Schedule 4(e)


To
Purchase and Sale Agreement


 


Financial
Data


 


6





















 


Schedule 4(f)


To
Purchase and Sale Agreement


 


Material
Changes


 


None.


 


7





















 


Schedule 4(h)


To
Purchase and Sale Agreement


 


Tax
Matters


 


None.


 


8





















 


Schedule 4(j)


To
Purchase and Sale Agreement


 


Litigation


 


None.


 


9





















 


Schedule 4(k)


To
Purchase and Sale Agreement


 


Environmental


 


None.


 





















 


Schedule 4(l)


To
Purchase and Sale Agreement


 


Government
Permits


 


None.