AMENDED AND RESTATED AGREEMENT TO PURCHASE UNITS
This Amended and Restated Agreement to Purchase Units (this
"Agreement") is entered into on August 20, 1997, but shall be effective for all
purposes as of August 13, 1997, among ▇▇▇▇▇▇ ▇▇▇▇▇▇ Energy Partners, L.P., a
Delaware limited partnership (the "Issuer"), and First Union Investors, Inc.
(the "Purchaser").
R E C I T A L S
Issuer and Purchaser initially entered into an Agreement to Purchase
Units on August 13, 1997 relating to the sale of 160,000 Common Units to
Purchaser (the "Original Agreement").
Issuer and Purchaser desire to amend and restate the Original Agreement
to provide for (i) the current sale of 66,600 Common Units to Purchaser on the
terms and conditions provided for in this Agreement and (ii) the sale of an
additional 93,400 Common Units on the terms and conditions provided for in this
Agreement, if paragraph 312.03(b) of the NYSE Listed Company Manual is amended
prior to September 12, 1997 to permit the sale of such Units without approval of
the holders of the Common Units (the "Proposed Amendment").
The parties hereby agree as follows:
1. Issuer agrees to sell to Purchaser, as provided by paragraph 3
below, a total of 160,000 of its Common Units at a purchase price of $62.50 per
Unit for an aggregate purchase price of $10,000,000 (the "Purchase Price").
Purchaser agrees to purchase the Units for the Purchase Price, subject to the
terms and conditions contained herein.
2. Purchaser acknowledges receipt of (i) the Issuer's Prospectus dated
June 26, 1997 (the "Prospectus"), (ii) the Prospectus Supplement dated August
13, 1997 relating to the sale of the Common Units and (iii) the Prospectus
Supplement dated August 19, 1997 relating to the public offering of 329,000
Common Units. The Issuer acknowledges and agrees that Purchaser is relying on
the information contained therein and in the Registration Statement (File No.
333-25997) relating thereto.
3. The Issuer acknowledges receipt of the Purchase Price from the
Purchaser. Issuer shall hold the Purchase Price in escrow until released in
accordance with Section 4 of this Agreement.
4. (a) Issuer shall promptly apply for listing of 66,600 of the Common
Units on the New York Stock Exchange. Upon receipt by Issuer of approval from
the New York Stock Exchange of such application, Issuer shall immediately
instruct First Chicago Trust Company of New York, its transfer agent (the
"Transfer Agent"), to issue promptly a Common Unit certificate to Purchaser for
66,600
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Common Units and to deliver the certificates for such Common Units to Purchaser
at First Union Capital Partners, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇. Upon receipt of the certificates
for such 66,600 Common Units by the Purchaser, $4,162,500 of the Purchase Price
shall be released from escrow.
(b) If the Proposed Amendment becomes effective prior to September 19,
1997, the Issuer shall promptly apply for listing of the remaining 93,400 Common
Units on the New York Stock Exchange. Upon receipt by Issuer of approval from
the New York Stock Exchange of such application, Issuer shall immediately
instruct the Transfer Agent to issue promptly a Common Unit certificate to
Purchaser for 93,400 Common Units and to deliver the certificates for such
Common Units to Purchaser at the addressed specified in Section 4(a). Upon
receipt of the certificates for such 93,400 Common Units by the Purchaser, the
remaining $5,837,500 of the Purchase Price shall be released from escrow.
(c) If either of the listing applications has not been approved prior
to September 20, 1997, either party may terminate this Agreement with respect to
those Common Units for which a listing application has not been approved without
further obligation at any time prior to receipt of such approval. In the event
of such termination, Issuer shall promptly return to Purchaser the portion of
the Purchase Price related to the Common Units for which approval has not been
obtained.
5. Purchaser hereby agrees to become a Limited Partner of Issuer and
to be bound by all of the terms and conditions of the Amended and Restated
Agreement of Limited Partnership of Issuer, as amended (the "Partnership
Agreement"), including without limitation the granting to the General Partner of
Issuer the power of attorney provided for in Section 1.4 of the Partnership
Agreement.
6. Issuer represents and warrants to Purchaser and its successors and
assigns that (a) as of August 20, 1997, 6,660,000 Common Units of the Issuer are
outstanding and an additional 329,000 Common Units may be issued upon approval
of such Common Units for listing on the New York Stock Exchange; (b) when
purchased by the Purchaser as provided herein, the 160,000 Common Units shall be
(i) duly and validly issued, (ii) on the assumption that the Purchaser takes no
part in the control of Issuer's business and otherwise acts in conformity with
the provisions of the Issuer's Amended and Restated Agreement of Limited
Partnership regarding control and management of the Issuer (Articles VI and
VII), fully paid and nonassessable and (iii) free from any liens or encumbrances
or rights of others (other than any liens, encumbrances or rights created by the
Purchaser); (c) the Common Units to be purchased by the Purchaser have been
registered under the Securities Act of 1933, as amended, pursuant to the
Issuer's Registration Statement on Form S-3 (File No. 333-25997), which was
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declared effective on June 26, 1997 and will continue in effect until the
160,000 Common Units have been delivered hereunder; and (d) no registrations
under any state securities laws are required in connection with the transactions
contemplated by this Agreement.
7. Purchaser agrees that, except for offers, sales or dispositions to
affiliates of Purchaser, for a period of 90 days from the date of this
Agreement, it will not, without the Issuer's prior written consent, offer, sell,
contract to sell, or otherwise dispose of, any of the Common Units purchased
pursuant to this Agreement.
8. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their successors and assigns.
9. This Agreement shall be governed by the laws of the State of
Texas, without giving effect to the principles of conflict of laws of such
State.
10. Each person executing this Agreement represents that it has the
power and authority to execute this Agreement.
11. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by Issuer and Purchaser. No agreements or representations, oral or
otherwise, expressed or implied, with respect to the subject matter of this
Agreement have been made by either party that are not set forth expressly in
this Agreement or the Prospectus.
12. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed as of the date specified above.
▇▇▇▇▇▇ ▇▇▇▇▇▇ ENERGY PARTNERS, L.P.
By: Kinder ▇▇▇▇▇▇ ▇.▇., Inc.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice Chairman
FIRST UNION INVESTORS, INC.
By: /s/ ▇. ▇▇▇▇▇▇ Hauptfuhrer
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Partner
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