Exhibit 10.1


 


MARKWEST ENERGY GP, L.L.C.


 


AMENDED AND RESTATED INDEMNIFICATION AGREEMENT


 


THIS AMENDED AND RESTATED INDEMNIFICATION
AGREEMENT (this “Agreement”) is entered into as of the
26th day of October, 2007, by and between MarkWest Energy GP, L.L.C., a
Delaware limited liability company and the general partner (the “General
Partner”) of MarkWest Energy Partners, L.P., a Delaware limited partnership
(the “Partnership”), and the undersigned Director and/or Officer (“Indemnitees”).


 


RECITALS


 


A.            The General Partner and the Partnership are
aware that competent and experienced persons are increasingly reluctant to
serve or continue serving as directors or officers of companies unless they are
protected by comprehensive liability insurance and adequate indemnification due
to the increased exposure to litigation costs and risks resulting from service
to such companies that often bear no relationship to the compensation of such
directors or officers.


 


B.            The statutes and
judicial decisions regarding the duties of directors and officers are often
difficult to apply, ambiguous, or conflicting, and therefore often fail to
provide directors and officers with adequate, reliable knowledge of the legal
risks to which they are exposed or the manner in which they are expected to
execute their fiduciary duties and responsibilities.


 


C.            The General Partner,
the Partnership, and the Indemnitees recognize that plaintiffs often seek
damages in such large amounts, and the costs of litigation may be so great
(whether or not the case is meritorious), that the defense and/or settlement of
such litigation can create an extraordinary burden on the personal resources of
individuals.


 


D.            The General Partner and the Partnership believe that it is
unreasonable for their directors, officers, employees, controlling persons,
agents, or fiduciaries and similar persons at their subsidiaries to assume the
risk of judgments and other expenses which may occur in cases in which those
persons received no personal benefit or were not culpable.


 


E.             The General Partner and the Partnership recognize that the
issues in controversy in litigation against a director, officer or agent of a
corporation or other entity, such as the General Partner, the Partnership or
their subsidiaries, are often related to the knowledge, motives and intent of
such director, officer or agent, that he or she is usually the only witness
with knowledge of the essential facts and exculpating circumstances regarding
such matters, and that the long period of time which usually elapses before the
trial or other disposition of such litigation often extends beyond the time
that the director, officer or agent can reasonably recall such matters and may
extend beyond the normal time for retirement for such director, officer or
agent with the result that he or she, after retirement or in the event of his
or her death, his or her spouse, heirs, executors or administrators may be
faced with limited ability and undue hardship in maintaining an adequate
defense, which may discourage such a director, officer or agent from serving in
that position.


 


F.             The Board of
Directors of MarkWest Energy GP, L.L.C. (the “Board”) has concluded that, to
attract and retain competent and experienced persons to serve as directors and
officers of the General Partner, it is not only reasonable and prudent but
necessary to promote the best interests of the General Partner and its members
or unitholders, as the case may be, for the General Partner to


 

















 


contractually indemnify the
directors, officers and other persons of the General Partner in the manner set
forth herein, and to assume for itself liability for expenses and damages in
connection with claims against such persons in connection with their service to
the General Partner as provided herein.


 


G.            Section 18-108 of
the Delaware Limited Liability Company Act (the “LLC Act”), under which the
General Partner is organized, and Article 9 of the General Partner’s Amended
and Restated Limited Liability Company Agreement, empowers the General Partner
to indemnify its members, managers, directors, officers, employees and agents
by agreement and to indemnify persons who serve, at the request of the General
Partner, as the directors, officers, employees or agents of other corporations
or enterprises.


 


H.            Section 17-108 of the
Delaware Revised Uniform Limited Partnership Act (the “LP Act”), under which
the Partnership is organized, and Section 7.7 of the Partnership’s Amended and
Restated Agreement of Limited Partnership empower the Partnership to indemnify,
among others, any member, partner, officer, director, employee, agent or
trustee of the General Partner, the Partnership or any affiliate thereof.


 


I.              The General Partner
desires and has requested the Indemnitees to serve or continue to serve as a
director, officer or in another capacity of the General Partner, and the
Indemnitees only is willing to serve, or to continue to serve, if the
Indemnitees is furnished the indemnity provided for herein by the General
Partner and the Partnership.


 


NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants and agreements
set forth below, the parties hereto, intending to be legally bound, hereby
agree as follows:


 


1.             Definitions.  For purposes of this Agreement, the
following terms shall have the corresponding meanings set forth below:


 


“Claim” means
a claim or action, including counterclaims or crossclaims, asserted by a Person
in a Proceeding.


 


“Covered
Entity” means the General Partner, any subsidiary or affiliate of the General
Partner or any other Person for which Indemnitees is or was or may be deemed to
be serving at the request of the General Partner, or any subsidiary of the
General Partner, as a director, officer, employee, controlling person, agent or
fiduciary.


 


“Disinterested
Director” means, with respect to any determination contemplated by this
Agreement, any Person who, as of the time of such determination, is a member of
the Board but is not a party to any Proceeding then pending with respect to any
Indemnification Event.


 


“ERISA” means
Employee Retirement Income Security Act of 1974, as amended, or any similar
Federal statute then in effect.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, or any similar Federal
statute then in effect.


 


“Expenses”
means any and all direct and indirect fees and costs, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating,
printing and binding costs, telephone charges, postage and delivery service
fees and all other disbursements or expenses of any type or nature whatsoever
reasonably incurred by Indemnitees (including fees of investment bankers,
accountants and, subject to the limitations set forth in Section 3(c) below,
reasonable attorneys’ fees) in connection with or arising from an Indemnification
Event, including, without limitation: (i) the investigation or defense of a
Claim; (ii) being, or preparing to be, a witness or otherwise participating, or


 


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preparing to participate, in
any Proceeding; (iii) furnishing, or preparing to furnish, documents in
response to a subpoena or otherwise in connection with any Proceeding; (iv) any
appeal of any judgment, outcome or determination in any Proceeding (including,
without limitation, any premium, security for and other costs relating to any
cost bond, supersedes bond or any other appeal bond or its equivalent); (v)
establishing or enforcing any right to indemnification under this Agreement
(including, without limitation, pursuant to Section 2(c) below), applicable law
or otherwise, regardless of whether Indemnitees is ultimately successful in
such action, unless as a part of such action, a court of competent jurisdiction
over such action determines that each of the material assertions made by
Indemnitees as a basis for such action was not made in good faith or was
frivolous; (vi) Indemnitees’ defense of any Proceeding instituted by or in the
name of the General Partner under this Agreement to enforce or interpret any of
the terms of this Agreement (including, without limitation, costs and expenses
incurred with respect to Indemnitees counterclaims and cross-claims made in
such action); and (vii) any Federal, state, local or foreign taxes imposed on
Indemnitees as a result of the actual or deemed receipt of any payments under
this Agreement, including all interest, assessments and other charges paid or
payable with respect to such payments.


 


“General
Partner Action” means a Proceeding in which a Claim has been brought by or in
the name of the General Partner to procure a judgment in its favor.


 


An “Indemnification
Event” shall be deemed to have occurred if Indemnitees was or is or becomes, or
is threatened to be made, a party to or witness or other participant in, or was
or is or becomes obligated to furnish or furnishes documents in response to a
subpoena or otherwise in connection with, any Proceeding by reason of the fact
that Indemnitees is or was or may be deemed a director, officer, employee,
controlling person, agent or fiduciary of any Covered Entity, or by reason of
any action or inaction on the part of Indemnitees while serving or acting or
having served or acted in any such capacity (including, without limitation,
rendering any written statement that is a Required Statement or is made to
another officer or employee of the Covered Entity to support a Required
Statement).


 


“Independent
Legal Counsel” means an attorney or firm of attorneys designated by the
Indemnitees that is satisfactory to a majority of the Disinterested Directors
(or, if there are no Disinterested Directors, the Board) that is experienced in
matters of corporate law and neither presently is, nor in the twenty-four (24)
months prior to such designation has been, retained to represent: (i) the
General Partner, the Partnership or Indemnitees in any matter material to any
such party, or (ii) any other party to the Proceeding giving rise to a claim
for indemnification hereunder.


 


“Losses” means
any and all losses, claims, damages, liabilities, judgments, fines, penalties,
settlement payments, awards and amounts of any type whatsoever incurred by
Indemnitees in connection with or arising from an Indemnification Event.


 


“Organizational
Documents” means any and all organizational documents, charters or similar
agreements or governing documents, including, without limitation (i) with
respect to a corporation, its certificate of incorporation and bylaws, (ii) with
respect to a limited liability company, its operating agreement, and (iii) with
respect to a limited partnership, its partnership agreement.


 


“Person” means
an individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization or other enterprise or government or agency or political subdivision
thereof.


 


“Proceeding”
means any threatened, pending or completed claim, action, suit, proceeding,
arbitration or alternative dispute resolution mechanism, investigation (formal
or informal), inquiry, administrative hearing, appeal or any other actual,
threatened or completed proceeding, whether brought in the right of a Covered
Entity or otherwise and whether of a civil (including intentional or
unintentional tort claims), criminal, administrative, arbitrative or
investigative nature.


 


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“Required
Statement” means a written statement of a Person that is required to be, and
is, filed with the SEC regarding the design, adequacy or evaluation of a
Covered Entity’s internal controls or the accuracy, sufficiency or completeness
of reports or statements filed by a Covered Entity with the SEC pursuant to
federal law and/or administrative regulations, including without limitation,
the certifications contemplated by Sections 302 and 906 of the Sarbanes-Oxley
Act of 2002, as amended, or any rule or regulation promulgated pursuant
thereto.


 


“Reviewing
Party” means, with respect to any determination contemplated by this Agreement,
any one of the following: (i) a majority vote of a quorum of the Board
consisting solely of Disinterested Directors; (ii) a committee consisting
solely of Disinterested Directors, even if such Persons would not constitute a
quorum of Board, so long as such committee was designated by a majority of the
Disinterested Directors; or (iii) Independent Legal Counsel (in which case, any
determination shall be evidenced by the rendering of a written opinion (which
may be in the form of a “more likely than not” opinion)); provided, the
expenses of any such Independent Legal Counsel shall be paid for by the General
Partner.


 


“SEC” means
the Securities and Exchange Commission.


 


“Securities
Act” means the Securities Act of 1933, as amended, or any similar Federal
statute then in effect.


 


2.             Indemnification.


 


(a)           Indemnification of
Losses and Expenses.  If an
Indemnification Event has occurred, then, subject to Section 9 below, the
General Partner and the Partnership shall, jointly and severally, indemnify and
hold harmless Indemnitees, to the fullest extent permitted by law, against any
and all Losses and Expenses, provided the Indemnitees acted in good faith and
in a manner Indemnitees reasonably believed to be in, or not opposed to, the
best interests of the General Partner, and, with respect to any criminal
Proceeding, had no reasonable cause to believe Indemnitees’ conduct was
unlawful.  The termination of any
Proceeding by judgment, court order, settlement or conviction or on plea of
nolo contendere, or its equivalent, shall not, of itself, create a presumption
that Indemnitees (i) did not act in good faith in a manner which he reasonably
believed to be in, or not opposed to, the best interests of the General
Partner, or (ii) with respect to any criminal Proceeding, had reasonable cause
to believe that Indemnitees’ conduct was unlawful.  Any indemnification provided for herein shall
be made no later than forty-five (45) days after receipt by the General Partner
of the Notice as required by Section 3(a) below and subject additionally to
Section 4 below.


 


(b)           Limitation with
Respect to General Partner Actions. The General Partner and the Partnership
shall not indemnify and hold harmless Indemnitees with respect to any Losses
(as opposed to Expenses) in connection with or arising from any General Partner
Action, but the General Partner and the Partnership shall indemnify and hold
harmless Indemnitees with respect to any Expenses in connection with or arising
from any General Partner Action unless, and only to the extent that, the
Indemnitees shall have been finally adjudged to be liable to the General Partner
or the Partnership with respect thereto by a court of competent jurisdiction
due to Indemnitees’ gross negligence or willful misconduct of a culpable nature
in the performance of Indemnitees’ duties to the General Partner; provided,
that Indemnitees shall nevertheless be entitled to indemnification to extent
that any court in which such General Partner Action was brought shall determine
upon application that, despite the adjudication of liability, but in view of
all the circumstances of the case, the Indemnitees is fairly and reasonably
entitled to Expenses for such indemnification as such court shall deem proper.


 


(c)           Advancement of
Expenses.  The General Partner or the
Partnership shall advance Expenses to or on behalf of Indemnitees as soon as
practicable, but in any event not later than 20 days


 


4

















 


after written request therefore
by Indemnitees which request shall be accompanied by vouchers, invoices or
similar evidence documenting in reasonable detail the Expenses incurred or to
be incurred by Indemnitees.  The
Indemnitees hereby undertakes to repay such amounts advanced only if, and to
the extent that, it shall ultimately be determined by final, nonappealable
adjudication that Indemnitees is not entitled to be indemnified by the General
Partner or the Partnership.  In the event
that the General Partner or the Partnership fails to pay expenses as incurred
by Indemnitees as required by this paragraph, Indemnitees may seek mandatory
injunctive relief from any court having jurisdiction to require the General
Partner or the Partnership to pay expenses as set forth in this paragraph.  If Indemnitees seeks mandatory injunctive
relief pursuant to this paragraph, it shall not be a defense to enforcement of
the General Partner’s and the Partnership’s obligations set forth in this
paragraph that Indemnitees has an adequate remedy at law for damages.


 


(d)           Contribution.  If, and to the extent, the indemnification of
Indemnitees provided for in Section 2(a) above for any reason is held by a
court of competent jurisdiction not to be permissible for liabilities arising
under Federal securities laws or ERISA, then the General Partner and the
Partnership, in lieu of indemnifying Indemnitees under this Agreement, shall
contribute to the amount paid or payable by Indemnitees as a result of such
Losses or Expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Covered Entities and all officers, directors
or employees of the Covered Entities other than Indemnitees who are jointly
liable with Indemnitees (or would be if joined in such Proceeding), on the one
hand, and Indemnitees, on the other hand, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Covered Entities and all officers,
directors or employees of the Covered Entities other than Indemnitees who are jointly
liable with Indemnitees (or would be if joined in such Proceeding), on the one
hand, and the Indemnitees, on the other hand, in connection with the action or
inaction that resulted in such Losses or Expenses, as well as any other
relevant equitable considerations.  The
relative fault of the Covered Entities and all officers, directors or employees
of the Covered Entities other than Indemnitees who are jointly liable with
Indemnitees (or would be if joined in such Proceeding), on the one hand, and
Indemnitees, on the other hand, shall be determined by reference to, among
other things, the degree to which their actions were motivated by intent to
gain personal profit or advantage, the degree to which their liability is
primary or secondary, and the degree to which their conduct is active or
passive.  No Person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
found guilty of such fraudulent misrepresentation.


 


(e)           Actions where
Indemnitees is Deceased.  If an
Indemnification Event has occurred, and if prior to, during the pendency of or
after completion of a Proceeding Indemnitees dies, the General Partner and the
Partnership shall indemnify and hold harmless Indemnitees’ heirs, executors and
administrators against any and all Expenses and Losses to the extent
Indemnitees would have been entitled to indemnification pursuant to
Sections 2(a) above if Indemnitees were still alive.


 


3.             Indemnification
Procedures.


 


(a)           Notice of
Indemnification Event.  Indemnitees
shall give the General Partner notice as soon as practicable of any
Indemnification Event of which Indemnitees becomes aware, provided that any
failure to so notify the General Partner shall not relieve the General Partner
or the Partnership of any of its obligations under this Agreement, except if,
and then only to the extent that, such failure increases the liability of the
General Partner or the Partnership under this Agreement.  In addition, Indemnitees shall give the
General Partner such information and cooperation as it may reasonably require
and as shall be within Indemnitees’ power.


 


(b)           Notice to Insurers.  If, at the time the General Partner receives
notice of an


 


5

















 


Indemnification Event pursuant
to Section 3(a) above, the General Partner has liability insurance in effect
which may cover such Indemnification Event, the General Partner shall give
prompt written notice of such Indemnification Event to the insurers in
accordance with the procedures set forth in each of the applicable policies of
insurance.  The General Partner shall
thereafter take all necessary or desirable action to cause such insurers to
pay, on behalf of Indemnitees, all amounts payable as a result of such
Indemnification Event in accordance with the terms of such policies; provided
that nothing in this Section 3(b) shall affect the General Partner’s or the
Partnership’s obligations under this Agreement or the General Partner’s or the
Partnership’s obligations to comply with the provisions of this Agreement in a
timely manner as provided.


 


(c)           Selection of Counsel.  If the General Partner or the Partnership
shall be obligated hereunder to pay or advance Expenses or indemnify
Indemnitees with respect to any Losses, the General Partner shall be entitled
to assume the defense of any related Claims in a Proceeding, with counsel
selected by the General Partner and approved by Indemnitees in Indemnitees’
reasonable discretion, upon the delivery to Indemnitees of written notice of
its election so to do.  After the
retention of such counsel by the General Partner, the Indemnitees shall be
entitled to employ or continue to employ separate counsel with respect to such
Claims at the cost and expense of the General Partner and the Partnership
unless and until the General Partner shall have demonstrated to the reasonable
satisfaction of Indemnitees that there is complete identity of issues and
defenses and no actual or potential conflict of interest exists between
Indemnitees and the General Partner with respect to such Claims, after which
time further employment of such counsel by Indemnitees shall be the cost and
expense of Indemnitees.  If the General
Partner shall not have in fact retained counsel to assume the defense or shall
not continue to retain such counsel to defend such Claim, then the fees and
expenses of Indemnitees’ counsel shall be at the expense of the General Partner
and the Partnership. The General Partner or the Partnership may not settle or
compromise any claim or consent to the entry of any judgment with respect to
which indemnification is being sought hereunder without the prior written
consent of the Indemnitees (such consent not to be unreasonably withheld).


 


4.             Determination
of Right to Indemnification.


 


(a)           Successful
Proceeding.  To the extent
Indemnitees has been successful, on the merits or otherwise, in defense of any
Proceeding referred to in Sections 2(a) or 2(b), the General Partner and the
Partnership shall indemnify Indemnitees against Losses and Expenses incurred by
him in connection therewith.  If
Indemnitees is not wholly successful in such Proceeding, but is successful, on
the merits or otherwise, as to one or more but less than all Claims in such Proceeding,
the General Partner and the Partnership shall indemnify Indemnitees against all
Losses and Expenses actually or reasonably incurred by Indemnitees in
connection with each successfully resolved Claim.


 


(b)           Other Proceedings.  In the event that Section 4(a) is
inapplicable, the General Partner and the Partnership shall nevertheless
indemnify Indemnitees, unless, but then only to the extent that, a Reviewing
Party chosen pursuant to Section 4(c) determines that Indemnitees has not met
the applicable standard of conduct set forth in Sections 2(a) or 2(b), as
applicable, as a condition to such indemnification.


 


(c)           Determination of
Entitlement to Indemnification. A determination that Indemnitees has met
the applicable standard of conduct set forth in Sections 2(a) or 2(b), as
applicable, as a condition to any such indemnification, shall be made by a
Reviewing Party chosen by a majority vote of a quorum of the Board consisting
solely of Disinterested Directors, subject to the following:


 


(i)            A Reviewing Party so
chosen shall act in good faith to assure Indemnitees a complete opportunity to
present to such Reviewing Party Indemnitees’ case that Indemnitees has met the
applicable standard of conduct.


 


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(ii)           Indemnitees shall be
deemed to have acted in good faith if Indemnitees’ action is based on the
records or books of account of a Covered Entity, including, without limitation,
its financial statements, or on information supplied to Indemnitees by the
officers or employees of a Covered Entity in the course of their duties, or on
the advice of legal counsel for a Covered Entity or on information or records
given, or reports made, to a Covered Entity by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
a Covered Entity.  In addition, the
knowledge and/or actions, or failure to act, of any director, officer, agent or
employee of a Covered Entity shall not be imputed to Indemnitees for purposes
of determining the right to indemnification under this Agreement.  Whether or not the foregoing provisions of
this Section 4(c)(ii) are satisfied, it shall in any event be presumed that
Indemnitees has at all times acted in good faith and in a manner Indemnitees reasonably
believed to be in or not opposed to the best interests of the General
Partner.  Any Person seeking to overcome
this presumption shall have the burden of proof and the burden of persuasion,
by clear and convincing evidence.


 


(iii)          If a Reviewing Party
chosen pursuant to this Section 4(c) shall not have made a determination
whether Indemnitees is entitled to indemnification within forty-five (45) days
after receipt by the General Partner of the request therefore, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and Indemnitees shall be entitled to such indemnification, absent (A) a
misstatement by Indemnitees of a material fact, or an omission of a material
fact necessary to make Indemnitees’ statement not materially misleading, in
connection with the request for indemnification, or (B) a prohibition of such
indemnification under applicable law; provided, however, that such 45-day
period may be extended for a reasonable time, not to exceed an additional fifteen
(15) days, if the Reviewing Party in good faith requires such additional time
for obtaining or evaluating documentation and/or information relating thereto.


 


(iv)          Change in Control.  If the General Partner, the Partnership, or
the General Partner’s Class A Member, MarkWest Hydrocarbon, Inc. (the “Company”)
under goes a Change in Control, the Reviewing Party shall be the Independent
Legal Counsel.  The General Partner
agrees that if there is such a Change in Control, then with respect to all
matters thereafter arising concerning the rights of Indemnitees to
Indemnification under this Agreement, the General Partner’s Limited Liability
Company Agreement, the Partnership’s Amended and Restated Agreement of Limited
Partnership or any other agreement, as now or hereafter in effect, Independent
Legal Counsel shall be selected by Indemnitees and approved by the General
Partner (which approval shall not be unreasonably withheld).  Such counsel, among other things, shall render
its written opinion (which may be in the form of a “more likely than not”
opinion) to the General Partner, the Partnership and Indemnitees as to whether
and to what extent Indemnitees would be permitted to be indemnified under
applicable law and this Agreement and the General Partner and the Partnership
agree to abide by such opinion.  The
General Partner and the Partnership agree to pay the fees of the Independent
Legal Counsel referred to above and to fully indemnify such counsel against any
and all expenses (including attorneys’ fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant hereto.


 


For purposes
of this Section 4(c)(iv), a “Change in Control” shall mean (a) a dissolution or
liquidation of a Person, or (b) a consolidation or merger of a Person with or
into any other corporation other entity or person, or any other corporate
reorganization, in which the equity holders of the affected Person immediately
prior to such consolidation, merger or reorganization, own less than 50% of the
affected Person’s voting power immediately after such consolidation, merger or
reorganization; provided, however, that a “Change
of Control” shall not include (i) any transaction with an Affiliate or
Affiliates of the Company (other than the acquisition by the Partnership of all
of the outstanding capital stock of Hydrocarbon) or any consolidation or merger
effected exclusively to change the domicile of the Company or (ii) the
acquisition by John M. Fox, directly or indirectly, of beneficial ownership of
more than 50% of the voting power of the Company.


 


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(d)           Appeal to Court.  Notwithstanding a determination by a
Reviewing Party chosen pursuant to Section 4(c) that Indemnitees is not
entitled to indemnification with respect to a specific Claim or Proceeding (an “Adverse
Determination”), Indemnitees shall have the right to apply to the Court of
Chancery of Delaware, the court in which that Claim or Proceeding is or was
pending or any other court of competent jurisdiction for the purpose of
enforcing Indemnitees’ right to indemnification pursuant to this Agreement,
provided that Indemnitees shall commence any such Proceeding seeking to enforce
Indemnitees’ right to indemnification within two (2) years following the date
upon which Indemnitees is notified in writing by the General Partner of the
Adverse Determination.  In the event of
any dispute between the parties concerning their respective rights and
obligations hereunder, the General Partner shall have the burden of proving by
clear and convincing evidence that the General Partner and the Partnership are
not obligated to make the payment or advance claimed by Indemnitees.


 


(e)           Presumption of
Success.  The General Partner and the
Partnership acknowledge that a settlement or other disposition short of final
judgment shall be deemed a successful resolution for purposes of Section 4(a)
if it permits a party to avoid expense, delay, distraction, disruption or
uncertainty.  In the event that any
Proceeding to which Indemnitees is a party is resolved in any manner (other
than by adverse judgment against Indemnitees) including, without limitation,
settlement of such Proceeding with or without payment of money or other
consideration, it shall be presumed that Indemnitees has been successful on the
merits or otherwise in such Proceeding. Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of persuasion, by
clear and convincing evidence.


 


(f)            Expenses Related to
this Agreement.  Notwithstanding any
other provision in this Agreement to the contrary, the General Partner and the
Partnership shall indemnify Indemnitees against all Expenses incurred by
Indemnitees in connection with any Proceeding under this Section 4
involving Indemnitees and against all Expenses incurred by Indemnitees in
connection with any other Proceeding between the General Partner and the
Partnership, on one hand, and Indemnitees on the other, involving the
interpretation or enforcement (subject to Section 10) of the rights of
Indemnitees under this Agreement unless a court of competent jurisdiction finds
that each of the claims and/or defenses of Indemnitees in any such Proceeding
was frivolous or made in bad faith.


 


5.             Additional
Indemnification Rights; Non-exclusivity.


 


(a)           Scope. The
General Partner and the Partnership hereby agree to indemnify Indemnitees to
the fullest extent permitted by law, even if such indemnification is not
specifically authorized by the other provisions of this Agreement or any other
agreement, the Organizational Documents of any Covered Entity or by applicable
law.  In the event of any change after
the date of this Agreement in any applicable law, statute or rule which expands
the right of a Delaware corporation or other entity to indemnify a member of
its board of directors or an officer, member, manager, employee, controlling
person, agent or fiduciary, it is the intent of the parties hereto that
Indemnitees shall enjoy by this Agreement the greater benefits afforded by such
change. In the event of any change in any applicable law, statute or rule which
narrows the right of an Delaware corporation or other entity to indemnify a
member of its board of directors or an officer, member, manager, employee,
controlling person, agent or fiduciary, such change, to the extent not
otherwise required by such law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the parties rights and
obligations hereunder except as set forth in Section 9(a) hereof.


 


(b)           Non-exclusivity.  The rights to indemnification, contribution
and advancement of Expenses provided in this Agreement shall not be deemed
exclusive of, but shall be in addition to, any other rights to which
Indemnitees may at any time be entitled under the Organizational Documents of
any Covered Entity, any other agreement, any vote of members or unitholders, as
the case may be, or Disinterested Directors, applicable law or otherwise.  Furthermore, no right or remedy herein conferred
is intended to be exclusive of any other right or remedy, and every other right
and remedy shall be


 


8

















 


cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise.  The
assertion of any right or remedy hereunder or otherwise shall not prevent the
concurrent assertion of any other right or remedy.  The rights to indemnification, contribution
and advancement of Expenses provided in this Agreement shall continue as to
Indemnitees for any action Indemnitees took or did not take while serving in an
indemnified capacity even though Indemnitees may have ceased to serve in such
capacity.


 


6.             No
Duplication of Payments.


 


The General
Partner and the Partnership shall not be liable under this Agreement to make
any payment of any amount otherwise identifiable hereunder, or for which
advancement is provided hereunder, if and to the extent an Indemnitee has
otherwise actually received such payment, whether pursuant to any insurance
policy, the Organizational Documents of any Covered Entity or otherwise (but
specifically excluding any payment received by the Indemnitees from any
insurance policy maintained by or for the benefit of such Indemnitees (other
than the General Partner) so long as an Indemnitee does not by virtue thereof
actually retain duplicative payments).


 


7.             Mutual
Acknowledgement.


 


Both the
General Partner and the Partnership, on one hand, and Indemnitees on the other
acknowledge that, in certain instances, Federal law or public policy may
override applicable state law and prohibit the General Partner and the
Partnership from indemnifying its directors and officers under this Agreement
or otherwise.  For example, the parties
acknowledge that the SEC has taken the position that indemnification is not
permissible for liabilities arising under certain Federal securities laws, and
Federal legislation prohibits indemnification for certain ERISA
violations.  Indemnitees understands and
acknowledges that the General Partner and the Partnership have undertaken, or
may be required in the future to undertake, with the SEC to submit the question
of indemnification to a court in certain circumstances for a determination of
the right under public policy to indemnify Indemnitees, and any right to
indemnification hereunder shall be subject to, and conditioned upon, any such
required court determination.


 


8.             Liability
Insurance.


 


(a)           Maintenance of
D&O Insurance.  The General
Partner hereby covenants and agrees that, so long as Indemnitees shall continue
to serve as an agent of the General Partner and thereafter so long as
Indemnitees shall be subject to any possible proceeding by reason of the fact
that Indemnitees was an agent of the General Partner, the General Partner,
subject to Section 8(c), shall promptly obtain and maintain in full force
and effect directors’ and officers’ liability insurance (“D&O Insurance”)
in reasonable amounts from established and reputable insurers, and the General
Partner’s Organizational Documents shall at all times provide for
indemnification and exculpation of officers and directors to the fullest extent
permitted under applicable law.


 


(b)           Rights and Benefits.
In all policies of D&O Insurance, Indemnitees shall be named as an insured
in such a manner as to provide Indemnitees the same rights and benefits as are
accorded to the most favorably insured of the General Partner’s officers and
directors.  The General Partner shall
advise Indemnitees as to the general terms of, and the amounts of coverage
provide by, any liability insurance policy described in this Section 8 and
shall promptly notify Indemnitees if, at any time, any such insurance policy
will no longer be maintained or the amount of coverage under any such insurance
policy will be decreased.   The General
Partner shall take all necessary action to cause any such insurer(s) to pay, on
behalf of Indemnitees, all amounts payable as a result of a Proceeding in
accordance with the terms of such policy or policies of D&O Insurance.


 


(c)           Limitation on Required
Maintenance of D&O Insurance. 
Notwithstanding the


 


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foregoing, the General Partner
shall have no obligation to obtain or maintain D&O Insurance if the General
Partner determines in good faith that such insurance is not available on
commercially reasonable terms or Indemnitees is covered by similar insurance
maintained by a subsidiary of the General Partner.


 


(d)           In the event that the
General Partner is also a named insured under any policy of D&O Insurance,
the General Partner hereby covenants and agrees that it will not settle any
Claims in a Proceeding that may be covered by such policy and in which
Indemnitees has or may incur Expenses or Losses without the prior written
consent of Indemnitees.


 


9.             Exceptions.


 


Any other
provision herein to the contrary notwithstanding, the General Partner and the
Partnership shall not be obligated pursuant to the terms of this Agreement to
indemnify Indemnitees:


 


(a)           against any Losses or
Expenses, or advance Expenses to Indemnitees, with respect to Claims initiated
or brought voluntarily by Indemnitees, and not by way of defense (including,
without limitation, affirmative defenses and counterclaims), except (i) Claims
to establish or enforce a right to indemnification, contribution or advancement
with respect to an Indemnification Event, whether under this Agreement, any
other agreement or insurance policy, the Organizational Documents of any
Covered Entity, applicable law or otherwise, (ii) if the Board has approved
specifically the initiation or bringing of such Claim. (iii) if such
indemnification is expressly required to be made by law, or (iv) if such
indemnification is provided by MarkWest Energy GP, L.L.C., in its sole
discretion, pursuant to the powers vested in MarkWest Energy GP, L.L.C. under
the LLC Act or the LP Act;


 


(b)           against any Losses or
Expenses, or advance Expenses to Indemnitees, with respect to any proceeding
instituted by Indemnitees to enforce or interpret this Agreement, if a court of
competent jurisdiction determines that the material assertions made by
Indemnitees in such proceeding were not made in good faith or were frivolous;


 


(c)           for any amounts paid in
settlement of a proceeding unless the General Partner consents to such
settlement, which consent shall not be unreasonably withheld;


 


(d)           against any Losses or
Expenses, or advance Expenses to Indemnitees, with respect to Claims arising
(i) with respect to an accounting of profits made from the purchase and sale
(or sale and purchase) by Indemnitees of securities of the General Partner or
the Partnership within the meaning of Section 16(b) of the Exchange Act or (ii)
pursuant to Sections 304 of the Sarbanes-Oxley Act of 2002, as amended, or any
rule or regulation promulgated pursuant thereto; or


 


(e)           if, and to the extent,
that a court of competent jurisdiction renders a final, unappealable decision
that such indemnification is not lawful.


 


10.          Remedies
of Indemnitees.


 


(a)           Right to Petition
Court.  In the event that Indemnitees
makes a request for payment of Losses and Expenses or a request for an
advancement of Expenses and the General Partner or the Partnership fails to
make such payment or advancement in a timely manner pursuant to the terms of
this Agreement, Indemnitees may petition a court of law to enforce the General
Partner’s and the Partnership’s obligations under this Agreement.


 


(b)           Burden of Proof.  In any judicial proceeding brought under this
Section 10, the General Partner and the Partnership shall have the burden of
proving by clear and convincing evidence that Indemnitees are not entitled to
payment of Losses and Expenses hereunder.


 


10

















 


(c)           Expenses.  The General Partner and the Partnership agree
to reimburse Indemnitees in full for any Expenses incurred by Indemnitees in
connection with investigating, preparing for, litigating, defending or settling
any action brought by Indemnitees under this Section 10, or in connection with
any claim or counterclaim brought by or against the General Partner and the
Partnership in connection therewith.


 


(d)           Validity of
Agreement.  The General Partner and
the Partnership shall be precluded from asserting in any Proceeding, including,
without limitation, an action under this Section 10, that the provisions of
this Agreement are not valid, binding and enforceable or that there is
insufficient consideration for this Agreement and shall stipulate in court that
the General Partner and the Partnership are bound by all the provisions of this
Agreement.


 


(e)           Failure to Act Not a
Defense.  The failure of the General
Partner (including its Board or any committee thereof, Independent Legal
Counsel or, as applicable, members or unitholders) to make a determination
concerning the permissibility of the payment of Losses and Expenses or the
advancement of Expenses under this Agreement shall not be a defense in any
action brought under this Section 10, and shall not create a presumption that
such payment or advancement is not permissible.


 


11.          Survival
of Rights.


 


(a)           All agreements and
obligations of the General Partner and the Partnership contained herein shall
continue during the period Indemnitees is an agent of the General Partner and
shall continue thereafter so long as Indemnitees shall be subject to any possible
claim or threatened, pending or completed action, suit or proceeding, whether
civil, criminal, arbitrational, administrative or investigative, by reason of
the fact that Indemnitees was serving in the capacity referred to herein.


 


(b)           The General Partner and
the Partnership shall require any successor to the General Partner or the
Partnership (whether direct or indirect, by purchase, merger, consolidation or
otherwise) or to all or substantially all of the business or assets of the
General Partner or the Partnership, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the General
Partner and the Partnership would be required to perform if no such succession
had taken place.


 


12.          Miscellaneous.


 


(a)           Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.


 


(b)           Binding Effect;
Successors and Assigns.  This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors and assigns (including
with respect to the General Partner or the Partnership, any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business and/or assets of the General Partner or the
Partnership) and with respect to Indemnitees, his or her spouse, heirs, and
personal and legal representatives.  The
General Partner and the Partnership shall require and cause any successor or
assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all, substantially all, or a substantial part, of the business
and/or assets of the General Partner or the Partnership, to assume and agree to
perform this Agreement in the same manner and to the same extent that the
General Partner and the Partnership would be required to perform if no such
succession or assignment had taken place. 
This Agreement shall continue in effect with respect to Claims relating
to Indemnification Events regardless of whether Indemnitees continues to serve
as a director, officer, employee, controlling person, agent or fiduciary of any
Covered Entity.


 


(c)           Notice.  All notices and other communications required
or permitted hereunder


 


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shall be in writing, shall be
effective when given, and shall in any event be deemed to be given (i) five (5)
days after deposit with the U.S. Postal Service or other applicable postal
service, if delivered by first class mail, postage prepaid, (ii) upon delivery,
if delivered by hand, (iii) one (1) business day after the business day of
deposit with Federal Express or similar, nationally recognized overnight
courier, freight prepaid, or (iv) one (1) business day after the business day
of delivery by confirmed facsimile transmission, if deliverable by facsimile
transmission, with copy by other means permitted hereunder, and addressed, if
to Indemnitees, to Indemnitees’ address or facsimile number (as applicable) as
set forth beneath Indemnitees’ signature to this Agreement, or, if to the
General Partner, at the address or facsimile number (as applicable) of its
principal corporate offices (attention: Secretary), or at such other address or
facsimile number (as applicable) as such party may designate to the other
parties hereto. 


 


(d)           Enforceability.  This Agreement, when executed and delivered
by the General Partner and the Partnership in accordance with the provisions
hereof, shall be a legal, valid and binding obligation of the General Partner and
the Partnership, enforceable against the General Partner and the Partnership in
accordance with its terms.


 


(e)           Consent to
Jurisdiction.  The General Partner,
the Partnership and each Indemnitee hereby irrevocably consents to the
jurisdiction and venue of the federal or state courts located in the State of
Delaware for all purposes in connection with any Proceeding which arises out of
or relates to this Agreement and hereby waives and agrees not to raise any
defense that any such court is an inconvenient forum or any similar claim.


 


(f)            Severability.  The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision with a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent permitted
by law.  Furthermore, to the fullest
extent possible, the provisions of this Agreement (including, without limitation,
each portion of this Agreement containing any provision held to be invalid,
void or otherwise unenforceable that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the extent manifested
by the provision held invalid, illegal or unenforceable.


 


(g)           Choice of Law.  This Agreement shall be governed by and its
provisions shall be construed and enforced in accordance with, the laws of the
State of Delaware, without regard to the conflict of laws principles thereof.


 


(h)           Subrogation.  In the event of payment under this Agreement,
the General Partner and the Partnership shall be subrogated to the extent of
such payment to all of the rights of recovery of Indemnitees (other than with
respect to any rights of recovery under any insurance policy maintained by the
Indemnitees or by any Person (other than the General Partner or the
Partnership) for and on behalf of the Indemnitees) who shall execute all
documents required and shall do all acts that may be necessary to secure such
rights and to enable the General Partner and the Partnership effectively to
bring suit to enforce such rights.


 


(i)            Amendment and
Termination.  No amendment,
modification, termination or cancellation of this Agreement shall be effective
unless it is in a writing signed by the parties to be bound thereby.  Notice of same shall be provided to all
parties hereto.  No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.


 


(j)            No Construction as
Employment Agreement.  Nothing
contained in this Agreement shall be construed as giving Indemnitees any right
to be retained or continue in the employ or service of any Covered Entity.


 


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[signature pages follow]


 


13

















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the day and year first above written.


 


 


	
   

  	
  MarkWest
  Energy GP, L.L.C.

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MarkWest
  Energy Partners, L.P.

  
	
   

  	
  a
  Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By
  MarkWest Energy GP, L.L.C. as its general partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEES:

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
								



 


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