**Exhibit 99.3**

 

**[*]**= Certainconfidential information contained in this document, marked by brackets, hasbeen omitted and filed separately with the Securities and Exchange Commissionpursuant to Rule 24-b-2 of the Securities Exchange Act of 1934, as amended.

 

**FIRM GAS PROCESSINGAGREEMENT**

**(Dwale)**

 

THIS *FIRM GAS PROCESSING AGREEMENT (Dwale)*(“Agreement”) is made and entered into this 23rd day of September,2004, and to be effective as of October 1, 2004, (the “Effective Date”), by andbetween **EQUITABLE PRODUCTION COMPANY,**hereinafter referred to as “*Equitable*”,and **MARKWEST HYDROCARBON, INC.,**hereinafterreferred to as “*MarkWest*”.

 

RECITALS:

 

A.                                   Equitable and MarkWest are parties to thatcertain Gas Processing Agreement (Dwale) dated as of May 28, 1999, as such mayhave heretofore been amended (collectively, the “Old Dwale Agreement”).

 

B.                                     Equitable and MarkWest desire to replace andsupersede the Old Dwale Agreement with this Agreement.

 

NOW,THEREFORE, in consideration of the mutual covenants contained herein, Equitableand MarkWest agree that as of the Effective Date, this Agreement shallsupersede and replace, in their entirety, the Old Dwale Agreement and that gaspreviously subject to the Old Dwale Agreement will, as of the Effective Date,be subject to the following terms and provisions:

 

**ARTICLE I**

**DEFINITIONS**

 

The following definitions ofterms shall apply for all purposes of this Agreement:

 

1.1                                 “*AccountingPeriod*” means a period of one month, commencing at 10:00 a.m.Eastern time on the first day of a calendar month and ending at 10:00 a.m.Eastern time on the first day of the next succeeding month, or commencing andending at such other times as established as the standard by the Gas IndustryStandards Board (GISB), from time to time, to the extent adopted by Columbia.

 

1.2                                 “*BoldmanPlant*” means the gas processing facilities located on the north sideof KY Route-1384 at Boldman, Pike County, Kentucky and known as the BoldmanPlant and including without limitation, all tanks, equipment, pipe, valves, andmaterial of any kind, including appropriate gas and liquid measurementfacilities, pipeline and compression facilities, storage, shipping,dehydration, gas treating and delivery facilities for Plant Products; allstructures located, or to be located, on the site(s) at which the compressionand processing facilities are now or hereafter located; all easementspertaining to the site(s) and operation of those facilities; and any 

 

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and all facilities useddirectly in the processing function located, or to be located, on or away fromthe site(s).

 

1.3                                  “*BTU*”means British Thermal Unit and is the amount of heat required to raise thetemperature of one (1) pound of pure water from fifty-nine degrees Fahrenheit(59oF) to sixty degrees Fahrenheit (60oF).

 

1.4                                 “*CobbPlant*” means the gas processing facilities located at Clendenin,Kanawha County, West Virginia and known as the Cobb Plant, and includingwithout limitation, all tanks, equipment, pipe, valves, and material of anykind, including appropriate gas and liquid measurement facilities, pipeline andcompression facilities, storage, shipping, dehydration, gas treating anddelivery facilities for Plant Products; all structures located, or to belocated, on the site(s) at which the compression and processing facilities arenow or hereafter located; all easements pertaining to the site(s) and operationof those facilities; and any and all facilities used directly in the processingfunction located, or to be located, on or away from the site(s).

 

1.5                                 “*Columbia*”means Columbia Gas Transmission Corporation, its successors and assigns.

 

1.6                                 “*ColumbiaReceipt Points*” means the point(s) where gas gathered in theGathering System is delivered into the transmission pipelines of Columbia,which as of the date of this Agreement, is Columbia’s meter number 808220; orto such other meter locations as from time to time agreed upon by the parties.

 

1.7                                 “*Columbia’sTariff*” means the natural gas tariff of Columbia as from time totime approved by FERC and made effective.

 

1.8                                 “*Cubic Foot*”or “*Cubic Feet*” has the meaningascribed to it in Columbia’s Tariff.

 

1.9                                 “*Equitable’sGas*” means all gas delivered by Equitable at the Columbia ReceiptPoints(s), excluding, however, any gas owned or controlled by Equitable whichit delivers under the terms of the Maytown Agreement or is excluded pursuant toother provisions of this Agreement.

 

1.10                            “*FERC*”means the Federal Energy Regulatory Commission, or any successor federalagency.

 

1.11                           [*].

 

1.12                           [*].

 

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1.13                            “*FuelRetainage*” means an amount equal to [*] of the Thermal Content ofEquitable’s Gas.

 

1.14                           “*GatheringSystem*” means the gas gathering and transmission pipelines andrelated facilities, including both those subject to regulatory jurisdiction andthose not subject to such jurisdiction, owned by Kentucky West Virginia GasCompany L.L.C., or its affiliates and subsidiaries, and its or their successorsand assigns, together with all other gas gathering facilities located upstreamof the location of Equitable’s previously existing Dwale Gas Processingfacility.

 

1.15                           “*GrossHeating Value*” means the number of BTU’s produced by the completecombustion, at a constant pressure, of the amount of dry gas (gas containing nowater vapor) which would occupy a volume of one (1) Cubic Foot at a temperatureof sixty degrees Fahrenheit (60oF) and at a standard pressure base offourteen-and-seventy-three-hundredths (14.73) pounds per square inch absolute(psia) with air at the same temperature and pressure and as the gas, when theproducts of combustion are cooled to the initial temperature of the gas and airand when the water formed by combustion is condensed to the liquid state.

 

1.16                           “*KenovaPlant*” means the gas processing facilities connected to thetransmission facilities of Columbia in Columbia’s Ceredo District, located inWayne County, West Virginia, and known as the Kenova Plant, and includingwithout limitation, all tanks, equipment, pipe, valves, and material of anykind, including appropriate gas and liquid measurement facilities, pipeline andcompression facilities, storage, shipping, dehydration, gas treating anddelivery facilities for Plant Products; all structures located, or to belocated, on the site(s) at which the compression and processing facilities arenow or hereafter located; all easements pertaining to the site(s) and operationof those facilities; and any and all facilities used directly in the processingfunction located, or to be located, on or away from the site(s) deemed byMarkWest to be necessary for its performance under this Agreement.

 

1.17                           “*LiquidHydrocarbons*” is used herein to refer to liquefiable hydrocarbonspresent in the vapor phase in the gas stream and to refer to hydrocarbons in aliquid state due to pipeline liquid fallout and after the extraction by theKenova Plant from the gas stream, but shall in either case mean naturalgasoline (pentane plus heavier hydrocarbons), butanes, propane and ethane(including such incidental methane as may be extracted from the gas undernormal operation of processing facilities).

 

1.18                           “*MaytownAgreement*” means that certain Gas Processing Agreement (Maytown),entered into between Equitable and MarkWest, dated May 28, 1999, as from timeto time amended.

 

1.19                           “*MCF*”means one-thousand (1,000) Cubic Feet.

 

1.20                           “*PlantProducts*” means any mixtures of Liquid Hydrocarbons.

 

1.21                           “*ThermalContent*” for gas means the product of the measured volume in dryMCF’s and the Gross Heating Value in dry BTU’s per MCF, adjusted to the samepressure base.

 

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**ARTICLE II**

**COMMITMENT, RECEIPT AND DELIVERY CONDITIONS**

 

2.1                                 Upon the Effective Date of this Agreement,this Agreement shall supersede and replace, in its entirety, the Old DwaleAgreement, as defined above.

 

2.2                                 This Agreement is made expressly subject to,and incorporates by this reference, the terms and provisions of that certainNetting, Financial Responsibility and Security Agreement, of even dateherewith, between Equitable and MarkWest as attached hereto as Exhibit A.

 

2.3                               Equitable represents that no affiliate ofEquitable owns any right, title or interest in oil and gas production(“Interests”) in Gas delivered into the Gathering System as of the EffectiveDate of this Agreement, other than Interests in Gas purchased from ortransported for third parties by affiliates of Equitable, as set forth below inthis Section 2.3, subject to Equitable’s right to sell, convey, transfer orassign its Interests under this Agreement. Equitable represents that (i) gaspurchased by such affiliates of Equitable from or transported for third partiesshall be considered third-party gas, and considered under the terms of thisAgreement as third-party gas delivered into the Gathering System, and (ii) anygas delivered into the Gathering System which is owned by Equitable ProductionCompany and purchased by affiliates of Equitable shall be considered dedicatedto the performance of this Agreement in the same manner as set forth in Section2.4.

 

2.4                                 Subject to the other terms and conditionshereof, and during the term of this Agreement, Equitable hereby commits and agreesto deliver to the Columbia Receipt Points all gas now or hereafter considereddedicated under the terms of this Agreement, as set forth in this ArticleII.  Equitable and MarkWest will usetheir commercially reasonable efforts to cause Columbia to deliver the gasdelivered by Equitable at the Columbia Receipt Points to MarkWest at its KenovaPlant, the Boldman Plant or successor plants subject to the ability of thepipeline on which the gas is transported to receive such gas, and, Equitablegrants [*].

 

2.5                                 Except as provided herein, Gas produced froma well in which Equitable owns Interests is considered dedicated to theperformance of this Agreement if [*].

 

2.6                                 The parties acknowledge that this Agreementis applicable to gas attributable to the Interests of Equitable and producedfrom the wells described herein.  Theparties also acknowledge that this Agreement is applicable to [*] to the extentthat Equitable has the right to process [*]. To the extent that [*] Equitable does not have the right to process,Equitable shall notify MarkWest in writing prior to delivering such gashereunder.  Notwithstanding any otherprovisions to the contrary, the parties agree that any wells that [*] except asset forth in section 2.17, [*].

 

2.7                                 Equitable’s commitment to deliver Gas fromwells described under the terms of this Agreement expressly excludes thefollowing Gas:

 

a.                                     all gas dedicated to MarkWest EnergyAppalachia, L.L.C. (“MEA”), by Equitable under the Maytown Agreement;

 

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b.                                    all gas (i) that Equitable is required to[*].

 

2.8                                 Further, Equitable reserves the right, in itssole discretion to operate all wells and/or facilities described hereunder freefrom the control of MarkWest and may, at any time, clean out, deepen, shut-in,plug or abandon any well(s) described under this Agreement, or may use anymethod it reasonably deems appropriate for the production of gas.  Furthermore, nothing in this Agreement shallobligate Equitable to drill any wells or maintain or replace any wells and/orfacilities.

 

2.9                                 Equitable and its affiliates operate theGathering System, and in the operation thereof, Equitable agrees that it willoperate the Gathering System such that any separation equipment installed byEquitable, or its affiliates, at the wells that are described hereunder or onthe Gathering System shall be those as are commonly used in the industry onsimilar gathering facilities, and shall be designed and operated so as to notremove or separate Plant Products that are in the gaseous state. [*], Equitableand its affiliates may, due to operation requirements on the Gathering System,cause the extraction of liquefiable hydrocarbons from Gas delivered into theGathering System prior to delivery.  [*].

 

2.10                           Any conveyance, assignment, sale or othertransfer of all or a portion of Equitable’s Interests in any well from whichGas dedicated hereunder is produced shall include and be subject to thisAgreement, and Equitable shall require any purchaser, assignee or othertransferee of any portion of those Interests to agree to the terms hereof tothe extent of the portion of those Interests acquired from Equitable by thatparty. Further, should Equitable contribute any lands or acreage in whichEquitable’s Interests exist and that are attributable to gas produced fromwells described hereunder, whether in the form of a dry hole or bottom holecontribution or other contribution to the drilling and/or exploration effortsof another producer, and if the production attributable to those efforts is, asof the date or during the term of this Agreement, ever delivered into theGathering System, the gas production attributable to the Interests of Equitableshall [*].

 

2.11                           Nothing herein shall constitute any guaranteeor warranty by Equitable of minimum delivery volumes, or the content ofhydrocarbon liquids thereof.

 

2.12                           The parties agree that the Gathering Systemas defined in this Agreement and the gathering system under the MaytownAgreement are physically connected and that gas dedicated under the terms ofthis Agreement may in fact flow to the delivery points as provided in theMaytown Agreement (“Maytown Delivery Points”). If future operational changesmake it desirable to Equitable to have sustained deliveries of gas at theMaytown Delivery Points in excess of [*] Mcf per day greater than the volume ofgas that had been delivered to the Maytown Delivery Point, on average duringthe 12 months prior to the date of the Old Dwale Agreement (subject todecreases in gas volumes produced from individual wells and increases in gasvolumes due to wells drilled or modified after the date of the Old DwaleAgreement), the parties agree to such transfers or diversions only uponmodifications to this Agreement as necessary to provide MarkWest with no lessthan the economic benefit as MarkWest would have received absent the diversionof Gas in excess of [*] Mcf per day.

 

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2.13                           Contemporaneous with this Agreement,Equitable and MarkWest have executed that certain firm gas processing agreementto replace each of the Gas ProcessingAgreement dated as of May 20, 1997, by and between Eastern States Oil & Gasand MarkWest Hydrocarbon, Inc., and the Gas Processing Agreement dated as ofMay 20, 1997, by and between Blazer Energy Corporation and MarkWestHydrocarbon, Inc (such replacement processing agreement referred to herein asthe “Non-Dwale Firm Gas Processing Agreement”).  MarkWest will provide an aggregate [*] of[*], and in no event will the total [*] under this Agreement [*].

 

2.14                          Subject to the other provisions hereof,commencing on the Effective Date, Equitable agrees to deliver to MarkWest, orcause to be delivered to MarkWest at the Columbia Receipt Points, and MarkWestagrees, on a Firm Basis for the Firm Capacity allocated to this Agreement underSection 2.13, to either [*]. 

 

2.15                           MarkWest agrees that it will not [*].

 

2.16                           Should Equitable deliver Equitable’s Gas inexcess of the [*], MarkWest agrees [*].

 

2.17                           Notwithstanding anything to the contrary inArticle II, no commitment or dedication of Gas or Interests, nor exclusive rightto process, shall apply to Gas as to (i) which Equitable elects to exercise itsrights under Section 2.12 of this Agreement and Sections 3.7 and 3.10 of theMaytown Agreement, during periods when Equitable is exercising such rights,and; (ii) which was not previously committed or dedicated under the Old DwaleAgreement, but which Equitable elects to deliver such Gas into the GatheringSystem on a temporary basis to avoid temporary capacity curtailments or othertemporary bottlenecks of pipeline capacity, whether upstream or downstream ofthe Delivery Point; or (iii) which was previously committed or dedicated underthe Old Dwale Agreement, but which Equitable elects to deliver on a temporarybasis off the Gathering System to alternate delivery points to avoid temporarycapacity curtailments or other temporary bottlenecks of pipeline capacity,whether upstream or downstream of the Delivery Point.  For purposes of (ii) and (iii), suchdeliveries are individually and collectively referred to herein as “TemporaryDeliveries” without being considered dedicated under the terms of thisAgreement, and such Temporary Deliveries shall not extend for longer than [*],unless MarkWest consents to a longer period, with such consent not beingunreasonably withheld.

 

**ARTICLE III**

**MEASUREMENT FACILITIES**

 

3.1                                 The volume, composition, and Gross HeatingValue of the gas delivered by Equitable at the Columbia Receipt Points shall bemeasured in accordance with all AGA and API standards and procedures for eachAccounting Period by Equitable or Equitable shall cause its designee to performthat measurement. The composition and Gross Heating Value shall be determinedby chromatographic analysis. Equitable shall provide MarkWest with the volume,composition and Gross Heating Value of the gas delivered by Equitable at theColumbia Receipt Points during each Accounting Period within 30 days followingthe end of that Accounting Period.

 

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3.2                                 MarkWest shall have access, after notice toEquitable, at all reasonable hours to all of Equitable’s facilities which arerelated to gas measurement and sampling. Equitable shall notify MarkWest and MarkWest shall have the right to bepresent for any installing, reading, cleaning, changing, repairing, testing,calibrating and/or adjusting any measuring equipment.

 

3.3.                            Upon request by MarkWest, Equitable willprovide, or will cause its designee to provide MarkWest with all test data andrecords and/or charts, together with calculations therefrom, for inspection andverification, subject to return within 30 days after receipt thereof.  Equitable shall preserve for a period of atleast 2 years from the date the test is made or the records and/or charts arecreated, or longer as required by law, all test data and all records and/orcharts from each party’s measuring equipment for auditing.  Thereafter, the test data and all recordsand/or charts may be destroyed, unless MarkWest has given notice that itdesires an audit, or an audit has commenced, in accordance with this Agreement,covering the time in which the test data, records, or charts were originated.

 

**ARTICLE IV**

**COMPENSATION**

 

4.1                                 For processing Equitable’s Gas and returningthe Thermal Content to Equitable or for Equitable’s account, subject to theterms hereof, MarkWest shall acquire title to all of the Plant Productsrecovered by MarkWest from Equitable’s Gas delivered hereunder and Equitableshall have no rights therein nor to any proceeds derived by MarkWest from thosePlant Products.

 

4.2                                 MarkWest shall [*] the Fuel Retainage, forEquitable’s account, at such points or locations on Columbia’s systemacceptable to MarkWest and Columbia so long as such locations do not affectEquitable’s nominated transportation path.

 

4.3                                 MarkWest has an Operating Agreement withColumbia regarding the Kenova Plant, specifically, the Kenova OperatingAgreement dated the 16th day of October, 1999, as amended effectiveDecember 1, 2001 (the “Operating Agreement”). [*].  No amendment, modification,replacement or supplement to the Plant Agreements shall serve to alter theobligations of MarkWest hereunder; provided however, that if Columbia in thefuture agrees to [*], then the term “Plant Agreements” for purposes of thisparagraph will include such new agreement [*], and no other terms or provisionsof such future agreement shall be included in the term “Plant Agreements.”  Equitable is not a party to the PlantAgreements and by entering into this Agreement, Equitable does not intend toratify, confirm, adopt or otherwise agree or consent to the Plant Agreements, orany of them, and by this amendment Equitable does not ratify, confirm, adoptor, otherwise agree or consent to the Plant Agreements, or any of them;provided, however, Equitable and MarkWest acknowledge that the Plant Agreementsare referenced for the sole purpose of determining MarkWest’s compliance withSection 2.14, Section 4.2 and this Section 4.3. With respect to performanceunder Section 4.2 above but without adoption, confirmation, ratification orother agreement by Equitable as to any agreements between MarkWest andColumbia, Equitable agrees that MarkWest will not be in default of [*] ifMarkWest [*] in accordance with the terms of the Plant Agreements ([*] exceptto the extent the failure was due to 

 

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MarkWest [*] inaccordance with the terms of the Plant Agreements); and further, MarkWest shallnot be in default of [*] ifit [*] allowed under the PlantAgreements.  In the event of any breachor default by MarkWest of the obligation to [*] under the terms of the Plant Agreements [*], then MarkWest’s [*] to Equitable shall be measured andcontrolled by Section 4.2 of this Agreement, and without reference to the PlantAgreements.  Nothing in this Agreementshall constitute or be construed to be a release of any claim Equitable mayhave against Columbia.  Without limitingany of the foregoing, it is the parties’ understanding, based on past practicesof Columbia that [*] inaccordance with the Plant Agreements will be [*].

 

**ARTICLE V**

**ROYALTY AND TAXES**

 

5.1                                 Equitable agrees to account for and be responsiblefor all the royalties due on the gas delivered under this Agreement in strictaccordance with the provisions of those leases or agreements creating thoseroyalties.

 

5.2                                 Equitable shall be responsible for all grossproduction, severance, and similar taxes levied against or with respect to gasdelivered under this Agreement.  MarkWestshall under no circumstances become liable for those taxes, unless designatedto remit those taxes on behalf of Equitable by any duly constitutedjurisdictional agency having authority to impose such obligations on MarkWest,in which event this amount of those taxes remitted by MarkWest on Equitable’sbehalf shall be added to the compensation otherwise due MarkWest hereunder.

 

5.3                                 MarkWest shall be responsible for any existingor new taxes levied against or with respect to Plant Products recovered byMarkWest from Equitable’s Gas.

 

**ARTICLE VI**

**TERM**

 

6.1                                 This Agreement shall be binding upon fullexecution hereof and shall remain in full force and effect until February 9, 2015[*].  Either party may terminate thisAgreement at the end of the Primary Term, or at the end of any extensionthereof, by providing 6 months prior written notice to the other party.

 

**ARTICLE VII**

**STATEMENTS**

 

7.1                                 Based on the measurements set forth in thisAgreement, MarkWest shall provide Equitable with a statement of payments dueunder the terms of this Agreement not later than the 15 days after receipt fromEquitable of all information outlined in Section 3.1.

 

7.2                                 All payments shall be paid by Equitable toMarkWest by wire transfer not later than 15 days after receipt of the statementprovided in Section 7.1.  ShouldEquitable fail to make any payments to MarkWest, interest shall accrue on theunpaid balance at the lower of (i) the then 

 

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effective prime interest ratepublished in the “Money Rates” section of The Wall Street Journal, plus twopercent (2 %), or (ii) the published rate allowed by law, from the date dueuntil paid.

 

7.3                                 Either party, on 30 days prior writtennotice, shall have the right at its expense, at reasonable times duringbusiness hours, to audit the books and records of the other party to the extentnecessary to verify the accuracy of any statement, allocation, measurement,computation, charge, or payment made under or pursuant to this Agreement, or todetermine if all gas dedicated under this Agreement is being delivered underthe terms of this Agreement.  The scopeof any audit shall be limited to the 24 month period immediately prior to themonth in which the audit is requested; provided, no audit may include any timeperiod for which a prior audit hereunder was conducted, and no audit may occurmore frequently than once each 12 months. The party conducting the audit shall have 60 days after completing theaudit in which to submit a written claim for adjustments, with supportingdetail.  The audited party shall respondto the written claim in writing within 30 days after receiving the writtenclaim.  All statements, allocations,measurements, computations, charges, or payments made in any period prior tothe 24 month period immediately prior to the month in which the audit isrequested, or made in any 24 month period for which the audit is requested butfor which a written claim for adjustments is not made within 60 days after theaudit is requested, plus any additional time caused by the unreasonable delaysof the party being audited, shall be conclusively deemed true and correct forthat time period; provided, however, that the failure to discover or challengeany errors in formulas, computation methods or the like in past periods willnot waive either party’s right to challenge such errors in future periods.

 

**ARTICLE VIII**

**NOTIFICATION**

 

8.1                                 Any notice or other communication providedfor in this Agreement shall be given in writing and shall be considered as dulydelivered when either mailed first class postage prepaid by United States mail,by delivery service or sent via facsimile transmission, addressed to the partyto whom such notice is given as follows:

 

Equitable:

 
|   | Vice President, Commercial    |
|--------|-------------------------------|
|   | Equitable Production  Company |
|   | 100 Allegheny Center Mall     |
|   | Pittsburgh, PA 15212          |
|   | Facsimile:                    | (412) 395-3919 |

 

Any notices given under or relating to theprovisions of Article 9 or Section 12.2, shall, in addition to the foregoing,be sent by certified mail to:

 
|   | General Counsel               |
|--------|-------------------------------|
|   | Equitable Production  Company |
|   | One Oxford Centre             |
|   | Suite 3300                    |
|   | Pittsburgh, PA 15219          |
|   | Facsimile:                    | (412) 553-7781 |

 

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| MarkWest: | MarkWest Hydrocarbon, Inc.           |
|-----------|--------------------------------------|
|      | 155 Inverness Drive West,  Suite 200 |
|      | Englewood, Colorado 80112            |
|      | Facsimile:                           | (303) 290-8769 |
|      | Attention:                           | Contract Administration |

 

Notice shall be effective when received,except notice sent by mail shall be deemed received three (3) days aftermailing.  Either party may change itsaddress for notice purposes by written notice to that effect.

 

**ARTICLE IX**

**LIABILITY AND WARRANTIES**

 

9.1                                 As between the parties hereto, Equitable, orits designee shall be in control and possession of the gas hereunder until suchgas is delivered at the Columbia Receipt Points and after it is returned toColumbia for Equitable’s account. MarkWest shall be in control and possession of the gas deliveredhereunder from the time such gas is delivered at the MarkWest******Receipt Points anduntil it is returned to Columbia for Equitable’s account.

 

9.2                                 MarkWest hereby covenants and agrees withEquitable that except to the extent caused by Equitable’s gross negligence orwillful misconduct, MarkWest shall protect, defend, indemnify and hold harmlessEquitable and its affiliates, contractors, subcontractors, agents orrepresentatives of Equitable and its affiliates, and the directors, managers,officers or employees of Equitable, its affiliates or the contractors,subcontractors, agents or representatives of same (hereinafter referred to asagents or representatives of same (hereinafter referred to as *“Equitable Indemnified Parties”)*from,against and in respect of any and all Losses (as hereinafter defined) incurredby any Equitable Indemnified Party to the extent such Losses arise from or arerelated to:  (a) a claim by any partyother than Equitable resulting from any material breach of any of therepresentations, warranties, covenants or agreements made in this Agreement byMarkWest; (b) MarkWest’s ownership and operation of its facilities from andafter the Columbia Receipt Points; (c) MarkWest’s possession and control ofEquitable’s Gas; and (d) MarkWest’s exercise of its rights under Section 12.4.

 

9.3                                 Equitable hereby covenants and agrees withMarkWest that except to the extent caused by MarkWest’s gross negligence orwillful misconduct, Equitable shall protect, defend, indemnify and holdharmless MarkWest and its affiliates, contractors, subcontractors, agents orrepresentatives of MarkWest and its affiliates, and the directors, managers, officersor employees of MarkWest, its affiliates or the contractors, subcontractors,agents or representatives of same (hereinafter referred to as the *“MarkWest Indemnified Parties”*) from,against and in respect of any and all Losses (as hereinafter defined) incurredby any MarkWest Indemnified party to the extent such Losses arise from or arerelated to: (a) a claim by any party other than MarkWest resulting from anymaterial breach of any of the representations, warranties, covenants oragreements made in this Agreement by Equitable; (b) Equitable’s possession ofthe gas prior to the Columbia Receipt Points(s) and as to the gas returned toColumbia for Equitable’s account, after 

 

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the outlet of the Kenova Plant; (c)Equitable’s ownership and operation of its facilities before the ColumbiaReceipt Points; and (d) Equitable’s exercise of its rights under Section 12.4.

 

9.4                                 For the purposes of this Article IX, *“Loss(es)”* shall mean any actual loss,cost, expense, liability, damage, demand, suit, sanction, claim, settlement,judgment, lien, fine, penalty, interest of every kind and character (includingreasonable fees and expenses of attorneys, technical experts and expertwitnesses reasonably incident to same) which are alleged, asserted or sufferedby or arising in favor of any party including without limitation the applicableIndemnified Parties (as herein defined), or any third parties, and any expensesincurred in enforcing this indemnity provision, incurred by, imposed upon orrendered against one or more of the applicable Indemnified Parties, on accountof injuries (including death) to any person or damage to or destruction of anyproperty, sustained or alleged to have been sustained in connection with orarising out of or incidental to the matters for which the Indemnifying Partyhas indemnified the applicable Indemnified Parties.

 

9.5                                 Indemnification Procedure.  The indemnifications contained in thisArticle shall be implemented as follows:

 

a.  Notice of Claim.  The party seeking indemnification under theterms of this Agreement (*“indemnified party”*)shall submit a written *“Claim Notice”*to the other party (*“indemnifying party”*)which, to be effective, must state: (i)  the amount, if any, of eachpayment claimed by an indemnified party to be owing, (ii)  the basis for the claim, with reasonablesupporting documentation, and (iii) to the extent reasonably possible, eachseparate item of Loss for which payment, or other performance under theArticle, is so claimed.  If the ClaimNotice demands payment of money, the amount claimed shall be paid by theindemnifying party to, and only to, the extent required herein within 30 daysafter receipt of the Claim Notice or after the amount of that payment has beenfinally established, either judicially or by mutual agreement, whichever lastoccurs.

 

b.  Claims Involving Litigation.  Within 30 days after notification to anyindemnified party with respect to any claim or legal action or other mattersthat may result in a Loss for which indemnification may be sought under thisArticle, but in any event in time sufficient for the indemnifying party tocontest any action, claim, proceeding or other matter that has become thesubject of proceedings before any court or tribunal, the indemnified partyshall give written notice of the claim, legal action or other matter to theindemnifying party and, at the request of the indemnifying party, shall furnishthe indemnifying party or its counsel with copies of all pleadings and otherinformation with respect to the claim, legal action or other matter.  If the information includes any matter whichis privileged or otherwise exempt from discovery by an adverse party,disclosure of that matter may be made contingent upon entering into a jointdefense agreement or taking other reasonable protective measures.  The failure to provide that notice within thetime specified shall not relieve an indemnifying party of its indemnityobligations hereunder except to the extent of any Losses which are attributableto that failure.  Upon the election ofthe indemnifying party made within 60 days after receipt of that notice by theindemnifying party, indemnifying party shall have the right to assume controlof that claim, legal action or other matter (to the extent only that the claim,legal action or other matter 

 

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relates to a Loss for whichthe indemnifying party is liable), including the determination of allappropriate actions, the negotiation of settlements on behalf of theindemnified party, and the conduct of litigation through attorneys of theindemnifying party’s choice, provided, however, that no settlement can resultin any liability or cost to the indemnified party for which it is entitled tobe indemnified hereunder without its consent. If the indemnifying party elects to assume control, (i) any expenseincurred by the indemnified party thereafter for investigation or defense ofthe matter shall be borne by the indemnified party and (ii) the indemnifiedparty shall give all reasonable information and assistance, other thanpecuniary, that the indemnifying party shall deem necessary to the properdefense of the claim, legal action, or other matter, subject to therequirements, if applicable, of a joint defense agreement or reasonableprotective measures as referred to above. In the absence of an election, the indemnified party will use good faithefforts to defend, at the indemnifying party’s expense any claim, legal actionor other matter to which the other party’s indemnification under this Articleapplies until the indemnifying party assumes the defense, and, if theindemnifying party fails to assume that defense within the time period providedabove, at the indemnified party’s election either continue the defense thereof,at the indemnifying party’s expense, or settle the same in the indemnifiedparty’s reasonable discretion, and with the consent of the indemnifying party,which consent shall not be unreasonably withheld, at the indemnifying party’sexpense.

 

9.6                                 No breach of this Agreement shall cause anyparty hereto to be liable to the other parties hereto for, nor shall Loss(es) include,indirect, punitive, consequential, or exemplary damages.

 

9.7                                 MarkWest shall be deemed to be in defaultunder this Agreement upon the occurrence of any of the following (“Event ofDefault”): (i) it fails to make timely payment of any amount not in dispute dueto Equitable under this Agreement, after Equitable gives MarkWest ten (10) dayswritten notice to cure; (ii) it fails to perform fully a material provision ofthis Agreement (other than failure to pay) and fails to cure the same or toprovide a plan reasonably acceptable to Equitable to cure the same and todiligently pursue such plan after Equitable gives MarkWest thirty (30) dayswritten notice to cure; (iii) it makes an assignment or any general arrangementfor the benefit of creditors; (iv) it files a petition or otherwise commences,authorizes, or acquiesces in the commencement of a proceeding or cause underany bankruptcy or similar law for the protection of creditors or have suchpetition filed or proceeding commenced against it; (v) it otherwise becomesbankrupt or insolvent; (vi) it is unable to pay its debts as they fall due; or(vii) it fails to give adequate security for or assurance of its ability toperform its reasonable obligations under this Agreement within thirty (30) daysof a reasonable request by Equitable, which reasonable request shall includewritten specifications, setting forth in reasonable detail, the reasons andgrounds on which Equitable requests such security or assurance.

 

9.8                                 When an Event of Default occurs, Equitableshall have the right:

 

a.                                       to terminate this Agreement in accordancewith its provisions, and/or

b.                                      To suspend the delivery of Gas, and/or

c.                                       To pursue any other remedy provided in thisAgreement or available at law or in equity, subject to the limitation ofremedies contained in Section 9.6.

 

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It is expressly understood and agreed thatthe exercise of any remedies or rights available to Equitable under paragraphsa., through c., above, shall not be considered an election of remedies andshall be without prejudice to Equitable’s right to assert all other rights andremedies available to it at law or in equity.

 

9.9                                 Equitable warrants and represents that it hasgood title to and/or the full right to deliver, for the purposes stated herein,all gas (including all Liquid Hydrocarbons contained therein) deliveredhereunder and that all gas delivered hereunder will be free from all adverseclaims, encumbrances and liens of any nature, and Equitable will defend andindemnify MarkWest against all claims of any nature arising as a result ofEquitable’s breach of the foregoing warranty. Title to all Liquid Hydrocarbons recovered by MarkWest shall be inMarkWest, and except for those Liquid Hydrocarbons, title to Equitable’s Gasshall remain in Equitable.

 

9.10                           MarkWest agrees that it will allow no liensor other adverse claims, including liens to secure payment of taxes, to attachto the gas delivered hereunder while in the custody and control ofMarkWest.  Equitable shall remainresponsible for the payment of all production taxes, ad valorem taxes,conservation taxes, severance taxes applicable to Equitable’s Gas, and taxesbased upon production of Equitable’s Gas.

 

**ARTICLE X**

**LAWS, REGULATIONS AND FORCE MAJEURE**

 

10.1                           This Agreement shall be subject to allapplicable state, federal and local laws, rules and regulations, and theparties hereto shall be entitled to regard all such laws, rules and regulationsas valid, and may act in accordance therewith until such time as the same maybe invalidated by final judgment in a court of competent jurisdiction.

 

10.2                           The term *“ForceMajeure”* means any cause, or condition (other than financialinability) not reasonably within the control of the party claiming suspensionand which by the exercise of commercially reasonable diligence, such party isunable to prevent or overcome.  A partyclaiming Force Majeure shall give prompt notice to the other party specifyingthe cause and anticipated period of Force Majeure.

 

10.3                           In the event either Equitable or MarkWest isrendered unable, wholly or in part, by Force Majeure, to carry out itsobligations under this Agreement, other than to make any payments duehereunder, it is agreed that upon such party’s giving notice and reasonably fullparticulars of such Force Majeure in writing or by telecopy to the otherparties affected within a reasonable time after the occurrence of the causerelied on, then the obligations of the party giving such notice, so far as theyare affected by such Force Majeure shall be suspended during the continuance ofthe inability, and the cause of the Force Majeure, as far as possible, shall beremedied with all reasonable dispatch.

 

10.4                           The settlement of strikes, lockouts, andother labor difficulty shall be entirely within the discretion of the partyhaving the difficulty.  The aboverequirement that any Force Majeure shall be remedied with all commerciallyreasonable dispatch shall not require the 

 

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settlement of strikes,lockouts, or other labor difficulty by acceding to the demands of opponentstherein when that is inadvisable in the discretion of the party having thedifficulty.

 

**ARTICLE XI**

**INSPECTION**

 

11.1                           Upon written request, each party shallfurnish to the other party all meter charts and/or measurement data obtainedfrom electronic gas measurement devices and other records relating tosettlements to be made in accordance with Section 7.1 hereunder to the extentrelating only to Equitable’s Gas delivered hereunder.  All such items shall be returned to the partysupplying them within sixty (60) days of receipt.  The books and records of each party, insofaras they pertain to settlement in accordance with Section 7.1, shall be open andavailable to the other party at all reasonable hours.

 

**ARTICLE XII**

**MISCELLANEOUS**

 

12.1                           The failure of any party hereto to exerciseany right granted hereunder shall not impair nor be deemed a waiver of suchparty’s privilege of exercising such right at any subsequent time or times.

 

12.2                           This Agreement shall extend to and inure tothe benefit of and be binding upon the parties hereto, and their respectivesuccessors and assigns. No assignment of this Agreement shall be binding oneither of the parties hereto, other than the party selling, transferring,assigning or conveying its interests in this Agreement, until the first day ofthe Accounting Period following the date a certified copy of the instrumentevidencing that sale, transfer, assignment or conveyance has been delivered tothe other party.  However, MarkWest shallnot assign this Agreement (other than assignments to wholly owned affiliates ofMarkWest, provided that MarkWest will guarantee the performance by suchaffiliate of the terms of this Agreement) without the prior written consent ofEquitable, which consent shall not be unreasonably withheld. Equitable shallrespond to any request for consent hereunder within forty-five (45) daysfollowing receipt of MarkWest’s written request, and if Equitable fails torespond within that 45-day period, Equitable shall be deemed to have consentedto such written request.

 

12.3                           Nothing herein contained shall be deemed toconstitute the parties hereto to be a partnership, mining partnership, jointventure or an association and each shall be deemed to act herein and inconnection with performance of this Agreement for itself, and not for theother, and no party hereto shall be liable, or responsible for any acts of theother by virtue of the relationship created under this Agreement.

 

12.4                           Insofar as it may have the right to do so,each party shall allow any other party, its agents and employees, access to andthe right of ingress and egress upon the lands or property of the other partyrelating to plants and pipelines herein referred to, for the purpose ofcarrying out any provisions hereof, including the taking of samples, making oftests and witnessing thereof.  While anyparty, its agents or employees, is upon the property of another party hereto,the entering party shall hold the other party whole and harmless for alllosses, damages and liabilities resulting 

 

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from or arising out of suchentry, except to the extent occasioned by the negligence of such other party,its agents or employees.

 

12.5                           This Agreement shall be deemed to be acontract made under the laws of the State of Kentucky and for all purposesshall be construed in accordance with the laws of said State without regard tochoice of law principles.  Any actionbrought under the terms of this Agreement must be filed in the state or federalcourts of Kanawha County, West Virginia.

 

12.6                           MarkWestagrees, acknowledges and represents that nothing in this Agreement or any otheragreement existing as of the date of this Agreement shall require Equitable toarbitrate any dispute with MarkWest. This Agreement does not incorporate any arbitration provision from anyother agreement.

 

12.7                           MarkWest recognizes and agrees that it hasassumed the financial risk of performance of this Agreement, including but notlimited to, the risk of changes in the value of natural gas, the value of thehydrocarbon liquids MarkWest extracts from the gas processed hereunder, and therelationships or margins between such values.

 

12.8                           Equitable consents for Columbia to provideMarkWest with the gas quantities that Equitable delivers at the Columbia ReceiptPoints.

 

12.9                           The parties agree to keep the terms of thisAgreement, and any information disclosed during any audits permitted hereunder,confidential and not disclose the same to any other persons, firms or entitieswithout the prior written consent of the other party; provided, the foregoingshall not apply to disclosures compelled by law, rule or regulation, including,without limitation, the rules and regulations of a stock exchange or theSecurities Exchange Commission,  or courtorder; or to disclosures to a party’s financial advisors, consultants,attorneys, banks, institutional investors; or to disclosures to prospectivepurchasers of property provided those prospective purchasers likewise agree tokeep this Agreement confidential.  Noannouncement or press release relating to this Agreement shall be made byeither party without the prior written consent of the other party, whichconsent shall not be unreasonably withheld, provided however, either party,with notice to the other, may make any announcement required by law, rule orregulation, including, without limitation, the rules and regulations of a stockexchange or the Securities Exchange Commission. It is further provided, that a party may make such disclosures (withoutthe other party’s consent) to its tax advisors (including accountants and taxattorneys) regarding the tax structure and any tax aspects to the extentnecessary to describe or support any U.S. federal income tax benefits that mayresult therefrom or any materials relating thereto, except whereconfidentiality is reasonably necessary to comply with U.S. federal or statesecurities laws.  For the purposes ofthis provision, “tax structure” is limited to facts relevant to the U.S.federal income tax treatment of the transaction(s) and does not includeinformation relating to the identity of the parties, their affiliates, agents,or advisors.

 

12.10                     This Agreement contains the entire agreementof the parties hereto with respect to the matters addressed herein and shall beamended only by an instrument in writing signed by both parties.

 

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IN WITNESS WHEREOF, thisAgreement may be executed in any number of counterparts, each of which shall beconsidered an original.

 
| EQUITABLE PRODUCTION  COMPANY |                              |   |
|-------------------------------|-----------------------------------|--------|
|                          |                              |   |
|                          |                              |   |
| By:                           | /s/ Equitable Production  Company |   |   |
|                          |                              |   |
| Name:                         |                              |   |   |
|                          |                              |   |   |
| Title:                        |                              |   |   |
|                          |                              |   |
|                          |                              |   |
| MARKWEST HYDROCARBON, INC.    |                              |   |
|                          |                              |   |
|                          |                              |   |
| By:                           | /s/ MarkWest Hydrocarbon,  Inc.   |   |   |
|                          |                              |   |
| Name:                         |                              |   |   |
|                          |                              |   |   |
| Title:                        |                              |   |   |
|                               |                                   |        |  |  |  |  |

 

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