Exhibit 10.2


 


SPECIFIC
TERMS IN THIS EXHIBIT HAVE BEEN REDACTED BECAUSE CONFIDENTIAL TREATMENT FOR
THOSE TERMS HAS BEEN REQUESTED. THE REDACTED MATERIAL HAS BEEN SEPERATELY FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION, AND THE TERMS HAVE BEEN MARKED AT
THE APPROPRIATE PLACE WITH TWO ASTERISKS (**).


 


Execution Version


 


 


CONTRIBUTION
AGREEMENT


 


 


BY
AND AMONG


 


 


MARKWEST
LIBERTY GAS GATHERING, L.L.C.,


 


 


M&R
MWE LIBERTY, LLC,


 


 


AND


 


MARKWEST
LIBERTY MIDSTREAM & RESOURCES, L.L.C.


 





















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 1

  	
   

  
	
   

  	
  DEFINITIONS;
  INTERPRETATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
  2

  
	
  Section 1.2

  	
  Headings; References; Interpretation

  	
  2

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 2

  	
   

  
	
   

  	
  CONTRIBUTIONS, ASSUMED LIABILITIES AND CLOSING

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Contributions and Payments

  	
  2

  
	
  Section 2.2

  	
  Assumption of Liabilities

  	
  3

  
	
  Section 2.3

  	
  Closing

  	
  3

  
	
  Section 2.4

  	
  Closing Deliveries

  	
  3

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 3

  	
   

  
	
   

  	
  REPRESENTATIONS AND WARRANTIES OF MWE LIBERTY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Organization; Qualification

  	
  5

  
	
  Section 3.2

  	
  Authority; Enforceability

  	
  5

  
	
  Section 3.3

  	
  No Violation; Consents and Approvals

  	
  6

  
	
  Section 3.4

  	
  Capitalization

  	
  7

  
	
  Section 3.5

  	
  Compliance with Law

  	
  7

  
	
  Section 3.6

  	
  No Default

  	
  7

  
	
  Section 3.7

  	
  Title to Properties and Assets

  	
  8

  
	
  Section 3.8

  	
  Rights-of-Way

  	
  8

  
	
  Section 3.9

  	
  Financial Statements

  	
  8

  
	
  Section 3.10

  	
  Environmental Matters

  	
  8

  
	
  Section 3.11

  	
  Material Contracts

  	
  9

  
	
  Section 3.12

  	
  Legal Proceedings

  	
  10

  
	
  Section 3.13

  	
  Permits

  	
  10

  
	
  Section 3.14

  	
  Taxes

  	
  10

  
	
  Section 3.15

  	
  Employees

  	
  10

  
	
  Section 3.16

  	
  Brokers’ Fee

  	
  11

  
	
  Section 3.17

  	
  Insurance

  	
  11

  
	
  Section 3.18

  	
  Intellectual Property

  	
  11

  
	
  Section 3.19

  	
  Affiliate Transactions

  	
  11

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 4

  	
   

  
	
   

  	
  REPRESENTATIONS AND WARRANTIES OF NGPMR

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Organization

  	
  11

  
	
  Section 4.2

  	
  Authority; Enforceability

  	
  12

  
	
  Section 4.3

  	
  No Violation; Consents and Approvals

  	
  12

  
	
  Section 4.4

  	
  Brokers’ Fee

  	
  12

  



 


i





















 


	
   

  	
  ARTICLE 5

  	
   

  
	
   

  	
  INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Survival

  	
  13

  
	
  Section 5.2

  	
  Indemnification by the Company

  	
  13

  
	
  Section 5.3

  	
  Indemnification by MWE Liberty

  	
  14

  
	
  Section 5.4

  	
  Indemnification by NGPMR

  	
  14

  
	
  Section 5.5

  	
  No Effect on Services Agreement and Company
  Operating Agreement

  	
  14

  
	
  Section 5.6

  	
  Third Party Claims Procedures

  	
  14

  
	
  Section 5.7

  	
  Satisfaction of Claims for Indemnification

  	
  15

  
	
  Section 5.8

  	
  Limits on Indemnification

  	
  16

  
	
  Section 5.9

  	
  Extent of Indemnification

  	
  17

  
	
  Section 5.10

  	
  No Reliance

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 6

  	
   

  
	
   

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  HSR Filing

  	
  18

  
	
  Section 6.2

  	
  Tax Effect

  	
  19

  
	
  Section 6.3

  	
  Tax Matters

  	
  19

  
	
  Section 6.4

  	
  Further Assurances

  	
  20

  
	
  Section 6.5

  	
  Consents

  	
  20

  
	
  Section 6.6

  	
  Expenses

  	
  20

  
	
  Section 6.7

  	
  Public Statements

  	
  21

  
	
  Section 6.8

  	
  Conduct of Business

  	
  21

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 7

  	
   

  
	
   

  	
  CONDITIONS PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Conditions to Each Party’s Obligations

  	
  21

  
	
  Section 7.2

  	
  Conditions to NGPMR’s Obligations

  	
  22

  
	
  Section 7.3

  	
  Conditions to MWE Liberty’s Obligations

  	
  22

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 8

  	
   

  
	
   

  	
  TERMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Termination

  	
  23

  
	
  Section 8.2

  	
  Effect of Termination

  	
  24

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 9

  	
   

  
	
   

  	
  GENERAL PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Effective Time

  	
  24

  
	
  Section 9.2

  	
  Costs; Taxes

  	
  24

  
	
  Section 9.3

  	
  Notices

  	
  24

  
	
  Section 9.4

  	
  Binding Effect

  	
  26

  
	
  Section 9.5

  	
  No Third Party Rights

  	
  26

  
	
  Section 9.6

  	
  No Waiver

  	
  26

  
	
  Section 9.7

  	
  Applicable Law

  	
  26

  
	
  Section 9.8

  	
  Severability

  	
  26

  
	
  Section 9.9

  	
  Amendment or Modification

  	
  26

  
	
  Section 9.10

  	
  Assignment; Deed; Bill of Sale

  	
  27

  



 


ii





















 


	
  Section 9.11

  	
  Conspicuousness of Provisions

  	
  27

  
	
  Section 9.12

  	
  Counterparts

  	
  27

  
	
  Section 9.13

  	
  No Recourse Against Officers or Directors

  	
  27

  
	
  Section 9.14

  	
  Entire Agreement;
  Supersedure

  	
  27

  



 


	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  Defined Terms

  
	
  Exhibit B

  	
  Assets

  
	
  Exhibit C

  	
  Company Operating Agreement

  
	
  Exhibit D

  	
  Services Agreement

  
	
  Exhibit E

  	
  Bill of Sale, Assignment and Assumption Agreement

  
	
   

  	
   

  
	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  Schedule 1.1

  	
  Knowledge Individuals

  
	
  Schedule 3.3

  	
  Consents or Approvals

  
	
  Schedule 3.4(b)

  	
  Capitalization

  
	
  Schedule 3.6

  	
  No Default

  
	
  Schedule 3.7(a)

  	
  Title to Properties and Assets

  
	
  Schedule 3.7(b)

  	
  Valid Transfer of Properties and Assets

  
	
  Schedule 3.8

  	
  Rights-of-Way

  
	
  Schedule 3.9

  	
  Trial Balance

  
	
  Schedule 3.10

  	
  Environmental Matters

  
	
  Schedule 3.11

  	
  Material Contracts

  
	
  Schedule 3.15(a)

  	
  Employees

  
	
  Schedule 3.15(b)

  	
  Benefit Plans

  
	
  Schedule 3.18

  	
  Intellectual Property

  
	
  Schedule 3.19

  	
  Affiliate Transactions

  
	
  Schedule 5.3(d)

  	
  Specific Indemnity Items **

  
	
  Schedule 5.3(e)

  	
  Specific Indemnity Items **

  
	
  Schedule 7.2(c)

  	
  Required Consents

  



 


iii





















 


CONTRIBUTION
AGREEMENT


 


THIS CONTRIBUTION
AGREEMENT, dated as of January 22, 2009, is entered into
by and among MarkWest Liberty Gas Gathering, L.L.C., a Delaware limited
liability company (“MWE Liberty”),  M&R MWE Liberty, LLC, a
Delaware limited liability company (“NGPMR”),
and MarkWest Liberty Midstream & Resources, L.L.C., a Delaware limited
liability company (the “Company”).  The parties to this Agreement are
collectively referred to herein as the “Parties.”


 


RECITALS


 


WHEREAS, MWE Liberty has
formed the Company, pursuant to the Act, for the purpose of engaging in the
natural gas midstream business, including, but not limited to, natural gas
gathering and processing, and the natural gas liquids processing,
fractionation, transportation, storage and marketing business within the Area
of Mutual Interest and certain other purposes (the “Business”);


 


WHEREAS, at the Closing MWE
Liberty and NGPMR (the “Members”)
shall execute and agree to that certain Amended and Restated Limited Liability
Company Agreement of the Company (the “Company Operating
Agreement”) in the form attached hereto as Exhibit C,
which Company Operating Agreement shall become effective at the Closing;


 


WHEREAS, at the Closing MWE
Liberty, MarkWest Hydrocarbon, Inc. and the Company shall execute and
agree to that certain Services Agreement (the “Services
Agreement”) in the form attached hereto as Exhibit D,
which Services Agreement shall become effective at the Closing;


 


WHEREAS, subject to the
terms and conditions of this Agreement, NGPMR desires to contribute to the
Company, and the Company desires to accept from NGPMR, certain cash
consideration in exchange for all of the Class A Interests; and


 


WHEREAS, subject to the
terms and conditions of this Agreement, MWE Liberty desires to contribute,
convey, assign and transfer to the Company, and the Company desires to accept
from MWE Liberty, all of MWE Liberty’s right, title and interest in and to the
Assets in exchange for all of the Class B Interests and the assumption of
certain liabilities by the Company.


 


AGREEMENTS


 


NOW, THEREFORE, in
consideration of their mutual undertakings and agreements hereunder, the
Parties undertake and agree as follows:


 





















 


ARTICLE 1


DEFINITIONS; INTERPRETATION


 


Section 1.1             Definitions.  Capitalized terms used in this Agreement but
not defined in the body hereof shall have the meanings ascribed to them in Exhibit A.


 


Section 1.2             Headings; References; Interpretation.  In this Agreement, unless a clear contrary intention
appears:  (a) the singular includes
the plural and vice versa; (b) reference to a person includes such Person’s
successors and assigns but, in the case of a Party, only if such successors and
assigns are permitted by this Agreement, and reference to a Person in a
particular capacity excludes such Person in any other capacity; (c) reference
to any gender includes each other gender; (d) reference to any agreement
(including this Agreement), document or instrument means such agreement,
document, or instrument as amended or modified and in effect from time to time
in accordance with the terms thereof and, if applicable, the terms of this
Agreement; (e) reference to any Section or Article means such Section or
Article of this Agreement, and references in any Section or Article or
definition to any clause means such clause of such Section, Article or
definition; (f) “hereunder,” “hereof,” “hereto” and words of similar
import are references to this Agreement as a whole and not to any particular
provision hereof; and (g) the word “or” is not exclusive, and the word “including”
(in its various forms) means including without limitation.  Section titles and headings in this
Agreement are inserted for convenience of reference only and are not intended
to be a part of, or to affect the meaning or interpretation of, this Agreement.


 


ARTICLE
2


CONTRIBUTIONS,
ASSUMED LIABILITIES AND CLOSING


 


Section 2.1             Contributions and Payments.  Subject to the terms and conditions of this
Agreement, at the Closing, the following contributions, equity issuances and
payments shall be made:


 


(a)           NGPMR
shall contribute $50,000,000.00 to the Company in immediately available funds
in exchange for all of the Class A Interests.  In its capacity as a holder of such
interests, NGPMR shall have the obligations set forth in the Company Operating
Agreement with respect to a Class A Member to contribute additional
capital to the Company, but shall have no other obligation to contribute any
additional capital to the Company.


 


(b)           MWE
Liberty shall grant, contribute, bargain, convey, assign, transfer, set over
and deliver to the Company, its successors and assigns, and for its and their
own use forever, all of MWE Liberty’s right, title and interest in and to the
Assets in exchange for all of the Class B Interests.  In its capacity as a holder of such
interests, MWE Liberty shall have the obligations set forth in the Company
Operating Agreement with respect to a Class B Member to contribute
additional capital to the Company, but shall have no other obligation to
contribute any additional capital to the Company.  The term “Assets”
shall mean (i) all of the assets owned by MWE Liberty, including the
natural gas gathering systems described in Exhibit B attached
hereto, together with all natural gas gathering and processing and natural gas
liquids processing, fractionation, transportation, storage and marketing plants
and facilities constituting a part thereof or related thereto, and all
easements, rights of way, privileges, franchises, tracts of land, 


 


2





















 


surface leases, other interests in land, pipelines,
equipment, permits, licenses, contract rights and personal property
constituting a part thereof or necessary for the ownership and operation
thereof including the easements, rights of way, permits and other instruments
referenced in Exhibit B and (ii) all of the assets owned by
Affiliates of MWE Liberty that are related exclusively to the Business within
the Area of Mutual Interest, but in any event, excluding any and all amounts
payable by Range Resources-Appalachia, LLC pursuant to Section 4.3(d) of
that certain Interim Gas Processing Agreement dated March 5, 2008, between
MarkWest Energy Appalachia, L.L.C. and Range Resources-Appalachia, LLC, for
procuring, constructing and installing the interim plant prior to January 1,
2008 and representing 115% of all Installation Costs (as defined therein)
incurred in the procurement, construction and installation of the interim plant
(the “Excluded Assets”).  The Excluded Assets shall be retained by MWE
Liberty and its Affiliates and shall not be considered Assets hereunder.


 


(c)           The
Company shall pay to MWE Liberty in immediately available funds the amount of
any **; provided that
any such ** by MWE Liberty after the date hereof
shall be consistent with Section 6.8.


 


Section 2.2             Assumption of Liabilities.  As part of the consideration for the
contribution of the Assets by MWE Liberty to the Company, effective as of the
Closing, the Company will assume and agree to duly and timely pay, perform and
discharge, pursuant to the Assignment and Assumption, all of the liabilities
and obligations of any kind whatsoever of MWE Liberty arising from or relating
to the Assets, whether known or unknown, liquidated or contingent, and
regardless of whether the same are deemed to have arisen, accrued or are
attributable to periods prior to, on or after the Closing Date, including, but
not limited to, obligations and liabilities of MWE Liberty: (a) concerning
the use, ownership, management or operation of the Assets, (b) under or
relating to any contracts, agreements, Permits and instruments existing as of
the Closing Date by which the Assets are bound or subject or that relate to or
are otherwise applicable to the Assets (other than obligations of MWE Liberty
under the Transaction Documents) and (c) which are Disclosed Liabilities,
(all of the liabilities and obligations described in this Section 2.2
are collectively referred to as the “Assumed Liabilities”);
provided, however, that the Company does
not assume (and Assumed Liabilities shall not include) any costs or expenses
included within the amount of MWE Liberty’s initial capital contribution to the
Company.


 


Section 2.3             Closing.  Subject to the terms and conditions of this
Agreement, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at the
offices of Vinson & Elkins LLP, First City Tower, 1001 Fannin
Street, Suite 2500, Houston, Texas 77002 on the second Business Day after
all of the conditions precedent set forth in Article 7 have been
satisfied, or if permissible, waived, or at such other place, time and date as
is agreed to in writing by the Parties (the “Closing
Date”).  The Closing will
be deemed effective as of 11:59 p.m., Houston, Texas time on the Closing
Date.


 


Section 2.4             Closing Deliveries.


 


(a)           NGPMR
Deliveries.  At the Closing, NGPMR
will execute and deliver, or cause to be executed and delivered, to the other
Parties, as applicable, each of the following 


 


3





















 


documents, where the execution or delivery of documents is
contemplated, and will take or cause to be taken the following actions, where
the taking of action is contemplated:


 


(i)            a certificate of the Secretary of
State of the State of Delaware, dated not more than five days prior to the
Closing Date, as to the existence and good standing of NGPMR;


 


(ii)           a certificate of an officer of NGPMR
providing the following documents and certifying that each is a true and
correct copy:  (A) the
Organizational Documents of NGPMR and (B) resolutions of NGPMR’s governing
body authorizing the transactions contemplated hereby (including designation of
the Persons authorized to execute this Agreement on behalf of NGPMR and the
Transaction Documents to which it is a party);


 


(iii)          a duly executed counterpart of the
Company Operating Agreement; and


 


(iv)          a certificate of an officer of NGPMR,
dated as of the Closing Date, certifying that all of the conditions set forth
in Sections 7.1(a) and 7.3(a) have been satisfied.


 


(b)           MWE
Liberty Deliveries.  At the Closing,
MWE Liberty will execute and deliver, or cause to be executed and delivered, to
the other Parties, as applicable, each of the following documents, where the
execution or delivery of documents is contemplated, and will take or cause to
be taken the following actions, where the taking of action is contemplated:


 


(i)            a certificate of the Secretary of
State of the State of Delaware, dated not more than five days prior to the
Closing Date, as to the existence and good standing of MWE Liberty;


 


(ii)           a certificate of an officer of MWE
Liberty providing the following documents and certifying that each is a true
and correct copy:  (A) the
Organizational Documents of MWE Liberty and (B) resolutions of MWE Liberty’s
governing body authorizing the transactions contemplated hereby (including
designation of the Persons authorized to execute this Agreement on behalf of
MWE Liberty and the Transaction Documents to which it is a party);


 


(iii)          a duly executed counterpart of the
Company Operating Agreement;


 


(iv)          a duly executed counterpart of the
Services Agreement;


 


(v)           counterparts of the Bill of Sale,
Assignment and Assumption Agreement, in substantially the form attached as Exhibit E
hereto (the “Assignment and Assumption”);
and


 


(vi)          a certificate of an officer of MWE
Liberty, dated as of the Closing Date, certifying that all of the conditions
specified in Section 7.1(e) and Section 7.2(a) have
been satisfied.


 


4




















 


(c)           Company
Deliveries.  At the Closing, MWE
Liberty will cause the Company to execute and deliver:


 


(i)            a certificate of the Secretary of
State of the State of Delaware, dated not more than five days prior to the
Closing Date, as to the existence and good standing of the Company;


 


(ii)           a copy of the Certificate of
Formation of the Company certified by the Secretary of State of the State of
Delaware;


 


(iii)          a duly executed counterpart of the
Assignment and Assumption; and


 


(iv)          a duly executed counterpart of the
Services Agreement;


 


The transactions described
above, together with the issuance and sale of the Class A Interests and
the Class B Interests pursuant to this Agreement and the entry into the
Company Operating Agreement, are referred to herein as the “Transactions.”  The “Transaction Documents”
shall mean this Agreement, the Company Operating Agreement, and the Services
Agreement.


 


ARTICLE
3


REPRESENTATIONS
AND WARRANTIES OF MWE LIBERTY


 


MWE Liberty hereby makes the
following representations and warranties to the Company and NGPMR:


 


Section 3.1             Organization; Qualification.  Each of MWE Liberty and the Company is a
limited liability company duly formed, validly existing and in good standing
under the laws of the State of Delaware and has all requisite limited liability
company power and authority to own, lease and operate its properties and to
carry on its business, and is duly qualified, registered or licensed to do
business as a foreign limited liability company and is in good standing in each
jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification necessary,
except where the failure to be so duly qualified, registered or licensed and in
good standing would not have or be reasonably expected to have, individually or
in the aggregate, a Material Adverse Effect.


 


Section 3.2             Authority; Enforceability.


 


(a)           Each of
MWE Liberty and the Company has the requisite limited liability company power
and authority to execute and deliver the Transaction Documents to which it is a
party, and to consummate the Transactions. 
The execution and delivery by MWE Liberty and the Company of the
Transaction Documents to which either of them is a party, and the consummation
by MWE Liberty and the Company of the Transactions, have been duly and validly
authorized by MWE Liberty and/or the Company, as applicable, and no other
limited liability company proceedings on the part of MWE Liberty or the Company
are necessary to authorize the Transaction Documents or to consummate the
Transactions.


 


5

















 


(b)           Each of
the Transaction Documents to which MWE Liberty or the Company is a party has
been (or will be, in the case of Transaction Documents to be delivered at the
Closing) duly executed and delivered by MWE Liberty and/or the Company, as
applicable, and, assuming the due authorization, execution and delivery by the
other parties thereto, each Transaction Document constitutes (or will
constitute, in the case of Transaction Documents to be delivered at the
Closing) the valid and binding agreement of MWE Liberty and the Company, and is
enforceable against MWE Liberty and/or the Company, as applicable, in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws relating to or affecting creditors’ rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).


 


Section 3.3             No Violation; Consents and Approvals.  Except as set forth on Schedule 3.3:


 


(a)           The
execution, delivery and performance of the Transaction Documents by MWE Liberty
and the Company and the consummation by MWE Liberty and the Company of the
Transactions do not and will not:  (i) result
in any breach of any provision of the organizational, governing or charter
documents, as amended, of MWE Liberty or the Company; (ii) constitute a
default (or an event that with notice or lapse of time or both would give rise
to a default) under, or give rise to any right of termination, cancellation,
amendment or acceleration (with or without notice, lapse of time or both) under
any of the terms, conditions or provisions of any contract, note, bond,
mortgage, indenture, license, agreement or other instrument or obligation to
which MWE Liberty or the Company is a party or by which any of the Assets is
bound or affected, except to the extent that such default, termination,
amendment, acceleration or cancellation right (A) would not have or be
reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect or (B) results from obtaining the Miscellaneous Consents
after the Closing pursuant to Section 6.5; (iii) result in a
violation of any law, statute, rule, regulation, order, judgment, injunction,
decree or other restriction of any Governmental Authority to which MWE Liberty
or the Company is subject (including federal and state securities laws and regulations)
or by which any of the Assets is bound or affected except as may result from
obtaining the Miscellaneous Consents after the Closing pursuant to Section 6.5;
or (iv) result in the creation or imposition of any lien, charge or
encumbrance upon any of the Assets, except for Permitted Liens or as may result
from obtaining the Miscellaneous Consents and contractual consents listed on Schedule
3.3 after the Closing pursuant to Section 6.5.


 


(b)           No
declaration, filing or registration with, or notice to, or authorization,
consent or approval of, any Governmental Authority or other third party is
necessary for the consummation by MWE Liberty or the Company of the
Transactions contemplated by the Transaction Documents, other than such
declarations, filings, registrations, notices, authorization, consents or
approvals that have been or will be obtained or made prior to the Closing and
other than the Miscellaneous Consents that may be obtained after the Closing
pursuant to Section 6.5.


 


(c)           No
consents are required under the Indentures to permit the consummation of the
Transactions.


 


6

















 


Section 3.4             Capitalization.


 


(a)           Except for
the Company, MWE Liberty does not (i) own, directly or indirectly, any
capital stock, equity interests or other securities of any Person, or (ii) have
any Subsidiaries.


 


(b)           Except as
set forth on Schedule 3.4(b), prior to the Closing, the Company has
not conducted any business operations, has no assets or liabilities and is not
a party to any contract or agreement of any kind or nature (other than the
Organizational Documents of the Company).


 


(c)           Upon
Closing, the Class A Interests and the Class B Interests issued and
sold pursuant to this Agreement (i) will constitute all of the issued and
outstanding membership interests of the Company and (ii) will be duly
authorized, validly issued and fully paid (to the extent required under the
Company Operating Agreement).  Except as
set forth in the Company’s Organizational Documents, there are no existing
subscriptions, rights, warrants, calls, options, convertible or exchangeable
securities, “phantom” equity rights, equity appreciation rights, equity-based
performance units, commitments, contracts, agreements or undertakings of any
character to which the Company is bound: 
(i) obligating the Company to issue, deliver or sell, or cause to
be issued, delivered or sold, additional equity interests in, or any security
convertible or exercisable for, or exchangeable into, any equity interest in
the Company, or (ii) obligating the Company to issue, grant, extend or
enter into any such option, warrant, call, right, security, commitment,
contract, arrangement or undertaking. 
There are no outstanding contractual obligations of the Company to
repurchase, redeem or otherwise acquire any equity interests of the
Company.  There are no outstanding
securities or other instruments convertible into or exchangeable for equity
interests of the Company and no commitments to issue such securities or
instruments.  Except as set forth in the
Company’s Organizational Documents, there are no voting trusts, proxies or
other agreements or understandings to which the Company is bound with respect
to the voting of any equity interests or other securities of the Company.


 


Section 3.5             Compliance with Law.  (a) MWE Liberty is (and to MWE Liberty’s
Knowledge has been) in compliance in all material respects with all Laws of any
Governmental Authority applicable to the use, ownership and operation of the
Assets; (b) MWE Liberty has not received written notice of any material
violation of any such Law relating to the use, ownership and operation of the
Assets; and (c) MWE Liberty is not in material default or violation of any
order, writ, judgment, award, injunction or decree of any Governmental
Authority applicable to the use, ownership or operation of the Assets.


 


Section 3.6             No Default.  MWE Liberty is not in violation of its
organizational, governing or charter documents. Except as set forth on Schedule
3.6, MWE Liberty is not in default, and no event has occurred which, with
notice or lapse of time or both, would give rise to a default, under, or give
to others any rights of termination, amendment, acceleration or cancellation of
or under, any agreement, credit facility, debt or other instrument (evidencing
a debt or other obligation of MWE Liberty) to which MWE Liberty is a party, by
which any of the Assets are bound or affected, except to the extent that such
default, termination, amendment, acceleration or cancellation right (i) would
not have or be reasonably expected to have, 


 


7

















 


individually or in the aggregate, a Material Adverse Effect
or (ii) results from obtaining the Miscellaneous Consents after the
Closing pursuant to Section 6.5.


 


Section 3.7             Title to Properties and Assets.  Except as set forth on Schedule 3.7(a),
MWE Liberty and its Affiliates have good, valid and defensible title to all
real property (other than real property and buildings held under lease by MWE
Liberty) and personal property to be transferred pursuant to this Agreement and
the constituent documents contemplated hereby, free and clear of all liens,
encumbrances, security interests, equities, charges or claims or other
restrictions whatsoever, except for Permitted Liens.  With respect to any real property and
buildings held under lease by MWE Liberty or its Affiliates, such real property
and buildings are held under valid and subsisting and enforceable leases with
such exceptions as do not materially interfere with the present or intended use
of such properties by MWE Liberty and its Affiliates taken as a whole.  Except as set forth on Schedule 3.7(b),
pursuant to the Assignment and Assumption, MWE Liberty and its Affiliates are
validly transferring at Closing all of their ownership interests in the Assets
to the Company, and the Assets so transferred (together with the Services (as
defined in the Services Agreement) to be provided pursuant to the Services
Agreement) constitute all rights and properties necessary in all material
respects to operate the Business in a manner consistent with MWE Liberty’s
operation of the Business immediately prior to the Closing, other than the
Miscellaneous Consents and contractual consents listed on Schedule 3.3
that may be obtained after the Closing pursuant to Section 6.5.


 


Section 3.8             Rights-of-Way.  Except as set forth on Schedule 3.8,
the Company, as of Closing, will have such easements or rights-of-way from each
person (collectively, “Rights-of-Way”)
as are necessary in all material respects to use, own and operate the Assets in
the manner the Assets were used, owned and operated by MWE Liberty immediately
prior to the Closing.  Except as set
forth on Schedule 3.8, MWE Liberty has fulfilled and performed all of
its material obligations with respect to such Rights-of-Way and no event has
occurred that allows, or after notice or lapse of time would allow, revocation
or termination thereof or would result in any impairment of the rights of the
holder of any such Rights-of-Way, except for such revocations, terminations and
impairments that would not have a Material Adverse Effect and the Miscellaneous
Consents that may be obtained after the Closing pursuant to Section 6.5.


 


Section 3.9             Financial Statements.  Schedule 3.9 is an accurate copy
of the trial balance (the “Trial Balance”)
of MWE Liberty as of December 31, 2008 (the “Trial
Balance Date”) which accurately reflects the assets and material
liabilities of MWE Liberty as of such date subject to normal year-end
adjustments.  Except as set forth on Schedule
3.9, since the Trial Balance Date, there has not been any change in
financial condition, properties, assets, liabilities, business or results of
operations of the Business, which, individually or in the aggregate, has had or
is reasonably likely to have a Material Adverse Effect.  Since the Trial Balance Date, the Company has
not incurred any obligation or liability (whether accrued, absolute, contingent
or otherwise) of the type required to be reflected on a consolidated balance
sheet of the Company prepared in accordance with GAAP applied on a basis
consistent with the Trial Balance except liabilities and obligations incurred
in the ordinary course of business and consistent with the Initial Budget or Section 6.8
hereof.


 


Section 3.10           Environmental Matters.  Except as set forth in Schedule 3.10:


 


8

















 


(a)           MWE
Liberty and the Assets and operations thereof, are and, during the relevant
time periods specified in all applicable statutes of limitations, have been in
compliance in all material respects with Environmental Laws;


 


(b)           MWE
Liberty possesses, and is in compliance in all material respects with, all
Environmental Permits for MWE Liberty’s operation of the Assets as presently
conducted and such Permits are in full force and effect subject to obtaining
the Miscellaneous Consents after the Closing pursuant to Section 6.5;


 


(c)           MWE
Liberty is not subject to any pending or, to MWE Liberty’s Knowledge,
threatened, Proceeding with respect to its operation of the Assets, nor has MWE
Liberty received any written notice of violation, noncompliance, or enforcement
with respect to its operation of the Assets that remains pending or any written
notice that it is or is suspected of being a potentially responsible party
under CERCLA or any similar law with respect to its operation of the Assets
that remains pending, or any written notice of investigation, remediation or
request for information pursuant to Environmental Law from any Governmental Authority
with respect to operation of the Assets that would reasonably be expected to
result in a material liability to MWE Liberty pursuant to Environmental Laws,
which notice of investigation, remediation or request for information remains
pending;


 


(d)           Except for
such matters that would not reasonably be expected to give rise to any material
liability, costs or remedial or corrective action obligations under
Environmental Laws, (i) there has been no Release or, to MWE Liberty’s
Knowledge, threatened Release of Hazardous Substances by MWE Liberty or, to MWE
Liberty’s Knowledge, any third party; and (ii) no Hazardous Substances are
present in, on, at, under or from any of the Assets, or otherwise in connection
with the operation of the Assets by MWE Liberty;


 


(e)           In
connection with the operation of the Assets, MWE Liberty has not assumed or
retained by written contract, or to MWE Liberty’s Knowledge, by operation of
law, any material liabilities (including STRICT LIABILITY) under any
Environmental Laws for any Hazardous Substances; and


 


(f)            MWE
Liberty has made available to NGPMR and the Company complete and correct copies
of all environmental assessment and audit reports and studies in its possession
addressing potentially material environmental liabilities or obligations
relating to MWE Liberty or its operation of the Assets.


 


Notwithstanding any other provisions of this Agreement to the
contrary, this Section 3.10 contains the sole and exclusive
representations and warranties of MWE Liberty on environmental matters,
including Environmental Laws, Environmental Claims, Environmental Responses,
Environmental Permits and Hazardous Substances.


 


Section 3.11           Material Contracts.  Each Material Contract is valid, binding and
enforceable in accordance with its terms, and is in full force and effect.  MWE Liberty has provided to NGPMR a true and
complete copy of each Material Contract. MWE Liberty has not received any
written notice of default under any Material Contract in the 12-month period
prior to the date of this Agreement. Except as set forth on Schedule 3.11,
there are no (a) uncured 


 


9

















 


defaults of MWE Liberty under any Material Contract that
would give the counterparty thereto the right to terminate such Material
Contract and (b) to MWE Liberty’s Knowledge, defaults by any of the
counterparties to such Material Contracts.


 


Section 3.12           Legal Proceedings.  There are no Proceedings pending or, to the
MWE Liberty’s Knowledge, threatened, against MWE Liberty, the Company or the
Assets.  To MWE Liberty’s Knowledge,
there are no events or circumstances that have occurred which would reasonably
be expected to result in Proceedings against MWE Liberty, the Company or the
Assets.


 


Section 3.13           Permits.  MWE Liberty has, and upon Closing, MWE
Liberty will transfer to the Company and the Company will have (or have the
benefit of pursuant to Section 6.5), all permits, approvals,
consents, licenses, franchises, exemptions and other governmental
authorizations, consents and approvals (collectively, “Permits”)
necessary to use, own and operate the Assets as presently used, owned and
operated, except for any such Permits the failure to have (or have the benefit
of) would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.  MWE Liberty
has not received any written notification that it is in violation of any
material Permits.  MWE Liberty is in
material compliance with all Permits.


 


Section 3.14           Taxes.  All Tax Returns required to be filed with
respect to MWE Liberty and the Assets have been filed and all such Tax Returns
are complete and correct in all material respects; all Taxes due relating to
MWE Liberty and the Assets have been paid in full (whether or not shown to be
due on such Tax Returns).  MWE Liberty
has not received any written notice of deficiency or assessment from any taxing
authority with respect to liabilities for Taxes of MWE Liberty or associated
with the ownership or operation of the Assets, which have not been fully paid
or finally settled, unless being contested in good faith through appropriate
proceedings and for which adequate reserves have been established in the Trial
Balance.  All Taxes required to be
withheld, collected or deposited by or with respect to MWE Liberty or
associated with the ownership or operation of the Assets have been timely
withheld, collected or deposited as the case may be, and to the extent
required, have been paid to the relevant taxing authority.  There are no outstanding agreements or waivers
extending the applicable statutory periods of limitation for Taxes of MWE
Liberty or that are associated with the ownership or operation of the Assets
for any period.  MWE Liberty, which was
formed on March 26, 2008, is treated as a partnership or a disregarded
entity for U.S. federal income Tax purposes and no election has been made to
treat MWE Liberty as an association taxable as a corporation.


 


Section 3.15           Employees.


 


(a)           Except as
set forth on Schedule 3.15(a), (i) neither MWE Liberty nor the
Company has or previously had any employees and (ii) no Affiliate of MWE
Liberty or the Company is a party to a collective bargaining agreement with its
employees.


 


(b)           Except as
set forth on Schedule 3.15(b), neither MWE Liberty nor the Company
sponsors, maintains, has liability under or has an obligation to contribute to
any “employee benefit plans” (within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), including, without
limitation, 


 


10

















 


multiemployer plans within the meaning of Section 3(37)
of ERISA), or any stock purchase, stock option, severance, employment,
change-in-control, fringe benefit, collective bargaining, bonus, incentive,
deferred compensation, employee loan or any other employee benefit plans,
agreements, programs, policies or other arrangements, whether or not subject to
ERISA (all such plans, agreements, programs, policies and arrangements,
collectively, the “Benefit Plans”).  Neither MWE Liberty nor the Company, nor any
of their ERISA Affiliates, have any liability under Section 412 of the
Code or Title IV of ERISA.


 


Section 3.16           Brokers’ Fee.  Except for the fee payable to Morgan Stanley,
which shall be paid by MWE, no broker, finder or similar intermediary has acted
for or on behalf of, or is entitled to any broker, finder or similar fee or
other commission from MWE Liberty, the Company or any of their Affiliates in
connection with this Agreement or the transactions contemplated hereby.


 


Section 3.17           Insurance.  MWE Liberty has provided or made available to
NGPMR and the Company a true and complete list of all liability, property,
workers’ compensation and other insurance policies currently in effect that
insure or relate to the Assets.


 


Section 3.18           Intellectual Property.  Except as set forth on Schedule 3.18, (a) MWE
Liberty owns or has the right to use, and upon Closing and subject to the
Miscellaneous Consents to be obtained after the Closing pursuant to Section 6.5,
the Company will own or have the right to use pursuant to license, sublicense,
agreement (including the Services Agreement) or otherwise all items of
Intellectual Property used in the operation of the Business as presently
conducted, except for such Intellectual Property the failure of which to own or
have the right to use, would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, (b) no third party has
asserted in writing delivered to MWE Liberty a claim that MWE Liberty is infringing
on the Intellectual Property of such third party and (c) to MWE Liberty’s
Knowledge, no third party is infringing on the Intellectual Property owned by
MWE Liberty.


 


Section 3.19           Affiliate Transactions.  Except as set forth on Schedule 3.19,
there are no existing agreements or transactions relating to the provision of
material services (or otherwise providing for the payment of material amounts)
between MWE Liberty, on the one hand, and any of its officers, managers,
directors, employees, or any of their respective Affiliates, on the other
hand.  Except for any ownership interest
in MWE, no officer, director, manager or employee of MWE Liberty has any direct
or indirect material ownership interest in any Person with which MWE Liberty
has any material business relationship.


 


ARTICLE
4


REPRESENTATIONS
AND WARRANTIES OF NGPMR


 


NGPMR hereby makes the
following representations and warranties to the Company:


 


Section 4.1             Organization.  NGPMR is a limited liability company duly
formed, validly existing and in good standing under the laws of the State of
Delaware and has all requisite limited liability company power and authority to
own, lease and operate its properties and to carry on its business.


 


11

















 


Section 4.2             Authority; Enforceability.


 


(a)           NGPMR has
the requisite limited liability company power and authority to execute and
deliver the Transaction Documents to which it is a party, and to consummate the
Transactions.  The execution and delivery
by NGPMR of the Transaction Documents to which it is a party, and the
consummation by NGPMR of the Transactions, have been duly and validly
authorized by NGPMR and no other limited liability company proceedings on the
part of NGPMR is necessary to authorize the Transaction Documents or to
consummate the Transactions.


 


(b)           Each of
the Transaction Documents to which NGPMR is a party has been (or will be, in
the case of Transaction Documents to be delivered at Closing) duly executed and
delivered by NGPMR and, assuming the due authorization, execution and delivery
by the other parties thereto, each Transaction Document to which NGPMR is a
party constitutes (or will constitute, in the case of Transaction Documents to
be delivered at Closing) the valid and binding agreement of NGPMR, and is
enforceable against NGPMR in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting
creditors’ rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).


 


Section 4.3             No Violation; Consents and Approvals.


 


(a)           The
execution, delivery and performance of the Transaction Documents by NGPMR and
the consummation by NGPMR of the Transactions do not and will not:  (i) result in any breach of any
provision of the Organizational Documents, as amended, of NGPMR; (ii) constitute
a default (or an event that with notice or lapse of time or both would give
rise to a default) under, or give rise to any right of termination,
cancellation, amendment or acceleration (with or without notice, lapse of time
or both) under any of the terms, conditions or provisions of any contract, note,
bond, mortgage, indenture, license, agreement or other instrument or obligation
to which NGPMR is a party or by which any of its assets is bound, except to the
extent that such default, termination, amendment, acceleration or cancellation
right would not have or be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect; or (iii) result in a violation of
any law, statute, rule, regulation, order, judgment, injunction, decree or
other restriction of any Governmental Authority to which NGPMR is subject
(including federal and state securities laws and regulations) or by which any
of its assets is bound.


 


(b)           Other than
the filings with respect to the HSR Act set forth in Section 6.1,
no declaration, filing or registration with, or notice to, or authorization,
consent or approval of, any Governmental Authority is necessary for the
consummation by NGPMR of the Transactions contemplated by the Transaction
Documents, other than such declarations, filings, registrations, notices, authorization,
consents or approvals that have been obtained or made prior to the Closing.


 


Section 4.4             Brokers’ Fee.  No broker, finder or similar intermediary has
acted for or on behalf of, or is entitled to any broker, finder or similar fee
or other commission from NGPMR 


 


12

















 


or any of its Affiliates, in connection with this Agreement
or the transactions contemplated hereby.


 


ARTICLE
5


INDEMNIFICATION


 


Section 5.1             Survival.


 


(a)           The
representations and warranties of MWE Liberty contained in Article 3
shall survive the Closing until the date that is ** after the date of the
Closing, with the exception that the representations and warranties in (i) **
shall survive the Closing until ** after the ** and (ii) ** shall survive **.  The representations and warranties of NGPMR
contained in ** shall survive **, with the exception that the representations
and warranties in ** shall survive the Closing until the date that is ** after
the date of the Closing.


 


(b)           All covenants
and agreements contained herein that by their terms are to be performed in
whole or in part subsequent to the Closing, shall survive the Closing in
accordance with their terms; provided that
the agreement by MWE Liberty to indemnify the NGPMR Covered Persons pursuant to
** shall survive the Closing until the date that is ** after the Closing Date;
provided further that the covenants contained in Section 6.3 shall
survive **.


 


(c)           The period
of time a representation or warranty or covenant or agreement survives the
Closing pursuant to this Section 5.1 shall be the “Survival Period” with respect to
such representation or warranty or covenant or agreement.  In the event notice of any claim for
indemnification under this Article 5 shall have been asserted in
writing within the applicable Survival Period and such claim has not been
finally resolved by the expiration of such Survival Period, the representations
or warranties or covenants or agreements that are the subject of such claim
shall survive, but only to the extent of the 
underlying facts of the claim (so long as the facts or circumstances
alleged to give rise to such claim have been specified in reasonable detail and
are not based on speculative facts, circumstances or other events) as made
prior to the expiration of the Survival Period, until such claim is finally
resolved.


 


Section 5.2             Indemnification by the Company.


 


(a)           Subject to
the terms of this Article 5, from and after the Closing, the
Company shall indemnify, defend and hold harmless MWE Liberty and its
Affiliates and their respective directors, members, managers, stockholders,
officers, partners, employees, agents, consultants, attorneys, representatives,
successors, transferees and assignees (collectively, the “MWE
Liberty Covered Persons”) from and against any losses, claims,
damages, liabilities (including STRICT LIABILITY), costs and expenses
(including reasonable attorneys’ fees and expenses), interest, penalties,
judgments and settlements of any and every kind and character, known or unknown,
fixed or contingent (collectively, “Losses”),
incurred, arising out of, or relating to, the Assumed Liabilities except to the
extent such Losses arise from the same facts 


 


13

















 


and circumstances as a good faith indemnification claim by
the Company or NGPMR pursuant to Section 5.3.


 


(b)           Subject to
the terms of this Article 5, from and after the Closing, the
Company shall indemnify, defend and hold harmless the NGPMR Covered Persons to
the fullest extent permitted by law, from and against any Losses incurred,
arising out of or related to those items set forth in Section 5.3
(for which MWE Liberty has an obligation to indemnify the NGPMR Covered
Persons) to the extent that MWE Liberty fails to remedy such Losses pursuant to
Section 5.7(b).


 


Section 5.3             Indemnification by MWE Liberty.  Subject to the terms of this Article 5,
from and after the Closing, MWE Liberty shall indemnify, defend and hold
harmless the Company, NGPMR and its Affiliates and their respective directors,
members, managers, stockholders, officers, partners, employees, agents,
consultants, attorneys, representatives, successors, transferees and assignees
(collectively, the “NGPMR Covered Persons”) to
the fullest extent permitted by law, from and against any Losses, incurred,
arising out of or relating to (a) any breach of any of the representations
or warranties (in each case, when made) of MWE Liberty contained in Article 3,
(b) any breach of any of the covenants of MWE Liberty contained in this
Agreement, (c) the ownership, management or operation of the Assets prior
to the Closing Date, other than the Specified Liabilities, (d) those items
listed on Schedule 5.3(d) or (e) those items listed on Schedule
5.3(e).  It is acknowledged and
agreed by the Parties that the indemnity obligations of MWE Liberty under Section 5.3(d) and
Section 5.3(e) shall **by ** in the **.


 


Section 5.4             Indemnification by NGPMR.  Subject to the terms of this Article 5,
from and after the Closing, NGPMR shall indemnify and hold harmless the MWE
Liberty Covered Persons, to the fullest extent permitted by law, from and
against Losses incurred, arising out of or relating to (i) any breach of
any of the representations or warranties (in each case, when made) of NGPMR
contained in Article 4 or (ii) any breach of any of the
covenants of NGPMR in this Agreement.


 


Section 5.5             No Effect on Services Agreement and Company
Operating Agreement. 
Notwithstanding anything to the contrary contained in this Agreement, no
provision of Section 5.2 or Section 5.3 shall be
construed to have any effect upon, or to otherwise limit, any indemnification
obligation contained in the Services Agreement or the Company Operating
Agreement.


 


Section 5.6             Third Party Claims Procedures.


 


(a)           In the
event that any action, suit, claim or proceeding is commenced by a third party
involving a claim for which a party required to provide indemnification
hereunder (an “Indemnifying Party”) may be
liable to a party entitled to indemnification (an “Indemnified
Party”) hereunder (a “Third Party Claim”),
the Indemnified Party shall promptly notify the Indemnifying Party in writing
of such Third Party Claim indicating the nature of such claim and the basis
therefore (the “Claim Notice”) and the
Indemnifying Party shall assume the defense thereof, including the employment
of counsel reasonably satisfactory to the Indemnified Party and the payment of
all fees and expenses incurred in connection with defense thereof; provided  


 


14

















 


that if the Indemnifying Party
does not promptly take reasonable action to assume such defense, the
Indemnified Party may lead the defense of such potentially indemnified claim
and the Indemnifying Party shall be liable for all additional costs and expenses
incurred by the Indemnified Party in connection therewith, provided
further, that no failure of any Indemnified Party to give such Claim
Notice and no delay on the part of the Indemnified Party in giving any such
Claim Notice shall relieve the Indemnifying Party of any indemnification
obligation hereunder except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal or further review) that such failure shall have proximately
and materially adversely prejudiced the Indemnifying Party.


 


(b)           An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless:  (i) the Indemnifying Party
has agreed in writing to pay such fees and expenses; (ii) the Indemnifying
Party shall have failed promptly to assume the defense of such Proceeding and
to employ counsel reasonably satisfactory to such Indemnified Party in any such
Proceeding; or (iii) the named parties to any such Proceeding (including
any impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall have been advised by counsel that a
conflict of interest is likely to exist if the same counsel were to represent
such Indemnified Party and the Indemnifying Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects to
employ separate counsel at the expense of the Indemnifying Party, such counsel
shall be at the expense of the Indemnifying Party).  It being understood, however, that the
Indemnifying Party shall not, in connection with any one such Proceeding, be
liable for the fees and expenses of more than one separate firm of attorneys at
any time for all Indemnified Parties, which firm shall be appointed by a
majority of the Indemnified Parties; provided, however,
that in the case a single firm of attorneys would be inappropriate due to
actual or potential differing interests or conflicts between such Indemnified
Parties and any other party represented by such counsel in such Proceeding or
otherwise, then the Indemnifying Party shall be liable for the fees and
expenses of one additional firm of attorneys with respect to such Indemnified
Parties.  The Indemnifying Party shall
not be liable for any settlement of any such Proceeding effected without its
written consent, which consent shall not be unreasonably withheld.  No Indemnifying Party shall, without the
prior written consent of the Indemnified Party (which in the event that the
Indemnified Party is the Company shall include the written consent of NGPMR,
not to be unreasonably withheld), effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless (A) such
settlement includes a full and unconditional release of such Indemnified Party
from all liability on claims that are the subject matter of such Proceeding, (B) does
not contain any admission of wrongdoing or illegal conduct and (C) the
Indemnifying Party has agreed in writing that it is liable to the Indemnified
Party for an indemnification payment in respect of the full amount of the
settlement.


 


Section 5.7             Satisfaction of Claims for Indemnification.


 


(a)           The
Parties agree that in the event any Losses are determined to have been incurred
as a result of an indemnification claim pursuant to Section 5.3,
MWE Liberty shall have the right to first satisfy and discharge any such Losses
by either (i) ** for such Losses and/or (ii) ** such Losses; 


 


15
















 


provided that, (i) if
and to the extent any such ** for any ** for which it is entitled to indemnity
hereunder, MWE Liberty shall indemnify NGPMR ** for any such Losses pursuant to
Section 5.7(b) and (ii) in no event shall ** a claim for
indemnification made pursuant to this Article 5 has been satisfied
**, or that ** any obligation hereunder, **.


 


(b)           In the
event that MWE Liberty fails to satisfy in full any Losses in accordance with Section 5.7(a) **
such Losses being finally determined, MWE Liberty shall satisfy any such claim
for indemnification by either (i) ** for any Losses incurred by NGPMR **
or (ii) having ** (as such term is defined in the Company Operating
Agreement) ** the amount of any such Company Loss that has not been satisfied
in full pursuant to Section 5.7(a); provided
that ** set forth above by providing ** within 30 days of such
Losses being finally determined.  In the
event that unremedied Losses are to be indemnified pursuant to clause (ii) of
this Section 5.7(b), MWE Liberty and NGPMR shall ** the Company
Operating Agreement ** an amount equal to such unremedied Loss.


 


Section 5.8             Limits on Indemnification.


 


(a)           In
calculating amounts payable to an Indemnified Party, the amount of any
indemnified Losses shall be determined without duplication of any other Loss
for which an indemnification claim has been made or could be made under any
other representation, warranty, covenant, or agreement and shall be computed
net of (i) payments actually recovered by the Indemnified Party under any
insurance policy with respect to such Losses and (ii) any prior or
subsequent actual recovery by the Indemnified Party from any Person with
respect to such Losses and (iii) any Tax Benefit accruing to any
Indemnified Party on account of such Losses.


 


(b)           Notwithstanding
any other provision of this Agreement, in no event shall any Party be liable
for punitive, special, incidental, indirect, consequential or lost profits
damages of any kind or nature, regardless of the form of action through which
such damages are sought, except for any such damages recovered by any third
party against any Party in respect of which such Party would otherwise be
entitled to indemnification pursuant to the terms hereof.


 


(c)           In
addition to being entitled to exercise all rights provided herein, including
recovery of damages, the Parties will be entitled to specific performance under
this Agreement.  The Parties agree that
monetary damages may not be adequate compensation for any loss incurred by
reason of any breach of obligations described in the foregoing sentence and
hereby agree to waive in any action for specific performance of any such
obligation the defense that a remedy at law would be adequate.


 


(d)           If the Closing occurs, neither the
Company nor NGPMR will be entitled to indemnity under ** of this Agreement for
Losses with respect to any claim under ** until the aggregate amount of all
such claims 


 


16

















 


**,
and thereafter, the Company and/or NGPMR shall ** Losses **; provided however, that all Losses resulting from or arising
out of any ** shall be indemnified against ** to the **.  Except for a claim of actual fraud involving
a knowing and intentional misrepresentation or omission of a material fact or
willful or intentional breach, in no event will the aggregate liability of (i) **
under ** and (ii) ** under ** in respect of ** claims of ** under **
exceed **; provided, however, that the aggregate
liability of ** under ** with respect to ** shall not exceed **; provided, further that the aggregate liability of ** under
** in respect of ** claims of ** under ** with respect to ** shall not exceed
**.  Notwithstanding anything to the
contrary in this Agreement, in no event shall the aggregate liability of (i) **
arising under this Agreement and from the transactions contemplated hereby
exceed ** and (ii) ** arising under this Agreement and from the
transactions contemplated hereby exceed **. 
The reimbursement and indemnification obligations set forth in ** shall
not be subject to any of the limitations set forth in this Section 5.8.


 


(e)           In no
event shall the ** recovery of any Losses pursuant to this Article 5
be duplicative.


 


(f)            The
remedies provided in this Article 5 shall be the sole and exclusive
legal remedies of the Parties, from and after the Closing, with respect to this
Agreement and the transactions contemplated hereby; provided
that nothing in this Section 5.8(f) shall prevent
either Party from (i) seeking specific performance, injunctive and/or
equitable relief for claims of breach or failure to perform covenants
performable under this Agreement at any time after the Closing or (ii) pursuing,
and recovering in respect of, any claim based on actual fraud involving a
knowing and intentional misrepresentation or omission of a material fact or
willful or intentional breach.


 


Section 5.9             Extent of Indemnification.  WITHOUT LIMITING THE SCOPE OF THE
INDEMNIFICATION, DISCLAIMER, RELEASE AND ASSUMPTION OBLIGATIONS SET FORTH IN
THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, AN INDEMNIFIED PERSON
SHALL BE ENTITLED TO INDEMNIFICATION HEREUNDER IN ACCORDANCE WITH THE TERMS
HEREOF, REGARDLESS OF WHETHER THE INDEMNIFIABLE LOSS GIVING RISE TO ANY SUCH
INDEMNITY OBLIGATION IS THE RESULT OF THE SOLE, ACTIVE, PASSIVE, CONCURRENT OR
COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL FAULT OR VIOLATION OF
ANY LAW OF OR BY ANY SUCH INDEMNIFIED PERSON.


 


Section 5.10           No Reliance.  THE REPRESENTATIONS AND WARRANTIES OF MWE
LIBERTY CONTAINED IN ARTICLE 3 CONSTITUTE THE SOLE AND EXCLUSIVE
REPRESENTATIONS AND WARRANTIES OF MWE LIBERTY TO THE COMPANY IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED HEREBY.  


 


17

















 


THE REPRESENTATIONS AND WARRANTIES OF NGPMR CONTAINED IN ARTICLE 4
CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES OF NGPMR TO
THE COMPANY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY.  EXCEPT FOR SUCH REPRESENTATIONS AND
WARRANTIES (IN EACH CASE, AS MODIFIED BY THE SCHEDULES HERETO), NONE OF MWE
LIBERTY, THE COMPANY, NGPMR OR ANY OTHER PERSON MAKES ANY OTHER EXPRESS OR
IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO SUCH PARTIES, THE ASSETS OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND EACH PARTY DISCLAIMS ANY
OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY SUCH PARTIES OR ANY OF
THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES
(INCLUDING WITH RESPECT TO THE DISTRIBUTION TO, OR ANY SUCH PERSON’S RELIANCE
ON, ANY INFORMATION, DOCUMENTS OR OTHER MATERIAL MADE AVAILABLE TO SUCH PERSON
IN ANY DATA ROOM, MANAGEMENT PRESENTATION OR IN ANY OTHER FORM IN
EXPECTATION OF, OR IN CONNECTION WITH, THE TRANSACTIONS CONTEMPLATED
HEREBY).  EXCEPT FOR SUCH REPRESENTATIONS
AND WARRANTIES (IN EACH CASE, AS MODIFIED BY THE SCHEDULES HERETO), EACH PARTY
HEREBY DISCLAIMS ALL LIABILITY AND 
RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST,
STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN
WRITING) TO ANY OTHER PARTY OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS OR REPRESENTATIVES (INCLUDING OPINION, INFORMATION, PROJECTION, OR
ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO ANY PARTY OR ANY
DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF SUCH PARTY
OR ANY OF ITS AFFILIATES).


 


ARTICLE
6


COVENANTS


 


Section 6.1             HSR Filing.


 


(a)           As
promptly as reasonably possible following the execution of this Agreement, but
in no event later than 10 Business Days following such date, NGPMR shall make
such filings as may be required under the Hart-Scott-Rodino Anti-Trust
Improvements Act of 1976 (“HSR Act”)
with respect to the transactions contemplated by this Agreement and, in making
such filings, NGPMR shall request early termination of the waiting period
specified in the HSR Act.  Thereafter,
NGPMR shall file as promptly as possible all reports or other documents
required or requested by the U.S. Federal Trade Commission (“FTC”) or the U.S. Department of
Justice (“DOJ”) pursuant to the HSR Act
or otherwise including requests for additional information concerning such
transactions.  Without limiting the
foregoing, NGPMR and MWE Liberty shall use commercially reasonable efforts to
cooperate and oppose any preliminary injunction sought by any Governmental
Authority under the HSR Act preventing the consummation of the transactions
contemplated by this Agreement.  NGPMR
and MWE Liberty shall cause their respective counsel to furnish the other party
such necessary information and reasonable assistance as the other may
reasonably request in connection with NGPMR’s preparation of necessary filings
or submissions under the provisions of the HSR Act.  NGPMR 


 


18

















 


shall cause its counsel to supply to MWE Liberty copies of
the date stamped receipt copy of the cover letters delivering the filings or
submissions required under the HSR Act to the FTC or DOJ, as applicable.  Notwithstanding anything in this Section 6.1
to the contrary, neither NGPMR nor MWE, nor any of their Affiliates, shall be
required by this Section 6.1 to take any action that would require
or result in holding separate or divesting assets or operations of NGPMR, MWE
Liberty or any of their Affiliates in order to have satisfied their obligation
to use their commercially reasonable efforts under this Section 6.1.


 


(b)           The cost
all filing or application fees associated with filings under the HSR Act shall
be **. 
Within two Business Days of filing under the HSR Act, **.


 


Section 6.2             Tax Effect.


 


(a)           None of
the Parties (nor such Parties’ counsel or accountants) has made or is making
any representations to any other Party (nor such Party’s counsel or accountant)
concerning any of the Tax effects of the transactions provided for in this
Agreement.  Each Party hereto represents
that it has obtained, or may obtain, independent Tax advice with respect
thereto and upon which it, if so obtained, has solely relied.


 


Section 6.3             Tax
Matters.


 


(a)           Each of
the Parties agrees to cooperate fully with each other Party to enable each
Party to more accurately determine its own tax liability and to minimize such
liability to the extent legally permissible. 
Each Party shall provide and make available to each other Party such
records as a Party may reasonably request for the defense of any audit, examination,
administrative appeal or litigation of any Tax Return or other similar
governmental report or form.


 


(b)           MWE
Liberty shall be liable for, and shall indemnify, defend and hold harmless the
Company for, any and all liability for Taxes with respect to the Assets for any
taxable period ending on or before the Closing Date (“Pre-Closing
Tax Period”) and with respect to any taxable period that begins
on or before and ends after the Closing Date (“Straddle
Period”), for the portion thereof ending on the Closing
Date.  In the case of any Straddle
Period, the amount of Taxes with respect to the Assets allocable to the portion
of the Straddle Period ending on the Closing Date shall be deemed to be the
amount of such Taxes for the entire period (or, in the case of such Taxes
determined on an arrears basis, the amount of such Taxes for the immediately
preceding period) multiplied by a fraction, the numerator of which is the
number of calendar days in the applicable period ending on and including the
Closing Date and the denominator of which is the number of calendar days in the
entire relevant period.


 


(c)           Ad valorem
property Taxes imposed on or with respect to the Assets for the taxable period
(for purposes of this section, “taxable period” means the period beginning on
the assessment date for ad valorem property Taxes through the day before the
next assessment date for such Taxes) that contains the Closing Date shall be
prorated between MWE Liberty and Company based on the relative number of days
prior to the Closing Date and on and after the Closing Date during the taxable
period, with MWE Liberty being responsible for such prorated ad valorem
property Taxes for the period prior to the Closing Date and Company being 


 


19

















 


responsible for such prorated ad valorem property Taxes for
the period beginning on the Closing Date. 
Upon receipt of the ad valorem property Tax bills for the taxable period
that contains the Closing Date, MWE Liberty shall calculate the prorated ad
valorem property Taxes and shall bill Company for such amount, with Company
making such payment within 20 days of receipt of such bill.  Company shall promptly forward to MWE Liberty
any ad valorem property Tax bills for the taxable period that contains the
Closing Date that are received by Company. 
MWE Liberty shall be responsible as between MWE Liberty and Company for
the payment of the total amount of ad valorem property Taxes imposed on or with
respect to the Assets for the taxable period that contains the Closing Date.


 


Section 6.4             Further Assurances.  From time to time after the Closing Date, and
without any further consideration, the Parties agree to, and MWE Liberty agrees
to cause its Affiliates to, as applicable, execute, acknowledge and deliver all
such additional deeds, assignments, bills of sale, conveyances, instruments,
notices, releases, acquittances and other documents, and will do all such other
acts and things, all in accordance with applicable Laws, as may be reasonably
necessary to give effect to the transactions consummated by this Agreement and
to collect and reduce to the possession of the Company the Assets and to effect
the assumption by the Company of the Assumed Liabilities.


 


Section 6.5             Consents.  Except for those consents listed on Schedule
7.2(c), which are required to be obtained prior to the Closing, MWE Liberty
shall use commercially reasonable efforts to obtain and, to the extent that any
Assets are held in the name of an Affiliate of MWE Liberty, cause its
Affiliates to use commercially reasonable efforts to obtain, any other consents
of third parties, including Governmental Authorities, which are required to be
obtained for the assignment of the Assets to the Company (the “Consents”) prior to the
Closing.  Prior to obtaining the
Consents, any Asset that is not otherwise assignable or transferable (each a “Non-Assigned Asset”) shall be deemed
to be held by MWE Liberty or such Affiliate, as applicable, at all times during
the Holding Period in accordance with this Section.  During the Holding Period, MWE Liberty shall
and shall cause its Affiliates to, to the extent MWE Liberty or its Affiliates
may lawfully and validly do so, grant to the Company a non-exclusive right and
license to use each such Non-Assigned Asset and provide the Company with the
economic benefits and risks of ownership of the Non-Assigned Assets, the intent
of the parties being to provide the Company, to the extent the same can be
reasonably done, with the same access and ability to utilize such Non-Assigned Assets
as if such Non-Assigned Assets had been included within the Assets.  Upon receipt of the Consent related to a
Non-Assigned Asset, such Non-Assigned Asset shall automatically be deemed to be
an Asset without the need for any further action on the part of the parties or
any other Person and without the payment of any additional consideration, but
subject to the provisions of Section 6.4.  The Company shall cooperate in good faith
with MWE Liberty and its Affiliates in connection with the pursuit of the
Consents.


 


Section 6.6             Expenses.  Except to the extent otherwise specifically
provided herein, all costs and expenses incurred by NGPMR in connection with
the Transaction Documents and the Transactions shall be paid by **, including all fees of its legal counsel, financial and
business advisers and accountants; provided that
the ** to be **.  MWE Liberty shall bear its own expenses
incurred in connection with the Transaction Documents and the Transactions
whether or not the Transactions are consummated, including all fees of its
legal counsel, financial and 


 


20

















 


business advisers and accountants (which for clarity purposes
shall include the fees of Morgan Stanley).


 


Section 6.7             Public Statements.  The Parties shall consult with each other
prior to issuing any public announcement, statement or other disclosure with
respect to this Agreement, the other Transaction Documents or the transactions
contemplated hereby or thereby and neither MWE Liberty on one hand nor NGPMR on
the other shall issue any such public announcement, statement or other
disclosure without having first received the written consent of the other
Party, except as may be required by law.


 


Section 6.8             Conduct of Business.  From the date of this Agreement through the
Closing, MWE Liberty shall operate the Business in the ordinary course and,
without limiting the generality or effect of the foregoing, MWE Liberty shall
use reasonable efforts to maintain the Assets, comply with all applicable Laws,
and preserve intact the Business and its relationships with customers,
suppliers and others having business relationships with it, in each case in all
material respects.  Without limiting the
generality or effect of the foregoing, except as set forth on Schedule 3.4(b) or
as contemplated in Section 7.2(e), prior to the Closing, without
the prior written consent of NGPMR, which consent shall not be unreasonably
withheld, neither MWE Liberty nor the Company shall (a) enter into any
commercial contracts with an expected annual revenue in excess of ** (b) enter into any commercial, capital or
construction contracts reasonably expected to cause the Company to incur
obligations in excess of ** or (c) make
any capital expenditures in excess of ** in the
aggregate.


 


ARTICLE 7

CONDITIONS PRECEDENT


 


Section 7.1             Conditions to Each Party’s Obligations.  The respective obligation of each Party to
effect the transactions contemplated hereby is subject to the satisfaction at
or prior to the date hereof of the following conditions:


 


(a)           NGPMR
shall have made all filings required under the HSR Act and the applicable
waiting periods shall have expired or been terminated without any conditions
that would require or result in either NGPMR or MWE Liberty holding separate or
divesting assets or operations.


 


(b)           No
temporary restraining order, preliminary or permanent injunction or other order
(whether temporary, preliminary or permanent) issued by any court or other
Governmental Authority of competent jurisdiction or other legal restraint or
prohibition shall be in effect which prevents the consummation of the
transactions contemplated by this Agreement.


 


(c)           No legal
proceeding shall be pending that involves any challenge to or seeking damages
or other relief in connection with the transactions contemplated by this
Agreement or that may have the effect of preventing, delaying, making illegal,
imposing limitations or conditions on or otherwise interfering with the
transactions contemplated by this Agreement.


 


(d)           The Credit
Agreement shall be amended concurrent with the Closing to (i) exclude the
Company as a Subsidiary and as a Loan Party (as such terms are defined in the 


 


21

















 


Credit Agreement), (ii) release the Assets to be
contributed to the Company at Closing from any Liens (as such term is defined
in the Credit Agreement) under the Credit Agreement and (iii) permit MWE
Liberty’s initial contribution to, and future investments in, the Company.


 


(e)           (i) The
Company shall ** (as such term is defined in the
**) under the **
and (ii) MWE Liberty shall provide a certificate to NGPMR, dated as of the
Closing Date, certifying that the condition specified in this Section 7.1(e) have
been satisfied, together with supporting documentation that **.


 


Section 7.2             Conditions to NGPMR’s Obligations.  The obligation of NGPMR to consummate the
transactions contemplated by this Agreement is subject to the satisfaction of
the following conditions, any one or more of which may be waived in writing by
NGPMR:


 


(a)           Representations,
Warranties and Covenants of MWE Liberty. 
(i) Each of the representations and warranties of MWE Liberty made
in this Agreement will be true and correct as of the date of this Agreement
(except to the extent such representations and warranties speak to an earlier
date, in which case as of such earlier date) and as of the Closing (as if made
anew at and as of the Closing, except to the extent such representations speak
to an earlier date, in which case as of such earlier date) except to the extent
the failure of such representations and warranties to be true and correct as of
the Closing Date has not had, and is not reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect (provided that for
purposes of determining whether the condition set forth in this sentence has
been satisfied, all “Material Adverse Effect” and other materiality qualifiers
contained in the MWE Liberty’s representations and warranties shall be
disregarded), and (ii) MWE Liberty shall have performed or complied in all
material respects with all of the covenants and agreements required by this
Agreement to be performed or complied with by MWE Liberty on or before the
Closing;


 


(b)           No
Material Adverse Effect.  Since the
date of the Agreement, there shall not have been any Material Adverse Effect
with respect to MWE Liberty or the Assets;


 


(c)           Third
Party Consents; Governmental Approvals. 
The consents, authorizations, approvals, exemptions and/or waivers
listed on Schedule 7.2(c) shall have been received or obtained by
MWE Liberty;


 


(d)           Purchase
and Sale Agreement.  The closing
contemplated by that certain Purchase and Sale Agreement, dated as of **, between ** and MWE
Liberty and/or the Company, shall have occurred;


 


(e)           ** Agreements.  The agreements between MWE Liberty and ** to (i) include ** from the **, (ii) provide for an **
to result in an ** and (iii) increase ** to **; and


 


(f)            Closing
Documents.  MWE Liberty shall have
delivered or caused to be delivered all of the closing deliveries set forth in Section 2.4(b).


 


Section 7.3             Conditions to MWE Liberty’s Obligations.  The obligation of MWE Liberty to consummate
the transactions contemplated by this Agreement is subject to the satisfaction
of the following conditions, any one or more of which may be waived in writing
by MWE Liberty:


 


22

















 


(a)           Representations,
Warranties and Covenants of NGPMR.  (i) Each
of the representations and warranties of NGPMR made in this Agreement will be
true and correct as of the date of this Agreement (except to the extent such
representations and warranties speak to an earlier date, in which case as of
such earlier date) and as of the Closing (as if made anew at and as of the
Closing, except to the extent such representations and warranties speak to an
earlier date, in which case as of such earlier date) except to the extent the
failure of such representations and warranties to be true and correct as of the
Closing Date has not had, and is not reasonably expected to have, individually
or in the aggregate, a Material Adverse Effect (provided that for purposes of
determining whether the condition set forth in this sentence has been
satisfied, all “Material Adverse Effect” and other materiality qualifiers
contained in the NGPMR’s representations and warranties shall be disregarded),
and (ii) NGPMR shall have performed or complied in all material respects
with all of the covenants and agreements required by this Agreement to be
performed or complied with by NGPMR on or before the Closing; and


 


(b)           Closing
Documents.  MWE shall have delivered
or caused to be delivered all of the closing deliveries set forth in Section 2.4(a).


 


ARTICLE
8

TERMINATION


 


Section 8.1             Termination.  At any time prior to the Closing, this
Agreement may be terminated and the transactions contemplated hereby abandoned:


 


(a)           by the
mutual consent of NGPMR and MWE Liberty as evidenced in writing signed by each
of NGPMR and MWE Liberty;


 


(b)           by NGPMR,
if there has been a breach by MWE Liberty of any representation, warranty or
covenant contained in this Agreement that has prevented the satisfaction of any
condition to the obligations of NGPMR at the Closing and, if such breach is of
a character that it is capable of being cured, such breach has not been cured
by MWE Liberty within thirty (30) days after written notice thereof from NGPMR;
provided that NGPMR is not then in
material breach of the condition set forth in Section 8.1(c);


 


(c)           by MWE
Liberty, if there has been a breach by NGPMR of any representation, warranty or
covenant contained in this Agreement that has prevented the satisfaction of any
condition to the obligations of MWE Liberty at the Closing and, if such breach
is of a character that it is capable of being cured, such breach has not been cured
by NGPMR within thirty (30) days after written notice thereof from MWE Liberty provided that MWE Liberty is not then in material breach of
the condition set forth in Section 8.1(b);


 


(d)           by either
NGPMR or MWE Liberty if any Governmental Authority having competent
jurisdiction has issued a final, non-appealable order, decree, ruling or
injunction (other than a temporary restraining order) or taken any other action
permanently restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement; or


 


(e)           by either
NGPMR or MWE Liberty, if the transactions contemplated hereby have not been
consummated by March 13, 2009, provided  that neither NGPMR nor MWE Liberty will be entitled to
terminate this Agreement pursuant to this Section 8.1(e) if
such 


 


23

















 


Person’s breach of this Agreement has prevented the
consummation of the transactions contemplated by this Agreement.


 


Section 8.2             Effect of Termination.  If this Agreement is terminated under Section 8.1,
all further obligations of the Parties under this Agreement will terminate
without further liability or obligation of either Party to the other Parties
hereunder; provided, however, nothing herein shall
prejudice the ability of the non-breaching party from seeking damages from any
other Party for any actual fraud involving a knowing and intentional
misrepresentation or omission of a material fact or willful or intentional
breach of this Agreement, including attorneys’ fees and the right to pursue any
remedy at law or in equity; provided further that
if NGPMR terminates this Agreement as a result of a failure of a condition set
forth in Section 8.1(b) due to a material misrepresentation or
inaccuracy of a representation or warranty by MWE Liberty made as of the date
hereof, then MWE Liberty shall ** as set forth
in **. 
The Confidentiality Agreement shall not be affected by a termination of
this Agreement.  Nothing in this Section 8.2
will relieve any Party of their obligation to **
as set forth in **.


 


ARTICLE
9

GENERAL PROVISIONS


 


Section 9.1             Effective Time.  If the transactions contemplated hereby are
consummated in accordance with the terms and conditions of this Agreement, the
ownership of the Assets and the Assumed Liabilities shall be deemed transferred
as of 11:59 p.m., Houston, Texas time, on the Closing Date.


 


Section 9.2             Costs; Taxes.  The Company shall be responsible for
recording and filing documents associated with the transfer of the Assets to it
and for all costs and fees associated therewith, including (i) filing the
assignments with appropriate federal, state and local Governmental Authorities
as required by applicable Law and (ii) the payment of any and all stamp,
documentary, real property transfer, sales, gross receipts, use or similar
Taxes or assessments (if any) arising out of the conveyance of the Assets and
the assumption of the Assumed Liabilities as contemplated by this Agreement
(collectively, the “Transfer Taxes”).  Each Party shall cooperate with the other in
timely making all filings, returns, reports and forms as may be required in
connection with the payment of the expenses, fees and costs contemplated by the
previous sentence, including delivering all instruments and certificates as are
reasonably necessary to minimize such expenses, fees and costs and to enable
the other Party to timely comply with the filing of any tax return that relates
to such expenses, fees and costs.


 


Section 9.3             Notices.  Any notice, demand or communication required
or permitted under this Agreement shall be in writing and delivered personally
or by reputable overnight delivery service or other courier, and shall be
deemed to have been duly given as of the date and time reflected on the
delivery receipt, addressed as follows:


 


If to the Company:


 


MarkWest Liberty Midstream &
Resources, L.L.C.


1515 Arapahoe Street


Tower 2, Suite 700


 


24

















 


Denver, Colorado 80202-2126


Attention: 
Senior Vice President and Chief Operations Officer


 


and


 


MarkWest Liberty Midstream &
Resources, L.L.C.


1515 Arapahoe Street


Tower 2, Suite 700


Denver, Colorado 80202-2126


Attention: General Counsel


 


If to MWE Liberty:


 


MarkWest Liberty Gas Gathering, L.L.C.


1515 Arapahoe Street


Tower 2, Suite 700


Denver, Colorado 80202-2126


Attention: 
Senior Vice President and Chief Operations Officer


 


and


 


MarkWest Liberty Gas Gathering, L.L.C.


1515 Arapahoe Street


Tower 2, Suite 700


Denver, Colorado 80202-2126


Attention: General Counsel


 


If to NGPMR:


 


M&R MWE Liberty, LLC


1401 McKinney, Suite 1025


Houston, Texas 77010


Attention: Jeffrey C. Rawls


 


with a copy to:


 


Locke Lord Bissell & Liddell, LLP


600 Travis Street, Suite 3400


Houston, Texas 77002


Fax 
(713) 229-2518


Attention: H. William Swanstrom


 


A Party may change its
address for the purposes of notices hereunder by giving notice to the other
Party specifying such changed address in the manner specified in this Section 9.3.


 


25
















 


Section 9.4             Binding Effect.  This Agreement will be binding upon, and will
inure to the benefit of, the Parties and their respective successors, permitted
assigns and legal representatives.


 


Section 9.5             No Third Party Rights.  The provisions of this Agreement are intended
to bind the Parties as to each other and are not intended to and do not create
rights in any other Person or confer upon any other Person (other than the
express beneficiaries of the indemnity provisions contained in Sections 5.2,
5.3 and 5.4) any benefits, rights or remedies and no Person is or is
intended to be a third party beneficiary of any of the provisions of this
Agreement.


 


Section 9.6             No Waiver.  No waiver or consent, express or implied, by
any Party to or of any breach or default by any Person in the performance by
such Person of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such Person of the same or any other obligations of such Person hereunder.
Failure on the part of a Party to complain of any act of any Person or to
declare any Person in default, irrespective of how long such failure continues,
shall not constitute a waiver by such Party of its rights hereunder until the
applicable statute of limitations period has run.


 


Section 9.7             Applicable Law.  THIS AGREEMENT AND THE RIGHTS OF THE PARTIES
HEREUNDER SHALL BE INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS; PROVIDED, HOWEVER,
THAT MATTERS CONCERNING TITLE TO THE TRANSFERRED ASSETS SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE JURISDICTION WHERE SUCH
TRANSFERRED ASSETS ARE LOCATED.  THE PARTIES
FURTHER AGREE THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY DOCUMENT RELATING HERETO MAY BE BROUGHT ONLY IN A FEDERAL
OR STATE COURT OF COMPETENT JURISDICTION IN HOUSTON, TEXAS.  EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING, BUT NOT LIMITED TO, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON-CONVENIENCE, WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF SUCH ACTION OR PROCEEDING IN ANY SUCH RESPECTIVE
JURISDICTION.


 


Section 9.8             Severability.  If any of the provisions of this Agreement
are held by any court of competent jurisdiction to contravene, or to be invalid
under, the laws of any political body having jurisdiction over the subject
matter hereof, such contravention or invalidity shall not invalidate the entire
Agreement. Instead, this Agreement shall be construed as if it did not contain
the particular provision or provisions held to be invalid and an equitable
adjustment shall be made and necessary provision added so as to give effect to
the intention of the Parties as expressed in this Agreement at the time of
execution of this Agreement.


 


Section 9.9             Amendment or Modification.  This Agreement may be amended, modified or
supplemented from time to time only by a written agreement executed by all the
Parties.


 


26

















 


Section 9.10           Assignment; Deed; Bill of Sale.  No Party shall have the right to assign its
right or obligations under this Agreement without the prior written consent of
the other Parties.  To the extent
required and permitted by applicable Law, this Agreement shall also constitute
a “deed,” “bill of sale” or “assignment” of the assets and interests referenced
herein.


 


Section 9.11           Conspicuousness of Provisions.  THE PARTIES ACKNOWLEDGE AND AGREE THAT THE
PROVISIONS CONTAINED IN THIS AGREEMENT THAT ARE IN CAPITALIZED LETTERS SATISFY
THE REQUIREMENT OF THE “EXPRESS NEGLIGENCE RULE” AND ANY OTHER REQUIREMENT AT
LAW OR IN EQUITY THAT PROVISIONS CONTAINED IN A CONTRACT BE CONSPICUOUSLY
MARKED OR HIGHLIGHTED.


 


Section 9.12           Counterparts.  This Agreement may be executed in any number
of counterparts with the same effect as if all Parties had signed the same
document.  All counterparts shall be
construed together and shall constitute one and the same instrument.  Execution and delivery of this Agreement by
exchange of facsimile or other electronically transmitted counterparts bearing
the signature of a Party shall be equally as effective as delivery of a
manually executed counterpart by such Party.


 


Section 9.13           No Recourse Against Officers or Directors.  For the avoidance of doubt, the provisions of
this Agreement shall not give rise to any right of recourse against any
officer, director or manager of any Party.


 


Section 9.14           Entire Agreement; Supersedure.  This Agreement and the instruments referenced
herein supersede all previous understandings or agreements among the Parties,
whether oral or written, with respect to their subject matter. This Agreement
and such instruments contain the entire understanding of the Parties with
respect to the subject matter hereof and thereof. No understanding,
representation, promise or agreement, whether oral or written, is intended to
be or shall be included in or form part of this Agreement unless it is
contained in a written amendment hereto executed by the Parties hereto after
the date of this Agreement.


 


[Signature Page Follows]


 


27

















 


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


 


	
   

  	
  MARKWEST LIBERTY GAS GATHERING, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Frank M. Semple

  
	
   

  	
   

  	
  Frank M. Semple

  
	
   

  	
   

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MARKWEST LIBERTY MIDSTREAM & RESOURCES,
  L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Frank M. Semple

  
	
   

  	
   

  	
  Frank M. Semple

  
	
   

  	
   

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  M&R MWE LIBERTY, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Raymond

  
	
   

  	
  Name:

  	
  John Raymond

  
	
   

  	
  Title:

  	
  Managing Partner & Chief Executive Officer

  
				



 


Signature
Page to Contribution Agreement


 

















 


EXHIBIT A


 


DEFINED TERMS


 


“Act”
means the Delaware Limited Liability Company Act, 6 Del.C. §§ 18-101 et  seq.,
as it may be amended from time to time, and any successor thereto.


 


“Affiliate”
means with respect to a Person, any other Person that, directly or indirectly,
Controls, is Controlled by, or is under Common Control with, the specified
Person.


 


“Agreement”
means this Contribution Agreement, as it may be amended, supplemented or
modified from time to time.


 


“Area
of Mutual Interest” has the meaning ascribed to such term in the
Company Operating Agreement.


 


“Assets”
shall have the meaning set forth in Section 2.1(b).


 


“Assignment
and Assumption” shall have the meaning set forth in Section 2.4(b)(v).


 


“Assumed
Liabilities” shall have the meaning set forth in Section 2.2.


 


“Base Cap” means **.


 


“Basket
Amount” means **.


 


“Benefit
Plans” shall have the meaning set forth in Section 3.15(b).


 


“Business”
shall have the meaning set forth in the recitals.


 


“Business
Day” means any day that is not a Saturday, Sunday or other day
on which commercial banks are required or authorized by law to be closed in the
State of Texas or the State of Colorado.


 


“CERCLA”
means the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. §9601 et seq., as amended.


 


“Class A
Interests” has the meaning ascribed to such term in the Company
Operating Agreement.


 


“Class A
Member” has the meaning ascribed to such term in the Company
Operating Agreement.


 


“Class A
Percentage Interests” has the meaning ascribed to such term in
the Company Operating Agreement.


 


“Class B
Interests” has the meaning ascribed to such term in the Company
Operating Agreement.


 


A-1

















 


“Class B Member” has the meaning
ascribed to such term in the Company Operating Agreement.


 


“Claim
Notice” shall have the meaning set forth in Section 5.6(a).


 


“Closing”
shall have the meaning set forth in Section 2.3.


 


“Closing
Date” shall have the meaning set forth in Section 2.3.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Company”
shall have the meaning set forth in the preamble.


 


** means an amount equal to
the lesser of (a) ** or (b) the ** at the time of an indemnification
claim pursuant to **, in each case, less any amount paid by ** in respect of indemnification
claims under this Agreement.


 


“Company
Operating Agreement” shall have the meaning set forth in the
recitals.


 


“Confidentiality
Agreement” shall mean that certain Amended and Restated
Confidentiality Agreement, dated as of **, by and
between MarkWest Energy Partners, L.P. and NGP Midstream & Resources,
L.P.


 


“Consents”
shall have the meaning set forth in Section 6.5.


 


“Control,”
including the correlative terms “Controlling,” “Controlled by” and “under
Common Control with” means possession, directly or indirectly (through one or
more intermediaries), of the power to direct or cause the direction of the
management or policies (whether through ownership of securities or any
partnership or other ownership interest, by contract or otherwise) of a Person.  For the purposes of this definition,
ownership of more than 50% of the voting interests of any entity shall be
conclusive evidence that Control exists.


 


“Credit
Agreement” means that certain Credit Agreement, dated as of February 20,
2008, among MWE, certain subsidiary guarantors, Royal Bank of Canada, as
Administrative Agent and Collateral Agent, and the other lenders party thereto.


 


“Disclosed
Liabilities” means any and all liabilities of MWE Liberty and/or
the Company (i) arising from or relating to matters set forth on the
disclosure schedules of MWE Liberty or (ii) set forth on the Trial Balance
or arising after the date of the Trial Balance in the ordinary course of
business.


 


“DOJ”
shall have the meaning set forth in Section 6.1(a).


 


“Effective
Date” means 12:01 a.m. on January 1, 2009.


 


“Environmental
Claim” means any Proceeding or Loss resulting from or arising
out of: (i) violation of or liability (including STRICT LIABILITY) under
any Environmental Law or 


 


A-2

















 


Environmental Permit; (ii) the
performance of an Environmental Response; (iii) unlawful exposure to
Hazardous Substances; or (iv) the Release of any Hazardous Substances.


 


“Environmental
Laws” means any and all applicable laws (including common law),
rules, ordinances, codes, decrees, judgments, directives, judicial or
administrative orders or regulations of any Governmental Authority having
jurisdiction over MWE Liberty or its Assets pertaining to prevention of
pollution, protection of the environment, remediation of contamination, or
workplace health and safety, including CERCLA; the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901 et  seq.; the Federal Water
Pollution Control Act, 33 U.S.C. § 1251 et  seq.; the Clean Air
Act, 42 U.S.C. § 7401 et  seq.; the Hazardous Materials
Transportation Act, 49 U.S.C. § 5101 et  seq.; the Toxic
Substances Control Act, 15 U.S.C. §§ 2601 through 2629; the Oil Pollution Act,
33 U.S.C. § 2701 et  seq.; the Emergency Planning and Community
Right-to-Know Act, 42 U.S.C. § 11001 et  seq.; the Safe Drinking
Water Act, 42 U.S.C. §§ 300f through 300j; the Occupational Safety and Health
Act, 29 U.S.C. § 651 et  seq.; each as amended, and all similar
laws, rules and regulations of any Governmental Authority having
jurisdiction over MWE Liberty or its Assets.


 


“Environmental
Permits” means Permits required under Environmental Law.


 


“Environmental
Response” means any action required under Environmental Law: (i) to
prevent, respond to, remove, remediate, abate, investigate or monitor the
release or threatened release of Hazardous Substances at, on, in, about, under,
within or near the air, soil, surface water, groundwater, or other
environmental media; or (ii) to correct a violation under Environmental
Law.


 


“ERISA”
shall have the meaning set forth in Section 3.15(b).


 


“ERISA
Affiliate” means any entity (whether or not incorporated) which
is a member of a controlled group including MWE Liberty or the Company or which
is under Common Control with MWE Liberty or the Company within the meaning of
Sections 414(b), (c), (m) or (o) of the Code.


 


“Excluded
Assets” shall have the meaning set forth in Section 2.1(b)(ii).


 


“FTC”
shall have the meaning set forth in Section 6.1(a).


 


“GAAP”
means generally accepted accounting principles in the United States.


 


“Governmental
Authority” means any governmental, quasi-governmental, state,
county, city or other political subdivision of the United States or any other
country, or any agency, court or instrumentality, foreign or domestic, or
statutory or regulatory body thereof.


 


“Hazardous
Substances” means and includes each substance, waste or material
regulated, defined, designated or classified as a hazardous waste, hazardous
substance, hazardous material, pollutant, contaminant or toxic (or words of
similar import) substance under any Environmental Law and any petroleum or
petroleum products that have been Released into the environment, radioactive
materials, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls and naturally occurring radioactive material.


 


A-3

















 


“Holding
Period” means, for any particular Non-Assigned Asset, the period
beginning on the Closing Date and ending on the earlier of (i) the date
upon which the contract or agreement for which the Consent was not obtained
expires, or (ii) the date upon which such Consent or an alternative
arrangement is obtained on terms that are substantially similar in operational
and economic effects as would have been achieved if the Non-Assigned Asset had
been included within the Assets.


 


“HSR
Act” shall have the meaning set forth in Section 6.1(a).


 


“Indebtedness”
of any Person means any obligations of such Person: (a) for borrowed
money, (b) evidenced by notes, bonds, indentures or similar instruments, (c) for
the deferred purchase price of goods and services (other than trade payables
incurred in the ordinary course of business), (d) under capital leases or (e) in
the nature of guarantees of the obligations described in clauses (a) through
(d) above of any other Person.


 


“Indemnified
Party” shall have the meaning set forth in Section 5.6(a).


 


“Indemnifying
Party” shall have the meaning set forth in Section 5.6(a).


 


“Indentures”
means (a) that certain Indenture, dated as of April 15, 2008, by and
among MWE, MarkWest Energy Finance Corporation, a Delaware corporation, the
Subsidiary Guarantors (as defined therein), and Wells Fargo Bank, National
Association, a national banking association, as trustee, (b) that certain
Indenture, dated as of July 6, 2006, by and among MWE, MarkWest Energy
Finance Corporation, a Delaware corporation, the Subsidiary Guarantors (as
defined therein), and Wells Fargo Bank, National Association, a national
banking association, as trustee, as amended and supplemented, and (c) that
certain Indenture, dated as of October 25, 2004, by and among MWE,
MarkWest Energy Finance Corporation, a Delaware corporation, the Subsidiary
Guarantors (as defined therein), and Wells Fargo Bank, National Association, a
national banking association, as trustee, as amended and supplemented.


 


“Initial
Budget” shall have the meaning ascribed to such term in the
Company Operating Agreement.


 


“Intellectual
Property” means intellectual property rights, statutory or
common Law, worldwide, including (a) trademarks, service marks, trade
dress, slogans, logos and all goodwill associated therewith, and any
applications or registrations for any of the foregoing; (b) copyrights and
any applications or registrations for any of the foregoing; and (c) patents,
all confidential know-how, trade secrets and similar proprietary rights in
confidential inventions, discoveries, improvements, processes, techniques,
devices, methods, patterns, formulae, specifications, and lists of suppliers,
vendors, customers, and distributors.


 


“Investment
Balance” shall have the meaning ascribed to such term in the
Company Operating Agreement.


 


“Knowledge”
means the actual knowledge of the Persons listed on Schedule 1.1.


 


A-4

















 


“Law”
means any law, statute, code, ordinance, order, rule, rules of common law,
regulation, judgment, decree, injunction, franchise, permit, certificate,
license, authorization, or other directional requirement of any Governmental
Authority.


 


“Losses”
shall have the meaning set forth in Section 5.2.


 


“Material
Adverse Effect” means any effect, event, development or change, (a) which
individually or in the aggregate with all effects, events, developments or
changes is or is reasonably likely to become materially adverse to the
business, assets, liabilities, properties, results of operations or financial
condition of the Person, taken as a whole, or (b) prevents or has an
adverse effect on the ability of the Person to execute and perform their
obligations under this Agreement or the other Transaction Documents or to
consummate the transactions contemplated hereby and thereby in accordance with
the terms hereof and thereof, excluding any such result or consequence
resulting from or related to (i) changes in general economic, political or
business conditions which affect the Person, except any such changes that
affect the Person in a disproportionate manner compared to similarly situated
participants in the industries in which the Person operates; (ii) conditions
affecting the oil and gas industry or oil and gas services industry generally
except any such changes that affect the Person in a disproportionate manner
compared to similarly situated participants in the industries in which the
Person operates; (iii) any change in law or in accounting rules except
any such change that affects the Person in a disproportionate manner compared
to similarly situated participants in the industries in which the Person
operates; or (iv) conditions or effects that have been demonstrated by the
Person as resulting from the announcement of the existence of this Agreement.


 


“Material Contracts” shall mean all
contracts, agreements, personal property leases, commitments, understandings or
instruments of MWE Liberty or by which MWE Liberty is bound that (a) is
reasonably expected to (i) result in expenditures or liabilities in excess
of ** or (ii) generate annual
revenues in excess of **, (b) contains
any provision or covenant, which after the Closing will apply to the Business, or
the Company, prohibiting or materially restricting MWE Liberty from engaging in
any lawful business activity or competing with any person or entity within the
Area of Mutual Interest (as such term is defined in the Company Operating
Agreement), (c) relates to Indebtedness of MWE Liberty or (d) is in
respect of any partnership, joint venture or other similar agreement or
arrangement or otherwise relates to the joint ownership or operation of the
assets owned by MWE Liberty.


 


“Members”
shall have the meaning set forth in the recitals.


 


“Miscellaneous
Consents” means (a) all Consents that are not set forth on Schedule
7.2(c) and which relate to interests in real property, including,
without limitation, leases, rights-of-way, easements and other property use agreements
and (b) Permits or Environmental Permits issued by Governmental
Authorities which are required in connection with the ownership or operation of
the Assets **, and which Consents shall
include any requirements of the applicable Governmental Authorities requiring
the reissuance of any such Permits or Environmental Permits in connection with
the Closing and by the Transaction Documents.


 


“MWE”
means MarkWest Energy Partners, L.P., a Delaware limited partnership.


 


A-5

















 


“MWE **”
means an amount equal to MWE Liberty’s ** as of the Closing Date after giving
effect to ** the Company contemplated hereby (prior to the **).


 


“MWE
Liberty” shall have the meaning set forth in the preamble.


 


“MWE
Liberty Covered Person” shall have the meaning set forth in Section 5.2.


 


“NGPMR”
shall have the meaning set forth in the preamble.


 


“NGPMR
Covered Persons” shall have the meaning set forth in Section 5.3.


 


“Non-Assigned
Asset” is defined in Section 6.5.


 


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


 


“Parties”
shall have the meaning set forth in the preamble.


 


“Permits”
shall have the meaning set forth in Section 3.13.


 


“Permitted
Liens” means (a) statutory liens for current Taxes
applicable to the assets of MWE Liberty or assessments not yet delinquent or
the amount or validity of which is being contested in good faith and for which
adequate reserves have been established in the Trial Balance; (b) mechanics’,
carriers’, workers’, repairers’, landlords’, and other similar liens arising or
incurred in the ordinary course of business MWE Liberty relating to obligations
as to which there is no default on the part of MWE Liberty; and (c) any
liens, encumbrances, security interests, equities, charges or other
restrictions with respect to assets of MWE Liberty, which, together with all
other liens, encumbrances, security interests, equities, charges or other restrictions,
do not materially detract from the value of the Assets or materially interfere
with the present use of the Assets or the conduct of the business of MWE
Liberty.


 


“Person”
means any natural person, corporation, limited partnership, general partnership,
limited liability company, joint stock company, joint venture, association,
company, estate, trust, bank trust company, land trust, business trust, or
other organization, whether or not a legal entity, custodian, trustee-executor,
administrator, nominee or entity in a representative capacity and any
Governmental Authority.


 


**


 


“Pre-Closing
Tax Period” shall have the meaning set forth in Section 6.3(b).


 


“Proceeding”
means any legal action, litigation, arbitration, hearing, written claim, legal
proceeding, prosecution, investigation (for which investigation a Governmental
Authority has provided notice to MWE Liberty), or suit (whether civil, criminal
or administrative) commenced, 


 


A-6

















 


brought, conducted, or heard
by or before, or otherwise involving, any Governmental Authority or any
arbitrator.


 


“Release”
means any depositing, spilling, leaking, pumping, pouring, placing, emitting,
discarding, abandoning, emptying, discharging, migrating, injecting, escaping,
leaching, dumping, or disposing.


 


“Rights-of-Way”
shall have the meaning set forth in Section 3.8.


 


“Services
Agreement” shall have the meaning set forth in the recitals.


 


“Specified
Liabilities” means (a) the Disclosed Liabilities and (b) liabilities
first arising after the Closing Date and relating to the ownership, management
or operation of the Assets under any contract, agreement, Permit or other
instrument existing as of the Closing Date. 
“Specified Liabilities” shall not include those items listed on Schedule
5.3(d) and Schedule 5.3(e).


 


“Straddle
Period” shall have the meaning set forth in Section 6.3(b).


 


“Subsidiary”
of any Person (the “Subject Person”) means any
Person, whether incorporated or unincorporated, of which (a) at least 50%
of the securities or ownership interests having by their terms ordinary voting
power to elect a majority of the board of directors or other Persons performing
similar functions, (b) a general partner interest or (c) a managing
member interest, is directly or indirectly owned or Controlled by the Subject
Person or by one or more of its respective Subsidiaries.


 


“Survival
Period” shall have the meaning set forth in Section 5.1(c).


 


“Tax”
or “Taxes” means (a) any taxes,
assessments, fees, unclaimed property and escheat obligations and other
governmental charges imposed by any Governmental Authority, including, but not
limited to, income, profits, gross receipts, net proceeds, alternative or
add-on minimum, ad valorem, value added, turnover, sales, use, property,
personal property (tangible and intangible), environmental, stamp, leasing,
lease, user, excise, duty, franchise, capital stock, transfer, registration,
license, withholding, social security (or similar), unemployment, disability,
payroll, employment, social contributions, fuel, excess profits, occupational,
premium, windfall profit, severance, estimated, or other charge of any kind
whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not; (b) any liability for the payment of any amounts of the
type described in clause (a) arising by reason of transferee or successor
liability; and (c) any liability for the payment of any amounts of the
type described in clause (a) or (b) as a result of the operation of
all or any express or implied obligation to indemnify any other Person.


 


“Tax
Benefit” means the reduction in the amount of Taxes that
otherwise would have been paid by any Indemnified Party as a result of
incurring any Losses.


 


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


 


“Third
Party Claim” shall have the meaning set forth in Section 5.6(a).


 


A-7

















 


“Transaction
Documents” shall have the meaning set forth in Section 2.4.


 


“Transactions”
shall have the meaning set forth in Section 2.4.


 


“Transfer
Taxes” shall have the meaning set forth in Section 9.2.


 


“Trial
Balance” shall have the meaning set forth in Section 3.9.


 


“Trial
Balance Date” shall have the meaning set forth in Section 3.9.


 


** means that
certain **, by and between MWE Liberty and **, as amended by Amendment No. 1 to **, by and between MWE Liberty and **.


 


A-8
















 


EXHIBIT B


 


ASSETS


 


The
Assets include, without limitation, the following:


 


1.     The lease of the “Interim Plant” **.


 


2.     All natural gas gathering
and processing facilities and equipment located on the property that is the
subject of that certain **, which are
not either (i) the Interim Plant; (ii) that certain natural gas
processing plant, and all of the equipment and appurtenances relating thereto,
referred to as the “Fisk Plant” in
that **; or (iii) facilities and
equipment otherwise owned by **.


 


3.     The contractual right to
purchase the Fisk Plant pursuant to the Fisk Purchase Agreement.


 


4.     The natural gas gathering
and processing systems located in Washington County, Pennsylvania and
identified on the map set forth as Annex A to this exhibit.


 


5.     The following compressor
sites:


a.     Zappi-Hoskins


b.     Shaw


c.     Johnston


d.     Godwin


e.     Stewart


f.      Fulton


g.     Dryer


h.     Black


i.      Gapen


 


6.     The fixed assets listed on Annex
B to this exhibit.


 


7.     The assets related to the
construction in progress listed on Annex C to this exhibit.


 


8.     The Air Permits listed on Annex
D to this exhibit.


 


9.     The Road Bore Permits listed
on Annex E to this exhibit.


 


10.   The Stream Crossing Permits
listed on Annex F to this exhibit.


 


11.   The Easements listed on Annex
G to this exhibit.


 


A-1

















 


**


 


[4 pages have been omitted and filed separately
with the Securities and Exchange Commission pursuant to the request for
confidential treatment.]


 

















 


Annex D


 


AIR PERMITS


 


MARKWEST LIBERTY GAS GATHERING, L.L.C.

COMPRESSOR STATIONS AND PLANTS


 


	
  WASHINGTON

  	
   

  	
  AIR PERMIT

  
	
  COUNTY

  	
   

  	
  PERMIT DATE

  	
   

  	
  NUMBER

  
	
  Zappi-Hoskins
  #1

  	
   

  	
  5-Aug-08

  	
   

  	
  GP5-63-00938

  
	
  Shaw #4

  	
   

  	
  7-Aug-08

  	
   

  	
  GP5-63-00940A

  
	
  Shaw #4

  	
   

  	
  7-Aug-08

  	
   

  	
  GP5-63-00940

  
	
  Johnston
  #3

  	
   

  	
  5-Jun-08

  	
   

  	
  GP5-63-00933A

  
	
  Johnston
  #3

  	
   

  	
  5-Jun-08

  	
   

  	
  GP5-63-00933

  
	
  Godwin
  #4

  	
   

  	
  17-Jun-08

  	
   

  	
  GP5-63-00934A

  
	
  Godwin
  #4

  	
   

  	
  17-Jun-08

  	
   

  	
  GP5-63-00934

  
	
  Stewart
  #5

  	
   

  	
  5-Aug-08

  	
   

  	
  GP5-63-00939

  
	
  Fulton

  	
   

  	
  27-Jun-08

  	
   

  	
  GP5-63-00937

  
	
  Dryer

  	
   

  	
  6-Aug-08

  	
   

  	
  GP5-63-00942

  
	
  Houston
  Gas Plant

  	
   

  	
  30-Jun-08

  	
   

  	
  GP5-63-00936

  
	
  Houston
  Gas Plant

  	
   

  	
  30-Jun-08

  	
   

  	
  GP9-63-00936

  
	
  Houston
  Gas Plant

  	
   

  	
  30-Jun-08

  	
   

  	
  Application
  for a Plan Approval

  



 


	
  GREEN

  	
   

  	
  AIR PERMIT

  
	
  COUNTY

  	
   

  	
  PERMIT DATE

  	
   

  	
  NUMBER

  
	
  Gapen

  	
   

  	
  5-Aug-08

  	
   

  	
  GP5-30-00176

  
	
  Black

  	
   

  	
  14-Nov-08

  	
   

  	
  GP5-30-00181

  



 

















 


**


 


[26
pages have been omitted and filed
separately with the Securities and Exchange Commission pursuant to the request
for confidential treatment.]


 

















 


EXHIBIT C



COMPANY OPERATING AGREEMENT


 


See attached.


 

















 


AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT


 


of


 


MARKWEST LIBERTY MIDSTREAM & RESOURCES,
L.L.C.


 


Dated as of
                      ,
2009


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1 DEFINED TERMS

  	
  1

  
	
  Section 1.1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 FORMATION AND TERM

  	
  14

  
	
  Section 2.1

  	
  Formation

  	
  14

  
	
  Section 2.2

  	
  Name

  	
  15

  
	
  Section 2.3

  	
  Term

  	
  15

  
	
  Section 2.4

  	
  Registered Agent and Office

  	
  15

  
	
  Section 2.5

  	
  Principal Place of Business

  	
  15

  
	
  Section 2.6

  	
  Qualification in Other Jurisdictions

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 PURPOSE AND POWERS OF THE COMPANY

  	
  16

  
	
  Section 3.1

  	
  Purpose

  	
  16

  
	
  Section 3.2

  	
  Powers of the Company

  	
  16

  
	
  Section 3.3

  	
  Projects, Restricted Projects, Exempted Projects and
  Out of Scope Projects

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 CAPITAL CONTRIBUTIONS, MEMBER INTERESTS,
  CAPITAL ACCOUNTS AND FUTURE CAPITAL REQUIREMENTS

  	
  18

  
	
  Section 4.1

  	
  Capital Contributions

  	
  18

  
	
  Section 4.2

  	
  Capital Contribution Defaults

  	
  21

  
	
  Section 4.3

  	
  Member’s Interest

  	
  21

  
	
  Section 4.4

  	
  Status of Capital Contributions

  	
  21

  
	
  Section 4.5

  	
  Capital Accounts

  	
  22

  
	
  Section 4.6

  	
  Capital Accounts Generally

  	
  22

  
	
  Section 4.7

  	
  Preferred Return

  	
  22

  
	
  Section 4.8

  	
  Investment Accounts

  	
  23

  
	
  Section 4.9

  	
  Equalization Target Date

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 MEMBERS, MEETINGS AND AMENDMENTS

  	
  24

  
	
  Section 5.1

  	
  Powers of Members

  	
  24

  
	
  Section 5.2

  	
  No Resignation or Expulsion

  	
  24

  
	
  Section 5.3

  	
  Additional Members

  	
  25

  
	
  Section 5.4

  	
  Confidentiality Obligations of Members

  	
  25

  
	
  Section 5.5

  	
  Initial Budget

  	
  26

  
	
  Section 5.6

  	
  Incentive Interests to MWE Liberty Upon Transfer of
  NGPMR’s Interest

  	
  26

  
	
  Section 5.7

  	
  Preemptive Rights

  	
  27

  
	
  Section 5.8

  	
  Registration Rights

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 MANAGEMENT

  	
  28

  
	
  Section 6.1

  	
  Management Under Direction of the Board

  	
  28

  
	
  Section 6.2

  	
  Number, Tenure and Qualifications

  	
  28

  
	
  Section 6.3
  

  	
  Votes Per Manager; Quorum; Required Vote for Board
  Action; Meetings of the Board 

  	
  30 

  
	
  Section 6.4

  	
  Power to Bind Company

  	
  31

  
	
  Section 6.5

  	
  Liability for Certain Acts

  	
  31

  
	
  Section 6.6

  	
  Manager Has No Exclusive Duty to Company

  	
  31

  
	
  Section 6.7

  	
  Resignation and Withdrawal

  	
  31

  



 


i

















 


	
  Section 6.8

  	
  Removal

  	
  32

  
	
  Section 6.9

  	
  Vacancies

  	
  32

  
	
  Section 6.10

  	
  Delegation of Authority; Officers

  	
  32

  
	
  Section 6.11

  	
  Designation of Operator

  	
  32

  
	
  Section 6.12

  	
  Approval of Members

  	
  34

  
	
  Section 6.13

  	
  Reliance by Third Parties

  	
  36

  
	
  Section 6.14

  	
  Fees and Expenses of the Managers

  	
  37

  
	
  Section 6.15

  	
  Budgets

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 ASSIGNABILITY OF MEMBER INTERESTS

  	
  38

  
	
  Section 7.1

  	
  Prohibition on Assignment During Project Period

  	
  38

  
	
  Section 7.2

  	
  Transfers After the Project Period

  	
  39

  
	
  Section 7.3

  	
  Recognition of Assignment by Company or Other
  Members

  	
  41

  
	
  Section 7.4

  	
  Effective Date of Assignment

  	
  41

  
	
  Section 7.5

  	
  Limitations on Transfer

  	
  42

  
	
  Section 7.6

  	
  Transferee Not a Substitute Member

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 DISTRIBUTIONS TO MEMBERS

  	
  42

  
	
  Section 8.1

  	
  Available Cash

  	
  42

  
	
  Section 8.2

  	
  Incentive Interest Percentage Distributions

  	
  43

  
	
  Section 8.3

  	
  Withholding

  	
  43

  
	
  Section 8.4

  	
  Limitations on Distribution

  	
  43

  
	
  Section 8.5

  	
  Tax Distributions

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 ALLOCATIONS

  	
  44

  
	
  Section 9.1

  	
  Profits and Losses

  	
  44

  
	
  Section 9.2

  	
  Special Allocations

  	
  44

  
	
  Section 9.3

  	
  Curative Allocations

  	
  45

  
	
  Section 9.4

  	
  Income Tax Allocations

  	
  46

  
	
  Section 9.5

  	
  Allocation and Other Rules

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 BOOKS AND RECORDS

  	
  47

  
	
  Section 10.1

  	
  Inspection Rights Pursuant to Law

  	
  47

  
	
  Section 10.2

  	
  Books and Records

  	
  47

  
	
  Section 10.3

  	
  Financial Statements and Reports

  	
  47

  
	
  Section 10.4

  	
  Accounting Method

  	
  48

  
	
  Section 10.5

  	
  Bank Accounts; Investments

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11 TAX MATTERS

  	
  49

  
	
  Section 11.1

  	
  Taxation of Company

  	
  49

  
	
  Section 11.2

  	
  Tax Returns

  	
  49

  
	
  Section 11.3

  	
  Member Tax Return Information

  	
  49

  
	
  Section 11.4

  	
  Tax Matters Representative

  	
  49

  
	
  Section 11.5

  	
  Right to Make Section 754 Election

  	
  50

  
	
  Section 11.6

  	
  Tax Elections

  	
  50

  
	
  Section 11.7

  	
  Tax Reimbursement

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 LIABILITY, EXCULPATION AND
  INDEMNIFICATION

  	
  50

  
	
  Section 12.1

  	
  Liability

  	
  50

  
	
  Section 12.2

  	
  Exculpation

  	
  51

  
	
  Section 12.3

  	
  Indemnification

  	
  51

  



 


ii

















 


	
  Section 12.4

  	
  Expenses

  	
  51

  
	
  Section 12.5

  	
  Insurance

  	
  51

  
	
  Section 12.6

  	
  Certain Liabilities

  	
  52

  
	
  Section 12.7

  	
  Acts Performed Outside the Scope of the Company

  	
  52

  
	
  Section 12.8

  	
  Liability of Members to Company or Other Members

  	
  52

  
	
  Section 12.9

  	
  Attorneys’ Fees

  	
  52

  
	
  Section 12.10

  	
  Subordination of Other Rights to Indemnity

  	
  52

  
	
  Section 12.11

  	
  Survival of Indemnity Provisions

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13 DISSOLUTION, LIQUIDATION AND TERMINATION

  	
  52

  
	
  Section 13.1

  	
  No Dissolution

  	
  52

  
	
  Section 13.2

  	
  Events Causing Dissolution

  	
  53

  
	
  Section 13.3

  	
  Notice of Dissolution

  	
  53

  
	
  Section 13.4

  	
  Liquidation

  	
  53

  
	
  Section 13.5

  	
  Termination

  	
  54

  
	
  Section 13.6

  	
  Claims of the Members or Third Parties

  	
  54

  
	
  Section 13.7

  	
  Distributions In-Kind

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14 REPRESENTATIONS, WARRANTIES AND COVENANTS

  	
  55

  
	
  Section 14.1

  	
  Representations, Warranties and Covenants

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15 MISCELLANEOUS

  	
  56

  
	
  Section 15.1

  	
  Notices

  	
  56

  
	
  Section 15.2

  	
  Failure to Pursue Remedies

  	
  56

  
	
  Section 15.3

  	
  Cumulative Remedies

  	
  56

  
	
  Section 15.4

  	
  Binding Effect

  	
  57

  
	
  Section 15.5

  	
  Interpretation

  	
  57

  
	
  Section 15.6

  	
  Severability

  	
  57

  
	
  Section 15.7

  	
  Counterparts

  	
  57

  
	
  Section 15.8

  	
  Integration

  	
  57

  
	
  Section 15.9

  	
  Amendment or Restatement

  	
  57

  
	
  Section 15.10

  	
  Governing Law

  	
  57

  
	
  Section 15.11

  	
  Dealings in Good Faith

  	
  58

  
	
  Section 15.12

  	
  Partition of the Property

  	
  58

  
	
  Section 15.13

  	
  Third Party Beneficiaries

  	
  58

  
	
  Section 15.14

  	
  Tax Disclosure Authorization

  	
  58

  
	
  Section 15.15

  	
  Waivers
  and Consents

  	
  58

  



 


iii

















 


	
  EXHIBITS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Area of Mutual Interest

  	
   

  
	
  Exhibit B

  	
  Members and Capital Contributions

  	
   

  
	
  Exhibit C

  	
  Base Project

  	
   

  
	
  Exhibit D

  	
  Initial Budget

  	
   

  
	
  Exhibit E

  	
  Illustrative Example Calculation of Incentive Interests

  	
   

  
	
  Exhibit F

  	
  Services Agreement

  	
   

  
	
  Exhibit G

  	
  Capital Expenditures for Agreements

  	
   

  
	
  Exhibit H

  	
  Pre-Approved Affiliated Transactions

  	
   

  
	
  Exhibit I

  	
  Bring Down Certificate

  	
   

  
	
  Exhibit J

  	
  Escrow Agreement

  	
   

  
	
  Exhibit K

  	
  Fractionation and NGL Purchase Agreement

  	
   

  



 


iv
















 


AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT


 


OF


 


MARKWEST LIBERTY MIDSTREAM &
RESOURCES, L.L.C.


 


THIS AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT (“Agreement”) of MarkWest Liberty Midstream &
Resources, L.L.C., a Delaware limited liability company (the “Company”), is
executed and agreed to as of
[            ]
[    ], 2009, by and among MarkWest Liberty Gas Gathering,
L.L.C., a Delaware limited liability company (“MWE Liberty”), M&R MWE
Liberty, LLC, a Delaware limited liability company (“NGPMR”), and such other
Persons who may become Members of the Company from time to time pursuant
hereto.


 


WHEREAS, MWE Liberty, as the
then sole member of the Company, entered into that certain Limited Liability
Company Agreement (the “Original Agreement”) of the Company, dated as of January 20,
2009;


 


WHEREAS, in order to
initially capitalize the Company, at or before the Closing, the Members shall
make the Initial Capital Contributions and from time to time thereafter,
certain of the Members shall make additional Capital Contributions in
accordance with Article 4;


 


WHEREAS, in order to effect
the contribution of the cash consideration comprising NGPMR’s Initial Capital
Contribution and the assets comprising MWE Liberty’s Initial Capital Contribution,
the Company, MWE Liberty and NGPMR entered into that certain Contribution
Agreement, dated January 22, 2009 (the “Contribution Agreement”), pursuant
to which MWE Liberty agreed to contribute, convey, assign and transfer to the
Company all of MWE Liberty’s right, title and interest in and to the assets
referenced thereunder;


 


WHEREAS, contemporaneously
with the execution of this Agreement and in order to provide for the provision
of certain services to the Company, the Company, MWE Liberty and MarkWest Hydrocarbon, Inc.,
a Delaware corporation (“MWE Hydrocarbon”) shall enter into that certain
Services Agreement in the form attached hereto as Exhibit F (the “Services
Agreement”), pursuant to which MWE Hydrocarbon shall provide certain services,
or cause such services to be provided, to the Company;


 


WHEREAS, upon the Closing,
the parties to the Contribution Agreement shall consummate the transactions
contemplated by the Contribution Agreement and this Agreement shall become
effective; and


 


WHEREAS, the Company and the
Members desire to amend and restate the Original Agreement in its entirety to
reflect the agreement of the Company and the Members as set forth herein;


 


NOW THEREFORE, in
consideration of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, effective as of the
Closing the Original Agreement is hereby amended and restated in its entirety
to read as follows:


 


ARTICLE 1

DEFINED TERMS


 


Section 1.1                                      Definitions.


 


Unless the context otherwise
requires, the terms defined in this Article I shall, for the purposes of
this Agreement, have the meanings herein specified.


 

















 


“AAA” shall have the meaning
set forth in Section 6.15(e).


 


“Accountants shall have the
meaning set forth in Section 4.1(a)(iii).


 


“Act” means the Delaware
Limited Liability Company Act, 6 Del. C. §§ 18-101 et  seq.,
as it may be amended from time to time, and any successor statute thereto.


 


“Additional Member” shall
have the meaning set forth in Section 5.3(a).


 


“Additional Projects” shall
have the meaning set forth in Section 3.3(a).


 


“Adjusted Capital Account”
means the Capital Account maintained for each Member (a) increased by any
amounts the Member is obligated to contribute or restore to the Company
pursuant to the penultimate sentences of Treasury Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5), and (b) decreased by any amounts
described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5), or (6) with
respect to such Member.


 


“Adjusted Capital Account
Deficit” means a deficit balance in the Adjusted Capital Account of a Member.


 


“Affiliate” means with
respect to a Person, any other Person that, directly or indirectly, Controls,
is Controlled by, or is under Common Control with, the specified Person.


 


“Affiliate Contract” means
any contract between the Company or any Subsidiary of the Company, on the one
hand, and a Member or an Affiliate of a Member, on the other hand.


 


“Affiliated Member Group”
means (a) the MWE Liberty Group, (b) the NGPMR Group and (c) any
other Member and transferee of Interests directly or indirectly (in the chain
of title) from such Member that is an Affiliate of such transferee Member; provided,
however, that once a Person is designated as a member of any Affiliated
Member Group, such Person shall, as long as it owns any Interests, at all times
be a member of such Affiliated Member Group and not a member of any other
Affiliated Member Group, and provided, further, that for purposes of this
clause (c) of this definition, an Affiliate shall not include a member of
the MWE Liberty Group or the NGPMR Group.


 


“Agreement” means this
Amended and Restated Limited Liability Company Agreement, as amended, modified,
supplemented or restated from time to time.


 


“Annual Financial Statements”
shall have the meaning set forth in Section 10.3(a).


 


“Approved Budget” shall have
the meaning set forth in Section 6.15(b).


 


“Arbitration Panel” shall
have the meaning set forth in Section 6.15(e).


 


“Area of Mutual Interest”
means the area ** identified **
as Exhibit A.


 


“Assumed Tax Liability”
shall have the meaning set forth in Section 8.5(a).


 


“Available Cash” means, with
respect to any period prior to the dissolution of the Company, all cash and
cash equivalents of the Company on hand at the end of such period less the
amount of any cash reserves established by the Operator to provide for the
proper conduct of the business of the Company, including reserves for: future
capital expenditures; current, future or contingent liabilities; anticipated
future credit needs of the Company; and debt service and repayments; provided
that such reserves shall 


 


2

















 


not
equal less than ** as authorized in the Approved
Budget nor more than ** in the
Approved Budget, without the approval of the Board and Requisite Member
Approval.


 


“Base Project” shall have
the meaning set forth in Section 3.3(a).


 


“Board” shall have the
meaning set forth in Section 6.1.


 


“Bring Down Certificate”
means a certificate, in the form attached hereto as Exhibit I, to
be delivered by the Company to the Class A Members in respect of the
Capital Contributions set forth in Section 4.1(b)(i) stating that the
Company has spent or committed to spend all previous Capital Contributions by
the Class A Members in accordance with an Approved Budget, and will spend
the Capital Contribution to which the Bring Down Certificate relates in
accordance with an Approved Budget.


 


“Budget Rejection Notice”
shall have the meaning set forth in Section 6.15(b).


 


“Business Day” means any day
that is not a Saturday, Sunday or other day on which commercial banks are
required or authorized by law to be closed in the State of Texas or the State
of Colorado.


 


“Capital Account” means,
with respect to any Member, the capital account maintained for such Member in
accordance with the provisions of Section 4.5.


 


“Capital Call” means a call
or request for additional capital in writing (which may include electronic
mail) by or on behalf of the Company, specifying the amount of capital requested
to be contributed by each Member receiving such notice in accordance with the
terms of this Agreement.


 


“Capital Contribution”
means, with respect to any Member, the aggregate amount of cash and the initial
Gross Asset Value of any property other than cash contributed to the Company
pursuant to Article 4 hereof by such Member.  Any reference in this Agreement to a Capital
Contribution of a Member shall include a Capital Contribution contributed by
its predecessors in interest.


 


“Certificate” means the Certificate
of Formation of the Company filed on behalf of the Company with the office of
the Secretary of State of the State of Delaware pursuant to the Act on January 20,
2009, and any and all amendments thereto and restatements thereof.


 


“Claims” shall have the
meaning set forth in Section 6.5.


 


“Class A Interest”
means an Interest in the Company which is classified on Exhibit B
as a Class A Interest and which has the rights, powers and privileges
enjoyed by a Member holding a Class A Percentage Interest (under the Act,
the Certificate, this Agreement or otherwise) in its capacity as a Member, and
all obligations, duties and liabilities imposed on such a Member (under the
Act, the Certificate, this Agreement or otherwise) in its capacity as a Member.


 


“Class A Manager” shall
have the meaning set forth in Section 6.2.


 


“Class A Member” means
a Member who is designated on Exhibit B as a Class A Member,
in its capacity as a holder of a Class A Percentage Interest.


 


“Class A Percentage
Interest” means, with respect to a Class A Member, the quotient (expressed
as a percentage) obtained by dividing such Class A Member’s Investment
Balance by the aggregate Investment Balances of all Class A Members.


 


3

















 


“Class B Interest”
means an Interest in the Company which is classified on Exhibit B
as a Class B Interest and which has the rights, powers and privileges
enjoyed by a Member holding a Class B Percentage Interest (under the Act,
the Certificate, this Agreement or otherwise) in its capacity as a Member, and
all obligations, duties and liabilities imposed on such a Member (under the
Act, the Certificate, this Agreement or otherwise) in its capacity as a Member.


 


“Class B Manager” shall
have the meaning set forth in Section 6.2.


 


“Class B Member” means
a Member who is designated on Exhibit B as a Class B Member,
in its capacity as a holder of a Class B Percentage Interest.


 


“Class B Percentage
Interest” means, with respect to a Class B Member, the quotient (expressed
as a percentage) obtained by dividing such Class B Member’s Investment
Balance by the aggregate Investment Balances of all Class B Members.


 


“Class B Seller” shall
have the meaning set forth in Section 7.2(b).


 


“Closing” has the meaning
ascribed to such term in the Contribution Agreement.


 


“Code” means the Internal
Revenue Code of 1986, as amended from time to time, or any corresponding
federal tax statute enacted after the date of this Agreement.


 


“Company” shall have the
meaning set forth in the preamble.


 


“Company Minimum Gain” shall
have the meaning assigned to the term “partnership minimum gain” in Treasury
Regulations Sections 1.704-2(b)(2) and 1.704-2(d).


 


“Company Nonrecourse
Liability” shall have the meaning assigned to the term “nonrecourse liability”
in Treasury Regulations Section 1.704-2(b)(3)


 


** shall have the
meaning set forth in Section 4.9(b).


 


** shall have the
meaning set forth in Section 4.9(c).


 


“Confidential Information”
shall mean all information provided or made available by or on behalf of the
Company or its Representatives to a Member or its Representatives, including
all information, data, reports, interpretations, contract terms and conditions,
forecasts and records containing or otherwise reflecting information concerning
the Company or its Affiliates, potential counterparties or customers or their
Affiliates, potential projects, business plans or proposals, market or economic
data, identities of actual or potential counterparties or customers, designs,
concepts, trade secrets and other business, operational or technical
information (irrespective of the form of communication of such information) and
together with analyses, compilations, studies or other documents, whether
prepared by or on behalf of a Member or its Representatives, which contain or
otherwise reflect such information (irrespective of the form of communication
of such information).  “Confidential
Information” also includes information of third parties, including such
information as may be subject to any Third Party Confidentiality
Agreements.  Notwithstanding the
foregoing, Confidential Information shall not include the following:  (a) information which at the time of
disclosure by or on behalf of the Company is publicly available or which later
becomes publicly available through no act or omission of the disclosing Member
or its Representatives; (b) information which a Member can demonstrate was
in its possession on a non-confidential basis prior to disclosure by or on
behalf of the Company hereunder; (c) information received by a Member from
a third party who is not prohibited from transmitting the information by a
contractual, 


 


4

















 


legal
or fiduciary obligation; or (d) information which a Member can demonstrate
was independently developed by it or for it and which was not derived or
obtained, in whole or in part, from Confidential Information or from the
Company or its Representatives hereunder.


 


“Contributing Member” shall
mean a Class A Member who makes a Quarterly Budgeted Funding Election in
accordance with Section 4.1(c).


 


“Contribution Agreement”
shall have the meaning set forth in the recitals.


 


“Control,” including the
correlative terms “Controlling,” “Controlled by” and “Under Common Control with”
means possession, directly or indirectly (through one or more intermediaries),
of the power to direct or cause the direction of the management or policies
(whether through ownership of securities or any partnership or other ownership
interest, by contract or otherwise) of a Person.  For the purposes of this definition,
ownership of more than 50% of the voting interests of any entity shall be
conclusive evidence that Control exists.


 


“Covered Person” means, in
each case, whether or not a Person continues to have the applicable status
referred to in the following list: a Member; a Manager; the Operator; any
Affiliate of a Member or a Manager or of the Operator; any officers of the
Company, whether or not such officers are employees of the Company; any
officers, directors, members, managers, stockholders, partners, employees,
representatives or agents of any Manager or Member or of the Operator, or of
any of their respective Affiliates; any employee or agent of the Company or its
Affiliates; and any Tax Matters Member of the Company.


 


“CP Index” means the United
States Department of Labor, Bureau of Labor Statistics Consumer Price Index —
All Urban Consumers, U.S. City Average, Not Seasonally Adjusted, or, if such
index is discontinued, any successor or substitute index, which, in the Board’s
reasonable opinion, is most nearly equivalent to such index.


 


“Debt” for any Person means,
without duplication: (a)  indebtedness of
such Person for borrowed money, including obligations under letters of credit
and agreements relating to the issuance of letters of credit or acceptance
financing; (b) obligations of such Person evidenced by bonds, debentures,
notes, or other similar instruments; (c) obligations of such Person to pay
the deferred purchase price of property or services (including, without limitation,
obligations that are non-recourse to the credit of such Person but are secured
by the assets of such Person, but excluding trade accounts payable); (d) obligations
of such Person under capital leases; and (e) obligations of such Person
under guarantees in respect of indebtedness or obligations of others of the
kinds referred to in clauses (a) through (d) above; provided  that
“Debt” shall not include the incurrence of trade debt in the ordinary course of
business.


 


“Default Rate” means a per
annum rate of interest equal to the lower of **
and the maximum rate of interest then permitted by law.


 


“Defaulting Member” shall
have the meaning set forth in Section 4.2.


 


“Depreciation” means, for
each Fiscal Year or other period, an amount equal to the depreciation,
amortization or other cost recovery deduction allowable for federal income tax
purposes with respect to an asset for such Fiscal Year or other period and in a
manner consistent with the methodologies employed by MWE or otherwise
determined by the Board; provided, however, that if the Gross
Asset Value of an asset differs from its adjusted basis for federal income tax
purposes at the beginning of such Fiscal Year or other period, Depreciation for
such Fiscal Year or other period shall equal to the amount of book basis
recovered for such Fiscal Year or other period under the rules prescribed
by Treasury Regulation Section 


 


5

















 


1.704-3(d)(2) and
provided  further, that if the federal income tax depreciation,
amortization or other cost recovery deduction for such Fiscal Year or other
period is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the Board.


 


“Designated MWE Employees”
has the meaning ascribed to such term in the Services Agreement.


 


“Economic Risk of Loss”
shall have the meaning assigned to that term in Treasury Regulation Section 1.752-2(a).


 


“Effective Time” means 12:01 a.m.
on January 1, 2009.


 


“Election Period” shall have
the meaning set forth in Section 5.7(b).


 


“Electing Member” shall have
the meaning set forth in Section 5.7(b).


 


“Eligible Member” shall have
the meaning set forth in Section 5.7(a).


 


“Enforcement Activities”
shall have the meaning set forth in Section 6.3(a).


 


“Equalization Date” shall
mean the first date after ** on which the
quotient (expressed as a percentage) obtained by dividing the aggregate
Investment Balances of all members of the MWE Liberty Group by the aggregate
Investment Balances of all members of the MWE Liberty Group plus all members of
the NGPMR Group is equal to or greater than 60%.


 


“Equalization Target Date”
shall have the meaning set forth in Section 4.9(a).


 


“Escrow Account” shall have
the meaning set forth in Section 10.5.


 


“Escrow Agent” means Wells
Fargo Bank, N.A.


 


“Escrow Agreement” means
that certain Escrow Agreement to be entered into among the Company, NGPMR and
the Escrow Agent in substantially the form attached hereto as Exhibit J.


 


“Escrow Letter” shall have
the meaning set forth in Section 10.5.


 


“Exchange Act” means the
Securities Exchange Act of 1934, and the rules and regulations promulgated
thereunder, as amended and any successor statutes thereto.


 


“Exempted Project” shall
have the meaning set forth in Section 3.3(b).


 


“Final Calculations” shall
have the meaning set forth in Section 4.1(a)(ii).


 


“Final Cost” shall have the
meaning set forth in Section 4.1(a)(iv).


 


“First Notice” shall have
the meaning set forth in Section 5.7(b).


 


“Fiscal Year” means (i) the
period commencing at the Effective Time and ending on December 31, 2010
and (ii) any subsequent 12 month period commencing on January 1 and
ending on December 31.


 


6

















 


“Fractionation and NGL
Purchase Agreement” shall have the meaning set forth in Section 3.3(b)(ii).


 


“G&A Services” has the
meaning ascribed to such term in the Services Agreement.


 


“GAAP” means generally
accepted accounting principles in the United States.


 


** means that
certain ** by and between MarkWest Liberty Gas
Gathering, L.L.C. and **.


 


“Gross Asset Value” means,
with respect to any asset, such asset’s adjusted basis for federal income tax
purposes, except as follows:


 


(a)                                  the initial
Gross Asset Value of any asset contributed by a Member to the Company shall be
the gross fair market value of such asset, as agreed to by the contributing
Member and the Board, except that MWE Liberty’s Initial Capital Contribution
shall have the gross asset value determined in accordance with Section 4.1(a);


 


(b)                                 the Gross Asset
Value of all Company assets shall be adjusted to equal their respective gross
fair market values, as determined by the Board, in connection with: (i) the
acquisition of an additional interest in the Company by any new or existing
Member in exchange for more than a de minimis Capital Contribution
or in exchange for the performance of services to or for the benefit of the
Company; (ii) the distribution by the Company to a Member of more than a de minimis
amount of Company assets as consideration for an interest in the Company; and (iii) the
liquidation of the Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g) (other
than pursuant to Section 708(b)(1)(B) of the Code) or any other event
to the extent determined by the Board to be necessary to properly reflect the
Gross Asset Values in accordance with the standards set forth in Treasury
Regulations Section 1.704-1(b)(2)(iv)(q); provided, however,
that adjustments pursuant to clause (i) and clause (ii) of this
sentence shall be made only if the Board reasonably determines that such
adjustments are necessary or appropriate to reflect the relative economic
interests of the Members in the Company;


 


(c)                                  the Gross Asset
Value of any Company asset distributed to any Member shall be the gross fair
market value of such asset on the date of distribution, as determined by the
Board and the distributee Member; and


 


(d)                                 the Gross Asset
Values of Company assets shall be adjusted to reflect any adjustments to the
adjusted basis of such assets pursuant to Code Section 734(b) or Code
Section 743(b), but only to the extent that such adjustments are taken
into account in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m).


 


If the Gross Asset Value of an
asset has been determined or adjusted pursuant to paragraph (a) or
paragraph (b) above, such Gross Asset Value shall thereafter be adjusted
by the Depreciation taken into account with respect to such asset for purposes
of computing Profits and Losses.


 


“Incentive Interest
Transaction” shall have the meaning set forth in Section 5.6.


 


“Indentures” has the meaning
ascribed to such term in the Contribution Agreement.


 


“Indemnitee” shall have the
meaning set forth in Section 12.7.


 


“Indemnitor” shall have the
meaning set forth in Section 12.7.


 


7

















 


“Initial Budget” shall have
the meaning set forth in Section 5.5.


 


“Initial Capital
Contribution” shall have the meaning set forth in Section 4.1(a)(i).


 


“Interest” means the
interest of a Member in the Company, including both Class A Percentage
Interests and Class B Percentage Interests, including rights to
distributions (liquidating or otherwise), allocations, notices and information,
rights to approve of or consent to certain matters (if applicable) and all
other rights, benefits and privileges enjoyed by that Member (under the Act,
the Certificate, this Agreement, or otherwise) in its capacity as a Member; and
all obligations, duties and liabilities imposed on that Member (under the Act,
the Certificate, this Agreement, or otherwise) in its capacity as a Member.


 


“Investment Account” shall
have the meaning set forth in Section 4.8.


 


“Investment Balance” shall
have the meaning set forth in Section 4.8.


 


“Investment Balance Costs”
shall have the meaning set forth in Section 4.1(a)(ii).


 


“IPO Issuer” means (a) the
Company or (b) an Affiliate of the Company which will be a successor to
the Company and the issuer in a Qualified Public Offering.


 


“Lien” means, with respect to
any asset, any mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such asset.


 


 “Liquidating Trustee” shall have the meaning
set forth in Section 13.4(a).


 


“Manager” shall have the
meaning set forth in Section 6.1.


 


“Member” means any Person
(but not any Affiliate or entity in which such Person has an equity interest)
executing this Agreement and any Person admitted as an Additional Member or a
Substitute Member pursuant to the provisions of this Agreement, in such Person’s
capacity as a Member of the Company, and “Members” means two or more of such
Persons, in their capacities as Members of the Company.  Such terms do not include any Person or
Persons who have ceased to be Members in the Company.


 


“Member Nonrecourse Debt”
has the meaning assigned to the term “partner nonrecourse debt” in Treasury
Regulation Section 1.704-2(b)(4).


 


“Member Nonrecourse Debt
Minimum Gain” shall have the meaning assigned to the term “partner nonrecourse
debt minimum gain” in Treasury Regulation Section 1.704-2(i)(2).


 


“Member Nonrecourse
Deductions” shall have the meaning assigned to the term “partner nonrecourse
deductions” in Treasury Regulation Section 1.704-2(i)(1).


 


“Minimum Gain” shall have
the meaning assigned to that term in Treasury Regulation Section 1.704-2(d).


 


“Minimum Price” shall have
the meaning set forth in Section 7.2(b)(ii).


 


“Monthly Reports” shall have
the meaning set forth in Section 10.3(c).


 


“MWE” means MarkWest Energy
Partners, L.P., a Delaware limited partnership.


 


8

















 


“MWE Hydrocarbon” shall have
the meaning set forth in the recitals.


 


“MWE Liberty” shall have the
meaning set forth in the preamble.


 


“MWE Liberty Group” means
MWE Liberty and each transferee of Interests directly or indirectly (in the
chain of title) from MWE Liberty that is an Affiliate of MWE Liberty; provided,
however, that once a Person is designated as a member of the MWE Liberty
Group such Person shall, as long as it owns any Interests, at all times be a
member of the MWE Liberty Group and not a member of any other Affiliated Member
Group; provided further, that for purposes of this definition, an Affiliate
shall not include a member of any other Affiliated Member Group.


 


“New Interests” shall have
the meaning set forth in Section 5.7(a).


 


“NGPMR” shall have the
meaning set forth in the preamble.


 


“NGPMR Covered Persons” has
the meaning ascribed to such term in the Contribution Agreement.


 


“NGPMR Exit Transaction”
means ** involving the Company in which ** in which the ** prior to the
** of the Company **
or a ** of the Company**.  For the avoidance of doubt, any **


 


“NGPMR Group” means NGPMR
and each transferee of Interests directly or indirectly (in chain of title)
from NGPMR that is an Affiliate of NGPMR; provided, however, that
once a Person is designated as a member of the NGPMR Group such Person shall,
as long as it owns any Interests, at all times be a member of the NGPMR Group
and not a member of any other Affiliated Member Group, and, provided further,
that for purposes of this definition, an Affiliate shall not include a member
of any other Affiliated Member Group.


 


“NGPMR Portfolio Companies”
shall have the meaning set forth in Section 3.3(c).


 


“NGPMR Representatives”
shall mean the members, managers and employees of NGPMR or any Affiliate
thereof, together with all other persons serving as representatives of NGPMR,
including those Persons who are serving as Managers at the request of NGPMR
pursuant to this Agreement.


 


“Non-Contributing Member”
shall mean a Class A Member who does not elect to make a Quarterly
Budgeted Funding Election in accordance with Section 4.1(c).


 


“Nonrecourse Deductions”
shall have the meaning assigned to that term in Treasury Regulation Section 1.704-2(b).


 


“Objection Notice” shall
have the meaning set forth in Section 4.1(a)(iii).


 


“Operator” means the Person
designated as the “Operator” of the Company in accordance with Section 6.11.


 


“Original Agreement” shall
have the meaning set forth in the recitals.


 


“Out of Scope Project” means
any project, activity, or business venture (a) outside the Area of Mutual
Interest or (b) not within the scope of the Primary Business of the
Company (whether inside or outside the Area of Mutual Interest).


 


“Over-Allotment Amount”
shall have the meaning set forth in Section 5.7(b).


 


9

















 


“Overfunded Capital” means,
as of any determination date, the difference (expressed as a dollar amount)
between **.


 


“Partial NGPMR Exit
Transaction” means ** after which
the ** in the **
after which the **


 


“Percentage Interest” means:


 


(a)                                  at any time
prior to the earlier to occur of the Equalization Date and **:


 


(i)                                     with respect to
a Class A Member, the product (expressed as a percentage) of (1) 40%
and (2) such Member’s Class A Percentage Interest; and


 


(ii)                                  with respect to
a Class B Member, the product (expressed as a percentage) of (1) 60%
and (2) such Member’s Class B Percentage Interest.


 


(b)                                 at any time on
or after the earlier to occur of the Equalization Date and **,
with respect to any Member (including any Class A Member or Class B
Member), the quotient (expressed as a percentage) obtained by dividing the
Investment Balance of such Member by the Investment Balances of all Members.


 


“Permitted Liens” means (a) statutory
liens for current taxes or assessments not yet due and delinquent or the
validity of which is being contested in good faith by appropriate proceedings
and for which adequate reserves have been established; (b) mechanics’, carriers’,
workers’, repairers’ and other similar liens arising or incurred in the
ordinary course of business; and (c) all applicable zoning ordinances and
land use restrictions.


 


“Permitted Transfers” shall
have the meaning set forth in Section 7.1.


 


“Personnel Services” has the
meaning ascribed to such term in the Services Agreement.


 


“Person” means any natural
person, corporation, limited partnership, general partnership, limited
liability company, joint stock company, joint venture, association, company,
estate, trust, bank trust company, land trust, business trust, or other
organization, whether or not a legal entity, custodian, trustee-executor,
administrator, nominee or entity in a representative capacity and any
government or agency or political subdivision thereof.


 


“Post-Effective Date Capital
Expenditures” shall have the meaning ascribed to such term in the Contribution
Agreement.


 


 “Preference Amount” means an amount calculated
on the last day of each calendar quarter following the Effective Time and prior
to the Equalization Date by determining the difference between (a) the
amount of Overfunded Capital as of the last day of such quarter multiplied by
the Preference Rate and (b) the amount of all distributions made during
such calendar quarter pursuant to Section 8.1(b)(i)(A).  The Preference Amount for the prior calendar
quarter shall be added to the Investment Balance as of the first day of the
following calendar quarter.


 


“Preference Rate” means a
quarterly rate expressed as a percentage equal to **
per annum, divided by four.


 


“Primary Business” shall
have the meaning set forth in Section 3.1(a).


 


10
















 


“Profits” or “Losses” means,
for each Fiscal Year, an amount equal to the Company’s taxable income or loss
for such Fiscal Year, determined in accordance with Section 703(a) of
the Code (but including in taxable income or loss, for this purpose, all items
of income, gain, loss or deduction required to be stated separately pursuant to
Section 703(a)(1) of the Code), with the following adjustments:


 


(a)           any income of the Company
exempt from federal income tax and not otherwise taken into account in
computing Profits or Losses pursuant to this definition shall be added to such
taxable income or loss;


 


(b)           any expenditures of the
Company described in Section 705(a)(2)(B) of the Code (or treated as
expenditures described in Section 705(a)(2)(B) of the Code pursuant
to Treasury Regulations Section 1.704-1(b)(2)(iv)(i)) and not otherwise
taken into account in computing Profits or Losses pursuant to this definition
shall be subtracted from such taxable income or loss;


 


(c)           in the event the Gross Asset
Value of any Company asset is adjusted in accordance with paragraph (b) or
paragraph (c) of the definition of “Gross Asset Value”, the amount of such
adjustment shall be taken into account as gain (if the adjustment increases the
Gross Asset Value of the Company asset) or loss (if the adjustment decreases
the Gross Asset Value of the Company asset) from the disposition of such asset
for purposes of computing Profits or Losses;


 


(d)           gain or loss resulting from
any disposition of any Company asset with respect to which gain or loss is
recognized for federal income tax purposes shall be computed by reference to
the Gross Asset Value of the asset disposed of, notwithstanding that the
adjusted tax basis of such asset differs from its Gross Asset Value;


 


(e)           in lieu of the depreciation,
amortization and other cost recovery deductions taken into account in computing
such taxable income or loss, there shall be taken into account Depreciation for
such Fiscal Year or other period, computed in accordance with the definition of
“Depreciation”;


 


(f)            to the extent an adjustment
to the adjusted tax basis of any asset pursuant to Code Section 734(b) is
required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(4),
to be taken into account in determining Capital Account balances as a result of
a distribution other than in liquidation of a Member’s interest in the Company,
the amount of such adjustment shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or an item of loss (if the
adjustment decreases such basis) from the disposition of such asset and shall
be taken into account for purposes of computing Profits or Losses; and


 


(g)           notwithstanding any other
provisions of this definition, any items which are specially allocated pursuant
to Section 9.2 or 9.3 shall not be taken into account in computing Profits
or Losses.


 


“Project Period” shall have
the meaning set forth in Section 7.1.


 


“Projects” shall have the
meaning set forth in Section 3.3(a).


 


“Property” means all of the
assets and property now owned or hereafter acquired by the Company.


 


“Proposed Budget” shall have
the meaning set forth in Section 6.15(a).


 


“Proposed Purchaser” shall
have the meaning set forth in Section 5.7(a).


 


11

















 


“Prudent Industry Practices”
means, at a particular time, any of the practices, methods and acts which, ** based upon the **, and the **, at such time, is ** operation
and maintenance of the Company assets and shall include, without limitation,
the practices, methods and acts engaged in or approved by **
at such time with respect to the assets of the same or similar types as the
Company assets. Prudent Industry Practices are not intended to be limited to ** to the exclusion of all others, but rather is ** practices, methods and acts which **
at a ** as well as with the **. Prudent Industry Practices are intended to entail the **, in the **, use from
time to time.


 


“Qualified Public Offering”
means any underwritten initial public offering by the IPO Issuer of equity
securities pursuant to an effective registration statement under the Securities
Act and for which aggregate cash proceeds to be received by the IPO Issuer from
such offering (without deducting underwriting discounts, expenses and
commissions) are at least $50,000,000.


 


“Qualifying Third Party
Offer” shall have the meaning set forth in Section 7.2(a)(ii).


 


“Quarterly Budgeted Funding
Election” shall have the meaning set forth in Section 4.1(c).


 


“Quarterly Financial
Statements” shall have the meaning set forth in Section 10.3(b).


 


“Regulatory Allocations”
shall have the meaning set forth in Section 9.3.


 


“Remaining Members” shall
have the meaning set forth in Section 7.2(a).


 


“Representatives” means (a) with
respect to the Company, any of: (i) the Company’s Affiliates; and (ii) directors,
officers, managers, employees, members, partners, agents and authorized
representatives (including attorneys, accountants, consultants, bankers,
lenders and financial advisors) of the Company and the Company’s Affiliates and
(b) with respect to a Member, any of: (i) such Member’s Affiliates; (ii) directors,
officers, managers, employees, members, stockholders, partners, agents and
authorized representatives (including attorneys, accountants, consultants,
bankers, lenders and financial advisors) of the Member and the Member’s
Affiliates; and (iii) Persons who are (or who are prospective) beneficial
owners of equity interests in such Member.


 


“Requisite Member Approval”
means the approval of each Affiliated Member Group holding Interests with (i) an
aggregate Percentage Interest equal to or exceeding **
or (ii) an **.


 


“Restricted Project” has the
meaning set forth in Section 3.3(b).


 


“ROFO Interest” shall have
the meaning set forth in Section 7.2(a).


 


“ROFO Offer” shall have the
meaning set forth in Section 7.2(a).


 


“Rules” shall have the
meaning set forth in Section 6.15(e).


 


“Sale Proposal” shall have
the meaning set forth in Section 7.2(b)(i).


 


“Securities Act” means the
Securities Act of 1933, and the rules and regulations promulgated
thereunder, as amended and any successor statutes thereto.


 


“Services Agreement” shall
have the meaning set forth in the recitals.


 


“Solicitation Notice” shall
have the meaning set forth in Section 7.2(b)(ii).


 


12

















 


“Solicitation Period” shall
have the meaning set forth in Section 7.2(a)(ii).


 


“Solicitation Response”
shall have the meaning set forth in Section 7.2(b)(ii).


 


“Subsidiary” means, with
respect to any Person, (a) any corporation, of which a majority of the
total voting power of shares of stock entitled (without regard to the
occurrence of any contingency) to vote generally in the election of directors
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof or (b) any limited liability company, partnership, association or
other business entity, of which a majority of the partnership or other similar
ownership interests thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more Subsidiaries of that Person or a
combination thereof.  For purposes of
this definition, a Person or Persons will be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons will be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses, or is or controls the managing member or general partner of
such limited liability company, partnership, association or other business
entity.


 


“Substitute Member” means a
Person who is admitted to the Company as a Member pursuant to Article 7,
and then designated as a “Member” on an amended Exhibit B to this
Agreement.


 


“Tag-Along Members” shall
have the meaning set forth in Section 7.2(b).


 


“Tag-Along Notice” shall
have the meaning set forth in Section 7.2(b)(i).


 


“Tag-Along Notice Period”
shall have the meaning set forth in Section 7.2(b)(i).


 


“Tag-Along Rights” shall
have the meaning set forth in Section 7.2(b).


 


“Tax Distribution Date”
shall have the meaning set forth in Section 8.5(a).


 


“Tax Matters Member” shall
have the meaning set forth in Section 11.4(a).


 


“Third Party Confidentiality
Agreements” means that certain ** among MWE
Liberty, **, the **,
that certain ** between **
and MWE Liberty, that certain ** between ** and MWE Liberty ** and that
certain ** between **
and MWE Liberty ** or any other third party
agreement entered into by or on behalf of the Company and delivered to a
Member.


 


“Third Party Offer” shall
have the meaning set forth in Section 7.2(a)(ii).


 


“**
Payout” shall mean the dollar threshold, if any, at which the NGPMR Group has
received a cumulative cash amount in respect of the NGPMR Group’s Interests
(whether as distributions from the Company or as cash payment in an Incentive
Interest Transaction) equal to the ** as of the
date of such cash payment ** where ** is equal to the ** determined
as of the date of such cash payment or distribution.


 


“**
Payout Threshold” shall mean the receipt by the NGPMR Group of a cumulative
cash amount in respect of the NGPMR Group’s Interests (whether as distributions
from the Company or as cash payment in an Incentive Interest Transaction) equal
to the ** where **
is equal to the ** determined as of the date of
such distribution or cash payment.


 


“**
Percentage” shall mean **.


 


13

















 


**


 


“Transaction Documents”
shall have the meaning set forth in Section 5.1(b).


 


“Transfer” means any direct
or indirect transfer, assignment, sale, conveyance, license, lease, or
partition of any Interest, and includes any “involuntary transfer” such as a
sale of any part of the Interest therein in connection with any bankruptcy or
similar insolvency proceedings, or any other disposition of any Interest.  A Transfer shall not include any pledge,
hypothecation or encumbrance of any Interest.


 


“Transferring Member” shall
have the meaning set forth in Section 7.2(a).


 


“Treasury Regulations” means
the income tax regulations, including temporary regulations, promulgated under
the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).


 


“True-Up Contribution” shall
have the meaning set forth in Section 4.9(a).


 


** means that
certain ** by and between MWE Liberty and ** as amended by Amendment No. 1 to ** by and between MWE Liberty and **.


 


“Unrelated Information”
shall have the meaning set forth in Section 10.2.


 


“Weighted Average Capital
Contribution Factor” shall mean as of any date of calculation, a weighted
average ** the amounts determined for each
date on which NGPMR has made Capital Contributions (including without
limitation the Capital Contributions funded on the date hereof) calculated as ** of the total ** years from
the date of each Capital Contribution until the date of such calculation (with
a partial year being expressed as a decimal determined by dividing the number
of days which have passed since the most recent anniversary by 365).  Solely for purposes of determining Capital
Contributions under this definition, (i) **
shall be treated as a Capital Contribution made by the NGPMR Group as of the
date **, and (ii) any other amounts ** shall be treated as Capital Contributions made by the
NGPMR Group as of the date **.


 


ARTICLE 2

FORMATION AND TERM


 


Section 2.1             Formation.


 


(a)           The
Company was organized as a Delaware limited liability company under and
pursuant to the Act by the filing of the Certificate by an authorized person
and is being continued pursuant to the terms of this Agreement.


 


(b)           The
name and mailing address of each Member and the total amount which shall be
contributed to the capital of the Company through the Closing is listed on Exhibit B.  The Board shall cause Exhibit B
to be updated, from time to time, as may be necessary to accurately reflect the
information therein.  Any amendment or
revision to Exhibit B made in accordance with this Agreement shall
not be deemed an amendment to this Agreement. 
Any reference in this Agreement to Exhibit B shall be deemed
to be a reference to Exhibit B, as amended, revised and in effect
from time to time.


 


14

















 


Section 2.2             Name.


 


The business and affairs of
the Company shall be conducted under the name “MarkWest Liberty Midstream &
Resources, L.L.C.” and such name shall be used at all times in connection with
the Company’s business and affairs, except to the extent the Board agrees to
the use by the Company of assumed names or other trade names or fictitious
names.  The Company’s Managers or
officers or the Operator shall execute such assumed or fictitious name
certificates as may be desirable or required by law to be filed in connection
with the business and affairs of the Company and shall cause such certificates
to be filed in all appropriate public records.


 


Section 2.3             Term.


 


The term of the Company
commenced upon the effectiveness of the Certificate and shall continue
perpetually, unless the Company is dissolved in accordance with the provisions
of this Agreement.


 


Section 2.4             Registered Agent and Office.


 


The registered office of the
Company required by the Act to be maintained in Delaware shall be the office of
the initial registered agent named in the Certificate or such other office
(which need not be a place of business of the Company) as the Board may
designate in the manner provided by law. 
The registered agent of the Company in Delaware shall be the initial
registered agent named in the Certificate or such other Person or Persons as
the Board may designate in the manner provided by law.


 


Section 2.5             Principal Place of Business.


 


The principal place of
business of the Company shall be 1515 Arapahoe Street, Tower 2, Suite 700,
Denver, CO 80202.  At any time, the Board
may change the location of the Company’s principal place of business.  The Company may have such other places of
business as the Board or the Operator may designate.


 


Section 2.6             Qualification in Other Jurisdictions.


 


The Managers, the officers
of the Company or the Operator shall cause the Company to be qualified, formed
or registered under assumed or fictitious name statutes or similar laws in any
jurisdiction in which the Company transacts business.  The Managers, the officers of the Company or
the Operator shall execute, deliver and file any certificates (and any
amendments and/or restatements thereof) necessary or appropriate for the
Company to qualify and continue to do business in a jurisdiction in which the
Company may wish to conduct business. At the request of the Board or the
Operator, each Member shall execute, acknowledge, swear to and deliver all
certificates and other instruments conforming with this Agreement that are
necessary or appropriate to qualify, continue and terminate the Company as a
foreign limited liability company in all such jurisdictions in which the
Company may conduct business, provided  that no Member shall be
required to file any general consent to service of process or to qualify as a
foreign corporation, limited liability company, partnership or other entity in
any jurisdiction in which it is not already so qualified.


 


15

















 


ARTICLE 3

PURPOSE AND POWERS OF THE COMPANY


 


Section 3.1             Purpose.


 


(a)           The
purpose of the Company is to engage in the natural gas midstream business,
including but not limited to natural gas gathering and processing, and the
natural gas liquids processing, fractionation, transportation, storage and
marketing businesses in the Area of Mutual Interest and to fulfill the
obligations of the Company pursuant to any contract entered into by the Company
or under which the Company has assumed obligations of any Person (the “Primary
Business”), and to engage in any other business or activity that now or in the
future may be necessary, incidental, proper, advisable or convenient to
accomplish the foregoing purpose and that is not forbidden by the law of the
jurisdiction in which the Company engages in such business or activity.


 


(b)           In
no event shall this Agreement be held or construed to imply the existence of a
partnership (including a limited partnership) or joint venture among the
Members and no Member shall be held or construed to be a partner or joint
venturer of any other Member, for any purposes other than federal and state tax
purposes.  No Member shall have any power
or authority under this Agreement to act as the agent or representative of the
Company or any other Member with regard to any matter beyond the scope of this
Company.


 


Section 3.2             Powers of the Company.


 


The Company shall have all
powers and privileges granted by the Act, any other law, or by this Agreement,
including incidental powers thereto, to the extent that such powers and
privileges are necessary, customary, convenient or incidental to the attainment
of the Company’s purpose.


 


Section 3.3             Projects, Restricted Projects, Exempted Projects and Out of
Scope Projects.


 


(a)           As
part of the Primary Business, the Company shall use commercially reasonable
efforts to pursue the acquisition, development, construction and operation of
natural gas gathering and processing, and natural gas liquids fractionation,
transportation, storage and marketing assets described on Exhibit C
(such activities, the “Base Project”). 
From time to time, the Company may also pursue the acquisition,
development, construction and operation of additional midstream assets in the
Area of Mutual Interest in accordance with this Agreement (such activities, the
“Additional Projects” and, collectively with the Base Project, the “Projects”).


 


(b)           No
Class B Member (either directly or indirectly through one or more
Affiliates) shall, own, operate, manage, control, engage in, participate in,
invest in, finance, render services for, assist others in, or otherwise carry
out any Primary Business (a “Restricted Project”) other than through the
Company, without Requisite Member Approval, except as follows (any Restricted
Project engaged in pursuant to one of the following exceptions is an “Exempted
Project”):


 


(i)            MWE Liberty or its Affiliates may engage in a Restricted
Project outside the Company without Requisite Member Approval if the pursuit of
such Restricted Project by the Company does not receive approval of the Board
pursuant to Section 6.1 and Requisite Member Approval pursuant to Section 6.12,
and the Company therefore is unable to pursue the Restricted Project;


 


(ii)           MWE Hydrocarbon may perform its obligations under that
certain Fractionation and NGL Purchase Agreement, dated as of the date hereof,
by and between MWE 


 


16

















 


Hydrocarbon and the Company in the
form attached hereto as Exhibit K (the “Fractionation and NGL
Purchase Agreement”); and


 


(iii)          A Class B Member or its Affiliates may ** as part of ** Restricted
Projects, provided  that  ** such Class B
Member ** the Company **
of ** as **
the Class B Member.  In connection
with ** the Company and the other Members **.  Members holding
Interests with an aggregate Percentage Interest **
Class B Member ** shall have
the ** this Section 3.3(b)(iii) (which,
for clarity purposes, shall not **).  Such Members may, by written notice to the
Company ** the Class B Member ** the Class B Member **
the Class B Member **.  For the avoidance of doubt, ** the Restricted Project shall have **
prior to **. 
In the event that ** the
Restricted Project, the ** the Class B
Member ** the Class B Member or ** the Class B Member. 
** Class B Member ** the Company.


 


Each Member recognizes and
affirms that in the event of breach by such Member of any of the provisions of
this Section 3.3(b), money damages may be inadequate and the non-breaching
Members may have no adequate remedy at law. 
Accordingly, each Member agrees that the non-breaching Members shall
have the right, in addition to any other rights and remedies existing in their
favor, to enforce their rights and each of the Members’ obligations under this Section 3.3(b) not
only by an action or actions for damages, but also by an action or actions for
specific performance, injunctive and/or other equitable relief in order to
enforce or prevent any violations (whether anticipatory, continuing or future)
of the provisions of this Section 3.3(b).


 


(c)           The
Company and the Members recognize that: (i) NGPMR and its Affiliates own
and will own substantial equity interests in other companies (existing and
future) that participate in the energy industry (“NGPMR Portfolio Companies”)
and have in the past and will in the future enter into advisory service
agreements with such NGPMR Portfolio Companies; (ii) the NGPMR
Representatives who serve as Managers also serve as principals of other NGPMR
Portfolio Companies; and (iii) at any time, other NGPMR Portfolio
Companies may be in direct or indirect competition with the Company and/or its
Subsidiaries.  The Company and the
Members acknowledge and agree that NGPMR, its Affiliates and NGPMR
Representatives: (A) shall not be prohibited or otherwise restricted by
their relationship with the Company and its Subsidiaries from engaging in the
business of investing in NGPMR Portfolio Companies, entering into agreements to
provide services to such NGPMR Portfolio Companies or acting as directors or
advisors to, or other principals of, such NGPMR Portfolio Companies, regardless
of whether such activities are in direct or indirect competition with the
Company or the Primary Business, (B) shall not have any obligation to
offer the Company or its Subsidiaries any business opportunity resulting from
NGPMR and its Affiliates’ ownership in the NGPMR Portfolio Companies, and (C) the
Company and the Members hereby renounce any interest or expectancy in any such
business opportunity pursued by NGPMR, its Affiliates, the NGPMR
Representatives or another NGPMR Portfolio Company and waive any claim that any
such business opportunity constitutes a corporate, partnership or other
business opportunity of the Company or any of its Subsidiaries; provided,
however, that nothing contained in this Section 3.3(c) is
intended to limit the confidentiality obligations in Section 5.4 and NGPMR,
its Affiliates, the NGPMR Portfolio Companies and the NGPMR Representatives are
expressly prohibited from using any Confidential Information (i) to pursue
any such business opportunity, (ii) in providing services to the NGPMR
Portfolio Companies or (iii) in acting as directors or advisors to, or
other principals of, such companies.


 


(d)           No
Member or its Affiliates shall have any obligation to communicate or offer any
Out of Scope Projects to the Company or the other Members.  The Members acknowledge and agree that each
Member, and their respective Affiliates, may presently or in the future engage
in and/or possess an interest in other business ventures of every nature and
description, independently or with others, outside of the Area of Mutual
Interest, whether or not such business ventures are within the scope of the 


 


17

















 


Primary Business, or within the Area of Mutual Interest, so
long as such ventures constitute Out of Scope Projects or Exempted Projects,
and neither the Company nor any other Members shall have any right by virtue of
this Agreement in and to any Out of Scope Projects or Exempted Projects, or to
the income or profits derived therefrom.


 


ARTICLE 4

CAPITAL CONTRIBUTIONS, MEMBER INTERESTS,

CAPITAL ACCOUNTS AND FUTURE CAPITAL REQUIREMENTS


 


Section 4.1             Capital Contributions.


 


(a)           Initial
Capital Contributions.


 


(i)            At Closing, MWE Liberty and NGPMR shall have made the
respective Capital Contributions (each, an “Initial Capital Contribution”) to the
Company in the amounts set forth on Exhibit B in exchange for the
initial Percentage Interest and the type of Interest set forth on Exhibit B.  In connection with such contributions, the
Company, MWE Liberty and NGPMR shall execute the Contribution Agreement in
order to effect the contribution to the Company of the cash consideration
comprising NGPMR’s Initial Capital Contribution and the assets comprising MWE
Liberty’s Initial Capital Contribution. 
The Members hereby acknowledge and agree that the gross fair market
value of MWE Liberty’s Initial Capital Contribution shall equal the actual
out-of-pocket costs incurred by MWE Liberty and its Affiliates that
specifically relate to developing the assets to be contributed and the
established value of other property to be contributed by MWE Liberty to the
Company pursuant to the Contribution Agreement, but that such actual cost will
not be finally determinable as of the date hereof and is subject to adjustment
as set forth in Section 4.1(a)(ii) below.


 


(ii)           As soon as reasonably practicable following the Closing, and
in any event within ninety (90) days thereafter, MWE Liberty shall prepare and
deliver to NGPMR a schedule, prepared by MWE Liberty in good faith that
describes in reasonable detail the actual out-of-pocket costs incurred by MWE
Liberty that specifically relate to the assets contributed by MWE Liberty
pursuant to the Contribution Agreement (the “Final Calculations”).  The Final Calculations shall separately
identify (A) actual out-of-pocket costs incurred by MWE Liberty and its
Affiliates through December 31, 2008 that specifically relate to
developing assets contributed, plus the established value of other property
contributed, by MWE Liberty to the Company pursuant to the Contribution
Agreement, which collectively correspond to MWE Liberty’s initial Investment
Balance after taking into account the adjustment provisions in Section 4.8
(the “Investment Balance Costs”) and (ii) the **.


 


(iii)          NGPMR shall have the right to review and verify the Final Calculations.  MWE Liberty shall provide NGPMR reasonable
access to its records and employees and shall cooperate and cause the Company
to cooperate in all reasonable respects with NGPMR in connection with its
review of such work papers and other documents and information relating to the
Final Calculations.  If within thirty
(30) days after NGPMR’s receipt of the Final Calculations, NGPMR shall not have
given written notice to MWE Liberty of objection thereto, then NGPMR shall be
deemed to have accepted the Final Calculations, which shall then be final,
binding and conclusive for all purposes hereunder.  In the event that NGPMR gives written notice
of any objection to the Final Calculations (an “Objection Notice”) within such
thirty (30) day period, then NGPMR and MWE Liberty will use all commercially
reasonable efforts to resolve the disputed matter(s) within the thirty
(30) day period following the delivery of such Objection Notice.  If, at the end of the thirty (30) day
resolution period, the parties are unable to resolve any 


 


18

















 


disagreement between them with
respect to the preparation of the Final Calculations, then each party shall
deliver simultaneously to a nationally recognized accounting firm mutually agreed
on by the parties (the “Accountants”) (i) the Objection Notice and such
work papers, invoices and other reports and information relating to the
disputed matter(s) as the Accountants may request and (ii) such party’s
proposed resolution of the disputed matter(s) and any materials it wishes
to present to justify the resolution it so presents.  MWE Liberty and NGPMR shall each be afforded
the opportunity to discuss the disputed matter(s) with the
Accountants.  The Accountants, acting as
experts and not as arbitrators, shall have thirty (30) days to carry out a
review and prepare a written statement of its determination regarding the
disputed matter(s) (including a statement regarding the Accountants’
determination of the prevailing party in any such disputed matter) which
determination shall be final and binding upon NGPMR and MWE Liberty.  Any fees and expenses of the Accountants
incurred in resolving the disputed matter(s) shall be borne equally by
NGPMR, on the one hand, and by MWE Liberty, on the other hand.


 


(iv)          The aggregate amount of MWE Liberty’s Initial Capital
Contribution finally determined pursuant to this Section 4.1(a) shall
be referred to as the “Final Cost.”  Upon
determination of the Final Cost, MWE Liberty’s Initial Capital Contribution and
Investment Balance (pursuant to Section 4.8) shall be adjusted to reflect
such Final Cost; provided  that in no event shall **.


 


(v)           In the event that the Final Cost reflects that the Investment
Balance Costs are greater or less than the Investment Balance of MWE Liberty
initially specified on Exhibit B, a corresponding adjustment shall
be made to MWE Liberty’s Investment Balance to reflect such amount determined
as part of the Final Cost.


 


(vi)          In the event that the Final Cost reflects that the **, MWE Liberty shall within two Business Days pay to the
Company in immediately available funds an amount equal to such difference; in
the event that the Final Cost reflects that the **,
the Company shall within two Business Days pay to MWE Liberty in immediately
available funds an amount equal to such difference.


 


(b)           Additional Capital Contributions Prior to the Equalization
Date.


 


(i)            The Class A Members hereby collectively agree to make
additional cash Capital Contributions of $** to the
Company on ** upon receipt by each Class A
Member, at least ten Business Days prior to each of such dates, of a Bring Down
Certificate from the Company and a Capital Call properly made by the Board to
such Class A Members for such amount. 
In the event that any of these Capital Contributions are made by the Class A
Members prior to the respective dates set forth in the preceding sentence, such
Capital Contributions shall be deemed to be made as of such dates.  No Class A Member shall have an
obligation to make a Capital Contribution pursuant to this Section 4.1(b)(i) unless
the Company has issued a Bring Down Certificate to such Class A Member and
the Board has issued a Capital Call to such Class A Member.  Upon contribution of the Class A Member’s
Initial Capital Contribution and each of the additional Capital Contributions
pursuant to this Section 4.1(b)(i), the Class A Members shall have no
obligation to contribute any additional capital to the Company other than
pursuant to Section 4.1(b)(iii).


 


(ii)           The Class B Members hereby agree to make additional
Capital Contributions to the Company, on an as needed basis, until the
occurrence of the Equalization Date. 
Prior to the occurrence of the Equalization Date, at each time when the
Company requires additional capital, the Board shall issue a Capital Call to
the Class B Members, and the Class B 


 


19

















 


Members shall contribute to the
Company the amount of capital so requested, in accordance with their respective
Class B Percentage Interests, within ten days after receipt of such
Capital Call.  Notwithstanding the
foregoing, the Class B Members shall not make any Capital Contributions
pursuant to this Section 4.1(b)(ii) and the Company shall not issue
any Capital Calls for any such Capital Contributions unless and until each of
the Capital Contributions by the Class A Members set forth in Section 4.1(b)(i) have
been spent by the Company or committed to be spent in accordance with an
Approved Budget.


 


(iii)          The Class B Members hereby agree that, any distributions
of Available Cash payable to a Class B Member pursuant to Section 8.1(a) prior
to the earlier to occur of (i) December 31, 2010 and (ii) the
Equalization Date shall be distributed and automatically reinvested by each Class B
Member as additional Capital Contributions, without the issuance of any Capital
Call.  In accordance with Section 8.1(a),
the Class A Members acknowledge and agree that they shall not receive any
distributions of Available Cash prior to the earlier to occur of (i) December 31,
2010 and (ii) the Equalization Date; provided, however that the amount
that each Class A Member would have received if Available Cash were
distributed prior to the earlier of (i) December 31, 2010 and (ii) the
Equalization Date, shall increase the Investment Balance of such Class A
Member on a dollar-for-dollar basis. 
Once the Equalization Date has occurred, Available Cash shall be
distributed in accordance with Section 8.1(b)(ii).


 


(c)           Capital
Contributions After the Equalization Date. 
Upon contribution of the Class A Member’s Initial Capital
Contribution and each of the additional Capital Contributions pursuant to Section 4.1(b)(i),
no Class A Member shall be obligated to contribute additional capital to
the Company except as agreed upon by such Class A Member pursuant to this Section 4.1(c).  If the Company requires additional capital to
pursue any Project or in connection with the operation of the Primary Business
after the Equalization Date, then, with respect to funding for Projects or operations
within the then current Approved Budget, the Class A Members shall elect
(such election, a “Quarterly Budgeted Funding Election”) on a quarterly basis
whether to contribute additional capital that may be required to fund such
Projects or operations for the upcoming calendar quarter based on their
respective Percentage Interests.  Such
Quarterly Budgeted Funding Election shall be irrevocable, and shall be made in
writing (which may include electronic mail) to the Company no less than 30 days
prior to the commencement of the upcoming calendar quarter.  If one or more Class A Members elect not
to participate, or fail to make any election (which shall be deemed to be an
election not to contribute), then such Non-Contributing Member(s) shall
have no obligation to contribute additional capital to fund Projects or
operations within the then current Approved Budget for such upcoming calendar
quarter.  With respect to each
Contributing Member, at least ten days prior to the beginning of such calendar
quarter, the Board shall issue to such Contributing Member a Capital Call that
identifies the amount of capital that the Company needs in connection with such
Projects or operations for such quarter. 
Each Contributing Member shall contribute such requested capital to the
Company within ten days after the issuance of each such quarterly Capital Call.


 


After
the Equalization Date, the Class B Member(s) may contribute on a
quarterly basis all additional capital (less any capital to be contributed by
the Contributing Members for such upcoming calendar quarter) required to fund
Projects or operations within the then current Approved Budget for the upcoming
calendar quarter, including any capital required to reduce any capital
shortfall that may result from Non-Contributing Member elections during such
calendar quarter; provided, that the Class B Member(s) shall provide
written notice to the other Members on a quarterly basis regarding their
decision to fund additional capital and the amount of such Capital
Contribution.


 


For
the avoidance of doubt, the Percentage Interests of the Members shall be
subject to adjustment (upward and downward) pursuant to this Section 4.1(c),
based upon the Members’ respective


 


20
















 


Investment Balances giving effect to such additional Capital
Contributions. If elections to contribute capital by the Contributing Members
and the Class B Member(s) are less than the total amount of capital
required by the Company pursuant to this Section 4.1(c), then the Company
may seek to obtain the requested capital from third parties, which may include
issuing additional Interests in the Company pursuant to Sections 5.3 and
subject to Section 5.7, if applicable.


 


Section 4.2             Capital
Contribution Defaults.


 


If a Member fails to
contribute any capital to the Company that is required to be so contributed
pursuant to Section 4.1, such Member shall be considered in default (a “Defaulting
Member”), but shall remain fully obligated to contribute such capital to the
Company.  The Company shall be entitled
to pursue all remedies available at law or in equity against the Defaulting
Member, including any one or more of the following:


 


(a)           the
Company may take all actions, including court proceedings, as the other Members
may deem appropriate, to obtain payment by the Defaulting Member of the
required amount of the Capital Contribution remaining unpaid, together with
interest thereon at the Default Rate from the date that the required Capital
Contribution was required to be contributed to the Company until the date it is
so contributed, at the cost and expense of the Defaulting Member; and


 


(b)           the
non-defaulting Members may advance the portion of the Defaulting Member’s
Capital Contribution that is in default, in accordance with the non-defaulting
Members’ respective Percentage Interests, and, at the option of the
non-defaulting Members, the non-defaulting Members making such advance may be
deemed to have made a loan to the Defaulting Member in the amount of the Capital
Contribution so advanced, which loan shall bear interest at the Default Rate
from the date that such advance is made until the loan is repaid in full, and
until such loan is repaid in full, the non-defaulting Members making such loan
to the Defaulting Member shall be entitled to receive all distributions of
Available Cash that would otherwise be payable to the Defaulting Member
hereunder, in accordance with the non-defaulting Members’ respective Percentage
Interests.


 


Section 4.3             Member’s
Interest.


 


A Member’s Interest shall
for all purposes be personal property. 
Title to the Company’s assets, whether real, personal or mixed and
whether tangible or intangible, shall be deemed to be owned by the Company as
an entity, and no Member, Manager, Operator or officer of the Company shall
have any ownership interest in such Company assets.


 


Section 4.4             Status
of Capital Contributions.


 


(a)           Except
as otherwise provided in this Agreement, no Member, or the successor or assign
of a Member, may demand a return of its Capital Contributions, in whole or in
part.  An unrepaid Capital Contribution
is not a liability of the Company or of any Member.


 


(b)           No
Member or Affiliate of any Member shall receive any interest, return,
compensation or drawing with respect to its Capital Contributions or its
Capital Account, except as otherwise specifically provided in this Agreement.


 


(c)           Except
as otherwise provided in this Agreement, no Member shall be required to lend
any funds or make any additional Capital Contributions to the Company.  No Member shall have any personal liability
for the repayment of any other Member’s Capital Contribution or be required to 


 


21

















 


contribute or lend any cash or property to the Company to
enable the Company to repay any Member’s Capital Contributions.


 


Section 4.5             Capital
Accounts.


 


(a)           A
separate Capital Account shall be established and maintained for each Member in
accordance with the requirements of Treasury Regulations Section 1.704-1(b)(2)(iv).  The original Capital Account established for
any Member who acquires an Interest by virtue of an assignment in accordance
with the terms of this Agreement shall be in the same amount as and shall
replace the Capital Account of the assignor of such Interest.  To the extent such Member acquires less than
all of the Interest of the assignor of the Interest so acquired by such Member,
the original Capital Account of such Member and its Capital Contributions shall
be in proportion to the Interest it acquires, and the Capital Account of the
assignor who retains an Interest shall be reduced in proportion to the Interest
it retains.


 


(b)           The
Capital Account of each Member shall be maintained in accordance with the
following provisions:


 


(i)            to such Member’s Capital Account there shall be credited such
Member’s Capital Contributions, such Member’s distributive share of Profits,
special allocations of income and gain, and the net amount of any Company
liabilities that are assumed by such Member or that are secured by any Company
assets distributed to such Member;


 


(ii)           to such Member’s Capital Account there shall be debited the
amount of cash and the Gross Asset Value of any Company assets distributed to
such Member pursuant to any provision of this Agreement, such Member’s
distributive share of Losses, special allocations of loss and deduction, and
the net amount of any liabilities of such Member that are assumed by the
Company or that are secured by any property contributed by such Member to the
Company;


 


(iii)          in determining the amount of any liability for purposes of
this Section 4.5(b), there shall be taken into account Section 752(c) of
the Code and any other applicable provisions of the Code and the Treasury
Regulations; and


 


(iv)          the Capital Accounts shall be increased or decreased upon a
revaluation of Company property pursuant to clause (b) of the definition
of Gross Asset Value in the manner prescribed in Treasury Regulation Section 1.704-1(b)(2)(iv)(f).


 


Section 4.6             Capital
Accounts Generally.


 


(a)           Except
as otherwise provided in this Agreement, whenever it is necessary to determine
the Capital Account of any Member for any purpose hereunder, the Capital
Account of such Member shall be determined after giving effect to all
adjustments provided for in Section 4.5 for the current Fiscal Year in
respect of transactions effected prior to the date such determination is to be
made.


 


(b)           No
Member shall be entitled to withdraw any part of its Capital Account, or to
receive any distribution from the Company except as specifically provided in
this Agreement.


 


Section 4.7             Preferred
Return.


 


For the avoidance of doubt,
the Class A Interests shall accrue the Preference Amount until the
Equalization Date, after which time the Preference Amount shall no longer
accrue.


 


22

















 


Section 4.8             Investment
Accounts.


 


The Company shall maintain
an investment account (an “Investment Account”) for each Member, the balance of
which (the “Investment Balance”) shall represent the sum of a Member’s Initial
Capital Contribution, any additional Capital Contributions made by a Member
pursuant to Sections 4.1(b), 4.1(c) and 4.9, and with respect to each Class A
Member, (i) the Preference Amount and (ii) the amount that is
retained by the Company in accordance with Section 4.1(b)(iii) and
which such Class A Member would have otherwise received if Available Cash
were distributed prior to the earlier to occur of (i) December 31,
2010 and (ii) the Equalization Date. 
The Investment Balance for each Class A Member shall be reduced by
any actual distributions to such member of Available Cash pursuant to Section 8.1(b)(i)(A) and
Sections 13.4(a)(i)(A) and (B).  The
Investment Balance of the Class B Members shall be reduced by the amount
of any **, subject to adjustment pursuant to Section 4.1(a).  For the avoidance of doubt, the Investment
Balance of each Member immediately following the Closing, after giving effect
to Capital Contributions and reimbursements, shall be as set forth on Exhibit B.  An assignee of all or any portion of an
Interest shall succeed to a portion of the assignor Member’s Investment Account
in proportion to the Interest acquired.


 


Section 4.9             Equalization
Target Date.


 


(a)           In
the event that the Equalization Date has not occurred on or before **, then all distributions of Available Cash received by the
MWE Liberty Group after ** pursuant to
any provision of this Agreement shall automatically be contributed to the
Company as additional Capital Contributions until the Equalization Date occurs.  If the Equalization Date has not occurred on
or before December 31, 2011 (the “Equalization Target Date”), then the Class A
Members holding at least a majority of the Class A Percentage Interests
may elect by written notice to require MWE Liberty to make an additional cash
Capital Contribution (the “True-Up Contribution”) sufficient to result in the
Equalization Date occurring within ** after the
Equalization Target Date.  MWE Liberty
shall cause such True-Up Contribution to be made and the Equalization Date to
occur within ** of the requesting notice of the
requisite Class A Members.  To the
extent that the Company does not have commitments to spend the True-Up
Contribution in accordance with the Approved Budget (and any amendments or
modifications to such Approved Budget approved prior to the date of the True-up
Contribution) in effect at the time MWE Liberty is required to make the True-Up
Contribution, then, at the end of the first full fiscal quarter following the
date of the True-Up Contribution, the Company shall distribute any amount of
the True-Up Contribution not spent or committed to be spent in accordance with
such Approved Budget, and any approved amendments thereto, to the Members in
accordance with their Percentage Interests. 
For clarification purposes, it is the intent of the Members that the
True-Up Contribution be an amount such that after payment of the True-Up
Contribution is made by MWE Liberty, the Percentage Interest of the MWE Liberty
Group is 60% and the Percentage Interest of the NGPMR Group is 40%.


 


(b)           If
MWE Liberty fails to make the True-Up Contribution in accordance with Section 4.9(a) above,
then the Interests held by the MWE Liberty Group shall not be ** of the Company; provided, however, that the
then controlling Members shall not ** to the MWE
Liberty Group in any material respect ** of the MWE
Liberty Group.  Additionally, NGPMR shall
have the ** subject to the provisions of ** to any Person, other than an Affiliate or partner of any
member of the NGPMR Group or any NGPMR Portfolio Company, **,
(B) all Members ** any Person,
other than an Affiliate or partner of any member of the NGPMR Group or any
NGPMR Portfolio Company, of all of ** or (C) the
Company to ** other than an Affiliate or
partner of any member of the NGPMR Group or any NGPMR Portfolio Company, **.


 


(c)           Within
five days after receipt of any notice of **, the Board
shall notify each Member, in writing, ** shall
identify the **, including the form of the ** and provide a copy of **.  Each 


 


23

















 


Member agrees that ** it will (i) take
such action as may reasonably be required, including **,
(ii) cause its designated Managers to take such action required, to **, (iii) provide for the execution of such agreements
and such instruments and other actions reasonably necessary to provide, to the
extent necessary, ** relating to
such **, in each case only to the extent
that **; provided  that, no
Affiliated Member Group shall be obligated in respect of any ** and referred to in the immediately preceding clause in
such ** for an **
to such Affiliated Member Group in **.  The Member proposing **
shall have the right in connection with ** (or in
connection with the **) to require
the Company to cooperate fully with ** by taking
all customary and other actions reasonably requested by the Member **, including making the **
reasonably available **,
establishing a ** in connection with such
processes and making ** activities,
in each case subject to **. The Company
and each Member shall provide assistance with respect to these actions as
reasonably requested by the Member **. In
addition, once ** under this Section 4.9,
the Board shall be entitled to take all steps reasonably necessary to carry out
**, including **;
provided, however, that the rights granted the Board in this
sentence shall not permit the Board to **.


 


ARTICLE 5

MEMBERS, MEETINGS AND AMENDMENTS


 


Section 5.1             Powers
of Members.


 


(a)           Except
for the right to consent to or approve certain matters as expressly provided in
this Agreement, the Members in their capacity as Members shall not have any
other power or authority to manage the business or affairs of the Company or to
bind the Company or enter into agreements on behalf of the Company.


 


(b)           To
the fullest extent permitted by law and notwithstanding any provision of this
Agreement or any other document executed in connection with this Agreement (a “Transaction
Document”) to the contrary, no Member in its capacity as a Member shall have
any duty, fiduciary or otherwise, to the Company or any other Member in
connection with the business and affairs of the Company or any consent or
approval given or withheld pursuant to this Agreement or any other Transaction
Document.


 


(c)           Any
matter requiring the consent or approval of the Members pursuant to this
Agreement may be taken without a meeting, without prior notice and without a
vote, by a consent in writing, setting forth such consent or approval, and
signed by Members holding Interests not less than the requisite Interests
necessary to consent to or approve such action; provided that at least one Class A
Member shall be required to sign such consent or approval in order for such
consent to be effective in the event that the Class A Members did not
receive prior written notice of the action to be so taken.  Prompt notice of such consent or approval
shall be given by the Company to those Members who have not joined in such
consent or approval.


 


Section 5.2             No
Resignation or Expulsion.


 


A Member may not take any
action to resign, withdraw or retire as a Member voluntarily, and a Member may
not be expelled or otherwise removed involuntarily as a Member, prior to the
dissolution and winding up of the Company, other than as a result of a
Permitted Transfer of all of such Member’s Interests in accordance with Article 7
and each of the transferees of such Interests being admitted as a Substitute
Member.


 


24

















 


Section 5.3             Additional
Members.


 


(a)           After
the Board makes a Capital Call pursuant to Section 4.1(c) that was
not fully funded by the Members and subject to the preemptive rights set forth
in Section 5.7 to the extent applicable, the Company is authorized to
issue additional Interests and to admit any Person as an additional member of
the Company (each, an “Additional Member” and collectively, the “Additional
Members”).  Upon receipt of requisite
approval of the Board and the Members, the Company is authorized to issue
additional Interests and to admit any Person as an additional member of the Company
(each, an “Additional Member” and collectively, the “Additional Members”). 
Each such Person receiving additional Interests shall be admitted as an
Additional Member at the time such Person (i) executes a counterpart
signature page agreeing to be bound hereby and such other documents or
instruments as may be required in the Board’s reasonable judgment to effect the
admission, and (ii) is designated as a Member (with a corresponding
Percentage Interest) on an amended or supplemental Exhibit B.
 The Company may issue additional Interests or additional classes of
membership interests to existing Members or to new or Additional Members in
exchange for such Capital Contributions, including cash, property or services
or any combination thereof.


 


(b)           Additional
Members shall not be entitled to any retroactive allocation of the Company’s
income, gains, losses, deductions, credits or other items; provided  that,
subject to the restrictions of Section 706(d) of the Code, Additional
Members shall be entitled to their respective share of the Company’s income,
gains, losses, deductions, credits and other items arising under contracts
entered into before the effective date of the admission of any Additional
Members to the extent that such income, gains, losses, deductions, credits and
other items arise after such effective date. 
To the extent consistent with Section 706(d) of the Code and
Treasury Regulations promulgated thereunder, the Company’s books may be closed
at the time Additional Members are admitted (as though the Company’s tax year
had ended) or the Company may credit to the Additional Members pro rata
allocations of the Company’s income, gains, losses, deductions, credits and
items for that portion of the Company’s Fiscal Year after the effective date of
the admission of the Additional Members.


 


Section 5.4             Confidentiality
Obligations of Members.


 


(a)           Each
Member agrees that all Confidential Information shall be kept confidential by
the Member, shall only be used for the purpose of reviewing and evaluating the
performance of the Company and the Member’s Interest therein, and shall not be
disclosed in any manner, except to such of the Member’s Representatives who
have a need to know and who agree to be, or are otherwise, bound by the Member’s
obligations hereunder and except as otherwise expressly permitted in this Section 5.4.  Each Member shall be responsible for any
breach of this Section 5.4 by itself or any of its Representatives, and
each Member covenants and agrees that it shall promptly notify the Company of
any actual, potential or threatened breach of this Section 5.4 and shall,
at its own expense, enforce, and assist the Company in its enforcement of, the
provisions of this Section 5.4, including, to the extent reasonably
necessary, seeking specific enforcement through court proceedings.  Subject to Section 5.4(b), if a Member
or any of its Representatives is requested or required by applicable law, rule or
regulation, regulatory authority, subpoena, civil investigation, court order,
demand or similar legal process to disclose any Confidential Information, the
Member shall, to the maximum extent permitted by applicable law, provide the
Company with prompt written notice thereof and will use reasonable efforts to
resist disclosure, until an appropriate protective order or motion to quash may
be sought or a waiver of compliance with this Section may be granted.  If, in the absence of a protective order or
the receipt of a waiver hereunder, such Member or any of its Representatives
is, in the opinion of its legal counsel, legally required to disclose
Confidential Information, then such Member or its Representatives may disclose
only that portion of the Confidential Information legally required to be
disclosed, without liability hereunder, provided that such Member or its
Representatives uses reasonable efforts to obtain reliable assurance that 


 


25

















 


confidential treatment will be accorded the Confidential
Information.  Each Member acknowledges
and agrees that the Company and the other Members may be irreparably harmed by
disclosure of the Confidential Information, that money damages would not be a
sufficient remedy for any breach of this Section 5.4 by such Member or its
Representatives and that, in addition to any other remedies available at law or
in equity, specific performance and injunctive or other equitable remedies
shall be available to the Company and the Members as a remedy for any such
breach or threatened breach, without the requirement of posting bond or other
security.  The Company and the other
Members shall be entitled to recover their costs and expenses, including
attorneys’ fees, incurred in connection with any successful action brought by
them to enforce the terms of this Agreement. 
With respect to Confidential Information that is subject to
confidentiality agreements under any Third Party Confidentiality Agreements,
each Member covenants and agrees to, and shall cause its Representatives to,
treat such Confidential Information confidentially in accordance with, and to
comply with the terms of, the confidentiality provisions contained in those
Third Party Confidentiality Agreements that have been disclosed to such Member,
including, any provisions thereof that impose more stringent or additional obligations
than those set forth herein (provided such has been disclosed to such
Member).  The obligations of a Member
pursuant to this Section 5.4 shall continue following the time such Person
ceases to be a Member, but thereafter such Person shall not have the right to
enforce the provisions hereof. 
Notwithstanding anything set forth herein, all covenants made herein by
a Member are for the sole benefit of the Company and the other Members and
there shall be no third party beneficiaries of any of such covenants.


 


(b)           Notwithstanding
anything to the contrary in this Agreement, each Member may disclose any
information about the Company, including any Confidential Information, without
any liability to the Company or to any other Member or to their respective Affiliates
and without any notice to any Member, to the extent that such disclosing Member
believes that such disclosure is necessary or appropriate to satisfy its public
disclosure obligations under the Securities Act, the Exchange Act, the rules of
any stock exchange, or any similar public disclosure obligations.


 


Section 5.5             Initial
Budget.


 


By execution of this
Agreement, the Members hereby approve and consent to the initial budget
attached hereto as Exhibit D (the “Initial Budget”) and acknowledge
and agree that such Initial Budget shall be deemed to be an Approved Budget for
all purposes of this Agreement.


 


Section 5.6             Incentive
Interests to MWE Liberty Upon Transfer of NGPMR’s Interest.


 


In the event NGPMR receives
cash from any NGPMR Exit Transaction or Partial NGPMR Exit Transaction (for the
purposes of this section, such transaction an “Incentive Interest Transaction”)
that would result in ** Payout**, simultaneously with the consummation of any such
transaction, NGPMR shall pay to MWE Liberty as a fee the following amount**, to the extent applicable:


 


** Following ** Payout
Threshold, if any, an amount equal to the ** of (i) the
cash proceeds of all Incentive Interest Transactions plus cumulative cash
distributions to NGPMR in respect of its Interest, **


 


**


 


Exhibit E contains
illustrative examples of the calculation and operation of amount** payable pursuant to Section 5.6**
based upon hypothetical Incentive Interest Transactions.  This Section 5.6 shall be interpreted
and applied in a manner consistent with the examples set forth in Exhibit E.
The obligations of NGPMR to make payment** to MWE
Liberty pursuant to this Section 5.6 shall survive the closing of any 


 


26

















 


NGPMR Exit Transaction or Partial NGPMR Exit Transaction and
any liquidation, dissolution or winding up of the Company until such payment to
MWE Liberty has been made.


 


Section 5.7             Preemptive
Rights.


 


(a)           After
the Equalization Date, prior to the Company issuing any Interests or options or
rights to acquire Interests (other than (i) any equity issuance associated
with an acquisition previously approved by NGPMR, (ii) Interests issued in
connection with any split, distribution or recapitalization of the Company, (iii) Interests
issued in any initial public offering registration statement filed under the
Securities Act, or (iv) in connection with any capital raising or
financing efforts by the Company the purpose of which is to fund any activities
of the Company which were the subject of a Capital Call made pursuant to Section 4.1(c) that
was not fully funded by the Members; provided, however, that any
Interests to be issued in such capital raising or financing efforts, and the
pricing of such Interests, are equivalent to the terms of such Capital Call),
whether through exchange, conversion or otherwise (the “New Interests”), to a
proposed third party purchaser (the “Proposed Purchaser”), each Member who is
not in default of this Agreement and which certifies to the Company’s
reasonable satisfaction that it is an “accredited investor” within the meaning
of Rule 501 under the Securities Act (an “Eligible Member”) shall have the
right to purchase a portion of the New Interests in accordance with this Section 5.7.


 


(b)           The
Company shall give each Eligible Member prior written notice (the “First Notice”)
of any proposed issuance of New Interests, which shall set forth in reasonable
detail the proposed terms and conditions thereof (as determined by the Board in
good faith) and shall offer to each Eligible Member the opportunity to purchase
its Percentage Interest (as of the date of such notice) of the New Interests,
on the same terms and conditions and at the same time as the New Interests are
proposed to be issued by the Company.  If
any Eligible Member desires to exercise its preemptive rights under this Section 5.7,
it must deliver an irrevocable written notice within 30 days after the Eligible
Member’s receipt of the First Notice (the “Election Period”) setting forth the
dollar amount of the New Interests the Eligible Member (the “Electing Member”)
is electing to purchase, up to its Percentage Interest plus any additional
amount of New Interests it desires to purchase in excess of its Percentage
Interest (the “Over-Allotment Amount”) if other Eligible Members do not
exercise their preemptive rights hereunder. 
The right of each Electing Member to purchase New Interests in excess of
its Percentage Interest shall be based on the relative Percentage Interests of
the Electing Members desiring to purchase Over-Allotment Amounts.


 


(c)           If
the Eligible Members do not subscribe for all of the New Interests, the Company
shall have the right, but not the obligation, to issue and sell the
unsubscribed portion of the New Interests to the Proposed Purchaser at any time
during the 90 days following the end of the Election Period, at the same price
and pursuant to the terms and conditions set forth in the First Notice.  The Board may, in its reasonable discretion,
impose such other reasonable and customary terms and procedures such as setting
a closing date and requiring customary closing deliveries in connection with
any preemptive rights offering.  In the
event any Electing Member refuses to purchase the New Interests for which it
subscribed pursuant to this Section 5.7, then in addition to any other
rights the Company may have at law or in equity, such Electing Member and any
transferee thereof shall not be considered an Eligible Member for any future
rights granted under this Section 5.7 unless the Board expressly designates
otherwise (which the Board may, in its sole discretion, do on an offer-by-offer
basis or not at all) and shall be deemed a Defaulting Member under Section 4.2.


 


27

















 


Section 5.8             Registration
Rights.


 


If the Board with Requisite
Member Approval determines to effect a Qualified Public Offering, each of the
Members shall be granted customary registration rights, including piggyback
registration rights, with respect to such Qualified Public Offering.


 


ARTICLE 6

MANAGEMENT


 


Section 6.1             Management
Under Direction of the Board.


 


Except as otherwise
expressly provided in this Agreement or required under the Act, the business
and affairs of the Company shall be managed by a board of managers (the “Board”
and each member of the Board, a “Manager”), and the Board shall have full and
complete authority, power, and discretion to manage and control the business,
affairs, and properties of the Company, to make all decisions regarding those
matters and to perform any and all other acts or activities customary or
incidental to the management of the Company’s business.  Without limiting the generality of the
foregoing the approval of the Board shall be required for all matters not
delegated by the Board to the Operator, the officers of the Company or to other
authorized persons in accordance with Section 6.10, including approval of
the following matters, which the Board shall not have the power to delegate to
any Person, in each case except as otherwise approved in any Approved Budget:


 


(a)           Proposed
Budgets for the Company, other than the Initial Budget;


 


(b)           distributions
of Available Cash (including Tax Distributions);


 


(c)           efforts
by the Company to raise additional capital, including the issuance of
additional Interests or any options to acquire Interests and the issuance of
additional equity interests or options to acquire equity interests in the
Company’s subsidiaries;


 


(d)           incurrence
or guarantee of Debt by the Company in excess of $**;


 


(e)           acquisitions
or dispositions of assets by the Company in excess of $**;


 


(f)            commencing
or resolving litigation;


 


(g)           election
or removal of officers of the Company;


 


(h)           material
contracts to which the Company (or a subsidiary of the Company) is a party or
by which it is bound; and


 


(i)            the
registration of any equity or debt securities of the Company or its
subsidiaries under applicable United States federal or foreign securities laws
or any public offering of equity or debt securities of the Company or its
subsidiaries (including any Qualified Public Offering).


 


Section 6.2             Number,
Tenure and Qualifications.


 


(a)           Prior
to the Equalization Date, the Board shall be comprised of five Managers,
designated as follows:


 


(i)            two Managers (each, a “Class A Manager”) designated by Class A
Members with an aggregate Class A Percentage Interest of at least 50%; and


 


28

















 


(ii)           three Managers (each, a “Class B Manager”) designated by
Class B Members with an aggregate Class B Percentage Interest of at
least 50%.


 


The initial Managers of the
Company shall be:  Jeffrey Rawls and
Patrick Wade, who are the Class A Managers, and John Mollenkopf, Randy
Nickerson and Frank Semple, who are the Class B Managers.


 


(b)           On
and after the Equalization Date, each Affiliated Member Group shall be entitled
to designate the number of Managers determined by their Percentage Interests as
follows:


 


(i)            Each Affiliated Member Group with a Percentage Interest less
than or equal to ** shall not be allowed to
designate any Managers;


 


(ii)           Each Affiliated Member Group with a Percentage Interest
greater than ** but less than or equal to **, shall be allowed to designate one Manager;


 


(iii)          Each Affiliated Member Group with a Percentage Interest
greater than ** but less than or equal to **, shall be allowed to designate two Managers;


 


(iv)          Each Affiliated Member Group with a Percentage Interest
greater than ** but less than or equal to **, shall be allowed to designate three Managers;


 


(v)           Each Affiliated Member Group with a Percentage Interest
greater than ** but less than or equal to **, shall be allowed to designate four Managers; and


 


(vi)          Each Affiliated Member Group with a Percentage Interest
greater than **, shall be allowed to designate
five Managers.


 


Any Manager designated in accordance
with this section shall be immediately removed from the Board at any time that
the Affiliated Member Group that designated such Manager ceases to own
aggregate Percentage Interests that would permit such Affiliated Member Group
to designate such Manager in accordance with the first sentence of this
section.  Notwithstanding the foregoing,
so long as the Class A Members have **, such Class A
Members shall be entitled to appoint no less than one Manager to the Board and
the size of the Board shall be, if necessary, increased by one to enable the Class A
Members to make such appointment.  The
Board shall be comprised of the total number of Managers that all Affiliated
Member Groups are entitled to so designate pursuant to the first sentence of
this Section 6.2(b), plus any additional Manager whom the Class A
Members are entitled to designate pursuant to the immediately preceding
sentence. At any time that any Affiliated Member Group acquires aggregate
Percentage Interests sufficient to permit such Affiliated Member Group to
designate one or more additional Managers in accordance with the first sentence
of this Section, then a new Manager position shall be created and such
Affiliated Member Group shall be entitled to fill such the vacancy in such position
in accordance with Section 6.9.


 


(c)           A
Manager need not be a resident of the State of Delaware.  A Manager shall hold office until the Manager’s
successor shall be duly elected and shall qualify or until the earlier of such
Manager’s withdrawal, death, removal or resignation.


 


29
















 


Section 6.3             Votes
Per Manager; Quorum; Required Vote for Board Action; Meetings of the Board.


 


(a)           Each
Manager shall have one vote.  Except as
provided below, Managers comprising at least a majority of the total number of
Managers entitled to be designated in accordance with Section 6.2 shall
constitute a quorum for the transaction of business at a meeting of the
Board.  Except as otherwise expressly
provided in this Agreement, any action or event shall be deemed approved by the
Board of Managers comprising at least a majority of the total number of
Managers then entitled to be designated at the time of such approval in
accordance with Section 6.2 vote in favor of or approve such action or
event at a meeting at which a quorum is present.  Any actions by the Company in response to a
breach of or default (or alleged breach or default) under an Affiliate Contract
or other transaction with an Affiliate of a Member (such as a waiver of the
breach or default, notice of breach or event of default or notice of termination
for breach or default in accordance with the terms of the Affiliate Contract)
or enforcement or exercise of any of the Company’s rights or remedies in
respect to such breach or default (or alleged breach or default) (collectively,
“Enforcement Activities”) shall be conducted by or under the direction of the
Board, provided  that any Manager designated by a Member that is a
party to, or has an Affiliate (other than the Company) that is a party to, such
Affiliate Contract or transaction ** at any meeting
of the Board and ** of the Board; provided  further
that the foregoing proviso shall not apply to **,
which shall be **.


 


(b)           Except
as otherwise required by applicable law, the Board may hold meetings in such
place or places, within or outside of the State of Delaware, as the Board may
determine from time to time.  Business
shall be conducted at such meetings in such order as the Board shall determine
from time to time.


 


(c)           Regular
meetings of the Board shall be held at least quarterly and at such times and
places as shall be designated from time to time by the Board.  Notice of such regular meetings shall not be
required if held at the times and places as previously determined by the Board
and provided to each Manager.  Special
meetings of the Board may be called by any Manager upon at least 24 hours prior
notice, which may be given via electronic mail, and which notice must include
dial-in or other information so as to permit each Manager to participate in
such meeting by telephone conference or other electronic means.  Such notice must state the purpose of such
meeting.


 


(d)           Any
action required or permitted to be taken at any meeting of the Board may be
taken without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by a majority of the Managers then entitled to be
designated in accordance with Section 6.2; provided  that at
least one Manager designated by the NGPMR Group (if there is such a Manager)
and at least one Manager designated by the MWE Liberty Group (if there is such
a Manager) shall be required to sign such consent or approval, solely for
purposes of providing an acknowledgement of receipt of notice of the action to
be taken rather than approval or rejection thereof, in order for such consent
or approval to be effective in the event that at least one Manager designated
by the NGPMR Group (if there is such a Manager) or at least one Manager
designated by the MWE Liberty Group (if there is such a Manager), as
applicable, did not receive prior written notice of the action to be so taken.


 


(e)           Members
of the Board may participate in any meeting by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other and participation in such a meeting such
constitute presence in person at such meeting, except as provided in clause
(f).


 


(f)            Attendance
of a Manager at any meeting of the Board (including by telephone) shall
constitute a waiver of notice of such meeting, except where such Manager
attends the meeting for 


 


30

















 


the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened and
notifies the other Managers at such meeting of such purpose.


 


Section 6.4             Power
to Bind Company.


 


Unless authorized to do so
by this Agreement or by the Board, no Member of the Company shall have any
power or authority to bind the Company in any way, to pledge the Company’s
credit or to render it liable pecuniarily for any purpose.  However, a Person may act by a duly
authorized attorney-in-fact executed in writing by the Board.


 


Section 6.5             Liability
for Certain Acts.


 


No Manager or officer of the
Company (solely in such individual’s capacity as a Manager or officer of the
Company), nor any of their Affiliates or their respective successors or
assigns, shall be liable to the Company or to any Member for any claims,
losses, expenses, costs, obligations, liabilities, actions, suits, proceedings,
judgments, or settlements (including attorneys’ fees) (whether civil, criminal,
administrative or investigative) (collectively, “Claims”) arising or resulting
from or relating to the performance of any of such Manager’s or officer’s
obligations or duties under this Agreement in its capacity as Manager or
officer, or otherwise attributable to any breach of duty owed by such Manager
or officer (by virtue of being a Manager or officer) to the Company or the
Members, except to the extent such Claims or breach of duty is based upon such
person’s fraud, bad faith or willful misconduct as established by a
non-appealable court order, judgment, decree or decision by a court of
competent jurisdiction.  Without limiting
the generality of the foregoing, the doing of any act or the failure to do any
act by any Manager or officer, which shall not constitute fraud, bad faith or
willful misconduct (as established by a non-appealable court order, judgment,
decree or decision by a court of competent jurisdiction), the effect of which
may cause or result in loss or damage to the Company, shall not subject any
Manager or officer to any liability. 
Each Manager and officer shall be fully protected in relying in good
faith upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any Person as to matters such
Manager or officer reasonably believes are within such other Person’s
professional or expert competence, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which distributions to Members might properly be paid.  The Managers do not, in any way, guarantee
the return of the Members’ Capital Contributions or a profit for the Members
from the operations of the Company.  No
Manager shall be responsible to any Members because of a loss of their
investments or a loss in operations, unless the loss shall have been the result
of fraud, bad faith or willful misconduct established as set forth in this Section 6.5.


 


Section 6.6             Manager
Has No Exclusive Duty to Company.


 


A Manager shall not be
required to manage the Company as the Manager’s sole and exclusive occupation,
and a Manager may have other business interests and may engage in other
investments, occupations and activities in addition to those relating to the
Company.  Neither the Company nor any
Member shall have any right, by virtue of this Agreement, to share or
participate in such other investments or activities of a Manager or to the
income or proceeds derived therefrom.


 


Section 6.7             Resignation
and Withdrawal.


 


A Manager of the Company may
resign from the position of Manager at any time by giving written notice to the
Members of the Company.  The resignation
of a Manager shall take effect upon receipt of notice thereof or at such later
time as shall be specified in such notice; and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.  Upon the 


 


31

















 


withdrawal
of a Manager, such Manager shall be treated as having resigned as of the date
of withdrawal and shall automatically cease to be a Manager as of the date of
such withdrawal.  Except in the case of
resignation by reason of withdrawal, the resignation of a Manager who is also a
Member pursuant to this Section 6.7 shall not affect such Manager’s rights
as a Member and shall not constitute a withdrawal of such Member.


 


Section 6.8             Removal.


 


Subject to Section 6.2(b),
a Manager may only be removed by the consent of the Member or Members then
entitled to designate such Manager in accordance with Section 6.2.  The removal of a Manager who is also a Member
shall not affect such Manager’s rights as a Member and shall not constitute a
withdrawal of such Member.


 


Section 6.9             Vacancies.


 


Any vacancy in the position
of a Manager that is created by the withdrawal, death, resignation or removal
of a Manager or by the creation of a new Manager position pursuant to Section 6.2(b) shall
be filled only by consent of the Member or Members then entitled to designate
such Manager in accordance with Section 6.2.  A Manager elected to fill a vacancy shall
hold office until a successor shall be elected and shall qualify, or until the
Manager’s earlier death, resignation, withdrawal or removal.


 


Section 6.10           Delegation
of Authority; Officers.


 


The Board shall have the
power to elect, delegate authority to, and remove such officers, employees,
agents and representatives of the Company as the Board may from time to time
deem appropriate.  Any delegation of
authority to take any action must be approved in the same manner as would be
required for the Board to approve such action directly.  The salaries of all officers, employees and
agents of the Company shall be fixed by the Board in accordance with the
Approved Budget.


 


Section 6.11           Designation
of Operator.


 


(a)           The
Company hereby designates MWE Liberty as the initial “Operator” of the Company.
 Subject to any required Board or Member
approvals rights set forth in this Agreement, MWE Liberty shall be responsible
for, shall make all decisions regarding and shall have full power and authority
to manage the day-to-day operations of the Company’s business, including, the
development, construction and operation of the Company’s facilities and
business development activities and the oversight of G&A Services and
Personnel Services provided to the Company by MWE Hydrocarbon pursuant to the
Services Agreement, which includes the day-to-day management and supervision of
all Designated MWE Employees.  The
appointment of MWE Liberty as the Operator shall be exclusive to MWE Liberty,
except to the extent that MWE Liberty elects to cause such duties to be provided
by third parties (and, in any case MWE Hydrocarbon and MWE Liberty remain fully
responsible for compliance with the Services Agreement).  MWE Liberty shall have the power and
authority to execute contracts, and to take such other actions, on behalf of the
Company as may be necessary or appropriate to carry out the Company’s business
in accordance with the Approved Budget.


 


(b)           For
the avoidance of doubt, the power and authority granted to MWE Liberty as the
Operator pursuant to Section 6.11(a) shall specifically include the
ability to perform (or cause to be performed) the following services and
activities (subject to compliance with any Board or Member approval rights with
respect to such services and activities required pursuant to this Agreement):


 


32

















 


(i)            investigation, analysis and selection of acquisition and
business development opportunities;


 


(ii)           with respect to prospective acquisitions or dispositions by
the Company, conducting negotiations with sellers and purchasers and their
respective agents, representatives and advisors (including, without limitation,
investment bankers);


 


(iii)          administering the day-to-day operations of the Company and
performing and supervising the performance of such other administrative
functions necessary in the management of the Company as may be agreed upon by
MWE Liberty as Operator and the Board, including the collection of revenues and
the payment of the Company’s debts and obligations and maintenance of
appropriate computer services to perform such administrative functions;


 


(iv)          monitoring the operating performance of the Company’s assets
and providing periodic reports with respect thereto to the Board, including
comparative information with respect to such operating and performance and
budgeted or projected operating results;


 


(v)           assisting the Company to retain qualified accountants and
legal counsel, as applicable, to assist in developing appropriate accounting
procedures and compliance procedures;


 


(vi)          causing the Company to qualify to do business in all
applicable jurisdictions and to obtain and maintain all appropriate licenses;


 


(vii)         negotiating, executing, amending and terminating the Company’s
agreements with unaffiliated third parties, managing and administering the
Company’s rights and obligations under all agreements with unaffiliated third
parties to which the Company is a party or by which the Company is bound and
monitoring compliance by the Company and by such unaffiliated third parties to
such agreements with the terms and conditions thereof;


 


(viii)        taking all necessary actions to enable the Company to make
required tax filings and reports;


 


(ix)           handling and resolving all claims, disputes or controversies
(including, without limitation, all litigation, arbitration, settlement or
other proceedings or negotiations) with unaffiliated third parties in which the
Company may be involved or to which the Company may be subject arising out of
the Company’s day-to-day operations, subject to such limitations or parameters
as may be imposed from time to time by the Board;


 


(x)            purchasing, selling, leasing, operating and maintaining the
Company’s assets;


 


(xi)           establishing and maintaining the Company’s bank accounts and
banking arrangements, and to the extent of funds available, reinvesting Company
funds as MWE Liberty as Operator may deem appropriate and consistent with MWE
Liberty’s practices;


 


(xii)          performing such other services as may be required from time
to time for management and other activities relating to the assets of the
Company as the Board shall reasonably request or MWE Liberty shall deem
appropriate under the particular circumstances; and


 


33

















 


(xiii)         using commercially reasonable efforts to cause the Company to
comply with all applicable laws.


 


The Operator shall operate the Company and perform the
services and activities referred to in clauses (i) through (xiii) above in
accordance with Prudent Industry Practices.


 


(c)           As
of the date hereof, the Operator and the Company shall execute the Services
Agreement with MWE Hydrocarbon, which is hereby approved by the Members.  MWE Hydrocarbon shall receive the fees and
reimbursement for its services as set forth in the Services Agreement.  The Company and the Members hereby
acknowledge and agree that the liability of Operator and MWE Hydrocarbon to the
Company and the Members, and the Operator’s obligation to satisfy any claim for
indemnification in connection with any such liability, shall be limited in the
manner and to the extent set forth in the Services Agreement, and the Members
hereby consent to, approve, and agree to be bound by the terms thereof with
regard to such limitations of the liability of the Operator and MWE Hydrocarbon
to the Company and the Members, in the same manner and to the same extent as
though such provisions were set forth herein. 
The Operator shall serve as the Operator until the termination of the
Services Agreement.  Upon the termination
of the Services Agreement, the Board with the Requisite Member Approval may
cause the Company to designate a new operator and enter into a new services
agreement.


 


(d)           MWE
Liberty hereby agrees to notify NGPMR of any notice of default or other
material notices received by MWE Liberty in connection with the agreements
listed on Exhibit H.


 


Section 6.12           Approval
of Members.


 


The following matters shall
require Requisite Member Approval (provided that an explicit approval of such
matter in the Approved Budget or related Member resolution shall constitute a
Requisite Member Approval if such approval is explicitly identified as a
Requisite Member Approval):


 


(a)           Prior
to the Equalization Date to the extent not in accordance with Section 8.1,
any distributions of Available Cash (including Tax Distributions);


 


(b)           The
approval of the Proposed Budgets for the Company, other than (i) the
Initial Budget, which shall be deemed approved upon the execution of this
Agreement and (ii) budget items associated with capital expenditures
relating to the agreements set forth on Exhibit G; provided  that
the Company may not without the Requisite Member Approval (i) enter into
any additional **, (ii) enter into any
agreements or transactions referred to in ** or **, or (iii) extend the term of any of the agreements
set forth on Exhibit G.  In
connection with any such approval, the Members having the authority to approve
the Proposed Budget shall give the notice required by Section 6.15(d) below;


 


(c)           Material
deviations from Approved Budgets, including (i) with respect to any Approved
Budget, any modification or amendment of any **
or other ** contained therein, the
satisfaction of which results in the ** pursuant
to such budget, (ii) with respect to the capital expenditure budget,
changes of more than ** to the **, but excluding any items prior to the Equalization Date
requiring aggregate capital expenditures of less than $**
associated with a Project **, and
excluding any items after the Equalization Date requiring aggregate capital
expenditures of less than $** associated
with a Project ** and (iii) with respect to
the operating expenditure budget, increases of more than $**
to the ** or increases of more than $** to the ** calculated
on a **; provided  that, in any
case, a Project, operation, venture, agreement or activity that has received
Requisite Member Approval shall automatically be incorporated within the
Approved Budget and any changes or deviations required to incorporate such
Project, operation, venture, agreement or activity into the then current
Approved Budget shall not require additional Requisite Member Approval; provided
further that any additional changes or 


 


34

















 


deviations associated with such Project, operation, venture,
agreement or activity shall be subject to Requisite Member Approval to the
extent they involve material deviations to the Approved Budget, as modified to
include such new Project, operation, venture, agreement or activity, under this
clause (c); provided, further, that changes in budget items listed in Section 6.15(a)(iii) through
(vi) shall not be considered material deviations for purposes of this Section 6.12(c);


 


(d)           Any
material change in the Primary Business or in the Company’s purpose;


 


(e)           The
incurrence of Debt and the granting of Liens on the Company’s Property in an
aggregate amount in excess of (A) $** prior to the
Equalization Date and (B) $** after the
Equalization Date, in each case excluding the Permitted Liens;


 


(f)            Any
interest rate protection agreement, foreign currency exchange agreement,
commodity price protection agreement, or other interest, currency or commodity
hedging arrangement entered into by the Company, including any forward sales,
calls, puts, swaps and other derivative transactions, whether financially or
physically settled; provided  that transactions to be settled (i) within
** based on **
or (ii)  ** based on the **, shall not require Requisite Member Approval;


 


(g)           The
acquisition or sale of any assets of the Company or its subsidiaries for
consideration in excess of (i) $** prior to the
Equalization Date and (ii) $** after the
Equalization Date;


 


(h)           Entry
into, termination or renewal of, or material modification or amendment of, (i) any
commercial contractual commitment reasonably expected to (A) result in
expenditures or liabilities in excess of $**, which $** threshold shall be subject to increase by ** per year, (B) generate annual revenues in excess of
$**, which $**
threshold shall be subject to increase by ** per year, or
(C) result in the commitment of more than **
of the capacity of any Company facility **, (ii) any
joint venture, partnership or other similar arrangement involving the sharing
of profits of the Company or any of its subsidiaries with any third-party, (iii) any
contractual commitment that limits the freedom of the Company or any of its
subsidiaries to compete within the Area of Mutual Interest, (iv) any
contract for the lease of real property for **
and (v) settlement agreements or other agreements related to or proposing
to resolve actual or threatened litigation, which involves (A) payment of
greater than $** or (B) provides for
restrictions or limitations on the Company’s ability to operate in the form of
an equitable remedy;


 


(i)            The
formation of any subsidiary of the Company;


 


(j)            Transactions
or agreements (including amendments, terminations and renewals thereof) between
the Company on the one hand, and a Member or an Affiliate of a Member on the
other hand, unless such transaction or agreements (including amendments,
terminations and renewals thereof) (i) has been approved by the other
Members that are not a party to, or Affiliates of a Party to, such transaction
or agreement and whose consent is required pursuant to this Section or (ii) is
identified on Exhibit H, all of which are hereby approved by the
Members;


 


(k)           The sale, exchange
or other disposition of all, or substantially all, of the Company’s assets in
one transaction or a series of related transactions,


 


(l)            Any
merger into or with or consolidation with any other entity (i) in which
the interests in the Company will be exchanged for a security with different
rights, preferences or privileges or (ii) pursuant to which the Members
will own less than 50% of the voting securities of the surviving entity;


 


35

















 


(m)          Any
repurchase by the Company of Interests in the Company or any equity interests
in any of its subsidiaries;


 


(n)           Prior
to the Equalization Date, other than in accordance with the obligations of the
Members pursuant to Section 4.1, any efforts by the Company to raise
additional capital, including the issuance of additional Interests or options
to acquire Interests or any equity interests or options to acquire equity
interests in any of the Company’s subsidiaries;


 


(o)           The
registration of any equity or debt securities of the Company or its
subsidiaries under applicable United States federal or foreign securities laws
or any public offering of equity or debt securities of the Company or its
subsidiaries (including any Qualified Public Offering).


 


(p)           Any
declaration of bankruptcy, or the filing of a petition, or seeking protection,
under any federal or state bankruptcy, insolvency or reorganization law;


 


(q)           The
dissolution of the Company or the voluntary liquidation of the Company’s assets;


 


(r)            Designating
a new Operator of the Company;


 


(s)           Approval
of the maintenance of reserves less than the **
as authorized in the Approved Budget or more than the **
in the Approved Budget;


 


(t)            Permit
the Company to create any Debt in favor of any Person;


 


(u)           Distributions
in-kind of any assets of the Company pursuant to Section 13.7;


 


(v)           Hiring
any employees of the Company or accepting secondments of employees;


 


(w)          After
the ** in **
becomes operational, and thereafter to the extent there is available **, elections by the Company to **
to MWE Hydrocarbon under the Fractionation and NGL Purchase Agreement;


 


(x)            Any
action by the Company that would cause it to be **
under the **; and


 


(y)           The
entry into any agreement to effect any of the foregoing.


 


Section 6.13           Reliance
by Third Parties.  Any Person dealing with the Company, a
Manager or the Operator may rely upon a certificate signed by a Manager or an
appropriate officer as to:


 


(a)           the
identity of the Managers;


 


(b)           the
existence or non-existence of any fact or facts which constitute a condition
precedent to acts by the Board or in any other manner germane to the affairs of
the Company;


 


(c)           the
Persons who are authorized to execute and deliver any instrument or document of
or on behalf of the Company; and


 


(d)           any
act or failure to act by the Company or as to any other matter whatsoever
involving the Company or any Member.


 


36

















 


Section 6.14           Fees
and Expenses of the Managers.


 


A Class A Manager shall
receive an annual amount of $** for serving
as a Manager.  A Class B Manager
shall not be entitled to any fees for serving as a Manager.  A Manager shall be entitled to reimbursement
for all reasonable out-of-pocket costs and expenses incurred by such Manager in
the capacity as a Manager.


 


Section 6.15           Budgets.


 


By **
of each calendar year following the Effective Time, the Operator shall prepare
and submit the following budgets and forecasts for the upcoming year (to the
extent such budgets or forecasts are applicable to such upcoming year) to the
Board for approval and to the appropriate Members for Requisite Member Approval
in accordance with Section 6.12:


 


(a)           (i) an
operating expenditure oversight budget, which shall consist of the operating
expenditure budget broken down by general categories of expenses for categories
exceeding an aggregate **; (ii) a
capital expenditure budget which shall include, to the extent applicable,
maintenance capital expenditures and growth capital expenditures; (iii) a
cost of goods sold budget or forecast; (iv) a volume budget or forecast; (v) a
revenue budget or forecast; and (vi) a forecast of distributions or
capital contributions (collectively, the “Proposed Budget”).


 


(b)           The
Board and the Members with Requisite Member Approval Rights shall have 15 days
to review and to either approve or to reject the Proposed Budget, in whole or
in part.  Any rejection of the Proposed
Budget in whole or in part must be made in good faith, based on commercially
reasonable standards and submitted in writing to the Board, the other Members
with Requisite Member Approval rights and the Operator and must describe
proposed modifications in reasonable detail (a “Budget Rejection Notice”).  If a Budget Rejection Notice is not received
within the requisite 15 day period, then the Proposed Budget will be deemed to
be approved in all respects.  If a Budget
Rejection Notice is received within the requisite 15 day period, the Operator,
the Board and the Members with Requisite Member Approval rights to approve the
Proposed Budget will work together in good faith to promptly resolve the issues
identified in a mutually agreeable manner and, if such dispute is not resolved
prior to the commencement of the calendar year to which the Proposed Budget
relates, the Approved Budget for the prior calendar year, increased by the
percentage increase in the CP Index since the first day of the previous
calendar year, shall be in effect until such dispute is resolved.  If such dispute is not resolved by January 30th of the calendar year
to which the Proposed Budget relates, such dispute shall be submitted to
arbitration pursuant to Section 6.15(e) below.  The Proposed Budget as approved, or as deemed
approved, by the Board and Requisite Member Approval in accordance with Section 6.12,
and as modified in accordance with Section 6.15(c) below, is referred
to herein as an “Approved Budget.”


 


(c)           Subject
to the remaining provisions of this clause (c), the Operator shall update the
Approved Budget from time to time to reflect amendments or modifications that
the Operator deems necessary or appropriate, and shall promptly provide such
updates to the Board; provided  that any material deviations which
require the consent of the Board or Requisite Member Approval in accordance with
Section 6.12(c) shall not become part of the Approved Budget unless
approved by the Board and Requisite Member Approval.


 


(d)           Once
a Proposed Budget or material deviations from an Approved Budget pursuant to Section 6.12(c) have
been approved by the Board and have received Requisite Member Approval pursuant
to Section 6.12, each Member that has the right to approve such Proposed
Budget (or deviations from an Approved Budget) shall at the time of the
approval, give notice to the Board of their 


 


37

















 


intent to fund any budget item to the extent that such item
would require the Board to make a Capital Call in order to fund such budget
item.


 


(e)           The
binding arbitration shall be administered by the American Arbitration
Association (“AAA”) in accordance with its Commercial Arbitration Rules (the
“Rules”).  The “Arbitration Panel” shall
consist of three members.  The Class A
Members and the Class B Members, acting by the vote of Members holding Class A
Interests or Class B Interests with an aggregate Class A Percentage
Interest or Class B Percentage Interest, respectively, equal to or
exceeding 50% shall appoint one member of the Arbitration Panel.  The third member of the Arbitration Panel
shall be chosen by the appointed members and shall act as chairman of the
Arbitration Panel.  Should any arbitrator
fail to be appointed in accordance with the foregoing, then such arbitrator
shall be appointed by the AAA in accordance with the Rules.  The arbitration shall be held in Houston,
Texas, and the proceeding shall be conducted and concluded as soon as
reasonably practicable, based upon the schedule established by the Arbitration
Panel, but in any event the decision of the Arbitration Panel shall be rendered
within 90 days following the selection of the chairman of the Arbitration
Panel.  The decision of the Arbitration
Panel shall be final and binding upon the Company and the Members.  Judgment upon the award rendered by the
Arbitration Panel may be entered in, and enforced by, any court of competent
jurisdiction.  Each class of Members
shall bear its own expenses related to the arbitration, including its attorneys’
fees and the fees and expenses of the arbitrator it appointed.  Each class of Members shall pay 50% of the fees
and expenses of the chairman of the Arbitration Panel.


 


ARTICLE 7

ASSIGNABILITY OF MEMBER INTERESTS


 


Section 7.1             Prohibition
on Assignment During Project Period.


 


Prior to ** (the “Project Period”), no Member may, directly or
indirectly, Transfer its Interest or any portion thereof without the prior
written consent of the other Members except for Permitted Transfers.  For purposes of this Agreement, “Permitted
Transfers” shall include the following:  (a) a
Member may Transfer all or a portion of its Interest to any of its Affiliates, (b) Interests
held by any member of the MWE Liberty Group may be (i) Transferred, in
whole or in part, in connection with any sale of all or substantially all of
the assets of MWE, or (ii) indirectly Transferred by way of a sale of
Control of MWE, or any merger of MWE with or into, or any consolidation of MWE
into, any other entity and (c) Interests held by NGPMR may be transferred
to the limited partners of NGPMR, if and to the extent required by the
governance documents of NGPMR.  In the
event of a Transfer pursuant to the foregoing clause (c), the NGPMR Group shall
designate a single representative to exercise all of the NGPMR Group’s rights
hereunder.  If a Member Transfers an
Interest during the Project Period in accordance with this Section 7.1,
such Transfer shall entitle the assignee to become a Substitute Member and to
exercise or receive the rights, powers or benefits of a Member if the assigning
Member designates, in a written instrument delivered to the Board and the other
Members, its assignee to become a Substitute Member and such assignee executes
an instrument reasonably satisfactory to the Board, which shall include an
acceptance and agreement by the Substitute Member to abide by all of the terms
and conditions of this Agreement.  A
Member may not Transfer Interests in a Permitted Transfer if such Permitted
Transfer has as a purpose the avoidance of the restrictions on Transfers in
this Agreement (it being understood that the purpose of this sentence is to
prohibit the Transfer of Interests to a transferee in a Permitted Transfer
followed by a change in the relationship between the transferor and the
transferee (or a change of Control of such transferor or transferee) after the
Permitted Transfer with the result and effect that the transferor has
indirectly Transferred Interests to a transferee in a Transfer which would not
have been directly permitted as a Permitted Transfer under this Section 7.1
had such change in such relationship occurred prior to such Transfer).


 


38
















 


Section 7.2             Transfers After the Project
Period.


 


After the Project Period, a
Member may Transfer its Interest, or any portion thereof, without the consent
of any other Member or the Board, provided  that such Member
complies with the requirements of this Section 7.2 in all instances except
in connection with Permitted Transfers:


 


(a)           In
the event that a Member (the “Transferring Member”) desires to Transfer,
directly or indirectly, all or any portion of its Interest (the “ROFO Interest”)
and such Transfer is not a Permitted Transfer, then the Transferring Member
shall give written notice thereof to the other Members (the “Remaining Members”).  For a period of 30 days thereafter, all or a
portion of the Remaining Members shall have the right, but not the obligation,
to submit a written offer to purchase the ROFO Interest (with each offering
Remaining Member to purchase its pro rata portion of the ROFO Interest as is
determined in accordance with the respective Percentage Interests of the
Remaining Members, or such other portion as the Remaining Members may mutually
agree upon) (the “ROFO Offer”), on such terms and conditions as the offering
Remaining Members may determine and which terms and conditions shall be
described in the ROFO Offer.  Upon
receipt of the ROFO Offer, the Transferring Member may elect in its sole
discretion to accept or reject the ROFO Offer.


 


(i)            In the event that the Transferring
Member elects to accept the ROFO Offer, then the Transferring Member shall be
bound to Transfer to the offering Remaining Members, and the offering Remaining
Members shall be bound to purchase from the Transferring Member, the ROFO
Interest on the terms and conditions set forth in the ROFO Offer (with such
modifications as may be mutually agreed upon by the offering Remaining Members
and the Transferring Member), and the closing of such Transfer of the ROFO
Interest shall occur within 30 days of the Transferring Member’s acceptance of
the ROFO Offer or on such other date as may be set forth in the ROFO Offer
(subject to extension to the extent necessary to pursue any required regulatory
approvals, including to allow for the expiration or termination of all waiting
periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976).


 


(ii)           In the event that the Transferring
Member rejects the ROFO Offer, then for a 60-day period after the date on which
the Transferring Member rejects the ROFO Offer (the “Solicitation Period”), the
Transferring Member may solicit an offer to purchase the ROFO Interest from one
or more third parties as the Transferring Member may determine in its
discretion.  If the Transferring Member
receives a third party offer (a “Third Party Offer”) to purchase the ROFO
Interest within the Solicitation Period, and the consideration payable for the
ROFO Interest pursuant to such Third Party Offer exceeds the consideration
payable for the ROFO Interest pursuant the ROFO Offer (such Third Party Offer
is referred to as a “Qualifying Third Party Offer”), the Transferring Member
may elect to Transfer the ROFO Interest to such third party in accordance with
the Qualifying Third Party Offer within 30  days
after the end of the Solicitation Period, subject to the Transferring Member’s
compliance with the provisions of Section 7.2(b).  Any noncash consideration set forth in the
ROFO Offer or a Third Party Offer shall be valued at its fair market value, as
agreed by the Transferring Member and the offering Remaining Members, and
failing such agreement, as determined by an independent third party appraiser
selected by the Transferring Member and reasonably acceptable to the offering
Remaining Members (the costs for which third party appraiser shall be shared
equally by the Transferring Member, on the one hand, and the offering Remaining
Members, on the other hand).  The
Transferring Member may not Transfer the ROFO Interest to any third party
pursuant to a Third Party Offer that is not a Qualifying Third Party Offer
without the offering Remaining Members’ prior written consent, which may be
withheld in their sole discretion.  Such
transferee shall become a Substitute Member if the Transferring Member
designates, in a written instrument delivered to the Board and the other
Members, the transferee to become a Substitute Member and 


 


39

















 


such transferee executes an instrument reasonably
satisfactory to the Board, which shall include an acceptance and agreement by
the Substitute Member to abide by all of the terms and conditions of this
Agreement.  If
such closing does not occur within the required  30-day
period, then the ROFO Interest in question shall once again become subject to
the restrictions of this Section 7.2, and the Transferring Member shall no
longer be permitted to Transfer such ROFO Interest without again fully
complying with the provisions of this Section 7.2


 


(b)           Except
for any Transfer to another Member and except for Permitted Transfers, each Class B
Member hereby agrees, whether in one transaction or in a series of related
transactions, not to Transfer for value, all or any portion of its Interest,
directly or indirectly, without first complying with Section 7.2(a) and
then permitting each of the Remaining Members (the “Tag-Along Members”) to participate as sellers in such
transaction (the “Tag-Along Rights”),
such that each Tag-Along Member shall be entitled to sell, on the same terms as
the Class B Member proposing to sell its Interest (the “Class B
Seller”), a portion of such Tag-Along Member’s Interest, determined by
multiplying the Interest that the purchaser is willing to acquire by the
Percentage Interest of each such Tag-Along Member desiring to participate.


 


(i)            Before accomplishing or entering
into a binding contract for any Transfer for value of any Interest that would
be covered by the Tag-Along Rights, the Class B Seller agrees to give each
Tag-Along Member written notice (the “Tag-Along Notice”) of any such proposed
sale (the “Sale Proposal”).  The
Tag-Along Notice shall state that such Tag-Along Member shall be entitled to
exercise its Tag-Along Rights.  Each
Tag-Along Member shall notify the Class B Seller in writing within 10 days
after receipt of the Tag-Along Notice as to whether or not such Tag-Along
Member wishes to exercise Tag-Along Rights and participate in the proposed
Transfer (the “Tag-Along Notice Period”). 
Failure by any Tag-Along Member to respond within such period shall be
deemed to be a declination of such Tag-Along Member’s Tag-Along Rights with
respect to such proposed transfer.  The Class B
Seller shall use its commercially reasonable efforts to obtain the agreement of
the prospective transferee(s) to the participation of the Tag-Along
Members in any contemplated Sale Proposal and to the inclusion of the Tag-Along
Members’ Interests in such transaction, and no Class B Seller shall
transfer any portion of the Interest to any prospective transferee if such
prospective transferee(s) declines to allow the participation of the
Tag-Along Members or the inclusion of their Interests as contemplated
herein.  Each Tag-Along Member that
elects to participate pursuant to this paragraph shall pay its pro rata share
(based on the Interests to be Transferred) of the expenses incurred by the Class B
Seller in connection with such Sale Proposal and shall be obligated to join on
a pro rata basis (based on the Interests to be Transferred) in any
indemnification or other obligations that Class B Seller agrees to provide
in connection with such Sale Proposal (other than any such obligations that
relate specifically to a particular Member such as indemnification with respect
to representations and warranties given by a Member regarding such Member’s
title to and ownership of its Interest); provided  that no
Tag-Along Member shall be obligated in connection with such Sale Proposal to
agree to indemnify or hold harmless the transferee with respect to an amount in
excess of the net cash proceeds paid to such Tag-Along Member in connection
with such Sale Proposal.  If the
Tag-Along Members decline, or are deemed to decline, their Tag-Along Rights for
any proposed transfer, the Class B Seller may sell its offered Interest; provided,
however, that (i) such Sale Proposal is consummated within 90 days
after the end of the Tag-Along Notice Period and (ii) the terms of the
actual transaction involve exactly the same consideration and other terms and
conditions set forth in the Tag-Along Notice. 
Any transferee pursuant to the Sale Proposal shall become a
Substitute Member if the Class B Seller designates, in a written
instrument delivered to the Board and the other Members, the transferee to
become a Substitute Member and such transferee executes an instrument
reasonably satisfactory to the Board, which shall include an acceptance and
agreement by the Substitute Member to abide by all of the terms and conditions
of 


 


40

















 


this Agreement.  Failure to close the Sale Proposal within the required 90-day
period shall again subject the offered Interest to the Tag-Along Rights set
forth in this Section 7.2(b), whereupon the Class B Seller shall be
required to give each Tag-Along Member a new written notice with respect to the
proposed transfer, and each Tag-Along Member shall again have the right to
exercise Tag-Along Rights in respect of such proposed transfer.


 


(ii)           If a Class B Seller wishes to
solicit Sale Proposals from third parties involving a Company Sale, it shall
first notify the other Members of its desire to solicit a Company Sale (“Solicitation
Notice”).  The other Members shall notify
the Class B Seller in writing within 10 days after receipt of the
Solicitation Notice as to whether or not such Members wish to participate in a
Company Sale and shall specify a minimum price (“Minimum Price”) at which such
Members are willing to sell their Interest thereunder (“Solicitation Response”).  If the Class B Seller obtains
Solicitation Responses from all of the Members indicating each Member’s desire
to enter into a Company Sale and a Minimum Price with respect to each Member,
then the Class B Seller may solicit offers for a Company Sale.  If the Class B Seller obtains an offer
within 90 days of its receipt of the Solicitation Responses for a Company Sale
in excess of each of the Minimum Prices set forth in the Solicitation
Responses, it may cause a Company Sale **.  If the Class B Seller does not obtain an
offer for a Company Sale in excess of the minimum prices set forth in the
Solicitation Responses within 90 days of its receipt of the Solicitation
Responses, then the Class B Seller may not pursue a Company Sale.  For the avoidance of doubt, this Section 7.2(b)(ii) shall
only apply to a Company Sale to be solicited by a Class B Member.  Any sale of the Interest of a Class B
Seller that is not a Company Sale shall remain subject to the provisions of Section 7.2(b)(i) above.


 


(c)           The
consideration or value allocated to the Members under this Section 7.2
shall be allocated among the Transferring Member and other Members (whether
Tag-Along Members or otherwise) in accordance with their respective rights to
distributions from the Company as if the Company had been liquidated pursuant
to Section 13.4 and the Company had sold all of its Property for an
Appraised Value using the implied valuation of such Property that may be
derived from the sales process described in Section 7.2, provided, that,
for purposes of determining whether the ** Payout, ** has been met, only the actual cash proceeds from the sale
received by NGPMR shall be considered rather than the proceeds allocable to
NGPMR from an implied valuation based upon a sale of all of the Company’s
Property and, except for such consideration, no Member will receive any
payments of any nature whatsoever from the transferee in connection with or
arising from such sale transaction.


 


Section 7.3             Recognition of Assignment by
Company or Other Members.


 


No Transfer of an Interest
that is in violation of this Article 7 shall be valid or effective, and
neither the Company nor the Board nor any Member shall recognize the same for
any purpose of this Agreement, including the purpose of making distributions of
Available Cash pursuant to this Agreement with respect to such Interest or part
thereof.  Neither the Company nor the
Board shall incur any liability as a result of refusing to make any such
distributions to the assignee of any such invalid assignment.


 


Section 7.4             Effective Date of Assignment.


 


Any valid Transfer of a
Member’s Interest, or part thereof, pursuant to the provisions of this Article 7
shall be effective as of the later of (i) the date of Transfer set forth
on the written instrument of Transfer, (ii) the date on which the Company
has received the written instrument of Transfer and such other documents as may
be required by the Company pursuant to this Agreement and such Transfer has
been recorded on the books of the Company, and (iii) the date on which the
requirements of this Article 7 have been satisfied.  The Company shall, from the effective date of
such Transfer, thereafter pay all 


 


41

















 


further
distributions on account of the Interest (or part thereof) so assigned to the
assignee of such Interest, or part thereof. 
As between any Member and its assignee, Profits and Losses for the
Fiscal Year of the Company in which such assignment occurs shall be apportioned
for federal income tax purposes in accordance with any convention permitted
under Section 706(d) of the Code and selected by the Board.


 


Section 7.5             Limitations on Transfer.


 


No Transfer of an Interest
may be effectuated unless in the opinion of counsel satisfactory to the Board,
the Transfer (a) would comply with the Securities Act and applicable
securities laws of any other jurisdiction; (b) would not cause the Company
to be terminated for purposes of Code Section 708; or (c) would not
violate any other applicable laws, provided  that the provisions
of this Section 7.5 may be waived by the Board.


 


Section 7.6             Transferee Not a Substitute
Member.


 


In the event that a
transferee is not designated, or does not become, a Substitute Member pursuant
to this Article 7, then such transferee shall not be entitled to exercise
or receive any of the rights, powers or benefits of a Member other than the
right to receive distributions to which the assigning Member would be entitled.


 


ARTICLE 8

DISTRIBUTIONS TO MEMBERS


 


Section 8.1             Available Cash.


 


Available Cash shall be
determined by the Board on a quarterly basis within 30 days after the end of
each calendar quarter.  Subject to the
remaining provisions of this Article 8 and any preferential or
disproportionate distributions to the extent expressly provided for in this
Agreement, and other than upon a liquidation of the Company pursuant to Section 13.4,
the Company shall distribute such Available Cash within 45 days following the
end of each calendar quarter to the Members of record, as follows.


 


(a)           Following
the end of each calendar quarter prior to the earlier to occur of (i) December 31,
2010 and (ii) the Equalization Date, Available Cash shall be retained by
the Company for reinvestment, and with respect to the Class B Members such
Available Cash shall be distributed and automatically reinvested (pursuant to Section 4.1(b)(iii))
in accordance with their Class B Percentage Interests.


 


(b)           Following
the end of each calendar quarter ending on or after the earlier to occur of (i) December 31,
2010 and (ii) the Equalization Date, Available Cash shall be distributed
to the Members as follows:


 


(i)            If the Equalization Date has not yet
occurred, then:


 


(A)          First, 100% to the Class A
Members in accordance with their Class A Percentage Interests, until the
Preference Amount accruing for such calendar quarter is reduced to zero; and


 


(B)           Thereafter, to the Members in
accordance with their respective Percentage Interests.


 


42

















 


(ii)           If the Equalization Date has
occurred, then to the Members in accordance with their respective Percentage
Interests.


 


Section 8.2             Incentive Interest Percentage
Distributions.


 


Notwithstanding the
preceding provisions in Sections 8.1(a) and (b), any Available Cash
remaining after a ** Payout** has occurred shall be distributed as follows:


 


**           Following the ** Payout, if
any, (x) first calculated in accordance with their respective Percentage
Interests, then (y) adjusted by reducing NGPMR’s pro rata amount of
Available Cash as determined in (x) by the **
and (z) increasing MWE Liberty’s pro rata amount of Available Cash as
determined in (x) by the amount determined in (y) **


 


**


 


Exhibit E contains
illustrative examples of the determination of the amounts to be distributed to
NGPMR and MWE Liberty pursuant to Section** 8.2** based on hypothetical distributions of Available
Cash.  This Section 8.2 shall be
interpreted and applied in a manner consistent with the examples set forth in Exhibit E.


 


Section 8.3             Withholding.


 


All amounts withheld
pursuant to the Code or any provision of any foreign, state or local tax law or
treaty with respect to any payment, distribution or allocation to the Company
or the Members shall be treated as amounts distributed to the Members pursuant
to this Article 8 for all purposes of this Agreement.  The Board is authorized to withhold from
distributions, or with respect to allocations, to the Members and to pay over
to any federal, foreign, state or local government any amounts required to be
so withheld pursuant to the Code or any provision of any other federal,
foreign, state or local law or treaty and shall allocate such amounts to those
Members with respect to which such amounts were withheld.


 


Section 8.4             Limitations on Distribution.


 


Except as provided in this
Agreement, no Member shall be entitled to any distribution of cash or other
property from the Company. 
Notwithstanding any provision to the contrary contained in this
Agreement, the Company shall not make a distribution to any Member on account
of its Interest in the Company if such distribution would violate the Act or
other applicable law.


 


Section 8.5             Tax Distributions.


 


(a)           Each
Member shall be entitled to receive, on the date which is two Business Days
prior to each date on which estimated income tax payments are required to be
made by an individual calendar year taxpayer and each due date for the income
tax return of an individual calendar year taxpayer (each a “Tax Distribution
Date”), cumulative cash distributions in an amount equal to such Member’s
Assumed Tax Liability, if any.  The “Assumed
Tax Liability” of each Member means an amount equal to (i) the cumulative
amount of federal income taxes (including any applicable estimated taxes),
determined taking into account the character of income and loss allocated to
such Member as it affects the applicable tax rate, that the Board estimates
would be due from such Member as of such Tax Distribution Date, assuming such
Member were an individual that earned solely the items of income, gain, deduction,
loss and/or credit allocated to such Member pursuant to Section 9.4 (after
reflecting any adjustments thereto by reason of Code Sections 732(d), 734, or
743), reduced by (ii) all previous distributions made to such 


 


43

















 


Member pursuant to this Article 8 (other than
distributions distributed and reinvested pursuant to Section 8.1(a)).


 


(b)           Distributions
under this Section shall be treated as an advance distribution under and
shall offset future distributions that such Member would otherwise be entitled
to receive pursuant to Section 8.1 or, if not previously offset, Section 13.4.


 


(c)           If
on a Tax Distribution Date there are not sufficient funds on hand to distribute
to each Member the full amount of such Member’s Assumed Tax Liability,
distributions pursuant to this Section 8.5 shall be made to the Members to
the extent of the available funds in proportion to each Member’s Assumed Tax
Liability.


 


ARTICLE 9

ALLOCATIONS


 


Section 9.1             Profits and Losses.


 


(a)           After
giving effect to the special allocations set forth in Section 9.2  and 9.3 and subject to the allocations
contained in Section 13.4(b), all Profits and Losses from operations for
each Fiscal Year (or part thereof) shall be allocated to the Class A Members
and the Class B Members in accordance with their Percentage Interests; provided,
no Losses shall be allocated to any Member to the extent that such Losses would
result in a Member having an Adjusted Capital Account Deficit.


 


Section 9.2             Special Allocations.


 


Notwithstanding anything in
this Agreement to the contrary, the following special allocations shall be
made:


 


(a)           Nonrecourse
Deductions.  Nonrecourse Deductions
for any taxable year shall be allocated to the Members in accordance with their
Percentage Interests.


 


(b)           Member
Nonrecourse Deductions.  Member
Nonrecourse Deductions for any taxable year shall be allocated 100% to the
Member that bears the Economic Risk of Loss with respect to the Member
Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable
in accordance with Treasury Regulation Section 1.704-2(i).  If more than one Member bears the Economic
Risk of Loss with respect to a Member Nonrecourse Debt, Member Nonrecourse
Deductions attributable thereto shall be allocated between or among such
Members in accordance with the ratios in which they share such Economic Risk of
Loss.  This Section 9.2(b) is
intended to comply with the provisions of Treasury Regulation Section 1.704-2(i) and
shall be interpreted consistently therewith.


 


(c)           Company
Minimum Gain Chargeback. 
Notwithstanding any other provision of this Agreement, if there is a net
decrease in Minimum Gain during any taxable year, each Member shall be
allocated items of Company income and gain for such year (and, if necessary,
subsequent taxable years) in the manner and amounts provided in Treasury
Regulation Sections 1.704-2(f)(6), (g)(2) and (j)(2)(i).  For purposes of this Section 9.2, each
Member’s Capital Account shall be determined, and the allocation of income or
gain required hereunder shall be effected, prior to the application of any
other allocations pursuant to this Article 9 with respect to such taxable
year.  This Section 9.2(c) is
intended to comply with the partner minimum gain chargeback requirement in
Treasury Regulation Section 1.704-2(f) and shall be interpreted
consistently therewith.


 


44

















 


(d)           Member
Nonrecourse Debt Minimum Gain Chargeback. 
Notwithstanding the other provisions of this Agreement (other than Section 9.2(c) above),
if there is a net decrease in Member Nonrecourse Debt Minimum Gain during any
taxable year, any Member with a share of Member Nonrecourse Debt Minimum Gain
at the beginning of such taxable year shall be allocated items of Company
income and gain for such year (and, if necessary, subsequent taxable years) in
the manner and amounts provided in Treasury Regulation Section 1.704-2(i)(4) and
(j)(2)(ii).  For purposes of this Section 9.2,
each Member’s Adjusted Capital Account balance shall be determined, and the
allocation of income and gain required hereunder shall be effected, prior to
the application of any other allocations pursuant to this Article 9, other
than Section 9.2(c) above, with respect to such taxable year.  This Section 9.2(d) is intended to
comply with the partner nonrecourse debt minimum gain chargeback requirement in
Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted
consistently therewith.


 


(e)           Qualified
Income Offset.  Except as provided in
Sections 9.2(c) and 9.2(d) above, in the event any Member
unexpectedly receives an adjustment, allocation or distribution described in
Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of
Company income and gain shall be allocated to such Member in an amount and
manner sufficient to eliminate, to the extent required by such Treasury
Regulation, the deficit balance, if any, in its Adjusted Capital Account
created by such adjustment, allocation or distribution as quickly as possible
unless such deficit balance is otherwise eliminated pursuant to Sections
9.2(c), 9.2(d) or 9.2(f).  This Section 9.2(e) is
intended to constitute a qualified income offset described in Treasury
Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted
consistently therewith.


 


(f)            Priority
Allocation.


 


(i)            Items of Company gross income and
gain shall be allocated to the Class A Members in accordance with their Class A
Percentage Interests, until the aggregate amounts of such items allocated to
the Class A Members for such Fiscal Year equals the amount distributed to
the Class A Members pursuant to Section 8.1(b)(i)(A) for all
Fiscal Years that have not been previously reflected by an allocation pursuant
to this Section 9.2(f).


 


(ii)           After giving effect to all preceding
allocations in Section 9.2(f)(i), all or a portion of the remaining items
of Company income or gain for the Fiscal Year, if any, shall be allocated to
MWE Liberty in an amount equal to the cumulative cash distributed to MWE
Liberty pursuant to Sections 8.2(a), 8.2(b) or 8.2(c) (to the extent
of such distributions in excess of MWE Liberty’s Percentage Interest), less the
cumulative amount of income and gain previously allocated to MWE Liberty
pursuant to this Section 9.2(f)(ii).


 


(g)           Gross
Income Allocation.  In the event any
Member has a deficit balance in its Adjusted Capital Account at the end of any
taxable year, such Member shall be allocated items of Company gross income and
gain in the amount of such excess as quickly as possible; provided, however, that an allocation pursuant to this Section 9.2(g) shall
be made only if and to the extent that such Member would have a deficit balance
in its Adjusted Capital Account after all other allocations provided in this Section 9.2
(other than Section 9.2(e)) have been tentatively made as if Section 9.2(e) and
this Section 9.2(g) were not in this Agreement.


 


Section 9.3             Curative
Allocations.


 


The allocations set forth in
Section 9.2 (other than Section 9.2(f)) (the “Regulatory Allocations”)
are intended to comply with certain requirements of the Treasury
Regulations.  It is the intent of the
Members that, to the extent possible, all Regulatory Allocations shall be
offset either with other Regulatory Allocations or with special allocations of
other items of Company income, gain, loss or 


 


45

















 


deduction
pursuant to this Section 9.3. 
Therefore, notwithstanding any other provision of this Article 9
(other than the Regulatory Allocations), but subject to the Code and the
Treasury Regulations, the Board shall make such offsetting special allocations
of Company income, gain, loss or deduction in whatever manner it determines
appropriate so that, after such offsetting allocations are made, each Member’s
Capital Account balance is, to the extent possible, equal to the Capital
Account balance such Member would have had if the Regulatory Allocations were
not part of this Agreement.  In
exercising its discretion under this Section 9.3, the Board shall take
into account future Regulatory Allocations that, although not yet made, are
likely to offset other Regulatory Allocations previously made.


 


Section 9.4             Income Tax Allocations.


 


(a)           Except
as provided in this Section 9.4, each item of income, gain, loss and
deduction of the Company for federal income tax purposes shall be allocated
among the Members in the same manner as such items are allocated for book
purposes under Sections 9.1, 9.2, 9.3 and 13.4(b).


 


(b)           In
accordance with Code Section 704(c) and the applicable Treasury Regulations
thereunder, income, gain, loss and deduction with respect to any property
contributed to the Company shall, solely for tax purposes, be allocated among
the Members so as to take account of any variation between the adjusted basis
of such property to the Company for federal income tax purposes and its Gross
Asset Value at the time of its contribution to the Company.  If the Gross Asset Value of any Company
property is adjusted in accordance with clause (c) or (d) of the
definition of Gross Asset Value, then subsequent allocations of income, gain,
loss and deduction shall take into account any variation between the adjusted
basis of such property for federal income tax purposes and its Gross Asset
Value as provided in Code Section 704(c) and the related Treasury
Regulations.  For purposes of such
allocations, the Company shall elect the remedial allocation method described
in Treasury Regulation Section 1.704-3(d).


 


(c)           All
items of income, gain, loss, deduction and credit allocated to the Members in
accordance with the provisions hereof and basis allocations recognized by the
Company for federal income tax purposes shall be determined without regard to
any election under Section 754 of the Code which may be made by the
Company.


 


(d)           If
any deductions for depreciation or cost recovery are recaptured as ordinary
income upon the Transfer of Company properties, the ordinary income character
of the gain from such Transfer shall be allocated among the Members in the same
ratio as the deductions giving rise to such ordinary character were allocated.


 


Section 9.5             Allocation and Other Rules.


 


(a)           In
the event Members are admitted to the Company pursuant to this Agreement on
different dates, the Profits (or Losses) allocated to the Members for each
Fiscal Year during which Members are so admitted shall be allocated among the
Members in proportion to their Percentage Interests during such Fiscal Year in
accordance with Section 706 of the Code, using any convention permitted by
law and selected by the Board that takes into account the varying interests of
the Members during such Fiscal Year.


 


(b)           For
purposes of determining the Profits, Losses or any other items allocable to any
period, Profits, Losses and any such other items shall be determined on a
daily, monthly or other basis, as determined by the Board using any method that
is permissible under Section 706 of the Code and the Treasury Regulations
thereunder.


 


46

















 


(c)           The
Members are aware of the income tax consequences of the allocations made by
this Article 9 and hereby agree to be bound by the provisions of this Article 9
in reporting their shares of Company income and loss for income tax purposes.


 


(d)           Allocations
made by the Board under Section 9.2 in reliance upon the advice of the
Company’s accountants shall be deemed to be made pursuant to any fiduciary
obligation to the Company and the Members.


 


(e)           If
any Member makes a loan to the Company, or the Company makes a loan to any
Member, and interest in excess of the amount actually payable is imputed under
Code Sections 7872, 483, or 1271 through 1288 or corresponding provisions
of subsequent federal income tax law, then any item of income or expense
attributable to any such imputed interest shall be allocated solely to the
Member who made or received the loan and shall be credited or charged to its
Capital Account, as appropriate.


 


ARTICLE 10

BOOKS AND RECORDS


 


Section 10.1           Inspection Rights Pursuant to Law.


 


The Company shall have
obligations to the Members as set forth in this Article 10 respecting
books, records and financial statements of the Company.


 


Section 10.2           Books and Records.


 


At all times during the
continuance of the Company, the Company shall maintain at its principal place
of business all records and materials the Company is required to maintain at
such location under the Act.  The Company
shall keep proper and complete books of account adequate for its purposes.  The books of account relating to the Company
shall be open to inspection and copying by any of the Members or by their
authorized representatives upon reasonable notice and at any reasonable time
during business hours, at the Member’s expense; provided, however,
that the Members acknowledge and agree that, to the extent that the books of account
include information relating to one or more Affiliates of the Operator (other
than the Company) or any Out of Scope Projects or Exempted Projects (the “Unrelated
Information”), then the Company and Operator shall be entitled either to
redact, or limit access to, the books of account such that the Members shall
not have access to Unrelated Information or to require such Member to designate
an independent third party auditor to conduct such review, which auditor will
be required to execute a confidentiality agreement with the Operator under
which such auditor may examine the Unrelated Information but may not disclose
the Unrelated Information to such Member.


 


Section 10.3           Financial Statements and Reports.


 


The Operator shall prepare,
on behalf of the Company and at the Company’s expense, and shall submit to the
Members the following statements, reports and notices:


 


(a)           Annual
financial statements of the Company, consisting of a profit and loss statement,
balance sheet and statement of cash flows, as of the end of and for the prior
Fiscal Year, which shall be prepared in accordance with generally accepted
accounting principles consistently applied (“GAAP”) and audited by the Operator’s
independent certified public accountants, which shall be a nationally recognized
accounting firm (the “Annual Financial Statements”).  The Annual Financial Statements shall be
delivered to each Member within 75 days after the end of each Fiscal Year;


 


47

















 


(b)           Unaudited
quarterly financial statements of the Company, consisting of a profit and loss
statement, balance sheet and statement of cash flows, as of the end of and for
the prior calendar quarter, which shall be prepared in accordance with GAAP
except for normal year end adjustments and the absence of footnotes (the “Quarterly
Financial Statements”).  The Quarterly
Financial Statements shall be delivered within 45 days after the end of each
calendar quarter;


 


(c)           Monthly
financial and business reports, which shall consist of a profit and loss
statement, balance sheet and statement of cash flows, as of the end of and for
the prior calendar month, which shall be prepared in accordance with GAAP
except for normal year end adjustments and the absence of footnotes (the “Monthly
Reports”).  The Monthly Reports shall be
delivered within 30 days after the end of each calendar month;


 


(d)           Copies
of the Approved Budget in effect from time to time, within 30 days after the
approval thereof in accordance with Section 6.15;


 


(e)           Such
other information as a Member may reasonably request to satisfy such Member’s
or its Affiliates’ public disclosure obligations under the Exchange Act, the rules of
any stock exchange, or any similar public disclosure obligations; provided
that public disclosure of any such information shall be subject to the
provisions of Section 5.4.


 


Section 10.4           Accounting Method.


 


For both financial and tax
reporting purposes and for purposes of determining Profits and Losses, the
books and records of the Company shall be kept on such method of accounting as
determined by the Board and shall reflect all Company transactions and be
appropriate and adequate for the Company’s business.


 


Section 10.5           Bank Accounts; Investments.


 


The Board shall establish
one or more bank accounts in the name of the Company into which all Company
funds shall be deposited.  No other funds
shall be deposited into these accounts. 
All Capital Contributions made by the Class A Members pursuant to Section 4.1(b)(i) shall
be held in a separate joint banking account (the “Escrow Account”) and invested
in treasury bills, treasury notes or any other direct obligations issued by or
guaranteed in full as to principal and interest by the United States of America
pursuant to the terms of the Escrow Agreement. 
The Escrow Agent shall release funds from the Escrow Account to the
Company on at least a monthly basis upon receipt of a joint instruction letter
(an “Escrow Letter”) from the Members and the Company; provided  that
the execution of the Escrow Letter by NGPMR is conditioned upon its receipt of
a certificate from the Company that the Company has spent or committed to spend
such funds in accordance with an Approved Budget, and will spend such funds to
which such certificate relates in accordance with an Approved Budget, and upon
receipt of such certificate, NGPMR shall promptly execute the Escrow
Letter.  The Members hereby ** all of the Company’s remedies, powers, privileges,
rights, titles and interests of every kind and character now owned or hereafter
acquired, created or arising in and to the funds held in such joint
account.  **
such funds held in the Escrow Account in the event that (i) there is an
event causing dissolution of the Company pursuant to Section 13.2 or (ii) there
is a declaration of bankruptcy of the Company, MWE or MWE Liberty, or the
filing of a petition, or seeking protection, under any federal or state
bankruptcy, insolvency or reorganization law.


 


48
















 


ARTICLE 11

TAX MATTERS


 


Section 11.1           Taxation of Company.


 


It is the intent of the
Members that the Company shall be treated as a partnership for U.S. federal
income tax purposes.  Neither the Company
nor any Member shall make an election for the Company to be excluded from the
application of the provisions of subchapter K of chapter 1 of subtitle A of the
Code or any similar provisions of applicable state law or to be classified as
other than a partnership pursuant to Treasury Regulation Section 301.7701-3.


 


Section 11.2           Tax Returns.


 


The Company shall cause the
Operator to prepare, at the expense of the Company, for each Fiscal Year (or
part thereof), federal tax returns in compliance with the provisions of the
Code and any required state and local tax returns.  Each Member shall furnish to the Company all
pertinent information in its possession relating to the Company’s operations
that is necessary to enable the Company’s tax returns to be timely prepared and
filed.  Not less than 60 days prior to
the due date (as extended) of the Company’s federal income tax return or any
state income tax return, the return proposed by the Board to be filed by the
Company shall be furnished to the Members for review.  In addition, not more than 10 days after the
date on which the Company files its federal income tax return or any state
income tax return, a copy of the return so filed shall be furnished to the
Members.


 


Section 11.3           Member Tax Return Information.


 


The Company, at its expense,
shall cause to be delivered to each Member within 60 calendar days after the
end of the Company’s taxable year an IRS Form K-1 or a good faith estimate
of the amounts to be included on such IRS Form K-1 for such Member and
such other information as shall be necessary (including a statement for that
year of each Member’s share of net income, net losses and other items allocated
to such Member) for the preparation and timely filing by the Members of their
federal, state and local income and other tax returns.


 


Section 11.4           Tax Matters Representative.


 


(a)           The
“tax matters partner” of the Company for purposes of Section 6231(a)(7) of
the Code shall be MWE Liberty, so long as MWE Liberty or one of its Affiliates
is a Member, and shall have the power to manage and control, on behalf of the
Company, any administrative proceeding at the Company level with the Internal
Revenue Service relating to the determination of any item of Company income,
gain, loss, deduction or credit for federal income tax purposes.  Any Member who is designated as the tax
matters partner shall be referred to herein as the “Tax Matters Member.”


 


(b)           The
Tax Matters Member shall keep the Members informed as to the status of any
audit of the Company’s tax affairs, and shall take such action as may be
necessary to cause any Member so requesting to become a “notice partner” within
the meaning of Section 6231(a)(8) of the Code.  Without first obtaining the approval of the
Board and Requisite Member Approval, the Tax Matters Member shall not, with
respect to Company tax matters: (i) enter into a settlement agreement with
respect to any tax matter which purports to bind Members, (ii) intervene
in any action pursuant to Code Section 6226(b)(5), (iii) enter into
an agreement extending the period of limitations for making assessments on
behalf of Members, or (iv) file a petition pursuant to Code Section 6226(a) or
6228.  If an audit of any of the Company’s
tax returns shall occur, the Tax Matters Member shall not settle or otherwise
compromise assertions of the auditing agent which may be adverse to any Member
as 


 


49

















 


compared to the position taken on the Company’s tax returns
without the prior written consent of each such affected Member.


 


(c)           No
Member shall file a request pursuant to Code Section 6227 for an
administrative adjustment of Company items for any taxable year, or a petition
under Code Sections 6226 or 6228 or other Code sections with respect to any
item involving the Company, without first notifying other Members.


 


Section 11.5           Right to Make Section 754
Election.


 


The Board, in its sole
discretion, may make or revoke, on behalf of the Company, an election in
accordance with Section 754 of the Code, so as to adjust the basis of
Company property in the case of a distribution of property within the meaning
of Section 734 of the Code, and in the case of a transfer of Interests
within the meaning of Section 743 of the Code.


 


Section 11.6           Tax Elections.


 


The Company shall have the
right to make any U.S. federal income tax elections it deems appropriate and in
the best interests of the Members.


 


Section 11.7           Tax Reimbursement.


 


If
Texas law requires the Company and any Member both to participate in the
filing of a Texas margin tax combined group report, and if such Member pays
the margin tax liability due in connection with such combined report, the
parties agree that the Company shall promptly reimburse such Member for the
margin tax paid on behalf of the Company as a combined group member.  The margin tax paid on behalf of the Company
shall be equal to the margin tax that the Company would have paid if it had
computed its margin tax liability for the report period on a separate entity
basis rather than as a member of the combined group.  In such event, the parties agree that such Member shall
be considered as paying such amount on behalf of the Company and the Company
shall deduct for federal income tax purposes 100% of the Texas margin tax
attributable to the Company; provided  that in the event that such
deduction may not be properly taken by the Company, the Company shall reimburse
such Member for the after-tax cost of such payment of Texas margin tax paid on
the Company’s behalf.


 


ARTICLE 12

LIABILITY, EXCULPATION AND INDEMNIFICATION


 


Section 12.1           Liability.


 


(a)           Except
as otherwise provided by the Act, the debts, obligations and liabilities of the
Company, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Covered Person shall
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Covered Person.


 


(b)           Except
as otherwise expressly required by law, a Member, in its capacity as Member,
shall have no liability in excess of (i) the amount of its Capital Contributions;
(ii) its share of any assets and undistributed profits of the Company; (iii) its
obligation to make other payments expressly provided for in this Agreement; and
(iv) the amount of any distributions wrongfully distributed to it.


 


50

















 


Section 12.2           Exculpation.


 


(a)           No
Covered Person shall be liable to the Company or any other Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Covered Person on behalf of the Company and in a manner
reasonably believed to be within the scope of authority conferred on such
Covered Person by this Agreement, except that a Covered Person shall be liable
for any such loss, damage or claim incurred by reason of such Covered Person’s
fraud, bad faith or willful misconduct as established by a non-appealable court
order, judgment, decree or decision.


 


(b)           A
Covered Person shall be fully protected in relying in good faith upon the
records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person reasonably believes are within such other Person’s professional or
expert competence and who has been selected with reasonable care by or on
behalf of the Company, including information, opinions, reports or statements
as to the value and amount of the assets, liabilities, Profits, Losses or
Available Cash or any other facts pertinent to the existence and amount of
assets from which distributions to Members might properly be paid.


 


Section 12.3           Indemnification.


 


To the fullest extent
permitted by applicable law, the Company shall indemnify and hold harmless each
Covered Person from and against all Claims arising from or related to any act
or omission performed or omitted by such Covered Person on behalf of the
Company and in a manner reasonably believed to be within the scope of authority
conferred on such Covered Person by this Agreement, except that no Covered
Person shall be entitled to be indemnified in respect of any Claim by reason of
such Covered Person’s fraud, bad faith, or willful misconduct as established by
a non-appealable court order, judgment, decree or decision.  Any indemnity under this Section 12.3
shall be provided out of and to the extent of Company assets only (including
the proceeds of any insurance policy obtained pursuant to Section 12.5),
and no Covered Person shall have any personal liability on account
thereof.  Any amendment, modification or
repeal of this Section 12.3 or any provision in this Section 12.3
shall be prospective only and shall not in any way affect the rights of any
Covered Person under this Section 12.3 as in effect immediately prior to
such amendment, modification or repeal with respect to matters occurring, in
whole or in part, prior to such amendment, modification or repeal, regardless
of when claims relating to such matters may arise or be asserted.


 


Section 12.4           Expenses.


 


To the fullest extent
permitted by applicable law, expenses (including legal fees) incurred by a
Covered Person in defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Company prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Company of an undertaking by or on behalf of the Covered Person to repay
such amount if it shall be determined that the Covered Person is not entitled
to be indemnified as authorized in Section 12.3.


 


Section 12.5           Insurance.


 


The Company may purchase and
maintain insurance, to the extent and in such amounts as the Board shall, in
its sole discretion, deem reasonable, on behalf of Covered Persons and such
other Persons as the Board shall determine, against any liability that may be
asserted against or expenses that may be incurred by any such Person in
connection with the activities of the Company or such indemnities, regardless
of whether the Company would have the power to indemnify such Person against
such liability under the provisions of this Agreement.  The Board and the Company may enter into
indemnity contracts 


 


51

















 


with
Covered Persons and such other Persons as the Board shall determine and adopt
written procedures pursuant to which arrangements are made for the advancement
of expenses and the funding of obligations under Section 12.4 and
containing such other procedures regarding indemnification as are appropriate.


 


Section 12.6           Certain Liabilities.


 


Each Member agrees to be
liable for the Capital Contributions required to be made by such Member, and
subject to the other provisions of this Agreement, in the event a Member
becomes liable for any liabilities of the Company, the Members shall bear such
liability in proportion to their then existing Percentage Interests.


 


Section 12.7           Acts Performed Outside the Scope
of the Company.


 


Each Member (each Member in
such capacity, an “Indemnitor”) shall indemnify, defend, save and hold harmless
each other Member (an “Indemnitee”) from any and all Claims that shall or may arise
by virtue of any act or thing done or omitted to be done by the Indemnitor
(directly or through agents or employees) outside the scope of, or in breach
of, the terms of this Agreement; provided, however, that the
Indemnitor shall be properly notified of the existence of the Claim, and shall
be given reasonable opportunity to cure any act or omission causing liability,
and participate in the defense thereof.  The Indemnitee’s failure to give
such notice shall not affect the Indemnitor’s obligations hereunder, except to
the extent of any actual prejudice arising therefrom.


 


Section 12.8           Liability of Members to Company or
Other Members.


 


Unless otherwise provided in
this Agreement, no Member shall be liable to any other Member or to the Company
by reason of such Member’s actions in connection with the Company, except in
the event of a violation of any provision of this Agreement, fraud, bad faith
or willful misconduct.


 


Section 12.9           Attorneys’ Fees.


 


All of the indemnities
provided in this Agreement shall include reasonable attorneys’ fees, including
appellate attorneys’ fees and court costs.


 


Section 12.10         Subordination of Other Rights to
Indemnity.


 


The interests of the Members
in any proceeds of the Company by way of repayment of loans, return of any Capital
Contributions, or any distributions from the Company, shall be subordinated to
the right of Members to the indemnities provided by this Article 12.


 


Section 12.11         Survival of Indemnity Provisions.


 


Except as otherwise
specifically provided herein, all of the indemnity provisions contained in this
Agreement shall survive a Member’s ceasing to be a Member hereunder.


 


ARTICLE 13

DISSOLUTION, LIQUIDATION AND TERMINATION


 


Section 13.1           No Dissolution.


 


The Company shall not be
dissolved by the admission of Additional Members or Substitute Members in
accordance with the terms of this Agreement, or the withdrawal of a Member.


 


52

















 


Section 13.2           Events Causing Dissolution.


 


The Company shall be
dissolved and its affairs shall be wound up upon the occurrence of any of the
following events:


 


(a)           the
determination of the Members pursuant to Section 6.12(p);


 


(b)           at
such time as there are no Members;


 


(c)           the
entry of a decree of judicial dissolution under the Act; or


 


(d)           the
sale, exchange or disposition of all, or substantially all, of the Company’s
assets in one transaction or a series of related transactions.


 


Section 13.3           Notice of Dissolution.


 


Upon the dissolution of the
Company, the Board shall promptly notify the Members of such dissolution.


 


Section 13.4           Liquidation.


 


(a)           Upon
dissolution of the Company, the Board (in such capacity, the “Liquidating
Trustee”) shall carry out the winding up of the Company and shall immediately
commence to wind up the Company’s affairs; provided, however,
that a reasonable time shall be allowed for the orderly liquidation of the
assets of the Company and the satisfaction of liabilities to creditors so as to
enable the Members to minimize the normal losses attendant upon a liquidation.  The proceeds of liquidation shall be applied
first to payment of all expenses and debts of the Company and setting up of
such reserves as the Board reasonably deems necessary to wind up the Company’s
affairs and to provide for any contingent liabilities or obligations of the
Company; provided  that the unpaid principal of and interest on
any loans made to the Company by Members (and their Affiliates) shall be
distributed pro rata to the Members (and their Affiliates) who made such loans,
in proportion to the total amount of principal and interest payable on such
loans, such distributions being treated first as a payment of accrued interest
on such loans and next as in payment of principal on such loans.  Any remaining proceeds shall be distributed
as follows:


 


(i)            If the Equalization Date has not yet
occurred, then:


 


(A)          First, 100% to the Class A
Members in accordance with their Class A Percentage Interests until the ** is reduced to zero;


 


(B)           Next, 100% to the Class A
Members in accordance with their Class A Percentage Interests until the ** is reduced to zero; and


 


(C)           Thereafter, **
to the holders to the Class A Membership Interests and ** to the holders of the Class B Memberships Interests.


 


(ii)           If the Equalization Date has
occurred, then to the Members in accordance with their respective Percentage
Interests.


 


(b)           Incentive
Interest Percentage Distributions. 
Notwithstanding the preceding provisions in Section 13.4(a), in the
event a ** Payout**
has occurred, Available Cash shall be distributed as follows:


 


53

















 


**           Following the
** Payout, if any, (x) first
calculated in accordance with their respective Percentage Interests, then (y) adjusted
by reducing NGPMR’s pro rata amount of Available Cash as determined in (x) by
the ** and (z) increasing MWE Liberty’s
pro rata amount of Available Cash as determined in (x) by the amount
determined in (y) **


 


**


 


(c)           The
Profits and Losses arising from liquidation of the Company shall be allocated
to the Members so that, to the maximum extent possible, each Member’s Capital
Account balance equals the amount of cash distributed to each such Member
pursuant to Sections 13.4(a)(i) and (ii) and Section 13.4(b), to
the extent applicable.


 


Section 13.5           Termination.


 


The Company shall terminate
when all of the assets of the Company, after payment of or due provision for
all debts, liabilities and obligations of the Company, shall have been
distributed to the Members in the manner provided for in this Article 13
and the Certificate shall have been canceled, or such other documents required
under the Act to be executed and filed with the Secretary of State of the State
of Delaware have been so executed and filed, in the manner required by the Act.


 


Section 13.6           Claims of the Members or Third
Parties.


 


The Members and former
Members shall look solely to the Company’s assets for the return of their
Capital Contributions, and if the assets of the Company remaining after payment
of or due provision for all debts, liabilities and obligations of the Company
are insufficient to return such Capital Contributions, the Members and former
Members shall have no recourse against the Company or any other Member; provided,
however, that nothing contained herein shall be deemed to limit the
rights of a Member under applicable law. 
In the event any Member has a deficit balance in its Capital Account at
the time of the Company’s dissolution, it shall not be required to restore such
account to a positive balance or otherwise make any payments to the Company or
its creditors or other third parties in respect of such deficiency.


 


Section 13.7           Distributions In-Kind.


 


If any assets of the Company
shall be distributed in kind, such assets shall be distributed to the Member(s) entitled
thereto as tenants-in-common in the same proportions as such Member(s) would
have been entitled to cash distributions if (i) such assets had been sold
for cash by the Company at the fair market value of such property (taking the
Gross Asset Value definition herein and Code Section 7701(g) into
account) on the date of distribution; (ii) any unrealized income, gain,
loss and deduction inherent in such property (that has not been reflected in
the Capital Accounts previously) that would be realized by the Company from
such sale were allocated among the Member(s) as Profits or Losses in
accordance with this Agreement; and (iii) the cash proceeds were
distributed to the Member(s) in accordance with this Article 13.  The Capital Accounts of the Member(s) shall
be increased by the amount of any unrealized income or gain inherent in such
property or decreased by the amount of any loss or deduction inherent in such
property that would be allocable to them, and shall be reduced by the fair
market value of the assets distributed to them under the preceding
sentence.  Notwithstanding the foregoing,
the Members shall have the right to assign their interest to such in-kind
distribution to any Person.


 


54

















 


ARTICLE 14

REPRESENTATIONS, WARRANTIES AND COVENANTS


 


Section 14.1           Representations, Warranties and
Covenants.


 


Each Member hereby
represents, warrants and covenants to the Company as follows:


 


(a)           The
Member understands that the purpose of the Company is to engage in the Primary
Business.  The Member has read and is
familiar with, and has been given full and complete access to, information,
financial or otherwise, regarding the Company and has utilized such access to
the Member’s satisfaction and has obtained any other relevant information the
Member has sought.  The Member has been
given the opportunity to ask questions of, and receive answers from, the
Company concerning the terms and conditions of, and other matters pertaining
to, this investment.


 


(b)           The
Member has read this Agreement and understands that the Interests being
acquired by the Member will be governed hereby. 
The Member agrees to be bound, in all respects, by the terms of this
Agreement.


 


(c)           The
Member has sufficient knowledge and experience in financial and business
matters in general, and investments in particular, to be capable of evaluating
the merits and risks of the investment in the Interests.  The Member is able to bear the economic risk
of this investment, including a total loss of the investment.  The Member has adequate means of providing
for its currents needs and personal contingencies, has no need for liquidity in
the investment in the Company and has no reason to anticipate any
circumstances, financial or otherwise, which might cause or require any sale or
distribution of the Interests.  The
Member’s overall commitment to investments that are not readily marketable is
not disproportionate to the Member’s net worth and the investment in the
Company will not cause the Member’s overall commitment in such investments to
become excessive.  The Member can lose
its entire investment in the Interests without producing a material adverse
change in the Member’s net worth.


 


(d)           It
is the Member’s intention to acquire the Interest for its own account, for
investment purposes, and not with a view to, or for, resale in connection with
any distribution thereof.  The Member
understands that no federal or state agency has passed upon the Interests or
made any findings or determination as to the fairness of this investment.  The Member understands and acknowledges that
the Interests have not been registered under the Securities Act or under state
securities laws and that the sale of the Interests is being made pursuant to
exemptions from registration that may depend upon the Member’s investment
intention.  The Member also understands
and acknowledges that the Interests may not be transferred unless they are
registered under the Securities Act or an exemption from such registration is
available thereunder and under applicable state securities laws and established
to the Company’s satisfaction.  In
addition, the Member acknowledges that the Interests are subject to additional
restrictions on transferability in this Agreement that will make it difficult
to Transfer or liquidate this investment. 
The Member acknowledges that the Company will rely on these
representations and that the Company is not required to recognize any Transfer
of an Interest if, in the opinion of counsel, such Transfer would result in a
violation of any federal or state law, rule or regulation, regarding the
offering or sale of securities.  The
Member further understands that any certificates representing the Interests may
contain legends restricting the Transfer of the Interests.


 


(e)           The
Member is fully authorized and qualified to become a Member of the Company and
is authorized to make the initial Capital Contribution to the Company, and the
person executing this Agreement on the Member’s behalf has been duly authorized
to do so.


 


55

















 


(f)            The
Member understands and acknowledges that (i) the Company may need to raise
additional capital from time to time in order to engage in the Primary Business
and achieve any other objectives and goals that may be established for the
Company by the Board, (ii) the Company may raise additional capital by
selling Interests to one or more Members or other Persons, (iii) the
Member has no right to participate in any future offering, or to buy any
additional Interests that may be issued, by the Company except to the extent
set forth herein, and (iv) the Member’s Percentage Interest in the Company
may be diluted as a result of any such sale of additional Interests in the
Company.


 


(g)           The
Member will indemnify and hold harmless the Company and its Managers, officers,
Members and Affiliates, and any other Person who controls or is controlled by
any of them, against any and all loss, liability, claim, damage and expense
whatsoever, including reasonable attorney’s fees, arising out of or based upon
any false representation or warranty or any breach by the Member of any term or
condition contained in this Article 14.


 


(h)           All
of the information provided to the Company by the Member and all of the Member’s
representations and warranties are true and correct as of the date of this
Agreement.  The Member’s representations,
warranties and covenants shall survive the delivery of the Member’s Capital
Contribution.


 


ARTICLE 15

MISCELLANEOUS


 


Section 15.1           Notices.


 


All notices provided for in
this Agreement shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied, mailed by registered or certified
mail, sent by recognized overnight delivery or courier service (e.g., Federal
Express) or, to the extent permitted by this Agreement, sent via electronic
mail, and shall be deemed to have been given upon delivery, if delivered
personally or by facsimile or electronic mail, three days after mailing, if
mailed, or one Business Day after delivery to the courier, if delivered by overnight
courier service, as follows:


 


(i)            if given to the Company, in care of
the Board at the principal place of business of the Company set forth in Section 2.5
or at such other address as the Company may hereafter designate by 10 days’
written notice to the Members.


 


(ii)           if given to any Member, at such
address designated on the signature page hereto or at such other address
as such Member may hereafter designate by 10 days’ written notice to the
Company.


 


Section 15.2           Failure to Pursue Remedies.


 


The failure of any party to
seek redress for violation of, or to insist upon the strict performance of, any
provision of this Agreement shall not prevent a subsequent act, which would
have originally constituted a violation, from having the effect of an original violation.


 


Section 15.3           Cumulative Remedies.


 


The rights and remedies
provided by this Agreement are cumulative and the use of any one right or
remedy by any party shall not preclude or waive its right to use any or all
other remedies.  Said rights and remedies
are given in addition to any other rights the parties may have by law, statute,
ordinance or otherwise.


 


56

















 


Section 15.4           Binding Effect.


 


This Agreement shall be
binding upon and inure to the benefit of all of the parties and, to the extent
permitted by this Agreement, their successors, legal representatives and
assigns.


 


Section 15.5           Interpretation.


 


Throughout this Agreement,
nouns, pronouns and verbs shall be construed as masculine, feminine, neuter, singular
or plural, whichever shall be applicable. 
All references herein to “Articles,” “Sections” and “Paragraphs” shall
refer to corresponding provisions of this Agreement.


 


Section 15.6           Severability.


 


The invalidity or
unenforceability of any particular provision of this Agreement shall not affect
the other provisions hereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.


 


Section 15.7           Counterparts.


 


This Agreement may be
executed in any number of counterparts with the same effect as if all parties
hereto had signed the same document.  All
counterparts shall be construed together and shall constitute one instrument.


 


Section 15.8           Integration.


 


This Agreement constitutes
the entire agreement among the parties hereto pertaining to the subject matter
hereof and supersedes all prior agreements and understandings pertaining
thereto.


 


Section 15.9           Amendment or Restatement.


 


This Agreement (including
any Exhibit or Schedule hereto) and the Certificate may be amended,
modified or supplemented, and any provisions of this Agreement or the
Certificate be waived, with a written instrument adopted, executed and agreed
to by the Company and the Class B Members with an aggregate Class B
Percentage Interest equal to or exceeding 50%; provided, however,
that (a) this Agreement shall be deemed automatically amended from time to
time without further consent of any party to reflect issuances and transfers of
Interests made in compliance with this Agreement and (b) any amendment,
modification, supplement or waiver to this Agreement or the Certificate that
would adversely affect the rights, or increase the obligations, of any Member
in any material respect shall not be effective without the consent of such
affected Member.  Except as required by
law, no amendment, modification, supplement, discharge or waiver of or under
this Agreement shall require the consent of any Person not a party to this
Agreement.


 


Section 15.10         Governing Law.


 


This Agreement and the
rights of the parties hereunder shall be interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.  The parties further agree that any legal
action or proceeding with respect to this Agreement or any document relating
hereto may be brought only in a federal or state court of competent
jurisdiction in Houston, Texas.  Each
party hereby irrevocably waives any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum non-


 


57

















 


convenience,
which it may now or hereafter have to the bringing of such action or proceeding
in any such respective jurisdiction.


 


Section 15.11         Dealings in Good Faith.


 


Except as otherwise
expressly set forth herein, each party hereto agrees to act in good faith with
respect to the other party in exercising its rights and discharging its
obligations under this Agreement.  Each
party further agrees to use its reasonable efforts to ensure that the purposes
of this Agreement are realized and to take all steps as are reasonable in order
to implement the operational provisions of this Agreement.


 


Section 15.12         Partition of the Property.


 


Each Member agrees that it
shall have no right to partition the Property, or any portion thereof, and each
Member agrees that it shall not make application to any court or authority
having jurisdiction in the matter to commence or prosecute any action or
proceeding for partition of the Property, or any portion thereof.  Upon the breach of this Section by any
Member, the other Members, in addition to all other rights and remedies in law
and equity, shall be entitled to a decree or order dismissing application,
action or proceeding.


 


Section 15.13         Third Party Beneficiaries.


 


Except as expressly set
forth in this Agreement, nothing in this Agreement is intended or shall be
construed, to confer upon or give any Person other than the parties hereto, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement, or result in their being deemed a third party beneficiary of this
Agreement.


 


Section 15.14         Tax Disclosure Authorization.


 


Notwithstanding anything
herein to the contrary, the Members (and each Affiliate and Person acting on
behalf of any Member) agree that each Member (and each employee,
representative, and other agent of such Member) may disclose to any and all
Persons, without limitation of any kind, the transaction’s tax treatment and
tax structure (as such terms are used in Sections 6011 and 6112 of the Code and
the Treasury Regulations thereunder) contemplated by this Agreement and all
materials of any kind (including opinions or other tax analyses) provided to
such Member or such Person relating to such tax treatment and tax structure,
except to the extent necessary to comply with any applicable federal or state
securities laws.


 


Section 15.15         Waivers and Consents.


 


A waiver or consent, express
or implied, to or of any breach or default by any Person in the performance of
its obligations hereunder is not a consent or waiver to or of any other breach
or default in the performance by that Person of the same or any other
obligation of such Person hereunder. 
Failure of a Person to assert the default or breach of any other Person
hereunder shall not constitute a waiver thereof until the applicable statute of
limitations period has run.


 


[Signature Page Follows]


 


58

















 


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


 


	
   

  	
  MWE LIBERTY:

  
	
   

  	
   

  
	
   

  	
  MARKWEST LIBERTY GAS GATHERING, L.L.C.,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address for notice:

  
	
   

  	
  1515 Arapahoe Street

  
	
   

  	
  Tower 2, Suite 700

  
	
   

  	
  Denver, CO 80202-2126

  
	
   

  	
  Attention: Senior Vice President and Chief Operations Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NGPMR:

  
	
   

  	
   

  
	
   

  	
  M&R MWE LIBERTY, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Address for notice:

  
	
   

  	
  1401 McKinney, Suite 1025

  
	
   

  	
  Houston, TX 77010

  
	
   

  	
  Attention: Jeffrey C. Rawls

  
	
   

  	
   

  
	
   

  	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  Locke Lord Bissell & Liddell, LLP

  
	
   

  	
  600 Travis Street, Suite 3400

  
	
   

  	
  Houston, Texas 77002

  
	
   

  	
  Fax (713) 229-2518

  
	
   

  	
  Attention: H. William Swanstrom

  



 


Signature
Page


 
















 


EXHIBIT A


 


AREA OF MUTUAL INTEREST


 


The areas described on the
attached Area of Mutual Interest Map.


 


**


 


A-1

















 


EXHIBIT B


 


MEMBERS AND CAPITAL CONTRIBUTIONS


 


	
  Member Name and Address

  	
   

  	
  Capital Contribution

  	
   

  	
  Type of

  Membership

  Interest

  	
   

  	
  Initial

  Percentage

  Interest

  	
   

  	
  Initial Investment

  Balance

  
	
  M&R MWE Liberty, LLC  

  1401 McKinney, Suite 1025  

  Houston, TX 77010  

  Attention:  Jeffrey
  C. Rawls  

  Facsimile:  (713) 579-5017  

  Email:  jrawls@ngpmr.com  

   

  with a copy to:  

   

  Locke Lord Bissell & Liddell, LLP  

  600 Travis Street, Suite 3400  

  Houston, Texas 77002  

  Fax (713) 229-2518  

  Attention: H. William Swanstrom

  	
   

  	
  **

  	
   

  	
  Class A

  	
   

  	
  40%

  	
   

  	
  **

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MarkWest Liberty Gas Gathering, L.L.C.  

  1515 Arapahoe Street, Tower 2, Suite 700  

  Denver, CO 80202  

  Attention:  Senior
  Vice President and Chief Operations Officer  

  Facsimile: (303) 925-9305  

  Email: jmollenkopf@markwest.com  

   

  with a copy to:  

   

  MarkWest Liberty Gas Gathering, L.L.C.  

  1515 Arapahoe Street, Tower 2, Suite 700  

  Denver, CO 80202  

  Attention:  Senior
  Vice President, General Counsel and Secretary  

  Facsimile: (303) 925-9308  

  Email: cbromley@markwest.com

  	
   

  	
  [   ](1)

  	
   

  	
  Class B

  	
   

  	
  60%

  	
   

  	
  **(2)

  



 






(1) Subject
to adjustment in accordance with Section 4.1(a).


(2) Represents
actual out-of-pocket costs incurred by MWE Liberty and its Affiliates through December 31,
2008 specifically related to developing the assets to be contributed, plus the
established value of other property to be contributed, by MWE Liberty to the
Company pursuant to the Contribution Agreement, subject to adjustment in
accordance with Section 4.1(a).


 


B-1

















 


EXHIBIT C


 


BASE PROJECT


 


1.                                      Natural Gas Processing Plant Construction
and Operation


 


**


 


2.                                      Natural Gas Pipeline Construction and
Operation


 


**


 


3.                                      Miscellaneous Natural Gas Processing
Infrastructure Construction and Operation


 


**


 


C-1

















 


EXHIBIT D


 


INITIAL BUDGET


 


(See attached)


 


**


 


[2 pages have been omitted and filed separately with the Securities
and Exchange Commission pursuant to the request for confidential treatment.]


 


D-1

















 


EXHIBIT E


 


ILLUSTRATIVE EXAMPLE
CALCULATION OF INCENTIVE INTERESTS


 


**


 


[6
pages have been omitted and filed separately with the Securities and
Exchange Commission pursuant to the request for confidential treatment.]


 


E-1

















 


EXHIBIT F


 


SERVICE AGREEMENT


 


(see attached)


 


F-1

















 


SERVICES AGREEMENT


 


BY AND BETWEEN


 


MARKWEST HYDROCARBON, INC.


 


MARKWEST LIBERTY GAS GATHERING, L.L.C.


 


AND


 


MARKWEST LIBERTY MIDSTREAM & RESOURCES, L.L.C.


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I. DEFINITIONS

  	
  1

  
	
  1.1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II. CAPEX FEE

  	
  4

  
	
  2.1

  	
  CapEx Fee

  	
  4

  
	
  2.2

  	
  CapEx Fee Payment Procedures

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE III. GENERAL AND
  ADMINISTRATIVE SERVICES

  	
  4

  
	
  3.1

  	
  General and Administrative Services

  	
  4

  
	
  3.2

  	
  General and Administrative Fee

  	
  5

  
	
  3.3

  	
  G&A Fee Payment Procedures

  	
  5

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV. PERSONNEL SERVICES

  	
  6

  
	
  4.1

  	
  Personnel Services

  	
  6

  
	
  4.2

  	
  Personnel Procedures

  	
  6

  
	
  4.3

  	
  Personnel Expenses

  	
  6

  
	
  4.4

  	
  Personnel Expenses Reimbursement Procedures

  	
  7

  
	
  4.5

  	
  Acknowledgment and Insurance

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE V. TERM

  	
  8

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI. LIMITS OF
  RESPONSIBILITY; INDEMNIFICATION

  	
  8

  
	
  6.1

  	
  Limits of Responsibility

  	
  8

  
	
  6.2

  	
  Indemnification by the Company

  	
  9

  
	
  6.3

  	
  Indemnification by MWE Hydrocarbon

  	
  9

  
	
  6.4

  	
  Remedies for Breach

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII. GENERAL PROVISIONS

  	
  10

  
	
  7.1

  	
  Accuracy of Recitals

  	
  10

  
	
  7.2

  	
  Choice of Law; Submission to Jurisdiction

  	
  10

  
	
  7.3

  	
  Notices

  	
  10

  
	
  7.4

  	
  Further Assurances

  	
  11

  
	
  7.5

  	
  Entire Agreement

  	
  11

  
	
  7.6

  	
  Effect of Waiver or Consent

  	
  11

  
	
  7.7

  	
  Amendment or Modification

  	
  12

  
	
  7.8

  	
  Assignment; Third-Party Beneficiaries

  	
  12

  
	
  7.9

  	
  Counterparts

  	
  12

  
	
  7.10

  	
  Severability

  	
  12

  
	
  7.11

  	
  Interpretation

  	
  12

  
	
  7.12

  	
  Relationship of the Parties

  	
  12

  
	
  7.13

  	
  Binding Effect

  	
  12

  
	
  7.14

  	
  Time of the Essence

  	
  13

  
	
  7.15

  	
  Withholding or Granting of Consent

  	
  13

  
	
  7.16

  	
  Laws and Regulations

  	
  13

  



 


i

















 


	
  7.17

  	
  No Recourse Against Officers or Directors

  	
  13

  
	
  7.18

  	
  Signatories Duly Authorized

  	
  13

  
	
  7.19

  	
  Incorporation of Exhibits by References

  	
  13

  
	
  7.20

  	
  Dispute Resolution and Arbitration

  	
  13

  
	
  7.21

  	
  Legal Compliance

  	
  14

  
	
  7.22

  	
  Books & Records

  	
  14

  
	
  7.23

  	
  Audit
  Rights

  	
  15

  



 


ii
















 


SERVICES
AGREEMENT


 


This Services Agreement
(this “Agreement”), is executed and
agreed to as of
[            ]
[    ], 2009, to become effective at the Closing (the date
and time of such Closing, if any, the “Effective Time”)
by and between MarkWest Hydrocarbon, Inc., a Delaware corporation (“MWE Hydrocarbon”), MarkWest Liberty
Gas Gathering, LLC, a Delaware limited liability company (“MWE
Liberty”) and MarkWest Liberty Midstream & Resources,
L.L.C., a Delaware limited liability company (the “Company”).  MWE Hydrocarbon, MWE Liberty and the Company
are hereinafter each referred to as a “Party” and
are collectively referred to as the “Parties.”


 


RECITALS


 


WHEREAS, MWE Liberty has
been designated as the Operator pursuant to the Company Operating Agreement and
believes it to be advisable and in the best interests of the Company to enter
into this Agreement in order to provide for the provision by MWE Hydrocarbon of
certain services to the Company; and


 


WHEREAS, MWE Hydrocarbon
will provide to the Company and its subsidiaries (collectively, the “Company Entities”) all of the
services necessary to operate, manage, maintain and report the operating
results of the Company Entities’ assets, including natural gas processing
plants, natural gas gathering pipelines, natural gas liquids pipelines,
fractionation facilities, compressors, treating facilities, transportation
facilities, storage facilities and related equipment and assets (collectively,
the “Company Assets”);


 


NOW THEREFORE, in
consideration of the premises and the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereby agree as follows:


 


ARTICLE I.


DEFINITIONS


 


1.1           Definitions.  As used in this
Agreement, the following terms shall have the respective meanings set forth
below:


 


“Additional Projects” has the meaning
ascribed to such term in the Company Operating Agreement.


 


“Agreement” is defined in the
preamble.


 


“Approved Budget” has the meaning
ascribed to such term in the Company Operating Agreement.


 


“Area of Mutual Interest” has the
meaning ascribed to such term in the Company Operating Agreement.


 


“Available Cash” has the meaning
ascribed to such term in the Company Operating Agreement.


 


“CapEx Fee” is defined in Section 2.1.


 


1

















 


“Capital Expenditures” means the
amount of all capital expenditures and capital costs related to the Projects
that are paid by the Company or a subsidiary of the Company and which are (i) expended
for the acquisition of real property interests, making application for,
prosecuting or obtaining permits, paying for equipment or other personal
property or otherwise expended in the development, construction and expansion
of the Projects (but, excluding maintenance capital expenditures) and (ii) ** of the **, including ** in accordance with the Company Operating Agreement.  For clarity purposes, the definition of “Capital
Expenditures” shall **, but shall ** in accordance with clauses (i) and (ii) of the
immediately preceding sentence.


 


“Claimant” is defined in Section 7.20(b).


 


“Class A Percentage Interest”
has the meaning ascribed to such term in the Company Operating Agreement.


 


“Closing” has the meaning ascribed to
such term in the Contribution Agreement.


 


“Company” is defined in the preamble.


 


“Company Assets” is defined in the
recitals.


 


“Company Board” means the Board of
Managers of the Company.


 


“Company Entities” is defined in the
recitals.


 


“Company Entity” means any of the
Company Entities.


 


“Company Operating Agreement” means
that certain Amended and Restated Limited Liability Company Agreement of the
Company, executed and agreed to as of the date hereof.


 


“Company Released Parties” is defined
in Section 6.1(a).


 


“Contribution Agreement” means that
certain Contribution Agreement, dated as of the date hereof, by and among the
Company, MWE Liberty and M&R MWE Liberty, LLC, a Delaware limited liability
company.


 


“Control,” including the correlative
terms “Controlling,” “Controlled by” and “Under Common Control with” means
possession, directly or indirectly (through one or more intermediaries), of the
power to direct or cause the direction of management or policies (whether
through ownership of securities or any partnership or other ownership interest,
by contract or otherwise) of a Person. 
For the purposes of this definition, ownership of more than 50% of the
voting interests of any entity shall be conclusive evidence that Control exists.


 


“CP Index” means the United States
Department of Labor, Bureau of Labor Statistics Consumer Price Index — All
Urban Consumers, U.S. City Average, Not Seasonally Adjusted, or, if such index
is discontinued, any successor or substitute index, which, in MWE Hydrocarbon’s
reasonable opinion, is most nearly equivalent to such index.


 


“Designated MWE Employees” is defined
in Section 4.2.


 


2

















 


“Effective Time” shall have the
meaning set forth in the preamble.


 


“G&A Fee” is defined in Section 3.2(a).


 


“G&A Services” is defined in Section 3.1.


 


“Investment Balance” has the meaning
ascribed to such term in the Company Operating Agreement.


 


“Loss” and “Losses”
are defined in Section 6.2.


 


“Member” has the meaning ascribed to
such term in the Company Operating Agreement.


 


“MWE Entities” means MWE Hydrocarbon
and any other Person Controlled by MWE Hydrocarbon or MarkWest Energy Partners,
L.P., including MWE Liberty.


 


“MWE Entity” means any of the MWE
Entities.


 


“MWE Hydrocarbon” is defined in the
preamble.


 


“MWE Indemnified Party” is defined in
Section 6.2.


 


“MWE Liberty” is defined in the
preamble.


 


“MWE Released Parties” is defined in Section 6.1(a).


 


“Operator” has the meaning ascribed
to such term in the Company Operating Agreement.


 


“Party” and “Parties”
are defined in the preamble.


 


“Person” means any natural person,
corporation, limited partnership, general partnership, limited liability
company, joint stock company, joint venture, association, company, estate,
trust, bank trust company, land trust, business trust, or other organization,
whether or not a legal entity, custodian, trustee-executor, administrator,
nominee or entity in a representative capacity and any government or agency or
political subdivision thereof.


 


“Personnel Expenses” is defined in Section 4.3.


 


“Personnel Services” is defined in Section 4.1.


 


“Projects” has the meaning ascribed
to such term in the Company Operating Agreement.


 


“Prudent Industry Practices” means,
at a particular time, any of the practices, methods and acts which, ** based upon the **, and the **, at such time, is ** operation
and maintenance of the Company Assets and shall include, without limitation,
the practices, methods and acts engaged in or approved by **
at such time with respect to the assets of the same or similar types as the
Company Assets. Prudent Industry Practices are not intended to be limited to ** to the exclusion of all others, but rather is ** practices, methods and acts which **
at a ** as well as 


 


3

















 


with
the **. Prudent Industry Practices are
intended to entail the **, in the **, use from time to time.


 


** is defined in Section 2.1.


 


“Respondent” is defined in Section 7.20(b).


 


“Services” means all of the services
necessary to operate, manage, maintain and report the operating results of the
Company Assets, which services shall include the G&A Services and the
Personnel Services.


 


ARTICLE II.


CAPEX FEE


 


2.1           CapEx
Fee. 
In partial consideration for the Services provided by MWE Hydrocarbon
pursuant to this Agreement, the Company shall pay to MWE Hydrocarbon, or an MWE
Entity designated by MWE Hydrocarbon, a quarterly fee (the “CapEx Fee”) equal to ** starting from and including the fiscal quarter in which
the Closing occurs **; provided that the CapEx Fee for the fiscal quarter in which
the Closing occurs shall be an amount equal to (a) **
(as defined in the Company Operating Agreement) of MWE Liberty ** (b) the CapEx Fee determined based on the ** such fiscal quarter in which the Closing occurs.


 


2.2           CapEx
Fee Payment Procedures.  Within 10 days after the end of each fiscal
quarter after the Closing occurs, the Company shall pay in immediately
available funds the CapEx Fee with respect to such fiscal quarter.


 


ARTICLE III.


GENERAL AND ADMINISTRATIVE SERVICES


 


3.1           General
and Administrative Services.  MWE Hydrocarbon agrees to provide the Company
Entities with certain general and administrative services employing internal
resources and employees of the MWE Entities, including legal, accounting,
treasury, risk management, health, safety and environmental, information
technology, human resources, credit, payroll, internal audit and tax services
necessary to operate, manage, maintain and report the operating results of the
Company Assets (collectively, the “G&A Services”).  The G&A Services shall be substantially
equivalent in nature and quality to the services of such type provided by MWE
Hydrocarbon in connection with its management and operation of assets similar
to the Company Assets, including other MWE Entities.  MWE Hydrocarbon acknowledges, agrees and
represents that the G&A Services will be provided by its employees,
representatives, agents or contractors and will be provided in accordance with
Prudent Industry Practices.  MWE
Hydrocarbon also acknowledges, agrees and represents that it will be solely and
completely responsible for (a) directing and managing the day-to-day
activities of the employees providing the G&A Services, (b) payment of
all compensation and benefits to, and employment and related taxes on behalf
of, the employees providing such G&A Services and (c) complying with
all statutes, laws, regulations, and ordinances related to its employment of
such employees and any damages arising from its failure to do so.  The G&A Services shall not include any
third party costs or expenses directly incurred by the Company Entities (or
incurred by MWE Hydrocarbon on behalf of the Company Entities), including,
without limitation, insurance coverage (or, if any 


 


4

















 


such insurance is provided through policies held by any of
the MWE Entities, a pro rata allocation of the cost thereof determined by MWE
Hydrocarbon and the Company in good faith and consistent with the historical
practices of the MWE Entities) which third party costs and expenses shall be
borne 100% by the Company Entities and shall not be subject to the G&A Fee;
provided, however, that (x) the
Company will not outsource services that are of the nature and quality of the
services provided by MWE Hydrocarbon in connection with its management and
operation of assets similar to the Company Assets, including assets of other
MWE Entities, (1) unless similar services are generally outsourced for
other MWE Entities and (2) ** and (y) all
third party costs incurred by MWE Hydrocarbon on behalf of the Company must be
reflected in an Approved Budget (as such term is defined in the Company
Operating Agreement).


 


3.2           General
and Administrative Fee.


 


(a)                                  Except to the extent modified by this Section 3.2(a),
beginning in the month in which the Closing occurs, in exchange for the G&A
Services, the Company shall pay to MWE Hydrocarbon, or an MWE Entity designated
by MWE Hydrocarbon, a monthly fee (the “G&A Fee”)
based on the following schedule: $** per month
during 2009; $** per month during 2010; $** per month during 2011; $**
per month during 2012; and $** per month
during 2013; provided that for the month in
which the Closing occurs, the G&A Fee shall be prorated based on a
fraction, of which the numerator is the number of days from and including the
date of the Closing to and including the final day of the month in which the
Closing occurs, and of which the denominator is the total number of days in the
month in which the Closing occurs.  As of
January 1 of each year beginning on or after January 1, 2014, the
G&A Fee shall be increased by the percentage increase in the CP Index.  In making such adjustments, the G&A Fee
shall be increased by the percentage increase in the CP Index for the prior
year period based on the most recent information available from the United
States Department of Labor.


 


(b)                                 If after the Closing the Company completes any acquisitions
or dispositions of assets or businesses, or any new laws, regulations or
accounting rules are enacted or implemented, or any other material change
in the business of the Company Entities occurs that is not anticipated as of
the Closing, then the G&A Fee shall be appropriately increased or
decreased, as appropriate, in order to account for adjustments in the nature
and extent of the G&A Services to be provided by the MWE Entities to the
Company Entities, with any such increase or decrease in the G&A Fee to be
determined in good faith negotiations between MWE Hydrocarbon and the Company
at such time.  Such new G&A Fee shall
be subject to certain approval rights set forth in the Company Operating
Agreement, including the Member approval rights set forth in Section 6.12
thereof.


 


3.3           G&A
Fee Payment Procedures.  Following the end of each month, MWE
Hydrocarbon shall send an invoice to the Company for the G&A Fee for the
preceding month.  The Company shall pay
such invoice within 30 days of receipt.


 


5

















 


ARTICLE IV.


PERSONNEL SERVICES


 


4.1           Personnel
Services. 
In addition to the G&A Services, MWE Hydrocarbon shall provide its
employees to operate, manage and maintain the Company Assets (the “Personnel Services”).  The Personnel Services shall be no less than
substantially equivalent in nature and quality to the services of such type
provided by MWE Hydrocarbon in connection with its management of assets similar
to the Company Assets.  MWE Hydrocarbon
acknowledges and agrees that the Personnel Services will be provided by its
employees, representatives, agents or contractors and that it will be solely
and completely responsible for (i) directing and managing the day-to-day
activities of the employees providing the Personnel Services, (ii) payment
of all compensation and benefits to, and employment and related taxes on behalf
of, the employees providing such Personnel Services and (iii) complying
with all statutes, laws, regulations, and ordinances related to the its
employment of such employees and any damages arising from the its failure to do
so.


 


4.2           Personnel
Procedures.  The personnel providing the Personnel
Services at the direction of MWE Hydrocarbon, (a) whose primary place of
employment is within the Area of Mutual Interest and who have been assigned to
perform duties with respect to Company Assets or (b) whose primary place
of employment is outside the Area of Mutual Interest and who have been assigned
specific or project-based duties with respect to Company Assets which duties
are expected to be completed within a specified period of time will be referred
to as the “Designated MWE Employees.”  For the avoidance of doubt, the Designated
MWE Employees are not employees of the Company Entities, but instead, the
Designated MWE Employees are employees of MWE Hydrocarbon and are simply
performing Personnel Services for the Company Entities.  Furthermore, the Parties acknowledge that the
Designated MWE Employees providing the Personnel Services shall not include any
Person providing the G&A Services.


 


4.3           Personnel
Expenses. 
Beginning in the month in which the Closing occurs, in exchange for the
Personnel Services, the Company shall reimburse MWE Hydrocarbon for the Company
Entities’ pro rata share (up to 100% for Designated MWE Employees whose only
duties for the MWE Entities were with respect to Company Entities’ business in
the bi-weekly pay periods ending in the preceding month) of all costs and
expenses incurred by MWE Hydrocarbon after the Effective Time in connection
with the provision of the Personnel Services during the preceding month or the
bi-weekly pay periods ending in the preceding month, as applicable, related to,
among other items, the following costs and expenses incurred by the MWE
Entities for the Designated MWE Employees:


 


(a)                                  compensation (including equity and equity-based compensation
expenses), salary and wages (including payroll and withholding taxes associated
therewith);


 


(b)                                 401(k) costs and any matching 401(k) contributions;


 


(c)                                  vacation and sick leave benefits;


 


(d)                                 medical and health insurance benefits;


 


6

















 


(e)                                  disability insurance (including benefits paid);


 


(f)                                    workers’ compensation (including benefits paid);


 


(g)                                 life insurance;


 


(h)                                 any other employee benefit for which the MWE Entities incur
costs.


 


The costs and expenses
described in the immediately preceding sentence, including clauses (a) through
(h) of such sentence, are referred to as “Personnel
Expenses.”  The Company
Entities’ pro rata share of Personnel Expenses with respect to each Designated
MWE Employee shall be based on a fraction, the numerator of which is the number
of hours in the bi-weekly pay periods ending during the preceding month such
Designated Employee devoted to matters relating to the Company Entities’
business and the denominator of which is the aggregate number of hours such Designated
Employee devoted to the businesses of the MWE Entities and the Company Entities
combined in the bi-weekly pay periods ending in the preceding month; provided that ** Personnel
Expenses for any Designated MWE Employee ** that ** the bi-weekly pay periods ending during the preceding
month **. 
Where it is not reasonably practicable to determine the pro rata share
of Personnel Expenses with respect to a Designated Employee, MWE Hydrocarbon
shall make a good faith reasonable estimate of such cost, expense or pro rata
share.  The Company shall accept any
estimate described in this paragraph, provided that
such estimate is reasonable and made in good faith.  MWE Hydrocarbon agrees that ** the Personnel Expenses, such **
a Proposed Budget (as defined in the Company Operating Agreement).  For clarity purposes, the Personnel Expenses
shall not include any costs or expenses related to any Person providing G&A
Services.  MWE Hydrocarbon hereby
represents that, as of the date hereof, it has no material liabilities with
respect to workers’ compensation or disability claims.


 


4.4           Personnel
Expenses Reimbursement Procedures.  Following the end of each month, MWE
Hydrocarbon shall send a reasonably detailed invoice to the Company for amount
of the Personnel Expenses incurred during the preceding month or the bi-weekly
pay periods ending in the preceding month, as applicable, which is to be
itemized by each Designated MWE Employee with the calculation of how the
Personnel Expenses were derived for each such Designated MWE Employee.  The Company shall pay such invoice within 30
days of receipt.


 


4.5           Acknowledgment
and Insurance.


 


(a)                                  MWE Hydrocarbon acknowledges and agrees that the Designated
MWE Employees are not employees of the Company Entities and are not entitled to
employment rights or benefits of the Company Entities.  MWE Hydrocarbon waives and releases the
Company Entities for all claims and causes of action the Designated MWE
Employees (or any subcontractors used by MWE Hydrocarbon to perform the
Services) may have for any compensation, benefits or violations of any statute
or regulation governing employee rights and benefits.


 


(b)                                 MWE Hydrocarbon shall maintain or require MWE Entities to
maintain insurance consistent with the historical practices of the MWE Entities,
including workers compensation (which specifically names Company Entities as
insureds), automobile liability, and commercial general liability for injury
of, or damages caused by all Designated MWE Employees (or 


 


7

















 


any subcontractors used by MWE
Hydrocarbon to perform the Services) providing Personnel Services to the
Company Entities.


 


ARTICLE V.


TERM


 


The term of this Agreement
will commence on the Effective Time and will continue and remain in full force
and effect until terminated in accordance with this Article V.  MWE Hydrocarbon may terminate this Agreement,
upon ** prior written notice to Company, at
any time when the MWE Entities ** of the
Company.  The Company may terminate this
Agreement, upon ** prior written notice to MWE
Hydrocarbon, at any time when the MWE Entities **
of the Company.  This Agreement may not
be terminated at any other time or for any other reason other than upon
dissolution of the Company or due to the fraud, bad faith, gross negligence or
willful misconduct of MWE Hydrocarbon or MWE Liberty, as established by a
non-appealable court order, judgment, decree or decision.  Upon any such termination, only those
provisions that, by their terms, expressly survive the termination of this
Agreement shall survive such termination.


 


ARTICLE VI.


LIMITS OF RESPONSIBILITY; INDEMNIFICATION


 


6.1           Limits
of Responsibility.


 


(a)                                  Except as otherwise set forth herein, MWE Hydrocarbon assumes
no responsibility under this Agreement other than to provide the Services
called for under this Agreement in accordance with the terms of this Agreement
and shall not be responsible for any action of the Company or the Company Board
in following or declining to follow any advice or recommendations of MWE Hydrocarbon.  The MWE Entities and their respective
stockholders, members, partners, directors, managers, officers and employees
(collectively, the “MWE Released Parties”) will
not be liable to the Company Entities or their respective stockholders,
members, partners, directors, managers, officers or employees (collectively,
the “Company Released Parties”) for any
acts or omissions by MWE Hydrocarbon performed or omitted in a manner
reasonably believed to be within the scope of authority conferred on MWE Hydrocarbon
pursuant to or in accordance with this Agreement, except for Losses for which
MWE Hydrocarbon is obligated to indemnify the Company Released Parties pursuant
to Section 6.3.


 


(b)                                 Except as otherwise set forth herein, there are no
representations or warranties made by MWE Hydrocarbon or MWE Liberty, express
or implied, at law or in equity, with respect to the subject matter hereof.


 


(c)                                  In no event shall either Party be liable to the other Party
for special, indirect, incidental, consequential or punitive damages arising
out of or related to this Agreement; provided, however,
that this waiver shall not apply to the extent such special, indirect,
incidental, consequential or 


 


8

















 


punitive damages are awarded in a
proceeding brought or asserted by a third party against either Party.


 


6.2           Indemnification
by the Company.  The Company shall, to the full extent lawful,
reimburse, indemnify, defend and hold each of the MWE Released Parties (in such
capacity, each, an “MWE Indemnified Party”),
harmless of and from any and all expenses, losses, damages, liabilities,
demands, charges and claims of any nature whatsover (including reasonable
attorneys’ fees) (each a “Loss” and
collectively, “Losses”) in respect of or arising
from **.


 


6.3           Indemnification
by MWE Hydrocarbon.  MWE Hydrocarbon shall, to the full extent
lawful, reimburse, indemnify, defend and hold each of the Company Released
Parties harmless of and from any and all Losses in respect of or arising from **.


 


6.4           Remedies for
Breach.  MWE Hydrocarbon
shall satisfy any claim for any Losses for which the Company Released Parties
are entitled to indemnification under Section 6.3 by either (a) ** for
any such Losses and/or (b) ** such Losses. 
In the event MWE Hydrocarbon fails to satisfy in full any claim for any
Losses for which the Company is entitled to indemnification in accordance with
the immediately preceding sentence ** of such Losses being finally determined,
then MWE Liberty shall satisfy any such claim for indemnification by either (a)
** for any Losses related thereto that are ** or (b) having ** the amount of
any such Loss that has not been satisfied in full in accordance with the
immediately preceding sentence; provided that the ** set forth in this sentence
by providing ** within 30 days of such Losses being finally determined.  In the event that any claim for Losses is to
be satisfied pursuant to the immediately preceding sentence, MWE Liberty agrees
to ** the Company Operating Agreement ** an amount equal to such unremedied
Loss.


 


9

















 


ARTICLE VII.

GENERAL PROVISIONS


 


7.1           Accuracy
of Recitals.  The paragraphs contained in the recitals to
this Agreement are incorporated in this Agreement by this reference, and the
Parties to this Agreement acknowledge the accuracy thereof.


 


7.2           Choice
of Law; Submission to Jurisdiction.  This Agreement and the rights of the parties
hereunder shall be interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws. 
Subject to Section 7.20, the parties further agree that any
legal action or proceeding with respect to this Agreement or any document
relating hereto may be brought only in a federal or state court of competent
jurisdiction in Houston, Texas.  Each
party hereby irrevocably waives any objection, including, without limitation,
any objection to the laying of venue or based on the grounds of forum
non-convenience, which it may now or hereafter have to the bringing of such
action or proceeding in any such respective jurisdiction.


 


7.3           Notices.  Any notice, demand
or communication required or permitted under this Agreement shall be in writing
and delivered personally or by reputable courier, and shall be deemed to have
been duly given as of the date and time reflected on the delivery receipt,
addressed as follows:


 


If
to MWE Hydrocarbon:


 


MarkWest
Hydrocarbon, Inc.


1515
Arapahoe Street


Tower
2, Suite 700


Denver,
Colorado 80202-2126


Attention:  Senior Vice President and Chief Operations
Officer


 


and


 


MarkWest
Liberty Gas Gathering, L.L.C.


1515
Arapahoe Street


Tower
2, Suite 700


Denver,
Colorado 80202-2126


Attention:
General Counsel


 


If
to MWE Liberty:


 


MarkWest
Liberty Gas Gathering, L.L.C.


1515
Arapahoe Street


Tower
2, Suite 700


Denver,
Colorado 80202-2126


Attention:  Senior Vice President and Chief Operations
Officer


 


and


 


MarkWest
Liberty Gas Gathering, L.L.C.


1515
Arapahoe Street


 


10

















 


Tower
2, Suite 700


Denver,
Colorado 80202-2126


Attention:
General Counsel


 


If
to the Company:


 


MarkWest
Liberty Midstream & Resources, L.L.C.


1515
Arapahoe Street


Tower
2, Suite 700


Denver,
Colorado 80202-2126


Attention:
Senior Vice President, Chief Operations Officer


 


and


 


MarkWest
Liberty Midstream & Resources, L.L.C.


1515
Arapahoe Street


Tower
2, Suite 700


Denver,
Colorado 80202-2126


Attention:
General Counsel


 


and


 


M&R
MWE Liberty, LLC


1401
McKinney, Suite 1025


Houston,
Texas 77010


Attention:
Jeffrey C. Rawls


 


with
a copy to:


 


Locke Lord Bissell & Liddell, LLP


600 Travis Street, Suite 3400


Houston, Texas 77002


Fax 
(713) 226-1143


Attention: H. William Swanstrom


 


A Party may change its
address for the purposes of notices hereunder by giving notice to the other
Party specifying such changed address in the manner specified in this Section 7.3.


 


7.4           Further
Assurances.  The Parties agree to execute such additional
instruments, agreements and documents, and to take such other actions, as may be
necessary to effect the purposes of this Agreement.


 


7.5           Entire
Agreement.  This Agreement constitutes the entire
agreement of the Parties relating to the matters contained herein, superseding
all prior contracts or agreements, whether oral or written, relating to the
matters contained herein.


 


7.6           Effect
of Waiver or Consent.  No waiver or consent, express or implied, by
any Party to or of any breach or default by any Person in the performance by
such Person of its


 


11
















 


obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such Person of the same or any other obligations of such Person hereunder.
Failure on the part of a Party to complain of any act of any Person or to
declare any Person in default, irrespective of how long such failure continues,
shall not constitute a waiver by such Party of its rights hereunder until the
applicable statute of limitations period has run.


 


7.7                                 Amendment or Modification.  This Agreement may be amended, modified or
supplemented from time to time only by a written agreement executed by all the
Parties.


 


7.8                                 Assignment; Third-Party Beneficiaries.  No Party shall have
the right to assign its rights or obligations under this Agreement without the
prior written consent of the other Parties.


 


7.9                                 Counterparts.  This Agreement may be executed in any number
of counterparts with the same effect as if all Parties had signed the same
document.  All counterparts shall be construed
together and shall constitute one and the same instrument.  Execution and delivery of this Agreement by
exchange of facsimile or other electronically transmitted counterparts bearing
the signature of a Party shall be equally as effective as delivery of a
manually executed counterpart by such Party.


 


7.10                           Severability.  If any provision of this Agreement or the
application thereof to any Person or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.


 


7.11                           Interpretation.  In this Agreement, unless a clear contrary
intention appears: (a) the singular includes the plural and vice versa; (b) reference
to a Person includes such Person’s successors and assigns but, in the case of
Party, only if such successors and assigns are permitted by this Agreement, and
reference to a Person in a particular capacity excludes such Person in any
other capacity; (c) reference to any gender includes each other gender; (d) reference
to any agreement (including this Agreement), document or instrument means such
agreement, document, or instrument as amended or modified and in effect from
time to time in accordance with the terms thereof and, if applicable, the terms
of this Agreement; (e) reference to any Section or Article means
such Section or Article of this Agreement, and references in any Section or
Article or definition to any clause means such clause of such Section, Article or
definition; (f) “hereunder,” “hereof,” “hereto” and words of similar
import are references to this Agreement as a whole and not to any particular
provision hereof; and (g) the word “or” is not exclusive, and the word “including”
(in its various forms) means including without limitation.  Section titles and headings in this
Agreement are inserted for convenience of reference only and are not intended
to be a part of, or to affect the meaning or interpretation of, this Agreement.


 


7.12                           Relationship of the Parties.  Nothing in this Agreement shall cause MWE
Hydrocarbon, MWE Liberty or the Company to become members of any partnership,
joint venture, association, syndicate or other entity.


 


7.13                           Binding Effect.  This Agreement will be binding upon, and will
inure to the benefit of, the Parties and their respective successors, permitted
assigns and legal representatives.


 


12

















 


7.14                           Time of the Essence.  Time is of the essence in the performance of
this Agreement.


 


7.15                           Withholding or Granting of Consent.  Unless otherwise
provided in this Agreement, each Party may, with respect to any consent or
approval that it is entitled to grant pursuant to this Agreement, grant or
withhold such consent or approval in its sole and uncontrolled discretion, with
or without cause, and subject to such conditions as it shall deem appropriate.


 


7.16                           Laws and Regulations.  Notwithstanding any provision of this
Agreement to the contrary, no Party shall be required to take any act, or fail
to take any act, under this Agreement if the effect thereof would be to cause
such Party to be in violation of any applicable law, statute, rule or
regulation.


 


7.17                           No Recourse Against Officers or Directors.  For the avoidance of
doubt, the provisions of this Agreement shall not give rise to any right of
recourse against any officer, director or manager of MWE Hydrocarbon or MWE
Liberty, any officer, director or manager of any MWE Entity or any officer,
director or manager of any Company Entity.


 


7.18                           Signatories Duly Authorized.  Each of the signatories to this Agreement
represents that he is duly authorized to execute this Agreement on behalf of
the Party for which he is signing, and that such signature is sufficient to
bind the Party purportedly represented.


 


7.19                           Incorporation of Exhibits by References.  Any reference herein
to any exhibit to this Agreement will incorporate it herein, as if it were set
out in full in the text of this Agreement.


 


7.20                           Dispute Resolution and Arbitration.


 


(a)                                  Should a dispute arise between the Parties, the Parties shall
promptly seek to amicably resolve any such dispute by negotiations between the
Parties prior to the initiation of binding arbitration in accordance with Section 7.20(b).  The Parties shall meet at a mutually
acceptable time and place within 15 days after written notice by any Party to
any other Party seeking resolution of a dispute under this Section 7.20(a) and
thereafter as often as they reasonably determine to be necessary or appropriate
to exchange relevant information and to attempt to resolve the dispute.  All negotiations and communications pursuant
to this Section 7.20(a) shall be treated and maintained by the
Parties as confidential information and shall be treated as compromise and
settlement negotiations for purposes of the Federal Rules of Evidence. If
the matter is not resolved within 30 days after the initial meeting of the
Parties, or such longer period as may be mutually agreed upon, either Party may
initiate arbitration in accordance with Section 7.20(b).


 


(b)                                 Any disputes hereunder, including the inability of the
Parties to agree to an adjustment to the invoices payable pursuant to Sections
2.2, 3.3 and 4.4, must be resolved through the use of binding
arbitration using three 


 


13

















 


arbitrators, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, as
supplemented to the extent necessary to determine any procedural appeal
questions by the Federal Arbitration Act (Title 9 of the United States Code).
If there is any inconsistency between this Section and the Commercial
Arbitration Rules or the Federal Arbitration Act, the terms of this Section 7.20
will control the rights and obligations of the Parties. Arbitration must be
initiated within the applicable time limits set forth in this Agreement and not
thereafter or if no time limit is given, within the time period allowed by the
applicable statute of limitations. Arbitration may be initiated by a party (“Claimant”) serving written notice on
another party (“Respondent”) that the
Claimant elects to refer a particular dispute to binding arbitration. Claimant’s
notice initiating binding arbitration must identify the arbitrator Claimant has
appointed. The Respondent shall respond to Claimant within 30 days after
receipt of Claimant’s notice, identifying the arbitrator Respondent has
appointed. If the Respondent fails for any reason to name an arbitrator within
the 30-day period, Claimant shall petition to the American Arbitration
Association for appointment of an arbitrator for Respondent’s account. The two
arbitrators so chosen shall select a third arbitrator within 30 days after the
second arbitrator has been appointed. The Claimant will pay the compensation
and expenses of the arbitrator named by or for it, and the Respondent will pay
the compensation and expenses of the arbitrator named by or for it. The costs
of petitioning for the appointment of an arbitrator, if any, shall be paid by
Respondent. The Claimant and Respondent will each pay one-half of the
compensation and expenses of the third arbitrator. All arbitrators must (a) be
neutral parties with no prior relationships to any participants, parties,
attorneys or law firms involved in the proceedings, (b) have never been
officers, directors, managers or employees of the Company Entities or the MWE
Entities and (c) have not less than seven years experience in the energy
industry. The hearing will be conducted in Houston, Texas and commence within
30 days after the selection of the third arbitrator. The Parties and the
arbitrators should proceed diligently and in good faith in order that the award
may be made as promptly as possible. Except as provided in the Federal
Arbitration Act, the decision of the arbitrators will be binding on and
non-appealable by the Parties hereto. The arbitrators shall have no right to
grant or award indirect, consequential, punitive or exemplary damages of any
kind.


 


7.21                           Legal Compliance.  The Parties acknowledge and agree that this
Agreement, and all Services provided under this Agreement including the
termination thereof, are intended to comply with any and all laws and legal
obligations and that this Agreement should be construed and interpreted with
this purpose in mind.


 


7.22                           Books & Records.  MWE Hydrocarbon shall keep, or cause the MWE
Entities to keep, full and adequate books of account and such other records as
are necessary to reflect the results of operation of the Company, such books
and records to be maintained at the offices of 


 


14

















 


the Company (it being agreed that MWE Hydrocarbon may keep
its own books and records related to the performance of this Agreement at a location
of its choosing).  Such books of account
shall be kept in accordance with GAAP, or as otherwise reasonably directed by
the Company.  All of such books and
records shall be and remain at all times the property of the Company and upon
any termination of this Agreement, all of such books and records (together with
any copies thereof except to the extent that MWE Hydrocarbon or any MWE Entity
shall be required to retain such copies in accordance with applicable laws)
shall be turned over to the Company forthwith so as to ensure the orderly
continuance of the operation of the Company.


 


7.23                           Audit Rights.  Upon reasonable notice of not less than ten
business days, the Company (and its representatives and agents) shall have the
right to audit and inspect, the books, records and other documents applicable
to the Services and invoices set forth herein during normal business hours at
the Operator’s principal place of business for a period of one year following
the date an invoice is delivered to the Company, provided
that any such audit or inspection shall be subject to the rights of the Company
and the Operator set forth in Section 10.2 of the Company Operating
Agreement regarding Unrelated Information (as defined in the Company Operating
Agreement).


 


[Signature page follows]


 


15

















 


IN WITNESS WHEREOF, the
Parties have caused this Agreement to be executed by their duly authorized
representatives as of the date and year first above written.


 


 


	
   

  	
  MARKWEST
  HYDROCARBON, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MARKWEST
  LIBERTY GAS GATHERING, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MARKWEST
  LIBERTY MIDSTREAM & RESOURCES, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


F-1

















 


EXHIBIT G


 


CAPITAL EXPENDITURES FOR AGREEMENTS


 


**


 


G-1

















 


EXHIBIT H


 


PRE-APPROVED AFFILIATED TRANSACTIONS


 


1.                                       Services
Agreement


 


2.                                       Fractionation
and NGL Purchase Agreement


 


3.                                     The execution
of the Company’s acknowledgment of the pledge by MWE Liberty of its Class B
Interest in the Company to the Royal Bank of Canada pursuant to that certain
Credit Agreement, dated as of February 20, 2008, among MWE, certain
subsidiary guarantors, Royal Bank of Canada, as Administrative Agent and
Collateral Agent, and the other lenders party thereto.


 


H-1

















 


EXHIBIT I


 


BRING DOWN CERTIFICATE


 


The
undersigned,
[                                        ],
[President] of MarkWest Liberty Gas Gathering, L.L.C., a Delaware limited
liability company, acting in its capacity as the Operator of MarkWest Liberty
Midstream & Resources, L.L.C., a Delaware limited liability company
(the “Company”), is delivering this
Bring Down Certificate to each Class A Member in accordance with Section 4.1(b)(i) of
the Amended and Restated Limited Liability Company Agreement of the Company,
dated as of February 27th, 2009 (as amended, supplemented and restated
from time to time, the “Operating Agreement”),
in connection with the Capital Call properly made by the Board to the Class A
Members, in accordance with the terms of the Operating Agreement, dated
                            ,
20     (the “Current Quarter Capital
Call”), and, acting in his capacity as [President] of the
Operator, hereby certifies to each Class A Member, as of
                      ,
20    , that:


 


1.                                       The Company has
spent or committed to spend all previous Capital Contributions made by the Class A
Members in accordance with an Approved Budget; and


 


2.                                       The Company
will spend the Capital Contribution to be made pursuant to the Current Quarter
Capital Call in accordance with an Approved Budget.


 


All
capitalized terms used but not defined herein shall have their respective
meanings given to such terms in the Operating Agreement.


 


IN
WITNESS WHEREOF, the undersigned has executed this Bring-Down Certificate in
the capacity aforesaid as of
                        ,
20      .


 


 


	
   

  	
  MARKWEST
  LIBERTY GAS GATHERING, L.L.C.,

  
	
   

  	
  in
  its capacity as Operator of MarkWest Liberty Midstream & Resources,
  L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


I-1

















 


EXHIBIT J


 


ESCROW AGREEMENT


 


(see attached)


 


J-1
















 


ESCROW AGREEMENT


 


This
Escrow Agreement dated this         
day of
            ,
         (the “Escrow Agreement”), is
entered into by and among MarkWest Liberty Gas Gathering, L..L.C. (“MWE Liberty”),
MarkWest Liberty Midstream & Resources, L.L.C. (“MarkWest Liberty”),
M&R MWE Liberty, LLC  (“NGPMR”) (MWE Liberty, MarkWest Liberty and NGPMR
collectively, the “Parties,” and individually, a “Party”), and Wells Fargo
Bank, National Association, as escrow agent (“Escrow Agent”).


 


RECITALS


 


A.                                   Pursuant to the
terms of the Amended and Restated Limited Liability Company Agreement of
MarkWest Liberty, dated
                  ,
2009 (the “LLC Agreement”), as security for NGPMR’s investment in MarkWest
Liberty, capital contributions made by NGPMR, as a member of MarkWest Liberty,
are to be paid into an Escrow Account until such time as the Parties agree to
release such funds.


 


B.                                     NGPMR agrees to
place in escrow certain funds and the Escrow Agent agrees to hold and
distribute such funds in accordance with the terms of this Escrow Agreement.


 


In
consideration of the promises and agreements of the Parties and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties and the Escrow Agent agree as follows:


 


ARTICLE 1

ESCROW DEPOSIT


 


Section 1.1.                                   Receipt of
Escrow Property.  Upon execution hereof, NGPMR shall
deliver to the Escrow Agent the amount of ** in
immediately available funds, and from time to time hereafter NGPMR shall
deliver additional funds to the Escrow Agent (the “Escrow Property”).


 


Section 1.2.                                   Investments.


 


(a)                                  The Escrow
Agent is authorized and directed to deposit, transfer, hold and invest the
Escrow Property and any investment income thereon in such investment or
investments as MWE Liberty, MarkWest Liberty and NGPMR shall from time to time
mutually direct in writing in the form of Exhibit A to this Escrow
Agreement.  In the absence of such
written direction, the Escrow Agent is hereby authorized and directed to hold
the Escrow Property uninvested in a non-interest bearing transaction account
eligible for unlimited insurance coverage from the Federal Deposit Insurance
Corporation (“FDIC”) through December 31, 2009 (or other date, which may
be earlier, as ordered or announced by the FDIC), and if the Escrow Agent is
not otherwise directed in writing after such date, it is authorized and
directed to continue to hold the Escrow Property uninvested in a non-interest
bearing transaction account whether or not such account remains eligible for
any insurance coverage from the FDIC. 
Any investment earnings 


 

















 


and
income on the Escrow Property shall become part of the Escrow Property, and
shall be disbursed in accordance with Section 1.3 or Section 1.5 of
this Escrow Agreement.


 


(b)                                 The Escrow
Agent is hereby authorized and directed to sell or redeem any such investments
as it deems necessary to make any payments or distributions required under this
Escrow Agreement.  The Escrow Agent shall
have no responsibility or liability for any loss which may result from any
investment or sale of investment made pursuant to this Escrow Agreement.  The Escrow Agent is hereby authorized, in
making or disposing of any investment permitted by this Escrow Agreement, to
deal with itself (in its individual capacity) or with any one or more of its
affiliates, whether it or any such affiliate is acting as agent of the Escrow
Agent or for any third person or dealing as principal for its own account.  The Parties acknowledge that the Escrow Agent
is not providing investment supervision, recommendations, or advice.


 


Section 1.3.                                   Disbursements.  The Escrow Agent is hereby authorized and
directed to make disbursements of the Escrow Property if a distribution has
been jointly agreed to, in writing, by NGPMR, MWE Liberty and MarkWest Liberty.  The Escrow Agent shall, promptly upon receipt
of such joint written instructions from NGPMR, MWE Liberty and MarkWest
Liberty, release the Escrow Property (or any portion thereof) in accordance
with such joint written instructions. 
The Parties agree that, where terms of the LLC Agreement require
disbursements of the Escrow Property, NGPMR, MWE Liberty and MarkWest Liberty,
as applicable, shall use their best efforts in complying with such terms with
respect to a joint written instruction required hereunder.


 


Section 1.4.                                   Income Tax
Allocation and Reporting.


 


(a)                                  The
Parties agree that, for tax reporting purposes, all interest and other income
from investment of the Escrow Property shall, as of the end of each calendar
year and to the extent required by the Internal Revenue Service, be reported as
having been earned by MarkWest Liberty, whether or not such income was
disbursed during such calendar year.


 


(b)                                 Prior
to closing, the Parties shall provide the Escrow Agent with certified tax
identification numbers by furnishing appropriate forms W-9 or W-8 and such
other forms and documents that the Escrow Agent may request.   The Parties understand that if such tax
reporting documentation is not provided and certified to the Escrow Agent, the
Escrow Agent may be required by the Internal Revenue Code of 1986, as amended,
and the Regulations promulgated thereunder, to withhold a portion of any
interest or other income earned on the investment of the Escrow Property.


 


(c)                                  To the
extent that the Escrow Agent becomes liable for the payment of any taxes in
respect of income derived from the investment of the Escrow Property, the
Escrow Agent shall satisfy such liability to the extent possible from the
Escrow Property.  The Parties, jointly
and severally, shall indemnify, defend and hold the Escrow Agent harmless from
and against any tax, late payment, interest, penalty or other cost or expense
that may be assessed against the Escrow Agent on or with respect to the Escrow
Property and the investment thereof unless such tax, late payment, interest,
penalty or other expense was directly caused by the gross negligence or willful



 


2

















 


misconduct of the Escrow Agent.  The indemnification provided by this Section 1.4(c) is
in addition to the indemnification provided in Section 3.1 and shall
survive the resignation or removal of the Escrow Agent and the termination of
this Escrow Agreement.


 


Section 1.5.                                   Termination.  This Escrow Agreement shall terminate on December 31,
2011 unless the Escrow Property has already been fully disbursed (in which case
the Escrow Agreement shall terminate upon such final disbursement), at which
time the Escrow Agent is authorized and directed to disburse the Escrow
Property in accordance with Section 1.3 and this Escrow Agreement shall be
of no further force and effect except that the provisions of Sections 1.4(c),
3.1 and 3.2 hereof shall survive termination.


 


ARTICLE 2

DUTIES OF THE ESCROW AGENT


 


Section 2.1.                                   Scope of
Responsibility. 
Notwithstanding any provision to the contrary, the Escrow Agent is
obligated only to perform the duties specifically set forth in this Escrow
Agreement, which shall be deemed purely ministerial in nature.  Under no circumstances will the Escrow Agent
be deemed to be a fiduciary to any Party or any other person under this Escrow
Agreement.  The Escrow Agent will not be
responsible or liable for the failure of any Party to perform in accordance
with this Escrow Agreement. The Escrow Agent shall neither be responsible for,
nor chargeable with, knowledge of the terms and conditions of any other
agreement, instrument, or document other than this Escrow Agreement, whether or
not an original or a copy of such agreement has been provided to the Escrow
Agent; and the Escrow Agent shall have no duty to know or inquire as to the
performance or nonperformance of any provision of any such agreement,
instrument, or document.  References in
this Escrow Agreement to any other agreement, instrument, or document are for
the convenience of the Parties, and the Escrow Agent has no duties or
obligations with respect thereto.  This
Escrow Agreement sets forth all matters pertinent to the escrow contemplated
hereunder, and no additional obligations of the Escrow Agent shall be inferred
or implied from the terms of this Escrow Agreement or any other agreement.


 


Section 2.2.                                   Attorneys and
Agents.  The Escrow Agent shall be
entitled to rely on and shall not be liable for any action taken or omitted to
be taken by the Escrow Agent in accordance with the advice of counsel or other
professionals retained or consulted by the Escrow Agent.  The Escrow Agent shall be reimbursed as set
forth in Section 3.1 for any and all compensation (fees, expenses and
other costs) paid and/or reimbursed to such counsel and/or professionals.  The Escrow Agent may perform any and all of
its duties through its agents, representatives, attorneys, custodians, and/or
nominees.


 


Section 2.3.                                   Reliance.  The Escrow Agent shall not be liable for any
action taken or not taken by it in accordance with the direction or consent of
the Parties or their respective agents, representatives, successors, or
assigns.  The Escrow Agent shall not be
liable for acting or refraining from acting upon any notice, request, consent,
direction, requisition, certificate, order, affidavit, letter, or other paper
or document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, without further inquiry into the person’s
or 


 


3

















 


persons’
authority.  Concurrent with the execution
of this Escrow Agreement, the Parties shall deliver to the Escrow Agent
authorized signers’ forms in the form of Exhibit B-1 and Exhibit B-2
to this Escrow Agreement.


 


Section 2.4.                                   Right Not Duty
Undertaken.  The
permissive rights of the Escrow Agent to do things enumerated in this Escrow
Agreement shall not be construed as duties.


 


Section 2.5.                                   No Financial
Obligation.  No
provision of this Escrow Agreement shall require the Escrow Agent to risk or
advance its own funds or otherwise incur any financial liability or potential
financial liability in the performance of its duties or the exercise of its
rights under this Escrow Agreement.


 


ARTICLE 3

PROVISIONS CONCERNING THE ESCROW AGENT


 


Section 3.1.                                   Indemnification.  The
Parties, jointly and severally, shall indemnify, defend and hold harmless the
Escrow Agent from and against any and all loss, liability, cost, damage and
expense, including, without limitation, attorneys’ fees and expenses or other
professional fees and expenses which the Escrow Agent may suffer or incur by
reason of any action, claim or proceeding brought against the Escrow Agent,
arising out of or relating in any way to this Escrow Agreement or any
transaction to which this Escrow Agreement relates, unless such loss,
liability, cost, damage or expense shall have been finally adjudicated to have
been directly caused by the willful misconduct or gross negligence of the
Escrow Agent. The provisions of this Section 3.1
shall survive the resignation or removal of the Escrow Agent and the
termination of this Escrow Agreement.


 


Section 3.2.                                   Limitation of Liability.  THE
ESCROW AGENT SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES,
LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN
DAMAGES, LOSSES OR EXPENSES WHICH HAVE BEEN FINALLY ADJUDICATED TO HAVE
DIRECTLY RESULTED FROM THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, OR (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES
OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE
ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND
REGARDLESS OF THE FORM OF ACTION.


 


Section 3.3.                                   Resignation or
Removal.  The Escrow Agent may resign by
furnishing written notice of its resignation to the Parties, and the Parties
may remove the Escrow Agent by furnishing to the Escrow Agent a joint written
notice of its removal along with payment of all fees and expenses to which it
is entitled through the date of termination. 
Such resignation or removal, as the case may be, shall be effective
thirty (30) days after the delivery of such notice or upon the earlier
appointment of a successor, and the Escrow Agent’s sole responsibility
thereafter shall be to safely keep the Escrow Property and to deliver the same
to a successor escrow agent as shall be appointed by the Parties, as evidenced
by a joint written notice filed with the Escrow Agent or in accordance with a
court order.  If the Parties have failed
to appoint a successor escrow agent prior to the expiration of thirty (30) days
following the delivery of such 


 


4

















 


notice
of resignation or removal, the Escrow Agent may petition any court of competent
jurisdiction for the appointment of a successor escrow agent or for other
appropriate relief, and any such resulting appointment shall be binding upon
the Parties.


 


Section 3.4.                                   Compensation.  The
Escrow Agent shall be entitled to compensation for its services as stated in
the fee schedule attached hereto as Exhibit C, which compensation shall be
paid by MarkWest Liberty. The fee agreed upon for the services rendered
hereunder is intended as full compensation for the Escrow Agent’s services as
contemplated by this Escrow Agreement; provided, however, that in the event
that the conditions for the disbursement of funds under this Escrow Agreement
are not fulfilled, or the Escrow Agent renders any service not contemplated in
this Escrow Agreement, or there is any assignment of interest in the subject
matter of this Escrow Agreement, or any material modification hereof, or if any
material controversy arises hereunder, or the Escrow Agent is made a party to
any litigation pertaining to this Escrow Agreement or the subject matter
hereof, then the Escrow Agent shall be compensated for such extraordinary
services and reimbursed for all costs and expenses, including reasonable
attorneys’ fees and expenses, occasioned by any such delay, controversy,
litigation or event.  If any amount due
to the Escrow Agent hereunder is not paid within thirty (30) days of the date
due, the Escrow Agent in its sole discretion may charge interest on such amount
up to the highest rate permitted by applicable law.   The Escrow Agent shall have, and is
hereby granted, a prior lien upon the Escrow Property with respect to its
unpaid fees, non-reimbursed expenses and unsatisfied indemnification rights,
superior to the interests of any other persons or entities and is hereby
granted the right to set off and deduct any unpaid fees, non-reimbursed
expenses and unsatisfied indemnification rights from the Escrow Property.


 


Section 3.5.                                   Disagreements.  If any conflict, disagreement or dispute
arises between, among, or involving any of the parties hereto concerning the
meaning or validity of any provision hereunder or concerning any other matter
relating to this Escrow Agreement, or the Escrow Agent is in doubt as to the
action to be taken hereunder, the Escrow Agent is authorized to retain the Escrow
Property until the Escrow Agent (i) receives a final non-appealable order
of a court of competent jurisdiction or a final non-appealable arbitration
decision directing delivery of the Escrow Property, (ii) receives a
written agreement executed by each of the parties involved in such disagreement
or dispute directing delivery of the Escrow Property, in which event the Escrow
Agent shall be authorized to disburse the Escrow Property in accordance with
such final court order, arbitration decision, or agreement, or (iii) files
an interpleader action in any court of competent jurisdiction, and upon the
filing thereof, the Escrow Agent shall be relieved of all liability as to the
Escrow Property and shall be entitled to recover attorneys’ fees, expenses and
other costs incurred in commencing and maintaining any such interpleader
action.  The Escrow Agent shall be
entitled to act on any such agreement, court order, or arbitration decision
without further question, inquiry, or consent.


 


Section 3.6.                                   Merger or Consolidation.  Any corporation or association into which the
Escrow Agent may be converted or merged, or with which it may be consolidated,
or to which it may sell or transfer all or substantially all of its corporate
trust business and assets as a whole or substantially as a whole, or any
corporation or association resulting from any such conversion, sale, merger,
consolidation or transfer to which the Escrow Agent is a party, shall be and
become the successor escrow agent under this Escrow Agreement and shall have
and succeed to the 


 


5

















 


rights,
powers, duties, immunities and privileges as its predecessor, without the
execution or filing of any instrument or paper or the performance of any
further act.


 


Section 3.7.                                   Attachment of
Escrow Property; Compliance with Legal Orders.  In the event that any Escrow Property shall
be attached, garnished or levied upon by any court order, or the delivery
thereof shall be stayed or enjoined by an order of a court, or any order,
judgment or decree shall be made or entered by any court order affecting the
Escrow Property, the Escrow Agent is hereby expressly authorized, in its sole
discretion, to respond as it deems appropriate or to comply with all writs,
orders or decrees so entered or issued, or which it is advised by legal counsel
of its own choosing is binding upon it, whether with or without
jurisdiction.  In the event that the
Escrow Agent obeys or complies with any such writ, order or decree it shall not
be liable to any of the Parties or to any other person, firm or corporation,
should, by reason of such compliance notwithstanding, such writ, order or
decree be subsequently reversed, modified, annulled, set aside or vacated.


 


ARTICLE 4

MISCELLANEOUS


 


Section 4.1.                                   Successors and Assigns.  This Escrow Agreement shall be binding on and
inure to the benefit of the Parties and the Escrow Agent and their respective
successors and permitted assigns. No other persons shall have any rights under
this Escrow Agreement.  No assignment of the interest of any of the
Parties shall be binding unless and until written notice of such assignment
shall be delivered to the other Party and the Escrow Agent and shall require
the prior written consent of the other Party and the Escrow Agent
(such consent not to be unreasonably withheld).


 


Section 4.2.                                   Escheat.  The Parties are aware that under applicable
state law, property which is presumed abandoned may under certain circumstances
escheat to the applicable state.  The
Escrow Agent shall have no liability to the Parties, their respective heirs,
legal representatives, successors and assigns, or any other party, should any
or all of the Escrow Property escheat by operation of law.


 


Section 4.3.                                   Notices.  All notices, requests, demands, and other communications
required under this Escrow Agreement shall be in writing, in English, and shall
be deemed to have been duly given if delivered (i) personally, (ii) by
facsimile transmission with written confirmation of receipt, (iii) by
overnight delivery with a reputable national overnight delivery service, or (iv) by
mail or by certified mail, return receipt requested, and postage prepaid.  If any notice is mailed, it shall be deemed
given five business days after the date such notice is deposited in the United
States mail.  Any notice given shall be
deemed given upon the actual date of such delivery.  If notice is given to a party, it shall be
given at the address for such party set forth below.  It shall be the responsibility of the Parties
to notify the Escrow Agent and the other Party in writing of any name or
address changes.  In the case of
communications delivered to the Escrow Agent, such communications shall be
deemed to have been given on the date received by the Escrow Agent.


 


6

















 


If to MarkWest Liberty:


MarkWest
Liberty Midstream & Resources, L.L.C.


1515 Arapahoe Street, Tower 2, Suite 700


Denver, CO 80202


Attention:  Andrew Schroeder, Treasurer


Telephone: 303 925-9256


Facsimile:  303 662-8870


 


If to MWE Liberty:


MarkWest
Liberty Gas Gathering, L.L.C.


1515 Arapahoe Street, Tower 2, Suite 700


Denver, CO 80202


Attention:  Andrew Schroeder, Treasurer


Telephone: 303 925-9256


Facsimile:  303 662-8870


 


	
  If to NGPMR:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  



 


If to the Escrow Agent:


 


Wells Fargo Bank, National
Association


1445 Ross Avenue – 2nd Floor


Dallas, Texas 75202-2812


Attention: Patrick Giordano
- VP, Corporate Trust and Escrow Services


Telephone: 214-740-1573


Facsimile:  214-777-4086


 


Section 4.4.                                   Governing Law.  This Escrow Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.


 


Section 4.5.                                   Entire
Agreement.  This Escrow
Agreement sets forth the entire agreement and understanding of the parties
related to the Escrow Property.


 


Section 4.6.                                   Amendment.  This Escrow Agreement may be amended,
modified, superseded, rescinded, or canceled only by a written instrument
executed by the Parties and the Escrow Agent.


 


7

















 


Section 4.7.                                   Waivers.  The failure of any party to this Escrow
Agreement at any time or times to require performance of any provision under
this Escrow Agreement shall in no manner affect the right at a later time to
enforce the same performance.  A waiver
by any party to this Escrow Agreement of any such condition or breach of any
term, covenant, representation, or warranty contained in this Escrow Agreement,
in any one or more instances, shall neither be construed as a further or
continuing waiver of any such condition or breach nor a waiver of any other
condition or breach of any other term, covenant, representation, or warranty
contained in this Escrow Agreement.


 


Section 4.8.                                   Headings.  Section headings of this Escrow
Agreement have been inserted for convenience of reference only and shall in no
way restrict or otherwise modify any of the terms or provisions of this Escrow
Agreement.


 


Section 4.9.                                   Counterparts.  This Escrow Agreement may be executed in one
or more counterparts, each of which when executed shall be deemed to be an
original, and such counterparts shall together constitute one and the same
instrument.


 


[The remainder of this page left intentionally blank.]


 


8

















 


IN
WITNESS WHEREOF, this Escrow Agreement has been duly executed as of the date
first written above.


 


	
   

  	
  MarkWest
  Liberty Midstream & Resources, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Andrew
  L. Schroeder

  
	
   

  	
  Title:

  	
  Vice
  President and Treasurer

  
	
   

  	
   

  
	
   

  	
  MarkWest
  Liberty Gas Gathering, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  Andrew
  L. Schroeder

  
	
   

  	
  Title:

  	
  Vice
  President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  M&R
  MWE Liberty, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Wells
  Fargo Bank, National Association, as Escrow Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


S-1
















 


EXHIBIT A


 


Agency
and Custody Account Direction


For Cash
Balances


 


Direction to use Wells
Fargo Advantage Funds for Cash Balances for the escrow account or accounts (the
“Account”) established under the Escrow Agreement to which this Exhibit A
is attached.


 


You are hereby directed
to invest, as indicated below or as I shall direct further from time to time,
all cash in the Account in the following money market portfolio of Wells Fargo
Advantage Funds (the “Fund”) or another permitted investment of my choice
(Check One):


 


o Wells Fargo Advantage Funds, 100%
Treasury Money Market Fund


o Wells Fargo Advantage Funds, Government
Money Market Fund


o Wells Fargo Advantage Funds, Cash
Investment Money Market Fund


o Wells Fargo Advantage Funds, Prime
Investment Money Market Fund


o Wells Fargo Advantage Funds, Treasury
Plus Money Market Fund


o Wells Fargo Advantage Funds, Heritage
Money Market Fund


o Wells Fargo Advantage Funds, National
Tax-Free Money Market Fund


 


I acknowledge that I have
received, at my request, and reviewed the Fund’s prospectus and have determined
that the Fund is an appropriate investment for the Account.


 


I understand from reading
the Fund’s prospectus that Wells Fargo Funds Management, LLC (“Wells Fargo
Funds Management”), a wholly-owned subsidiary of Wells Fargo &
Company, provides investment advisory and other administrative services for the
Wells Fargo Advantage Funds. 
Other affiliates of Wells Fargo & Company provide sub-advisory and
other services for the Funds.  Boston Financial Data Services serves as
transfer agent for the Funds.  The Funds are distributed by Wells Fargo
Funds Distributor, LLC, Member NASD/SIPC, an affiliate of Wells Fargo &
Company.  I also understand that Wells Fargo & Company will be
paid, and its bank affiliates may be paid, fees for services to the Funds and
that those fees may include Processing Organization fees as described in the
Fund’s prospectus.


 


I understand that you
will not exclude amounts invested in the Fund from Account assets subject to
fees under the Account agreement between us.


 


I understand that
investments in the Fund are not obligations of, or endorsed or guaranteed by,
Wells Fargo Bank or its affiliates and are not insured by the Federal Deposit
Insurance Corporation.


 


I acknowledge that I have
full power to direct investments of the Account.


 


I understand that I may
change this direction at any time and that it shall continue in effect until
revoked or modified by me by written notice to you.


 


I understand that if I
choose to communicate this investment direction solely via facsimile, then the
investment direction will be understood to be enforceable and binding.


 


	
   

  	
   

  	
   

  
	
  Authorized
  Representative

  	
   

  	
  Authorized
  Representative

  
	
  MarkWest Liberty

  	
   

  	
  NGPMR

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Authorized
  Representative

  	
   

  	
   

  
	
  MWE Liberty

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
   

  



 

















 


EXHIBIT B-1


CERTIFICATE AS TO
AUTHORIZED SIGNATURES


 


The specimen signatures shown below are the
specimen signatures of the individuals who have been designated as authorized
representatives of MarkWest Liberty and are authorized to initiate and approve
transactions of all types for the escrow account or accounts established under
the Escrow Agreement to which this Exhibit B-1 is attached, on behalf of
MarkWest Liberty and MWE Liberty.


 


	
  Name / Title

  	
   

  	
  Specimen Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Frank Semple

  	
   

  	
   

  
	
  Name

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
  President

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Nancy Buese

  	
   

  	
   

  
	
  Name

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
  Chief Financial Officer

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Andrew Schroeder

  	
   

  	
   

  
	
  Name

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
  Vice President, Treasurer

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  John Mollenkopf

  	
   

  	
   

  
	
  Name

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
  Chief Operations Officer

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  



 

















 


EXHIBIT B-2


CERTIFICATE AS TO
AUTHORIZED SIGNATURES


 


The specimen signatures shown below are the
specimen signatures of the individuals who have been designated as authorized
representatives of NGPMR and are authorized to initiate and approve
transactions of all types for the escrow account or accounts established under
the Escrow Agreement to which this Exhibit B-2 is attached, on behalf of
NGPMR.


 


 


	
  Name / Title

  	
   

  	
  Specimen Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title

  	
   

  	
   

  



 

















 


EXHIBIT C


 


	
  Acceptance
  Fee:

  	
   

  	
  Waived

  



Initial Fees as they relate
to Wells Fargo Bank acting in the capacity of Escrow Agent — includes review of
the Escrow Agreement; acceptance of the Escrow appointment; setting up of
Escrow Account(s) and accounting records; and coordination of receipt of
funds for deposit to the Escrow Account(s). 
The Acceptance Fee is payable at time of Escrow Agreement execution.


 


	
  Annual
  Escrow Agent Administration Fee:

  	
   

  	
  $3,500.00

  



For
ordinary administrative services by Escrow Agent – includes daily routine
account management; investment transactions; cash transaction processing (including
wire and check processing); monitoring claim notices pursuant to the agreement;
disbursement of funds in accordance with the agreement; and mailing of trust
account statements to all applicable parties. Float credit received by the bank
for receiving funds that remain un-invested are deemed part of the Escrow Agent’s
compensation. Tax reporting is included for up to two (2) entities or
individuals.  In the event additional
reporting is necessary, a $25 per reporting charge will be assessed.


 


This
fee is payable in advance, with the first installment due at the time of Escrow
Agreement execution. The Annual Escrow Agent Administration Fee covers the full
term of the escrow and will not be prorated or refunded in the year of early
termination, if any.


 


Wells Fargo’s bid is based on the following
assumptions:


 


·                  Number of
Escrow Accounts to be established:  One
(1)


 


·                  Number of
Deposits to Escrow Account:  One (1)


 


·                  Number of Withdrawals from Escrow Fund:  Estimated One (1)


 


·                  Term of
Escrow:  Approximately Twelve (12) Months


 


·                  APPOINTMENT
SUBJECT TO RECEIPT OF REQUESTED DUE DILIGENCE INFORMATION AS PER THE USA
PATRIOT ACT


 


·                  THIS
PROPOSAL ASSUMES THAT BALANCES IN WILL BE INVESTED IN WELLS FARGO MONEY MARKET
DEMAND ACCOUNT OR WELLS FARGO ADVANTAGE FUNDS


 


·                  ALL
FUNDS WILL BE RECEIVED FROM OR DISTRIBUTED TO A DOMESTIC OR AN APPROVED FOREIGN
ENTITY


 


·                  IF THE
ACCOUNT(S) DOES NOT OPEN WITHIN THREE (3) MONTHS OF THE DATE SHOWN
BELOW, THIS PROPOSAL WILL BE DEEMED TO BE NULL AND VOID


 


	
  Out-of
  Pocket Expenses:

  	
   

  	
  At Cost

  



 


We will charge for out-of-pocket expenses in response to
specific tasks assigned by the client or provided for in the escrow
agreement.  Possible expenses would be,
but are not limited to, express mail and messenger charges, travel expenses to
attend closing or other meetings.   There
are no charges for indirect out-of- pocket expenses.


 


This fee schedule is based upon the
assumptions listed above which pertain to the responsibilities and risks
involved in Wells Fargo undertaking the role of Escrow Agent.  These assumptions are based on information
provided to us as of the date of this fee schedule.  Our fee schedule is subject to review and
acceptance of the final documents. 
Should any of 


 

















 


the assumptions, duties or responsibilities
change, we reserve the right to affirm, modify or rescind our fee schedule.
Extraordinary services (services other than the ordinary administration
services of Escrow Agent described above) are not included in the annual
administration fee and will be billed as incurred at the rates in effect from
time to time.


 

















 


EXHIBIT K


 


FRACTIONATION AND NGL
PURCHASE AGREEMENT


 


(see attached)


 


K-1

















 


FRACTIONATION AND NATURAL GAS LIQUIDS PURCHASE AGREEMENT


 


This
Fractionation and Natural Gas Liquids Purchase Agreement (“Agreement”) is made
and entered into this          day of
                  ,
200    , by and between MARKWEST LIBERTY MIDSTREAM &
RESOURCES, L.L.C., a Delaware limited liability company (“Liberty”), and
MARKWEST HYDROCARBON, INC., a Delaware corporation (“MarkWest”).  Liberty and MarkWest may be referred to
individually as “Party”, or collectively as “Parties”.


 


Section 1.                                            Scope
of Agreement and General Terms and Conditions.  Liberty agrees to deliver, or cause to be
delivered, and to sell to MarkWest the Raw Make (and the Plant Products
contained therein) it delivers to MarkWest, as defined below, and MarkWest
agrees to receive and purchase such Raw Make (and the Plant Products contained
therein), to cause such Raw Make to be fractionated into Plant Products, and to
use commercially reasonable efforts to market such Plant Products, all in
accordance with this Agreement. This Agreement incorporates and is subject to
all of the General Terms and Conditions attached hereto, together with any
other Exhibits attached hereto.


 


Section 2.                                            Effective
Date.  The date on
which the obligations and duties of the Parties shall commence, being the “Effective
Date”, shall be
                ,
200    .


 


Section 3.                                            Term. This
Agreement shall remain in full force and effect from the Effective Date for a
period of ** thereafter (“Primary Term”), and
Liberty may renew this Agreement on a year-to-year basis thereafter upon 60
days written notice in advance of the expiration of the Primary Term or of any
yearly extension thereof (the Primary Term collectively with any renewal term,
the “Term”).


 


Section 4.                                            Consideration.


 


A.                                   As full consideration for the sale of the
Raw Make and the Plant Products contained therein and the fractionation of the
Raw Make into Plant Products, as defined below, MarkWest shall pay Liberty as
follows:


 


i.                                          For each Accounting Period during the
Term, MarkWest shall pay to Liberty **, multiplied
by the gallons of individual Plant Products contained in the Raw Make delivered
by Liberty to MarkWest during that Accounting Period, as determined at the
Measurement Point and as adjusted for Incidental Losses and Gains, less the
following fees:


 


a.                                       A fractionation fee for the fractionation
of the Raw Make into Plant Products, equal to the gallons of Raw Make delivered
by Liberty to MarkWest during that Accounting Period, as determined at the
Measurement Point, multiplied by ** (the “Fractionation
Fee”);


 


b.                                      The cost of Fuel utilized in the Siloam
Facility, which shall equal the **;


 


1

















 


c.                                       Should Liberty deliver any Raw Make by
railcar, an unloading fee of ** per gallon
of Raw Make unloaded from railcars (the “Unloading Fee”); and


 


d.                                      The **
transportation costs incurred in connection with transporting the Raw Make from
the Delivery Point to the Siloam Facility.


 


ii.                                       The Fractionation Fee and the Unloading
Fee (collectively, the “Fees”) shall be adjusted annually as set forth
below.  **
the Fees shall be adjusted on an annual basis in proportion to the percentage
change, from the preceding year in the Producer Price Index for oil and gas
field services (SIC 138) as published by the Department of Labor (the “PPI”).
The adjustment of the Fractionation Fee shall be made effective January 1
of each year, and shall reflect the percentage change in the PPI as it existed
for the immediately preceding January from the PPI for the second
immediately preceding January.


 


iii.                                    In the event that storage of Plant
Products is required, the Parties shall negotiate in good faith regarding the
terms and conditions relating to such storage.


 


Section 5.                                            Notices.   All notices, statements, invoices or other
communications required or permitted between the Parties shall be in writing
and shall be considered as having been given if delivered by mail, courier,
hand delivery, or facsimile to the other Party at the designated address or
facsimile numbers. Normal operating instructions can be delivered by telephone
or other agreed means. Notice of events of Force Majeure may be made by
telephone and confirmed in writing within a reasonable time after the
telephonic notice. Monthly statements, invoices, payments and other
communications shall be deemed delivered when actually received. Either Party
may change its address or facsimile and telephone numbers upon written notice
to the other Party:


 


MarkWest:


 


Address:                                               1515 Arapahoe
Street, Tower 2, Suite 700

Denver, Colorado 80202

Attn: Senior Vice President and Chief Operations Officer

Phone:  (303) 925-9246

Fax: (303) 925-9305


 


With
a copy to:


 


1515
Arapahoe Street, Tower 2, Suite 700

Denver, Colorado 80202

Attn: Senior Vice President and General Counsel

Phone:  (303) 925-9220

Fax: (303) 925-9308


 


Liberty:


 


Address:                                               1515 Arapahoe
Street, Tower 2, Suite 700

Denver, Colorado 80202


 


2

















 


Attn:
Senior Vice President and Chief Operations Officer

Phone:  (303) 925-9246

Fax: (303) 925-9305


 


With
a copy to:


 


1515
Arapahoe Street, Tower 2, Suite 700

Denver, Colorado 80202

Attn: Senior Vice President and General Counsel

Phone:  (303) 925-9220

Fax: (303) 925-9308


 


and
to:


 


M&R
MWE Liberty, LLC

1401 McKinney, Suite 1025

Houston, Texas  77010

Attn: Jeffrey C. Rawls


 


and
to:


 


Locke
Lord Bissell & Liddell, LLP

600 Travis Street, Suite 3400

Houston, Texas 77002

Fax  (713) 226-1143

Attention: H. William Swanstrom


 


Section 6.                                            Execution. This
Agreement may be executed in any number of counterparts, each of which shall be
considered and original, and all of which shall be considered one instrument.


 


[signature page follows]


 


3

















 


IN
WITNESS WHEREOF, the Parties have executed this Fractionation and Natural Gas
Liquids Purchase Agreement on the date first set forth above.


 


 


	
   

  	
  MARKWEST
  HYDROCARBON, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MARKWEST
  LIBERTY MIDSTREAM & RESOURCES, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


4
















 


GENERAL TERMS AND CONDITIONS


Attached to and made a part of that certain


Fractionation and Natural Gas Liquids Purchase Agreement


between


MarkWest Hydrocarbon, Inc., as “MarkWest”


and


MarkWest Liberty Midstream & Resources, L.L.C., as “Liberty”


Dated:


                        ,
200


 


ARTICLE
1: DEFINITIONS


 


Accounting Period.     The period
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.


 


Btu.  A British Thermal Unit, which is the quantity
of heat required to raise the temperature of one (1) pound avoirdupois of
pure water from fifty-eight and five tenths degrees Fahrenheit (58.5°F) to
fifty-nine and five tenths degrees Fahrenheit (59.5°F) at a pressure of fourteen
and six hundred ninety-six thousandths pounds per square inch absolute (14.696
psia).


 


Delivery
Point.     The point at which Raw Make
is delivered to MarkWest, being the outlet flange of the Raw Make loading
facilities of Liberty’s processing facilities near Houston, PA or Marshall
County, WV.


 


Force
Majeure.    Any cause or condition not
within the commercially reasonable control of the Party claiming suspension and
which by the exercise of commercially reasonable diligence, such Party is
unable to prevent or overcome.


 


Fuel.       All Gas, Plant
Products, vapors or other forms of energy utilized as fuel in the Siloam
Facility.


 


Fuel Price.    ** for natural gas plus **, calculated each month on the last trading day of the
month for the applicable month of delivery.


 


Fuel
Utilization Rate.  **
MMbtu/gallon.


 


Gas.  All hydrocarbon and
non-hydrocarbon substances in a gaseous state.


 


Incidental Losses or Gains.       The incidental
losses of Raw Make and/or Plant Products incurred in MarkWest’s facilities, or
the losses or gains of Raw Make and/or Plant Products incurred due to
variations in measurement equipment.


 


Indemnifying
Party and Indemnified Party.  As defined in Article 8, below.


 


Losses. Any
actual loss, cost, expense, liability, damage, demand, suit, sanction, claim,
judgment, lien, fine or penalty asserted by a third party unaffiliated with the
Party incurring such, and which are incurred by the applicable Indemnified
Party on account of injuries (including death) to any person or damage to or
destruction of any property, sustained or alleged to have been 


 


5

















 


sustained
in connection with or arising out of the matters for which the Indemnifying
Party has indemnified the applicable Indemnified Party.


 


Measurement
Point.    The measurement facilities at the Siloam
Facility.


 


MMBtu.  1,000,000 Btu’s.


 


Net
Sales Price.    The volume-weighted average
net sales price per gallon of each individual component of the Plant Products
received by MarkWest, or by an affiliated agent of MarkWest, from unaffiliated
third party purchasers (excluding any sales to affiliates of MarkWest) for all
Plant Products sold by MarkWest or by an affiliated agent of MarkWest at the
Siloam Facility during the applicable Accounting Period, or for Plant Products
not sold at the Siloam Facility, the net sales price shall be a calculated
amount of the proceeds from unaffiliated third party purchasers (excluding any
sales to affiliates of MarkWest) netted back to the Siloam Facility after deduction
of all unaffiliated third party transportation and storage related charges and,
in the event of affiliated transportation charges, the actual costs, to include
amortization costs for railcars owned by MarkWest or its affiliates **.


 


Plant
Products.    Ethane, propane, iso-butane,
normal butane, iso-pentane, normal pentane, hexanes plus, any other liquid
hydrocarbon product, or any mixtures thereof, and any incidental methane
included in any of the foregoing, as contained in the Raw Make delivered by Liberty
to MarkWest under this Agreement.


 


Raw
Make.     A combined stream of propane and heavier
liquefied hydrocarbons, including incidental ethane.


 


Siloam
Facility.    MarkWest Energy Appalachia,
L.L.C.’s Siloam fractionation facility located near South Shore, Kentucky,
including any treating equipment, Plant Products separation and fractionation
vessels, all above ground Plant Products storage vessels and all below ground
Plant Products storage caverns and facilities, and associated condensing,
heating, pumping, conveying, and other equipment and instrumentation; including
all structures associated with those facilities; and all Plant Products loading
facilities, including railcar loading, truck loading and barge loading
facilities and including all easements, rights-of-way, and other property
rights pertaining to the construction and operation of those facilities;
wherever those facilities, structures, easements, rights-of-way, and other
property rights are located.


 


ARTICLE 2: LIBERTY’S COMMITMENTS


 


2.1.          Liberty hereby
commits and agrees to sell to MarkWest, at the Delivery Point, all of the Raw
Make (and all of the Plant Products contained therein) that Liberty elects to
deliver at the Delivery Point, as adjusted for Incidental Losses or Gains.


 


ARTICLE 3: MARKWEST’S
COMMITMENTS


 


3.1.          MarkWest hereby
commits and agrees to (a) receive and purchase from Liberty, at the
Delivery Point, all of the Raw Make (and the Plant Products contained therein)
delivered by Liberty at the Delivery Point, as adjusted for Incidental Losses
or Gains, ** at Siloam to fractionate **, in which case MarkWest shall **,
(b) subject to the foregoing clause (a), cause the Raw Make to be
fractionated into Plant Products in accordance with this Agreement, and (c) use
commercially reasonable efforts to market the Plant Products.  MarkWest’s 


 


6

















 


acceptance
of Raw Make from Liberty is ** as of the
date of this Agreement and **, and ** Raw Make.


 


ARTICLE 4: OPERATION OF MARKWEST’S
FACILITIES


 


4.1           All facilities
operated by MarkWest which are required for the performance of the services
provided herein shall be maintained and operated at MarkWest’s sole cost and
expense.  MarkWest will provide, or will
cause its affiliates to provide, Fuel for the Siloam Facility.


 


4.2           All Incidental
Losses and Gains incurred at the Siloam Facility shall be allocated to Liberty
and the other parties for whom MarkWest is causing Raw Make to be fractionated
at the Siloam Facility on a pro rata basis based upon the volume of Raw Make
that MarkWest is causing to be fractionated at the Siloam Facility.


 


ARTICLE
5: QUALITY


 


5.1.          As long as the
Raw Make delivered hereunder for fractionation is of a quality which, when
fractionated, meets the applicable specifications set forth on Exhibit A
attached hereto, then MarkWest agrees to receive the Raw Make and to cause the
Raw Make to be fractionated into Plant Products meeting the specifications set
forth herein.


 


5.2           Should any of
the Raw Make fail to meet the above specifications, then:


 


A.            MarkWest may
take receipt of the non-conforming Raw Make, and that receipt shall not be
construed as a waiver or change of standards for future Raw Make deliveries; or


 


B.            MarkWest may,
at its sole discretion, cease receiving the non-conforming Raw Make, and shall
notify Liberty that it has, or will, cease receiving the non-conforming Raw
Make.


 


5.3           MarkWest shall
cause all Raw Make meeting the requirements under Section 5.1 to be
fractionated to produce Plant Products meeting the specifications set forth on Exhibit A
attached hereto.


 


5.4           MarkWest shall
cause Plant Products to be odorized in accordance with the directions of
Liberty.


 


ARTICLE 6: MEASUREMENT
EQUIPMENT AND PROCEDURES AND ANALYSES


 


6.1           Raw
Make.  Raw Make shall be measured
at the Measurement Point and shall conform to applicable API and GPA standards
for truck and rail car measurement as follows:


 


A.            The trucks
shall be weighed empty and full.  GPA
Standard 8186, as revised, is the standard to be used on all truck deliveries.


 


B.            Rail cars shall
be measured using strapping tables and liquid spew gauges.  Vapor correction calculations will be made as
required by applicable industry standards.


 


6.2.          Plant
Products.  Measurement of
all Plant Products and deliveries shall be converted to 60° F and shall conform
to applicable API and GPA standards for truck and rail car measurement:


 


A.            The trucks
shall be weighed both empty and full. 
GPA Standard 8186, as revised, is the standard to be used on all truck
deliveries.


 


B.            Rail cars shall
be measured using strapping tables and liquid spew gauges.  Vapor correction calculations will 


 


7

















 


be
made as required by applicable industry standards.


 


6.3           Measurement
Inaccuracies.  If any
measuring equipment used herein is out of service or, upon test, is found to be
in error by an amount exceeding 1%, at a recording rate corresponding to the
average rate of flow for the period since the last preceding test, then any
preceding recordings of that equipment since the last preceding test shall be
corrected to zero error for any period which is known definitely or agreed
upon.  If the period is not known
definitely or agreed upon, the correction shall be for a period extending back
one-half of the time elapsed since the last test.  In the event a correction is required for
previous deliveries, the volumes delivered shall be calculated by the first of
the following methods which is feasible: 
(i) by using the registration of any check meter or meters if
installed and accurately registering; or (ii) by correcting the error if
the percentage of error is ascertainable by calibration, test, or mathematical
calculations; or (iii) by Liberty estimating the quantity of delivery by
deliveries during periods of similar conditions when the meter was registering
accurately.


 


6.4           Analyses.


 


A.            MarkWest shall,
at its sole cost, risk and expense, install, operate and maintain,  or cause to be installed, operated and
maintained, equipment to analyze the composition of the Raw Make and of the
Plant Products in accordance with applicable GPA standards.


 


B.            With respect to
Raw Make delivered by tank and truck cars, and with respect to Plant Products,
samples shall be analyzed in accordance with applicable GPA standards.  The analysis shall also include the
determination of the molecular weight, density and heating value of the
pentanes and heavier hydrocarbons, quarterly in accordance with industry
recognized standards.  Liberty or
MarkWest or their representatives may take samples for verification of
composition and may be present during any of the other party’s sampling
operations.


 


ARTICLE
7: PAYMENTS


 


7.1.          Based on the
measurements set forth in this Agreement, MarkWest shall provide Liberty with a
statement explaining how all payments due under the terms of this Agreement
were determined not later than the 20th day of the
Accounting Period following the Accounting Period for which the consideration
is due.  Any sums due MarkWest or Liberty
under this Agreement shall be paid no later than the last day of the Accounting
Period in which the statement provided pursuant to the preceding sentence was
received.


 


7.2           Either Party,
on 10 days prior written notice, shall have the right at its expense, at
reasonable times during business hours, to audit the books and records of the
other Party to the extent necessary to verify the accuracy of any statement,
measurement, computation, charge, or payment made under or pursuant to this
Agreement.  The scope of any audit shall
be limited to the 24 month period immediately prior to the month in which the
audit is completed. However, no audit may include any time period for which a
prior audit hereunder was conducted, and no audit may occur more frequently
than once each 12 months.  All
statements, allocations, measurements, computations, charges, or payments made
in any period prior to the 24 month period immediately prior to the month in
which the audit is requested, or made in any 24 month period for which the
audit is requested but for which a written claim for adjustments is 


 


8

















 


not
made within 90 days after the audit is requested shall be conclusively deemed
true and correct and shall be final for all purposes.  To the extent that the foregoing varies from
any applicable statute of limitations, the Parties expressly waive all such
other applicable statutes of limitations.


 


ARTICLE
8: FORCE MAJEURE


 


8.1.          In the event a
Party is rendered unable, wholly or in part, by Force Majeure, to carry out its
obligations under this Agreement, other than the obligation to make any
payments due hereunder, the obligations of that Party, so far as they are
affected by Force Majeure, shall be suspended from the inception and during the
continuance of the inability, and the cause of the Force Majeure, as far as
possible, shall be remedied with commercially reasonable diligence. The Party
affected by Force Majeure shall provide the other Party with a reasonably
detailed written notice of the Force Majeure event within a reasonable time
after the affected Party learns of the occurrence of the Force Majeure event.
The settlement of strikes, lockouts, and other labor difficulty shall be
entirely within the discretion of the Party having the difficulty and nothing
herein shall require the settlement of strikes, lockouts, or other labor
difficulty.


 


ARTICLE 9: LIABILITY AND INDEMNIFICATION


 


9.1.          As among the
Parties hereto, Liberty and any of its designees shall be in custody, control
and possession of the Raw Make and Plant Products hereunder, until the Raw Make
and Plant Products are delivered to MarkWest at the Delivery Point.


 


9.2.          As among the
Parties hereto, MarkWest and any of its designees shall be in custody, control
and possession of the Raw Make and Plant Products hereunder after the Raw Make
and Plant Products are delivered at the Delivery Point.


 


9.3.          Each Party (“Indemnifying
Party”) hereby covenants and agrees with the other Party, and its affiliates
(except for the Indemnifying Party itself), and each of their directors,
officers, managers, partners, members and employees (“Indemnified Parties”),
that except to the extent caused by the Indemnified Parties’ gross negligence
or willful conduct, the Indemnifying Party shall protect, defend, indemnify and
hold harmless the Indemnified Parties from, against and in respect of any and
all Losses incurred by the Indemnified Parties to the extent those Losses arise
from or are related to: (a) the Indemnifying Party’s facilities; or (b) the
Indemnifying Party’s possession and control of the Raw Make or Plant Products,
as applicable.


 


ARTICLE
10: MISCELLANEOUS


 


10.1.        The failure of
any Party hereto to exercise any right granted hereunder shall not impair nor
be deemed a waiver of that Party’s privilege of exercising that right at any
subsequent time or times.


 


10.2.        This Agreement
shall be governed by, construed, and enforced in accordance with the laws of
the State of Kentucky without regard to choice of law principles.


 


10.3.        This Agreement
shall extend to and inure to the benefit of and be binding upon the Parties,
and their respective successors and assigns, including any assigns of MarkWest’s
interests covered by this Agreement. No assignment of this Agreement shall be
binding on either of the Parties until the first day of the Accounting Period
following the date a certified copy of the instrument evidencing that sale,
transfer, assignment or conveyance has been 


 


9

















 


delivered
to the other Party. Further, each assigning Party shall notify its assignee of
the existence of this Agreement and obtain a ratification of this Agreement
prior to such assignment. No assignment by either Party shall relieve that
Party of its continuing obligations and duties hereunder without the express consent
of the other Party.


 


10.4.        Any change,
modification or alteration of this Agreement shall be in writing, signed by the
Parties; and, no course of dealing between the Parties shall be construed to
alter the terms of this Agreement.


 


10.5         This Agreement,
including all exhibits and appendices, contains the entire agreement between
the Parties with respect to the subject matter hereof, and there are no oral or
other promises, agreements, warranties, obligations, assurances, or conditions
precedent, affecting it.


 


10.6         NO BREACH OF THIS AGREEMENT OR
CLAIM FOR LOSSES UNDER ANY INDEMNITY OBLIGATION CONTAINED IN THIS AGREEMENT
SHALL CAUSE ANY PARTY TO BE LIABLE FOR, NOR SHALL LOSSES INCLUDE, ANY DAMAGES
OTHER THAN ACTUAL AND DIRECT DAMAGES, AND EACH PARTY EXPRESSLY WAIVES ANY RIGHT
TO CLAIM ANY OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL,
SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES.


 


10.7         Any dispute
arising under this Agreement (“Arbitrable Dispute”) shall be referred to and
resolved by binding arbitration in Houston, Texas, by three (3) arbitrators,
in accordance with the rules and procedures of the American Arbitration
Association (“AAA”); and, to the maximum extent applicable, the Federal
Arbitration Act (Title 9 of the United States Code). If there is any
inconsistency between this Section and any statute or rules, this Section shall
control. Arbitration shall be initiated within the applicable time limits set
forth in this Agreement and not thereafter or if no time limit is given, within
the time period allowed by the applicable statute of limitations, by one party
(“Claimant”) giving written notice to the other party (“Respondent”) and to
AAA, that the Claimant elects to refer the Arbitrable Dispute to arbitration,
and that the Claimant has appointed an arbitrator, who shall be identified in
such notice. The Respondent shall notify the Claimant and AAA within thirty
(30) days after receipt of Claimant’s notice, identifying the arbitrator the
Respondent has appointed. The two (2) arbitrators so chosen shall select a
third arbitrator within thirty (30) days after the second arbitrator has been
appointed (upon failure of a party to act within the time specified for naming
an arbitrator, such arbitrator shall be appointed by the AAA in accordance with
its rules). MarkWest shall pay the compensation and expenses of the arbitrator
named by or for it, Liberty shall pay the compensation and expenses of the
arbitrator named by or for it, and MarkWest and Liberty shall each pay one-half
of the compensation and expenses of the third arbitrator. All arbitrators must
be neutral parties who have never been officers, directors, employees,
contractors or agents of the parties or any of their Affiliates, must have not
less than ten (10) years experience in the oil and gas industry, and must
have a formal financial/accounting, engineering or legal education. The parties
shall have all rights of discovery in accordance with the Federal Rules of
Civil Procedure. The hearing shall be commenced within thirty (30) days after
the selection of the third arbitrator. The parties and the arbitrators 


 


10

















 


shall
proceed diligently and in good faith in order that the arbitral award shall be
made as promptly as possible.  To the
maximum extent allowed by law, in all arbitration proceedings the laws of
Kentucky shall be applied, without regard to any conflicts of laws principles.
All statutes of limitation and of repose that would otherwise be applicable
shall apply to any arbitration proceeding. The tribunal shall not have the
authority to grant or award indirect or consequential damages, punitive damages
or exemplary damages.


 


11














 
EXHIBIT A
 
PRODUCTS QUALITY SPECIFICATIONS


 


PROPANE


 


	
  Product Characteristics

  	
   

  	
  Minimum

  	
   

  	
  Maximum

  	
   

  	
  Test Methods

  Latest Revision

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  **

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 
12

















 


NORMAL BUTANE


 


	
  Product Characteristics

  	
   

  	
  Minimum

  	
   

  	
  Maximum

  	
   

  	
  Test Methods

  Latest Revision

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  **

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


13

















 


ISOBUTANE


 


	
  Product Characteristics

  	
   

  	
  Minimum

  	
   

  	
  Maximum

  	
   

  	
  Test Methods

  Latest Revision

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  **

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


14

















 


NATURAL GASOLINE


 


	
  Product Characteristics

  	
   

  	
  Minimum

  	
   

  	
  Maximum

  	
   

  	
  Test Methods

  Latest Revision

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  **

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


15
















 


EXHIBIT D


 


SERVICES AGREEMENT


 

















 


SERVICES AGREEMENT


 


BY AND BETWEEN


 


MARKWEST HYDROCARBON, INC.


 


MARKWEST LIBERTY GAS GATHERING, L.L.C.


 


AND


 


MARKWEST LIBERTY MIDSTREAM & RESOURCES, L.L.C.


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I. DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  1.1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II. CAPEX FEE

  	
  4

  
	
   

  	
   

  
	
  2.1

  	
  CapEx Fee

  	
  4

  
	
  2.2

  	
  CapEx Fee Payment Procedures

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE III. GENERAL AND ADMINISTRATIVE SERVICES

  	
  4

  
	
   

  	
   

  
	
  3.1

  	
  General and Administrative Services

  	
  4

  
	
  3.2

  	
  General and Administrative Fee

  	
  5

  
	
  3.3

  	
  G&A Fee Payment Procedures

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV. PERSONNEL SERVICES

  	
  6

  
	
   

  	
   

  
	
  4.1

  	
  Personnel Services

  	
  6

  
	
  4.2

  	
  Personnel Procedures

  	
  6

  
	
  4.3

  	
  Personnel Expenses

  	
  6

  
	
  4.4

  	
  Personnel Expenses Reimbursement Procedures

  	
  7

  
	
  4.5

  	
  Acknowledgment and Insurance

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE V. TERM

  	
  8

  
	
   

  	
   

  
	
  ARTICLE VI. LIMITS OF RESPONSIBILITY; INDEMNIFICATION

  	
  8

  
	
   

  	
   

  
	
  6.1

  	
  Limits of Responsibility

  	
  8

  
	
  6.2

  	
  Indemnification by the Company

  	
  9

  
	
  6.3

  	
  Indemnification by MWE Hydrocarbon

  	
  9

  
	
  6.4

  	
  Remedies for Breach

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII. GENERAL PROVISIONS

  	
  10

  
	
   

  	
   

  
	
  7.1

  	
  Accuracy of Recitals

  	
  10

  
	
  7.2

  	
  Choice of Law; Submission to Jurisdiction

  	
  10

  
	
  7.3

  	
  Notices

  	
  10

  
	
  7.4

  	
  Further Assurances

  	
  12

  
	
  7.5

  	
  Entire Agreement

  	
  12

  
	
  7.6

  	
  Effect of Waiver or Consent

  	
  12

  
	
  7.7

  	
  Amendment or Modification

  	
  12

  
	
  7.8

  	
  Assignment; Third-Party Beneficiaries

  	
  12

  
	
  7.9

  	
  Counterparts

  	
  12

  
	
  7.10

  	
  Severability

  	
  12

  
	
  7.11

  	
  Interpretation

  	
  12

  
	
  7.12

  	
  Relationship of the Parties

  	
  13

  
	
  7.13

  	
  Binding Effect

  	
  13

  
	
  7.14

  	
  Time of the Essence

  	
  13

  
	
  7.15

  	
  Withholding or Granting of Consent

  	
  13

  
	
  7.16

  	
  Laws and Regulations

  	
  13

  



 


i

















 


	
  7.17

  	
  No Recourse Against Officers or Directors

  	
  13

  
	
  7.18

  	
  Signatories Duly Authorized

  	
  13

  
	
  7.19

  	
  Incorporation of Exhibits by References

  	
  13

  
	
  7.20

  	
  Dispute Resolution and Arbitration

  	
  13

  
	
  7.21

  	
  Legal Compliance

  	
  15

  
	
  7.22

  	
  Books & Records

  	
  15

  
	
  7.23

  	
  Audit Rights

  	
  15

  



 


ii

















 


SERVICES
AGREEMENT


 


This Services Agreement
(this “Agreement”), is executed and
agreed to as of
[                      ]
[      ], 2009, to become effective at the
Closing (the date and time of such Closing, if any, the “Effective
Time”) by and between MarkWest Hydrocarbon, Inc., a
Delaware corporation (“MWE Hydrocarbon”),
MarkWest Liberty Gas Gathering, LLC, a Delaware limited liability company (“MWE Liberty”) and MarkWest Liberty
Midstream & Resources, L.L.C., a Delaware limited liability company
(the “Company”).  MWE Hydrocarbon, MWE Liberty and the Company
are hereinafter each referred to as a “Party” and
are collectively referred to as the “Parties.”


 


RECITALS


 


WHEREAS, MWE Liberty has
been designated as the Operator pursuant to the Company Operating Agreement and
believes it to be advisable and in the best interests of the Company to enter
into this Agreement in order to provide for the provision by MWE Hydrocarbon of
certain services to the Company; and


 


WHEREAS, MWE Hydrocarbon
will provide to the Company and its subsidiaries (collectively, the “Company Entities”) all of the
services necessary to operate, manage, maintain and report the operating
results of the Company Entities’ assets, including natural gas processing
plants, natural gas gathering pipelines, natural gas liquids pipelines,
fractionation facilities, compressors, treating facilities, transportation
facilities, storage facilities and related equipment and assets (collectively,
the “Company Assets”);


 


NOW THEREFORE, in
consideration of the premises and the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereby agree as follows:


 


ARTICLE 1


DEFINITIONS


 


Section 1.1             Definitions.  As used in this Agreement, the following
terms shall have the respective meanings set forth below:


 


“Additional Projects” has the meaning
ascribed to such term in the Company Operating Agreement.


 


“Agreement” is defined in the
preamble.


 


“Approved Budget” has the meaning
ascribed to such term in the Company Operating Agreement.


 


“Area of Mutual Interest” has the
meaning ascribed to such term in the Company Operating Agreement.


 


“Available Cash” has the meaning
ascribed to such term in the Company Operating Agreement.


 


1

















 


“CapEx Fee” is defined in Section 2.1.


 


“Capital Expenditures” means the
amount of all capital expenditures and capital costs related to the Projects
that are paid by the Company or a subsidiary of the Company and which are (i) expended
for the acquisition of real property interests, making application for,
prosecuting or obtaining permits, paying for equipment or other personal property
or otherwise expended in the development, construction and expansion of the
Projects (but, excluding maintenance capital expenditures) and (ii) ** of the **, including ** in accordance with the Company Operating Agreement.  For clarity purposes, the definition of “Capital
Expenditures” shall **, but shall ** in accordance with clauses (i) and (ii) of the
immediately preceding sentence.


 


“Claimant” is defined in Section 7.20(b).


 


“Class A Percentage Interest”
has the meaning ascribed to such term in the Company Operating Agreement.


 


“Closing” has the meaning ascribed to
such term in the Contribution Agreement.


 


“Company” is defined in the preamble.


 


“Company Assets” is defined in the
recitals.


 


“Company Board” means the Board of
Managers of the Company.


 


“Company Entities” is defined in the
recitals.


 


“Company Entity” means any of the
Company Entities.


 


“Company Operating Agreement” means
that certain Amended and Restated Limited Liability Company Agreement of the
Company, executed and agreed to as of the date hereof.


 


“Company Released Parties” is defined
in Section 6.1(a).


 


“Contribution Agreement” means that
certain Contribution Agreement, dated as of the date hereof, by and among the
Company, MWE Liberty and M&R MWE Liberty, LLC, a Delaware limited liability
company.


 


“Control,” including the correlative
terms “Controlling,” “Controlled by” and “Under Common Control with” means
possession, directly or indirectly (through one or more intermediaries), of the
power to direct or cause the direction of management or policies (whether
through ownership of securities or any partnership or other ownership interest,
by contract or otherwise) of a Person. 
For the purposes of this definition, ownership of more than 50% of the
voting interests of any entity shall be conclusive evidence that Control
exists.


 


“CP Index” means the United States
Department of Labor, Bureau of Labor Statistics Consumer Price Index — All
Urban Consumers, U.S. City Average, Not Seasonally Adjusted, or, if such index
is discontinued, any successor or substitute index, which, in MWE Hydrocarbon’s
reasonable opinion, is most nearly equivalent to such index.


 


2

















 


“Designated MWE Employees” is defined
in Section 4.2.


 


“Effective Time” shall have the
meaning set forth in the preamble.


 


“G&A Fee” is defined in Section 3.2(a).


 


“G&A Services” is defined in Section 3.1.


 


“Investment Balance” has the meaning
ascribed to such term in the Company Operating Agreement.


 


“Loss” and “Losses”
are defined in Section 6.2.


 


“Member” has the meaning ascribed to
such term in the Company Operating Agreement.


 


“MWE Entities” means MWE Hydrocarbon
and any other Person Controlled by MWE Hydrocarbon or MarkWest Energy Partners,
L.P., including MWE Liberty.


 


“MWE Entity” means any of the MWE
Entities.


 


“MWE Hydrocarbon” is defined in the
preamble.


 


“MWE Indemnified Party” is defined in
Section 6.2.


 


“MWE Liberty” is defined in the
preamble.


 


“MWE Released Parties” is defined in Section 6.1(a).


 


“Operator” has the meaning ascribed
to such term in the Company Operating Agreement.


 


“Party” and “Parties”
are defined in the preamble.


 


“Person” means any natural person,
corporation, limited partnership, general partnership, limited liability
company, joint stock company, joint venture, association, company, estate,
trust, bank trust company, land trust, business trust, or other organization,
whether or not a legal entity, custodian, trustee-executor, administrator,
nominee or entity in a representative capacity and any government or agency or
political subdivision thereof.


 


“Personnel Expenses” is defined in Section 4.3.


 


“Personnel Services” is defined in Section 4.1.


 


“Projects” has the meaning ascribed
to such term in the Company Operating Agreement.


 


“Prudent Industry Practices” means,
at a particular time, any of the practices, methods and acts which, ** based upon the **, and the **, at such time, is ** operation
and maintenance of the Company Assets and shall include, without limitation,
the practices, methods and acts engaged in or approved by **
at such time with respect to the assets of the same or similar types as the
Company Assets. Prudent Industry Practices are not intended to be limited to ** to the 


 


3

















 


exclusion
of all others, but rather is ** practices,
methods and acts which ** at a ** as well as with the **. Prudent
Industry Practices are intended to entail the **,
in the **, use from time to time.


 


** is defined in Section 2.1.


 


“Respondent” is defined in Section 7.20(b).


 


“Services” means all of the services
necessary to operate, manage, maintain and report the operating results of the
Company Assets, which services shall include the G&A Services and the
Personnel Services.


 


ARTICLE 2


CAPEX FEE


 


Section 2.1             CapEx Fee.  In partial consideration for the Services
provided by MWE Hydrocarbon pursuant to this Agreement, the Company shall pay
to MWE Hydrocarbon, or an MWE Entity designated by MWE Hydrocarbon, a quarterly
fee (the “CapEx Fee”) equal to ** starting from and including the fiscal quarter in which
the Closing occurs **; provided that the CapEx Fee for the fiscal quarter in which
the Closing occurs shall be an amount equal to (a) **
(as defined in the Company Operating Agreement) of MWE Liberty ** (b) the CapEx Fee determined based on the ** such fiscal quarter in which the Closing occurs.


 


Section 2.2             CapEx Fee Payment Procedures.  Within 10 days after the end of each fiscal
quarter after the Closing occurs, the Company shall pay in immediately
available funds the CapEx Fee with respect to such fiscal quarter.


 


ARTICLE 3


GENERAL AND ADMINISTRATIVE SERVICES


 


Section 3.1             General and Administrative Services.  MWE Hydrocarbon
agrees to provide the Company Entities with certain general and administrative
services employing internal resources and employees of the MWE Entities,
including legal, accounting, treasury, risk management, health, safety and
environmental, information technology, human resources, credit, payroll,
internal audit and tax services necessary to operate, manage, maintain and
report the operating results of the Company Assets (collectively, the “G&A Services”).  The G&A Services shall be substantially
equivalent in nature and quality to the services of such type provided by MWE
Hydrocarbon in connection with its management and operation of assets similar
to the Company Assets, including other MWE Entities.  MWE Hydrocarbon acknowledges, agrees and
represents that the G&A Services will be provided by its employees,
representatives, agents or contractors and will be provided in accordance with
Prudent Industry Practices.  MWE
Hydrocarbon also acknowledges, agrees and represents that it will be solely and
completely responsible for (a) directing and managing the day-to-day
activities of the employees providing the G&A Services, (b) payment of
all compensation and benefits to, and employment and related taxes on behalf
of, the employees providing such G&A Services and (c) complying with
all statutes, laws, regulations, and ordinances related to its employment of
such employees and any damages arising from its failure to do so.  The G&A Services shall not include any
third party costs or expenses directly incurred by the Company Entities (or
incurred by MWE Hydrocarbon 


 


4

















 


on behalf of the Company Entities),
including, without limitation, insurance coverage (or, if any such insurance is
provided through policies held by any of the MWE Entities, a pro rata
allocation of the cost thereof determined by MWE Hydrocarbon and the Company in
good faith and consistent with the historical practices of the MWE Entities)
which third party costs and expenses shall be borne 100% by the Company
Entities and shall not be subject to the G&A Fee; provided,
however, that (x) the Company will not outsource services that
are of the nature and quality of the services provided by MWE Hydrocarbon in
connection with its management and operation of assets similar to the Company
Assets, including assets of other MWE Entities, (1) unless similar services
are generally outsourced for other MWE Entities and (2) ** and (y) all third party costs incurred by MWE
Hydrocarbon on behalf of the Company must be reflected in an Approved Budget
(as such term is defined in the Company Operating Agreement).


 


Section 3.2             General and Administrative Fee.


 


(a)           Except to the extent modified by this Section 3.2(a),
beginning in the month in which the Closing occurs, in exchange for the G&A
Services, the Company shall pay to MWE Hydrocarbon, or an MWE Entity designated
by MWE Hydrocarbon, a monthly fee (the “G&A Fee”)
based on the following schedule: $** per month
during 2009; $** per month during 2010; $** per month during 2011; $**
per month during 2012; and $** per month
during 2013; provided that for the month in which
the Closing occurs, the G&A Fee shall be prorated based on a fraction, of
which the numerator is the number of days from and including the date of the
Closing to and including the final day of the month in which the Closing
occurs, and of which the denominator is the total number of days in the month
in which the Closing occurs.  As of January 1
of each year beginning on or after January 1, 2014, the G&A Fee shall
be increased by the percentage increase in the CP Index.  In making such adjustments, the G&A Fee
shall be increased by the percentage increase in the CP Index for the prior
year period based on the most recent information available from the United
States Department of Labor.


 


(b)           If after the Closing the Company completes any acquisitions
or dispositions of assets or businesses, or any new laws, regulations or
accounting rules are enacted or implemented, or any other material change
in the business of the Company Entities occurs that is not anticipated as of
the Closing, then the G&A Fee shall be appropriately increased or
decreased, as appropriate, in order to account for adjustments in the nature
and extent of the G&A Services to be provided by the MWE Entities to the
Company Entities, with any such increase or decrease in the G&A Fee to be
determined in good faith negotiations between MWE Hydrocarbon and the Company
at such time.  Such new G&A Fee shall
be subject to certain approval rights set forth in the Company Operating
Agreement, including the Member approval rights set forth in Section 6.12
thereof.


 


5

















 


Section 3.3             G&A Fee Payment Procedures.  Following the end of each month, MWE
Hydrocarbon shall send an invoice to the Company for the G&A Fee for the
preceding month.  The Company shall pay
such invoice within 30 days of receipt.


 


ARTICLE 4


PERSONNEL SERVICES


 


Section 4.1             Personnel Services.  In addition to the G&A Services, MWE
Hydrocarbon shall provide its employees to operate, manage and maintain the
Company Assets (the “Personnel Services”).  The Personnel Services shall be no less than
substantially equivalent in nature and quality to the services of such type
provided by MWE Hydrocarbon in connection with its management of assets similar
to the Company Assets.  MWE Hydrocarbon
acknowledges and agrees that the Personnel Services will be provided by its
employees, representatives, agents or contractors and that it will be solely
and completely responsible for (i) directing and managing the day-to-day
activities of the employees providing the Personnel Services, (ii) payment
of all compensation and benefits to, and employment and related taxes on behalf
of, the employees providing such Personnel Services and (iii) complying
with all statutes, laws, regulations, and ordinances related to the its
employment of such employees and any damages arising from the its failure to do
so.


 


Section 4.2             Personnel Procedures.  The personnel providing the Personnel
Services at the direction of MWE Hydrocarbon, (a) whose primary place of
employment is within the Area of Mutual Interest and who have been assigned to
perform duties with respect to Company Assets or (b) whose primary place
of employment is outside the Area of Mutual Interest and who have been assigned
specific or project-based duties with respect to Company Assets which duties
are expected to be completed within a specified period of time will be referred
to as the “Designated MWE Employees.”  For the avoidance of doubt, the Designated
MWE Employees are not employees of the Company Entities, but instead, the
Designated MWE Employees are employees of MWE Hydrocarbon and are simply
performing Personnel Services for the Company Entities.  Furthermore, the Parties acknowledge that the
Designated MWE Employees providing the Personnel Services shall not include any
Person providing the G&A Services.


 


Section 4.3             Personnel Expenses.  Beginning in the month in which the Closing
occurs, in exchange for the Personnel Services, the Company shall reimburse MWE
Hydrocarbon for the Company Entities’ pro rata share (up to 100% for Designated
MWE Employees whose only duties for the MWE Entities were with respect to
Company Entities’ business in the bi-weekly pay periods ending in the preceding
month) of all costs and expenses incurred by MWE Hydrocarbon after the Effective
Time in connection with the provision of the Personnel Services during the
preceding month or the bi-weekly pay periods ending in the preceding month, as
applicable, related to, among other items, the following costs and expenses
incurred by the MWE Entities for the Designated MWE Employees:


 


(a)           compensation (including equity and equity-based compensation
expenses), salary and wages (including payroll and withholding taxes associated
therewith);


 


(b)           401(k) costs and any matching 401(k) contributions;


 


6
















 


(c)           vacation and sick leave benefits;


 


(d)           medical and health insurance benefits;


 


(e)           disability insurance (including benefits paid);


 


(f)            workers’ compensation (including benefits paid);


 


(g)           life insurance;


 


(h)           any other employee benefit for which the MWE Entities incur
costs.


 


The costs and expenses
described in the immediately preceding sentence, including clauses (a) through
(h) of such sentence, are referred to as “Personnel
Expenses.”  The Company
Entities’ pro rata share of Personnel Expenses with respect to each Designated
MWE Employee shall be based on a fraction, the numerator of which is the number
of hours in the bi-weekly pay periods ending during the preceding month such
Designated Employee devoted to matters relating to the Company Entities’
business and the denominator of which is the aggregate number of hours such
Designated Employee devoted to the businesses of the MWE Entities and the
Company Entities combined in the bi-weekly pay periods ending in the preceding
month; provided that **
Personnel Expenses for any Designated MWE Employee **
that ** the bi-weekly pay periods ending
during the preceding month **.  Where it is not reasonably practicable to
determine the pro rata share of Personnel Expenses with respect to a Designated
Employee, MWE Hydrocarbon shall make a good faith reasonable estimate of such
cost, expense or pro rata share.  The
Company shall accept any estimate described in this paragraph, provided that such estimate is reasonable and made in good
faith.  MWE Hydrocarbon agrees that ** the Personnel Expenses, such **
a Proposed Budget (as defined in the Company Operating Agreement).  For clarity purposes, the Personnel Expenses
shall not include any costs or expenses related to any Person providing G&A
Services.  MWE Hydrocarbon hereby
represents that, as of the date hereof, it has no material liabilities with
respect to workers’ compensation or disability claims.


 


Section 4.4             Personnel Expenses Reimbursement Procedures.  Following the end of
each month, MWE Hydrocarbon shall send a reasonably detailed invoice to the
Company for amount of the Personnel Expenses incurred during the preceding
month or the bi-weekly pay periods ending in the preceding month, as
applicable, which is to be itemized by each Designated MWE Employee with the
calculation of how the Personnel Expenses were derived for each such Designated
MWE Employee.  The Company shall pay such
invoice within 30 days of receipt.


 


Section 4.5             Acknowledgment and Insurance.


 


(a)           MWE Hydrocarbon acknowledges and agrees that the Designated
MWE Employees are not employees of the Company Entities and are not entitled to
employment rights or benefits of the Company Entities.  MWE Hydrocarbon waives and releases the
Company Entities for all claims and causes of action the Designated MWE
Employees (or any subcontractors used by MWE Hydrocarbon to perform the
Services) may have for any 


 


7

















 


compensation, benefits or violations of any statute or
regulation governing employee rights and benefits.


 


(b)           MWE Hydrocarbon shall maintain or require MWE Entities to
maintain insurance consistent with the historical practices of the MWE
Entities, including workers compensation (which specifically names Company
Entities as insureds), automobile liability, and commercial general liability
for injury of, or damages caused by all Designated MWE Employees (or any
subcontractors used by MWE Hydrocarbon to perform the Services) providing
Personnel Services to the Company Entities.


 


ARTICLE 5


TERM


 


The term of this Agreement
will commence on the Effective Time and will continue and remain in full force
and effect until terminated in accordance with this Article V.  MWE Hydrocarbon may terminate this Agreement,
upon ** prior written notice to Company, at
any time when the MWE Entities ** of the
Company.  The Company may terminate this
Agreement, upon ** prior written notice to MWE
Hydrocarbon, at any time when the MWE Entities **
of the Company.  This Agreement may not
be terminated at any other time or for any other reason other than upon
dissolution of the Company or due to the fraud, bad faith, gross negligence or
willful misconduct of MWE Hydrocarbon or MWE Liberty, as established by a
non-appealable court order, judgment, decree or decision.  Upon any such termination, only those
provisions that, by their terms, expressly survive the termination of this
Agreement shall survive such termination.


 


ARTICLE 6


LIMITS OF RESPONSIBILITY; INDEMNIFICATION


 


Section 6.1             Limits of Responsibility.


 


(a)           Except as otherwise set forth herein, MWE Hydrocarbon assumes
no responsibility under this Agreement other than to provide the Services
called for under this Agreement in accordance with the terms of this Agreement
and shall not be responsible for any action of the Company or the Company Board
in following or declining to follow any advice or recommendations of MWE
Hydrocarbon.  The MWE Entities and their
respective stockholders, members, partners, directors, managers, officers and
employees (collectively, the “MWE Released Parties”)
will not be liable to the Company Entities or their respective stockholders,
members, partners, directors, managers, officers or employees (collectively,
the “Company Released Parties”) for any
acts or omissions by MWE Hydrocarbon performed or omitted in a manner
reasonably believed to be within the scope of authority conferred on MWE
Hydrocarbon pursuant to or in accordance with this Agreement, except for Losses
for which MWE Hydrocarbon is obligated to indemnify the Company Released Parties
pursuant to Section 6.3.


 


8

















 


(b)           Except as otherwise set forth herein, there are no
representations or warranties made by MWE Hydrocarbon or MWE Liberty, express
or implied, at law or in equity, with respect to the subject matter hereof.


 


(c)           In no event shall either Party be liable to the other Party
for special, indirect, incidental, consequential or punitive damages arising
out of or related to this Agreement; provided, however,
that this waiver shall not apply to the extent such special, indirect,
incidental, consequential or punitive damages are awarded in a proceeding
brought or asserted by a third party against either Party.


 


Section 6.2             Indemnification by the Company.  The Company shall, to the full extent lawful,
reimburse, indemnify, defend and hold each of the MWE Released Parties (in such
capacity, each, an “MWE Indemnified Party”),
harmless of and from any and all expenses, losses, damages, liabilities,
demands, charges and claims of any nature whatsover (including reasonable
attorneys’ fees) (each a “Loss” and
collectively, “Losses”) in respect of or
arising from **.


 


Section 6.3             Indemnification by MWE Hydrocarbon.  MWE Hydrocarbon
shall, to the full extent lawful, reimburse, indemnify, defend and hold each of
the Company Released Parties harmless of and from any and all Losses in respect
of or arising from **.


 


Section 6.4             Remedies for
Breach.  MWE Hydrocarbon
shall satisfy any claim for any Losses for which the Company Released Parties
are entitled to indemnification under Section 6.3 by either (a) ** for
any such Losses and/or (b) ** such Losses. 
In the event MWE Hydrocarbon fails to satisfy in full any claim for any
Losses for which the Company is entitled to indemnification in accordance with
the immediately preceding sentence ** of such Losses being finally determined,
then MWE Liberty shall satisfy any such claim for indemnification by either (a)
** for any Losses related thereto that are ** or (b) having ** the amount of
any such Loss that has not been satisfied in full in accordance with the
immediately preceding sentence; provided that the ** set forth in this sentence
by providing ** within 30 days of such Losses being finally determined.  In the event that any claim for Losses is to
be satisfied pursuant to the immediately preceding sentence, MWE Liberty agrees
to ** the Company Operating Agreement ** an amount equal to such unremedied
Loss.


 


9

















 


ARTICLE 7


GENERAL PROVISIONS


 


Section 7.1             Accuracy of Recitals.  The paragraphs contained in the recitals to
this Agreement are incorporated in this Agreement by this reference, and the
Parties to this Agreement acknowledge the accuracy thereof.


 


Section 7.2             Choice of Law; Submission to Jurisdiction.  This Agreement and
the rights of the parties hereunder shall be interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.  Subject to Section 7.20, the
parties further agree that any legal action or proceeding with respect to this
Agreement or any document relating hereto may be brought only in a federal or
state court of competent jurisdiction in Houston, Texas.  Each party hereby irrevocably waives any
objection, including, without limitation, any objection to the laying of venue
or based on the grounds of forum non-convenience, which it may now or hereafter
have to the bringing of such action or proceeding in any such respective
jurisdiction.


 


Section 7.3             Notices.  Any notice, demand or communication required
or permitted under this Agreement shall be in writing and delivered personally
or by reputable courier, and shall be deemed to have been duly given as of the
date and time reflected on the delivery receipt, addressed as follows:


 


If
to MWE Hydrocarbon:


 


MarkWest
Hydrocarbon, Inc.


1515
Arapahoe Street


Tower
2, Suite 700


Denver,
Colorado 80202-2126


Attention:  Senior Vice President and Chief Operations
Officer


 


and


 


MarkWest
Liberty Gas Gathering, L.L.C.


1515
Arapahoe Street


Tower
2, Suite 700


Denver,
Colorado 80202-2126


Attention:
General Counsel


 


10

















 


If
to MWE Liberty:


 


MarkWest
Liberty Gas Gathering, L.L.C.


1515
Arapahoe Street


Tower
2, Suite 700


Denver,
Colorado 80202-2126


Attention:  Senior Vice President and Chief Operations
Officer


 


and


 


MarkWest
Liberty Gas Gathering, L.L.C.


1515
Arapahoe Street


Tower
2, Suite 700


Denver,
Colorado 80202-2126


Attention:
General Counsel


 


If
to the Company:


 


MarkWest
Liberty Midstream & Resources, L.L.C.


1515
Arapahoe Street


Tower
2, Suite 700


Denver,
Colorado 80202-2126


Attention:
Senior Vice President, Chief Operations Officer


 


and


 


MarkWest
Liberty Midstream & Resources, L.L.C.


1515
Arapahoe Street


Tower
2, Suite 700


Denver,
Colorado 80202-2126


Attention:
General Counsel


 


and


 


M&R
MWE Liberty, LLC


1401
McKinney, Suite 1025


Houston,
Texas 77010


Attention:
Jeffrey C. Rawls


 


with
a copy to:


 


Locke Lord Bissell & Liddell, LLP


600 Travis Street, Suite 3400


Houston, Texas 77002


Fax 
(713) 226-1143


Attention: H. William Swanstrom


 


11

















 


A Party may change its
address for the purposes of notices hereunder by giving notice to the other
Party specifying such changed address in the manner specified in this Section 7.3.


 


Section 7.4             Further Assurances.  The Parties agree to execute such additional
instruments, agreements and documents, and to take such other actions, as may
be necessary to effect the purposes of this Agreement.


 


Section 7.5             Entire Agreement.  This Agreement constitutes the entire
agreement of the Parties relating to the matters contained herein, superseding
all prior contracts or agreements, whether oral or written, relating to the
matters contained herein.


 


Section 7.6             Effect of Waiver or Consent.  No waiver or consent, express or implied, by
any Party to or of any breach or default by any Person in the performance by
such Person of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such Person of the same or any other obligations of such Person hereunder.
Failure on the part of a Party to complain of any act of any Person or to
declare any Person in default, irrespective of how long such failure continues,
shall not constitute a waiver by such Party of its rights hereunder until the
applicable statute of limitations period has run.


 


Section 7.7             Amendment or Modification.  This Agreement may be amended, modified or
supplemented from time to time only by a written agreement executed by all the
Parties.


 


Section 7.8             Assignment; Third-Party Beneficiaries.  No Party shall have
the right to assign its rights or obligations under this Agreement without the
prior written consent of the other Parties.


 


Section 7.9             Counterparts.  This Agreement may be executed in any number
of counterparts with the same effect as if all Parties had signed the same
document.  All counterparts shall be
construed together and shall constitute one and the same instrument.  Execution and delivery of this Agreement by
exchange of facsimile or other electronically transmitted counterparts bearing
the signature of a Party shall be equally as effective as delivery of a manually
executed counterpart by such Party.


 


Section 7.10           Severability.  If any provision of this Agreement or the
application thereof to any Person or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.


 


Section 7.11           Interpretation.  In this Agreement, unless a clear contrary
intention appears: (a) the singular includes the plural and vice versa; (b) reference
to a Person includes such Person’s successors and assigns but, in the case of
Party, only if such successors and assigns are permitted by this Agreement, and
reference to a Person in a particular capacity excludes such Person in any
other capacity; (c) reference to any gender includes each other gender; (d) reference
to any agreement (including this Agreement), document or instrument means such
agreement, document, or instrument as amended or modified and in effect from
time to time in accordance with the terms thereof and, if applicable, the terms
of this Agreement; (e) reference to any Section or Article means
such Section or Article of this Agreement, and 


 


12

















 


references in any Section or Article or
definition to any clause means such clause of such Section, Article or
definition; (f) “hereunder,” “hereof,” “hereto” and words of similar
import are references to this Agreement as a whole and not to any particular
provision hereof; and (g) the word “or” is not exclusive, and the word “including”
(in its various forms) means including without limitation.  Section titles and headings in this
Agreement are inserted for convenience of reference only and are not intended
to be a part of, or to affect the meaning or interpretation of, this Agreement.


 


Section 7.12           Relationship of the Parties.  Nothing in this Agreement shall cause MWE
Hydrocarbon, MWE Liberty or the Company to become members of any partnership,
joint venture, association, syndicate or other entity.


 


Section 7.13           Binding Effect.  This Agreement will be binding upon, and will
inure to the benefit of, the Parties and their respective successors, permitted
assigns and legal representatives.


 


Section 7.14           Time of the Essence.  Time is of the essence in the performance of
this Agreement.


 


Section 7.15           Withholding or Granting of Consent.  Unless otherwise
provided in this Agreement, each Party may, with respect to any consent or
approval that it is entitled to grant pursuant to this Agreement, grant or
withhold such consent or approval in its sole and uncontrolled discretion, with
or without cause, and subject to such conditions as it shall deem appropriate.


 


Section 7.16           Laws and Regulations.  Notwithstanding any provision of this Agreement
to the contrary, no Party shall be required to take any act, or fail to take
any act, under this Agreement if the effect thereof would be to cause such
Party to be in violation of any applicable law, statute, rule or
regulation.


 


Section 7.17           No Recourse Against Officers or Directors.  For the avoidance of
doubt, the provisions of this Agreement shall not give rise to any right of
recourse against any officer, director or manager of MWE Hydrocarbon or MWE
Liberty, any officer, director or manager of any MWE Entity or any officer,
director or manager of any Company Entity.


 


Section 7.18           Signatories Duly Authorized.  Each of the signatories to this Agreement
represents that he is duly authorized to execute this Agreement on behalf of
the Party for which he is signing, and that such signature is sufficient to
bind the Party purportedly represented.


 


Section 7.19           Incorporation of Exhibits by References.  Any reference herein
to any exhibit to this Agreement will incorporate it herein, as if it were set
out in full in the text of this Agreement.


 


Section 7.20           Dispute Resolution and Arbitration.


 


(a)           Should a dispute arise between the Parties, the Parties shall
promptly seek to amicably resolve any such dispute by negotiations between the
Parties prior to the initiation of binding arbitration in accordance with Section 


 


13

















 


7.20(b).  The Parties shall meet at a mutually
acceptable time and place within 15 days after written notice by any Party to
any other Party seeking resolution of a dispute under this Section 7.20(a) and
thereafter as often as they reasonably determine to be necessary or appropriate
to exchange relevant information and to attempt to resolve the dispute.  All negotiations and communications pursuant
to this Section 7.20(a) shall be treated and maintained by the
Parties as confidential information and shall be treated as compromise and
settlement negotiations for purposes of the Federal Rules of Evidence. If
the matter is not resolved within 30 days after the initial meeting of the
Parties, or such longer period as may be mutually agreed upon, either Party may
initiate arbitration in accordance with Section 7.20(b).


 


(b)           Any disputes hereunder, including the inability of the
Parties to agree to an adjustment to the invoices payable pursuant to Sections
2.2, 3.3 and 4.4, must be resolved through the use of binding
arbitration using three arbitrators, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, as supplemented
to the extent necessary to determine any procedural appeal questions by the
Federal Arbitration Act (Title 9 of the United States Code). If there is any
inconsistency between this Section and the Commercial Arbitration Rules or
the Federal Arbitration Act, the terms of this Section 7.20 will
control the rights and obligations of the Parties. Arbitration must be
initiated within the applicable time limits set forth in this Agreement and not
thereafter or if no time limit is given, within the time period allowed by the
applicable statute of limitations. Arbitration may be initiated by a party (“Claimant”) serving written notice on
another party (“Respondent”) that the
Claimant elects to refer a particular dispute to binding arbitration. Claimant’s
notice initiating binding arbitration must identify the arbitrator Claimant has
appointed. The Respondent shall respond to Claimant within 30 days after
receipt of Claimant’s notice, identifying the arbitrator Respondent has
appointed. If the Respondent fails for any reason to name an arbitrator within
the 30-day period, Claimant shall petition to the American Arbitration
Association for appointment of an arbitrator for Respondent’s account. The two
arbitrators so chosen shall select a third arbitrator within 30 days after the
second arbitrator has been appointed. The Claimant will pay the compensation
and expenses of the arbitrator named by or for it, and the Respondent will pay
the compensation and expenses of the arbitrator named by or for it. The costs
of petitioning for the appointment of an arbitrator, if any, shall be paid by
Respondent. The Claimant and Respondent will each pay one-half of the
compensation and expenses of the third arbitrator. All arbitrators must (a) be
neutral parties with no prior relationships to any participants, parties,
attorneys or law firms involved in the proceedings, (b) have never been
officers, directors, managers or employees of the Company Entities or the MWE
Entities and (c) have not less than seven years experience in the energy
industry. The hearing will be conducted in Houston, Texas and commence within
30 


 


14

















 


days after the selection of the third arbitrator. The Parties
and the arbitrators should proceed diligently and in good faith in order that
the award may be made as promptly as possible. Except as provided in the
Federal Arbitration Act, the decision of the arbitrators will be binding on and
non-appealable by the Parties hereto. The arbitrators shall have no right to grant
or award indirect, consequential, punitive or exemplary damages of any kind.


 


Section 7.21           Legal Compliance.  The Parties acknowledge and agree that this
Agreement, and all Services provided under this Agreement including the
termination thereof, are intended to comply with any and all laws and legal
obligations and that this Agreement should be construed and interpreted with
this purpose in mind.


 


Section 7.22           Books & Records.  MWE Hydrocarbon shall keep, or cause the MWE
Entities to keep, full and adequate books of account and such other records as
are necessary to reflect the results of operation of the Company, such books
and records to be maintained at the offices of the Company (it being agreed
that MWE Hydrocarbon may keep its own books and records related to the
performance of this Agreement at a location of its choosing).  Such books of account shall be kept in
accordance with GAAP, or as otherwise reasonably directed by the Company.  All of such books and records shall be and
remain at all times the property of the Company and upon any termination of
this Agreement, all of such books and records (together with any copies thereof
except to the extent that MWE Hydrocarbon or any MWE Entity shall be required
to retain such copies in accordance with applicable laws) shall be turned over
to the Company forthwith so as to ensure the orderly continuance of the
operation of the Company.


 


Section 7.23           Audit Rights.  Upon reasonable notice of not less than ten
business days, the Company (and its representatives and agents) shall have the
right to audit and inspect, the books, records and other documents applicable
to the Services and invoices set forth herein during normal business hours at
the Operator’s principal place of business for a period of one year following
the date an invoice is delivered to the Company, provided
that any such audit or inspection shall be subject to the rights of the Company
and the Operator set forth in Section 10.2 of the Company Operating
Agreement regarding Unrelated Information (as defined in the Company Operating
Agreement).


 


[Signature page follows]


 


15

















 


IN WITNESS WHEREOF, the
Parties have caused this Agreement to be executed by their duly authorized
representatives as of the date and year first above written.


 


 


	
   

  	
   

  	
  MARKWEST
  HYDROCARBON, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MARKWEST
  LIBERTY GAS GATHERING, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MARKWEST
  LIBERTY MIDSTREAM & RESOURCES, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 
















 


EXHIBIT E


 


BILL OF SALE, ASSIGNMENT
AND ASSUMPTION Agreement


 

















 


EXHIBIT E

BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT


 


	
  WHEN RECORDED, RETURN TO:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



This Bill of Sale, Assignment and Assumption Agreement (this “Assignment”)
is made effective as of 11:59 p.m. on the
             day of
                        ,
2009 from MarkWest Liberty Gas Gathering, L.L.C., a Delaware limited liability
company whose address is 1515 Arapahoe Street, Tower 2, Suite 700, Denver,
CO 80202 (“Assignor”), to MarkWest Liberty Midstream &
Resources, L.L.C., a Delaware limited liability company whose address is 1515
Arapahoe Street, Tower 2, Suite 700, Denver, CO 80202 (“Assignee”),
and is executed on the date set forth on the signature page hereof.


 


ARTICLE 1


 


ASSIGNMENT OF ASSETS AND ASSUMPTION OF
LIABILITIES


 


Section 1.1             Assignment.  For and in
consideration of all of the Class B Interests in the Assignee and the
assumption of certain liabilities by Assignee, the receipt and sufficiency of
which are hereby acknowledged, Assignor hereby grants, bargains, sells,
transfers, assigns and conveys unto Assignee and its successors and assigns all
of Assignor’s right, title and interest in and to the Assets described on Exhibit A
attached hereto.


 


TO HAVE AND TO HOLD the Assets unto Assignee, its successors
and assigns, forever, subject, however, to the terms of this Assignment.


 


Section 1.2             Assumption
of Assumed Liabilities.  Assignee hereby accepts and assumes all of
Assignor’s obligations and liabilities with respect to and agrees to discharge,
perform or pay (if applicable) the Assumed Liabilities.


 


ARTICLE 2


 


TITLE


 


EXCEPT
AS MAY BE PROVIDED IN THE CONTRIBUTION AGREEMENT (AS DEFINED BELOW),
ASSIGNOR MAKES NO, AND EXPRESSLY DISCLAIMS AND NEGATES ANY, REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, AS TO TITLE TO ANY OF THE ASSETS including any
warranty that would otherwise apply under applicable law due to the use of the
words “grant” or “convey” or any similar words. 
Assignor 


 

















 


hereby assigns to Assignee all rights, claims and causes of action on
title warranties given or made by Assignor’s predecessors (other than
affiliates of Assignor), and Assignee is specifically subrogated to all rights
which Assignor may have against its predecessors (other than affiliates of Assignor),
to the extent Assignor may legally transfer such rights and grant such
subrogation.


 


ARTICLE 3


 


DISCLAIMERS


 


Assignee
acknowledges and agrees that, except as otherwise expressly provided in the
Contribution Agreement, neither Assignor nor any affiliate of Assignor makes
any representation or warranty, express, statutory, implied or otherwise with
respect to the Assets.  Except as
otherwise expressly provided in the Contribution Agreement, Assignor, for itself
and its Affiliates, hereby expressly disclaims and negates any and all
representations and warranties associated with the Assets, express, statutory,
implied or otherwise.


 


ARTICLE 4


 


MISCELLANEOUS


 


Section 4.1             Contribution
Agreement.  This Assignment is being executed and
delivered pursuant to the terms of that certain Contribution Agreement dated as
of January         , 2009, by and
among Assignor, Assignee and M&R MWE Liberty, LLC, a Delaware limited
liability company (as the same may be amended, the “Contribution Agreement”).  In the event of any conflict between the
terms of this Assignment and the terms of the Contribution Agreement, the terms
of the Contribution Agreement shall control.


 


Section 4.2             Defined
Terms. 
Any capitalized term used but not defined herein shall have the meaning
ascribed to such term in the Contribution Agreement.  The following term shall have the indicated
meaning:


 


“Assets” means all of the
assets owned by Assignor, including the natural gas gathering systems described
in Exhibit A attached hereto, together with all natural gas
gathering and processing and natural gas liquids processing, fractionation,
transportation, storage and marketing plants and facilities constituting a part
thereof or related thereto, and all easements, rights of way, privileges,
franchises, tracts of land, surface leases, other interests in land, pipelines,
equipment, permits, licenses, contract rights and personal property
constituting a part thereof or necessary for the ownership and operation
thereof including the easements, rights of way, permits and other instruments
referenced in Exhibit A.


 


Section 4.3             Successors
and Assigns.  This Assignment will be binding upon, and
will inure to the benefit of, the parties hereto and their respective
successors, permitted assigns and legal representatives.


 


Section 4.4             Further
Assurances.  From time to time after the date hereof, and
without any further consideration, Assignor agrees to execute, acknowledge and
deliver any and all such additional deeds, assignments, bills of sale,
conveyances, instruments, notices, releases, acquittances and other documents,
and will perform any and all such other acts, assurances and 


 


2

















 


things, all in accordance with
applicable law, as may be necessary or appropriate (a) to more fully
assure that Assignee owns all of the properties, rights, titles, interests,
estates, remedies, powers and privileges granted by this Agreement, or which
are intended to be so granted and (b) to more fully and effectively vest
in Assignee and its respective successors and assigns beneficial and record
title to the Assets contributed and assigned by this Assignment or intended to
be so granted.


 


Section 4.5             Titles
and Captions.  All article or section titles or captions in
this Assignment are for convenience only, shall not be deemed part of this
Assignment and in no manner, limit, extend, or describe the scope or intent of
any provisions hereof.  References to “Articles”
and “Sections” are to Articles and Sections of this Assignment, and references
to “Exhibits” are to Exhibits attached to this Assignment, which are made parts
hereof for all purposes.


 


Section 4.6             Governing
Law. 
Except to the extent the laws of another jurisdiction will, under
conflict of law principles, govern transfers of Assets located in such other
jurisdiction, this Assignment and the rights of the parties hereunder shall be
governed by, and construed in accordance with, the laws of the State of Delaware.


 


Section 4.7             Counterparts.


 


(a)           This
Assignment may
be executed in any number of counterparts with the same effect as if all
signatory parties had signed the same document. 
All counterparts shall be construed together and shall constitute one
and the same instrument.


 


(b)           To
facilitate recordation, there may be omitted from the Exhibits to this
Assignment in certain counterparts descriptions of Assets located in recording
jurisdictions other than the jurisdiction (county, parish, state, Indian or
federal agency) in which the particular counterpart is to be filed or recorded.


 


Section 4.8             Interpretation.  Whenever possible,
each provision of this Assignment shall be interpreted in such a manner as to
be effective and valid under applicable law. 
If any provision of this Assignment is held to be invalid, illegal or
unenforceable in any respect under any applicable law, the validity, legality
and enforceability of the remaining provisions hereof shall not be affected or
impaired thereby.


 


[signatures
on the following page]


 


3

















 


EXECUTED
as of
                                    ,
2009.


 


 


	
   

  	
  MARKWEST LIBERTY GAS GATHERING, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Insert
  notary blocks]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MARKWEST LIBERTY MIDSTREAM & RESOURCES,
  L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [Insert notary blocks]

  	
   

  



 


Exhibit


 


A — Assets


 


SIGNATURE PAGE TO ASSIGNMENT AGREEMENT


 

















 


EXHIBIT A


 


ASSETS


 


See attached.


 

















 


SCHEDULE 1.1


 


KNOWLEDGE INDIVIDUALS


 


**


 

















 


DISCLOSURE
SCHEDULES TO MWE LIBERTY

REPRESENTATIONS AND WARRANTIES


 


Introduction


 


Capitalized terms used in the disclosure schedules
attached hereto (the “Schedules”) shall have the meaning ascribed to them in
the Agreement unless the context otherwise requires.


 


The inclusion of any item in the Schedules, or any references to dollar
amounts, shall not be deemed to be an acknowledgement or representation that
such items are material or required to be disclosed, to establish any standard
of materiality, or to define further the meaning of such terms for purposes of
the Agreement or to be a representation that all similar or dissimilar
non-material items have been included.


 


The Schedules are arranged in sections corresponding
to the Sections of Article 3 of the Agreement.  The disclosure of an item in one section of
the Schedules as an exception to a particular Section or provision of the
Agreement shall be deemed to be adequately disclosed with respect to all other
Sections or provisions of the Agreement **,
notwithstanding the presence or absence of an appropriate section in the Schedules
respecting such other Section or provision of the Agreement or an
appropriate cross reference thereto.


 

















 


SCHEDULE 3.3


 


CONSENTS OR APPROVALS


 


**


 


[4 pages have been omitted and filed separately
with the Securities and Exchange Commission pursuant to the request for
confidential treatment.]


 

















 


SCHEDULE 3.4(b)


 


CAPITALIZATION


 


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SCHEDULE 3.6


 


NO DEFAULT


 


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SCHEDULE 3.7(a)


 


TITLE TO PROPERTIES AND ASSETS


 


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SCHEDULE 3.7(b)


 


VALID TRANSFER OF PROPERTIES AND ASSETS


 


**


 


 

















 


SCHEDULE 3.8


 


RIGHTS-OF-WAY


 


**


 

















 


SCHEDULE 3.9


 


TRIAL BALANCE


 


**


 


[2 pages have been omitted and filed
separately with the Securities and Exchange Commission pursuant to the request
for confidential treatment.]


 

















 


SCHEDULE 3.10


 


ENVIRONMENTAL MATTERS


 


**


 


[3 pages have been omitted and filed
separately with the Securities and Exchange Commission pursuant to the request
for confidential treatment.]


 

















 


SCHEDULE 3.11


 


MATERIAL CONTRACTS


 


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SCHEDULE 3.15(a)


 


EMPLOYEES


 


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SCHEDULE 3.15(b)


 


BENEFIT PLANS


 


**


 

















 


SCHEDULE 3.18


 


INTELLECTUAL PROPERTY


 


**


 
















 


SCHEDULE 3.19


 


AFFILIATE TRANSACTIONS


 


**


 


[2
pages have been omitted and filed separately with the Securities and Exchange
Commission pursuant to the request for confidential treatment.]


 

















 


SCHEDULE 5.3(d)


 


SPECIFIC INDEMNITY ITEMS **


 


**


 

















 


SCHEDULE 5.3(e)


 


SPECIFIC INDEMNITY ITEMS **


 


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SCHEDULE 7.2(c)


 


REQUIRED CONSENTS


 


**