EXHIBIT
4.1


 


PURCHASE AGREEMENT


 


PURCHASE AGREEMENT, dated
as of June 13, 2003 (this “Agreement”), by and among MARKWEST ENERGY
PARTNERS, L.P., a Delaware limited partnership (the “Seller”) and each
Person listed on Schedule A attached hereto (each, a “Purchaser”
and collectively, the “Purchasers”).


 


R E C I
T A L S


 


WHEREAS, the Purchasers
wish to purchase from the Seller, and the Seller wishes to sell to the
Purchasers, common units of the Seller (the “Common Units”), on the
terms and subject to the conditions contained in this Agreement; and


 


WHEREAS, each party
hereto has determined that it is in his, her or its best interest to enter into
this Agreement and consummate the transactions contemplated hereby.


 


A G R E
E M E N T


 


NOW, THEREFORE, in
consideration of the mutual covenants and agreements set forth herein and for
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereby agree as follows:


 


ARTICLE I.


DEFINITIONS


 


Section 1.01                                Definitions.  As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated:


 


“Action” against a
Person means any lawsuit, action, proceeding, investigation or complaint before
any Governmental Authority, mediator or arbitrator.


 


“Affiliate” of any
Person means (i) any Person directly or indirectly controlled by, controlling
or under common control with such first Person, (ii) any director or officer of
such first Person or of any Person referred to in clause (i) above and (iii) if
any Person in clause (i) above is an individual, any member of the immediate
family (including parents, spouse and children) of such individual and any
trust whose principal beneficiary is such individual or one or more members of
such immediate family and any Person who is controlled by any such member or
trust.  For purposes of this definition,
any Person that beneficially owns directly or indirectly 10% or more of the
securities having ordinary voting power for the election of directors or other
governing body of a corporation or 10% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner of
such other Person) will be deemed to “control” (including, with its correlative
meanings, “controlled by” and “under common control with”) such corporation or
other Person.


 

















 


“Basic Documents”
means, collectively, this Agreement, the Registration Rights Agreement and any
and all other agreements or instruments executed and delivered by Seller or the
Purchasers, or any Subsidiary or Affiliate of any of them on even date
herewith, or any amendments, supplements, continuations or modifications
thereto.


 


“Board of Directors”
means the board of directors of MarkWest Energy GP, L.L.C., the general partner
of Seller.


 


“Business Day”
means any day other than a Saturday, Sunday, or a legal holiday for commercial
banks in Wilmington, Delaware.


 


“Capital Stock” of
any Person means any and all shares, interests, participations, or other
equivalents (however designated) of, or rights, warrants, or options to
purchase, corporate stock or any other equity interest (however designated) of
or in such Person.


 


“CERCLA” shall
have the meaning specified in the definition of Environmental Laws in this
Section 1.01.


 


“Claims” shall
have the meaning specified in the definition of Environmental Claims in this
Section 1.01.


 


“Closing” shall
have the meaning specified in Section 2.03.


 


“Code” means the
Internal Revenue Code of 1986, as amended from time to time, and any successor
statute.


 


“Commission” means
the United States Securities and Exchange Commission.


 


“Common Units”
means the common units of Seller that are publicly traded on the American Stock
Exchange.


 


“Confidential
Information” means all information about Seller furnished to the Purchasers
or the Investment Advisor by Seller or any of its Representatives, but shall
exclude information that (i) is in the possession of the Purchasers or the
Investment Advisor prior to receipt from Seller or its Representatives, (ii) is
or becomes available in the public domain, other than as a result of an
unauthorized disclosure by the Purchasers or the Investment Advisor, or (iii)
is not acquired from Seller or any other person known by the Purchasers or the
Investment Advisor to be subject to a confidentiality agreement with Seller or
its Affiliates.


 


“Consolidated
Subsidiaries” means each Subsidiary of Seller (whether now existing or
hereafter created or acquired), as the case may be, the financial statements of
which are (or should be) consolidated with the financial statements of Seller
in accordance with GAAP.


 


“DRULPA” means the
Delaware Revised Uniform Limited Partnership Act, as amended from time to time.


 


“Effective Date”
means the date this Agreement is executed by all the parties hereto.


 


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“Employee Plan”
means any employee benefit plan, program or policy including thrift plans,
stock purchase plans, stock bonus plans, stock options plans, employee stock
ownership plans, fringe benefit plans or other incentive or profit sharing
arrangements for the benefit of current or former employees, officers or
directors of Seller or its Affiliates, with respect to which Seller or any of
its ERISA Affiliates may have any liability or any obligation to contribute,
including a Plan or a Multiemployer Plan.


 


“Environmental Claims”
means any and all Actions, liens, obligations, liabilities, losses, penalties,
fees, demands, demand letters, orders, directives, claims (including any claims
involving toxic torts or liability in tort, strict, absolute or otherwise),
notices of non-compliance or violations, formal investigations or proceedings
or legal fees or costs of investigations, monitoring or proceedings, relating
in any way to any Environmental Law or any permit issued under any
Environmental Law, or arising from the presence, release or threatened release
(or alleged presence, release or threatened release) into the environment of
any Hazardous Material (hereinafter “Claims”), including, without limitation,
(i) any and all Claims by a Governmental Authority for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law and (ii) any and all Claims by any Person seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief pursuant to any Environmental Laws or for any property damage
or personal injury (including death) or threat of injury to health, safety,
natural resources or the environment.


 


“Environmental Laws”
means any and all past and present Government Requirements and all principles
of common law pertaining to the regulation and protection of human health,
safety, the environment and damages to natural resources, including, without
limitation, releases and threatened releases or otherwise relating to the
operation, manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of Hazardous Materials.  Environmental Laws include, without
limitation, the Oil Pollution Act of 1990 (“OPA”), the Clean Air Act,
the Comprehensive Environmental, Response, Compensation, and Liability Act of
1980 (“CERCLA”), the Federal Water Pollution Control Act, the
Occupational Safety and Health Act of 1970, the Resource Conservation and
Recovery Act of 1976 (“RCRA”), the Safe Drinking Water Act, the Toxic
Substances Control Act, the Superfund Amendments and Reauthorization Act of
1986, the Hazardous Materials Transportation Act, and other environmental
conservation or protection laws and their state and local counterparts or
equivalents, all as amended from time to time. 
As used in the provisions hereof relating to Environmental Laws, the
term “oil” has the meaning specified in OPA; the terms “hazardous substance,”
“release,” and or “threatened release” have the meanings specified in CERCLA,
and the terms “solid waste” and “disposal” (or “disposed”) have the meanings
specified in RCRA; provided, however, that (i) in the event OPA, CERCLA or RCRA
is amended so as to broaden the meaning of any term defined thereby, such
broader meaning shall apply subsequent to the effective date of such amendment,
and (ii) to the extent the laws of the state in which any Property of Seller or
any of its Subsidiaries is located have established or establish a meaning for
“oil,” “hazardous substance,” “release,” “threatened release,” “solid waste” or
“disposal” which is broader or stricter than that specified in OPA, CERCLA or
RCRA, such broader meaning shall apply.


 


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“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and any successor statute.


 


“ERISA Affiliate”
means each trade or business (whether or not incorporated) which together with
Seller or any of its Subsidiaries or Affiliates would be deemed to be a “single
employer” within the meaning of Section 4001(b)(1) of ERISA or subsections (b),
(c), (m) or (o) of section 414 of the Code.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended from time to time, and
the rules and regulations of the Commission promulgated thereunder.


 


“GAAP” means
generally accepted accounting principles in the United States of America in
effect from time to time.


 


“General Partner”
means MarkWest Energy GP, L.L.C., the general partner of Seller.


 


“Governmental
Authority” means the country, state, county, city and political
subdivisions in which any Person or such Person’s Property is located or which
exercise valid jurisdiction over any such Person or such Person’s Property, and
any court, agency, department, commission, board, bureau or instrumentality of
any of them and any monetary authorities which exercise valid jurisdiction over
any such Person or such Person’s Property. Unless otherwise specified, all
references to Governmental Authority herein shall mean a Governmental Authority
having jurisdiction over, where applicable, Seller, any of its Subsidiaries or
Affiliates or any of their Property or any Purchaser.


 


“Government
Requirement” means any law, statute, code, ordinance, order, determination,
rule, regulation, judgment, decree, injunction, franchise, permit, certificate,
license, authorization or other directive or requirement, including without
limitation, Environmental Laws and occupational, safety and health standards or
controls of any Governmental Authority.


 


“Hazardous Material”
shall have the meaning set forth in Section 3.11(a).


 


“Indemnified Party”
shall have the meaning specified in Section 6.02(c).


 


“Indemnity Matters”
shall have the meaning specified in Section 6.02(a).


 


“Investment Advisor”
means Tortoise Capital Advisors, L.L.C., a Delaware limited liability company.


 


“Licenses” shall
have the meaning specified in Section 3.15.


 


“Lien” means any
interest in Property securing an obligation owed to, or a claim by, a Person
other than the owner of the Property, whether such interest is based on the
common law, statute or contract, and whether such obligation or claim is fixed
or contingent, and including but not limited to the lien or security interest
arising from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security


 


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purposes.  For the purpose of this Agreement, a Person
shall be deemed to be the owner of any Property which it has acquired or holds
subject to a conditional sale agreement, or leases under a financing lease or
other arrangement pursuant to which title to the Property has been retained by
or vested in some other Person in a transaction intended to create a financing.


 


“Multiemployer Plan”
means a Plan defined as such in Section 3(37) or Section 4001(a)(3) of ERISA.


 


“Obligations”
means any and all amounts, liabilities and obligations owing from time to time
by Seller to any Purchaser pursuant to any of the Basic Documents and all
renewals, extensions and/or rearrangements thereof, whether such amounts,
liabilities or obligations be liquidated or unliquidated, now existing or
hereafter arising, absolute or contingent.


 


“OPA” shall have
the meaning specified in the definition of Environmental Laws in this Section
1.01.


 


“Option Units”
shall have the meaning specified in Section 2.06.


 


“Partnership Agreement”
shall have the meaning specified in Section 2.01.


 


“Person” means any
individual, corporation, company, voluntary association, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government or any agency, instrumentality or political subdivision thereof, or
any other form of entity.


 


“Plan” means any
employee pension benefit plan, as defined in Section 3(2) of ERISA or any
employee welfare benefit plan, as defined in Section 3(1) of ERISA, which (i)
is currently or hereafter sponsored, maintained or contributed to by the Seller
or any of its Subsidiaries or ERISA Affiliates or (ii) was at any time during
the preceding six calendar years sponsored, maintained or contributed to, by
the Seller or any of its Subsidiaries or ERISA Affiliates.


 


“Property” means
any interest in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible.


 


“Purchase Price”
shall have the meaning specified in Section 2.05.


 


“Purchased Units”
shall have the meaning specified in Section 2.01.


 


“Purchaser” and “Purchasers”
have the meanings set forth in the introductory paragraph.


 


“Purchaser Material
Adverse Effect” means any material and adverse effect on (i) the assets,
liabilities, financial condition, business, operations or affairs of any
Purchaser, (ii) the ability of any Purchaser to carry out its business as
of the date hereof or to meet its Obligations under the Basic Documents on a
timely basis or (iii) the ability of any Purchaser to consummate the
transactions under any Basic Document.


 


“RCRA” shall have
the meaning specified in the definition of Environmental Laws in this Section
1.01.


 


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“Registration Rights
Agreement” means the Registration Rights Agreement, to be entered into at
the Closing, between Seller and the Purchasers.


 


“Related Parties”
shall have the meaning specified in Section 6.02(a).


 


“Representatives”
of any Person means the officers, directors, employees, agents and other
representatives of such Person.


 


“Responsible Officer”
means, as to any Person, the Chief Executive Officer, the President or any Vice
President of such Person.


 


“Securities Act”
means the Securities Act of 1933, as amended from time to time, and the rules
and regulations of the Commission promulgated thereunder.


 


“Seller Financial
Statements” shall have the meaning specified in Section 3.02.


 


“Seller Material
Adverse Effect” means any material and adverse effect on (i) the assets,
liabilities, financial condition, business, operations or affairs of Seller and
its Subsidiaries taken as a whole measured against those assets, liabilities,
financial condition, business, operations or affairs reflected in the Seller
SEC Documents or from the facts represented or warranted in any Basic Document,
(ii) the ability of Seller and its Subsidiaries taken as a whole to carry
out their business as of the date hereof or to meet their Obligations under the
Basic Documents on a timely basis or (iii) the ability of Seller to consummate
the transactions under the Registration Rights Agreement or any other Basic
Document to which it is a party.


 


“Seller SEC Documents”
shall have the meaning specified in Section 3.02.


 


“Subordinated Units”
means the all of the currently issued and outstanding subordinated units of
Seller.


 


“Subsidiary”
means, as to any Person, any corporation or other entity of which at least a
majority of the outstanding equity interest having by the terms thereof
ordinary voting power to elect a majority of the board of directors of such
corporation or other entity (irrespective of whether or not at the time any
equity interest of any other class or classes of such corporation or other
entity shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled by such
Person or one or more of its Subsidiaries.


 


Section 1.02                                Accounting
Procedures and Interpretation. 
Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all determinations with respect to accounting matters
hereunder shall be made, and all Seller Financial Statements and certificates
and reports as to financial matters required to be furnished to the Purchasers
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis during the periods involved (except, in the case of unaudited statements,
as permitted by Form 10-Q promulgated by the Commission) and in compliance as
to form in all material respects with applicable accounting


 


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requirements and with the
published rules and regulations of the Commission with respect thereto.


 


ARTICLE II.


AGREEMENT TO SELL AND
PURCHASE


 


Section 2.01                                Authorization
of Sale of Common Units.  The Seller
is authorized to issue and sell to the Purchasers between 250,000 and 400,000
Common Units (the “Purchased Units”). 
The Purchased Units have the rights, preferences, privileges and
restrictions set forth with respect to all Common Units in the Amended and
Restated Agreement of Limited Partnership of Seller, dated as of May 24,
2002 (the “Partnership Agreement”). 
The Purchasers shall also have the option, but not the obligation, to
purchase additional Common Units, in a cumulative amount not to exceed 25% of
the total number of Purchased Units for allocation purposes as determined by
the Investment Advisor.  Such option
shall be subject to the terms and conditions of Section 2.06 below.  Any Common Units so purchased shall have the
same rights, preferences, privileges and restrictions as the Purchased Units.


 


Section 2.02                                Sale
and Purchase.  Subject to the terms
and conditions hereof, at the Closing (as defined in Section 2.03 below) Seller
hereby agrees to sell to the Purchasers, and the Purchasers hereby agree to
purchase from Seller, the Purchased Units for an amount equal to the Purchase
Price (as defined in Section 2.05 below).


 


Section 2.03                                Closing.  The execution and delivery of the Basic
Documents, payment by the Purchasers of the Purchase Price and execution and
delivery of all other instruments, agreements, and other documents required by
this Agreement (the “Closing”) shall take place on the date hereof at
the offices of Blackwell Sanders Peper Martin LLP, 2300 Main Street, Suite
1000, Kansas City, Missouri 64108 (telephone: (816) 983-8000; facsimile: (816) 983-8080).


 


Section 2.04                                Delivery.


 


(a)                                  Seller’s
Deliveries.  At the Closing (except
where noted otherwise), subject to the terms and conditions hereof, Seller will
deliver, or cause to be delivered, to the Purchasers or the Investment Advisor:


 


(i)                                     No
later than 5:00 p.m., Central Standard Time, on Wednesday, June 18, 2003, all
of the Purchased Units by delivery to an individually-numbered Charles Schwab
account (or such other custodian account designated by Purchaser) for the
benefit of each Purchaser (such account information to be provided to the
Seller in accordance with Section 2.04(b)(iv) below) of certificates evidencing
the Purchased Units purchased at the Closing, in the amounts listed opposite
each Purchaser’s name on Schedule A attached hereto (such Schedule A
to be completed and provided to the Seller in accordance with Section
2.04(b)(iv) below), all free and clear of any liens, encumbrances or interests
of any other party; provided, however, that (a) no Purchaser
shall be entitled to receive its certificate until the Seller has received such
Purchaser’s Subscription Agreement described in Section 2.02(b)(ii) and such
Purchaser’s check for the payment of the Purchase Price, if applicable, has
cleared, and (b) notwithstanding the fact that such certificates may not be
delivered to the Purchasers until after the Closing, each


 


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Purchaser shall have all rights, preferences, privileges and
restrictions granted pursuant to this Agreement upon payment of the Purchase
Price for the Purchased Units on the date of the Closing;


 


(ii)                                  A
certificate executed by the Secretary or other appropriate officer of Seller,
dated the date hereof, certifying as to the resolutions of the Board of
Directors evidencing approval of the transactions contemplated by this
Agreement and/or the Basic Documents, as the case may be, and the authorization
of the appropriate officers to execute and deliver this Agreement and the Basic
Documents;


 


(iii)                               A certificate of the
Secretary of State of the State of Delaware, dated as of a recent date, that
Seller is in good standing;


 


(iv)                              An
opinion addressed to the Purchasers from legal counsel to Seller, dated the
date hereof, in the form substantially similar in substance to the form of opinion
attached hereto as Exhibit A; and


 


(v)                                 The
Registration Rights Agreement, which shall have been executed by Seller.


 


(b)                                 Purchasers’
Deliveries.  At the Closing (except
where noted otherwise), subject to the terms and conditions hereof, each
Purchaser will deliver, or will cause to be delivered, to the Seller:


 


(i)                                     The
Purchase Price for the Purchased Units to be purchased by such Purchaser by
wire transfer of immediately available funds to an account designated by
Seller; provided, however, that any Purchaser may, in lieu of
such wire transfer, deliver a check to the Seller at the Closing payable to the
Seller in the amount of the Purchase Price for the Purchased Units to be
purchased by such Purchaser;


 


(ii)                                  A
Subscription Agreement, in the form of Exhibit B attached hereto, to be
executed by each Purchaser and delivered to the Seller within fourteen (14)
days of the date hereof, containing representations that confirm such
Purchaser’s status as an accredited investor;


 


(iii)                               A Power of Attorney, in
the form of Exhibit C attached hereto, to be executed by each Purchaser
and delivered to the Seller within fourteen (14) days of the date hereof,
authorizing the Investment Advisor to sign this Agreement and any other
applicable Basic Documents on behalf of such Purchaser;


 


(iv)                              An
Application For Admission as an Additional Limited Partner, in the form of Exhibit
D attached hereto, to be executed by each Purchaser and delivered to the
Seller within fourteen (14) days of the date hereof, containing, among other
things, a request by such Purchaser to be admitted as an additional limited
partner of Partners; and


 


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(v)                                 No
later than 5:00 p.m., Central Standard Time, on Monday, June 16, 2003, Charles
Schwab (or such other custodian designated by Purchaser) account information
and a completed copy of Schedule A attached hereto, each sufficient to
enable Seller to make the delivery required pursuant to Section 2.04(a)(i)
above.


 


Section 2.05                                Consideration.  The total amount each Purchaser will pay to
Seller to purchase the Purchased Units (the “Purchase Price”) shall be
an amount equal to the product of (i) the number of Purchased Units
purchased by such Purchaser, and (ii) $26.23.


 


Section 2.06                                Additional
Purchase Option.


 


(a)                                  Option
to Purchase Additional Common Units. 
Each Purchaser, acting through the Investment Advisor, shall have the
option, but not the obligation for a period of ten (10) days following the date
of the Closing, to purchase additional Common Units in an amount equal to his,
her or its proportionate part (as defined below) for allocation purposes as
determined by the Investment Advisor. 
Notice of the exercise of such option shall be conveyed to Seller by the
Investment Advisor, and such exercise may be on behalf of Persons that did or
did not purchase Purchased Units pursuant hereto; provided, however,
that any purchaser of Option Units, whether or not such Person previously
purchased any Purchased Units, shall (a) become a party to and be bound by all
terms and conditions of this Agreement following such Person’s purchase of
Option Units, and (b) shall be added to Schedule A attached hereto.  The total number of Common Units so
purchased (the “Option Units”) shall not exceed 25% of the total number
of Purchased Units purchased by the Purchasers pursuant to Section 2.01 hereof;
provided, however, that the aggregate number of Purchased Units
and Option Units shall not exceed 440,000 Common Units.  The term “proportionate part” with
respect to any particular Purchaser shall mean the amount determined by the
Investment Advisor, or, in lieu of such determination, that portion of the
Option Units equal to the total number of Option Units times a fraction, the
numerator of which is the number of Purchased Units purchased by such Purchaser
pursuant hereto and the denominator of which is the total amount of Purchased
Units purchased by all of the Purchasers.


 


(b)                                 Closing
Date.  In the event that a Person
wishes to exercise the option to purchase Option Units, the Investment Advisor
shall, within ten (10) business days after the Closing, notify the Seller in
writing of the intent to exercise such option. 
The closing date for any such purchase shall be no later than three (3)
business days after the expiration of the ten-day period set forth above.


 


(c)                                  Purchase
Price. The per Common Unit purchase price applicable to any Option Unit
shall equal the per Common Unit Purchase Price applicable to the purchase of
the Purchased Units, as calculated in accordance with the terms of Section 2.05
hereof.  The purchase price for the
Option Units shall be paid by each Purchaser of Option Units to the Seller at
the time that the notice of exercise is delivered pursuant to Section 2.06(b).


 


(d)                                 Delivery.  At the closing of any purchase pursuant to
this Section 2.06, Seller shall deliver, or shall cause to be delivered, to
each Purchaser of Option Units or the Investment Advisor, all of the Option
Units so purchased, by delivery of certificates evidencing


 


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the Option Units to be purchased at the closing of such purchase, in
the amounts designated by the Investment Advisor in its notice under Section
2.06(b) above; provided, however, that, notwithstanding the fact
that such certificates may not be delivered to the Purchasers of Option Units
until after payment for such Option Units, each Purchaser shall have all
rights, preferences, privileges and restrictions granted pursuant to this
Agreement upon payment of the purchase price for the Option Units on the date
of such payment.


 


ARTICLE III.


REPRESENTATIONS AND
WARRANTIES RELATED TO SELLER


 


Seller represents and
warrants to the Purchasers, which representations and warranties shall survive
the Closing for a period of one year, that as of the date of this Agreement:


 


Section 3.01                                Corporate
Existence.  Seller:  (i) is a limited partnership duly organized,
legally existing and in good standing under the laws of the State of Delaware;
(ii) has all requisite power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on
its business as its business is now being conducted, except where the failure
to obtain such licenses, authorizations, consents and approvals would not have
or would not reasonably be likely to have a Seller Material Adverse Effect; and
(iii) is qualified to do business in all jurisdictions in which the nature of
the business conducted by it makes such qualifications necessary and where
failure so to qualify would have a Seller Material Adverse Effect.  None of Seller or any of its Subsidiaries
are in default in the performance, observance or fulfillment of any provision
of, in the case of Seller, the Partnership Agreement, Certificate of Limited
Partnership, or any other organizational document, or, in the case of any
Subsidiary of Seller, its Certificate of Incorporation, Bylaws or other
organizational documents.  Each of
Seller’s Subsidiaries that is a corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State or other
jurisdiction of its incorporation and has all requisite power, and has all
material governmental licenses, authorizations, consents and approvals
necessary to own its assets and carry on its business as now being conducted,
except where the failure to obtain such licenses, authorizations, consents and
approvals would not have or would not reasonably be likely to have a Seller
Material Adverse Effect.  Each of Seller
and its Subsidiaries that is a corporation is duly qualified or licensed and in
good standing as a foreign corporation, foreign limited partnership, or other
appropriate entity, and is authorized to do business, in each jurisdiction in
which the ownership or leasing of its respective properties or the character of
its respective operations makes such qualification necessary, except where the
failure to obtain such qualification, license, authorization or good standing
would not have a Seller Material Adverse Effect.  Each Subsidiary of Seller that is not a corporation has been duly
formed and is duly qualified or licensed and authorized to do business in each
jurisdiction in which the ownership or leasing of its respective properties or
the character of its respective operations makes such qualification necessary,
except where the failure to obtain such qualification, license or authorization
would not have a Seller Material Adverse Effect.


 


Section 3.02                                Seller
SEC Documents.  Seller has timely
filed with the Commission all forms, registrations and proxy statements,
reports, schedules and statements required to be filed by it under the Exchange
Act or the Securities Act (all such documents, collectively “Seller SEC


 


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Documents”).
The Seller SEC Documents, including, without limitation, any audited or
unaudited financial statements and any notes thereto or schedules included
therein (the “Seller Financial Statements”), at the time filed (in the
case of registration statements and proxy statements, solely on the dates of
effectiveness and the dates of mailing, respectively) (except to the extent
corrected by a subsequently filed Seller SEC Document filed prior to the date
hereof) (i) did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, (ii) complied in all material respects with the
applicable requirements of the Exchange Act and the Securities Act, as the case
may be, (iii) complied as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the
Commission with respect thereto, (iv) were prepared in accordance with GAAP
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto or, in the case of unaudited statements, as
permitted by Form 10-Q of the Commission), and (v) fairly present (subject in
the case of unaudited statements to normal, recurring and year-end audit
adjustments) in all material respects the consolidated financial position and
status of the business of Seller as of the dates thereof and the consolidated
results of its operations and cash flows for the periods then ended.


 


Section 3.03                                No
Material Adverse Change.  Except as
set forth in or contemplated by the Seller SEC Documents filed with the
Commission on or prior to the date hereof or in Schedule 3.03, since the
date of Seller’s most recent Form 10-Q filing with the Commission, Sellers and
its Subsidiaries have conducted their business in the ordinary course,
consistent with past practice, and there has been no (i) change that has had or
would reasonably be likely to have a Seller Material Adverse Effect, other than
those occurring as a result of general economic or financial conditions or
other developments which are not unique to Seller and its Subsidiaries but also
affect other Persons who participate or are engaged in the lines of business of
which Seller and its Subsidiaries participate or are engaged, (ii) acquisition
or disposition of any material asset by Seller or any of its Subsidiaries or
any contract or arrangement therefor, otherwise than for fair value in the
ordinary course of business or as disclosed in the Seller SEC Documents, or
(iii) material change in Seller’s accounting principles, practices or
methods.


 


Section 3.04                                Litigation.  Except as set forth in the Seller SEC
Documents or as disclosed on Schedule 3.04, there is no Action pending
or, to the knowledge of Seller, contemplated or threatened against or affecting
Seller, any of its Subsidiaries or any of their respective officers, directors,
properties or assets, which relates to or challenges the legality, validity or
enforceability of the Registration Rights Agreement or any other documents or
agreements executed or to be executed by Seller pursuant thereto or in
connection with the transactions contemplated by this Agreement or the
Registration Rights Agreement, or which (individually or in the aggregate)
would reasonably be likely to have a Seller Material Adverse Effect.


 


Section 3.05                                No
Breach.  The execution, delivery and
performance by Seller of the Registration Rights Agreement and all other agreements
and instruments to be executed and delivered by Seller pursuant thereto or in
connection with the transactions contemplated by this Agreement or the
Registration Rights Agreement, and compliance by Seller with the terms and


 


11

















 


provisions under such agreements, do not and will not (a) violate any
provision of any law, statute, rule or regulation, order, writ, judgment,
injunction, decree, governmental permit, determination or award having applicability
to Seller or any of its Subsidiaries or any of their respective properties or
assets, (b) conflict with or result in a violation of any provision of the
Certificate of Limited Partnership or other organizational documents of Seller,
or the Partnership Agreement, or any organizational documents of any of
Seller’s Subsidiaries, (c) require any consent (other than consents set
forth on Schedule 3.05), approval or notice under or result in a
violation or breach of or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under (i) any note, bond, mortgage, license, or loan or credit
agreement to which Seller or any of its Subsidiaries is a party or by which
Seller or any of its Subsidiaries or any of their respective properties may be
bound or (ii) any other such agreement, instrument or obligation, or (d) result
in or require the creation or imposition of any Lien upon or with respect to
any of the properties now owned or hereafter acquired by Seller or any of its
Subsidiaries; with the exception of the conflicts stated in clause (b) of this
Section 3.05, except where such conflict, violation, default, breach,
termination, cancellation, failure to receive consent or approval, or
acceleration with respect to the foregoing provisions of this Section 3.05
would not, individually or in the aggregate, reasonably be likely to have a
Seller Material Adverse Effect.


 


Section 3.06                                Authority.
Seller has all necessary power and authority to execute, deliver and perform
its Obligations under the Basic Documents to which it is a party; and the
execution, delivery and performance by Seller of the Basic Documents to which
it is a party, have been duly authorized by all necessary action on its part;
and the Basic Documents constitute the legal, valid and binding obligations of
Seller, enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent transfer
and similar laws affecting creditors’ rights generally or by general principles
of equity.  No approval from the holders
of the Common Units is required as a result of Seller’s sale of the Purchased
Units or the Option Units, if any, to the Purchasers.


 


Section 3.07                                Approvals.  Except as set forth in Schedule 3.07,
no authorization, consent, approval, waiver, license, qualification or written
exemption from, nor any filing, declaration, qualification or registration
with, any Governmental Authority or any other Person is required in connection
with the execution, delivery or performance by Seller of any of the Basic
Documents to which it is a party, except where the failure to receive such
authorization, consent, approval, waiver, license, qualification or written
exemption from, or to make such filing, declaration, qualification or
registration would not, individually or in the aggregate, reasonably be likely
to have a Seller Material Adverse Effect.


 


Section 3.08                                Taxes.  Except as set forth in Schedule 3.08,
Seller and each of its Subsidiaries have timely and properly prepared and filed
all necessary federal, state, local and foreign tax returns with respect to
Seller and its Subsidiaries that are required to be filed (taking into
consideration any extension periods) and have paid when due all taxes shown to
be due thereon and have paid, or made adequate provision (in accordance with
GAAP) for the payment of, all other taxes and assessments with respect to
Seller and its Subsidiaries to the extent that the same shall have become due
(taking into consideration any extension periods), except where the


 


12

















 


payment of any tax is
being contested in good faith or the failure to file such returns or to pay, or
make provision for the payment of, such taxes and assessments would not have a
Seller Material Adverse Effect.  Except
as set forth in Schedule 3.08, Seller does not have any knowledge of any
tax deficiency which has been asserted against Seller or any Subsidiary that
would reasonably be likely to have a Seller Material Adverse Effect.


 


Section 3.09                                Other
Agreements.  None of Seller or any
of its Affiliates is a party to any contract, agreement, arrangement or
understanding (other than this Agreement and the agreements entered into
hereunder) that by its terms purports to obligate, restrict or otherwise bind
any Purchaser including any area of mutual interest, exclusivity,
non-competition or other similar agreement.


 


Section 3.10                                No
Violation.  None of Seller or any of
its Subsidiaries is (a) in default (nor has an event occurred which, with
notice or passage of time or both, would constitute such a default) under or in
violation of any provision of any loan or credit agreement or any other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, (b) a party to any order of any Governmental Authority
arising out of any Action, which such violation, default or action in clauses
(a) and (b) would reasonably be likely to have a Seller Material Adverse Effect
or (c) in violation of any statute, rule or regulation of any Governmental
Authority or any governmental permit, which violation would reasonably be
likely to (individually or in the aggregate) (x) affect the legality, validity
or enforceability by the Purchasers of this Agreement or any of the Basic
Documents or (y) have a Seller Material Adverse Effect.


 


Section 3.11                                Environmental
Matters.


 


(a)                                  Environmental
Laws.  Except as described in the
Seller SEC Documents, each of Seller and its Subsidiaries (i) are in compliance
with any and all Environmental Laws, (ii) have received all permits required of
them under applicable Environmental Laws to conduct their respective
businesses, (iii) are in compliance with all terms and conditions of any such
permit, (iv) do not have any liability in connection with the use of any
petroleum or petroleum products and (v) do not have any liability in connection
with the release into the environment of any Hazardous Materials (as
hereinafter defined), except where such noncompliance with Environmental Laws,
failure to receive required permits, failure to comply with the terms and
conditions of such permits, liability in connection with such products or
liability in connection with such releases would not, individually or in the
aggregate, reasonably be likely to have a Seller Material Adverse Effect.  The term “Hazardous Material” means
(A) any “hazardous substance” as defined in CERCLA, (B) any “hazardous waste”
as defined in RCRA, (C) any polychlorinated biphenyl and (D) any substance
regulated under or within the meaning of any Environmental Law.


 


(b)                                 Release
of Claims.  Except as provided in
that certain Omnibus Agreement, dated as of May 24, 2002, by and among MarkWest
Hydrocarbon, Inc. (“Hydrocarbon”), Seller and the other parties thereto
or as set forth on Schedule 3.11, neither Seller nor its Subsidiaries
have:  (i) released any Person from any
Claim under any Environmental Law or waived any rights concerning any violation
or alleged violation of


 


13

















 


Environmental Law or (ii) contractually indemnified any Person for any
violation or alleged violation of an Environmental Law related to any property
owned or operated by Seller or any of its Subsidiaries or any other Person.


 


(c)                                  Environmental
Judgments.  Except as set forth in
the Seller SEC Documents or as set forth on Schedule 3.11, there are no
consent decrees, consent orders, settlement agreements, judgments, judicial or
administrative orders or agreements (other than environmental permits) with or
Liens by any Governmental Authority or other Person relating to any
Environmental Law which regulate, obligate or bind Seller or its Subsidiaries
with respect to Seller’s business and which are not generally applicable to all
Persons owning and/or operating Properties similar to such business.


 


(d)                                 Environmental
Reports.  True and correct copies of
all written environmental reports, including but not limited to Phase I
environmental site assessments, Phase II or greater environmental
investigation reports, compliance audits or other assessments conducted for
Seller or its Subsidiaries by independent, unrelated third Persons and related
to the Properties or business of Seller or its Subsidiaries have been made available
to the Purchasers or their Representative for copying and/or inspection.


 


Section 3.12                                Insurance.  Except as set forth in Schedule 3.12,
Seller and its Subsidiaries (for such time period after an entity became a
Subsidiary of Seller) are beneficiaries under Hydrocarbon-maintained policies
of property and casualty insurance and bonds of the type and in amounts
customarily carried by persons conducting business or owning assets similar to
those of Seller and its Subsidiaries. 
There is no material claim pending under any of such policies or bonds
as to which coverage has been, nor any basis for Seller or Hydrocarbon to
reasonably believe that a material claim will be, questioned, denied or
disputed by the underwriters of such policies or bonds.  All premiums due and payable under all such
policies and bonds have been paid by Hydrocarbon and Hydrocarbon is otherwise
in compliance with the terms of such policies and bonds. Seller does not have
any knowledge of any threatened termination of, or material premium increase
with respect to, any of such policies.  Schedule
3.12 identifies all risks, if any, of Seller or any of its Subsidiaries
that are self-insured that might have a Seller Material Adverse Effect.


 


Section 3.13                                Capitalization.  The outstanding Capital Stock of Seller
consists of (a) a general partner interest, currently held by the General
Partner, which represents a two percent (2%) general partner interest in
Seller, (b) 2,415,000 Common Units and (c) 3,000,000 Subordinated Units. All
outstanding Common Units have been validly issued and fully paid (to the extent
required under the Partnership Agreement) and are nonassessable (except as such
nonassessability may be limited by DRULPA and as described in the Seller SEC
Documents) and were issued free of preemptive rights (except as provided in the
Partnership Agreement).  Assuming due
payment of the Purchase Price by the Purchaser pursuant to the terms hereof,
upon issuance to the Purchasers, the Purchased Units, and the Option Units, if
any, will be duly and validly issued, fully paid (to the extent required under
the Partnership Agreement), non-assessable (except as such nonassessability may
be limited by DRULPA and as described in the Seller SEC Documents), free of
preemptive rights of other unitholders and free from all Liens, encumbrances,
charges and assessments of every nature (except any Liens created or suffered
or


 


14

















 


to be created by
Purchaser or its Affiliates) and, except as provided in the Partnership
Agreement, will not be subject to any restriction on the voting or transfer
thereof created by Seller.  Except as
set forth on Schedule 3.13 or as provided in the Partnership Agreement,
neither Seller nor Hydrocarbon is a party to any voting trust or other
agreement with respect to the voting of Seller’s Capital Stock.  Except for Seller’s outstanding Subordinated
Units and for awards of up to 500,000 Common Units pursuant to Seller’s long
term incentive plan, 51,152 of which have been granted as of the date hereof,
there are no (i) existing outstanding securities convertible into or
exchangeable for Capital Stock of Seller or (ii) existing contracts,
commitments, agreements, understandings or arrangements of any kind to which
Seller, Hydrocarbon or any of their Affiliates is a party obligating Seller
under any circumstance to issue any Capital Stock, or any securities
convertible into or exchangeable for or rights to purchase or subscribe for
Capital Stock of Seller, other than this Agreement.  Except as set forth on Schedule 3.13 or as provided in the
Partnership Agreement, neither Seller nor any of its Subsidiaries is a party to
or bound by any agreement with respect to any of its securities which grants
registration rights to any Person.


 


Section 3.14                                Certain
Fees.  Except as set forth in Schedule
3.14, no fees or commissions will be payable by Seller to brokers, finders,
investment bankers, or any Purchaser with respect to the sale of the Purchased
Units or the Option Units, if any, or the consummation of the transactions
contemplated by this Agreement.  Seller
agrees to indemnify and hold harmless each Purchaser from and against any and
all claims, demands, or liabilities for broker’s, finder’s, placement, or other
similar fees or commissions incurred by Seller or alleged to have been incurred
by Seller in connection with the sale of the Purchased Units or the Option
Units, if any, or the consummation of the transactions contemplated by this
Agreement.


 


Section 3.15                                Licenses.  Except as set forth in Schedule 3.15,
Seller and its Subsidiaries hold all licenses, franchises, permits, consents,
registrations, certificates and other approvals (including, without limitation,
those relating to environmental matters and worker health and safety) (individually,
a “License” and, collectively, “Licenses”) required for the
conduct of their business as now being conducted, except where the failure to
hold any such License would not have a Seller Material Adverse Effect.


 


Section 3.16                                Undisclosed
Liabilities.  Except (a) as and to
the extent disclosed or reserved against on the consolidated balance sheet of
Seller as reported in Seller’s most recent Form 10-Q or Form 10-K filing with
the Commission prior to the date hereof or the notes thereto, or otherwise disclosed
in any Seller SEC Documents filed with the Commission on or prior to the date
hereof, (b) for obligations incurred in connection with the execution of the
Basic Documents to which it is a party, (c) for obligations incurred in the
ordinary course of business subsequent to the date of Seller’s most recent Form
10-Q or Form 10-K filing with the Commission prior to the date hereof, or (d)
as set forth in Schedule 3.16, none of Seller or any of its Subsidiaries
has any liabilities that would be required by GAAP to be disclosed and that
have not been disclosed in the Seller SEC Documents and that, individually or
in the aggregate, have had or would reasonably be likely to have a Seller
Material Adverse Effect.


 


Section 3.17                                Financial
Forecasts.  Seller has provided to
the Investment Advisor, in connection with that certain Confidentiality
Agreement dated May 8, 2003, summary financial


 


15

















 


forecasts relating to the
future results of operations of Seller. 
These financial forecasts present, to Seller’s knowledge and belief as
of the date hereof, the expected results of operations of Seller for the
periods presented.  These financial
forecasts are based upon certain assumptions and reflect judgments of Seller’s
management regarding expected market and industry conditions and expected
courses of action for Seller.  The
assumptions contained or reflected in the forecasts are limited to those which
Seller believes are most material to the financial forecasts presented.  Because events and circumstances frequently
do not occur as expected, Seller can provide no assurance that the forecasted
results will be achieved.  Seller
expects that there will be differences between the forecasts and the actual
results of Seller, and some of those differences may be material.  The Seller SEC Documents describe risks and
other facts that may cause actual results of Seller to differ materially from
forecasted results and the Purchasers or their Representatives have had an
opportunity to review such risks and other factors and conduct a thorough
investigation with respect thereto.  If
the forecasts are not achieved, Seller may not be able to pay the full minimum
quarterly distribution or any amount on the Purchased Units or the Option Units,
if any.


 


Section 3.18                                Securities
Laws Exemptions.  Assuming the
accuracy of the representations, warranties and certificates of the Purchasers
hereunder, Seller’s sale of the Purchased Units and the Option Units, if any,
to the Purchasers pursuant to this Agreement is exempt from the registration
requirements of the Securities Act and the securities laws of any state having
jurisdiction with respect thereto, and Seller has filed, or within applicable
time limitations will file, all documents, if any such documents are required
to be filed, with all appropriate federal and state securities authorities, as
a result of such sale.


 


ARTICLE IV.


REPRESENTATIONS AND
WARRANTIES OF THE PURCHASERS


 


Each Purchaser, severally
and not jointly, represents and warrants to Seller, which representations and
warranties shall survive the execution of any Basic Document, that as of the
date of this Agreement and exclusively as to such Purchaser:


 


Section 4.01                                Investment.  Purchaser represents and warrants to, and
covenants and agrees with, Seller that the Purchased Units, and the Option
Units, if any, are being acquired for his, her or its own account, not as a
nominee or agent, and with no intention of distributing the Purchased Units or
the Option Units, if any, or any part thereof, and that Purchaser has no
present intention of selling or granting any participation in or otherwise
distributing the same in any transaction in violation of the securities laws of
the United States of America or any State, without prejudice, however, to
Purchaser’s right at all times to sell or otherwise dispose of all or any part
of the Purchased Units or the Option Units, if any, under a registration
statement under the Securities Act and applicable state securities laws or
under an exemption from such registration available thereunder (including,
without limitation, if available, Rule 144 promulgated thereunder). If
Purchaser should in the future decide to dispose of any of the Purchased Units
or Option Units, if any, Purchaser understands and agrees (a) that it may do so
only (i) in compliance with the Securities Act and applicable state securities
law, as then in effect, or (ii) in the manner contemplated by any registration
statement pursuant to which such securities are being offered, and (b) that
stop-transfer instructions to that effect


 


16

















 


will be in effect with
respect to such securities.  Purchaser
agrees to the imprinting, so long as appropriate, of a legend on each
certificate representing the Purchased Units and the Option Units, if any,
which legend shall read as follows:


 


“This Security has not been registered under the
Securities Act of 1933, as amended (the “Securities Act”), and may not
be offered or sold, unless it has been registered under the Securities Act or
unless an exemption from registration is available (and, in such case, an
opinion of counsel reasonably satisfactory to the Partnership shall have been
delivered to the Partnership to the effect that such offer or sale is not
required to be registered under the Securities Act).  This Security is subject to certain restrictions on transfer set
forth in the Amended and Restated Agreement of Limited Partnership of the
Partnership dated as of May 24, 2002, a copy of which may be obtained from the
Partnership at its principal offices.”


 


Section 4.02                                Nature
of Purchaser.  Purchaser represents
and warrants to, and covenants and agrees with, Seller that (a) he, she or it
is an “accredited investor” within the meaning of Rule 501 of Regulation D
promulgated by the Securities and Exchange Commission pursuant to the
Securities Act and (b) by reason of its business and financial experience it
has such knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of the
prospective investment in the Purchased Units and the Option Units, if any, is
able to bear the economic risk of such investment and, at the present time,
would be able to afford a complete loss of such investment.


 


Section 4.03                                Receipt
of Information; Authorization. 
Purchaser acknowledges that he, she or it, or his, her or its
Representative has had access to information regarding the business, assets
(including the physical condition thereof and environmental issues relating
thereto), operations, financial condition and results of operations of Seller
and has been provided a reasonable opportunity to ask questions of and receive
answers from representatives of Seller regarding such matters.  Purchaser further acknowledges that he, she
or it, or his, her or its Representative is experienced in investing in
corporations and businesses.


 


Section 4.04                                No
Breach.  The execution, delivery and
performance by Purchaser of this Agreement, the Basic Documents and all other
agreements and instruments to be executed and delivered by Purchaser pursuant
hereto or thereto or in connection herewith or therewith, compliance by
Purchaser with the terms and provisions hereof and thereof, and the purchase of
the Purchased Units and the Option Units, if any, by Purchaser do not and will
not (a) violate any provision of any law, statute, rule or regulation, order,
writ, judgment, injunction, decree, governmental permit, determination or award
having applicability to Purchaser or any of its properties or assets, (b)
conflict with or result in a violation of any provision of the organizational
documents of Purchaser, if any, or (c) require any consent (other than
standard internal consents), approval or notice under or result in a violation
or breach of or constitute (with or without due notice or lapse of time or
both) a default (or give rise to any right of termination, cancellation or
acceleration) under (i) any note, bond, mortgage, license, or loan or credit
agreement to which Purchaser is a party or by which Purchaser or any of its
properties may be bound or (ii) any other such agreement, instrument or
obligation; with the exception of


 


17

















 


the conflicts stated in
clause (b) of this Section 4.04, except where such conflict, violation,
default, breach, termination, cancellation, failure to receive consent or
approval, or acceleration with respect to the foregoing provisions of this
Section 4.04 would not, individually or in the aggregate, reasonably be likely
to have a Purchaser Material Adverse Effect.


 


Section 4.05                                Restricted
Securities.  Purchaser understands
that the Purchased Units and the Option Units, if any, he, she or it is
purchasing are characterized as “restricted securities” under the federal
securities laws inasmuch as they are being acquired from Seller in a
transaction not involving a public offering, and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act only in certain limited circumstances. In this connection,
Purchaser represents that it is knowledgeable with respect to Rule 144
promulgated under the Securities Act.


 


Section 4.06                                Certain
Fees.  Except for the periodic
advisory fee owed to the Investment Advisor in the future, no fees or
commissions will be payable by Purchaser to brokers, finders, or investment
bankers with respect to the purchase of any of the Purchased Units or the
Option Units, if any, or the consummation of the transaction contemplated by
this Agreement.  Purchaser agrees that
he, she or it will indemnify and hold harmless Seller from and against any and
all claims, demands, or liabilities for broker’s, finders, placement, or other
similar fees or commissions incurred by Purchaser or alleged to have been
incurred by Purchaser in connection with the purchase of the Purchased Units or
the Option Units, if any, or the consummation of the transactions contemplated
by this Agreement.


 


Section 4.07                                Exclusive
Beneficial Ownership.  Purchaser
represents and warrants that, following his, her or its acquisition of
Purchased Units or the Option Units, if any, pursuant hereto, he, she or it
will have exclusive beneficial ownership of such Purchased Units and Option
Units, if any (jointly with his or her spouse, if applicable), and is not
acquiring such Purchased Units or Option Units, if any, as an Affiliate of
Seller or Hydrocarbon.


 


ARTICLE V.


COVENANTS


 


Absent the prior written
consent of all Purchaser’s to the contrary, Seller will, for the benefit of
each Purchaser, at all times comply with the covenants contained in this
Article VI (or cause each Subsidiary’s compliance with the applicable
covenants), from the date hereof and for so long as any Purchaser owns any
Common Units.


 


Section 5.01                                SEC
Filings. Seller shall timely file each financial statement, report, notice
or proxy statement, each regular or periodic report, and any registration
statement or prospectus required to be filed with the Commission or any
successor agency.  Failure by Seller to
timely make such filings shall be deemed a material breach of this Agreement.


 


Section 5.02                                Maintenance,
Etc. Seller shall, and shall cause each of its Subsidiaries to: (a) upon
reasonable notice, permit the Investment Advisor or other Representative of the
Purchasers, during normal business hours, to examine, copy and make extracts
from its financial books and records, to inspect its Properties, and to discuss
its business and affairs with its


 


18

















 


officers, all to the
extent reasonably required by the Purchasers; (b) preserve and maintain its
corporate existence and all of its material attendant rights, privileges and
franchises, and keep appropriate books of record and account in relation to its
business and activities; provided, however, that Seller may
purchase or otherwise acquire all or substantially all of the stock or assets
of, or otherwise acquire by merger or consolidation, any of its Subsidiaries,
and any such Subsidiary may merge into, or consolidate with, or purchase or
otherwise acquire all or substantially all of the assets or stock of, or sell
all or substantially all of its assets or stock to, Seller or any other
Subsidiary of Seller, in each case so long as (i) if the transaction is with
Seller, Seller shall be the surviving entity to any such merger or
consolidation or (ii) if the transaction is not with Seller, a Subsidiary shall
be the surviving entity to any such merger or consolidation; provided, further,
however, that nothing contained in the foregoing proviso shall be
construed to limit Seller’s ability, or the ability of any of its Subsidiaries,
to engage in any transaction with an outside third party or parties; (c) comply
with all Governmental Requirements, including, without limitation, any
Environmental Laws, except where the failure to comply would not reasonably be
likely to have a Seller Material Adverse Effect; and (d) pay and discharge all
taxes, assessments and governmental charges or levies imposed on it or on its
income or profits or on any of its Property, except for any such tax,
assessment, charge or levy the payment of which is being contested in good
faith and by proper proceedings and against which adequate reserves are being
maintained.


 


Section 5.03                                Further
Assurances.  Seller will cure
promptly any defects in the delivery of the Basic Documents.  Seller, at its expense, will promptly
execute and deliver to each Purchaser, upon request, all such other documents,
agreements and instruments to correct any omissions in the Basic Documents or
to make any recordings, to file any notices or obtain any consents, all as may
reasonably be necessary or appropriate in connection therewith.


 


Section 5.04                                Efforts;
Performance of Obligations.  Each
party agrees to use commercially reasonable efforts to take any and all actions
required in order to consummate the transactions contemplated in this Agreement
and the other Basic Documents.  Each
party will do and perform every act and discharge all of the obligations to be
performed and discharged by it under the Basic Documents, at the time and times
and in the manner specified.


 


Section 5.05                                Insurance.  Seller shall maintain, or shall cause
Hydrocarbon to obtain and maintain, on behalf of Seller, such insurance as is
necessary to comply with all requirements of law and agreements to which Seller
or any Subsidiary is a party and otherwise sufficient to adequately insure
against such risks as are usually insured against in the same general area by
companies engaged in the same or similar business for the assets and operations
of Seller and each Subsidiary.


 


Section 5.06                                Use
of Proceeds.  Seller shall use the
net proceeds from the issuance and sale of the Purchased Units and the Option
Units, if any, to repay acquisition indebtedness.


 


Section 5.07                                Notification
of Certain Matters.  Seller shall
give prompt notice to the Investment Advisor of the occurrence or
non-occurrence of any event the occurrence or non-occurrence of which would be
likely to cause the failure of Seller to comply with or satisfy any covenant or
agreement under this Agreement or any of the Basic Documents.


 


19

















 


Section 5.08                                Enforceability
of Basic Documents.  In the event a
party becomes aware of an actual or potential threat to the enforceability,
legality or validity of the Basic Documents, such party shall immediately
notify the other parties of such threat, and the parties shall, through
lawfully and commercially reasonable efforts, defend the Basic Documents against
such threat.


 


Section 5.09                                Fees
and Expenses.  Seller hereby agrees
to pay at the Closing all reasonable legal, accounting, technical consulting,
travel and other out of pocket costs incurred by the Investment Advisor
relating to the investigation, negotiation and consummation of the transactions
contemplated by this Agreement and the Basic Documents.


 


Section 5.10                                Investment
Advisor Board Observation.  In the
event that the Investment Advisor or any of its Affiliates no longer have the
right to attend meetings of the Board of Directors under any other agreement,
then as long as at least 50% of the Purchased Units are outstanding and
retained by the original Purchasers thereof, Seller shall allow the Investment
Advisor to attend all meetings of the Board of Directors at Seller’s expense
and to receive all materials distributed to members of the Board of Directors
generally.


 


Section 5.11                                Exchange
Listing. Seller shall use its reasonable best efforts to promptly cause the
Purchased Units and the Option Units, if any, issued pursuant hereto to be
listed for trading on the American Stock Exchange in the same manner as
Seller’s currently outstanding Common Units.


 


ARTICLE VI.


MISCELLANEOUS


 


Section 6.01                                Interpretation
and Survival of Provisions. 
Article, Section, Schedule, and Exhibit references are to this
Agreement, unless otherwise specified. 
All references to instruments, documents, contracts, and agreements are
references to such instruments, documents, contracts, and agreements as the
same may be amended, supplemented, and otherwise modified from time to time,
unless otherwise specified.  The word
“including” shall mean “including but not limited to.”  Whenever Seller has an obligation under the
Basic Documents, the expense of complying with that obligation shall be an
expense of Seller unless otherwise specified. 
Whenever any determination, consent, or approval is to be made or given
by a Purchaser, such action shall be in such Purchaser’s sole discretion unless
otherwise specified in this Agreement. If any provision in the Basic Documents
is held to be illegal, invalid, not binding, or unenforceable, such provision
shall be fully severable and the Basic Documents shall be construed and
enforced as if such illegal, invalid, not binding, or unenforceable provision
had never comprised a part of the Basic Documents, and the remaining provisions
shall remain in full force and effect. 
The Basic Documents have been reviewed and negotiated by sophisticated
parties with access to legal counsel and shall not be construed against the
drafter.  The representations and
warranties shall survive for the applicable one-year period identified in the
first paragraph of Article III above, and the covenants made in this Agreement or
any other Basic Document shall survive the closing of the transactions
described herein and remain operative and in full force and effect regardless
of (a) any investigation made by or on behalf of Seller or any Purchaser or (b)
acceptance of any of the Purchased Units or Option Units, if any, and payment
therefor and repayment, conversion, exercise or repurchase thereof.


 


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All indemnification
obligations of Seller and the provisions of Section 6.02 shall remain operative
and in full force and effect unless such obligations are expressly terminated
in a writing referencing that individual Section, regardless of any purported
general termination of this Agreement.


 


Section 6.02           Indemnification, Costs and
Expenses.


 


(a)                                  Indemnification
Regarding Seller Activities.  Seller
agrees to indemnify each Purchaser, the Investment Advisor and their officers,
directors, employees, representatives, agents, attorneys, and Affiliates
(collectively, “Related Parties”) from, and hold each of them harmless
against any and all actions, suits, proceedings (including any investigations,
litigation, or inquiries), Claims (including any Environmental Claims),
demands, and causes of action, and, in connection therewith, and promptly upon
demand, pay or reimburse each of them for all reasonable costs, losses,
liabilities, damages, or expenses of any kind or nature whatsoever, including,
without limitation, the reasonable fees and disbursements of counsel and all
other reasonable expenses incurred in connection with investigating, defending
or preparing to defend any such matter that may be incurred by them or asserted
against or involve any of them as a result of, arising out of, or in any way
related to (i) any actual or proposed use by Seller of the proceeds of any sale
of the Purchased Units or Option Units, if any, or (ii) the breach of any of
the representations, warranties or covenants of Seller contained herein,
provided such claim for indemnification relating to a breach of the
representations and warranties is made prior to the expiration of such
representations and warranties (collectively, the “Indemnity Matters”).


 


(b)                                 Indemnification
Regarding Taxes.  Seller agrees to
pay and hold each Purchaser harmless from and against any and all present and
future stamp and other similar taxes payable with respect to this Agreement and
the Basic Documents and save each Purchaser harmless from and against any and
all liabilities with respect to or resulting from any delay or omission to pay
such taxes, and will indemnify each Purchaser for the full amount of taxes paid
by such Purchaser (not to include income or gross receipt tax liability or any
other taxes resulting from such Purchaser’s status as a limited partner of
Seller) in respect of payments made or to be made under this Agreement or any
other Basic Document and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto.


 


(c)                                  Indemnification
Procedure.  Promptly after a
Purchaser or any Related Party (hereinafter, the “Indemnified Party”)
has received notice of any claim for indemnification hereunder, or the
commencement of any action or proceeding by a third person, which the
Indemnified Party believes in good faith is an indemnifiable claim under this
Agreement, the Indemnified Party shall give Seller written notice of such claim
or the commencement of such action or proceeding, but failure so to notify
Seller will not relieve Seller from any liability it may have to such
Indemnified Party hereunder except to the extent that Seller is materially
prejudiced by such failure.  Such notice
shall state the nature and the basis of such claim.  Seller shall have the right to defend and settle, at its own expense
and by its own counsel, any such matter as long as Seller pursues the same
diligently and in good faith.  If Seller
undertakes to defend or settle, it shall promptly notify the Indemnified Party
of its intention to do so, and the Indemnified Party shall cooperate with
Seller and its counsel in all commercially reasonable respects in the defense
thereof and the settlement thereof. 
Such cooperation shall include, but


 


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shall not be limited to, furnishing Seller with any books, records and
other information reasonably requested by Seller and in the Indemnified Party’s
possession or control. Such cooperation of the Indemnified Party shall be at
the cost of Seller.  After Seller has
notified the Indemnified Party of its intention to undertake to defend or
settle any such asserted liability, and for so long as Seller diligently
pursues such defense, Seller shall not be liable for any additional legal
expenses incurred by the Indemnified Party in connection with any defense or
settlement of such asserted liability; provided, however, that
the Indemnified Party shall be entitled (i) at its expense, to participate in
the defense of such asserted liability and the negotiations of the settlement
thereof and (ii) if (A) Seller has failed to assume the defense and employ
counsel or (B) if the defendants in any such action include both the
Indemnified Party and Seller and counsel to the Indemnified Party shall have
concluded that there may be reasonable defenses available to the Indemnified
Party that are different from or in addition to those available to Seller, or
if the interests of the Indemnified Party reasonably may be deemed to conflict
with the interests of Seller, then the Indemnified Party shall have the right
to select a separate counsel and to assume such legal defense and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by Seller as incurred.  If
the Indemnified Party undertakes such a defense through counsel of its choice,
the Indemnified Party may settle such matter, and Seller shall reimburse the
Indemnified Party for the amount paid in such settlement and any other
liabilities or expenses incurred by the Indemnified Party in connection
therewith.  Notwithstanding any other
provision of this Agreement, (i) Seller shall not settle any Indemnity Matter
without the consent of the Indemnified Party, unless the settlement thereof
imposes no liability or obligation on, and includes a complete release from
liability of, the Indemnified Party, and (ii) the Indemnified Party shall not
settle any Indemnity Matter without the consent of Seller, unless the
settlement thereof imposes no liability or obligations on, and includes a
complete release from liability of, Seller.


 


(d)                                 Survival.  Seller’s obligations under this Section 6.02
shall survive any termination of this Agreement.


 


Section 6.03                                No
Waiver; Modifications in Writing.


 


(a)                                  Delay.  No failure or delay on the part of any party
in exercising any right, power, or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power, or
remedy preclude any other or further exercise thereof or the exercise of any
right, power, or remedy. The remedies provided for herein are cumulative and
are not exclusive of any remedies that may be available to a party at law or in
equity or otherwise.


 


(b)                                 Specific
Waiver.  Except as otherwise
provided herein, no amendment, waiver, consent, modification, or termination of
any provision of this Agreement or any other Basic Document shall be effective
unless signed by all of the original signatories hereto or thereto. Any
amendment, supplement or modification of or to any provision of this Agreement
or any other Basic Document, any waiver of any provision of this Agreement or
any other Basic Document, and any consent to any departure by Seller from the
terms of any provision of this Agreement or any other Basic Document shall be
effective only in the specific instance and for the specific purpose for which
made or given.  Except where notice is
specifically required by


 


22

















 


this Agreement, no notice to or demand on Seller in any case shall
entitle Seller to any other or further notice or demand in similar or other
circumstances.


 


Section 6.04           Binding Effect; Assignment.


 


(a)                                  Binding
Effect.  This Agreement shall be
binding upon Seller, each Purchaser, and their respective successors and
permitted assigns.  Except as expressly
provided in this Agreement, this Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement, and their respective successors and permitted assigns.


 


(b)                                 Assignment
of Purchased Units and Option Units. 
All or any portion of the Purchased Units and Option Units, if any,
purchased pursuant to this Agreement may be sold, assigned or pledged by
Purchaser, subject to compliance with applicable securities laws.


 


(c)                                  Assignment
of Rights.  All or any portion of
the rights and obligations of each Purchaser under this Agreement may not be
transferred by such Purchaser without the written consent of Seller, which
consent shall not be unreasonably withheld.


 


Section 6.05                                Confidentiality.  Each Purchaser will refrain, and will cause
his, her or its Representatives to refrain, from disclosing to any other Person
any Confidential Information. 
Disclosure of Confidential Information will not be deemed to be a breach
of this Section 6.05 if such disclosure is made with the consent of Seller or
pursuant to a subpoena or order issued by a court of competent jurisdiction or
by a judicial or administrative or legislative body or committee; provided,
however, that upon receipt by a Purchaser of any subpoena or order
covering Confidential Information of Seller or Hydrocarbon, such Purchaser will
promptly notify Seller or Hydrocarbon of such subpoena or order.  Each Purchaser shall, or shall cause his,
her or its Representative (including the Investment Advisor) to, comply with
the provisions of the Confidentiality Agreement dated as of May 8, 2003 between
the Seller and the Investment Advisor and comply with all other obligations
relating to Confidential Information under this Agreement or any other
applicable agreement involving Seller, any Purchaser and/or the Investment
Advisor.


 


Section 6.06                                Communications.  All notices and demands provided for
hereunder shall be in writing and shall be given by registered or certified
mail, return receipt requested, telecopy, air courier guaranteeing overnight
delivery or personal delivery to the following addresses:


 


(a)                                  If
to any Purchaser:


 


Tortoise Capital Advisors, LLC


233 West 47th Street


Kansas City, Missouri 64112


Attention: 
David J. Schulte


Facsimile: 
(816) 960-1777


 


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with a
copy to:


 


Blackwell
Sanders Peper Martin LLP


2300
Main Street, Suite 1000


Kansas
City, Missouri 64108


Attention:  Steven F. Carman, Esq.


Facsimile:  (816) 983-8080


 


(b)                                 If
to Seller:


 


MarkWest Energy Partners, L.P.


155 Inverness Drive West, Suite 200


Englewood, Colorado 80112


Attention: 
John M. Fox


Facsimile: 
(303) 290-8769


 


with a copy to:


 


Vinson & Elkins L.L.P.


2300 First City Tower


1001 Fannin Street


Houston, Texas 77002


Attention: 
David Oelman, Esq.


Facsimile: 
(713) 615-5861


 


or to such other address
as Seller or the Investment Advisor may designate in writing.  All notices and communications shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; upon actual receipt if sent by certified mail, return receipt
requested, or regular mail, if mailed; when receipt acknowledged, if sent via
facsimile; and upon actual receipt when delivered to an air courier
guaranteeing overnight delivery.


 


Section 6.07                                Entire
Agreement.  This Agreement is
intended by the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.  There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the rights granted by Seller or the Purchasers set forth
herein.  This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.


 


Section 6.08                                Governing
Law.  This Agreement will be
construed in accordance with and governed by the laws of the State of Delaware
without regard to principles of conflicts of laws.


 


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Section 6.09                                Execution
in Counterparts.  This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.


 


[The remainder of this page is intentionally left blank.]


 


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


 


	
   

  	
  TORTOISE CAPITAL ADVISORS, LLC

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  On behalf of each
  Purchaser listed on Schedule A attached hereto, pursuant to a
  Power of Attorney executed by each such Purchaser

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  David J. Schulte

  
	
   

  	
  Title:

  	
  A Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MARKWEST ENERGY PARTNERS, L.P.

  
	
   

  	
  a Delaware
  limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Arthur J. Denney

  
	
   

  	
  Title:

  	
  Senior Executive
  Vice President

  
					



 


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