Exhibit 4.1


 


Execution Copy


 


UNIT PURCHASE AGREEMENT


 


by and among


 


MARKWEST ENERGY PARTNERS, L.P.,


 


MARKWEST ENERGY GP, L.L.C.


 


KAYNE ANDERSON ENERGY FUND II, L.P.,


 


KAYNE ANDERSON
CAPITAL INCOME PARTNERS (QP), L.P.,


 


KAYNE ANDERSON MLP
FUND, L.P.,


 


KAYNE ANDERSON
CAPITAL INCOME FUND, LTD.,


 


KAYNE ANDERSON INCOME
PARTNERS, L.P.,


 


HFR RV PERFORMANCE
MASTER TRUST,


 


TORTOISE ENERGY
INFRASTRUCTURE CORPORATION


 


AND


 


ENERGY INCOME AND GROWTH FUND


 

















 


UNIT PURCHASE AGREEMENT


 


UNIT PURCHASE
AGREEMENT, dated as of July 29, 2004 (this “Agreement”), by
and among MARKWEST ENERGY PARTNERS, L.P. (“MarkWest”) and MARKWEST
ENERGY GP, L.L.C. (“MarkWest GP”) (solely for purposes of
Sections 3.15 and 5.13) and each of KAYNE ANDERSON ENERGY FUND II, L.P. (“KAEF”),
KAYNE ANDERSON CAPITAL INCOME PARTNERS
(QP), L.P. (“KACIP”), KAYNE ANDERSON MLP FUND, L.P. (“KAMLP”),
KAYNE ANDERSON CAPITAL INCOME FUND, LTD. (“KACIF”), KAYNE ANDERSON
INCOME PARTNERS, L.P. (“KAIP”), HFR RV PERFORMANCE MASTER TRUST (“HFR”)
(collectively, “Kayne Anderson”),  TORTOISE ENERGY
INFRASTRUCTURE CORPORATION (“Tortoise”) and ENERGY INCOME AND GROWTH
FUND (“Energy Income”) (each of KAEF, KACIP, KAMLP, KACIF, KAIP, HFR,
Tortoise and Energy Income a “Purchaser” and collectively, the “Purchasers”).


 


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:


 


“ACGC”
means ACGC Gathering Company, L.L.C., an Oklahoma limited liability company.


 


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


 


“Affiliate”
means, with respect to a specified Person, any other Person, directly or
indirectly controlling, controlled by or under direct or indirect common
control with such specified Person.  For
purposes of this definition, “control” (including, with correlative meanings,
“controlling”, “controlled by”, and “under common control with”) means the
power to direct or cause the direction of the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise.


 


“American
Central” means American Central Eastern Texas Gas Company Limited
Partnership, an Oklahoma limited partnership.


 


“American
Central Acquisition” means MarkWest’s proposed acquisition of the east
Texas Carthage gathering system and gas processing assets pursuant to the
American Central PSA.


 


“American
Central Closing” means the closing of the American Central Acquisition.


 


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“American
Central PSA” means that certain Asset Purchase and Sale Agreement dated as
of July 1, 2004, between MarkWest Energy East Texas Gas Company L.P., a
Delaware limited partnership and indirect wholly owned subsidiary of MarkWest,
as buyer, and American Central and ACGC, as sellers.


 


“Basic
Documents” means, collectively, this Agreement, the Registration Rights
Agreement, and any and all other agreements or instruments executed and
delivered to the Purchasers by MarkWest or any Subsidiary of MarkWest hereunder
or thereunder.


 


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


 


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


 


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


 


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


 


“Commitment”
means, with respect to a particular Purchaser, the commitment of such Purchaser
until the Termination Date to purchase such Purchaser’s Purchased Units on the
terms and subject to the conditions set forth in this Agreement.


 


“Commitment
Date” means the date of this Agreement.


 


“Common
Unit Price” shall have the meaning specified in Section 2.06(b).


 


“Common
Units” means the common units of MarkWest.


 


“Confidential
Information” means all oral or written information, documents, records and
data that MarkWest or its Representatives furnishes or otherwise discloses to a
Purchaser or any of its Representatives, including any information relating to
either American Central or ACGC, together with all copies, extracts, analyses,
compilations, studies, memoranda, notes or other documents, records or data (in
whatever form maintained, whether documentary, computer or other electronic
storage or otherwise) prepared by any Person that contain or otherwise reflect
or are generated from such information, documents, records, or data.  The term “Confidential Information” does not
include any information that (a) at the time of disclosure or thereafter is
generally available to the public (other than as a result of a disclosure by
such Purchaser or its Representatives), (b) is developed by such Purchaser or
any of its Representatives, independent of, and without reliance in whole or in
part on, any Confidential Information or any knowledge of Confidential
Information, (c) becomes available to such Purchaser or its Representatives on
a non-confidential basis from a source other than MarkWest or its
Representatives who, insofar as is known to the recipient after reasonable
inquiry, is not prohibited from transmitting the information to the recipient
by a contractual, legal, fiduciary or other obligation to MarkWest or (d) was
available to such Purchaser or its Representatives on a non-confidential basis
prior to its disclosure to such Purchaser or its Representatives by MarkWest or
its Representatives.


 


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“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.


 


“Form 8-A”
shall have the meaning set forth in Section 3.02(a).


 


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


 


“Governmental
Authority” means, with respect to a particular Person, the country, state,
county, city and political subdivisions in which such Person or such Person’s
Property is located or which exercises 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 authority
which exercises valid jurisdiction over any such Person or such Person’s
Property.  Unless otherwise specified,
all references to Governmental Authority herein with respect to MarkWest means
a Governmental Authority having jurisdiction over MarkWest, its Subsidiaries or
any of their respective Properties.


 


“Indemnified
Party” shall have the meaning specified in Section 5.02(c).


 


“Indemnifying
Party” shall have the meaning specified in Section 5.02(c).


 


“Knowledge”
means the actual knowledge of the individuals listed on Schedule 2.01
hereto.


 


“Law”
means any federal, state, local or foreign order, writ, injunction, judgment,
settlement, award, decree, statute, law, rule or regulation.


 


“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 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.


 


“MarkWest”
has the meaning set forth in the introductory paragraph.


 


“MarkWest
Financial Statements” means the financial statement or statements described
or referred to in Section 3.03.


 


“MarkWest
GP” has the meaning set forth in the introductory paragraph.


 


“MarkWest
Material Adverse Effect” means any material and adverse effect on (a) the
assets, liabilities, financial condition, business, operations or affairs of
MarkWest


 


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and its Subsidiaries taken as a
whole measured against those assets, liabilities, financial condition,
business, operations or affairs reflected in the MarkWest SEC Documents filed
with the Commission prior to the Commitment Date or from the facts represented
or warranted in any Basic Document, or (b) the ability of MarkWest to
consummate the American Central Acquisition or any of the transactions
contemplated under the Basic Documents.


 


“MarkWest
Related Parties” shall have the meaning specified in Section 5.02(b).


 


“MarkWest
SEC Documents” shall have the meaning specified in Section 3.03.


 


“Partnership
Agreement” means the Amended and Restated Agreement of Limited Partnership
of MarkWest, dated as of May 24, 2002.


 


“Partnership
Securities” means any class or series of equity interest in MarkWest (but
excluding any options, rights, warrants and appreciation rights relating to an
equity interest in MarkWest), including without limitation Common Units,
Subordinated Units and Incentive Distribution Rights (as defined in the
Partnership Agreement).


 


“Permits”
means, with respect to MarkWest or any of its Subsidiaries, any licenses,
permits, variances, consents, authorizations, waivers, grants, franchises,
concessions, exemptions, orders, registrations and approvals of Governmental
Authorities or other Persons necessary for the ownership, leasing, operation,
occupancy and use of its Properties and the conduct of its businesses as
currently conducted.


 


“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.


 


“Prior
Registration Rights Agreements” means the (i) Registration Rights Agreement
dated November 20, 2002 by and between MarkWest and Tortoise MWEP, L.P. and
(ii) Registration Rights Agreement dated June 13, 2003 by and among MarkWest
and each party listed on Schedule A thereto (Tortoise MWEP, L.P. and each such
party are collectively referred to herein as “Prior Rights Holders”).


 


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


 


“Purchase
Price” means, with respect to a particular Purchaser, the monetary
commitment amount set forth opposite such Purchaser’s name under the column
entitled “Total Purchase Price” on Schedule 2.02 hereto.


 


“Purchased
Units” means, with respect to a particular Purchaser, the number of Common
Units equal to the quotient determined by dividing (a) the monetary commitment
amount set forth opposite such Purchaser’s name under the column entitled
“Total Purchase Price” set forth on Schedule 2.02 hereto by (b) the
Common Unit Price.


 


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“Purchaser”
has the meaning set forth in the introductory paragraph.


 


“Purchaser
Material Adverse Effect” means, with respect to a particular Purchaser, any
material and adverse effect on (a) the assets, liabilities, financial
condition, business, operations or affairs of such Purchaser, (b) the ability
of such 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 (c) the ability
of such Purchaser to consummate the transactions under any Basic Document.


 


“Purchaser
Related Parties” shall have the meaning specified in Section 5.02(a).


 


“RBC”
shall mean Royal Bank of Canada.


 


“Registration
Rights Agreement” means the Registration Rights Agreement, to be entered
into at the Closing, between MarkWest and the Purchasers in the form attached
hereto as Exhibit A hereto.


 


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


 


“Subordinated Units” means the subordinated
units of MarkWest.


 


“Subsidiary”
means, as to any Person, any corporation or other entity of which: (i) such
Person or a Subsidiary of such Person is a general partner or manager; or (ii)
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 or
similar governing body 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.


 


“Termination
Date” has the meaning set forth in Section 5.11(a).


 


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


 


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ARTICLE II.

AGREEMENT TO SELL AND PURCHASE


 


Section
2.01           Authorization of Sale of
Common Units.  MarkWest has
authorized the issuance and sale to each of the Purchasers such Purchaser’s
Purchased Units.


 


Section
2.02           Sale and Purchase.  Substantially contemporaneous with the
consummation of the American Central Acquisition and subject to the terms and
conditions hereof, at the Closing (as defined in Section 2.03) MarkWest hereby
agrees to issue and sell to each Purchaser, and each Purchaser hereby agrees to
purchase from MarkWest, such Purchaser’s Purchased Units, and each Purchaser
agrees to pay MarkWest such Purchaser’s Purchase Price. The obligation of each
Purchaser hereunder is several and not joint and is independent of the
obligation of each other Purchaser, and the failure of, or MarkWest’s waiver
of, performance by any Purchaser does not excuse performance by any other Purchaser
or MarkWest.  In the event the American
Central Acquisition is not consummated, (a) MarkWest shall be relieved of its
obligation to issue and sell to each Purchaser such Purchaser’s Purchased Units
and (b) each Purchaser shall be relieved of its obligation to purchase from
MarkWest such Purchaser’s Purchased Units.


 


Section
2.03           Closing.  Subject to the terms and conditions hereof,
the consummation of the purchase and sale of the Purchased Units hereunder (the
“Closing”) shall take place substantially contemporaneous with the
American Central Closing, but on or prior to the Termination Date, provided
that MarkWest shall have given each Purchaser ten (10) Business Days (or such
shorter period as shall be agreeable to all parties hereto) prior written notice
of such designated closing date (such date, the “Closing Date”) at the
offices of Vinson & Elkins, L.L.P., 1001 Fannin, Suite 2300, Houston, Texas
77002.


 


Section
2.04           Conditions to the
Closing.


 


(a)           Mutual Conditions.  The respective obligation of each party to
consummate the purchase and issuance and sale of the Purchased Units shall be
subject to the satisfaction on or prior to the Closing Date of each of the
following conditions (any or all of which may be waived by a particular party
on behalf of itself in writing, in whole or in part, to the extent permitted by
applicable Law):


 


(i)         no statute, rule, order, decree or
regulation shall have been enacted or promulgated, and no action shall have
been taken, by or before any Governmental Authority of competent jurisdiction
which temporarily, preliminarily or permanently restrains, precludes, enjoins
or otherwise prohibits the consummation of the transactions contemplated hereby
or makes the transactions contemplated hereby illegal;


 


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(ii)        there shall not be pending any suit,
action or proceeding by or before any Governmental Authority seeking to
restrain, preclude, enjoin or prohibit the transactions contemplated by this
Agreement;


 


(iii)       Substantially contemporaneous with the
Closing, MarkWest shall consummate the American Central Acquisition;


 


(iv)       MarkWest and the Prior Rights Holders
shall have delivered amendments to the Prior Registration Rights Agreements;
and


 


(v)        The Common Units comprising the
Purchased Units have, subject to issuance, been approved for listing on the
American Stock Exchange.


 


(b)           Each Purchaser’s Conditions.  The respective obligation of each Purchaser
to consummate the purchase of its Purchased Units shall be subject to the satisfaction
on or prior to the Closing Date of each of the following conditions (any or all
of which may be waived by a particular Purchaser, on behalf of itself in
writing, in whole or in part, to the extent permitted by applicable Law):


 


(i)         (A) The representations and warranties
of MarkWest contained in this Agreement shall be true and correct in all
material respects (except that the representations and warranties of MarkWest
contained in Sections 3.03 and 3.04 shall be true and correct in all respects)
both when made and at and as of the Closing Date, as if made at and as of such
time (except to the extent expressly made as of an earlier date, in which case
as of such date), and (B) MarkWest shall have performed in all material
respects all of its agreements and covenants to be performed prior to the
Closing, and such Purchaser shall have received a certificate signed on behalf
of MarkWest to such effect;


 


(ii)        MarkWest shall have paid the Commitment
Fee required by Section 2.06(a) hereof; and


 


(iii)       MarkWest shall have entered into
definitive loan documentation with RBC with terms substantially as contemplated
by the commitment letter that was provided to the Purchasers on or prior to the
Commitment Date, and all conditions precedent to the funding under such loan
documentation shall have been satisfied, except for the issuance and sale of
the Purchased Units as contemplated hereby, and the loan contemplated thereby
shall fund substantially contemporaneously with the Closing.


 


(c)           MarkWest’s Conditions.  The obligation of MarkWest to consummate the
sale of each of the Purchaser’s Purchased Units to each of the Purchasers shall
be subject to the satisfaction on or prior to the Closing Date of the condition
(which


 


8

















 


may
be waived by MarkWest in writing, in whole or in part, to the extent permitted
by applicable Law) that the representations and warranties of such Purchaser
contained in this Agreement shall be true and correct in all material respects
both when made and at and as of the Closing Date, as if made at and as of such
time (except to the extent expressly made as of an earlier date, in which case
as of such date), and MarkWest shall have received a certificate from each of
the Purchasers signed on behalf of such Purchaser to such effect.


 


Section
2.05           Deliveries.


 


(a)           At the Closing, subject to the terms
and conditions hereof, MarkWest will deliver, or cause to be delivered, to each
Purchaser:


 


(i)         The Purchased Units to be purchased by
such Purchaser by delivery of certificates evidencing such Purchased Units at
the Closing meeting the requirements of the Partnership Agreement, all free and
clear of any Liens, encumbrances or interests of any other Person, and (subject
to the terms and conditions hereof) Purchaser will make payment to MarkWest of
such Purchaser’s Purchase Price by wire transfer of immediately available funds
to an account designated by MarkWest in writing at least ten (10) Business Days
(or such shorter period as shall be agreeable to all parties hereto) prior to
the Closing;


 


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


 


(iii)       An opinion addressed to the Purchasers
from Vinson & Elkins L.L.P. (or other legal counsel to MarkWest reasonably
acceptable to the Purchasers), dated as of the Closing, in the form and
substance attached hereto as Exhibit C; and


 


(iv)       The Registration Rights Agreement, which
shall have been duly executed by MarkWest.


 


(b)           At the Closing, subject to the terms
and conditions hereof, each Purchaser will deliver, or cause to be delivered to
MarkWest, the Registration Rights Agreement, which shall have been duly
executed by each such Purchaser.


 


Section
2.06           Consideration.


 


(a)           In exchange for each Purchaser’s
Commitment to purchase its Purchased Units, MarkWest has, contemporaneously
herewith, paid to each Purchaser a commitment fee in cash of one and one-half
percent (1.5%) of such Purchaser’s Purchase Price (the “Commitment Fee”)
and as set forth on Schedule 2.02 hereto opposite such Purchaser’s name
under the column entitled “Commitment Fee.” 
The Commitment Fee represents consideration for each Purchaser’s
Commitment, irrespective of whether the Closing actually occurs.


 


9

















 


(b)           The amount per Common Units each
Purchaser will pay to MarkWest to purchase the Common Units comprising the
Purchased Units (the “Common Unit Price”) shall be the lesser of (i)
$34.50 per Common Unit, an amount which represents ninety-one-point-five
(91.5%) of the average closing price of the Common Units as reported by the
Bloomberg Professional Financial Reporting Service for the twenty (20) trading
days immediately ending and including July 12, 2004 less $0.50 and (ii) an
amount per Common Unit equal to the closing price of the Common Units as
reported by the Bloomberg Professional Financial Reporting Service for the
trading day immediately prior to the Closing Date.


 


Section 2.07           Independent Nature of Purchasers’ Obligations
and Rights.  The obligations of each Purchaser under any
Basic Document are several and not joint with the obligations of any other
Purchaser, and no Purchaser shall be responsible in any way for the performance
of the obligations of any other Purchaser under any Basic Document.  Nothing contained herein or in any Basic
Document, and no action taken by any Purchaser pursuant thereto, shall be
deemed to constitute the Purchasers as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the
Purchasers are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Basic Document.  Each Purchaser shall be entitled to
independently protect and enforce its rights, including without limitation, the
rights arising out of this agreement or out of the other Basic Documents, and
it shall not be necessary for any other Purchaser to be joined as an additional
party in any proceeding for such purpose. 
Each Purchaser has been represented by its own separate legal counsel in
their review and negotiation of the Basic Documents.  MarkWest has elected to provide all Purchasers with the same
material terms and Basic Documents for the convenience of MarkWest and not
because it was required or requested to do so by the Purchasers.


 


ARTICLE III.

REPRESENTATIONS AND WARRANTIES RELATED TO MARKWEST


 


MarkWest
represents and warrants to each Purchaser as follows:


 


Section
3.01           Corporate Existence.  MarkWest: 
(a) is a limited partnership duly organized, legally existing and in
good standing under the laws of the State of Delaware; and (b) has all
requisite power and authority, and has all governmental licenses,
authorizations, consents and approvals necessary, to own, lease, use and
operate its Properties 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 be reasonably likely to have a MarkWest
Material Adverse Effect.  Each of
MarkWest’s Subsidiaries that is a corporation is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
or other jurisdiction of its incorporation and has all requisite power and
authority, and has all governmental licenses, authorizations, consents and
approvals necessary, to own, lease, use or operate its respective Properties
and carry on its business as now being conducted, except where the failure to
obtain such licenses, authorizations, consents and approvals would not be
reasonably likely to have a MarkWest Material Adverse Effect.  Each Subsidiary of


 


10

















 


MarkWest
that is not a corporation has been duly formed, is validly existing and in good
standing under the laws of the State or other jurisdiction of its formation and
has all requisite power and authority, and has all governmental licenses,
authorizations, consents and approvals necessary, to own, lease, use or operate
its respective Properties and carry on its business as now being conducted,
except where the failure to obtain such licenses, authorizations, consents and
approvals would not be reasonably likely to have a MarkWest Material Adverse
Effect.  None of MarkWest or any of its
Subsidiaries are in default in the performance, observance or fulfillment of
any provision of, in the case of MarkWest, the Partnership Agreement or its
Certificate of Limited Partnership or, in the case of any Subsidiary of
MarkWest, its respective certificate of incorporation, bylaws or other similar
organizational documents.  Each of
MarkWest and its Subsidiaries is duly qualified or licensed and in good
standing as a foreign corporation, 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 be reasonably likely to have a MarkWest Material
Adverse Effect.


 


Section
3.02           Capitalization and Valid
Issuance of Purchased Units.


 


(a)           As of the Commitment Date, the issued
and outstanding limited partner interests of MarkWest consist of 3,997,502
Common Units and 3,000,000 Subordinated Units. 
The only issued and outstanding general partner interests of
MarkWest are the interests of the General Partner described in the Partnership
Agreement.  All outstanding Common Units and Subordinated Units and
the limited partner interests represented thereby have been duly authorized and
validly issued in accordance with the Partnership Agreement and are fully paid
(to the extent required under the Partnership Agreement) and nonassessable
(except as such nonassessability may be affected by matters described under the
caption “The Partnership Agreement—Limited Liability” in MarkWest’s
registration statement on Form S-1 (No. 333-81780) which is incorporated by
reference into the Partnership’s Registration Statement on Form 8-A (File No. 001-31239)
(the “Form 8-A”)).


 


(b)           Other than MarkWest’s Long-Term
Investment Plan and MarkWest’s other equity compensation plans, as described in
MarkWest’s Annual Report on Form 10-K, as amended, prior to the Commitment
Date, for the period ended December 31, 2003, MarkWest has no equity
compensation plans that contemplate the issuance of Common Units (or securities
convertible into or exchangeable for Common Units).  No indebtedness having the right to vote (or convertible into or
exchangeable for securities having the right to vote) on any matters on which
MarkWest unitholders may vote are issued or outstanding.  Except as set forth in the first sentence of
this Section 3.02(b) or as are contained in the Partnership Agreement, there
are no outstanding or authorized (i) options, warrants, preemptive rights,
subscriptions, calls, or other rights, convertible securities, agreements,
claims or commitments of any character obligating MarkWest or any of its
Subsidiaries to issue, transfer or sell any partnership interests or other
equity interest in, MarkWest or any of its Subsidiaries or securities
convertible into or exchangeable for such partnership interests or equity
interests, (ii) obligations of


 


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MarkWest
or any of its Subsidiaries to repurchase, redeem or otherwise acquire any
partnership interests or equity interests of MarkWest or any of its
Subsidiaries or any such securities or agreements listed in clause (i) of this
sentence or (iii) voting trusts or similar agreements to which MarkWest or any
of its Subsidiaries is a party with respect to the voting of the equity
interests of MarkWest or any of its Subsidiaries.  At the Closing, except as described in this Section 3.02(b),
there will not be any outstanding subscriptions, options, warrants, calls,
preemptive rights, subscriptions, or other rights, convertible or exchangeable
securities, agreements, claims or commitments of any character by which
MarkWest or any of its Subsidiaries will be bound calling for the purchase or
issuance of any partnership interests of MarkWest or any equity interest of any
of its Subsidiaries or securities convertible into or exchangeable for such
partnership or equity interests or any other such securities or agreements


 


(c)           (i) All of the issued and outstanding
equity interests of each of MarkWest’s Subsidiaries are owned, directly or
indirectly, by MarkWest free and clear of any Liens (except for such
restrictions as may exist under applicable Law and except for such Liens as may
be imposed under MarkWest’s or MarkWest’s Subsidiaries’ credit facilities), and
all such ownership interests have been duly authorized, validly issued and are
fully paid (to the extent required in the organizational documents of
MarkWest’s Subsidiaries, as applicable) and non-assessable (except as
nonassessability may be affected by Section 6.07 of the Texas Revised Uniform
Limited Partnership Act, Section 18-607 of the Delaware Limited Liability
Company Act, Section 17-607 of the Delaware Revised Uniform Limited Partnership
Act, Section 450.4307 of the Michigan Limited Liability Company Act, Section
2030 of the Oklahoma Limited Liability Company Act or the organizational
documents of MarkWest’s Subsidiaries, as applicable) and free of preemptive rights,
with no personal liability attaching to the ownership thereof, and (ii) as of
the Commitment Date, neither MarkWest nor any of its Subsidiaries owns any
shares of capital stock or other securities of, or interest in, any other
Person, or is obligated to make any capital contribution to or other investment
in any other Person.  The material
Subsidiaries of MarkWest are set forth on Schedule 2.03 hereto.


 


(d)           The Common Units being purchased by
the Purchasers hereunder and the limited partner interests represented thereby,
will be duly authorized by the Partnership Agreement (as amended as
contemplated by this Agreement) prior to the Closing and, when issued and
delivered to the Purchasers against payment therefor in accordance with the
terms of this Agreement, will be validly issued, fully paid (to the extent
required by the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by matters described under the caption “The
Partnership Agreement—Limited Liability” in MarkWest’s registration statement
on Form S-1 (No. 333-81780) which is incorporated by reference into the Form
8-A) and will be free of any and all Liens and restrictions on transfer, other
than restrictions on transfer under the Partnership Agreement and under applicable
state and federal securities laws and other than such Liens as are created by
the Purchaser.


 


(e)           The Common Units are listed on the
American Stock Exchange.


 


12

















 


(f)            Correct and complete copies of the
Partnership Agreement and MarkWest’s certificate of limited partnership are
attached hereto as Exhibit B.


 


Section
3.03           MarkWest
SEC Documents.  Except for the Current Report on Form 8-K/A filed on
August 26, 2003, MarkWest has timely filed with the Commission all forms,
registration statements, reports, schedules and statements required to be filed
by it under the Exchange Act or the Securities Act (all such documents,
collectively “MarkWest SEC Documents”). 
The MarkWest SEC Documents, including, without limitation, any audited
or unaudited financial statements and any notes thereto or schedules included
therein (the “MarkWest Financial Statements”), at the time filed (in the
case of registration statements, solely on the dates of effectiveness) (except
to the extent corrected by a subsequently filed MarkWest SEC Document filed
prior to the Commitment Date) (a) 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 light of the
circumstances under which they were made, not misleading, (b) complied in all
material respects with the applicable requirements of the Exchange Act and the
Securities Act, as the case may be, (c) 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, (d) 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 (e) 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 MarkWest as of the dates thereof and the
consolidated results of its operations and cash flows for the periods then
ended.  PricewaterhouseCoopers LLP,
MarkWest’s former public accounting firm, is an independent public accounting
firm with respect to MarkWest and did not resign and was not dismissed as
independent public accountants of MarkWest as a result of or in connection with
any disagreement with MarkWest on a matter of accounting principles or
practices, financial statement disclosure or auditing scope or procedure.  KPMG LLP, MarkWest’s current public
accounting firm, is an independent public accounting firm with respect to
MarkWest and has not resigned or been dismissed as independent public
accountants of MarkWest as a result of or in connection with any disagreement
with MarkWest on a matter of accounting principles or practices, financial
statement disclosure or auditing scope or procedure.  To MarkWest’s Knowledge, the information (considering all
information in the aggregate and excluding all forecasts, projections and
forward looking information) provided by MarkWest to the Purchasers regarding
the American Central Acquisition was true and correct in all material respects
and 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 light of the circumstances under which they were made, not
misleading.  Based on advice from the
staff of the Commission and related information, MarkWest believes that it is
currently eligible to use a registration statement on Form S-3 for the
registration of securities under the Securities Act.


 


Section
3.04           No Material Adverse
Change.  Except as set forth in or
contemplated by the MarkWest SEC Documents filed with the Commission on or
prior to


 


13

















 


the
Commitment Date and except for the earnest money deposit paid to the sellers as
contemplated by the American Central PSA and all other matters related to the
proposed American Central Acquisition which have been discussed with each of
the Purchasers, since December 31, 2003, MarkWest and its Subsidiaries have conducted
their respective businesses in the ordinary course, consistent with past
practice, and there has been no (a) change, event, occurrence, effect, fact,
circumstance or condition that has had or would be reasonably likely to have a
MarkWest Material Adverse Effect, other than those occurring as a result of
general economic or financial conditions or other developments that are not
unique to MarkWest and its Subsidiaries but also affect other Persons who
participate or are engaged in the lines of business of which MarkWest and its
Subsidiaries participate or are engaged, except, in each case, to the extent
such change, event, occurrence, effect, fact, circumstance or condition affects
MarkWest to a significantly greater extent than other similarly situated
companies generally, (b) acquisition or disposition of any material asset by
MarkWest 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 MarkWest SEC Documents filed with the Commission on or prior
to the Commitment Date, or (c) material change in MarkWest’s accounting
principles, practices or methods. 
Except as set forth in or contemplated by the MarkWest SEC Documents
filed with the Commission on or prior to the Commitment Date and except for the
earnest money deposit paid to the sellers as contemplated by the American
Central PSA and the proposed credit arrangements substantially as contemplated
by the commitment letter referenced in Section 2.04(b)(iv), MarkWest has
neither issued Partnership Securities (other than under its Long-Term
Investment Plan and its other equity compensation plans, each as described in
the MarkWest SEC Documents filed with the Commission on or prior to the
Commitment Date) nor incurred material indebtedness since March 31, 2004.


 


Section
3.05           Litigation.  Except as set forth in the MarkWest SEC
Documents filed with the Commission on or prior to the Commitment Date, there
is no Action pending or, to the knowledge of MarkWest, contemplated or
threatened against or affecting MarkWest, any of its Subsidiaries or any of
their respective officers, directors, properties or assets, which (individually
or in the aggregate) (a) questions the validity of this Agreement or the
Registration Rights Agreement or the right of MarkWest to enter into this
Agreement or the Registration Rights Agreement or to consummate the
transactions contemplated hereby and thereby or (b) would be reasonably likely
to result in a MarkWest Material Adverse Effect.


 


Section
3.06           No Breach.  The execution, delivery and performance by
MarkWest of this Agreement, the Registration Rights Agreement, the American
Central PSA and all other agreements and instruments to be executed and
delivered by MarkWest pursuant hereto or thereto or in connection with the
transactions contemplated by this Agreement, the Registration Rights Agreement,
the American Central PSA or any such other agreements and instruments, and
compliance by MarkWest with the terms and provisions hereof and thereof and the
issuance and sale by MarkWest of the Purchased Units, do not and will not (a)
violate any provision of any Law or Permit having applicability to MarkWest or
any of its Subsidiaries or any of their respective Properties, (b) conflict with
or result in a violation of any provision of the Certificate of Limited


 


14

















 


Partnership
or other organizational documents of MarkWest, or the Partnership Agreement, or
any organizational documents of any of MarkWest’s Subsidiaries, (c) require any
consent, 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 any
contract, agreement, instrument, obligation, note, bond, mortgage, license,
loan or credit agreement to which MarkWest or any of its Subsidiaries is a
party or by which MarkWest or any of its Subsidiaries or any of their
respective Properties may be bound, 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 MarkWest or any of its Subsidiaries; with the
exception of the conflicts stated in clause (b) of this Section 3.06, 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 3.06 would not be, individually or in the
aggregate, reasonably likely to have a MarkWest Material Adverse Effect.


 


Section
3.07           Authority.  MarkWest has all necessary power and
authority to execute, deliver and perform its obligations under the Basic
Documents and the American Central PSA; and the execution, delivery and
performance by MarkWest of the Basic Documents and the American Central PSA
have been duly authorized by all necessary action on its part; and the Basic
Documents and the American Central PSA constitute the legal, valid and binding
obligations of MarkWest, 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 in connection with MarkWest’s issuance and sale of the Purchased Units
to the Purchasers.


 


Section
3.08           Approvals.  Except for the approvals required by the
Commission in connection with MarkWest’s obligations under the Registration
Rights Agreement, 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
MarkWest of any of the Basic Documents and the American Central PSA, 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, be reasonably likely to have a MarkWest Material Adverse Effect.


 


Section
3.09           MLP Status.  MarkWest has, for each taxable year
beginning after December 31, 2002, during which MarkWest was in existence, met
the gross income requirements of Section 7704(c)(2) of the Internal Revenue
Code of 1986, as amended.


 


Section
3.10           Offering.  Assuming the accuracy of the representations
and warranties of the Purchasers contained in this Agreement, the sale and
issuance of the Purchased Units to each of the Purchasers pursuant to this
Agreement is exempt from the


 


15

















 


registration
requirements of the Securities Act, and neither MarkWest nor any authorized
agent acting on its behalf has taken or will take any action hereafter that
would cause the loss of such exemptions.


 


Section
3.11           Investment Company
Status.  MarkWest is not an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended.


 


Section
3.12           Certain Fees.  Except for the Commitment Fees to be payable
to each of the Purchasers pursuant to Section 2.06(a) and the expense
reimbursement contemplated by Section 5.12, no fees or commissions will be
payable by MarkWest to brokers, finders, or investment bankers with respect to
the sale of any of the Purchased Units or the consummation of the transaction
contemplated by this Agreement. 
MarkWest agrees that it will indemnify and hold harmless each of the
Purchasers from and against any and all claims, demands, or liabilities for
broker’s, finder’s, placement, or other similar fees or commissions incurred by
MarkWest or alleged to have been incurred by MarkWest in connection with the
sale of each Purchaser’s Purchased Units or the consummation of the
transactions contemplated by this Agreement.


 


Section
3.13           No Side Agreements.  There are no other agreements by, among or
between MarkWest or its Affiliates, on the one hand, and any of the Purchasers
or their Affiliates, on the other hand, with respect to the transactions
contemplated hereby nor promises or inducements for future transactions between
or among any of such parties.  


 


Section
3.14           Material Agreements.  MarkWest has provided the Purchasers with
correct and complete copies of all material agreements (as defined in Section
601(b)(10) of Regulation S-K promulgated by the Commission), including
amendments to or other modifications of pre-existing material agreements,
entered into by MarkWest since March 31, 2004.


 


Section
3.15           Accretive Acquisition.  MarkWest GP has determined, in good faith,
that the American Central Acquisition is an “Acquisition” (as defined in the
Partnership Agreement) that satisfies the requirements of Section 5.7(b) of the
Partnership Agreement and thus allows the issuance of the Purchased Units
without the prior approval of the MarkWest unitholders.


 


ARTICLE IV.

REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER


 


Each Purchaser,
severally and not jointly, represents and warrants to MarkWest with respect to
itself:


 


Section
4.01           Investment.  The Purchased Units are being acquired for
its own account, not as a nominee or agent, and with no intention of
distributing the Purchased Units or any part thereof, and that such 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


 


16

















 


State,
without prejudice, however, to such Purchaser’s right at all times to sell or
otherwise dispose of all or any part of the Purchased Units 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 such Purchaser should in the future decide to dispose of any of the Purchased
Units, such 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 will be in effect with respect to such securities.


 


Section
4.02           Nature of Purchaser.  Such Purchaser represents and warrants to,
and covenants and agrees with, MarkWest that, (a) 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 making similar investments and in business and
financial matters generally so as to be capable of evaluating the merits and
risks of the prospective investment in the Purchased Units, 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.  Such Purchaser
acknowledges that it has (a) had access to MarkWest’s periodic filings
with the Commission, including MarkWest’s Annual Report on Form 10-K, as
amended, by the Form 10-K/A filed with the Commission on April 6, 2004, for the
year ended December 31, 2003, MarkWest’s Quarterly Report on Form 10-Q for the
quarter ended March 31, 2004 and all Current Reports on Form 8-K filed with the
Commission by MarkWest since January 1, 2004, (b) had access to information
regarding the proposed American Central Acquisition and its potential effect on
MarkWest’s operations and financial results and the risks related thereto and
(c) been provided a reasonable opportunity to ask questions of and receive
answers from Representatives of MarkWest regarding such matters.


 


Section
4.04           Corporate Existence.  Such Purchaser, if an entity: (a) is duly
incorporated or formed, legally existing and in good standing under the laws of
its respective jurisdiction of incorporation or formation; and (b) has all
requisite power and authority, and has all governmental licenses,
authorizations, consents and approvals necessary, to own, lease, use and
operate its Properties 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 expected to have a Purchaser Material Adverse Effect. Each such
Purchaser is not in default in the performance, observance or fulfillment of
any provision of its organizational documents, except where such default would
not have or would not be reasonably likely to have a
Purchaser Material Adverse Effect.


 


Section
4.05           No Breach.  The execution, delivery and performance by
such Purchaser of this Agreement, the Registration Rights Agreement and all
other agreements and instruments to be executed and delivered by such Purchaser
pursuant


 


17

















 


hereto
or thereto or in connection with the transactions contemplated by this
Agreement, the Registration Rights Agreement or any such other agreements and
instruments, and compliance by such Purchaser with the terms and provisions
hereof and thereof, and the purchase of such Purchaser’s Purchased Units by
such Purchaser do not and will not (a) violate any provision of any Law or
permit having applicability to such Purchaser or any of its Properties, (b)
conflict with or result in a violation of any provision of the organizational
documents of such Purchaser, (c) require any consent, 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 any contract, agreement, instrument,
obligation, note, bond, mortgage, license, loan or credit agreement to which
such Purchaser is a party or by which such Purchaser or any of its Properties
may be bound, 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 such Purchaser; with the exception of the conflicts stated in
clause (b) of this Section 4.05, 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 4.05 would not, individually or in the aggregate, be reasonably likely
to have a Purchaser Material Adverse Effect.


 


Section
4.06           Restricted Securities.  Such Purchaser understands that the
Purchased Units it is purchasing are characterized as “restricted securities”
under the federal securities laws inasmuch as they are being acquired from
MarkWest 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 of the Commission promulgated under the Securities Act.


 


Section
4.07           Certain Fees.  Other than the fees payable by Tortoise to
Lehman Brothers Inc. and the fees payable by Energy Income to A.G. Edwards
& Sons, Inc., no fees or commissions will be payable by such Purchaser to
brokers, finders, or investment bankers with respect to the purchase of any of
the Purchased Units or the consummation of the transaction contemplated by this
Agreement.  Such Purchaser agrees that
it will indemnify and hold harmless MarkWest from and against any and all
claims, demands, or liabilities for broker’s, finder’s, placement, or other
similar fees or commissions incurred by such Purchaser or alleged to have been
incurred by such Purchaser in connection with the purchase of such Purchaser’s
Purchased Units or the consummation of the transactions contemplated by this
Agreement.


 


Section
4.08           Legend.  It is understood that the certificates
evidencing the Purchased Units may bear the following legend:  “These securities have not been registered
under the Securities Act of 1933, as amended. 
They may not be sold, offered for sale, pledged or hypothecated in the
absence of a registration statement in effect with respect to the securities
under such Act or an opinion of counsel satisfactory to the Company that such
registration is not required or unless sold pursuant to Rule 144 of such Act.”


 


18

















 


Section
4.09           No Side Agreements.  There are no other agreements by, among or
between such Purchaser and any of its Affiliates, on the one hand, and any of
the other Purchasers or their Affiliates, on the other hand, with respect to
the transactions contemplated hereby nor promises or inducements for future
transactions between or among any of such parties.


 


ARTICLE V.

MISCELLANEOUS


 


Section
5.01           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.  All references to a party in
this Agreement shall include such party’s successors and permitted
assigns.  The word “including” shall
mean “including but not limited to.” 
The terms “will” and “shall” shall be interpreted to have the same
meaning.  Words in the singular form
will be construed to include the plural and vice versa, unless the context
otherwise requires.  The section
headings contained in this Agreement are inserted for convenience only and will
not affect in any way the meaning or interpretation of this Agreement.  Whenever MarkWest has an obligation under
the Basic Documents, the expense of complying with that obligation shall be an
expense of MarkWest 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 set forth in Sections 3.01, 3.02, 3.06, 3.07,
3.08, 3.12, 3.13, 4.01, 4.02, 4.03, 4.04, 4.05, 4.06, 4.07 and 4.09 hereunder
shall survive the execution and delivery of this Agreement indefinitely, and
the other representations and warranties set forth herein shall survive for a
period of twelve (12) months following the Closing Date regardless of any
investigation made by or on behalf of MarkWest or each of the Purchasers.  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
acceptance of any of the Purchased Units and payment therefor and repayment or
repurchase thereof.  All indemnification
obligations of MarkWest and the provisions of Section 5.02 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.


 


19

















 


Section
5.02           Indemnification, Costs
and Expenses.


 


(a)           Indemnification by MarkWest.  MarkWest agrees to indemnify each Purchaser
and its officers, directors, employees and agents (collectively, the “Purchaser
Related Parties”) from, and hold each of them harmless against any and all
actions, suits, proceedings (including any investigations, litigation or
inquiries), 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 MarkWest of the
proceeds of any sale of the Purchased Units or (ii) the breach of any of the
representations, warranties or covenants of MarkWest contained herein, provided
such claim for indemnification relating to a breach of a representation or
warranty is made prior to the expiration of such representation or warranty.


 


(b)           Indemnification by Purchasers.  Each Purchaser agrees, severally and not
jointly, to indemnify MarkWest, MarkWest GP and their officers, directors,
employees and agents (collectively, the “MarkWest Related Parties”)
from, and hold each of them harmless against any and all actions, suits,
proceedings (including any investigations, litigation, or inquiries), 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 the breach of any of the representations, warranties or covenants of
such Purchaser 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.


 


(c)           Indemnification Procedure.  Promptly after any MarkWest Related Party or
Purchaser Related Party (hereinafter, the “Indemnified Party”) has
received notice of any indemnifiable claim 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 the indemnitor hereunder (the “Indemnifying
Party”) written notice of such claim or the commencement of such action or
proceeding, but failure to so notify the Indemnifying Party will not relieve
the Indemnifying Party from any liability it may have to such Indemnified Party
hereunder except to the extent that the Indemnifying Party is materially
prejudiced by such failure. Such notice shall state the nature and the basis of
such claim to the extent then known. 
The Indemnifying Party shall have the right to defend and settle, at its
own expense and by its own counsel, any such matter as long as the Indemnifying
Party pursues the same diligently and in good faith. If the Indemnifying Party
undertakes to defend or settle, it shall promptly notify the Indemnified Party
of its


 


20

















 


intention
to do so, and the Indemnified Party shall cooperate with the Indemnifying Party
and its counsel in all commercially reasonable respects in the defense thereof
and the settlement thereof. Such cooperation shall include, but shall not be
limited to, furnishing the Indemnifying Party with any books, records and other
information reasonably requested by the Indemnifying Party and in the
Indemnified Party’s possession or control. 
Such cooperation of the Indemnified Party shall be at the cost of the
Indemnifying Party.  After the
Indemnifying Party has notified the Indemnified Party of its intention to
undertake to defend or settle any such asserted liability, and for so long as
the Indemnifying Party diligently pursues such defense, the Indemnifying Party
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) the
Indemnifying Party has failed to assume the defense and employ counsel or (B)
if the defendants in any such action include both the Indemnified Party and the
Indemnifying Party 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 the Indemnifying Party
or if the interests of the Indemnified Party reasonably may be deemed to
conflict with the interests of the Indemnifying Party, 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 the Indemnifying Party as incurred.  Notwithstanding any other provision of this
Agreement, the Indemnifying Party shall not settle any indemnified claim
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.


 


Section
5.03           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 each
of the parties hereto or thereto affected by such amendment, waiver, consent,
modification, or termination.  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 MarkWest 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 this Agreement,
no notice to or demand on


 


21

















 


MarkWest
in any case shall entitle MarkWest to any other or further notice or demand in
similar or other circumstances.


 


Section
5.04           Binding Effect;
Assignment.


 


(a)           Binding Effect.  This Agreement shall be binding upon
MarkWest, 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.  All or any portion a Purchaser’s Purchased
Units purchased pursuant to this Agreement may be sold, assigned or pledged by
such 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 MarkWest, unless such transfer is
to an Affiliate of the Purchaser in which case written consent shall not be
unreasonably withheld.


 


Section
5.05           Confidentiality.  Notwithstanding anything herein to the
contrary, each Purchaser has executed a confidentiality agreement in favor of
MarkWest and shall continue to remain bound by such confidentiality
agreement.  Disclosure of Confidential
Information will not be deemed to be a breach of this Section 5.05 if such
disclosure is made with the consent of MarkWest 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 MarkWest, such Purchaser will promptly notify MarkWest of such
subpoena or order.


 


Section
5.06           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 Kayne Anderson:


 


1800 Avenue of
the Stars, 2nd Floor


Los Angeles,
California 90067


Attention:
David Shladovsky, General Counsel


Facsimile: (310) 284-6444


 


and to:


 


1100 Louisiana St # 4550


Houston, TX 77002


Attention: Chuck Yates


Facsimile: (713) 655-7355


 


22

















 


with a copy (which shall not constitute notice) to:


 


Akin Gump Strauss Hauer & Feld LLP


1100 Louisiana Street, 44th Floor


Houston, TX 77002


Attention: J. Vincent Kendrick


Facsimile: (713) 236-0822


 


(b)           If to Tortoise:


 


Tortoise Energy Infrastructure
Corporation


10801 Mastin Blvd, Suite 222


Overland Park, KS 66210


Attention: David Schulte


Facsimile: (913) 345 2763


 


with a copy (which shall not constitute notice) to:


 


Blackwell Sanders Peper Martin, LLP


2300 Main Street, Suite 1000


Kansas City, MO 64108


Attention: Steven F. Carman


Facsimile: (816) 983-8080


 


(c)           If to Energy Income:


 


Fiduciary Asset Management


8112 Maryland, Suite 400


St. Louis, Missouri 63105


Attention: James J. Cunnane, Jr.


Facsimile:
(314) 863-4360


 


with
a copy (which shall not constitute notice) to:


 


Jenner
& Block LLP


1
IBM Plaza


Chicago,
Illinois 60611


Attention:
Michael T. Wolf


Facsimile:
(312) 840-7306


 


23

















 


(d)           If to MarkWest:


 


MarkWest
Energy Partners, L.P.


155 Inverness
Drive West, Suite 200


Englewood, CO
80112


Attention:
Andrew L. Schroeder


Facsimile:
(303) 290-8769


 


with a copy
(which shall not constitute notice) to:


 


Vinson & Elkins L.L.P.


2300 First
City Tower


1001 Fannin
Street


Houston, Texas
77002


Attention:
David P. Oelman, Esq.


Facsimile:
(713) 615-5861


 


or to such other address as
MarkWest or such Purchaser 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
5.07           Removal of Legend.  Any Purchaser may request MarkWest to remove
the legend described in Section 4.08 from the certificates evidencing the
Purchased Units by submitting to MarkWest such certificates, together with an
opinion of counsel to the effect that such legend is no longer required under
the Securities Act or applicable state laws, as the case may be.


 


Section
5.08           Entire Agreement.  This
Agreement, the other Basic Documents and the other agreements and documents
referred to herein are 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 and therein. There are no restrictions, promises, warranties
or undertakings, other than those set forth or referred to herein or therein
with respect to the rights granted by MarkWest or any of its Affiliates or each
of the Purchasers or any of their Affiliates set forth herein or therein.  This Agreement, the other Basic Documents
and the other agreements and documents referred to herein supersede all prior
agreements and understandings between the parties with respect to such subject
matter.


 


Section
5.09           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.


 


Section
5.10           Execution in
Counterparts.  This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate


 


24

















 


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.


 


Section
5.11           Termination.


 


(a)           Notwithstanding anything herein to
the contrary, this Agreement shall automatically terminate if the Closing shall
not have occurred on or before October 31, 2004, unless the term hereof is
extended by agreement of the parties hereto (such date or any extension of such
date, the “Termination Date”).


 


(b)           In the event of the termination of
this Agreement as provided in Section 5.11(a), this Agreement shall forthwith
become null and void.  In the event of
such termination, there shall be no liability on the part of any party hereto,
except as set forth in Section 5.02 of this Agreement and except with respect
to the requirement to comply with any confidentiality agreement in favor of
MarkWest; provided that nothing herein shall relieve any party from any
liability or obligation with respect to any willful breach of this Agreement.


 


Section
5.12           Expenses.  MarkWest
hereby covenants and agrees to reimburse Kayne Anderson, Tortoise and Energy
Income for reasonable and documented costs and expenses incurred in connection
with the negotiation, execution, delivery and performance of the Basic
Documents and the transactions contemplated hereby and thereby (including,
without limitation, reasonable legal, consulting and due diligence fees and
expenses), provided that such expenses do not exceed $35,000 with respect to
each of Kayne Anderson and Tortoise and $15,000 with respect to Energy Income
and that any request for such expense reimbursement by Kayne Anderson, Tortoise
or Energy Income be accompanied by a detailed invoice for such amount.  If any action at law or equity is necessary
to enforce or interpret the terms of the Basic Documents, the prevailing party
shall be entitled to reasonable attorney’s fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.


 


Section
5.13           Other Matters.  In the event MarkWest enters into any
material amendment of, or waives any material condition to closing under the
American Central PSA, no Purchaser shall be obligated to fulfill its
Commitment.  Other than the obligation
of MarkWest GP to make contributions to MarkWest as required by
Section 5.2 of the Partnership Agreement, MarkWest GP hereby waives (for
itself and on behalf of its Affiliates) its preemptive rights provided under
Section 5.9 of the Partnership Agreement with respect to the issuances of
Partnership Securities pursuant to this Agreement.


 


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


 


25

















 


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


 


	
   

  	
  MARKWEST ENERGY PARTNERS, LP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  MarkWest
  Energy GP, L.L.C.,

  
	
   

  	
   

  	
  its general
  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ MarkWest
  Energy Partners, L.P.

  	
   

  
	
   

  	
  Name:

  	
  MarkWest
  Energy Partners, L.P.

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MARKWEST ENERGY GP, L.L.C.
(solely for the purpose of Sections 3.15 and 5.13)

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ MarkWest
  Energy GP, L.L.C.

  	
   

  
	
   

  	
  Name:

  	
  MarkWest
  Energy GP, L.L.C.

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KAYNE ANDERSON ENERGY FUND II, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  KAEFTX, L.P., its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kayne
  Anderson Capital Advisors, L.P., its

  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kayne
  Anderson Investment Management, Inc.,

  its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kayne
  Anderson Energy Fund II, L.P.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Kayne
  Anderson Energy Fund II, L.P.

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 

















 


	
   

  	
  KAYNE ANDERSON CAPITAL INCOME

  PARTNERS (QP), L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kayne
  Anderson Capital Advisors, L.P., its

  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kayne
  Anderson Investment Management,

  Inc., its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kayne
  Anderson Capital Income Partners (QP), L.P.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Kayne Anderson
  Capital Income Partners (QP), L.P.

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KAYNE ANDERSON MLP FUND, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kayne
  Anderson Capital Advisors, L.P., its

  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kayne
  Anderson Investment Management,

  Inc., its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kayne
  Anderson MLP Fund, L.P.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Kayne
  Anderson MLP Fund, L.P.

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KAYNE ANDERSON CAPITAL INCOME

  FUND, LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kayne
  Anderson Capital Advisors, L.P., its

  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kayne
  Anderson Investment Management,

  Inc., its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kayne
  Anderson Capital Income Fund, LTD.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Kayne
  Anderson Capital Income Fund, LTD.

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 

















 


	
   

  	
  KAYNE ANDERSON INCOME PARTNERS,

  L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kayne
  Anderson Capital Advisors, L.P., its

  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kayne
  Anderson Investment Management,

  Inc., its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kayne
  Anderson Income Partners, L.P.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Kayne
  Anderson Income Partners, L.P.

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TORTOISE ENERGY
  INFRASTRUCTURE

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David J.
  Schulte

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  David J.
  Schulte

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ENERGY INCOME AND GROWTH FUND

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Roger
  Testin

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Roger Testin

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  



 

















 


	
   

  	
  HFR RV PERFORMANCE MASTER TRUST

  
	
   

  	
   

  
	
   

  	
  By:

  	
  HFR RV
  Performance Master Trust

  	
  , its
  trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ HFR RV
  Performance Master Trust

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  HFR RV
  Performance Master Trust

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 

















 


Exhibit A – Form of Registration Rights
Agreement


 


See Attached


 

















 


Exhibit B – Partnership Agreement and
Certificate of Limited Partnership


 


See Attached


 

















 


Exhibit C – Form of Opinion of MarkWest
Counsel


 


See Attached


 

















 


Schedule 2.01


 


 


Frank M. Semple


 


James G. Ivey


 


John C. Mollenkopf


 


Randy S. Nickerson


 


Andrew L. Schroeder


 

















 


Schedule 2.02


 


 


	
  Purchaser

  	
   

  	
  Units

  Purchased

  	
   

  	
  Total

  Purchase Price

  	
   

  	
  Commitment
  Fee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kayne Anderson Energy Fund
  II, L.P.

  	
   

  	
  465,000

  	
   

  	
  $

  	
  16,042,500

  	
   

  	
  $

  	
  240,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kayne Anderson Capital
  Income Partners (QP), L.P.

  	
   

  	
  17,000

  	
   

  	
  $

  	
  586,500

  	
   

  	
  $

  	
  9,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kayne
  Anderson MLP Fund, L.P.

  	
   

  	
  72,000

  	
   

  	
  $

  	
  2,484,000

  	
   

  	
  $

  	
  37,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kayne
  Anderson Capital Income Fund, Ltd.

  	
   

  	
  14,000

  	
   

  	
  $

  	
  483,000

  	
   

  	
  $

  	
  7,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kayne
  Anderson Income Partners, L.P.

  	
   

  	
  6,000

  	
   

  	
  $

  	
  207,000

  	
   

  	
  $

  	
  3,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HFR
  RV Performance Master Trust

  	
   

  	
  5,800

  	
   

  	
  $

  	
  200,100

  	
   

  	
  $

  	
  3,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Tortoise
  Energy Infrastructure Corporation

  	
   

  	
  579,710

  	
   

  	
  $

  	
  19,999,995

  	
   

  	
  $

  	
  300,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Energy Income and Growth
  Fund

  	
   

  	
  144,928

  	
   

  	
  $

  	
  5,000,016

  	
   

  	
  $

  	
  75,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  1,304,438

  	
   

  	
  $

  	
  45,003,111

  	
   

  	
  $

  	
  675,000

  	
   

  



 

















 


Schedule 2.03


 


 


MarkWest Texas GP, L.L.C.


 


MarkWest Energy Operating Company, L.L.C.


 


MarkWest Energy Appalachia, L.L.C.


 


Basin Pipeline, L.L.C.


 


MarkWest Michigan Pipeline Company, L.L.C.


 


MarkWest Western Oklahoma Gas Company, L.L.C.