Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 99 560K
2: EX-3.1 Certificate of Incorporation 8 30K
3: EX-3.2 Bylaws 14 55K
4: EX-10.1 Reorganization Agreement 21 93K
13: EX-10.10 Gas Treating and Processing Agreement 48 131K
14: EX-10.11 Gas Gathering, Treating and Processing Agreement 36 99K
15: EX-10.12 Gas Gathering, Treating and Processing Agreement 32 104K
16: EX-10.13 Products Exchange Agreements 3 20K
17: EX-10.14 Gas Processing and Treating Agreement 11 44K
18: EX-10.15 Processing Agreement 30 66K
19: EX-10.16 Natural Gas Liquids Purchase Agreement 7 31K
20: EX-10.17 Purchase and Demolition Agreement 25 52K
21: EX-10.18 Purchase and Demolition Agreement 25 53K
22: EX-10.19 Agreement to Design and Construct New Facilities 21 43K
5: EX-10.2 Modification Agreement 6 34K
23: EX-10.20 Sales Acknowledgement 3 18K
24: EX-10.21 Loan Agreement Dated November 20, 1992 202 752K
25: EX-10.23 Natural Gas Liquids Purchase Agree. (Boldman) 14 46K
26: EX-10.25 1996 Incentive Compensation Plan 5 23K
27: EX-10.26 1996 Stock Incentive Plan of Registrant 13 52K
28: EX-10.27 1996 Nonemployee Director Stock Option Plan 9 40K
29: EX-10.28 Form of Non-Compete With J.M. Fox & Markwest 1 10K
6: EX-10.3 Amended and Restated Mortgage 41 166K
7: EX-10.4 Secured Guaranty, Dated May 2, 1996 23 62K
8: EX-10.5 Security Agreement, Dated May 2, 1996 23 78K
9: EX-10.6 Pledge Agreement, Dated May 2, 1996 21 70K
10: EX-10.7 Participation, Ownership and Operating Agreement 83 290K
11: EX-10.8 Second Amended and Restated Agreement 10 45K
12: EX-10.9 Subordination Agreement 13 47K
30: EX-11 Computation of Per Share Earnings 1 9K
31: EX-23.1 Consent of Price Waterhouse LLP 1 9K
32: EX-23.2 Consent of Bdo Seidman, LLP 1 10K
SECURITY AGREEMENT
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THIS SECURITY AGREEMENT (this "Security Agreement"), dated as of May 2,
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1996, made by WEST SHORE PROCESSING COMPANY, L.L.C., a Michigan limited
liability company (the "Grantor"), in favor of BANK OF AMERICA ILLINOIS, an
Illinois banking corporation (the "Lender").
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WITNESSETH:
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WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of
the date hereof (together with all amendments and other modifications, if any,
from time to time thereafter made thereto, the "Credit Agreement"), among
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Michigan Energy Company, L.L.C., a Michigan limited liability company, ("Energy
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Company"), Michigan Production Company, L.L.C., a Michigan limited liability
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company ("Reserves Company," together with Energy Company, the "Borrower") and
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the Lender, the Lender has extended commitments (the "Commitments") to make
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loans (the "Loans") to the Borrower; and
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WHEREAS, the Borrower has entered or may enter into certain Hedging
Agreements with Bank of America National Trust and Savings Association, an
Affiliate of the Lender, pursuant to the terms of the Credit Agreement; and
WHEREAS, as a condition precedent to the making of the initial Loan under
the Credit Agreement and to the obligations of Bank of America National Trust
and Savings Association under the Hedging Agreements referred to above, the
Grantor is required to execute and deliver this Security Agreement; and
WHEREAS, the Grantor has duly authorized the execution, delivery and
performance of this Security Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lender
to make Loans (including the initial Loan) to the Borrower pursuant to the
Credit Agreement, the Grantor agrees, for the benefit of the Lender, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
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underscored) when used in this Security Agreement, including its preamble and
recitals, shall have the following meanings (such
definitions to be equally applicable to the singular and plural forms thereof):
"Basin" means Basin Pipeline L.L.C.
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"Borrower" is defined in the first recital.
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"Collateral" is defined in Section 2.1.
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"Commitments" is defined in the first recital.
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"Computer Hardware and Software Collateral" means:
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(a) all computer and other electronic data processing hardware,
integrated computer systems, central processing units, memory units,
display terminals, printers, features, computer elements, card readers,
tape drives, hard and soft disk drives, cables, electrical supply hardware,
generators, power equalizers, accessories and all peripheral devices and
other related computer hardware;
(b) all software programs (including both source code, object code and
all related applications and data files), whether now owned, licensed or
leased or hereafter acquired by the Grantor, designed for use on the
computers and electronic data processing hardware described in clause (a)
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above;
(c) all firmware associated therewith;
(d) all documentation (including flow charts, logic diagrams, manuals,
guides and specifications) with respect to such hardware, software and
firmware described in the preceding clauses (a) through (c ); and
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(e) all rights with respect to all of the foregoing, including,
without limitation, any and all copyrights, licenses, options, warranties,
service contracts, program services, test rights, maintenance rights,
support rights, improvement rights, renewal rights and indemnifications and
any substitutions, replacements, additions or model conversions of any of
the foregoing.
"Copyright Collateral" means all copyrights and all semi-conductor chip
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product mask works of the Grantor, whether statutory or common law, registered
or unregistered, now or hereafter in force throughout the world including,
without limitation, all of the Grantor's right, title and interest in and to all
copyrights and mask works registered in the United States Copyright Office or
anywhere else in the world and also including, without limitation, the right to
sue for past, present and future infringements of any thereof, all rights
corresponding thereto throughout the world, all
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extensions and renewals of any thereof and all proceeds of the foregoing,
including, without limitation, licenses, royalties, income, payments, claims,
damages and proceeds of suit.
"Credit Agreement" is defined in the first recital.
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"Energy Company" is defined in the first recital.
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"Energy Company's Share" means, as of any date of determination with
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respect to any asset, interest or property, the proportionate beneficial
interest of Energy Company therein represented by Energy Company's ownership of
equity interests in Basin and Grantor.
"Environmental Laws" means all applicable federal, state or local statutes,
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laws, ordinances, codes, rules, regulations and guidelines (including consent
decrees and administrative orders) relating to public health and safety through
protection of the environment.
"Equipment" is defined in clause (a) of Section 2.1.
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"Grantor" is defined in the preamble.
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"Guaranty" means those certain Secured Guaranties, of even date herewith,
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executed by Basin and Grantor in favor of the Lender pursuant to the terms of
the Credit Agreement.
"Hazardous Material" means
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(a) any "hazardous substance", as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended;
(b) any "hazardous waste", as defined by the Resource Conservation and
Recovery Act, as amended;
(c) any petroleum, crude oil or fraction thereof;
(d) any hazardous, dangerous or toxic chemical, material, waste or
substance within the meaning of any Environmental Law;
(e) any radioactive material, including any naturally occurring
radioactive material, and any source, special or by-product material as
defined in 42 U.S.C. (S) 2011 et seq., and any amendments or
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reauthorizations thereof;
(f) asbestos-containing materials in any form or condition; or
(g) polychlorinated biphenyls in any form or condition.
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"Intellectual Property Collateral" means, collectively, the Computer
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Hardware and Software Collateral, the Copyright Collateral, the Patent
Collateral, the Trademark Collateral and the Trade Secrets Collateral.
"Inventory" is defined in clause (b) of Section 2.1.
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"Lender" is defined in the preamble.
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"Loans" is defined in the first recital.
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"MarkWest" means MarkWest Michigan LLC.
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"Participation Agreement" means that certain Participation, Ownership and
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Operating Agreement for Grantor, by and among Energy Company and MarkWest dated
as of May 2, 1996 (the "Participation Agreement").
"Patent Collateral" means:
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(a) all letters patent and applications for letters patent throughout
the world, including all patent applications in preparation for filing
anywhere in the world;
(b) all patent licenses;
(c) all reissues, divisions, continuations, continuations-in-part,
extensions, renewals and reexaminations of any of the items described in
clauses (a) and (b); and
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(d) all proceeds of, and rights associated with, the foregoing
(including license royalties and proceeds of infringement suits), the right
to sue third parties for past, present or future infringements of any
patent or patent application, for breach or enforcement of any patent
license and all rights corresponding thereto throughout the world.
"Receivables" is defined in clause (c) of Section 2.1.
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"Related Contracts" is defined in clause (c) of Section 2.1.
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"Reserves Company" is defined in the first recital.
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"Secured Obligations" is defined in Section 2.2
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"Security Agreement" is defined in the preamble.
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"Subordination Agreement" means the Subordination Agreement dated May 2,
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1996 by and among MarkWest, Lender, Energy Company, Grantor and Basin.
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"Subsidiary" means as to any Person (a) a corporation of which
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outstanding shares of stock having ordinary voting power (other than stock
having such power only by reason of the happening of a contingency) to elect a
majority of the Board of Directors of such corporation are at the time owned,
directly or indirectly through one or more intermediaries, or both, by such
Person and (b) any partnership, association, joint venture or other business
entity the controlling interest of which is at the time owned, directly or
indirectly through one or more intermediaries, or both, by such Person.
"Trademark Collateral" means:
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(a) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks,
certification marks, collective marks, logos, other source of business
identifiers, prints and labels on which any of the foregoing have appeared
or appear, designs and general intangibles of a like nature (all of the
foregoing items in this clause (a) being collectively called a "Trademark")
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now existing anywhere in the world or hereafter adopted or acquired,
whether currently in use or not, all registrations and recordings thereof
and all applications in connection therewith, whether pending or in
preparation for filing, including registrations, recordings and
applications in the United States Patent and Trademark Office or in any
office or agency of the United States of America or any State thereof or
any foreign country;
(b) all Trademark licenses;
(c) all reissues, extensions or renewals of any of the items described
in clauses (a) and (b);
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(d) all of the goodwill of the business connected with the use of, and
symbolized by the items described in, clauses (a) and (b); and
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(e) all proceeds of, and rights associated with, the foregoing,
including any claim by the Grantor against third parties for past, present
or future infringement or dilution of any Trademark, Trademark registration
or Trademark license, including any Trademark, Trademark registration or
Trademark license referred to in clauses (a) and (b), or for any injury to
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the goodwill associated with the use of any such Trademark or for breach or
enforcement of any Trademark license.
"Trade Secrets Collateral" means common law and statutory trade secrets
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and all other confidential or proprietary or useful information and all know-how
obtained by or used in or contemplated at any time for use in the business of
the Grantor (all of the
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foregoing being collectively called a "Trade Secret"), whether or not such Trade
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Secret has been reduced to a writing or other tangible form, including all
documents and things embodying, incorporating or referring in any way to such
Trade Secret, all Trade Secret licenses including the right to sue for and to
enjoin and to collect damages for the actual or threatened misappropriation of
any Trade Secret and for the breach or enforcement of any such Trade Secret
license.
"U.C.C." means the Uniform Commercial Code, as in effect in the State of
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Illinois.
SECTION 1.2. Guaranty Definitions. Unless otherwise defined herein or the
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context otherwise requires, terms used in this Security Agreement, including its
preamble and recitals, have the meanings provided in the Guaranty.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined heroin or the
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context otherwise requires, terms for which meanings are provided in the U.C.C.
are used in this Security Agreement, including its preamble and recitals, with
such meanings.
ARTICLE II
SECURITY INTEREST
SECTION 2.1. Grant of Security. The Grantor hereby assigns and pledges to
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the Lender, and hereby grants to the Lender a security interest in, Energy
Company's Share of all of the following, whether now or hereafter existing or
acquired (the "Collateral"):
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(a) all equipment in all of its forms of the Grantor, wherever
located, including all equipment and facilities used or useful for the
processing, transportation or marketing of oil, gas or other hydrocarbons
or other materials extracted therefrom, and all parts thereof and all
accessions, additions, attachments, improvements, substitutions and
replacements thereto and therefor (any and all of the foregoing being the
"Equipment");
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(b) all inventory in all of its forms of the Grantor, wherever
located, including
(i) all oil, gas or other hydrocarbons or materials extracted
therefrom, raw materials and work in process therefor, finished goods
thereof, and materials used or consumed in the manufacture or
production thereof,
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(ii) all goods in which the Grantor has an interest in mass or
a joint or other interest or right of any kind (including goods in which
the Grantor has an interest or right as consignee), and
(iii) all goods which are returned to or repossessed by the
Grantor,
and all accessions thereto, products thereof and documents therefor (any and all
such inventory, materials, goods, accessions, products and documents being the
"Inventory");
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(c) all accounts (including, without limitation, the Accounts), contracts,
contract rights, chattel paper, documents, instruments, and general intangibles
of the Grantor, whether or not arising out of or in connection with the sale or
lease of goods or the rendering of services, and all rights of the Grantor now
or hereafter existing in and to all security agreements, guaranties, leases and
other contracts securing or otherwise relating to any such accounts, contracts,
contract rights, chattel paper, documents, instruments, and general intangibles
(any and all such accounts, contracts, contract rights, chattel paper,
documents, instruments, and general intangibles being the "Receivables,"
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excluding those fees payable under Section 6.11 of the Participation Agreement,
and any and all such security agreements, guaranties, leases and other contracts
being the "Related Contracts," which term shall include each document listed on
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Schedule 1 attached hereto);
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(d) all Intellectual Property Collateral of the Grantor;
(e) all books, records, writings, data bases, information and other
property relating to, used or useful in connection with, evidencing, embodying,
incorporating or referring to, any of the foregoing in this Section 2.1;
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(f) all of the Grantor's other property and rights of every kind and
description and interests therein; and
(g) all products, offspring, rents, issues, profits, returns, income and
proceeds of and from any and all of the foregoing Collateral (including proceeds
which constitute property of the types described in clauses (a), (b), (c), (d),
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(e) and (f), proceeds deposited from time to time in any lock boxes of the
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Grantor, and, to the extent not otherwise included, all payments under insurance
(whether or not the Lender is the loss payee thereof), or any indemnity,
warranty or guaranty, payable by reason of loss or damage to or otherwise with
respect to any of the foregoing Collateral).
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SECTION 2.2. Security for Obligations. This Security Agreement secures
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the prompt payment when due, whether at stated maturity, by acceleration
or otherwise (including the payment of amounts which would become due but for
the operation of the automatic stay under Section 362 of the Bankruptcy Code) of
(a) all Obligations now or hereafter existing under the Credit Agreement, the
Note, the Hedging Agreements and each other Loan Document, whether for
principal, interest, costs, fees, expenses or otherwise, and (b) all other
obligations of the Borrower to the Lender, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent or now or
hereinafter existing or due or to become due (all such Obligations and other
obligations being the "Secured Obligations").
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SECTION 2.3. Continuing Security Interest; Transfer of Note[s]. This
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Security Agreement shall create a continuing security interest in the Collateral
and shall
(a) remain in full force and effect until payment in full of all
Secured Obligations and the termination of the Commitments and any other
commitments of the Lender to the Borrower;
(b) be binding upon the Grantor, its successors, transferees and
assigns; and
(c) inure, together with the rights and remedies of the Lender
hereunder, to the benefit of the Lender and its successors, transferees and
assigns.
Without limiting the generality of the foregoing clause (c), the Lender may
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assign or otherwise transfer (in whole or in part) any Note or Loan to any other
Person or entity, and such other Person or entity shall thereupon become vested
with all the rights and benefits in respect thereof granted to the Lender under
any Loan Document (including this Security Agreement) or otherwise, subject,
however, to any contrary provisions in such assignment or transfer, and to the
provisions of Section 9.11 of the Credit Agreement. Upon the indefeasible
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payment in full of all Secured Obligations and the termination of the
Commitments and any other commitments of the Lender to the Borrower, the
security interest granted herein shall terminate and all rights to the
Collateral shall revert to the Grantor. Upon any such termination, the Lender
will, at the Grantor's sole expense, execute and deliver to the Grantor such
documents as the Grantor shall reasonably request to evidence such termination.
SECTION 2.4. Grantor Remains Liable. Anything herein to the contrary
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notwithstanding
(a) the Grantor shall remain liable under the contracts and agreements
included in the Collateral to the extent set
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forth therein, and shall perform all of its duties and obligations under
such contracts and agreements to the same extent as if this Security
Agreement had not been executed;
(b) the exercise by the Lender of any of its rights hereunder shall
not release the Grantor from any of its duties or obligations under any
such contracts or agreements included in the Collateral; and
(c) the Lender shall not have any obligation or liability under any
such contracts or agreements included in the Collateral by reason of this
Security Agreement, nor shall the Lender be obligated to perform any of the
obligations or duties of the Grantor thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES. The Grantor represents and
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warrants unto the Lender as set forth in this Article.
SECTION 3.1.1. Validity, .etc. This Security Agreement creates a valid
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security interest in the Collateral, securing the payment of the Secured
Obligations except as set forth on the Disclosure Schedule to the Participation
Agreement, and all filings and other actions necessary or desirable to perfect
and protect such security interest have been duly taken.
SECTION 3.1.2. AUTHORIZATION, APPROVAL, ETC. NO authorization, approval or
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other action by, and no notice to or filing with, any governmental
authority or regulatory body is required either
(a) for the grant by the Grantor of the security interest granted
hereby or for the execution, delivery and performance of this Security
Agreement by the Grantor; or
(b) for the perfection of or except as set forth on the Disclosure
Schedule to the Participation Agreement, the exercise by the Lender of its
rights and remedies hereunder.
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ARTICLE IV
COVENANTS
SECTION 4.1. CERTAIN COVENANTS. The Grantor covenants and agrees that, so
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long as any portion of the Secured 0bligations shall remain unpaid or the Lender
shall have any outstanding Commitments or other commitment by the Lender to the
Borrower, the Grantor will, unless the Lender shall otherwise consent in
writing, perform the obligations set forth in this Section.
SECTION 4.1.1. AS TO EQUIPMENT AND INVENTORY. The Grantor hereby agrees
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that it shall keep all the Equipment and Inventory (other than Inventory sold in
the ordinary course of business) in the State of Michigan.
SECTION 4.1.2. AS TO RECEIVABLES. The Grantor shall keep its place(s) of
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business and chief executive office and the office(s) where it keeps its records
concerning the Receivables, and all originals of all chattel paper which
evidenced Receivables, located at the address set forth below its name on the
signature page hereof, or, upon 30 days' prior written notice to the Lender, at
such other locations in a jurisdiction where all actions required by the first
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sentence of Section 4.1.4 shall have been taken with respect to the
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Receivables; not change its name except upon 30 days' prior written notice to
the Lender; hold and preserve such records and chattel paper; and permit
representatives of the Lender at any time during normal business hours to
inspect and make abstracts from such records and chattel paper.
SECTION 4.1.3. AS TO INTELLECTUAL PROPERTY COLLATERAL. The Grantor shall
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not, unless the Grantor shall either
(i) reasonably and in good faith determine (and notice of such
determination shall have been delivered to the Lender) that any of the
Patent Collateral is of negligible economic value to the Grantor, or
(ii) have a valid business purpose to do otherwise, do any act,
or omit to do any act, whereby any of the Patent Collateral may lapse
or become abandoned or dedicated to the public or unenforceable.
SECTION 4.1.4. FURTHER ASSURANCES, ETC. The Grantor agrees that, from time
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to time at its own expense, the Grantor will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
reasonably necessary or desirable, or that the Lender may request, in order to
perfect, preserve and protect any security interest granted or purported to be
granted hereby or to enable the Lender to exercise and enforce
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its rights and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, the Grantor will:
(a) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices (including,
without limitation, any assignment of claim form under or pursuant to the
federal assignment of claims statute, 31 U.S.C. (S) 3726, any successor or
amended version thereof or any regulation promulgated under or pursuant to
any version thereof), as may be necessary or desirable, or as the Lender
may request, in order to perfect and preserve the security interests and
other rights granted or purported to be granted to the Lender hereby; and
(b) furnish to the Lender, from time to time at the Lender's request,
statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as the Lender may
reasonably request, all in reasonable detail.
With respect to the foregoing and the grant of the security interest hereunder,
the Grantor hereby authorizes the Lender to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Collateral without the signature of the Grantor where permitted by law, all
of which security interests shall be subject to the terms and conditions of the
Subordination Agreement. A carbon, photographic or other reproduction of this
Security Agreement or any financing statement covering the Collateral or any
part thereof shall be sufficient as a financing statement where permitted by
law.
SECTION 4.1.5. COMPLIANCE WITH LAWS, ETC. Grantor agrees to comply in all
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material respects with all applicable laws, rules, regulations and orders, such
compliance to include (without limitation):
(a) the maintenance and preservation of its limited liability company
existence and qualification as a foreign limited liability company; and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its property
except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books.
SECTION 4.1.6. ENVIRONMENTAL COVENANT. Grantor agrees to agrees to
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cause Basin to,
(a) use, operate and maintain all of its facilities and Properties in
material compliance with all Environmental
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Laws, keep all necessary permits, approvals, certificates, licenses and
other authorizations relating to environmental matters in effect and remain
in material compliance therewith, and handle all Hazardous Materials in
material compliance with all applicable Environmental Laws; and
(b) (i) use all reasonable efforts to have dismissed with prejudice
any actions or proceedings relating to compliance with Environmental Laws
which would or could in the reasonable opinion of the Lender have,
individually or in the aggregate, a material adverse effect, and (ii)
diligently pursue cure of any material underlying environmental problem
which forms the basis of any such claim, complaint, notice or inquiry.
SECTION 4.1.7. BUSINESS ACTIVITIES; ACQUISITIONS. The Grantor will not
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engage in any business activity, except as permitted by the Participation
Agreement and such activities as may be incidental or related thereto.
SECTION 4.1.8. RESTRICTED PAYMENTS, ETC. On and at all times after the
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Effective Date Grantor will only make distributions as permitted by the
Participation Agreement.
SECTION 4.1.9. CONSOLIDATION, MERGER, ETC. Grantor will not liquidate or
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dissolve, consolidate with, or merge into or with, any other limited liability
company, partnership or corporation, or purchase or otherwise acquire all or
substantially all of the assets of any Person (or of any division thereof).
Grantor will not create any Subsidiary except with the prior written consent of
the Lender.
ARTICLE V
THE LENDER
SECTION 5.1. LENDER APPOINTED ATTORNEY-IN-FACT. The Grantor hereby
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irrevocably appoints the Lender the Grantor's attorney-in-fact, with full
authority in the place and stead of the Grantor and in the name of the Grantor
or otherwise, to take any action and to execute any instrument which the Lender
may deem necessary or advisable to accomplish the purposes of this Security
Agreement, including, without limitation:
(a) to ask, demand, collect, sue for, recover, compromise, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
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(b) to receive, indorse, and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (a) above;
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(c) to file any claims or take any action or institute any proceedings
which the Lender may deem necessary or desirable for the collection of any
of the Collateral or otherwise to enforce the rights of the Lender with
respect to any of the Collateral; and
(d) to perform the affirmative obligations of the Grantor hereunder
(including all obligations of the Grantor pursuant to Section 4.1.4).
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The Grantor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest,
but in all events only with respect to matters and interests relating solely to
the Collateral and subject to the Subordination Agreement; and in no event will
Lender exercise the foregoing power of attorney with respect to any of
MarkWest's interest or any interests of the Grantor which are not part of the
Collateral.
SECTION 5.2. LENDER MAY PERFORM. If the Grantor fails to perform any
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agreement contained herein, the Lender may itself perform, or cause performance
of, such agreement, and the expenses of the Lender incurred in connection
therewith shall be payable by the Grantor.
SECTION 5.3. LENDER HAS NO DUTY. In addition to, and not in limitation of,
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Section 2.4, the powers conferred on the Lender hereunder are solely to protect
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its interest in the Collateral and shall not impose any duty on it to exercise
any such powers. Except for the reasonable care of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Lender shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
SECTION 5.4. REASONABLE CARE. The Lender is required to exercise reasonable
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care in the custody and preservation of any of the Collateral in its possession;
provided, however, the Lender shall be deemed to have exercised reasonable care
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in the custody and preservation of any of the Collateral, if it takes such
action for that purpose as the Grantor reasonably requests in writing at times
other than upon the occurrence and during the continuance of any Event of
Default, but failure of the Lender to comply with any such request at any time
shall not in itself be deemed a failure to exercise reasonable care.
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ARTICLE VI
REMEDIES
SECTION 6.1. CERTAIN REMEDIES. If any Event of Default shall have occurred
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and be continuing:
(a) The Lender may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to
it, all the rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected Collateral) and
also may
(i) require the Grantor to, and the Grantor hereby agrees that
it will, at its expense and upon request of the Lender forthwith,
assemble all or part of the Collateral as directed by the Lender and
make it available to the Lender at a place to be designated by the
Lender which is reasonably convenient to both parties and
(ii) without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or
private sale, at any of the Lender's offices or elsewhere, for cash,
on credit or for future delivery, and upon such other terms as the
Lender may deem commercially reasonable.
The Grantor agrees that, to the extent notice of sale shall be required by law,
at least ten days' prior notice to the Grantor of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Lender shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. The
Lender may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(b) All cash proceeds received by the Lender in respect of any sale of,
collection from, or other realization upon all or any part of the Collateral
may, in the discretion of the Lender, be held by the Lender as collateral for,
and/or then or at any time thereafter applied in whole or in part by the Lender
against, all or any part of the Secured Obligations in such order as the Lender
shall elect. Any surplus of such cash or cash proceeds held by the Lender and
remaining after payment in full of all the Secured Obligations shall be paid
over to the Grantor or to whomsoever may be lawfully entitled to receive such
surplus.
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(c) The exercise of any right hereunder shall be expressly subject to
and in compliance with the Subordination Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. LOAN DOCUMENT. This Security Agreement is a Loan Document
-------------
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof subject, however in all events to the Subordination
Agreement.
SECTION 7.2. AMENDMENTS; ETC. No amendment to or waiver of any provision of
---------------
this Security Agreement nor consent to any departure by the Grantor herefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 7.3. ADDRESSES FOR NOTICES. All notices and other communications
---------------------
provided for hereunder shall be in writing (including telegraphic communication)
and, if to the Grantor, mailed or telegraphed or delivered to it, addressed to
it at the address set forth below its signature hereto, if to the Lender, mailed
or delivered to it, addressed to it at the address of the Lender specified in
the Guaranty, or as to either party at such other address as shall be designated
by such party in a written notice to each other party complying as to delivery
with the terms of this Section. All such notices and other communications shall,
when mailed or telegraphed, respectively, be effective when deposited in the
mails or delivered to the telegraph company, respectively, addressed as
aforesaid.
SECTION 7.4. SECTION CAPTIONS. Section captions used in this Security
----------------
Agreement are for convenience of reference only, and shall not affect the
construction of this Security Agreement.
SECTION 7.5. SEVERABILITY. Wherever possible each provision of this
------------
Security Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Security Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement.
SECTION 7.6. GOVERNING LAW, ENTIRE AGREEMENT, ETC. THIS SECURITY
------------------------------------
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-15-
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, EXCEPT TO THE EXTENT
THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF ILLINOIS. THIS SECURITY AGREE AND THE OTHER
LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN
OR ORAL, WITH RESPECT THERETO.
SECTION 7.7. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION
-------------------------------------------
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS SECURITY
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER OR THE GRANTOR SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER,
-----------------
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY
BE BROUGHT, AT THE LENDER'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE GRANTOR HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES
TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION.
THE GRANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
ILLINOIS. THE GRANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT THE GRANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION
OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE GRANTOR HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
SECURITY AGREEMENT.
SECTION 7.8. WAIVER OF JURY TRIAL. THE LENDER AND THE GRANTOR HEREBY
--------------------
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS SECURITY AGREEMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
LENDER OR THE GRANTOR. THE GRANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION
OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR
-16-
THE LENDER ENTERING INTO THIS SECURITY AGREEMENT AND EACH SUCH OTHER LOAN
DOCUMENT.
SECTION 7.9. THE LENDER AS AGENT FOR ITS AFFILIATES. As described above,
--------------------------------------
certain Affiliates of the Lender, including without limitation, Bank of America
National Trust and Savings Association, are or may become parties to certain
Hedging Agreements with the Borrower, the Grantor and/or Affiliates of the
Borrower or the Grantor. This Security Agreement secures the obligations of the
Borrower, the Grantor and such Affiliates, as the case may be, under such
Hedging Agreements, and the parties hereto acknowledge for all purposes that the
Lender acts as agent on behalf of such Affiliates of the Lender which are so
entitled to share in the rights and benefits accruing to the Lender under this
Security Agreement.
SECTION 7.10. Subordination. Notwithstanding anything to the contrary
-------------
contained herein, the Lender hereby agrees for itself and its successors and
assigns, that the Lender's rights and remedies hereunder (the "Rights"), and any
------------
and all liens and security interests that are granted to secure the Rights (the
"Liens") as well as any interest in any property or asset acquired by reason of
-------
the enforcement of any of the Rights or the Liens are subject to the terms of
the Subordination Agreement, which provides, among other things, that the Rights
and the Liens are subject to the Participation Agreement as more particularly
set forth therein. This Section 7.10 shall be deemed a covenant binding upon
------------
and running with the property and assets subject to the Liens.
SECTION 7.11. Limitation On Recourse. Notwithstanding the general terms of
----------------------
the Grantor's obligations under this Security Agreement or anything to the
contrary contained herein, the Lender hereby agrees not to seek to satisfy
Grantor's obligations under this Security Agreement out of any property, assets,
revenues or funds of the Grantor other than (i) Energy Company's Share of the
Collateral (which shall remain subject to the Subordination Agreement) and/or
(ii) funds which are distributable to Energy Company from time to time pursuant
to the Participation Agreement.
-17-
IN WITNESS WHEREOF, the Grantor has caused this Security Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
WESTSHORE PROCESSING COMPANY, L.L.C.
By: MarkWest Michigan LLC, its Operator
By: MarkWest Hydrocarbon Partners, Ltd., its Manager
By: MarkWest Hydrocarbon, Inc., its General Partner
By: /s/ Arthur J. Denney
Name: Arthur J. Denney
Title: Vice President
c/o MarkWest Michigan LLC
Address: 5613 DTC Parkway, Suite 400
-----------------------
Englewood, Colorado 80111
-------------------
Attention: Arthur J. Denney
Telex:
Telecopier: (303) 290-8769
Schedule I to West Shore Security Agreement
1. Transportation Agreement dated December 1, 1993 between Manistee Gas Limited
Liability Company, as Shipper, and Basin Pipeline LLC, as Transporter.
2. Asset Purchase Agreement dated December 1, 1993, between Dow Chemical
Company, as Buyer, and Manistee Gas Limited Liability Company as Seller.
3. Promissory Note dated December 1, 1993 from Manistee to The Dow Chemical
Company in the principal sum of $720,000.00.
4. Pipeline Construction Agreement dated November 30, 1993, by and between
Basin, as owner, and Murphy Bros. Inc., as Contractor, as amended by the
First Amendment to the Pipeline Construction Agreement dated November 30,
1993.
5. Agreement dated December 22, 1994 between Basin, West Bay Exploration Co.,
Savoy Oil and Gas Inc. and H&H Star Energy, Inc. for the Filer 1-10 Well.
6. Transportation Agreement dated April 1, 1995, by and between Manistee and
Michgan Consolidated Gas Company.
7. KIF Use Agreement dated October 1, 1991, between Shell Michigan Pipeline
Company and Manistee.
8. Gas and Condensate Processing Agreement - Kalkasa Plant dated April 1, 1995,
by and between Shell Western E&P, Inc. and Manistee.
9. Product Purchase Agreement dated July 12, 1994, accepted July 15, 1994, by
and between Enerkon Resources Corporation and Manistee.
10. Gathering Line Construction and Gas Processing Agreement dated December 22,
1994, by and between Manistee, Basin, West Bay Exploration Company, Savoy
Oil & Gas, Inc., and H&H Star Energy, Inc.
11. Gas Treating and Processing Agreement between Shell Offshore, Inc. and West
Shore Processing Company dated as of May 1, 1996.
12. Gas Gathering, Treating and Processing Agreement between Michigan Production
Company and West Shore Processing Company.
13. Second Amended and Restated Operating Agreement for Basin Pipeline L.L.C.
dated May 1, 1996 by and among Basin, West Shore, MarkWest and Michigan
Energy Company, L.L.C.
14. Gas Processing and Treating Agreement for Brown 19 Plant between Manistee
and West Shore dated_________, 1996.
15. Lease/Purchase of gas compressor for the Victory #32 Compressor Station #1
--------------------------------------------------------------------------
Lessor: Gas Compression Services, Inc. ("Gasco").
Lessee: Manistee Gas, L.L.C. ("Manistee").
Date of agreement January 3, 1994
Suction Pressure: 300 to 350 psig.
Discharge pressure: 1000psig.
Specific gravity: 0.70.
Volume: 2.5 to 3.1 Mmcf/d
Operations: Gasco will operate the compressor. Manistee
will furnish all parts, lube oil, and dry sweet
fuel gas.
Terms: Sixty (60) months upon which Manistee will have
option to purchase the compressor unit for
$53,350.42 within thirty days after final lease
payment is made.
Pricing: $3916.67 per month (includes $750.00 for the
operation of the compressor unit).
16. Lease/Purchase of gas compressor for the Victory #32 Compressor Station #2
--------------------------------------------------------------------------
Lessor: Gas Compression Services, Inc. ("Gasco").
Lessee: Manistee Gas, L.L.C. ("Manistee").
Date of agreement January 3, 1994
Suction Pressure: 300 to 350 psig.
Discharge pressure: 1000psig.
Specific gravity: 0.70.
Volume: 2.5 to 3.1 Mmcf/d
Operations: Gasco will operate the compressor. Manistee
will furnish all parts, lube oil, and dry sweet
fuel gas.
Terms: Sixty (60) months upon which Manistee will have
option to purchase the compressor unit for
$53,350.42 within thirty days after final lease
payment is made.
Pricing: $3916.67 per month (includes $750.00 for the
operation of the compressor unit).
17. Lease/Purchase of gas compressor for the Victory #32 Compressor Station #3
--------------------------------------------------------------------------
Lessor: Gas Compression Services, Inc. ("Gasco").
Lessee: Manistee Gas, L.L.C. ("Manistee").
Date of agreement January 3, 1994
Suction Pressure: 300 to 350 psig.
Discharge pressure: 1000psig.
Specific gravity: 0.70.
Volume: 2.5 to 3.1 Mmcf/d
Operations: Gasco will operate the compressor. Manistee will
furnish all parts, lube oil, and dry sweet fuel
gas.
Terms: Sixty (60) months upon which Manistee will have
option to purchase the compressor unit for
$53,350.42 within thirty days after final lease
payment is made.
Pricing: $3916.67 per month (includes $750.00 for the
operation of the compressor unit).
18. Lease/Purchase of gas compressor for Peterson Facility
Lessor: Gas Compression Services, Inc. ("Gasco").
Lessee: Manistee Gas, L.L.C. ("Manistee").
Date of agreement February 1, 1995.
Suction Pressure: 15 to 35 psig.
Suction temperature: 70 degrees.
Discharge pressure: 350psig.
Specific gravity: 0.83.
Volume: 0.9 to 1.3 Mmcf/d
Ambient temperature: 100 degrees
Operations: Lessor will operate the compressor. Lessee will
furnish all parts, lube oil, and dry sweet fuel
gas.
Terms: Sixty (60) months. Upon final payment, Lessor
will assign lessee the compressor unit for no
additional charges.
Pricing: $2880.56 per month (includes $0.00 for the
operation of the compressor unit).
19. Letter Agreement regarding Transportation, Compression, Treating and
Processing dated February 23, 1996 between Manistee, Basin and Dynamic
Development, Inc. for the Peterson #1-19 Victory Well in Victory Township,
Mason County.
Vehicle Leases
Table Showing the following:
Vehicle Description, Primary Driver, Monthly payment, Monthly Insurance, Total
Monthly Payment & Insurance, Annual Payment & Insurance, Lease Maturity, Current
Mileage, Vehicle ID#, Ford Motor Lease number.
Transferred Brown-19 Assets to MEC
Basin and/or Manistee Assets Located at the Brown 19 Treating Plant
-------------------------------------------------------------------
The Basin and/or Manistee assets located at the Brown 19 treating plant include:
1. Slug catcher
2. Filter unit
3. Basin Gas Pack
4. Three 12, 000-gallon sour NGL storage tanks and one 24,000 NGL storage tank
5. The spare gas pack
6. The spur NGL truck-loading facilities
7. All spare or unused equipment, facilities and supplies located at or
near the Brown 19 Treating Plant site and in the portion of the Plant
commonly known as the "Bone-yard", excluding however, the Lake Orion NGL
amine skid, NGL plant skid and related equipment.
The above facilities shall include all line-pipe, pipe, connections, fittings,
flanges, interconnect with other pipelines, valves, control equipment, pigs, pig
launchers and receivers, cathodic protection, bypasses, regulators, drips,
meters and metering equipment, all equipment located on, at or appurtenant to
the Peterson compressor station, all other equipment and personal property
and/or fixtures associated therewith including the following:
Delivery Points Valves
1) Basin Pipeline Gas Pack a) The first valve (gas) downstream of
the Basin Gas Pack.
b) All piping from the 2-inch valve (air)
to the Basin Gas Pack.
c) The 2-inch valve (fuel) and piping to
the Basin Gas Pack.
d) All piping from the 1-inch and 2-inch
flare valves to the Basin Gas Pack
2) Sour NGL Storage a) The four (4) 4" x 6" relief valves on
the piping from the sour NGL storage tanks
to the Brown 19 flare system.
b) All piping between the 2-inch flash gas
valves and each sour NGL storage tank.
c) All piping between the 2-inch valves
on the sour NGL storage tanks to the
Brown 19 flare system.
d) All piping between the 2-inch valve
(truck load-out to the Brown 19 flare
system) and the tanks.
e) All piping between the 1-inch valves on
the sour NGL filter vapor return dump line
in the truck loading area and the sour NGL
filter.
(FOLLOWING IS A UNIFORM COMMERCIAL CODE FINANCING STATEMENT-SEE ORIGINAL)
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 8/2/96 | | | | | | | None on these Dates |
| | 5/2/96 | | 4 |
| | 5/1/96 | | 19 |
| | 2/23/96 | | 21 |
| | 4/1/95 | | 19 |
| | 2/1/95 | | 21 |
| | 12/22/94 | | 19 |
| | 7/15/94 | | 19 |
| | 7/12/94 | | 19 |
| | 1/3/94 | | 20 |
| | 12/1/93 | | 19 |
| | 11/30/93 | | 19 |
| List all Filings |
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