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
SECURED GUARANTY
----------------
THIS SECURED GUARANTY (this "Guaranty"), dated as of May 2, 1996, made by
----------
West Shore Processing Company, LLC, a Michigan limited liability company (the
"Guarantor"), in favor of Bank of America Illinois, an Illinois banking
-----------
corporation (the "Lender"),
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of
May 2, 1996 (together with all amendments and other modifications, if any, from
time to time thereafter made thereto, the "Credit Agreement"), among Michigan
------------------
Energy Company, L.L.C., a Michigan limited liability company ("Energy Company")
-----------------
and Michigan Production Company, L.L.C., a Michigan limited liability company
(together with Energy Company, collectively, the "Borrower") and the Lender, the
----------
Lender agreed to make loans (collectively, the "Loan") to the Borrower; and
------
WHEREAS, Energy Company owns 99% of the issued and outstanding membership
interests of the Guarantor; and
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 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
Guarantor is required to execute and deliver this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial direct and indirect
benefits from the Loan made to the Borrower by the Lender pursuant to the Credit
Agreement; and
WHEREAS, the obligations of the Guarantor under this Guaranty are secured
by that certain Amended and Restated Mortgage, Deed of Trust, Assignment,
Security Agreement and Financing Statement dated as of May 2, 1996, from the
Guarantor in favor of the Lender (the "Mortgage") and that certain Security
----------
Agreement dated as of May 2, 1996, from the Guarantor in favor of the Lender
(the "Security Agreement"), each of which is subject to the terms and conditions
--------------------
of the Subordination Agreement;
NOW, THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged, and in order to induce the
-1-
NOTE: PAGE 2 IS MISSING (FROM THE ORIGINAL)
-2-
"Energy Company's Share" means, as of any date of determination with
------------------------
respect to any asset, interest or property, the proportionate beneficial
interest of Energy Company therein represented by Energy Company's direct and
indirect ownership of equity interests in Basin and West Shore and which are
subject to the Participation Agreement and, to the extent liens against such
assets, interest or property are granted pursuant to the Loan Documents, the
Subordination Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-------
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"Event of Default" means an Event of Default under the Credit Agreement.
------------------
"GAAP" means generally accepted accounting principles.
------
"Guarantor" is defined in the preamble.
-----------
"Guaranty" is defined in the preamble.
----------
"Hedging Agreements" means:
--------------------
(a) interest rate swap agreements, basis swap agreements, interest
rate cap agreements, forward rate agreements, interest rate floor
agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in
interest rates or currency exchange rates, and
(b) forward contracts, options, futures contracts, futures options,
commodity swaps, commodity options, commodity collars, commodity caps,
commodity floors and all other agreements or arrangements designed to
protect such Person against fluctuations in the price of commodities.
"Hedging Obligations" means, with respect to any Person, all liabilities
---------------------
(including but not limited to obligations and liabilities arising in connection
with or as a result of early or premature termination of a Hedging Agreement,
whether or not occurring as a result of a default thereunder) of such Person
under a Hedging Agreement.
"Lender" is defined in the preamble.
--------
"Loan Document" has the meaning ascribed to it in the Credit Agreement as
---------------
in effect on the date hereof.
-3-
"MarkWest" means MarkWest Michigan LLC.
----------
"Mortgage" is defined in the sixth recital.
----------
"Note" means the promissory notes of the Borrowers payable to the order of
------
the Lender, (as such promissory notes may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate debt of each Borrower to
the Lender under the Credit Agreement resulting from outstanding Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor of renewal thereof.
"Obligor" means Michigan Gas Fund I, Tennessee Gas Pipeline Company,
---------
Tenneco Ventures Corporation, EnCap Ventures 1993 Limited Partnership, the
Borrowers, Basin, Guarantor or any other Person (other than the Lender) from
time to time obligated under, or otherwise a party to, any Loan Document.
"Participation Agreement" means that certain Participation, Ownership and
-------------------------
Operating Agreement for West Shore, by and among Energy Company and MarkWest
dated as of May 2, 1996, (the "Participation Agreement").
"Pension Plan" means a "pension plan", as such term is defined in section
--------------
3(2) of ERISA, which is subject to Title IV of ERISA (other than a multiemployer
plan as defined in section 4001(a)(5) of ERISA), and to which a Borrower or any
corporation, trade or business that is, along with such Borrower, a member of a
Controlled Group, may have liability, including any liability by reason of
having been a substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under section 4069 of ERISA.
"Person" means any natural person, corporation, partnership, limited
--------
liability company, firm, association, trust, government, governmental agency or
any other entity, whether acting in an individual, fiduciary or other capacity.
"Pipeline" means the natural gas pipeline and related facilities presently
----------
owned by Basin and those pipelines and related facilities to be constructed by
MarkWest pursuant to the Participation Agreement.
"Plan" means any Pension Plan or Welfare Plan.
------
"Plant" means, as the context requires, the Brown l9 Gas Plant (as defined
-------
in the Participation Agreement), the "Treating Plant" (as defined in the Shell
Contract) and other facilities and equipment, as such combination of assets may
be constituted from
-4-
time to time and used by West Shore for the processing of natural gas as
contemplated by the Participation Agreement.
"Property" means any interest in any kind of property or asset, whether
----------
real, personal or mixed, or tangible or intangible.
"Security Agreement" is defined in the sixth recital.
--------------------
"Security Documents" means, collectively, the documents, agreements and
--------------------
instruments, including without limitation, the Mortgage and the Security
Agreement, given to secure the Obligations.
"Shell Contract" means the Gas Treating and Processing Agreement dated as
----------------
of May 1, 1996, between Shell Western E & P Inc. and West Shore.
"Subordination Agreement" means the Subordination Agreement dated as of
-------------------------
May 2, 1996, by and among MarkWest, the Lender, Energy Company, Guarantor, and
Basin.
"Welfare Plan" means a "welfare plan", as such term is defined in section
--------------
3(1) of ERISA.
"West Shore" means West Shore Processing Company, L.L.C.
------------
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. GUARANTY. The Guarantor hereby absolutely, unconditionally
---------
and irrevocably
(a) guarantees the full and punctual payment when due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or
otherwise, of all monetary obligations of the Borrower or any 0bligor to the
Lender under the Credit Agreement or any other Loan Document ("Obligations"),
-------------
whether for principal, interest, fees, expenses or otherwise (including all such
amounts which would become due but for the operation of the automatic stay under
Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. symbol 362(a),
and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy
Code, 11 U.S.C. symbol 502(b) and symbol 506(b),
(b) indemnifies and holds harmless the Lender for any and all costs and
expenses (including reasonable attorney's fees and expenses) incurred by the
Lender in enforcing any rights under this Guaranty, and
-5-
(c) guarantees the full and punctual payment and performance when due
of all of the Borrower's and/or the Guarantor's obligations, to the Lender
or any Affiliate of the Lender, under all Hedging Obligations arising under
Hedging Agreements between the Borrower, the Guarantor or any other
Affiliate of the Guarantor and the Lender or any Affiliate of the Lender,
including without limitation, Bank of America National Trust and Savings
Association, whether now or hereafter owing, whether direct or indirect,
primary or secondary, fixed or contingent, joint or several, regardless of
how evidenced or arising.
This Guaranty constitutes a guaranty of payment when due and not of collection,
and the Guarantor specifically agrees that it shall not be necessary or required
that the Lender or any holder of any Note exercise any right, assert any claim
or demand or enforce any remedy whatsoever against the Borrower or any other
Obligor before or as a condition to the obligations of the Guarantor hereunder,
except as required by the Subordination Agreement.
SECTION 2.2. ACCELERATION OF GUARANTY. The Guarantor agrees that, in the
-------------------------
event of the dissolution or insolvency of the Borrower, any other Obligor or the
Guarantor, or the inability or failure of the Borrower, any other Obligor or the
Guarantor to pay debts as they become due, or an assignment by the Borrower, any
other Obligor or the Guarantor for the benefit of creditors, or the commencement
of any case or proceeding in respect of the Borrower, any other 0bligor or the
Guarantor under any bankruptcy, insolvency or similar laws, and if such event
shall occur at a time when any of the Obligations of the Borrower may not then
be due and payable, the Guarantor will pay to the Lender forthwith the full
amount which would be payable hereunder by the Guarantor if all such Obligations
were then due and payable.
SECTION 2.3. GUARANTY ABSOLUTE, ETC. This Guaranty shall in all
-----------------------
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment and performance, and shall remain in full force and effect until all
Obligations of the Borrower and each Obligor have been paid in full, all
obligations of the Guarantor hereunder shall have been paid in full and all
Commitments shall have terminated. The liability of the Guarantor under this
Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the Credit
Agreement or any other Loan Document;
(b) the failure of the Lender or any holder of any Note
(i) to assert any claim or demand or to enforce any right
or remedy against the Borrower, any other Obligor
-6-
under the provisions of the Credit Agreement, any other Loan Document or
otherwise, or
(ii) to exercise any right or remedy against any other guarantor
of, or collateral securing, any Obligations;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other extension,
compromise or renewal of any Obligation;
(d) any reduction, limitation, impairment or termination of the
Obligations for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and the
Guarantor hereby waives any right to or claim of) any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, the
Obligations or otherwise;
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Credit Agreement
or any other Loan Document;
(f) any addition, exchange, release, surrender or nonperfection of
any collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by the Lender securing
any of the Obligations;
(g) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, the Borrower, any other
Obligor, any surety or any guarantor, other than payment in full of the
Obligations; or
(h) any defense based on any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of the terms of the
Credit Agreement or the rights of the Lender with respect to the Credit
Agreement or the Loan Documents.
SECTION 2.4. REINSTATEMENT, ETC. The Guarantor agrees that this
-------------------
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by the Lender or any holder of any Note,
upon the insolvency, bankruptcy or reorganization of the Borrower, any other
Obligor or otherwise, as though such payment had not been made.
-7-
SECTION 2.5. LIMITED RECOURSE. Notwithstanding the general terms of the
-----------------
Guarantor's obligations under this Guaranty or anything to the contrary
contained herein and subject to the terms and conditions of the Subordination
Agreement, the Lender hereby agrees not to seek to satisfy Guarantor's
obligations under this Guaranty out of any property, assets, revenues or funds
of Guarantor other than (i) Energy Company's Share of the Collateral or (ii)
funds which are distributable to Energy Company from time to time pursuant to
the Participation Agreement to the extent such funds are distributable to Energy
Company. Notwithstanding the foregoing, the Guarantor shall be fully liable to
the Lender, and the Lender may enforce any judgment against the Guarantor, for:
(i) any fraud by the Guarantor in connection with this Guaranty or the Loan
Documents to which it is a party; provided, that any fraud committed by Energy
---------
Company, individually or as a member of the Guarantor, in which MarkWest had no
part shall not be imputed to the Guarantor and shall not constitute fraud on the
part of the Guarantor; (ii) the retention of funds required to be distributed in
respect of Energy Company's Share in Guarantor after the Lender has given notice
that the Guarantor is in default under the Guaranty, the Credit Agreement or any
Loan Document to which it is a party (a "Default Notice"), to the full extent of
----------------
such funds so retained; (iii) the fair market value, as of the time of any
Default Notice, of any personal property or fixtures comprising the Plant
removed or disposed of by the Guarantor, other than in accordance with the terms
of the Participation Agreement; or (iv) the retention or misapplication of any
insurance proceeds or condemnation or other awards, if and to the extent such
sums are required to the extent of Energy Company's Share and subject to the
terms of the Subordination Agreement to be paid or delivered to the Lender
and/or used for restoration of the Plant in accordance with the terms of the
Mortgage or the Security Agreement. The Lender shall have the right to recover
its damages hereunder in a separate proceeding brought for that purpose, or in
any foreclosure action under any of the Loan Documents, or by invocation of any
of the Lender's other rights and remedies thereunder or at law or equity; and
the Guarantor's liability under this Section 275 shall survive foreclosure under
-----------
any Loan Document.
SECTION 2.6. WAIVER, ETC.
------------
(a) The Guarantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Obligations and
this Guaranty and any requirement that the Lender or any holder of any
Credit Agreement protect, secure, perfect or insure any security interest,
or any property subject thereto, or exhaust any right or take any action
against the Borrower, any other Obligor or any other Person or entity or
any collateral securing the Obligations.
-8-
(b) Based on the representations and warranties of the Guarantor set
forth herein, the Guarantor hereby forever and completely waives any right
the Guarantor might otherwise have to assert or claim, as part of a defense
against any action taken by Lender against the Guarantor under this
Guaranty after the Lender shall have completed an action against the
Borrower or another Obligor for the enforcement of any of the Obligations,
that such action against the Guarantor is barred by operation of the laws
of any applicable jurisdiction, because either (i) this Guaranty and the
Credit Agreement are part and parcel with the Loans as one integrated
transaction loan transaction, rather than related but separate and distinct
transactions, or (ii) that the Borrower is the alter ego of the Guarantor
or the Guarantor is the alter ego of the Borrower.
(c) Without limitation on any of the other waivers of the Guarantor
hereunder, the Guarantor hereby specifically waives the benefit of the laws
of any applicable jurisdiction (and any and all rights arising out of),
which gives a guarantor or surety the power to require a creditor to
proceed against the principal, or to pursue any other remedy in the
creditor's power which the guarantor or surety can not pursue and which
would lighten the guarantor's or the surety's burden; and if the creditor
neglects to do so, exonerating the guarantor or the surety to the extent to
which it is thereby prejudiced.
SECTION 2.7. SUBROGATION, ETC. The Guarantor will not exercise any
-----------------
rights which it may acquire by way of subrogation under this Guaranty, by any
payment made hereunder or otherwise, until the prior indefeasible payment, in
full and in cash, of all Obligations. Any amount paid to the Guarantor on
account of any such subrogation rights prior to the payment in full of all
Obligations shall be held in trust for the benefit of the Lender and shall
immediately be paid to the Lender and credited and applied against the
Obligations, whether matured or unmatured, in accordance with the terms of the
Credit Agreement; provided, however, that if
--------- --------
(a) the Guarantor has made payment to the Lender of all or any part
of the Obligations, and
(b) all Obligations have been indefeasibly paid in full and all
Commitments have been permanently terminated,
the Lender agrees that, at the Guarantor's request, the Lender will execute and
deliver to the Guarantor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to
the Guarantor of an interest in the
Obligations resulting from such payment by the
-9-
Guarantor. In furtherance of the foregoing, for so long as any Obligations
remain outstanding, the Guarantor shall refrain from taking any action or
commencing any proceeding against the Borrower or any other Obligor (or its
successors or assigns, whether in connection with a bankruptcy proceeding or
otherwise) to recover any amounts in the respect of payments made under this
Guaranty to the Lender. Upon a default by the Borrower, the Lender, in its sole
discretion, without consent of the Guarantor, may elect to: (i) upon or after
giving notice to Guarantor, foreclose either judicially or nonjudicially against
any real or personal property security granted by Guarantor held from time to
time for the Loans, (ii) after giving notice to Guarantor, accept a transfer of
any such security granted by Guarantor in lieu of foreclosure, (iii) compromise
or adjust any of the Loans or any part of any Loan or make any other
accommodation with the Borrower or any guarantor or surety of any of the Loans
or (iv) exercise any other remedy against the Borrower or any security (other
than security granted by Guarantor). No such action by the Lender shall release
or limit the liability of the Guarantor, who shall remain liable under this
Guaranty after the action, even if the effect of the action is to deprive the
Guarantor of any subrogation rights, rights of indemnity, or other rights to
collect reimbursement from the Borrower for any sums paid to any of the Lender
Parties, whether contractual or arising by operation of applicable law or
otherwise. The Guarantor expressly agrees that under no circumstances shall it
be deemed to have any right, title, interest or claim in or to any real or
personal property to be held by the Lender or any third party after any
foreclosure or transfer in lieu of foreclosure of any security for the Loan,
except as provided in the Participation Agreement and the Subordination
Agreement, and the Lender acknowledges that, the Lender's interest in any such
property will remain subject to the terms and conditions of the Participation
Agreement and the Subordination Agreement.
SECTION 2.8. SUCCESSORS, TRANSFEREES AND ASSIGNS; TRANSFERS OF NOTES,
--------------------------------------------------------
ETC. This Guaranty shall:
----
(a) be binding upon the Guarantor, and its successors, transferees
and assigns; and
(b) inure to the benefit of and be enforceable by the Lender, each
holder of any Note and each of their respective successors, transferees and
assigns.
Without limiting the generality of clause (b), the Lender may assign or
otherwise transfer (in whole or in part) the Credit Agreement or Loan held by it
to any other Person or entity, and such other Person or entity shall thereupon
become vested with all rights and benefits in respect thereof granted to the
Lender under any Loan Document (including this
Guaranty) or otherwise.
-10-
SECTION 2.9. 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 THAT CERTAIN SUBORDINATION AGREEMENT WHICH PROVIDES, AMONG OTHER
THINGS, THAT THE RIGHTS AND THE LIENS ARE SUBJECT TO THE RIGHTS OF MARKWEST AND,
AS APPLICABLE, THE OTHER LENDERS (as defined in the Subordination Agreement) AS
SUCH RIGHTS ARISE UNDER THE PARTICIPATION AGREEMENT, AS MORE PARTICULARLY SET
FORTH THEREIN. THIS SECTION 2.9 SHALL BE DEEMED A COVENANT BINDING UPON AND
-----------
RUNNING WITH THE PROPERTY AND ASSETS SUBJECT TO THE LIENS. NO DEFAULT BY
GUARANTOR OR BORROWER (OR ANY OBLIGOR OR OTHER PARTY) SHALL IN ANY WAY LIMIT THE
EFFECTIVENESS OR ENFORCEABILITY OF THE SUBORDINATION AGREEMENT.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
-------------------------------
represents and warrants unto the Lender as set forth in this Article III.
SECTION 3.1.1. RELATIONSHIP OF THE PARTIES.
----------------------------
(a) The Guarantor and the Borrower are distinct and separate entities
and neither the Guarantor nor the Borrower is the alter ego of the other.
(b) The Lender has not made any representation or warranty of any
kind or nature whatsoever to the Guarantor regarding the creditworthiness
of the Borrower or the prospects of repayment from sources other than the
Borrower.
(c) This Guaranty is executed at the request of the Borrower.
(d) To the Guarantor's knowledge, based solely on information from
the Borrower and without having made any independent inquiry, the Borrower
is solvent.
(e) The Guarantor assumes full responsibility for keeping fully
informed with respect to the business, operation, condition and assets of
the Borrower and each other Obligor.
-11-
The Guarantor hereby agrees that the Lender shall not have any duty to
disclose or report to the Guarantor any information now or hereafter known to
the Lender relating to the business, operation, condition and assets of the
Borrower or any other Obligor. The Lender shall have no duty to inquire into the
authority or powers of the Borrower or any other Obligor, or any officer,
employee or agent of the Borrower or any other Obligor, with regard to any
Obligations, and all Obligations made or created in good faith reliance upon the
professed exercise of any such authority or powers shall be guaranteed
hereunder.
SECTION 3.1.2. ORGANIZATION, ETC. The Guarantor is a limited liability
------------------
company validly organized and existing and in good standing under the laws of
the jurisdiction of its formation, is duly qualified to do business and is in
good standing as a foreign limited liability company in each jurisdiction where
the nature of its business requires such qualification, and has full power and
authority and holds all requisite governmental licenses, permits and other
approvals to enter into and perform its obligations under this Guaranty and to
own and hold under lease its property and to conduct its business substantially
as currently conducted by it.
SECTION 3.1.3. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
------------------------------------------
delivery and performance by the Guarantor of this Guaranty are within the
Guarantor's powers, have been duly authorized by all necessary action, and do
not
(a) contravene the Guarantor's Articles of Organization and
Regulations;
(b) contravene or result in any violation of or default under any law
or governmental regulation or any contractual restriction, court decree or
order, in each case binding on or affecting the Guarantor or any of its
properties, businesses, assets or revenues;
(c) to the Guarantor's knowledge, without independent inquiry, result
in, or require the creation or imposition of, any lien on any of the
Guarantor's properties, businesses, assets or revenues.
SECTION 3.1.4. GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or
-------------------------------------
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person is required for the due execution,
delivery or performance by the Guarantor of this Guaranty except as set forth in
the Disclosure Schedule to the Participation Agreement.
SECTION 3.1.5. PUBLIC UTILITY HOLDING COMPANY ACT. The Guarantor is not a
-----------------------------------
"holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of
-12-
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 3.1.6. VALIDITY, ETC. This Guaranty constitutes the legal, valid
--------------
and binding obligations of the Guarantor enforceable in accordance with its
terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally.
SECTION 3.1.7. SOLVENCY. The Guarantor is not "insolvent", as such term
---------
is used and defined in the United States Bankruptcy Code, 11 U.S.C. symbol 101,
et seq.
-------
SECTION 3.1.8. REGULATIONS G, U AND X. The Guarantor is not engaged in
-----------------------
the business of extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Loans will be used for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation G, U or X.
Terms for which meanings are provided in F.R.S. Board Regulation G, U or X or
any regulations substituted therefor, as from time to time in effect, are used
in this Section with such meanings.
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. AFFIRMATIVE COVENANTS. The Guarantor covenants and agrees
----------------------
that, so long as any portion of the Obligations shall remain unpaid or
unperformed, the Guarantor will, unless the Lender shall otherwise consent in
writing, perform the obligations set forth in this Section.
SECTION 4.1.1. COMPLIANCE WITH LAWS, ETC. Guarantor will comply in all
--------------------------
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 when the
nature of its business requires such qualification; 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.
-13-
SECTION 4.2. NEGATIVE COVENANTS. The Guarantor covenants and agrees
-------------------
that, so long as any portion of the Obligations shall remain unpaid, the
Guarantor will not, without the prior written consent of the Lender, do anything
prohibited in this Section.
SECTION 4.2.1. The Guarantor will not enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its other Affiliates,
other those in existence as of the date hereof, unless such arrangement or
contract is fair and equitable to the Guarantor and is an arrangement or
contract, of the kind which would be entered into by a prudent Person in the
position of the Guarantor with a Person which is not one of its Affiliates.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. [NOT USED.]
SECTION 5.2. GUARANTY SECURED. The Guaranty and each of the Guarantor's
-----------------
other obligations under this Guaranty are secured by the Mortgage and the
Security Agreement. The Mortgage and the Security Agreement encumbers, with
respect to the Guarantor and Basin only, among other things, Energy Company's
Share in the Plant, and is expressly subject to the terms and conditions of the
Subordination Agreement.
SECTION 5.3. BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS; ASSIGNMENT
----------------------------------------------------------
OF GUARANTY. In addition to, and not in limitation of, Section 2.8, this
------------
Guaranty shall be binding upon the Guarantor and its successors, transferees and
assigns and shall inure to the benefit of and be enforceable by the Lender and
its successors and assigns, who shall likewise be subject to the limitations set
forth herein (to the full extent provided pursuant to Section 2.8); provided,
however, that the Guarantor may not delegate or assign any of its obligations
hereunder without the prior written consent of the Lender.
SECTION 5.4. AMENDMENTS, ETC. No amendment to or waiver of any
----------------
provision of this Guaranty, nor consent to any departure by the Guarantor
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 5.5. ADDRESSES FOR NOTICES TO THE GUARANTOR. All notices and
---------------------------------------
other communications hereunder to the Guarantor shall be in writing and shall be
hand delivered or sent by overnight courier, certified mail (return receipt
requested), or telecopy to him, addressed to it at the
address set forth below his signature
-14-
hereto or at such other address as shall be designated by the Guarantor in a
written notice to the Lender at the following address and complying as to
delivery with the terms of this Section 5.4.:
------------
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Energy and Minerals Dept.
0il and Gas Group
Facsimile: (312) 987-5614
Without limiting any other means by which a party may be able to provide that a
notice has been received by the other party, a notice shall be deemed to be duly
received (a) if sent by hand, on the date when left with a responsible person at
the address of the recipient; (b) if sent by certified mail or overnight
courier, on the date of receipt by a responsible person at the address of the
recipient; or (c) if sent by telecopy, upon receipt by the sender of an
acknowledgment or transmission report generated by the machine from which the
telecopy was sent indicating that the telecopy was sent in its entirety to the
recipient's telecopy number. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing and shall be hand delivered or sent by over night courier, certified
mail (return receipt requested) or by telecopy to such party at its address or
telecopy number set forth above or on the signature pages hereof or at such
other address or telecopy number as may be designated by such party in a notice
to the other parties. Without limiting any other means by which a party may be
able to provide that a notice has been received by the other party, a notice
shall be deemed to be duly received (a) if sent by hand, on the date when left
with a responsible person at the address of the recipient; (b) if sent by
certified mail or overnight courier, on the date of receipt by the sender of an
acknowledgment or transmission reports generated by the machine from which the
telefax was sent indicating that the telefax was sent in its entirety to the
recipient's telefax number.
SECTION 5.6. NO WAIVER; REMEDIES. In addition to, and not in limitation
--------------------
of, Section 2.3 and Section 2.6 no failure on the part of the Lender to
----------- -----------
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 5.7. SECTION CAPTIONS. Section captions used in this Guaranty
-----------------
are for convenience of reference only, and shall not affect the construction of
this Guaranty.
-15-
SECTION 5.8. SETOFF. In addition to, and not in limitation of, any
-------
rights of the Lender under applicable law, the Lender shall, upon the occurrence
of any Event of Default have the right to appropriate and apply to the payment
of the obligations of the Guarantor owing to it hereunder, whether or not then
due, and the Guarantor hereby grants to the Lender a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of the
Guarantor then or thereafter maintained with the Lender, to the extent and only
to the extent of Energy Company's Share.
SECTION 5.9. SEVERABILITY. Wherever possible each provision of this
-------------
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty 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 reminder of such
provision or the remaining provisions of this Guaranty.
SECTION 5.10. GOVERNING LAW. THIS GUARANTY SHALL BE G0VERNED BY
--------------
CONSTRUED IN ACCORDANCE WITH INTERNAL LAWS OF THE STATE OF ILLINOIS. FOR
PURPOSES OF ANY ACTION OR PROCEEDING INVOLVING THIS GUARANTY, THE GUARANTOR
HEREBY EXPRESSLY SUBMITS TO THE JURISDICTION OF ALL FEDERAL AND STATE COURTS
LOCATE IN THE STATE OF ILLINOIS.
SECTION 5.11. FORUM SELECTION AND CONSENT TO JURISDICTION. LITIGATION
---------------------------------------------
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATES (WHETHER OPAL OR WRITTEN) OR
ACTIONS OF THE LENDER OR THE GUARANTOR SHALL BE BROUGHT AND MAINTAINED IN THE
COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS. THE GUARANTOR HEREBY EXPRESSLY 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 SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE
GUARANTOR 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 GUARANTOR HEREBY EXPRESSLY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH HE MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO AB0VE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANT LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
-16-
PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF
THIS OBLIGATIONS UNDDER THIS GUARANTY.
SECTION 5.12. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY KNOWINGLY,
---------------------
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY OR ANY COURSE OF C0NDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE LENDER OR THE GUARANTOR.
THE GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND TEAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE LENDER ENTERING INTO THIS CREDIT AGREEMENT AND EACH OTHER
LOAN DOCUMENT.
SECTION 5.13. 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 Guarantor and/or Affiliates of
the Borrower or the Guarantor. This Guaranty secures the obligations of the
Borrower, the Guarantor 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
Guaranty.
-17-
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty 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
Address:
c/o MarkWest Michigan LLC
5613 DTC Parkway, Suite 400
Englewood, Colorado 80111
Telecopy: (303) 290-8769
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 | | 1 | | 5 |
| | 5/1/96 | | 5 |
| List all Filings |
↑Top
Filing Submission 0000950109-96-004834 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Fri., Apr. 19, 3:34:13.1am ET 