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
EX-10.17 — Purchase and Demolition Agreement
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PURCHASE AND DEMOLITION AGREEMENT CONSTRUCTION PREMISES
This Agreement. made this 15th day of March 1995, between COLUMBIA GAS
TRANSMISSION CORPORATION (Columbia) and MARKWEST HYDROCARBON PARTNERS, LTD.,
(Processor).
Columbia and Processor agree as set forth below:
WHEREAS, Processor is the owner of that certain 1.361 acre parcel of land
situated in Ceredo District, Wayne County, West Virginia, more particularly
described on Map H-1555 and designated as Tract No. 1 which, in all events,
includes all fixtures, improvements, equipment, supplies and materials located
thereon (Construction Premises); and,
WHEREAS, Processor and Columbia have entered into a contract for the design
and construction of a new processing plant (Processor's Plant) on the
Construction Premises; and
WHEREAS, Columbia owns and operates the Kenova Extraction Plant which
consists of processing, dehydration and extraction equipment, including but not
limited to, piping, tanks, machinery, valves, concrete foundations, buildings,
structural steel, spare parts, etc., (Kenova Plant); and,
WHEREAS, Columbia has sold and Processor has purchased, the Construction
Premises in accordance with the terms and provisions of this Agreement; and,
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WHEREAS, Processor will dismantle, demolish, remove and dispose of such
portion of the Kenova Plant located on the Construction Premises which will not
be retained by Processor for use as an operational portion of Processor's Plant
nor by Columbia in its continued operation of the Kenova Plant; and
WHEREAS, Columbia will perform an environmental assessment and remediation
of the Construction Premises.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein expressed, the parties hereby agree as follows:
1. Upon and subject to the terms and conditions set forth in this
Agreement, Columbia agrees to sell on an "AS IS, WHERE IS" basis to
Processor and Processor agrees to purchase and accept on an "AS IS,
WHERE IS" basis the Construction Premises as more fully described on
Exhibit A, attached hereto and made a part hereof, which, in all events,
includes all fixtures, improvements, equipment, supplies and materials
located thereon, as described above, and Columbia agrees to sell the
Construction Premises and Processor agrees to accept the Construction
Premises without (i) any express or implied warranty, merchant-ability
or fitness for a particular purpose and (ii) any and all other
warranties, express or implied, except as to a general warranty deed of
title as to the Construction Premises. Processor warrants that it has
expert knowledge of natural gas liquids, separation, extraction and
dehydration processes and facilities and that Processor is familiar with
the local, state and federal laws and regulations, including
environmental laws and regulations, which apply to
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and/or affect the Construction Premises and the future operations of Processor's
Plant. Columbia hereby provides to Processor, notice, the sufficiency of which
Processor accepts and acknowledges, that the Construction Premises being
transferred are subject to regulation under certain environmental laws of the
State of West Virginia and of the United States of America.
2. Processor agrees to pay to Columbia, as the full purchase price for
the Construction Premises, the sum of One Hundred Thousand Dollars ($100,000).
Processor has paid $5,571.95 to Columbia as consideration for the transfer of
Construction Premises. Upon execution of this Agreement, Processor agrees to pay
Columbia Four Thousand Four Hundred Twenty Eight Dollars and Five Cents
($4,428.05) in immediately available funds. Within 20 business days after
Columbia has notified Processor of receipt of final approval by all regulatory
agencies having jurisdiction, including but not limited to the Federal Energy
Regulatory Commission (FERC), such approval of the United States Bankruptcy
Court for the District of Delaware as may be necessary in Columbia's sole
judgment, such approval of any state or federal regulatory agency as may be
necessary and the completion of any and all remediation required under this
Agreement, Processor shall pay the remainder of the full purchase price, being
Ninety Thousand Dollars ($90,000).
3.1 Processor shall be responsible for all dismantlement, demolition,
removal and disposal of such portions of the Kenova Plant located on the
Construction Premises as are not a functioning portion of the Processor's Plant
or the Kenova Plant. Processor, or Processor's contractor, agrees to assume the
responsibility and cost for any and all necessary testing required to determine
whether any portion of the Kenova Plant for which Processor is responsible for
dismantlement, demolition, removal and disposal, can be legally disposed of in a
solid waste landfill permitted for industrial waste or sold for salvage. In the
event Processor or Processor's Contractor determines any portion of the Kenova
Plant cannot be legally disposed of in a solid waste landfill permitted for
industrial waste or sold for salvage, Columbia shall have the right to obtain
the opinion of a third party consultant, at
Columbia's sole cost and expense, to determine whether the material to be
removed
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can be legally disposed of in a solid waste landfill permitted for
industrial waste or sold for salvage. If the third party consultant determines
the material to be removed and/or disposed of can legally be disposed of in a
solid waste landfill permitted for industrial waste or sold for salvage,
Processor, and/or Processor's contractor, must remove and/or dispose of the
material at its sole cost and expense in accordance with all applicable laws or
regulations. In the event the third party consultant determines the material to
be removed and/or disposed of cannot be legally disposed of in a solid waste
landfill permitted for industrial waste or sold for salvage, Columbia and
Processor shall equally divide the cost of any additional expenses which may be
incurred for the removal and/or disposal of the material in accordance with all
applicable laws or regulations.
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3.2 Columbia agrees that it shall, prior to the commencement of
construction by Processor, remove all items from the Construction Premises which
are not then necessary to the operation of the Kenova Plant, and which removal
is not otherwise Processor's responsibility under the terms hereof,
specifically, Columbia shall remove all contents of the utility building and all
drums located on the Construction Premises.
4. Processor represents and warrants that any substance, equipment, or
other material, scrap and/or junk (including, without limitation, pipe,
chemicals, drums or other containers, soil, sand or other ground substances,
water or other liquids and any batteries or related equipment) that Processor
removes from Columbia's premises at any time (collectively, "Removed Materials")
will not be used, recycled, transported, salvaged or disposed of in a manner
that will result in (i) a violation of the Federal Resource Conservation and
Recovery Act or (ii) an actual or threatened release of a hazardous substance as
defined under the Federal Comprehensive Environmental Response, Compensation and
Liability Act, or (iii) a violation of any other environmental laws, rules or
regulations passed or promulgated by any federal, state or local jurisdiction or
governmental agency from time to time, except to the extent of changes in
applicable laws or regulations becoming effective after the removal unless said
laws or regulations are retroactive to the date of removal and Processor hereby
agrees to indemnify and hold harmless Columbia and Columbia's shareholders,
directors and employees from and against any liability arising out of or related
to the Processor's breach of this warranty. In addition, Processor agrees to
permit representatives of Columbia to inspect Processor's facilities and to
review Processor's procedures for storing, handling, reselling, recycling and/or
disposing of any Removed Materials and to provide Columbia with any
documentation reasonably requested in connection therewith. Processor
understands and covenants that upon Columbia's notice, Processor will
immediately cease and discontinue any procedure or other action and remediate
any condition related to the Removed Materials that Columbia reasonably
determines, in Columbia's sole discretion, create a material risk of present or
future liability to Columbia. Said notice shall specify the conditions, risks
and/or applicable laws which Columbia claims create the liability. Processor
acknowledges and
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agrees that any breach of its warranties and covenants hereunder will cause
irreparable harm and loss to Columbia and that, in addition to any other legal
or equitable remedy available to Columbia, such breach shall be the basis for
interlocutory equitable relief against Processor.
5. Processor shall obtain all requisite permits from governmental
authorities having jurisdiction over the Construction Premises as may be
necessary to perform its obligations under this Agreement. Processor agrees to
promptly apply for and diligently prosecute applications for such permits.
6. In conducting its activities hereunder, Processor shall (I) comply
with any and all applicable local, state and/or federal laws, regulations,
orders, and agreements, including, but not limited to, those laws, regulations,
orders, and
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agreements directed at protecting the environment, (ii) obtain, from the
governmental authorities having jurisdiction over the premises, such permits and
approvals as may be required to lawfully conduct Processor's activities,
including, without limitation, all permits and approvals required under local,
state and/or federal environmental laws and regulations, and (iii) timely
provide the governmental authorities having jurisdiction over the premises with
all notifications required under applicable local, state and/or federal laws,
regulations, orders and agreements.
7.a. Definitions: The following definitions shall apply for purposes of
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this Agreement:
i. "Environmental Law" shall mean each of the following
statutes and all regulations promulgated thereunder as well as any and all
comparable statutes and regulations of the State of West Virginia in the form in
which all statutes and regulations exist: the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. (S)(S)9601, et seq.; the
-- ---
Federal Water Pollution Control Act, 33 U.S.C. (S)1251, et seq.; the Clean
-- ---
Air Act, 42 U.S.C. (S)(S)7401 et seq.; the Resource Conservation and
-- ---
Recovery Act, 42 U.S.C.(S)(S)6901 et seq.; the Safe Drinking Water Act,
-- ---
42 U.S.C. (S)(S)30Of, et seq.;and the Toxic Substances Control
-- ---
Act, 15 U.S.C. (S)(S)2601, et seq.
-- ---
ii. "Governmental Agency" shall mean any federal, state or local
agency charged with or responsible for the administration of any Environmental
Law.
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b. Retention of Liability under Assessment and Remediation Plan:
-------------------------------------------------------------
Columbia shall conduct and complete an environmental assessment of the
Construction Premises, the results of which will be set forth in assessment
reports ("Assessment"), in a manner reasonably satisfactory to Processor and, in
any event shall include ground water testing and analysis. Columbia shall
furnish Processor with copies of the Assessment promptly upon its completion and
shall furnish Processor with copies of remediation plans, prepared in connection
with the cleanup and remediation of environmental conditions disclosed by the
Assessment, ("Remediation Plan") promptly following its preparation. Columbia
shall obtain approval of the Remediation Plan from the applicable governmental
authorities and shall furnish evidence of that approval to Processor.
As between Columbia and Processor, Columbia shall retain liability for
any claim against Processor under any Environmental Law, which arises from or
relates to those environmental conditions of the Construction Premises
identified in the Assessment and Remediation Plan which, when complete, will be
attached as Exhibit B of this Agreement and which are not remediated in
accordance with 7.c. below, except for claims based upon a change in applicable
law or regulations becoming effective after the Closing. With respect to all
areas remediated by Columbia in accordance with 7.c., Columbia shall retain no
liability for any environmental conditions discovered after the completion of
the remediation as set forth in 7.c. below.
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As between Columbia and Processor and as to the Construction Premises,
Processor assumes liability for any claim against Columbia under any applicable
Environmental Law including, without limitation, any claim by third parties
which arises from or relates to: (1) conditions or activities occurring after
the Closing; (2) conditions or activities which occurred prior to the Closing
which require remediation only under statutes or regulations which became
effective after Closing; and, (3) except for conditions identified in the
Assessment and Remediation Plan which will appear as Exhibit B, Processor's
activities on, and/or ownership of, Processor's Plant including, but not limited
to, any claim arising from or relating to conditions not identified in the
Assessment and Remediation Plan which will appear as Exhibit B of this
Agreement. Processor accepts and acknowledges that the facilities and operations
being transferred are subject to regulation under certain environmental laws of
the State of West Virginia and of the United States of America.
c. Remediation: For any condition of the Construction Premises for
-----------
which Columbia has agreed to assume liability under paragraph 7.b. above, being
those conditions identified in the Assessment and Remediation Plan, Columbia
shall remediate such condition, if necessary and required under any applicable
Environmental Law, to a standard of remediation and compliance under such
applicable Environmental Law, if any have been established, or to a standard of
remediation and compliance approved by any Governmental Agency having
jurisdiction under such Environmental Law, such standard being negotiated solely
between
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Columbia and such agency having jurisdiction and reasonably acceptable to
Processor. Such Construction Premises shall be considered remediated upon
receipt by Columbia of acceptance by the agencies having jurisdiction of the
remediation and of any closure reports filed by Columbia with such agencies,
copies of which will be provided to MarkWest.
d. Access: After the Closing, for the period required by Columbia to
------
identify or address Columbia's obligations under Paragraph 7.c. above, Processor
shall provide Columbia, its agents, representatives and contractors the
unrestrained right, at Columbia's discretion and upon prior notice to Processor,
to enter onto and have access to the Construction Premises in order to identify
or address any obligations imposed pursuant to Paragraph 7.c. of this Agreement.
In providing such access, Processor shall not interfere with, delay and/or
prohibit Columbia, its agents, representatives and contractors from fulfilling
Columbia's obligations under Paragraph 7.c. above.
e. Indemnity During Access: Should Columbia, its agents,
------------------------
representatives or contractors enter upon the Construction Premises in order to
identify or address any obligations imposed upon Columbia by Paragraph 7.c. of
this Agreement, Columbia shall indemnify Processor and hold Processor harmless
from any and all claims arising from the actions of Columbia or Columbia's
employees or agents on the subject property or failure to accomplish the
obligations imposed on Columbia by Paragraph 7.c. of this Agreement.
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f. Mitigation: Where necessary to prevent damage to human health, the
-----------
environment and personal property, Processor shall undertake action to mitigate,
to the best of Processor's ability and in accordance with the best engineering
practices, any condition of the Construction Premises for which Columbia may be
liable pursuant to Paragraph 7.b. above: Provided, that Columbia shall reimburse
Processor for Processor's reasonable expenses incurred in mitigating conditions
for which Columbia has retained remedial obligations under Paragraph 7.c. above.
8.1 From and after the date of this Agreement until Closing, Columbia has
and shall continue to afford to Processor and its representatives, during its
normal business hours, reasonable access to the facilities and any non-
privileged business records, files, maps, existing surveys, if any, describing
physical characteristics, subsurface characteristics, environmental surveys of
the Construction Premises and all adjacent properties occupied by Columbia,
zoning requirements and utility locations, the legal description of the
Construction Premises, equipment data sheets and all other non-privileged
records of Columbia connected with the Construction Premises which are necessary
for Processor to conduct a due diligence review in accordance with the practices
of prudent purchasers in similar transactions. Processor shall have the right to
enter upon the Construction Premises for purposes of examining and inspecting
the Construction premises and upon Closing shall acknowledge that Processor has
inspected and is familiar with the condition of the property. Further, upon
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Closing, Processor shall assume all liability for any damages caused by the
condition of the property except as herein stated. Any documents provided to
Processor hereunder shall be confidential and Processor shall use its best
efforts, to the extent permitted by law, to preserve the confidentiality of such
documents in any dispute with third parties. Notwithstanding that any
information shall be provided in good faith, Columbia expressly disclaims any
warranty as to the accuracy or reliability of the information provided.
Processor acknowledges and agrees that Columbia in no way controls the
Processor's interpretation of any information provided.
8.2 Processor covenants and agrees that it will rely solely on its own
due-diligence investigation concerning the environmental condition and fitness
of the property and its improvements for the construction and operation of a
natural gas liquids extraction facility and not upon any representation,
warranty or statement of or on behalf of TCO by its officers, employees, agents,
advisors or representatives, except for Processor's reliance upon the
obligations undertaken by Columbia in Paragraph 7 hereof and except that
Columbia represents that it has no knowledge of environmental conditions in
violation of applicable laws or regulations, currently in effect, other than
those described in the Assessment, that would effect the Construction Premises.
9. All activities on the Construction Premises which Processor does not
perform with its own employees and resources shall be performed by its
Contractors or by its Subcontractors.
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10. A Subcontractor means a person or entity who has a direct contract with
Processor's Contractor to perform work in connection with this Agreement.
11. No direct contractual relationship shall exist between Columbia and
Processor's Contractors or Subcontractors during the performance of any
activities on the Construction Premises. Processor shall be responsible for the
management of its Contractors and Subcontractors in the performance of its
activities.
12. During the term of this Agreement, Processor agrees that it shall carry
and maintain, at its own expense, the kinds of insurance and the minimum amounts
of coverage set forth below:
12.1 Basic Insurance. During the terms of this Agreement, Processor, shall
----------------
provide, at its own cost and expense, insurance of the kinds and in the amounts
necessary to cover all loss or liability for damages on account of bodily
injury, including death resulting therefrom, and damage to or destruction of
property caused by or arising out of any and all operations carried on or any
and all obligations performed under this Agreement. At a minimum, Processor
shall provide insurance of the kinds and in the amounts specified in the
following schedule.
(a) Workers' Compensation: Coverage shall include the following:
----------------------
(i) Workers' Compensation - Statutory coverage applicable in each
State where work is to be performed, including coverage for
occupational disease, if and as required.
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(ii) Employer's Liability - minimum limit of $1,000,000 per
occurrence. If coverage is obtained from a state fund (Ohio or
West Virginia), Employer's Liability coverage may not be
available. In such cases, Processor will purchase "Stop Gap"
coverage, with minimum limits of $1,000,000 per occurrence, from
a commercial insurer.
(iii) All States Endorsement (or equivalent). If coverage is obtained
from a state fund (Ohio or West Virginia) an All States
endorsement may not be available. In such cases, Processor will
obtain Workers' Compensation insurance in every state in which
operations may be conducted or work may be performed under the
terms of this Agreement.
(iv) U. S. Longshore and Harbor Workers' Compensation Act coverage,
U. S. Defense Bases Act Coverage, Outer Continental Shelf Land
Act coverage, when applicable: statutory limits.
(v) Jones Act coverage when applicable. Minimum limits required:
$1,000,000 per accident.
(b) Commercial General Liability or Comprehensive General Liability
---------------------------------------------------------------
Insurance: Policy to include Blanket Contractual and Broad Form Liability
----------
endorsements, or their equivalents, Completed Operations Coverage and, when
applicable, Products Coverage. The Contractual Liability section must
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specifically cover Processor's obligations under the indemnity provisions of
this agreement.
Minimum limits required:
Bodily Injury/Property Damage: $1,000,000 per occurrence,
Combined Single Limit. Products/Completed Operations: $1,000,000
per occurrence, Combined Single Limit. Personal Injury:
$1,000,000 per occurrence.
When coverage obtained in accordance with this paragraph is written on a "Claims
Made" or "Claims First Made:" form, Completed Operations coverage must be
specifically endorsed to provide that it will respond to claims made for at
least 24 months after completion of the work.
The Fellow Employee and Explosion, Collapse and Underground Exclusions must
be deleted.
(c) Automobile Liability: Coverage shall include all owned, non-owned,
---------------------
leased or hired vehicles.
Minimum Limits required:
Bodily Injury/Property Damage - $1,000,000 per occurrence,
Combined Single Limit. Processor warrants that it is in full
compliance with any "No Fault" provision of any state in which it
operates motor vehicles.
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(d) Umbrella Liability Insurance: Coverage shall be excess of, and at least
-----------------------------
as broad as, the primary coverages listed in paragraphs a, b and c of this
Section.
Minimum Limits required:
Bodily Injury/Property Damage - $10,000,000 per occurrence,
Combined Single Limit.
(e) Aircraft Liability: If any operations require the use of helicopters or
-------------------
fixed wing aircraft, Processor will, in addition to all other insurance
coverage required in this Section, maintain and shall require any Subcontractor
utilizing rotary or fixed wing aircraft to maintain aircraft liability insurance
with minimum limits of $10,000,000 per occurrence for bodily injury and property
damage.
(f) Marine Insurance: If any operations are to be conducted on navigable
-----------------
waters or on any pier, wharf, or other structure adjoining such waters,
Processor shall, in addition to all other insurance required in this Section,
maintain and shall require any Subcontractor engaged in such operations to
maintain, the following additional coverage, as appropriate:
(i) HULL/PROTECTION & INDEMNITY - coverage to be provided for each
vessel used in any operations conducted under the terms of this
agreement. Minimum limits required: Hull - Current value of the
vessel.
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Protection & Indemnity - $1,000,000 per vessel per occurrence for
bodily injury and property damage.
(ii) Marine Employers Liability - minimum limits required: $1,000,000
per accident.
(g) Environmental Impairment Liability (or Equivalent): Policy to include
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coverage for all loss and liability resulting from Processor's activities.
Minimum Limits required:
BODILY INJURY/PROPERTY DAMAGE - $10,000,000 per occurrence,
Combined Single Limit.
12.2 All insurance policies required in this Agreement will be written by
insurance companies reasonably acceptable to Columbia, will be primary with
respect to any insurance maintained by Columbia and will be endorsed to provide
at least 30 days advance notification to Columbia of any cancellation, non-
renewal or material change in coverage and cancellation for non-payment of
premium will require 30 days advance notice to Columbia. Insurance policies
required by paragraphs b, c, d, e, f and g will name Columbia as an additional
insured. All insurance policies required by this Section will contain a waiver
of subrogation as against Columbia. Some of the foregoing policies may be
obtained and maintained by Processor's Contractor, which policies shall name
Columbia and MarkWest as additional insureds and provide Waiver of Subrogation
against both parties.
17
12.3 Processor shall furnish, on behalf of itself and its Contractor, prior
to Processor conducting any activity on the Construction Premises, copies of all
insurance policies intended to meet the requirements of this Section. Properly
executed Certificates of Insurance may be substituted for insurance policies
provided that such Certificates contain positive statements of compliance with
all the terms of this Agreement which apply to the type of insurance represented
by the Certificate. Insurance Policies whose terms expire during the term of
this Agreement will be renewed or replaced with no gaps in coverage, and
evidence of such renewal or replacement will be provided to Columbia under the
same conditions as prescribed above.
13.1 In addition to any other indemnification provided for by Processor
herein, including Processor's environmental indemnification contained in
Paragraph 7 hereof, Processor shall indemnify and hold harmless Columbia from
and against any and all loss, damage, and liability and from any and all claims
for damages on account of or by reason of bodily injury, including death, which
may be sustained or claimed to be sustained by any person, including the
employees of Processor and of any Contractor or Subcontractor of Processor, and
from and against any and all damages to property, including loss of use, and
including property of Columbia, caused by or arising out of or claimed to have
been caused by or to have arisen out of an act or omission of Processor or its
agents, employees, Contractors or Subcontractors in connection with the
performance of this Agreement whether or not insured against and Processor shall
at its own cost
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and expense defend any claims, suits, actions, or proceedings, whether
groundless or not, which may be commenced against Columbia by reason thereof or
in connection therewith, and Processor shall pay any and all judgments which may
be recovered in any such actions, claims, proceedings or suits, and defray any
and all expenses, including costs and attorney's fees, which may be incurred in
or by reason of such actions, claims, proceedings, or suits. including
environmental impairment; provided, however, that the foregoing indemnification
will not cover loss, damage or liability arising from the sole negligence or
wilful misconduct of Columbia, its agents and employees. Notwithstanding the
foregoing, in the event of such actions, claims, proceedings or suits, Columbia
shall be entitled, if it so elects, to representation by attorneys of its own
selection at Columbia's sole cost, including attorneys employed by Columbia. The
obtaining by Processor of a release or discharge, running to Processor or
Columbia or either or both of them, from a property owner for damages resulting
from the performance of this Agreement, including without limitation, any phase
of dismantlement, demolition, removal or disposal, shall not diminish nor affect
in any way the rights of Columbia and the obligations of Processor as set forth
in this Section 14. To the extent permitted by law, Processor expressly waives
the benefit, for itself and all contractors and subcontractors, insofar as the
indemnification of Columbia is concerned, of the provisions of any applicable
workers' compensation law limiting the tort or other liability of an employer on
account of injuries to the employer's employees.
19
13.2 Columbia shall indemnify and hold harmless Processor from and against
any and all loss, damage and liability, and from any injury, including death,
which may be sustained or claimed to be sustained by any person, including the
employees of Columbia and of any Contractor or Subcontractor of Columbia and,
from and against, any and all damages to property, including loss of use, and
including property of Processor, caused by or arising out of or claimed to have
been caused by or to have arisen out of the sole negligence of Columbia or its
agents, employees or subcontractors.
14.1 An Event of Default shall be deemed to have occurred under this
contract if:
(a) Processor fails to make due and punctual payments of amounts
required to lenders for all loans associated with construction or ownership of
Processor's Plant;
(b) Processor fails to make due and punctual payments of all premiums
necessary to assure the coverages required under the terms and conditions of
this Agreement to the insurance companies responsible for the respective
policies;
(c) Processor's Plant, or any part thereof, shall be taken upon
execution or by other process of law directed against Processor; or
(d) Either party shall fail to perform any of its other covenants,
agreements or terms hereof, and such nonperformance shall continue for a period
of twenty (20) days following notice from the other party.
20
14.2 Processor acknowledges and agrees that an Event of Default by
Processor, as defined above, will cause irreparable harm and loss to Columbia
and that, in addition to any other legal or equitable remedy available to
Columbia, such Event of Default shall be the basis for interlocutory equitable
relief against Processor. Such interlocutory equitable relief shall be in a form
which will allow Columbia, or any entity chosen by Columbia, to complete the
obligations of Processor herein at the sole risk, liability, cost and expense of
Processor.
14.3 In the event of a default by a party (Defaulting Party), the other
party (Non-Defaulting Party), at its sole discretion, may satisfy any and all
obligations of the Defaulting Party connected directly with this Agreement,
including but not limited to any default of Defaulting Party under this
Agreement. Defaulting Party agrees to reimburse Non-Defaulting Party any amount
paid together with attorneys fees and annual interest at the highest rate
allowed by law.
15. Neither Processor nor Columbia shall be held responsible for any losses
resulting if the fulfillment of any terms or provisions shall be delayed or
prevented wholly or in part by compliance with any law, order or regulation,
whether valid or invalid, of any governmental authority or of any person
purporting to act therefor or by any act or condition not within the reasonable
control of the party whose performance is interfered with and which by the
exercise of reasonable diligence said party is unable to prevent, including but
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not limited to revolutions or other disorders, wars, acts of enemies, embargoes
or other import or export restrictions, strikes, lockouts or other industrial
disturbances, fires, storms, floods, acts of God or explosions. The settlement
of strikes or lockouts shall be entirely within the discretion of the party
having the difficulty and such party shall not be required to make settlement of
strikes or lockouts by acceding to the demands of the opposing party when such
course is inadvisable in the discretion of the party having the difficulty. If
either party is unable to fulfill the terms and conditions of this agreement by
reason of any such cause as provided in this Article, the party rendered unable
to perform hereunder shall give the other party notice in writing as soon as
reasonably possible after the occurrence of the cause relied on, setting forth
the full particulars in connection therewith, and that parties' obligations
shall be suspended during the continuance of any inability so caused but for no
longer period, and such cause, so far as possible, shall be remedied with all
reasonable dispatch. This agreement shall not be terminated by reason of any
such cause set out above but shall remain in full force and effect and this
Agreement shall not be extended regardless of any such curtailment or cessation.
16. The waiver by either party of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of any subsequent
term, covenant, or condition, whether similar or dissimilar to the term,
covenant, or condition which was waived.
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17. Notices required or permitted hereunder shall be made to the parties at
the following addresses:
MarkWest Hydrocarbon Partners, Ltd.
5613 DTC Parkway, Suite 400
Englewood, CO 80111
Attention Of Vice President,
Finance
Columbia Gas Transmission Corporation
P.O. Box 1273
Charleston, WV 25325-1273
Attention of Vice President,
Volume Management
18. Processor agrees that Columbia or its Agents, at all reasonable times,
shall have the right to examine or audit the books, accounts and records of
Processor to verify compliance with the terms and conditions of this Agreement.
19. This Agreement shall be governed in accordance with the laws of the
State of West Virginia.
20. If any sections or provisions of this Agreement shall be held by any
court of competent jurisdiction to be illegal, void or unenforceable, such
sections or provisions shall survive to the extent enforceable and allowed by
law, but the illegality or unenforceability of such sections or provisions shall
have no effect upon and shall not impair the enforceability of any other
sections or provisions of this Agreement.
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21. With the exception of the obligations contained in the indemnification
provisions herein, this Agreement terminates at the completion of each parties
obligations hereunder.
22. Closing is herein defined as the mutually agreeable time and date of
the delivery of a general warranty deed by Columbia to Processor.
23. It is mutually agreed that in the performance of any and all actions
necessary to perform the duties under the terms and conditions of this
Agreement, Processor is an independent contractor, and nothing in this Contract
shall be construed as creating the relationship of principal and agent, or
employer or employee, between Columbia and/or Processor or Processor's agents or
employees. Processor shall have no authority to hire any persons on behalf of
Columbia, and any and all persons whom it may employ shall be deemed to be
solely the employees of Processor. Processor shall have control and management
of the work, the selection of employees and the fixing of their hours of labor,
and no right is reserved to Columbia to direct or control the manner in which
the work is performed, as distinguished from the result to be accomplished.
Nothing herein contained shall be construed to authorize Processor to incur any
debt, liability or obligation of any nature for or on behalf of Columbia, or for
Processor to cause any lien or other encumbrance to be placed on Columbia's
property, and Processor shall immediately remove, and indemnify Columbia
against, all costs incurred in connection with, any such debt, liability,
obligation, lien or other encumbrance, if any arises in contravention hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year last above written.
COLUMBIA GAS TRANSMISSION CORPORATION
By: /s/ Peter J. Kinsella
Peter J. Kinsella
Title: Vice President, Volume Management
MARKWEST HYDROCARBON PARTNERS, LTD.
By: /s/ Patrick W. Murray
Title: Vice President, Finance
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