UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 7, 2013
MARKWEST ENERGY PARTNERS, L.P.
(Exact name of registrant as specified in its charter)
Delaware |
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001-31239 |
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27-0005456 |
(State or other jurisdiction of incorporation or organization) |
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(Commission File Number) |
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(I.R.S. Employer Identification Number) |
1515 Arapahoe Street, Tower 1, Suite 1600, Denver CO 80202
(Address of principal executive offices)
Registrants telephone number, including area code: 303-925-9200
Not Applicable.
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written Communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-Commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-Commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01. Entry into a Material Agreement.
Underwriting Agreement
On January 7, 2013, MarkWest Energy Partners, L.P. (the Partnership) entered into an Underwriting Agreement (the Underwriting Agreement), by and among the Partnership, its wholly-owned subsidiary MarkWest Energy Finance Corporation (Finance Corp. and, together with the Partnership, the Issuers), certain wholly-owned subsidiaries of the Partnership named therein (the Subsidiary Guarantors and, together with the Issuers, the MarkWest Entities) and Barclays Capital Inc., as the representative of the several underwriters, with respect to the issuance and sale in an underwritten public offering (the Offering) of $1,000,000,000 in aggregate principal amount of the Issuers 4.5% senior unsecured notes due 2023 (the Notes).
The Underwriting Agreement contains customary representations, warranties and agreements by the MarkWest Entities to the Underwriters for certain liabilities under the Securities Act of 1933, as amended (the Securities Act).
The foregoing description is a brief summary of the Underwriting Agreement and does not purport to be a complete statement of the parties rights and obligations under the Underwriting Agreement. The foregoing description is qualified in its entirety by reference to the full text of the Underwriting Agreement, a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated by reference herein.
Tenth Supplemental Indenture for 4.5% Senior Notes due 2023
On January 10, 2013, the Issuers completed the public offering of the Notes, which are fully and unconditionally guaranteed on a senior unsecured basis by the Subsidiary Guarantors, which also guarantee all of the Issuers outstanding series of senior notes.
The terms of the Notes are governed by the Indenture, dated as of November 2, 2010 (the Indenture), by and among the Issuers, the Subsidiary Guarantors named therein and Wells Fargo Bank, National Association, as trustee (the Trustee), as amended and supplemented by the Tenth Supplemental Indenture, dated as of January 10, 2013 (the Tenth Supplemental Indenture). The Notes will mature on July 15, 2023. Interest is payable each January 15 and July 15, commencing July 15, 2013, and will accrue from January 10, 2013. Prior to April 15, 2023, the Issuers may redeem, at their option, all or part of the Notes at any time at the redemption prices specified in the Tenth Supplemental Indenture. On or after April 15, 2023, the Issuers may redeem, at their option, all or part of the Notes at any time, at a price of 100% of the principal amount of the Notes, plus any accrued but unpaid interest to the date of redemption. If the Partnership or any of its Restricted Subsidiaries (as defined in the Tenth Supplemental Indenture) sell certain assets and do not reinvest the proceeds to repay senior indebtedness or if there occur certain changes in control, the Partnership must offer to repurchase the Notes. The Notes are unsecured, rank equally with all of each Issuers existing and future senior debt and rank senior to all of each Issuers future subordinated debt. The Notes are structurally subordinated to all of each Issuers existing and future secured debt to the extent of the value of collateral securing such debt.
The Tenth Supplemental Indenture restricts the Partnerships ability and the ability of certain of its subsidiaries to (i) borrow money; (ii) pay distributions or dividends on equity or purchase, redeem or otherwise acquire equity; (iii) make investments; (iv) use assets as collateral in other transactions; (v) engage in sale and leaseback transactions; (vi) sell certain assets or merge with or into other companies; (vii) engage in transactions with affiliates; and (viii) engage in unrelated businesses. These covenants are subject to a number of important exceptions and qualifications. If at any time the Notes are rated investment grade by either Moodys Investors Service, Inc. or Standard & Poors Rating Services and no Default (as defined in the Tenth Supplemental Indenture) has occurred and is continuing, many of such covenants will terminate and the Partnership and its subsidiaries will cease to be subject to such covenants.
The Tenth Supplemental Indenture provides that each of the following is an Event of Default: (i) default for 30 days in the payment when due of interest on the Notes; (ii) default in payment when due of the principal of, or premium, if any, on the Notes; (iii) failure by the Partnership to comply with certain covenants relating to merger, consolidation or sale of assets; (iv) failure by the Partnership to comply for 90 days after notice with the provisions of the Tenth Supplemental Indenture relating to periodic reports of the Partnership as required by the Securities Exchange Act of 1934, as amended (the Exchange Act); (v) failure by the Partnership to comply for 30 days after notice with provisions of the Tenth Supplemental Indenture relating to change of control or asset sales or certain covenants described in the Tenth Supplemental Indenture (provided that notice need not be given and an Event of Default shall occur, 30 days after any breach of the covenants relating to restricted payments or incurrence of indebtedness and issuance of disqualified equity) in each case other than a failure to purchase Notes which will constitute an Event of Default under (ii) above and
other than a failure to comply with certain covenants relating to merger, consolidation or sale of assets which will constitute an Event of Default under (iii) above and other than a failure to comply with certain provisions relating to periodic reports by the Partnership which will constitute an Event of Default under (iv) above; (vi) failure by the Partnership to comply for 60 days after notice with any of the other agreements in the Tenth Supplemental Indenture; (vii) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by either Issuer or any of the Partnerships Restricted Subsidiaries (or the payment of which is guaranteed by the Partnership or any of its Restricted Subsidiaries), if that default: (a) is caused by a failure to pay principal of, or interest or premium, if any, on such indebtedness prior to the expiration of the grace period provided in such indebtedness on the date of such default (a Payment Default); or (b) results in the acceleration of such indebtedness prior to its stated maturity, and, in each case, the principal amount of any such indebtedness, together with the principal amount of any other such indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $20.0 million or more; (viii) failure by either Issuer or any of the Partnerships Restricted Subsidiaries to pay final judgments aggregating in excess of $20.0 million, which judgments are not paid, discharged or stayed for a period of 60 days; (ix) except as permitted by the Tenth Supplemental Indenture, any subsidiary guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Subsidiary Guarantor, or any person acting on behalf of any Subsidiary Guarantor, shall deny or disaffirm its obligations under its guarantee of the Notes; and (x) certain events of bankruptcy or insolvency described in the Tenth Supplemental Indenture with respect to the Issuers or any of the Partnerships significant subsidiaries or any group of Restricted Subsidiaries that, taken as a whole, would constitute a significant subsidiary. In the case of an Event of Default arising from certain events of bankruptcy or insolvency with respect to either Issuer, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately.
Other material terms of the Notes, the Indenture and the Tenth Supplemental Indenture are described in the prospectus supplement, dated January 7, 2013, as filed by the Issuers and the Subsidiary Guarantors with the Securities and Exchange Commission (the Commission) on January 8, 2013. The foregoing description of the Tenth Supplemental Indenture is qualified in its entirety by reference to such Tenth Supplemental Indenture, a copy of which is filed herewith as Exhibit 4.1, and is incorporated herein by reference.
The Issuers and the Subsidiary Guarantors registered the sale of the Notes and the underlying guarantees with the Commission pursuant to a Registration Statement on Form S-3 (File No. 333-184605) filed on October 26, 2012, as amended by Post-Effective Amendment No. 1 to Form S-3, filed on January 7, 2013.
ITEM 7.01. Regulation FD Disclosure
On January 7, 2013, the Partnership issued a press release announcing the Offering and a press release announcing the pricing of the Offering. On January 10, 2013, the Partnership issued a press release announcing the completion of the Offering. Copies of the press releases are furnished as Exhibit 99.1, Exhibit 99.2 and Exhibit 99.3, respectively, hereto.
The information contained in this Item 7.01 shall not be deemed filed for purposes of Section 18 of the Exchange Act or incorporated by reference in any filing under the Securities Act or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
ITEM 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. |
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Description of Exhibit |
1.1 |
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Underwriting Agreement, dated as of January 7, 2013, by and among MarkWest Energy Partners, L.P., MarkWest Energy Finance Corporation, the Subsidiary Guarantors named therein and Barclays Capital Inc., as the representative of the several underwriters. |
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4.1 |
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Tenth Supplemental Indenture, dated as of January 10, 2013, by and among MarkWest Energy Partners, L.P., MarkWest Energy Finance Corporation, the Subsidiary Guarantors named therein and Wells Fargo Bank, National Association, as trustee. |
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4.2 |
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Form of 4.5% Senior Notes due 2023 (included in Exhibit 4.1). |
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5.1 |
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Opinion of Vinson & Elkins L.L.P. |
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23.1 |
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Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1). |
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99.1 |
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Press release dated January 7, 2013 announcing the offering of the notes. |
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99.2 |
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Press release dated January 7, 2013, announcing the pricing of the notes. |
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99.3 |
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Press release dated January 10, 2013, announcing the completion of the offering of the notes. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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MARKWEST ENERGY PARTNERS, L.P. | |
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(Registrant) | |
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By: |
MarkWest Energy GP, L.L.C., |
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Its General Partner |
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Date: January 10, 2013 |
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By: |
/s/ NANCY K. BUESE |
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Nancy K. Buese |
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Senior Vice President and Chief Financial Officer |
Exhibit 1.1
Execution Version
$1,000,000,000
MARKWEST ENERGY PARTNERS, L.P.
MARKWEST ENERGY FINANCE CORPORATION
4.5% Senior Notes due 2023
Underwriting Agreement
January 7, 2013
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10119
As Representative of the several Underwriters
listed on Schedule III hereto
Ladies and Gentlemen:
MarkWest Energy Partners, L.P., a Delaware limited partnership (the Partnership), and MarkWest Energy Finance Corporation, a Delaware corporation (Finance Corp and, together with the Partnership, the Issuers), propose to issue and sell to the several underwriters listed in Schedule III hereto (the Underwriters), for whom you are acting as representative (the Representative), $1,000,000,000 aggregate principal amount of their 4.5% Senior Notes due 2023 (the Notes). The Notes will be issued pursuant to an Indenture (the Base Indenture) dated as of November 2, 2010 among the Issuers, the Guarantors (as defined below) and Wells Fargo Bank, National Association, as trustee (the Trustee), and will be guaranteed on an unsecured senior basis by each of the Guarantors (the Guarantees and, together with the Notes, the Securities). The term Indenture, as used herein includes the Base Indenture and the Tenth Supplemental Indenture (the Tenth Supplemental Indenture), to be dated as of the Closing Date (as defined below), establishing the forms and terms of the Securities.
The Partnership owns all of the outstanding capital stock of MarkWest Hydrocarbon, Inc., a Delaware corporation (MarkWest Hydrocarbon), and a 1% limited liability company interest in MarkWest Energy GP, L.L.C., a Delaware limited liability company (MarkWest Energy GP), which serves as the sole general partner of the Partnership. MarkWest Hydrocarbon owns the remaining outstanding limited liability company interests in MarkWest Energy GP. The Partnership conducts its business through MarkWest Energy Operating Company, L.L.C., a Delaware limited liability company (the Operating Company), as well as through the other entities identified on Exhibit 21.1 of the Partnerships annual report on Form 10-K for the year ended December 31, 2011, Ohio Gathering Company, L.L.C., a Delaware limited liability company, MarkWest Liberty Bluestone, L.L.C., a Delaware limited liability company (Bluestone LLC), MarkWest Mariner Pipeline, L.L.C., a Delaware limited liability company, MarkWest Ohio Fractionation Company, L.L.C., a Delaware limited liability company, Mule Tracts, L.L.C., a Delaware limited liability company, MarkWest Liberty Ethane
Pipeline, L.L.C., a Delaware limited liability company, MarkWest Lufkin Pipeline, L.L.C., a Texas limited liability company (Lufkin LLC), and MarkWest Texas LPG Pipeline, L.L.C., a Texas limited liability company (Texas LPG LLC) (the Operating Company and such other entities are collectively referred to herein as the Subsidiaries).
MarkWest Hydrocarbon, MarkWest Energy GP, Mason Pipeline Limited Liability Company, a Michigan limited liability company (Mason LLC), the Operating Company, MarkWest Blackhawk, L.L.C., a Texas limited liability company (Blackhawk LLC), MarkWest Energy Appalachia, L.L.C., a Delaware limited liability company (Appalachia LLC), MarkWest Energy East Texas Gas Company, L.L.C., a Delaware limited liability company (East Texas LLC), MarkWest Gas Marketing, L.L.C., a Texas limited liability company (Gas Marketing LLC), MarkWest Gas Services, L.L.C., a Texas limited liability company (Gas Services LLC), MarkWest Javelina Company, L.L.C., a Texas limited liability company (Javelina Company LLC), MarkWest Javelina Pipeline Company, L.L.C., a Texas limited liability company (Javelina Pipeline LLC), MarkWest Liberty Gas Gathering, L.L.C., a Delaware limited liability company (Liberty LLC), Lufkin LLC, MarkWest Marketing, L.L.C., a Delaware limited liability company (MarkWest Marketing LLC), MarkWest McAlester, L.L.C., an Oklahoma limited liability company (McAlester LLC), MarkWest Michigan Pipeline Company, L.L.C., a Michigan limited liability company (Michigan Pipeline LLC), MarkWest Mountaineer Pipeline Company, L.L.C., a Delaware limited liability company (Mountaineer LLC), MarkWest New Mexico, L.L.C., a Texas limited liability company (New Mexico LLC), MarkWest Oklahoma Gas Company, L.L.C., an Oklahoma limited liability company (Oklahoma LLC), MarkWest Pinnacle, L.L.C., a Texas limited liability company (Pinnacle LLC), MarkWest Pipeline Company, L.L.C., a Texas limited liability company (Pipeline LLC), MarkWest PNG Utility, L.L.C., a Texas limited liability company (PNG Utility LLC), MarkWest Power Tex, L.L.C., a Texas limited liability company (Power Tex LLC), MarkWest Ranger Pipeline Company, L.L.C., a Delaware limited liability company (Ranger LLC), Texas LPG LLC, MarkWest Texas PNG Utility, L.L.C., a Texas limited liability company (Texas PNG LLC), MarkWest Utica Operating Company, L.L.C., a Delaware limited liability company (MarkWest Utica LLC), Matrex, L.L.C., a Michigan limited liability company (Matrex LLC) and West Shore Processing Company, L.L.C., a Michigan limited liability company (West Shore LLC), are collectively referred to as the Guarantors. The Issuers and the Guarantors are referred to collectively as the MarkWest Entities.
1. Representations and Warranties of the MarkWest Entities. The MarkWest Entities jointly and severally represent and warrant to and agree with the Underwriters that:
(a) Registration Statement, Preliminary Prospectus and Prospectus. A Registration Statement on Form S-3 (File No. 333-184605), relating to securities to be issued from time to time by the Issuers, including the Notes (as amended as of the Effective Date, including any Preliminary Prospectus or the Prospectus and all exhibits thereto, the Registration Statement) (i) has been prepared by the Issuers in conformity in all material respects with the requirements of the Securities Act of 1933, as amended (the Securities Act), and the rules and regulations (the Rules and Regulations) of the Securities and Exchange Commission (the Commission) thereunder; (ii) has been filed with the Commission under the Securities Act; and (iii) is effective under the
Securities Act. Copies of the Registration Statement and any amendment thereto have been delivered by the Issuers to the Representative. As used in this Agreement:
(i) Applicable Time means 3:00 p.m., New York City time, on January 7, 2013, which the Underwriters have informed the Issuers and their counsel is a time prior to the first sale of the Securities;
(ii) Effective Date means any date as of which any part of the Registration Statement became, or is deemed to have become, effective under the Securities Act in accordance with the Rules and Regulations;
(iii) Issuer Free Writing Prospectus means each free writing prospectus (as defined in Rule 405 of the Rules and Regulations) prepared by or on behalf of the Issuers or used or referred to by the Issuers in connection with the offering of the Securities;
(iv) Preliminary Prospectus means any preliminary prospectus relating to the Securities included in the Registration Statement or filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, including any preliminary prospectus supplement thereto relating to the Securities;
(v) Pricing Disclosure Package means, as of the Applicable Time, (i) the most recent Preliminary Prospectus, (ii) the Final Term Sheet (as defined below), in substantially the form set forth on Schedule I hereto and (iii) any other Issuer Free Writing Prospectus filed or used by the Issuers on or before the Applicable Time, other than a road show that is an Issuer Free Writing Prospectus under Rule 433 of the Rules and Regulations; and
(vi) Prospectus means the final prospectus relating to the Securities included in the Registration Statement or as filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations, including any prospectus supplement thereto relating to the Notes.
Any reference to the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus shall be deemed to refer to and include any documents incorporated by reference therein pursuant to Form S-3 under the Securities Act as of the latest Effective Date of the Registration Statement, as of the date of such Preliminary Prospectus or the Prospectus, as the case may be, or in the case of the Pricing Disclosure Package, as of the Applicable Time. Any reference to the most recent Preliminary Prospectus shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) of the Rules and Regulations prior to or on the date hereof (including, for purposes hereof, any documents incorporated by reference therein prior to or on the date hereof). Any reference to any amendment or supplement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the Securities Exchange Act of 1934, as amended (the Exchange Act), after the date of the Registration Statement, Preliminary Prospectus or Prospectus, as the case may be, and
incorporated by reference in the Registration Statement, such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to include any annual report of the Partnership on Form 10-K filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date that is incorporated by reference in the Registration Statement, as such annual report may be amended or modified. The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding or examination for such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been instituted or threatened by the Commission. The Commission has not notified the Issuers of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act.
(b) Use of Form S-3; No Stop Orders. The Issuers meet the requirements for use of Form S-3 under the Securities Act. As of the Effective Date and the date of this Agreement, the Issuers met, and as of the Closing Date (as defined below), the Issuers will meet, the requirements of Form S-3 pursuant to the standards for that form prior to October 21, 1992. Without limiting the generality of the foregoing, as of such dates, the Partnership has been or will be timely in meeting its reporting obligations under the Exchange Act during the immediately preceding 12 months and has or will have an aggregate market capitalization held by non-affiliates of greater than $150 million. Neither Issuer is an ineligible issuer in connection with the offering of the Securities pursuant to Rules 164, 405 and 433 under the Securities Act. The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose have been instituted or are pending before or, to the knowledge of the MarkWest Entities, threatened by the Commission. The Issuers have complied, to the Commissions satisfaction, with all requests of the Commission for additional or supplemental information.
(c) Status as Well-Known Seasoned Issuer. The Partnership was (i) at the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus) and (iii) at the time either Issuer or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption of Rule 163, a well-known seasoned issuer (as defined in Rule 405). Neither Issuer was, at the earliest time after the filing of the Registration Statement at which the Issuers or another offering participant made a bona fide offer relating to the Securities, an ineligible issuer (as defined in Rule 405). The Registration Statement is an automatic shelf registration statement (as defined in Rule 405) and was not initially filed earlier than the date that is three years prior to the Closing Date.
(d) Registration Statement Conforms to Requirements of Securities Act and Trust Indenture Act. The Registration Statement conformed and will conform in all material respects on the Effective Date and on the Closing Date, and any amendment to
the Registration Statement filed after the date hereof will conform in all material respects when filed, to the requirements of the Securities Act and the Rules and Regulations. The most recent Preliminary Prospectus conformed, and the Prospectus will conform, in all material respects when filed with the Commission pursuant to Rule 424(b) and on the Closing Date to the requirements of the Securities Act and the Rules and Regulations. The documents incorporated by reference in any Preliminary Prospectus or the Prospectus conformed, and any further documents so incorporated will conform, when filed with the Commission, in all material respects to the requirements of the Exchange Act or the Securities Act, as applicable, and the Rules and Regulations. The Registration Statement and the Prospectus conform in all material respects to the requirements applicable to them under the Trust Indenture Act of 1939, as amended (the Trust Indenture Act).
(e) No Omissions or Material Misstatements in Registration Statement. The Registration Statement did not, as of its most recent Effective Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Issuers through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(f) No Omissions or Material Misstatements in Prospectus. The Prospectus will not, as of its date and on the Closing Date, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information included in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Issuers through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(g) No Omissions or Material Misstatements in Documents Incorporated by Reference. The documents incorporated by reference in the Registration Statement, any Preliminary Prospectus or the Prospectus did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(h) No Omissions or Material Misstatements in Pricing Disclosure Package. The Pricing Disclosure Package did not, as of the Applicable Time, include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information included in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Issuers through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(i) No Omissions or Material Misstatements in Free Writing Prospectus. Each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433 of the Rules and Regulations), when considered together with the remainder of the Pricing Disclosure Package as of the Applicable Time, did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information included in or omitted from any Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433 of the Rules and Regulations) in reliance upon and in conformity with written information furnished to the Issuers through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(j) Free Writing Prospectus Conforms to Requirements of Securities Act. Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act and the Rules and Regulations on the date of first use, and the Issuers have complied with any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The Issuers have not made any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representative. The Issuers have retained in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Rules and Regulations. The Issuers filed the Registration Statement before using any Issuer Free Writing Prospectus and each Issuer Free Writing Prospectus was accompanied by the most recent Preliminary Prospectus satisfying the requirements of Section 10 of the Securities Act. The Issuers have taken all actions necessary so that any road show (as defined in Rule 433 of the Rules and Regulations) in connection with the offering of the Securities will not be required to be filed pursuant to the Rules and Regulations.
(k) Formation and Due Qualification of the Partnership. The Partnership has been duly formed and is validly existing in good standing as a limited partnership under the Delaware Revised Uniform Limited Partnership Act (the Delaware LP Act) with full partnership power and authority to own or lease its properties and to conduct its business in all material respects as described in the Pricing Disclosure Package and the Prospectus. The Partnership is duly registered or qualified as a foreign limited partnership for the transaction of business under the laws of each jurisdiction in which the character of the business conducted by it or the nature or location of the properties owned or leased by it makes such registration or qualification necessary, except where the failure so to register or qualify would not, individually or in the aggregate, have a material adverse effect on the business, prospects, financial condition or results of operations of the MarkWest Entities, taken as a whole (Material Adverse Effect), or on the performance by the MarkWest Entities of their obligations under the Securities.
(l) Formation and Due Qualification of the Subsidiaries. Each of the Subsidiaries (other than Bright Star Partnership, a Texas general partnership (Bright Star), and Wirth Gathering, an Oklahoma general partnership (Wirth Gathering)) has been duly formed and is validly existing in good standing as a corporation or limited
liability company, as the case may be, under the Delaware General Corporation Law (the DGCL), the Delaware Limited Liability Company Act (the Delaware LLC Act), the Texas Business Organizations Code (the TBOC), the Michigan Limited Liability Company Act (the Michigan LLC Act) or the Oklahoma Limited Liability Company Act (the Oklahoma LLC Act), as applicable. Each of Bright Star and Wirth Gathering has been duly formed and is validly existing as a general partnership under the laws of the State of Texas and the State of Oklahoma, respectively. Each Subsidiary has full corporate, limited liability company or partnership power, as the case may be, and authority to own or lease its properties and to conduct its business, in each case in all material respects as described in the Pricing Disclosure Package and the Prospectus. Each Subsidiary is duly registered or qualified as a foreign corporation, limited liability company or partnership, as the case may be, for the transaction of business under the laws of each jurisdiction in which the character of the business conducted by it or the nature or location of the properties owned or leased by it makes such registration or qualification necessary, except where the failure so to register or qualify would not, individually or in the aggregate, have a Material Adverse Effect.
(m) General Partner of the Partnership. MarkWest Energy GP is the sole general partner of the Partnership with all necessary limited liability company power and authority to act as the general partner of the Partnership.
(n) Capitalization of the Partnership. As of the date hereof, the issued and outstanding limited partner interests of the Partnership consist of 127,494,365 Common Units, 22,640,000 Class A Units and 19,954,389 Class B Units, as such terms are defined in the Third Amended and Restated Agreement of Limited Partnership of the Partnership (as amended by Amendment No. 1 thereto and as may be further amended or restated at or prior to the Closing Date, the Partnership Agreement). All outstanding Common Units, Class A Units and Class B Units and the limited partner interests represented thereby have been duly authorized and validly issued in accordance with the Partnership Agreement and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware LP Act and as otherwise described in the Prospectus).
(o) Capitalization of Subsidiaries. The issued and outstanding membership interests, general partner interests and capital stock, as applicable, of each Subsidiary (i) have been duly authorized and validly issued in accordance with its partnership agreement or limited liability company agreement (collectively with the Partnership Agreement, the Constituent Agreements), the certificate of formation or conversion, certificate or articles of incorporation, bylaws or other constituent document (collectively with the Constituent Agreements and the Certificate of Limited Partnership of the Partnership, the Constituent Documents), as applicable, (ii) are fully paid (to the extent required under the Constituent Agreements) and (iii) are non-assessable (except as such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware LP Act, Sections 18-303, 18-607 and 18-804 of the Delaware LLC Act, Sections 2033 and 2035 of the Oklahoma LLC Act, Section 101.206 of the TBOC or Section 450.4308 of the Michigan LLC Act, as applicable).
(p) Ownership of the Subsidiaries. The Partnership directly or indirectly owns the partnership interests, membership interests and capital stock, as applicable, in the Subsidiaries as described in the Pricing Disclosure Package and in the Prospectus, in each case free and clear of all liens, encumbrances, security interests, equities, charges or claims (Liens), except as may arise under the Amended and Restated Credit Agreement dated as of July 1, 2010, as supplemented by the Joinder Agreement dated July 29, 2010 and the Joinder Agreement dated June 15, 2011 and as amended by the First Amendment thereto dated as of September 7, 2011, the Second Amendment thereto dated as of December 29, 2011, the Third Amendment thereto dated as of June 29, 2012 and the Fourth Amendment thereto dated as of December 20, 2012 (as so supplemented and amended, the Credit Agreement) among the Partnership, Wells Fargo Bank, National Association, as administrative agent, RBC Capital Markets Corporation, as syndication agent, and the other parties named therein, or as described in the Pricing Disclosure Package and the Prospectus.
(q) No Other Subsidiaries. Other than equity interests in the Subsidiaries, none of the MarkWest Entities owns, and at the Closing Date, none will own, directly or indirectly, any equity or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity.
(r) Authority and Authorization. Each of the MarkWest Entities has all requisite power and authority to execute and deliver each of this Agreement, the Notes (including each Guarantee set forth therein) and the Indenture (collectively, the Transaction Documents), and to perform their respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(s) The Indenture. The Base Indenture has been duly qualified under the Trust Indenture Act, and has been duly authorized, executed and delivered by each of the MarkWest Entities and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and legally binding agreement of each of the MarkWest Entities enforceable against each of them in accordance with its terms, except as such enforceability may be limited by (A) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (B) public policy, applicable law relating to fiduciary duties and indemnification and contribution and an implied covenant of good faith and fair dealing (collectively, the Enforceability Exceptions); the Tenth Supplemental Indenture has been duly qualified under the Trust Indenture Act, has been duly authorized by each of the MarkWest Entities, and on the Closing Date will be duly executed and delivered by each of the MarkWest Entities and, assuming due authorization, execution and delivery by the Trustee, will constitute a valid and legally binding agreement of each of the MarkWest Entities, enforceable against each of them in accordance with its terms, except as enforceability may be limited by the Enforceability Exceptions.
(t) The Notes and the Guarantees. The Notes have been duly authorized by the Issuers and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Issuers enforceable against each of the Issuers in accordance with their terms, subject to the Enforceability Exceptions; and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each of the Guarantors and, when the Notes have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be valid and legally binding obligations of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions; and will be entitled to the benefits of the Indenture.
(u) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by each of the MarkWest Entities and constitutes a valid and binding agreement of each of the MarkWest Entities.
(v) Constituent Agreements. The Constituent Agreements of each of the MarkWest Entities have been duly authorized, executed and delivered by the parties thereto, and are valid and legally binding agreements of such parties thereto, enforceable against the parties thereto in accordance with their respective terms; provided that, with respect to each such agreement, the enforceability thereof may be limited by the Enforceability Exceptions.
(w) No Conflicts. The execution, delivery and performance by each of the MarkWest Entities of each of the Transaction Documents to which it is a party, the issuance and sale of the Securities and compliance by it with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of its property or assets pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject, (ii) result in any violation of the provisions of its respective Constituent Document, or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(x) No Consents Required. No permit, consent, approval, authorization, order, registration, filing or qualification (consent) of or with any court, governmental agency or body having jurisdiction over the MarkWest Entities or any of their respective properties is required for the execution, delivery and performance by each of the MarkWest Entities of each of the Transaction Documents to which it is a party, the issuance and sale of the Securities (including the Guarantees) and compliance by it with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except (i) for such consents required under the Securities Act,
the Exchange Act and state securities or Blue Sky laws, (ii) for such consents that have been, or prior to the Closing Date will be, obtained and (iii) for such consents that, if not obtained, would not, individually or in the aggregate, have a Material Adverse Effect.
(y) No Violation or Default. None of the MarkWest Entities is in (i) violation of its Constituent Documents, as applicable, (ii) violation of any law, statute, ordinance, administrative or governmental rule or regulation applicable to it or of any order, judgment, decree or injunction of any court or governmental agency or body having jurisdiction over it or (iii) breach, default (or an event that, with notice or lapse of time or both, would constitute such a default) or violation in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or other instrument to which it is a party or by which it or any of its properties may be bound, which breach, default or violation in the case of clause (ii) or (iii) would, if continued, have a Material Adverse Effect or could materially impair the ability of either of the MarkWest Entities to perform their respective obligations under this Agreement. To the knowledge of the MarkWest Entities, no third party to any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the MarkWest Entities is a party or by which any of them is bound or to which any of their properties is subject, is in default under any such agreement, which breach, default or violation would, if continued, have a Material Adverse Effect.
(z) Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description thereof contained in each of the Pricing Disclosure Package and the Prospectus.
(aa) Independent Registered Public Accounting Firm. Deloitte & Touche LLP, which has certified certain financial statements of the Partnership and delivered its opinion with respect to certain audited financial statements and schedules included or incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus (or any amendment or supplement thereto), is an independent registered public accounting firm with respect to the Partnership within the meaning of the Securities Act and the Rules and Regulations and the rules of the Public Company Accounting Oversight Board.
(bb) Financial Statements. At September 30, 2012, the Partnership would have had, on an actual, as adjusted and as further adjusted basis as indicated in the most recent Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto), a capitalization as set forth therein. The historical financial statements (including the related notes and supporting schedules) included in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto) present fairly in all material respects the financial position, results of operations and cash flows of the entities purported to be shown thereby on the basis stated therein at the respective dates or for the respective periods to which they apply and have been prepared in accordance with accounting principles generally accepted in the United States consistently applied throughout the periods involved, except to the extent disclosed therein. No other financial statements are required by the Securities Act or the Exchange
Act to be included in the Pricing Disclosure Package or the Prospectus. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commissions rules and guidelines applicable thereto. Each forward-looking statement included or incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus (and any amendment or supplement thereto), if any, has been made or reaffirmed with a reasonable basis and in good faith.
(cc) Statistical and Market Data. Nothing has come to the attention of the MarkWest Entities that has caused the MarkWest Entities to believe that the statistical and market-related data included or incorporated by reference in the most recent Preliminary Prospectus and the Prospectus are not based on or derived from sources that are reliable and accurate in all material respects.
(dd) Certain Relationships. Except as described in the Pricing Disclosure Package and the Prospectus, no relationship, direct or indirect, exists between or among any of the MarkWest Entities, on the one hand, and the directors, officers, unitholders, customers or suppliers of any of the MarkWest Entities, on the other hand, that is required to be described in the Pricing Disclosure Package or the Prospectus that is not so described.
(ee) No Material Adverse Change. Except as disclosed in the Pricing Disclosure Package and the Prospectus, none of the MarkWest Entities has sustained since the date of the latest audited financial statements included in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, investigation, order or decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, since the date of the latest audited financial statements included in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus, (i) none of the MarkWest Entities has incurred any liability or obligation, indirect, direct or contingent, or entered into any transactions, not in the ordinary course of business, that, individually or in the aggregate, is material to the MarkWest Entities, taken as a whole, (ii) there has not been any material change in the capitalization, or material increase in the short-term debt or long-term debt, of the MarkWest Entities, taken as a whole and (iii) there has not been any material adverse change, or any development involving or that may reasonably be expected to involve, individually or in the aggregate, a prospective material adverse change in or affecting the business, prospects, properties, management, condition (financial or other), partners capital, net worth or results of operations of the MarkWest Entities, taken as a whole.
(ff) Legal Proceedings; Filing of Exhibits. There are no legal or governmental proceedings pending or, to the knowledge of the MarkWest Entities, threatened against any of the MarkWest Entities, or to which any of the MarkWest Entities is a party, or to
which any of their respective properties is subject, that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus but are not described as required, and there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required by the Rules and Regulations.
(gg) Title to Properties. The MarkWest Entities have good and indefeasible title to all real property and good title to all personal property described in the Pricing Disclosure Package and the Prospectus as owned by the MarkWest Entities, free and clear of all Liens, except such Liens as (i) do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the MarkWest Entities, (ii) could not reasonably be expected to have a Material Adverse Effect or (iii) are described, and subject to the limitations contained, in the Pricing Disclosure Package and the Prospectus.
(hh) Rights-of-Way. Each of the MarkWest Entities has such consents, easements, rights-of-way, permits or licenses (collectively, rights-of-way) from each person as are necessary to conduct its business in the manner described, and subject to the limitations contained, in the Pricing Disclosure Package and the Prospectus, except for (i) qualifications, reservations and encumbrances that would not have a Material Adverse Effect and (ii) such rights-of-way that, if not obtained, would not have, individually or in the aggregate, a Material Adverse Effect; other than as set forth, and subject to the limitations contained, in the Pricing Disclosure Package and the Prospectus, each of the MarkWest Entities has fulfilled and performed all its material obligations with respect to such rights-of-way and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or would result in any impairment of the rights of the holder of any such rights-of-way, except for such revocations, terminations and impairments that would not have a Material Adverse Effect; and, except as described in the Pricing Disclosure Package and the Prospectus, none of such rights-of-way contains any restriction that is materially burdensome to the MarkWest Entities, taken as a whole.
(ii) Permits. Each of the MarkWest Entities has, or at the Closing Date will have, such permits, consents, licenses, franchises, certificates and authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities (permits) as are necessary to own its properties and to conduct its business in the manner described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, subject to such qualifications as may be set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus and except for such permits that, if not obtained, would not, individually or in the aggregate, have a Material Adverse Effect and except for any permits that are of a routine or administrative nature that are expected in the reasonable judgment of MarkWest Energy GP to be obtained, as necessary, in the ordinary course of business subsequent to the date hereof; each of the MarkWest Entities has fulfilled and performed all its material obligations with respect to such permits that are due to have been fulfilled and performed by such date in the manner described, and subject to the
limitations contained, in the Registration Statement, the Pricing Disclosure Package and the Prospectus and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any impairment of the rights of the holder of any such permit, except for such revocations, terminations and impairments that would not, individually or in the aggregate, have a Material Adverse Effect; and, except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, none of such permits contains any restriction that is materially burdensome to the MarkWest Entities, taken as a whole.
(jj) Books and Records; Accounting Controls. Except as described in the Pricing Disclosure Package and the Prospectus, the Partnership (i) makes and keeps books, records and accounts, which, in reasonable detail, accurately and fairly reflect transactions and dispositions of assets and (ii) maintains effective internal control over financial reporting as defined in Rule 13a-15 under the Exchange Act and a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with managements general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets; (C) access to assets is permitted only in accordance with managements general or specific authorization; and (D) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(kk) Disclosure Controls and Procedures. (i) The Partnership has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the Exchange Act), (ii) such disclosure controls and procedures are designed to ensure that the information required to be disclosed by the Partnership in the reports it files or will file or submit under the Exchange Act, as applicable, is accumulated and communicated to management of the Partnership including its respective principal executive officers and principal financial officers, as appropriate, to allow such officers to make timely decisions regarding required disclosure and (iii) except as described in the Pricing Disclosure Package and the Prospectus, such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established.
(ll) No Adverse Changes in Internal Controls. Since the date of the most recent balance sheet of the Partnership and its consolidated subsidiaries audited by Deloitte & Touche LLP, the Partnership has not been advised of (i) any significant deficiencies in the design or operation of internal controls that could adversely affect the Partnerships ability to record, process, summarize and report financial data, or any material weaknesses in internal controls except as described in the Pricing Disclosure Package and the Prospectus or (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Partnerships internal controls.
(mm) Sarbanes-Oxley Act of 2002. There is and has been no failure on the part of the Partnership or any of the directors or officers of MarkWest Energy GP, in their
capacities as such, to comply in all material respects with the provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith.
(nn) Tax Returns. Each of the MarkWest Entities has filed (or has obtained extensions with respect to) all material federal, state and foreign income and franchise tax returns required to be filed through the date hereof, which returns are complete and correct in all material respects, and has timely paid all taxes shown to be due, if any, pursuant to such returns, other than those (i) that are being contested in good faith and for which adequate reserves have been established in accordance with generally accepted accounting principles or (ii) that, if not paid, would not have a Material Adverse Effect.
(oo) Investment Company. None of the MarkWest Entities is now, and after sale of the Securities to be sold hereunder and application of the net proceeds from such sale as described in the Pricing Disclosure Package and the Prospectus under the caption Use of Proceeds, none of the MarkWest Entities will be, an investment company or a company controlled by an investment company within the meaning of the Investment Company Act of 1940, as amended.
(pp) Environmental Compliance. Except as described in the Pricing Disclosure Package and the Prospectus, the MarkWest Entities (i) are in compliance with any and all applicable federal, state and local laws and regulations relating to the protection of human health and safety and the environment or imposing liability or standards of conduct concerning any Hazardous Material (as hereinafter defined) (Environmental Laws), (ii) have received all permits required of them under applicable Environmental Laws to conduct their respective businesses, (iii) are in compliance with all terms and conditions of any such permit and (iv) do not have any liability in connection with the release into the environment of any Hazardous Materials (as defined below), except where such noncompliance with Environmental Laws, failure to receive required permits, or failure to comply with the terms and conditions of such permits or liability in connection with such releases would not, individually or in the aggregate, have a Material Adverse Effect. The term Hazardous Material means (A) any hazardous substance as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, (B) any hazardous waste as defined in the Resource Conservation and Recovery Act, as amended, (C) any petroleum or petroleum product, (D) any polychlorinated biphenyl and (E) any pollutant or contaminant or hazardous, dangerous or toxic chemical, material, waste or substance regulated under or within the meaning of any other Environmental Law.
(qq) No Labor Dispute. No labor dispute with the employees of the MarkWest Entities exists or, to the knowledge of the MarkWest Entities, is imminent or threatened that is reasonably likely to result in a Material Adverse Effect.
(rr) Insurance. The MarkWest Entities maintain insurance covering the properties, operations, personnel and businesses of the MarkWest Entities against such losses and risks as are reasonably adequate to protect them and their businesses in a manner consistent with other businesses similarly situated. None of the MarkWest Entities has received notice from any insurer or agent of such insurer that substantial
capital improvements or other expenditures will have to be made in order to continue such insurance, and all such insurance is outstanding and duly in force on the date hereof and will be outstanding and duly in force on the Closing Date.
(ss) Litigation. Except as described in the Pricing Disclosure Package and the Prospectus, there is (i) no action, suit or proceeding before or by any court, arbitrator or governmental agency, body or official, domestic or foreign, now pending or, to the knowledge of the MarkWest Entities, threatened, to which any of the MarkWest Entities is or may be a party or to which the business or property of any of the MarkWest Entities is or may be subject, (ii) no statute, rule, regulation or order that has been enacted, adopted or issued by any governmental agency or, to the knowledge of the MarkWest Entities, proposed by any governmental agency and (iii) no injunction, restraining order or order of any nature issued by a federal or state court or foreign court of competent jurisdiction to which any of the MarkWest Entities is or may be subject, that, in the case of clauses (i), (ii) and (iii) above, is reasonably likely to (A) individually or in the aggregate, have a Material Adverse Effect, (B) prevent or result in the suspension of the offering and delivery of the Securities, or (C) in any manner draw into question the validity of this Agreement.
(tt) Distribution of Prospectus. None of the MarkWest Entities has distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the offering of the Notes, will not distribute, any prospectus (as defined under the Securities Act) in connection with the offering and sale of the Securities other than any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, subject to the conditions in Section 1(j) of this Agreement, or other materials, if any, permitted by the Securities Act, including Rule 134 of the Rules and Regulations.
(uu) No Stabilization. Except as stated in this Agreement and the Prospectus, none of the MarkWest Entities has taken or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any other security of the Issuers to facilitate the sale or resale of the Securities.
(vv) Significant Subsidiaries. The Partnership has no subsidiaries other than the Operating Company, Javelina Company LLC, Oklahoma LLC, Appalachia LLC, MarkWest Liberty Midstream & Resources, L.L.C., Bluestone LLC and East Texas LLC (collectively, the Significant Subsidiaries), which, individually or considered as a whole, would be deemed to be a significant subsidiary (as such term is defined in Rule 405 under the Securities Act).
(ww) No Unlawful Payments. None of the Partnership or any of the MarkWest Entities that are, directly or indirectly, wholly owned by the Partnership (the Partnership and such entities, collectively, the Wholly Owned Entities) nor any officer or director of the Wholly Owned Entities, nor, to the knowledge of the Wholly Owned Entities, any agent, employee or other person associated with or acting on behalf of any of the Wholly Owned Entities has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption law to which they may be subject or (iv) made, offered, authorized or approved any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; each of the Wholly Owned Entities has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws as are applicable to the MarkWest Entities.
(xx) No Restrictions on Subsidiaries. Except as set forth in the Constituent Documents; the Transaction Documents; the First Supplemental Indenture dated as of November 2, 2010 by and among the Partnership, Finance Corp, the subsidiary guarantors referred to therein and the Trustee, as amended and supplemented, the Second Supplemental Indenture dated as of February 24, 2011 by and among the Partnership, Finance Corp, the subsidiary guarantors referred to therein and the Trustee, as amended and supplemented, the Fifth Supplemental Indenture dated as of November 3, 2011 by and among the Partnership, Finance Corp, the subsidiary guarantors referred to therein and the Trustee, as amended and supplemented, the Eighth Supplemental Indenture, dated as of August 10, 2012, by and among the Partnership, Finance Corp, the subsidiary guarantors referred to therein and the Trustee, as amended and supplemented, the Indenture dated April 15, 2008 among the Partnership, Finance Corp, the subsidiary guarantors referred to therein and the Trustee, as amended and supplemented, and the Credit Agreement or the Prospectus, no Subsidiary is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Partnership, from making any other distribution on such Subsidiarys capital stock or equity interest, from repaying to the Partnership any loans or advances to such Subsidiary from the Partnership or from transferring any of such Subsidiarys properties or assets to the Partnership or any other Subsidiary of the Partnership.
(yy) Money Laundering Laws. The operations of the Wholly Owned Entities are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions where the Wholly Owned Entities conduct business and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws). No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Wholly Owned Entities with respect to the Money Laundering Laws is pending or, to the knowledge of the Wholly Owned Entities, threatened.
(zz) OFAC. None of the Wholly Owned Entities nor, to the knowledge of the Wholly Owned Entities, any director, officer, agent, affiliate or employee of the Wholly Owned Entities is currently the subject of sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC). The Wholly Owned Entities will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose by the Wholly Owned Entities of funding or facilitating
any activities or business of or with any person or entity, or in any country or territory, that is the subject of sanctions administered by OFAC.
Any certificate signed by any officer of any MarkWest Entity and delivered to the Representative or to counsel for the Underwriters shall be deemed a representation and warranty by such MarkWest Entity to each Underwriter as to the matters covered thereby.
2. Agreements to Sell and Purchase. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Issuers agree to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Issuers, the principal amount of Notes set forth opposite such Underwriters name on Schedule III hereto at a purchase price equal to 98.75% of the principal amount thereof, plus accrued interest, if any, from the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Notes shall be made at the office of Vinson & Elkins L.L.P., First City Tower, 1001 Fannin, Suite 2500, Houston, Texas 77002 at 9:00 a.m., Houston time, on January 10, 2013, or at such other location and time on the same or such other date not more than ten business days after the foregoing date as the Representative shall designate, which date and time may be postponed by agreement between the Representative and the Issuers or as provided in Section 10 hereof (such date and time of delivery and payment for the Notes being herein called the Closing Date). Delivery of the Notes shall be made to the Representative for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representative of the purchase price thereof to or upon the order of the Partnership by wire transfer payable in same-day funds to an account specified by the Partnership to the Representative against delivery to the nominee of The Depository Trust Company, for the account of the Underwriters, of one or more global notes representing the Notes.
4. Public Offering. The Issuers are advised by the Representative that the Underwriters propose to make a public offering of the Notes as soon as in the Representatives judgment is advisable. The Issuers are further advised by the Representative that the Notes are to be offered to the public upon the terms set forth in the Prospectus.
5. Covenants of the MarkWest Entities and the Underwriters. (a) The MarkWest Entities covenant and agree with the several Underwriters that:
(i) The Issuers will timely transmit copies of the Prospectus, and any amendments or supplements thereto, to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations.
(ii) The Issuers will deliver to each of the Underwriters, and to counsel for the Underwriters (i) a signed copy of the Registration Statement as originally filed, including copies of exhibits thereto, and any amendments and supplements to the Registration Statement and (ii) a signed copy of each consent and certificate included in, or filed as an exhibit to, the Registration Statement as so amended or supplemented; the Issuers will deliver to the Underwriters as soon as practicable after the date of this Agreement as many copies of the Prospectus as the
Underwriters may reasonably request for the purposes contemplated by the Securities Act; if there is a post-effective amendment to the Registration Statement that is not effective under the Securities Act, the Issuers will use their best efforts to cause such post-effective amendment to the Registration Statement to become effective as promptly as possible, and they will notify the Representative, promptly after they shall receive notice thereof, of the time when the post-effective amendment to the Registration Statement has become effective; the Issuers will promptly advise the Representative of any request of the Commission for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and of the issuance by the Commission or any state or other jurisdiction or other regulatory body of any stop order under the Securities Act or other order suspending the effectiveness of the Registration Statement (as amended or supplemented) or preventing or suspending the use of the most recent Preliminary Prospectus or the Prospectus or the institution of any proceeding for that purpose pursuant to Section 8A of the Securities Act or suspending the qualification or registration of the Securities for offering or sale in any jurisdiction, and of the institution or threat of any proceedings therefor, or of the receipt by the Issuers of any notice of any objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act of which the Issuers shall have received notice or otherwise have knowledge prior to the completion of the distribution of the Securities; and the Issuers will use their best efforts to prevent the issuance of any such stop order or other order and, if issued, to secure the prompt removal thereof.
(iii) The Issuers will not file any amendment to the Registration Statement, supplement to the Prospectus (or any other prospectus relating to the Notes filed pursuant to Rule 424(b) of the Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)), or any Preliminary Prospectus or Issuer Free Writing Prospectus of which the Underwriters shall not previously have been advised or to which the Underwriters shall have reasonably objected in writing after being so advised unless the Issuers shall have determined based upon the advice of counsel that such amendment, supplement or other filing is required by law; and the Issuers will promptly notify the Representative after they shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed.
(iv) During the period when a prospectus relating to the Securities is required to be delivered under the Securities Act by any Underwriter or any dealer, the Issuers will comply, at their own expense, with all requirements imposed by the Securities Act and the Rules and Regulations, so far as necessary, to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Prospectus.
(v) If, during the period when a prospectus relating to any of the Securities is required to be delivered under the Securities Act by any Underwriter or any dealer, (A) any event relating to or affecting either Issuer or of which the Issuers shall be advised in writing by the Underwriters shall occur as a result of which, in the opinion of the Issuers or counsel for the Underwriters, the Prospectus (or the Pricing Disclosure Package if the Prospectus has not yet been filed pursuant to the Act) as then amended or supplemented would include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (B) it shall be necessary to amend or supplement the Registration Statement or the Prospectus (or the Pricing Disclosure Package if the Prospectus has not yet been filed pursuant to the Act) to comply with the Securities Act, the Rules and Regulations, the Exchange Act or the rules and regulations thereunder, the Issuers will forthwith at their expense prepare and file with the Commission, and furnish to the Underwriter a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance.
(vi) During the period when a prospectus relating to any of the Securities is required to be delivered under the Securities Act by any Underwriter or any dealer, the Issuers will furnish such proper information as may be lawfully required and otherwise cooperate with the Underwriters in qualifying the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriter may reasonably designate and will file and make such statements or reports as are or may be reasonably necessary; provided, however, that the Issuers shall not be required to qualify as a foreign corporation, to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction.
(vii) In accordance with Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations, the Issuers will make generally available to their security holders an earnings statement (which need not be audited) in reasonable detail covering the 12-month period beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Registration Statement as soon as practicable after the end of such period.
(viii) The Partnership will furnish or make available to its security holders annual reports containing financial statements audited by an independent registered public accounting firm and quarterly reports containing financial statements and financial information, which may be unaudited. The Partnership will, for a period of two years from the Closing Date, furnish or make available to the Underwriter a copy of each annual report, quarterly report, current report and all other documents, reports and information furnished by the Partnership to holders of Notes or filed with any securities exchange or market pursuant to the requirements of such exchange or market or with the Commission pursuant to the Securities Act or the Exchange Act. The Partnership will deliver or make
available to the Underwriters similar reports with respect to any significant subsidiaries, as that term is defined in the Rules and Regulations, which are not consolidated in the Partnerships financial statements. Any report, document or other information required to be furnished or made available under this paragraph (viii) shall be furnished as soon as practicable after such report, document or information becomes publicly available.
(x) The Issuers will apply the proceeds from the sale of the Notes as set forth in the description under Use of Proceeds in the most recent Preliminary Prospectus and the Prospectus.
(xi) The Issuers will promptly provide the Representative with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the registration of the Securities under the Securities Act.
(xii) The Issuers agree to prepare a final term sheet (the Final Term Sheet), containing a description of the final terms of the Notes and the offering thereof, in the form approved by the Representative and attached as Schedule I hereto, and to file such term sheet pursuant to Rule 433 under the Securities Act within the time required by such Rule.
(xiii) The Issuers have complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending. The Issuers represent that they have satisfied and agree that they will satisfy the conditions under Rule 433 under the Securities Act to avoid a requirement to file with the Commission any electronic road show. The Issuers agree that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, the Issuers will give prompt notice thereof to the Representative and, if requested by the Representative, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Issuers through the Representative by or on behalf of any Underwriter specifically for inclusion therein.
(xiv) During the period from the date hereof through and including the date that is 90 days after the date hereof, the Issuers and each of the Guarantors will not, without the prior written consent of the Representative, offer, sell,
contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Issuers or any of the Guarantors that are substantially similar to the Securities.
(b) The Underwriters severally covenant and agree with the MarkWest Entities that:
(i) Each Underwriter represents and agrees that it has not made and, without the prior consent of the Issuers and the Representative, it will not make, any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus required to be filed with the Commission. Any such Issuer Free Writing Prospectus the use of which has been consented to by the Issuers and the Representative (other than the Final Term Sheet) constitutes a road show that is an Issuer Free Writing Prospectus under Rule 433 of the Rules and Regulations.
(ii) Each Underwriter severally agrees that such Underwriter shall not include any issuer information (as defined in Rule 433) in any free writing prospectus (as defined in Rule 405) used or referred to by the Underwriters without the prior consent of the Issuers; provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Issuers with the Commission prior to the use of such free writing prospectus and (ii) issuer information, as used in this Section 5(b)(ii), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information.
6. Expenses. Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the MarkWest Entities agree to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (a) the fees, disbursements and expenses of the Issuers counsel and the Partnerships accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriter and dealers, (b) all costs and expenses related to the transfer and delivery of the Securities to the Underwriter, including any transfer or other taxes payable thereon, (c) the cost of printing or producing any Blue Sky Memorandum and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 5(a)(vi) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriter in connection with such qualification and in connection with the Blue Sky Memorandum, (d) any fees charged by rating agencies for rating the Notes, (e) the costs and charges of any transfer agent, registrar or depositary, (f) the costs and expenses of the Issuers relating to investor presentations on any road show undertaken in connection with the marketing of the offering of the Securities, including without limitation expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel and lodging
expenses of the representatives and officers of the MarkWest Entities and any such consultants, and the cost of any aircraft chartered in connection with the road show, (g) the fees and expenses of the Trustee and paying agent (including related fees and expenses of any counsel for such parties) and (h) all other costs and expenses incident to the performance of the obligations of the MarkWest Entities hereunder for which provision is not otherwise made in this Section 6. It is understood, however, that except as provided in this Section 6 or in Section 11, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Notes by them and any advertising expenses connected with any offers they may make.
7. Conditions to the Underwriters Obligations. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the MarkWest Entities contained herein, to the performance by the MarkWest Entities of their obligations hereunder, and to each of the following additional terms and conditions:
(a) All filings required by Rule 424 and Rule 430B of the Rules and Regulations shall have been made. All material required to be filed by the Issuers pursuant to Rule 433(d) under the Securities Act (including, without limitation, the Final Term Sheet) shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Securities Act. No stop order (i) suspending the effectiveness of the Registration Statement or (ii) suspending or preventing the use of the most recent Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Issuers or any Underwriter, threatened or contemplated by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Underwriters.
(b) No Underwriter shall have advised the Issuers on or prior to the Closing Date that the Registration Statement, the most recent Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of counsel to the Underwriter, is material, or omits to state a fact which, in the opinion of such counsel, is material and, in the case of the Registration Statement, is required to be stated therein, or, in all other cases, is necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) On the Closing Date, the Representative shall have received the opinion of Vinson & Elkins L.L.P., counsel for the Issuers, addressed to the Representative and dated the Closing Date, to the effect that:
(i) The Partnership has been duly formed and is validly existing and in good standing as a limited partnership under the Delaware LP Act with all necessary partnership power and authority to own or lease its properties and to conduct its business in all material respects as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus. The Partnership is duly registered or qualified as a foreign limited partnership for the transaction of business under the laws of the jurisdictions set forth on Schedule II to this Agreement.
(ii) Each of Finance Corp and MarkWest Hydrocarbon has been duly incorporated and is validly existing and in good standing as a corporation under the DGCL with all necessary corporate power and authority to own or lease its properties and to conduct its business in all material respects as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus. Each of Finance Corp and MarkWest Hydrocarbon is duly registered or qualified as a foreign corporation for the transaction of business under the laws of the jurisdictions set forth on Schedule II to this Agreement.
(iii) Each of MarkWest Energy GP, the Operating Company, Appalachia LLC, East Texas LLC, Liberty LLC, MarkWest Marketing LLC, Mountaineer LLC, Ranger LLC and MarkWest Utica LLC has been duly formed and is validly existing in good standing as a limited liability company under the Delaware LLC Act with all necessary limited liability company power and authority to own or lease its properties and to conduct its business in all material respects as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus. Each of MarkWest Energy GP, the Operating Company, Appalachia LLC, East Texas LLC, Liberty LLC, MarkWest Marketing LLC, Mountaineer LLC, Ranger LLC and MarkWest Utica LLC is duly registered or qualified as a foreign limited liability company for the transaction of business under the laws of the jurisdictions set forth on Schedule II of this Agreement.
(iv) MarkWest Energy GP is the sole general partner of the Partnership with all necessary limited liability company power and authority to act as the general partner of the Partnership.
(v) Each of Blackhawk LLC, Gas Services LLC, Javelina Company LLC, Javelina Pipeline LLC, New Mexico LLC, Pinnacle LLC, Pipeline LLC, PNG Utility LLC, Power Tex LLC, Texas PNG LLC and Gas Marketing LLC has been duly formed and is validly existing in good standing as a limited liability company under the Texas LLC Act or the TBOC, as applicable, with all necessary limited liability company power and authority to own or lease its properties and to conduct its business in all material respects as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus. Each of Blackhawk LLC, Gas Services LLC, Javelina Company LLC, Javelina Pipeline LLC, New Mexico LLC, Pinnacle LLC, Pipeline LLC, PNG Utility LLC, Power Tex LLC, Texas PNG LLC and Gas Marketing LLC is duly registered or qualified as a foreign limited liability company for the transaction of business under the laws of the jurisdictions set forth on Schedule II to this Agreement.
(vi) The issued and outstanding membership interests, general partner interests and capital stock, as applicable, of each Subsidiary (other than McAlester LLC, Michigan Pipeline LLC, Oklahoma LLC, Mason LLC, Matrex LLC, West Shore LLC and Wirth Gathering (collectively, the Excluded Subsidiaries)) (A) have been duly authorized and validly issued in accordance with its Constituent Documents, (B) are fully paid (to the extent required under the Constituent Agreements) and (C) are non-assessable (except as such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware LP Act, Sections 18-607 and 18-804 of the Delaware LLC Act, Article 5.09 of the Texas LLC Act or Section 101.206 of the TBOC)).
(vii) The Partnership directly or indirectly owns the general partner interests, membership interests and capital stock, as applicable, in the Subsidiaries in all material respects as described in the Pricing Disclosure Package and in the Prospectus, free and clear of all Liens (except Liens created by or arising under the Credit Agreement, the DGCL or the Delaware LLC Act) (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership, the Operating Company, MarkWest Energy GP, MarkWest Hydrocarbon, Appalachia LLC, MarkWest Utica LLC or Liberty LLC as debtor is on file in the office of the Secretary of State of the State of Delaware, (B) in respect of which a financing statement under the Uniform Commercial Code of the State of Texas naming Pinnacle LLC as debtor is on file in the office of the Secretary of State of the State of Texas or (C) otherwise known to such counsel, without independent investigation.
(viii) Each of the Constituent Documents, as applicable, to which any of the MarkWest Entities is a party has been duly authorized and validly executed and delivered by such entity that is a party thereto and, assuming due authorization, execution and delivery of each such agreement by each entity other than such parties, each of the Constituent Documents (other than any Constituent Document governed by law other than Texas or Delaware law), as applicable, constitutes a valid and legally binding agreement of the MarkWest Entities that are parties thereto, enforceable against such entity in accordance with its respective terms, subject to the Enforceability Exceptions.
(ix) Each of the MarkWest Entities (assuming due authorization by the Excluded Subsidiaries that are a party thereto) has all requisite power and authority to execute and deliver each of the Transaction Documents to which it is a party, and to perform its respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(x) Each of the Base Indenture and the Tenth Supplemental Indenture has been duly authorized, executed and delivered by each of the MarkWest Entities (except, with respect to the Base Indenture, Mountaineer LLC, Ranger LLC and MarkWest Utica LLC, which entities were not a party thereto) other
than the Excluded Subsidiaries and, assuming due authorization, execution and delivery by the Excluded Subsidiaries and the Trustee, the Indenture constitutes a valid and legally binding agreement of each of the MarkWest Entities enforceable against each of them in accordance with its terms, subject to the Enforceability Exceptions; and the Indenture is duly qualified under the Trust Indenture Act.
(xi) The Notes have been duly authorized by the Issuers and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of each of the Issuers enforceable against each of the Issuers in accordance with their terms, subject to the Enforceability Exceptions; and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each of the Guarantors (assuming due authorization of the Guarantees by the Excluded Subsidiaries party thereof) and, when the Notes have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be valid and legally binding obligations of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(xii) This Agreement has been duly authorized, executed and delivered by each of the MarkWest Entities (assuming due authorization by the Excluded Subsidiaries party thereto).
(xiii) None of the execution, delivery and performance by each of the MarkWest Entities of each of the Transaction Documents to which it is a party, the issuance and sale of the Notes (including the Guarantees) and compliance by it with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of its property or assets pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Partnerships annual report on Form 10-K for the year ended December 31, 2011, the Partnerships quarterly report on Form 10-Q for the quarter ended March 31, 2012, the Partnerships quarterly report on Form 10-Q for the quarter ended June 30, 2012, the Partnerships quarterly report on Form 10-Q for the quarter ended September 30, 2012 or any applicable current report on Form 8-K filed with the Commission after January 1, 2012, (B) result in any violation of the provisions of any Constituent Documents of the MarkWest Entities, as applicable, or (C) result in the violation of the DGCL, the Delaware LP Act, the Delaware LLC Act, the TBOC, other Texas law or federal law (provided that such counsel need not express any opinion with respect to compliance with any state securities or federal or state antifraud law) or, to such counsels knowledge, any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority known to such counsel, except,
in the case of clauses (A) and (C) above, for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(xiv) The statements included in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the captions SummaryThe Offering, Description of Notes and Description of our Debt Securities insofar as they purport to constitute summaries of the terms of the Notes are accurate summaries of the terms thereof in all material respects.
(xv) The statements set forth in the Registration Statement, the Pricing Disclosure Package, the Prospectus or the Partnerships annual report on Form 10-K for the year ended December 31, 2011 (A) under the captions BusinessRegulatory Matters, BusinessEnvironmental Matters, Certain United States Federal Income Tax Considerations, Investment in MarkWest Energy Partners by Employee Benefit Plans, and Certain ERISA Considerations, insofar as they purport to constitute summaries of statutes, legal, governmental and regulatory proceedings, fairly summarize the matters described therein in all material respects and (B) under the captions Description of Other Indebtedness, insofar as they purport to constitute summaries of contracts and other documents, are accurate in all material respects.
(xvi) No permit, consent, approval, authorization, order, registration, filing or qualification (consent) under the DGCL, Delaware LP Act, the Delaware LLC Act, the TBOC or other Texas law or federal law is required for the execution, delivery and performance by each of the MarkWest Entities of each of the Transaction Documents to which it is a party, the issuance and sale of the Securities (including the Guarantees) and compliance by it with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for the qualification of the Tenth Supplemental Indenture under the Trust Indenture Act and such consents required under the Securities Act, the Exchange Act or under state securities or Blue Sky laws, as to which such counsel need not express any opinion.
(xvii) The Registration Statement became effective under the Securities Act on October 26, 2012; to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened by the Commission; and any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by such Rule.
(xviii) The Registration Statement and the Prospectus, including documents incorporated by reference into the Prospectus and the Registration Statement, when filed with the Commission and on the Closing Date, were, on their face, appropriately responsive, in all material respects, to the requirements of the Securities Act, except that in each case such counsel need express no opinion with respect to the financial statements, other financial information data and
statistical data derived from financial data contained in or omitted from the Registration Statement or the Prospectus.
(xix) To the knowledge of such counsel, (A) there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending, threatened or contemplated to which any of the MarkWest Entities is or may be a party or to which any property of any of the MarkWest Entities is or may be subject that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that are not described as required by the Securities Act; and (B) there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required by the Securities Act.
(xx) None of the MarkWest Entities organized in Delaware or Texas is, nor after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Pricing Disclosure Package will any of such entities be, an investment company as such term is defined in the Investment Company Act of 1940, as amended.
In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the MarkWest Entities, the independent public accountants of the Partnership, the Representative and counsel for the Underwriters, at which the contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus and related matters were discussed, and although such counsel has not independently verified, is not passing upon, and is not assuming any responsibility for the accuracy, completeness or fairness of the statements contained in, the Registration Statement, the Pricing Disclosure Package and the Prospectus (except to the extent as specifically described in the opinions in paragraphs (xiv) and (xv) above), based on the foregoing no facts have come to the attention of such counsel that causes such counsel to believe that:
(1) the Registration Statement, as of the latest Effective Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading,
(2) the Pricing Disclosure Package, as of the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
(3) the Prospectus, as of its date and on the Closing Date, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
it being understood that such counsel expresses no statement or belief with respect to (i) the financial statements and related schedules, including the notes thereto and independent registered public accountants reports thereon, included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus, (ii) any other financial information or statistical information derived from financial information included or incorporated by reference in or omitted from the Registration Statement, the Pricing Disclosure Package or the Prospectus, (iii) representations and warranties and other statements of fact included in the exhibits to the Registration Statement or any documents incorporated by reference and (iv) the Form T-1 included as an exhibit to the Registration Statement.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon representations of the MarkWest Entities set forth in this Agreement and upon certificates of officers and employees of the MarkWest Entities and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine, (C) state that their opinion is limited to federal laws, the DGCL, the Delaware LP Act, the Delaware LLC Act, the TBOC, other Texas law and New York law and express no opinion as to any law of any other jurisdiction, (D) with respect to the opinions expressed in paragraphs (i) through (iv) above as to the due qualification or registration as a foreign corporation, limited partnership or limited liability company, as the case may be, of each of the MarkWest Entities, state that such opinions are based upon certificates of foreign qualification or registration provided by the Secretary of State of the states listed on Schedule II hereto (each of which shall be dated as of a date not more than fourteen days prior to the Closing Date and shall be provided to the Underwriters or their counsel), and (E) state that they express no opinion with respect to state or local taxes or tax statutes to which any of the limited partners of the Partnership or any of the other MarkWest Entities may be subject.
(d) On the Closing Date, the Representative shall have received the opinion of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., opining as to the law of Oklahoma, addressed to the Representative and dated the Closing Date, to the effect that:
(i) McAlester LLC has been duly formed and is validly existing in good standing as a limited liability company under the Oklahoma LLC Act with all necessary limited liability company power and authority to own or lease its properties owned or leased at the Closing Date and to conduct its business in all material respects as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus. McAlester LLC is not qualified or registered as a foreign limited liability company in any jurisdiction.
(ii) Oklahoma LLC has been duly formed and is validly existing in good standing as a limited liability company under the Oklahoma LLC Act with all necessary limited liability company power and authority to own or lease its properties owned or leased at the Closing Date and to conduct its business in all material respects as described in each of the Registration Statement, the Pricing
Disclosure Package and the Prospectus. Oklahoma LLC is duly qualified or registered as a foreign limited liability company for the transaction of business under the laws of the State of Texas and no other jurisdiction.
(iii) The membership interests of Oklahoma LLC are represented by units. The membership units of Oklahoma LLC are not evidenced by separate certificates, but by its limited liability company agreement and the books and records of Oklahoma LLC required to be maintained by the Oklahoma LLC Act and the limited liability company agreement of Oklahoma LLC. The Operating Company directly owns of record 100% of the issued and outstanding membership interests in Oklahoma LLC; the membership interests of Oklahoma LLC have been duly authorized and validly issued in accordance with its limited liability company agreement and are fully paid (to the extent required under such limited liability company agreement) and nonassessable (except as nonassessablity may be affected by §2030 and §2031 of the Oklahoma LLC Act); and the Operating Company owns such membership interests free and clear of all Liens (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Oklahoma naming the Operating Company as debtor is on file in the office of the County Clerk of Oklahoma County, Oklahoma, or in the office of the Secretary of State of the State of Oklahoma or (B) otherwise known to such counsel, without independent investigation, other than those (X) mentioned in the Registration Statement, the Pricing Disclosure Package or the Prospectus, (Y) created by or arising under the Oklahoma LLC Act or (Z) arising under or identified in the Credit Agreement.
(iv) The membership interests of McAlester LLC are represented by units. The McAlester LLC membership units are evidenced by separate certificates. Oklahoma LLC directly owns of record 100% of the issued and outstanding membership interests in McAlester LLC; the membership interests of McAlester LLC have been duly authorized and validly issued in accordance with the limited liability company agreement of McAlester LLC and are fully paid (to the extent required under such limited liability company agreement) and nonassessable (except as nonassessablity may be affected by §2030 and §2031 of the Oklahoma LLC Act); and Oklahoma LLC owns such membership interests free and clear of all Liens (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Oklahoma naming Oklahoma LLC as debtor is on file in the office of the County Clerk of Oklahoma County, Oklahoma, or the office of the Secretary of State of the State of Oklahoma or (B) otherwise known to such counsel, without independent investigation, other than those (X) mentioned in the Registration Statement, the Pricing Disclosure Package or the Prospectus, (Y) created by or arising under the Oklahoma LLC Act or (Z) arising under or identified in the Credit Agreement.
(v) Oklahoma LLC directly owns certain of the membership interests in Centrahoma LLC free and clear of all Liens (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Oklahoma naming Oklahoma LLC as debtor is on file in the office of the County Clerk of Oklahoma
County, Oklahoma or in the office of the Secretary of State of the State of Oklahoma or (B) otherwise known to such counsel, without independent investigation, other than those (X) mentioned in the Registration Statement, the Pricing Disclosure Package or the Prospectus, (Y) created by or arising under the Oklahoma LLC Act or (Z) arising under or identified in the Credit Agreement.
(vi) Except as described in the Pricing Disclosure Package and the Prospectus, there are no preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of any membership interests of Oklahoma LLC or McAlester LLC, pursuant to the limited liability company agreement of Oklahoma LLC or McAlester LLC, as applicable (except for the restrictions as to the transfer of membership interests of Oklahoma LLC or McAlester LLC as set forth in the limited liability company agreements of Oklahoma LLC or McAlester LLC, as applicable), or any other agreement or instrument listed as an exhibit to the Registration Statement to which Oklahoma LLC or McAlester LLC is expressly by name identified thereon as a party. To the knowledge of such counsel, except as described in the Pricing Disclosure Package and the Prospectus, there are no outstanding options or warrants to purchase any membership interests in Oklahoma LLC or McAlester LLC.
(vii) None of the offering, issuance and sale by the Issuers of the Notes or by the Guarantors of the Guarantees, the execution, delivery and performance of this Agreement by Oklahoma LLC or McAlester LLC, the execution, delivery and performance of the Indenture by Oklahoma LLC or McAlester LLC, or the consummation by Oklahoma LLC or McAlester LLC of the transactions contemplated hereby or thereby (A) constitutes or will constitute a violation of the limited liability company agreement of Oklahoma LLC or McAlester LLC, (B) violates or will violate Oklahoma law or (C) results or will result in the creation or imposition of any Lien upon the property or assets of Oklahoma LLC or McAlester LLC, which violations or Liens, in the case of clauses (B) or (C) would have, individually or in the aggregate, a Material Adverse Effect on the MarkWest Entities, taken as a whole.
In rendering such opinions, such counsel shall state that it (A) relied in respect of matters of fact upon certificates of officers and employees of the MarkWest Entities and upon information obtained from public officials including, without limitation, certificates of foreign qualification for each of the MarkWest Entities provided by the Secretary of State of Texas dated as of a recent date with respect to the opinion in paragraphs (i) above and (ii) assumed that all documents submitted to such counsel as originals are authentic, and all copies submitted to such counsel conform to the originals thereof, and that the signatures on all documents examined by such counsel are genuine.
The opinions expressed by such counsel may be limited to the laws of the State of Oklahoma, excepting therefrom municipal and local ordinances and regulations. Such counsel need not express an opinion with respect to (i) title to any of the real or personal property, (ii) the accuracy of descriptions or references to real or personal property, (iii) permits to own or operate any real or personal property or (iv) with respect to state or local taxes or tax statutes including,
without limitation, those to which any of the limited partners of the MarkWest Entities may be subject.
In rendering such opinion, such counsel shall state that each of the MarkWest Entities, Vinson & Elkins L.L.P. and Latham & Watkins LLP are hereby authorized to rely upon such opinion letter as if such opinion letter were addressed and delivered to each of them.
(e) The Representative shall have received on the Closing Date, from Latham & Watkins LLP, counsel to the Underwriters, such opinion or opinions, dated the Closing Date with respect to such matters as the Representative may reasonably require; and the Issuers shall have furnished to such counsel such documents as they reasonably request for the purposes of enabling them to review or pass on the matters referred to in this Section 7 and in order to evidence the accuracy, completeness and satisfaction of the representations, warranties and conditions herein contained.
(f) At the time of the execution of this Agreement, the Representative shall have received from Deloitte & Touche LLP, independent registered public accountants, a letter or letters dated such date, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letters for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants comfort letters to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus; provided that the cut-off date for the procedures performed by such accountants and described in such letters shall be a date not more than five days prior to the date of such letter.
(g) On the Closing Date, the Representatives shall have received from Deloitte & Touche LLP a letter, dated as of the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to paragraph (f) of this Section 7, except that the date referred to in the proviso in Section 7(f) hereof shall be a date not more than three business days prior to the Closing Date.
(h) Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) none of the MarkWest Entities shall have sustained since the date of the latest financial statements included in the Registration Statement, Preliminary Prospectus and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree; and (ii) subsequent to the respective dates as of which such information is given in the Registration Statement, Preliminary Prospectus and the Prospectus, none of the MarkWest Entities shall have incurred any liability or obligation, direct or contingent, or entered into any transactions, and there shall not have been any change in the issued and outstanding equity interests or short-term or long-term debt of the MarkWest Entities or any change, or any development involving or which might reasonably be expected to involve a prospective change in the condition (financial or other), net worth, business, affairs, management, prospects, results of operations or cash flow of the Partnership or its subsidiaries, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the
Representative so material or adverse as to make it impracticable or inadvisable to proceed with the public offering, sale or the delivery of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus.
(i) The Underwriters shall have received on the Closing Date a certificate of each of the Issuers, signed on behalf of the Partnership by the Chief Executive Officer and the Chief Financial Officer of MarkWest Energy GP and signed on behalf of Finance Corp by its Chief Executive Officer and Chief Financial Officer, each dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Pricing Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Notes, and this Agreement and that:
(i) the representations and warranties of the MarkWest Entities in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Partnership or Finance Corp, as the case may be, has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the MarkWest Entities knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Pricing Disclosure Package and the Prospectus; and
(iv) in their opinion, (1) the Registration Statement, as of the most recent Effective Date, (2) the Prospectus, as of the date of the Prospectus and as of the Closing Date, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(j) The Representative shall have received on and as of the Closing Date a certificate of an executive officer of each of the Guarantors to the effect that (i) such officer has reviewed the Pricing Disclosure Package and Prospectus, (ii) the representations and warranties of such Guarantor in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and (iii) such Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(k) The MarkWest Entities shall not have failed, refused, or been unable, at or prior to the Closing Date to have performed any agreement on their part to be performed or any of the conditions herein contained and required to be performed or satisfied by them at or prior to the Closing Date.
(l) The Issuers shall have furnished to the Representative at the Closing Date such further information, opinions, certificates, letters and documents as the Underwriter may have reasonably requested.
(m) There shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Partnership or any of its subsidiaries by any nationally recognized statistical rating organization, as that term is used by the Commission for purposes of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act.
(n) The Issuers, the Guarantors and the Trustee shall have executed and delivered the Indenture, the Issuers shall have executed and delivered the Notes and the Guarantors shall have executed and delivered the Guarantees.
All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to the Representative and to Latham & Watkins LLP, counsel for the Underwriters. The Issuers will furnish the Representative with such signed and conformed copies of such opinions, certificates, letters and documents as the Representative may reasonably request.
If any of the conditions specified above in this Section 7 shall not have been satisfied at or prior to the Closing Date or waived by the Representative in writing, this Agreement may be terminated by the Representative on notice to the Issuers.
8. Indemnification and Contribution.
(a) The MarkWest Entities, jointly and severally, agree to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act and each selling agent of any Underwriter who has, or who is alleged to have, participated in the distribution of Securities as an Underwriter, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any Preliminary Prospectus, the Pricing Disclosure Package, any Issuer Free Writing Prospectus as defined in Rule 433(h) under the Securities Act, any information that the Issuers have filed, or are required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or supplement thereto, or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Issuers through the Representative by or on behalf of any Underwriter expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless each of the MarkWest Entities and each of their directors, each of their officers who sign the Registration Statement and each person, if any, who controls the MarkWest Entities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the MarkWest Entities to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Issuers through the Representative by or on behalf of any Underwriter expressly for use in the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus or any amendment or supplement thereto. Each of the MarkWest Entities acknowledges that the statements set forth (i) on the cover page regarding delivery of the Notes and (ii) under the heading Underwriting (Conflicts of Interest), (A) the sentences related to concessions and (B) the paragraph related to stabilization, in each case contained in any Preliminary Prospectus and the Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriter for inclusion in any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the indemnified party) shall promptly notify the person against whom such indemnity may be sought (the indemnifying party) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (A) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act or who are selling agents of any Underwriter and (B) the fees and expenses of more than one separate firm (in addition to any local counsel) for the MarkWest Entities, their directors, their officers who sign the Registration Statement and each person, if any, who
controls the MarkWest Entities within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons, affiliates and selling agents of any Underwriter, such firm shall be designated in writing by the Representative. In the case of any such separate firm for the MarkWest Entities, and such directors, officers and control persons of the MarkWest Entities, such firm shall be designated in writing by the Issuers. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent (which consent shall not be unreasonably withheld), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld), effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the MarkWest Entities on the one hand and the Underwriters on the other hand from the offering of the Notes or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the MarkWest Entities on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the MarkWest Entities on the one hand and the Underwriters on the other hand in connection with the offering of the Notes shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Notes (before deducting expenses) received by the MarkWest Entities and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate public offering price of the Notes. The relative fault of the MarkWest Entities on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the MarkWest Entities or the Underwriter and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters respective obligations to contribute pursuant to this Section 8 are several in proportion to the principal amount of Notes they have purchased hereunder, and not joint.
(e) The MarkWest Entities and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Notes underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the MarkWest Entities contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter, any affiliate of any Underwriter or any selling agent of any Underwriter, or by or on behalf of the MarkWest Entities, each of their officers or directors or any person controlling the MarkWest Entities and (iii) acceptance of and payment for any of the Notes.
9. Termination. The Underwriters may terminate this Agreement by notice given by the Representative to the Issuers, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, the New York Stock Exchange or the NASDAQ Global Market, (ii) trading of any securities of the Issuers shall have been suspended on any exchange or in any over-the-counter market other than resulting from an event described in clause (i) above, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in the Representatives judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in the Representatives judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
10. Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto. If, on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase Notes that it has or they have agreed to purchase hereunder on such date, and the principal amount of Notes that such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of the Notes to be purchased pursuant hereto, the other Underwriters shall be obligated severally in the proportions that the principal amount of Notes set forth opposite their respective names in Schedule III bears to the aggregate principal amount of Notes set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representatives may specify, to purchase the Notes that such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of Notes that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth of such principal amount of Notes without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase the Notes and the principal amount of Notes with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Notes to be purchased pursuant hereto, and arrangements satisfactory to the Representatives and the Issuers for the purchase of such Notes are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the MarkWest Entities, except that the MarkWest Entities will continue to be liable for the payment of expenses to the extent set forth in Sections 6 and 11. In any such case, the Representatives or the MarkWest Entities shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Pricing Disclosure Package, in the Prospectus or in any other documents or arrangements may be effected. As used in this Agreement, the term Underwriter includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule III hereto that, pursuant to this Section 10, purchases Notes that a defaulting Underwriter agreed but failed to purchase.
11. Reimbursement of Underwriters Expenses. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto. If this Agreement shall be terminated by the Underwriters (other than as a result of the events described in Section 9 or Section 10), or any of them because of any failure or refusal on the part of the MarkWest Entities to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the MarkWest Entities shall be unable to perform their respective obligations under this Agreement, the MarkWest Entities will reimburse the Underwriters, or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out of pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
12. Research Analyst Independence. The MarkWest Entities acknowledge that the Underwriters research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters research analysts may hold views and make
statements or investment recommendations and/or publish research reports with respect to the Issuers and/or the offering that differ from the views of their respective investment banking divisions. The MarkWest Entities hereby waive and release, to the fullest extent permitted by law, any claims that the MarkWest Entities may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the MarkWest Entities by such Underwriters investment banking divisions. The MarkWest Entities acknowledge that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
13. No Fiduciary Duty. The MarkWest Entities acknowledge and agree that in connection with this offering and sale of the Notes or any other services the Underwriter may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters: (i) no fiduciary or agency relationship between the MarkWest Entities and any other person, on the one hand, and the Underwriter, on the other, exists; (ii) the Underwriters are not acting as advisors, expert or otherwise, to any of the MarkWest Entities, including, without limitation, with respect to the determination of the public offering price of the Notes, and such relationship between the MarkWest Entities, on the one hand, and the Underwriters, on the other, is entirely and solely commercial, based on arms-length negotiations; (iii) any duties and obligations that the Underwriters may have to the MarkWest Entities shall be limited to those duties and obligations specifically stated herein; and (iv) the Underwriters and their respective affiliates may have interests that differ from those of the MarkWest Entities. The MarkWest Entities hereby waive any claims that they may have against the Underwriters with respect to any breach of fiduciary duty in connection with this offering.
14. Notices, Etc. All communications hereunder shall be in writing and effective only upon receipt and shall be delivered, mailed or sent to the addresses set forth as follows:
To the Underwriter: |
Barclays Capital Inc. |
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745 Seventh Avenue |
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New York, New York 10019 |
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Attention: Syndicate Registration |
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(Fax: (646) 843-8133) |
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To the Issuers: |
MarkWest Energy Partners, L.P. |
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1515 Arapahoe Street, Tower I |
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Suite 1600 |
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Denver, Colorado 80202-2126 |
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Attn: Nancy K. Buese |
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(Fax: (303) 925-9308) |
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With a copy to: |
Cory Bromley |
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Fax: (303) 925-9308 |
15. Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Issuers, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
16. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the Underwriters, the MarkWest Entities and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (A) the representations, warranties, indemnities and agreements of the MarkWest Entities contained in this Agreement shall also be deemed to be for the benefit of the directors, officers and employees of the Underwriters and each person or persons, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 of the Securities Act who has, or who is alleged to have, participated in the distribution of Securities as an underwriter and (B) the representations, warranties, indemnities and agreements of the Underwriters contained in Section 5(b) and Section 8(b) of this Agreement shall be deemed to be for the benefit the respective directors, managers and officers of the MarkWest Entities, the officers of the MarkWest Entities who have signed the Registration Statement and any person controlling any of the MarkWest Entities within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 15, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
17. Survival. The respective indemnities, representations, warranties and agreements of the MarkWest Entities and the Underwriters contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Notes and shall remain in full force and effect, regardless of any investigation made by or on behalf of any of them or any person controlling any of them.
18. Definition of the Terms Business Day and Subsidiary. For purposes of this Agreement, (a) business day means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close and (b) subsidiary has the meaning set forth in Rule 405 of the Rules and Regulations.
19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
20. Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument.
21. Headings. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the MarkWest Entities, on the one hand, and the Underwriters, on the other hand, please indicate your acceptance in the space provided for that purpose below.
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Very truly yours, | ||
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MARKWEST ENERGY FINANCE CORPORATION | ||
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer | |
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MARKWEST ENERGY PARTNERS, L.P. | ||
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer | |
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MARKWEST HYDROCARBON, INC. | ||
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer |
Signature Page to Underwriting Agreement
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MARKWEST ENERGY GP, L.L.C. | ||
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer | |
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MASON PIPELINE LIMITED LIABILITY COMPANY | ||
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By: |
MarkWest Hydrocarbon, Inc., |
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its Sole Member |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer | |
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MARKWEST ENERGY OPERATING COMPANY, L.L.C. | ||
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer |
Signature Page to Underwriting Agreement
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MARKWEST BLACKHAWK, L.L.C. | ||
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MARKWEST ENERGY APPALACHIA, L.L.C. | ||
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MARKWEST ENERGY EAST TEXAS GAS COMPANY, L.L.C. | ||
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MARKWEST GAS MARKETING, L.L.C. | ||
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MARKWEST GAS SERVICES, L.L.C. | ||
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MARKWEST JAVELINA COMPANY, L.L.C. | ||
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MARKWEST JAVELINA PIPELINE COMPANY, L.L.C. | ||
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MARKWEST LIBERTY GAS GATHERING, L.L.C. | ||
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MARKWEST LUFKIN PIPELINE, L.L.C. | ||
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MARKWEST MARKETING, L.L.C. | ||
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MARKWEST MOUNTAINEER PIPELINE COMPANY, L.L.C. | ||
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MARKWEST NEW MEXICO, L.L.C. | ||
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MARKWEST PINNACLE, L.L.C. | ||
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MARKWEST PIPELINE COMPANY, L.L.C. | ||
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MARKWEST PNG UTILITY, L.L.C. | ||
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MARKWEST POWER TEX, L.L.C. | ||
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MARKWEST TEXAS LPG PIPELINE, L.L.C. | ||
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MARKWEST TEXAS PNG UTILITY, L.L.C. | ||
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MARKWEST UTICA OPERATING COMPANY, L.L.C. | ||
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Sole Member |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer |
Signature Page to Underwriting Agreement
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MARKWEST MICHIGAN PIPELINE COMPANY, L.L.C. | ||
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Managing Member |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer | |
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MATREX, L.L.C. | ||
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By: |
West Shore Processing Company L.L.C., |
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its Sole Member and Manager |
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Sole Member and Manager |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer |
Signature Page to Underwriting Agreement
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MARKWEST RANGER PIPELINE COMPANY, L.L.C. | ||
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By: |
MarkWest Energy Appalachia, L.L.C., |
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its Sole Member |
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Sole Member |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer | |
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MARKWEST MCALESTER, L.L.C. | ||
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By: |
MarkWest Oklahoma Gas Company, L.L.C., |
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its Sole Member |
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Managing Member |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer |
Signature Page to Underwriting Agreement
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WEST SHORE PROCESSING COMPANY L.L.C. | ||
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Sole Member and Manager |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer |
Signature Page to Underwriting Agreement
Accepted as of the date hereof: |
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BARCLAYS CAPITAL INC. |
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As Representative of the several Underwriters listed in Schedule III hereto. |
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By: |
/s/ Paul Cugno |
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Name: Paul Cugno |
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Title: Managing Director |
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Signature Page to Underwriting Agreement
SCHEDULE I
ISSUER FREE WRITING PROSPECTUS
Filed Pursuant to Rule 433
Registration No. 333-184605
January 7, 2013
Pricing Term Sheet
4.500% Senior Notes due 2023
Issuers: |
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MarkWest Energy Partners, L.P.; MarkWest Energy Finance Corporation |
Guarantees: |
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Unconditionally guaranteed by certain subsidiaries of MarkWest Energy Partners, L.P. |
Security Type: |
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Senior Unsecured Notes |
Form: |
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SEC Registered |
Pricing Date: |
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January 7, 2013 |
Settlement Date: |
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January 10, 2013 |
Maturity Date: |
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July 15, 2023 |
Principal Amount: |
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$1,000,000,000 |
Yield to Maturity: |
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4.500% |
Coupon: |
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4.500% |
Public Offering Price: |
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100.000% |
Gross Proceeds: |
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$1,000,000,000 |
Net Proceeds After Expenses to the Issuers: |
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$986,900,000 |
Redemption Provisions: |
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At any time prior to April 15, 2023, the Issuers may redeem, at their option, all or part of the notes at any time at a redemption price equal to the greater of (i) 100% of the principal amount of the notes or (ii) the sum of the present values of the remaining scheduled payments of principal and interest from the redemption date to July 15, 2023 (exclusive of accrued interest) at a discount rate of Treasury plus 50 basis points, plus, in each case, any accrued but unpaid interest to the date of redemption.
On or after April 15, 2023 the Issuers may redeem, at their option, all or part of the notes at any time, at a price of 100% of the principal amount of the notes, plus any accrued but unpaid interest to the date of redemption. |
Interest Payment Dates: |
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January 15 and July 15, commencing July 15, 2013 |
Interest Payment Record Dates: |
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January 1 and July 1 |
Change of Control: |
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Put at 101% of principal plus accrued interest |
Denominations: |
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$2,000 and integral multiples of $1,000 |
CUSIP / ISIN: |
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CUSIP: 570506AR6 / ISIN: US570506AR67 |
Joint Book-Running Managers: |
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Barclays Capital Inc. Merrill Lynch, Pierce, Fenner & Smith Incorporated Citigroup Global Markets Inc. Goldman, Sachs & Co. J.P. Morgan Securities LLC Morgan Stanley & Co. LLC Natixis Securities Americas LLC RBC Capital Markets, LLC |
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SunTrust Robinson Humphrey, Inc. UBS Securities LLC U.S. Bancorp Investments, Inc. Wells Fargo Securities, LLC |
Co-Managers |
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Capital One Southcoast, Inc. Comerica Securities, Inc. |
Additional Information:
The issuers have filed a registration statement (including a prospectus) with the U.S. Securities and Exchange Commission (SEC) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuers have filed with the SEC for more complete information about the issuers and this offering. You may get these documents for free by visiting EDGAR on the SEC web site at http://www.sec.gov. Alternatively, the issuers, any Underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Barclays Capital Inc. toll-free at 1-888-603-5874.
SCHEDULE II
FOREIGN QUALIFICATIONS
MarkWest Energy GP, L.L.C.
Colorado
Michigan
West Virginia
MarkWest Energy Partners, L.P.
Colorado
Kentucky
Michigan
West Virginia
Bright Star Partnership
None
Centrahoma Processing LLC
Oklahoma
MarkWest Blackhawk, L.L.C.
None
MarkWest Energy Appalachia, L.L.C.
Colorado
Kentucky
West Virginia
MarkWest Energy East Texas Gas Company, L.L.C.
None
MarkWest Energy Finance Corporation
None
MarkWest Energy Operating Company, L.L.C.
Colorado
Michigan
Ohio
West Virginia
MarkWest Gas Marketing, L.L.C.
None
MarkWest Gas Services, L.L.C
None
MarkWest Hydrocarbon, Inc.
Alabama
Colorado
Georgia
Indiana
Kentucky
Michigan
Mississippi
Ohio
Pennsylvania
South Carolina
Tennessee
Texas
Virginia
West Virginia
MarkWest Javelina Company, L.L.C.
None
MarkWest Javelina Pipeline Company, L.L.C.
None
MarkWest Liberty Bluestone, L.L.C.
Pennsylvania
MarkWest Liberty Ethane Pipeline, L.L.C.
Pennsylvania
MarkWest Liberty Gas Gathering, L.L.C.
Pennsylvania
MarkWest Liberty Midstream & Resources, L.L.C.
Colorado
Ohio
Pennsylvania
West Virginia
MarkWest Lufkin Pipeline, L.L.C.
None
MarkWest Mariner Pipeline, L.L.C.
Pennsylvania
MarkWest Marketing, L.L.C.
Oklahoma
MarkWest McAlester, L.L.C
None
MarkWest Michigan Pipeline Company, L.L.C.
None
MarkWest Mountaineer Pipeline Company, L.L.C.
West Virginia
MarkWest New Mexico, L.L.C
None
MarkWest Ohio Fractionation Company, L.L.C.
Ohio
MarkWest Oklahoma Gas Company, L.L.C.
Texas
MarkWest Pinnacle, L.L.C
Louisiana
Mississippi
New Mexico
MarkWest Pioneer, L.L.C.
Oklahoma
MarkWest Pipeline Company, L.L.C.
None
MarkWest PNG Utility, L.L.C.
None
MarkWest Power Tex, L.L.C.
None
MarkWest Ranger Pipeline Company, L.L.C.
Kentucky
West Virginia
MarkWest Texas LPG Pipeline, L.L.C.
None
MarkWest Texas PNG Utility, L.L.C.
None
MarkWest Utica EMG, L.L.C.
Ohio
MarkWest Utica Operating Company, L.L.C.
None
Mason Pipeline Limited Liability Company
None
Matrex, L.L.C.
None
Mule Tracts, L.L.C.
Ohio
Pennsylvania
West Virginia
Ohio Gathering Company, L.L.C.
Ohio
West Shore Processing Company, L.L.C.
Colorado
Wirth Gathering, a General Partnership
None
SCHEDULE III
UNDERWRITERS
Name of Underwriter |
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Principal |
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Barclays Capital Inc. |
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$ |
140,000,000 |
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Merrill Lynch, Pierce, Fenner & Smith |
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$ |
70,000,000 |
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Citigroup Global Markets Inc. |
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$ |
70,000,000 |
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Goldman, Sachs & Co. |
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$ |
70,000,000 |
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J.P. Morgan Securities LLC |
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$ |
70,000,000 |
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Morgan Stanley & Co. LLC |
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$ |
70,000,000 |
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Natixis Securities Americas LLC |
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$ |
70,000,000 |
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RBC Capital Markets LLC |
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$ |
70,000,000 |
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SunTrust Robinson Humphrey, Inc. |
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$ |
70,000,000 |
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UBS Securities LLC |
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$ |
70,000,000 |
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U.S. Bancorp Investments, Inc. |
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$ |
70,000,000 |
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Wells Fargo Securities, LLC |
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$ |
70,000,000 |
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Capital One Southcoast, Inc. |
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$ |
45,000,000 |
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Comerica Securities, Inc. |
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$ |
45,000,000 |
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Total |
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$ |
1,000,000,000 |
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Exhibit 4.1
Execution Version
MARKWEST ENERGY PARTNERS, L.P.,
MARKWEST ENERGY FINANCE CORPORATION, as Issuers,
THE SUBSIDIARIES NAMED HEREIN, as Subsidiary Guarantors
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
4.5% Senior Notes due 2023
TENTH SUPPLEMENTAL INDENTURE
Dated as of January 10, 2013
CROSS-REFERENCE TABLE*
Trust Indenture |
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Supplemental | |
310 |
(a)(1) |
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8.10 |
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(a)(2) |
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8.10 |
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(a)(3) |
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N.A. |
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(a)(4) |
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N.A. |
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(a)(5) |
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8.10 |
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(b) |
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8.10 |
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(c) |
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N.A. |
311 |
(a) |
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8.11 |
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(b) |
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8.11 |
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(c) |
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N.A. |
312 |
(a) |
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3.08 |
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(b) |
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13.02 |
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(c) |
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13.02 |
313 |
(a) |
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8.06 |
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(b)(1) |
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N.A. |
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(b)(2) |
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8.06 |
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(c) |
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8.06; 13.02 |
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(d) |
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8.06 |
314 |
(a) |
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5.03; 5.17; 13.02 |
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(b) |
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N.A. |
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(c)(1) |
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13.04 |
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(c)(2) |
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13.04 |
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(c)(3) |
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N.A. |
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(d) |
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N.A. |
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(e) |
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12.05 |
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(f) |
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N.A. |
315 |
(a) |
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7.01 |
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(b) |
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8.05; 13.02 |
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(c) |
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8.01 |
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(d) |
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8.01; 7.05 |
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(e) |
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7.11 |
316 |
(a)(last sentence) |
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3.11 |
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(a)(1)(A) |
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7.05 |
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(a)(1)(B) |
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7.04 |
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(a)(2) |
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N.A. |
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(b) |
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7.07 |
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(c) |
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10.04 |
317 |
(a)(1) |
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7.08 |
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(a)(2) |
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7.09 |
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(b) |
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3.07 |
318 |
(a) |
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13.01 |
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(b) |
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N.A. |
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(c) |
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13.01 |
N.A. means not applicable.
*This Cross-Reference Table is not part of this Supplemental Indenture.
TABLE OF CONTENTS
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Page |
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ARTICLE I APPLICATION OF SUPPLEMENTAL INDENTURE |
2 | |
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Section 1.01 |
Application of this Supplemental Indenture |
2 |
Section 1.02 |
Effect of Supplemental Indenture |
2 |
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ARTICLE II DEFINITIONS AND INCORPORATION BY REFERENCE |
4 | |
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Section 2.01 |
Definitions |
4 |
Section 2.02 |
Other Definitions |
28 |
Section 2.03 |
Incorporation by Reference of Trust Indenture Act |
29 |
Section 2.04 |
Rules of Construction |
29 |
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ARTICLE III THE NOTES |
30 | |
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Section 3.01 |
Forms Generally |
30 |
Section 3.02 |
Form of Legend for Global Notes |
30 |
Section 3.03 |
Title and Terms |
31 |
Section 3.04 |
Denominations |
31 |
Section 3.05 |
Execution and Authentication |
31 |
Section 3.06 |
Registration, Registration of Transfer and Exchange |
32 |
Section 3.07 |
Paying Agent to Hold Money in Trust |
34 |
Section 3.08 |
Holder Lists |
34 |
Section 3.09 |
Mutilated, Destroyed, Lost and Stolen Notes |
34 |
Section 3.10 |
Outstanding Notes |
35 |
Section 3.11 |
Treasury Notes |
35 |
Section 3.12 |
Payment of Interest; Interest Rights Preserved |
35 |
Section 3.13 |
Persons Deemed Owners |
36 |
Section 3.14 |
Temporary Notes |
36 |
Section 3.15 |
Cancellation |
37 |
Section 3.16 |
Computation of Interest |
37 |
Section 3.17 |
Global Securities |
37 |
Section 3.18 |
CUSIP Numbers |
37 |
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ARTICLE IV REDEMPTION AND PREPAYMENT OF NOTES |
37 | |
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Section 4.01 |
Notices to Trustee |
37 |
Section 4.02 |
Selection of Notes to Be Redeemed |
38 |
Section 4.03 |
Notice of Redemption |
38 |
Section 4.04 |
Effect of Notice of Redemption |
39 |
Section 4.05 |
Deposit of Redemption Price |
39 |
Section 4.06 |
Notes Redeemed in Part |
40 |
Section 4.07 |
Optional Redemption |
40 |
Section 4.08 |
Mandatory Redemption |
40 |
Section 4.09 |
Offer to Purchase by Application of Net Proceeds |
41 |
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ARTICLE V COVENANTS |
42 | |
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Section 5.01 |
Payment of Notes |
42 |
Section 5.02 |
Maintenance of Office or Agency |
43 |
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Page |
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Section 5.03 |
Compliance Certificate |
43 |
Section 5.04 |
Taxes |
44 |
Section 5.05 |
Stay, Extension and Usury Laws |
44 |
Section 5.06 |
Change of Control |
44 |
Section 5.07 |
Asset Sales |
47 |
Section 5.08 |
Restricted Payments |
49 |
Section 5.09 |
Incurrence of Indebtedness and Issuance of Disqualified Equity |
52 |
Section 5.10 |
Liens |
55 |
Section 5.11 |
Dividend and Other Payment Restrictions Affecting Subsidiaries |
55 |
Section 5.12 |
Transactions With Affiliates |
57 |
Section 5.13 |
Additional Subsidiary Guarantees |
58 |
Section 5.14 |
Designation of Restricted and Unrestricted Subsidiaries |
59 |
Section 5.15 |
Business Activities |
59 |
Section 5.16 |
Sale and Leaseback Transactions |
59 |
Section 5.17 |
Reports |
60 |
Section 5.18 |
Termination of Covenants |
61 |
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ARTICLE VI SUCCESSORS |
61 | |
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Section 6.01 |
Merger, Consolidation, or Sale of Assets |
61 |
Section 6.02 |
Successor Entity Substituted |
63 |
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ARTICLE VII DEFAULTS AND REMEDIES |
64 | |
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Section 7.01 |
Events of Default |
64 |
Section 7.02 |
Acceleration |
67 |
Section 7.03 |
Other Remedies |
67 |
Section 7.04 |
Waiver of Past Defaults |
67 |
Section 7.05 |
Control by Majority |
67 |
Section 7.06 |
Limitation on Suits |
68 |
Section 7.07 |
Rights of Holders of Notes to Receive Payment |
68 |
Section 7.08 |
Collection Suit by Trustee |
68 |
Section 7.09 |
Trustee May File Proofs of Claim |
69 |
Section 7.10 |
Priorities |
69 |
Section 7.11 |
Undertaking for Costs |
70 |
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ARTICLE VIII TRUSTEE |
70 | |
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Section 8.01 |
Duties of Trustee |
70 |
Section 8.02 |
Rights of Trustee |
71 |
Section 8.03 |
Individual Rights of Trustee |
73 |
Section 8.04 |
Trustees Disclaimer |
73 |
Section 8.05 |
Notice of Defaults |
74 |
Section 8.06 |
Reports by Trustee to Holders of the Notes |
74 |
Section 8.07 |
Compensation and Indemnity |
74 |
Section 8.08 |
Replacement of Trustee |
75 |
Section 8.09 |
Successor Trustee by Merger, Etc. |
76 |
Section 8.10 |
Eligibility; Disqualification |
76 |
Section 8.11 |
Preferential Collection of Claims Against Issuers |
77 |
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Page |
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Section 8.12 |
U.S.A. Patriot Act |
77 |
Section 8.13 |
Force Majeure |
77 |
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ARTICLE IX LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
77 | |
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Section 9.01 |
Option to Effect Legal Defeasance or Covenant Defeasance |
77 |
Section 9.02 |
Legal Defeasance and Discharge |
78 |
Section 9.03 |
Covenant Defeasance |
78 |
Section 9.04 |
Conditions to Legal Defeasance or Covenant Defeasance |
79 |
Section 9.05 |
Deposited Money and Government Securities to be Held in Trust, Other Miscellaneous Provisions |
80 |
Section 9.06 |
Reinstatement |
80 |
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ARTICLE X AMENDMENT, SUPPLEMENT AND WAIVER |
81 | |
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Section 10.01 |
Without Consent of Holders of Notes |
81 |
Section 10.02 |
With Consent of Holders of Notes |
82 |
Section 10.03 |
Compliance with Trust Indenture Act |
83 |
Section 10.04 |
Revocation and Effect of Consents |
84 |
Section 10.05 |
Notation or Exchange of Notes |
84 |
Section 10.06 |
Trustee to Sign Amendments, Etc. |
84 |
Section 10.07 |
Effect of Supplemental Indentures |
85 |
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ARTICLE XI GUARANTEES |
85 | |
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Section 11.01 |
Guarantees |
85 |
Section 11.02 |
Limitation of Guarantors Liability |
86 |
Section 11.03 |
Execution and Delivery of Notations of Guarantees |
86 |
Section 11.04 |
Releases |
87 |
Section 11.05 |
Trustee to Include Paying Agent |
88 |
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ARTICLE XII SATISFACTION AND DISCHARGE |
88 | |
|
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Section 12.01 |
Satisfaction and Discharge |
88 |
Section 12.02 |
Application of Trust |
89 |
Section 12.03 |
Repayment of the Issuers |
90 |
Section 12.04 |
Reinstatement |
90 |
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ARTICLE XIII MISCELLANEOUS |
90 | |
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Section 13.01 |
Notices |
90 |
Section 13.02 |
Communication by Holders of Notes with Other Holders of Notes |
92 |
Section 13.03 |
Certificate and Opinion as to Conditions Precedent |
92 |
Section 13.04 |
Statements Required in Certificate or Opinion |
93 |
Section 13.05 |
No Personal Liability of Directors, Officers, Employees and Unitholders and No Recourse Against General Partner |
93 |
Section 13.06 |
No Adverse Interpretation of Other Agreements |
93 |
Section 13.07 |
Successors |
93 |
Section 13.08 |
Counterpart Originals |
94 |
Section 13.09 |
Indenture and Notes to Be Construed in Accordance with the Laws of the State of New York |
94 |
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Page |
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Section 13.10 |
Provisions Required by TIA to Control |
94 |
Section 13.11 |
Rules by Trustee, Paying Agent and Registrar |
94 |
Section 13.12 |
Severability |
94 |
Section 13.13 |
Table of Contents, Headings, Etc. |
94 |
Subsidiary Guarantors |
Schedule A |
Form of Note |
Exhibit A |
Form of Guarantee |
Exhibit B |
Form of Supplemental Indenture |
Exhibit C |
THIS TENTH SUPPLEMENTAL INDENTURE (this Supplemental Indenture) dated as of January 10, 2013 is among MarkWest Energy Partners, L.P., a Delaware limited partnership (the Partnership), MarkWest Energy Finance Corporation, a Delaware corporation (MarkWest Finance and, together with the Partnership, the Issuers), the Subsidiary Guarantors (as defined herein) listed on Schedule A hereto, and Wells Fargo Bank, National Association, a national banking association, as Trustee under the Indenture, dated as of November 2, 2010, among the Issuers, the Subsidiary Guarantors named therein and the Trustee (the Base Indenture and, as amended and supplemented by this Supplemental Indenture, in respect of the 4.5% Senior Notes due 2023, the Indenture).
RECITALS
The Issuers, certain of the Subsidiary Guarantors and the Trustee have duly authorized, executed and delivered the Base Indenture to provide for the issuance from time to time of the Issuers debentures, notes, bonds or other evidences of indebtedness, to be issued in one or more series unlimited as to principal amount (herein called Debt Securities), which Debt Securities may be guaranteed by each of the Subsidiary Guarantors, as the Base Indenture provides.
Section 9.01 of the Base Indenture provides, among other things, that the Issuers, the Subsidiary Guarantors and the Trustee may enter into indentures supplemental to the Base Indenture, without the consent of any Holders of Debt Securities, to establish the form or terms of any Debt Security as permitted by Sections 2.01 and 2.03 of the Base Indenture.
Pursuant to Sections 2.01 and 2.03 of the Base Indenture, the Issuers desire to execute this Supplemental Indenture to establish the form and terms, and to provide for the issuance, of a fourth series of senior notes designated as 4.5% Senior Notes due 2023 in an aggregate principal amount of $1,000,000,000 (the Initial Notes).
From time to time subsequent to the Issue Date, the Issuers may, if permitted to do so pursuant to the terms of the Indenture, the Initial Notes and the terms of their other Indebtedness existing on such future date, issue additional senior notes of the same series as the Initial Notes in accordance with this Supplemental Indenture (the Additional Notes and, together with the Initial Notes, the Notes), pursuant to this Supplemental Indenture.
The Issuers and the Subsidiary Guarantors are members of the same consolidated group of companies. The Subsidiary Guarantors will derive direct and indirect economic benefit from the issuance of the Notes. Accordingly, each Subsidiary Guarantor has duly authorized the execution and delivery of this Supplemental Indenture to provide for its full, unconditional and joint and several Guarantee of the Notes to the extent provided in or pursuant to the Indenture.
The Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be a part of an indenture qualified under such Act and shall, to the extent applicable, be governed by such provisions.
All things necessary have been done to make the Notes, when executed by the Issuers and authenticated and delivered hereunder and duly issued by the Issuers, the valid obligations of the
Issuers, and all things necessary have been done to make the Guarantees thereof, when the Notes have been executed by the Issuers and authenticated and delivered hereunder and duly issued by the Issuers, the valid obligations of the Subsidiary Guarantors.
All things necessary to make this Supplemental Indenture a valid agreement of each of the Issuers and the Subsidiary Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
APPLICATION OF SUPPLEMENTAL INDENTURE
Section 1.01 Application of this Supplemental Indenture.
Notwithstanding any other provision of this Supplemental Indenture, the provisions of this Supplemental Indenture, including as provided in Section 1.02 below, are expressly and solely for the benefit of the Holders of the Notes and the Guarantees and shall not apply to any other series of Debt Securities that have been issued or that may be issued hereafter under the Base Indenture. The Notes constitute a series of Debt Securities as provided in the Base Indenture. Unless otherwise expressly specified, references in this Supplemental Indenture to specific Article numbers or Section numbers refer to Articles and Sections contained in this Supplemental Indenture, and not the Base Indenture or any other document.
Section 1.02 Effect of Supplemental Indenture.
With respect to the Notes (and any notation of Guarantee endorsed thereon) only, the Base Indenture shall be supplemented and amended pursuant to Section 9.01 thereof to establish the form and terms of the Notes (and any notation of Guarantee endorsed thereon) as set forth in this Supplemental Indenture, including as follows:
(a) Definitions. Article I of the Base Indenture is deleted and replaced in its entirety by the provisions of Article II of this Supplemental Indenture;
(b) Security Forms. Article II of the Base Indenture is deleted and replaced in its entirety by the provisions of Article III of this Supplemental Indenture;
(c) Redemption. The provisions of Article III of the Base Indenture are deleted and replaced in their entirety by the provisions of Article IV of this Supplemental Indenture;
(d) Covenants. The provisions of Article IV of the Base Indenture are deleted and replaced in their entirety by the provisions of Article V of this Supplemental Indenture;
(e) Holders Lists and Reports by Trustee. The provisions of Article V of the Base Indenture are deleted in their entirety;
(f) Remedies of the Trustee and Holders in Event of Default. The provisions of Article VI of the Base Indenture are deleted and replaced in their entirety by the provisions of Article VII of this Supplemental Indenture;
(g) The Trustee. The provisions of Article VII of the Base Indenture are deleted and replaced in their entirety by the provisions of Article VIII of this Supplemental Indenture;
(h) The Holders. The provisions of Article VIII of the Base Indenture are deleted in their entirety;
(i) Supplemental Indentures. The provisions of Article IX of the Base Indenture are deleted and replaced in their entirety by the provisions of Article X of this Supplemental Indenture;
(j) Consolidation, Merger, Sale of Assets. The provisions of Article X of the Base Indenture are deleted and replaced in their entirety by the provisions of Article VI of this Supplemental Indenture;
(k) Satisfaction and Discharge; Defeasance. The provisions of Article XI of the Base Indenture are deleted and replaced in their entirety by the provisions of Article IX and Article XII of this Supplemental Indenture;
(l) Guarantees. The provisions of Article XIV of the Base Indenture are deleted and replaced in their entirety by the provisions of Article XI of this Supplemental Indenture; and
(m) Miscellaneous. The provisions of Article XIII of the Base Indenture are deleted and replaced in their entirety by the provisions of Article XIII of this Supplemental Indenture:
To the extent that the provisions of this Supplemental Indenture (including those referred to in clauses (a) through (m) above) conflict with any provision of the Base Indenture, the provisions of this Supplemental Indenture shall govern and be controlling, solely with respect to the Notes (and any notation of Guarantee endorsed thereon).
ARTICLE II
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 2.01 Definitions.
Acquired Debt means, with respect to any specified Person:
(a) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such specified Person, but excluding Indebtedness that is extinguished, retired or repaid in connection with such Person merging with or becoming a Subsidiary of such specified Person; and
(b) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, control, as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a specified Person shall be deemed to be control by the other Person; provided, further, that any third Person which also beneficially owns 10% or more of the Voting Stock of a specified Person shall not be deemed to be an Affiliate of either the specified Person or the other Person merely because of such common ownership in such specified Person. For purposes of this definition, the terms controlling, controlled by and under common control with shall have correlative meanings. Notwithstanding the preceding, the term Affiliate shall not include a Restricted Subsidiary of any specified Person.
Agent means any Registrar or Paying Agent.
Asset Sale means:
(a) the sale, lease, conveyance or other disposition of any assets, other than dispositions of any products, equipment or services in the ordinary course of business; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Partnership and its Restricted Subsidiaries taken as a whole will be governed by the provisions of Section 5.06 and/or the provisions of Article VI hereof and not by the provisions of Section 5.07; and
(b) the issuance of Equity Interests by any of the Partnerships Restricted Subsidiaries or the sale by the Partnership or any of its Restricted Subsidiaries of Equity Interests in any of its Restricted Subsidiaries.
Notwithstanding the preceding, the following items shall not be deemed to be Asset Sales:
(a) any single transaction or series of related transactions that: (i) involves assets having a fair market value of less than $25.0 million; or (ii) results in net proceeds to the Partnership and its Restricted Subsidiaries of less than $25.0 million;
(b) a transfer of assets between or among the Partnership and its Restricted Subsidiaries;
(c) an issuance or sale of Equity Interests by a Restricted Subsidiary to the Partnership or to another Restricted Subsidiary of the Partnership;
(d) a Restricted Payment that is permitted under Section 5.08 hereof or a Permitted Investment;
(e) the sale or other disposition of cash or Cash Equivalents, Hedging Obligations or other financial instruments in the ordinary course of business;
(f) any trade or exchange by the Partnership or any of its Restricted Subsidiaries of assets for properties or assets owned or held by another Person, provided that the fair market value of the assets traded or exchanged by the Partnership or such Restricted Subsidiary (together with any cash) is reasonably equivalent to the fair market value of the assets (together with any cash) to be received by the Partnership or such Restricted Subsidiary, and provided further that any cash received must be applied in accordance with the provisions of Section 5.07 hereof;
(g) surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any kind;
(h) the creation or perfection of a Lien that is not prohibited by Section 5.07;
(i) dispositions in connection with Permitted Liens; and
(j) the grant in the ordinary course of business of any non-exclusive license of patents, trademarks, registrations therefor and other similar intellectual property.
Attributable Debt in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided, however, that if such sale and leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of Capital Lease Obligation.
Available Cash has the meaning assigned to such term in the Partnership Agreement, as in effect on the Issue Date.
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
Beneficial Owner has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular person (as that term is used in Section 13(d)(3) of the Exchange Act), such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms Beneficially Owns and Beneficially Owned have correlative meanings. For purposes of this definition, a Person shall be deemed not to Beneficially Own securities that are the subject of a stock purchase agreement, merger agreement, amalgamation agreement, arrangement agreement or similar agreement until consummation of the transactions or, as applicable, series of related transactions contemplated thereby.
Board of Directors means, with respect to the Partnership, the Board of Directors of the General Partner, or any authorized committee of such Board of Directors, and with respect to MarkWest Finance or any other Subsidiary of the Partnership, the Board of Directors or managing members of such Person.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant Secretary of the applicable Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
Business Day means any day other than a Legal Holiday.
Capital Lease Obligation means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP. Notwithstanding the foregoing, any lease (whether entered into before or after the Issue Date) that would have been classified as an operating lease pursuant to GAAP as in effect on the Issue Date will be deemed not to represent a Capital Lease Obligation.
Cash Equivalents means:
(a) United States dollars or, in an amount up to the amount necessary or appropriate to fund local operating expenses, other currencies;
(b) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition;
(c) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers acceptances with maturities not exceeding 365 days, demand and overnight bank deposits and other similar types of investments routinely offered by commercial banks, in each case, with any domestic commercial bank having a combined capital and surplus in excess of $500.0 million and a Thomson BankWatch Rating of B or better or any commercial bank of any other country that is a member of the Organization for Economic Cooperation and Development (OECD) and has total assets in excess of $500.0 million;
(d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c) above;
(e) commercial paper having one of the two highest ratings obtainable from Moodys or Standard & Poors and in each case maturing within six months after the date of acquisition; and
(f) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (a) through (e) of this definition.
Certificated Note means a Note in certificated form registered in the name of the Holder thereof and issued in accordance with Article III hereof, in substantially the form of Exhibit A hereto, except that such Note shall not bear the Global Note Legend and shall not have the Schedule of Exchanges of Interests in the Global Note attached thereto.
Change of Control means the occurrence of any of the following:
(a) the direct or indirect lease, sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets (including Equity Interests of the Restricted Subsidiaries) of the Partnership and its Restricted Subsidiaries taken as a whole, to any person (as that term is used in Section 13(d)(3) of the Exchange Act), which disposition is followed by a Rating Decline within 90 days thereafter;
(b) the adoption of a plan relating to the liquidation or dissolution of the Partnership or the removal of the General Partner by the limited partners of the Partnership;
(c) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person (as that term is used in Section 13(d)(3) of the Exchange Act), excluding the MarkWest Group, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the General Partner, measured by voting power rather than number of shares, units or the like, which occurrence is followed by a Rating Decline within 90 days thereafter;
(d) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the Beneficial Owner, directly or indirectly, of more than
50% of the Voting Stock of the Partnership, measured by voting power rather than number of shares, units or the like, at a time when the Partnership still Beneficially Owns more than 50% of the Voting Stock of the General Partner, measured by voting power rather than number of shares, units or the like, which occurrence is followed by a Rating Decline within 90 days thereafter; or
(e) the first day on which a majority of the members of the Board of Directors of the General Partner are not Continuing Directors, which occurrence is followed by a Rating Decline within 90 days thereafter.
Notwithstanding the preceding, a conversion of the Partnership from a limited partnership to a corporation, limited liability company or other form of entity or an exchange of all of the outstanding limited partnership interests for capital stock in a corporation, for member interests in a limited liability company or for Equity Interests in such other form of entity shall not constitute a Change of Control, so long as following such conversion or exchange the MarkWest Group Beneficially Owns, directly or indirectly, in the aggregate more than 50% of the Voting Stock of such entity, or continues to Beneficially Own a sufficient percentage of Voting Stock of such entity to elect a majority of its directors, managers, trustees or other persons serving in a similar capacity for such entity.
Code means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations thereunder, and any successor thereto.
Comparable Treasury Issue means the United States Treasury security or securities selected by the Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of the Notes.
Comparable Treasury Price means, with respect to any redemption date, the average of the Reference Treasury Dealer Quotations for such redemption date.
Consolidated Cash Flow means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period plus:
(a) an amount equal to any net loss realized by such Person and its Restricted Subsidiaries in connection with an Asset Sale, to the extent such losses were deducted in computing such Consolidated Net Income; plus
(b) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus
(c) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued (including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers acceptance financings), and net of the effect of all payments, made or received pursuant to interest-rate Hedging Obligations, to the extent that any such expense was deducted in computing such Consolidated Net Income; plus
(d) depreciation, depletion and amortization (including amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, depletion, amortization, impairment and other non-cash expenses were deducted in computing such Consolidated Net Income; plus
(e) unrealized non-cash losses resulting from foreign currency balance sheet adjustments required by GAAP to the extent such losses are deducted in computing such Consolidated Net Income; plus
(f) all extraordinary, unusual or non-recurring items of gain or loss, or revenue or expense; minus
(g) non-cash items increasing such Consolidated Net Income for such period, other than items that were accrued in the ordinary course of business;
in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the income or profits of, and the depreciation, depletion and amortization and other non-cash charges of, a Restricted Subsidiary of the Partnership shall be added to Consolidated Net Income to compute Consolidated Cash Flow of the Partnership only to the extent that a corresponding amount would be permitted at the date of determination to be dividended or distributed to the Partnership by such Restricted Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its charter and all agreements (other than the Indenture, the Notes or its Guarantee), instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders, partners or members.
Consolidated Net Income means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:
(a) Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included, but only to the extent of the amount of dividends or distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;
(b) the Net Income of any Restricted Subsidiary shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement (other than the Indenture, the Notes or its Guarantee), instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders, partners or members;
(c) the cumulative effect of a change in accounting principles shall be excluded;
(d) unrealized losses and gains under derivative instruments included in the determination of Consolidated Net Income, including, without limitation, those resulting from the application of Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) 815, shall be excluded; and
(e) any charges relating to any premium or penalty paid, write off of deferred finance costs or other charges in connection with redeeming or retiring any Indebtedness prior to its Stated Maturity shall be excluded.
Consolidated Net Tangible Assets means, with respect to any Person at any date of determination, the aggregate amount of total assets included in such Persons most recent quarterly or annual consolidated balance sheet prepared in accordance with GAAP less applicable reserves reflected in such balance sheet, after deducting the following amounts: (1) all current liabilities reflected in such balance sheet, and (2) all goodwill, trademarks, patents, unamortized debt discounts and expenses and other like intangibles reflected in such balance sheet.
continuing means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.
Continuing Directors means, as of any date of determination, any member of the Board of Directors of the General Partner who (1) was a member of such Board of Directors on the Issue Date or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.
Corporate Trust Office shall be at the address of the Trustee specified in Section 13.01 hereof or such other address as to which the Trustee may give notice to the Issuers.
Credit Agreement means that certain Amended and Restated Credit Agreement, dated July 1, 2010, among the Partnership, the banks parties thereto and Wells Fargo Bank, National Association, as administrative agent, consisting of a revolver loan, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time.
Credit Facilities means, with respect to the Partnership, MarkWest Finance or any Restricted Subsidiary, one or more credit facilities, indentures or commercial paper facilities, including the Credit Agreement, providing for revolving credit loans, term loans, capital market financings, private placements, receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time.
Customary Recourse Exceptions means, with respect to any Non-Recourse Debt of an Unrestricted Subsidiary, exclusions from the exculpation provisions with respect to such Non-Recourse Debt for fraud, misapplication of cash, waste, willful destruction, bad faith and other circumstances customarily excluded by lenders from exculpation provisions or included in separate indemnification agreements in non-recourse financings.
Debt Security or Debt Securities has the meaning stated in the first recital of this Supplemental Indenture.
Default means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
Depositary means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 3.06 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of the Indenture.
Disqualified Equity means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, any Equity Interest that would constitute Disqualified Equity solely because the holders thereof have the right to require the Partnership or any of its Restricted Subsidiaries to repurchase such Equity Interest upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Equity if the terms of such Equity Interest provide that the Partnership or Restricted Subsidiary may not repurchase or redeem any such Equity Interest pursuant to such provisions unless such repurchase or redemption complies with Section 5.08 hereof.
Domestic Subsidiary means any Restricted Subsidiary of the Partnership that was formed under the laws of the United States or any state of the United States or the District of Columbia.
Equity Interests means:
(a) in the case of a corporation, corporate stock;
(b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(c) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited);
(d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person; and
(e) all warrants, options or other rights to acquire any of the interests described in clauses (a) through (d) above (but excluding any debt security that is convertible into, or exchangeable for, any of the interests described in clauses (a) through (d) above).
Exchange Act means the Securities Exchange Act of 1934, as amended.
Existing Indebtedness means the aggregate principal amount of Indebtedness of the Partnership and its Restricted Subsidiaries in existence on the Issue Date.
The term fair market value means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Board of Directors of the General Partner in the case of amounts of $30.0 million or more and otherwise by an Officer of the General Partner.
Fixed Charge Coverage Ratio means, with respect to any specified Person for any four-quarter reference period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, redeems, defeases or otherwise retires any Indebtedness (other than revolving credit borrowings not constituting a permanent commitment reduction) or issues, repurchases or redeems Disqualified Equity subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the Calculation Date), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, repayment, redemption, defeasance or other retirement of Indebtedness, or such issuance, repurchase or redemption of Disqualified Equity, and the application of the net proceeds thereof as if the same had occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(a) acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers, consolidations or otherwise (including acquisitions of assets used in a Permitted Business), and including in each case any related financing transactions (including repayment of Indebtedness) during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date, will be given pro forma effect as if they had occurred on the first day of the four-quarter reference period, including any Consolidated Cash Flow and any pro forma expense and cost reductions that have occurred or are reasonably expected to occur, in the reasonable judgment of the chief
financial or accounting officer of such Person (regardless of whether those cost savings or operating improvements could then be reflected in pro forma financial statements in accordance with Regulation S-X promulgated under the Securities Act or any other regulation or policy of the SEC related thereto);
(b) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, shall be excluded;
(c) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, shall be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date;
(d) interest on outstanding Indebtedness of the specified Person or any of its Restricted Subsidiaries as of the last day of the four-quarter reference period shall be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on such last day after giving effect to any Hedging Obligation then in effect; and
(e) if interest on any Indebtedness incurred by the specified Person or any of its Restricted Subsidiaries on such date may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate or other rates, then the interest rate in effect on the last day of the four-quarter reference period will be deemed to have been in effect during such period.
Fixed Charges means, with respect to any Person for any period, the sum, without duplication, of:
(a) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, imputed interest with respect to Attributable Debt, commissions, discounts, and other fees and charges incurred in respect of letter of credit or bankers acceptance financings, and net of the effect of all payments made or received pursuant to interest-rate Hedging Obligations; plus
(b) the consolidated interest expense of such Person and its Restricted Subsidiaries that was capitalized during such period; plus
(c) any interest expense on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such guarantee or Lien is called upon; plus
(d) all dividends, whether paid or accrued and whether or not in cash, on any series of Disqualified Equity of such Person or any of its Restricted Subsidiaries, other than
dividends on Equity Interests payable solely in Equity Interests of such Person (other than Disqualified Equity) or to such Person or a Restricted Subsidiary of such Person;
in each case, on a consolidated basis and determined in accordance with GAAP.
Foreign Subsidiary means any Restricted Subsidiary of the Partnership that (a) is not a Domestic Subsidiary and (b) has 50% or more of its assets located outside the United States or any territory thereof.
GAAP means generally accepted accounting principles in the United States, which are in effect from time to time.
General Partner means MarkWest Energy GP, L.L.C., a Delaware limited liability company, and its successors and permitted assigns as general partner of the Partnership.
Global Note Legend means the legend set forth in Section 3.02, which is required to be placed on all Global Notes issued under the Indenture.
Global Note means a Note in global form registered in the name of the Depositary or its nominee and issued in accordance with Article III hereof, in substantially the form of Exhibit A hereto, bearing the Global Note Legend and having the Schedule of Exchanges of Interests in the Global Note attached thereto.
The term guarantee means a guarantee, other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner, including, without limitation, by way of a pledge of assets, or through letters of credit or reimbursement, claw-back, make-well, or keep-well agreements in respect thereof, of all or any part of any Indebtedness. The term guarantee used as a verb has a corresponding meaning. The term guarantor shall mean any Person providing a guarantee of any obligation.
Guarantee means, individually and collectively, the guarantees given by the Subsidiary Guarantors pursuant to Article XI hereof, including a notation in the Notes substantially in the form attached hereto as Exhibit B.
Guarantor Subordinated Obligation means, with respect to a Subsidiary Guarantor, any Indebtedness or other Obligations of such Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter incurred) which are expressly subordinate in right of payment to the Obligations of such Subsidiary Guarantor under its Guarantee pursuant to a written agreement.
Hedging Obligations means, with respect to any Person, the obligations of such Person under interest rate and commodity price swap agreements, interest rate and commodity price cap agreements, interest rate and commodity price collar agreements and foreign currency and commodity price exchange agreements, options or futures contracts or other similar agreements or arrangements or Hydrocarbon hedge contracts or Hydrocarbon forward sales contracts, in each case designed to protect such Person against fluctuations in interest rates, foreign exchange rates, or commodities prices.
Holder, Holder of Notes or other similar terms means the Person in whose name a Note is registered in the Register (as defined in Section 3.06).
Hydrocarbons means crude oil, natural gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and all constituents, elements or compounds thereof and products refined or processed therefrom.
Indebtedness means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent:
(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);
(c) in respect of bankers acceptances;
(d) representing Capital Lease Obligations;
(e) representing all Attributable Debt of such Person in respect of any sale and leaseback transactions not involving a Capital Lease Obligation;
(f) representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable incurred in the ordinary course of business;
(g) representing Disqualified Equity; or
(h) representing any Hedging Obligations;
if and to the extent any of the preceding items (other than the item referred to in clause (e), letters of credit, Disqualified Equity and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term Indebtedness includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by such Person of any Indebtedness of any other Person, provided that a guarantee otherwise permitted by the Indenture to be incurred by the Partnership or any of its Restricted Subsidiaries of Indebtedness incurred by the Partnership or a Restricted Subsidiary in compliance with the terms of the Indenture shall not constitute a separate incurrence of Indebtedness. The term Indebtedness excludes, however, any repayment or reimbursement obligation of such Person or any of its Restricted Subsidiaries with respect to Customary Recourse Exceptions, unless and until an event or circumstance occurs that triggers the Persons or such Restricted Subsidiarys direct repayment or reimbursement obligation (as opposed to contingent or performance obligations) to the lender of other Person to whom such obligation is actually owed, in which case the amount of such direct payment or reimbursement obligation shall constitute Indebtedness.
The amount of any Indebtedness outstanding as of any date shall be:
(a) the accreted value thereof, in the case of any Indebtedness issued with original issue discount;
(b) in the case of any Hedging Obligation, the termination value of the agreement or arrangement giving rise to such Hedging Obligation that would be payable by such Person at such date;
(c) in the case of any letter of credit, the maximum potential liability thereunder; and
(d) the principal amount thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness.
For purposes of clause (g) of the first paragraph of this definition, Disqualified Equity shall be valued at the maximum fixed redemption, repayment or repurchase price, which shall be calculated in accordance with the terms of such Disqualified Equity as if such Disqualified Equity were repurchased on any date on which Indebtedness shall be required to be determined pursuant to the Indenture; provided, however, that if such Disqualified Equity is not then permitted by its terms to be redeemed, repaid or repurchased, the redemption, repayment or repurchase price shall be the book value of such Disqualified Equity. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional Obligations as described above and the maximum liability of any guarantees at such date; provided that for purposes of calculating the amount of any non-interest bearing or other discount security, such Indebtedness shall be deemed to be the principal amount thereof that would be shown on the balance sheet of the issuer thereof dated such date prepared in accordance with GAAP, but that such security shall be deemed to have been incurred only on the date of the original issuance thereof.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the Partnership.
Interest Payment Date means Stated Maturity of an installment of interest on the Notes.
Investment Grade Rating means a rating equal to or higher than Baa3 (or the equivalent) by Moodys or BBB- (or the equivalent) by Standard & Poors.
Investments means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the forms of direct or indirect loans (including guarantees of Indebtedness or other Obligations), advances (other than advances to customers in the ordinary course of business that are recorded as accounts receivable on the balance sheet of the lender and commission, moving, travel and similar advances to officers and employees made in the ordinary course of business) or capital contributions, purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. For purposes of the definition of Unrestricted Subsidiary, the definition of Restricted Payment and the
covenant in Section 5.08 hereof, (1) the term Investment shall include the portion (proportionate to the Partnerships Equity Interest in such Subsidiary) of the fair market value of the net assets of any Subsidiary of the Partnership or any of its Restricted Subsidiaries at the time that such Subsidiary is designated an Unrestricted Subsidiary; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Partnership or such Restricted Subsidiary shall be deemed to continue to have a permanent Investment in such Subsidiary at the time immediately before the effectiveness of such redesignation less the portion (proportionate to the Partnerships or such Restricted Subsidiarys Equity Interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation, and (2) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Board of Directors of the General Partner. If the Partnership or any Restricted Subsidiary of the Partnership sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Partnership such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Partnership, the Partnership shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Equity Interests of such Restricted Subsidiary not sold or disposed of.
Issue Date means January 10, 2013.
Issuer Order means a written request or order signed on behalf of each Issuer by an Officer thereof and delivered to the Trustee.
Joint Venture means any Person that is not a direct or indirect Subsidiary of the Partnership in which the Partnership or any of its Restricted Subsidiaries makes any Investment.
Legal Holiday means a Saturday, a Sunday or a day on which banking institutions in the City of Denver, Colorado, Dallas, Texas or New York, New York or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Lien means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, charge, security interest, hypothecation, assignment for security, claim, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement or any lease in the nature thereof, any option or other agreement to grant a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statute) of any jurisdiction other than a precautionary financing statement respecting a lease not intended as a security agreement.
MarkWest Group means, collectively, the Partnership and each Person which is a direct or indirect Subsidiary of the Partnership.
Moodys means Moodys Investors Service, Inc. or any successor to the rating agency business thereof.
Net Income means, with respect to any Person, the consolidated net income (loss) of such Person and its Restricted Subsidiaries, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however:
(a) the aggregate gain (but not loss in excess of such aggregate gain), together with any related provision for taxes on such gain, realized in connection with:
(i) any Asset Sale; or
(ii) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and
(b) any extraordinary gain (but not loss), together with any related provision for taxes on such extraordinary gain (but not loss).
Net Proceeds means, with respect to any Asset Sale or sale of Equity Interests, the aggregate proceeds received by the Partnership or any of its Restricted Subsidiaries in cash or Cash Equivalents in respect of any Asset Sale or sale of Equity Interests (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any such sale but excluding any non-cash consideration deemed to be cash for purposes of Sections 4.09 and 5.07 hereof), net of, without duplication, (1) the direct costs relating to such Asset Sale or sale of Equity Interests, including, without limitation, brokerage commissions and legal, accounting and investment banking fees, sales commissions, recording fees, title transfer fees, and any relocation expenses incurred as a result thereof, (2) taxes paid or payable as a result thereof, in each case after taking into account any available tax credits or deductions and any tax sharing arrangements and amounts required to be applied to the repayment of Indebtedness secured by a Lien on the asset or Equity Interests that were the subject of such Asset Sale or sale of Equity Interests, (3) all distributions and payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale and (4) any amounts to be set aside in any reserve established in accordance with GAAP or any amount placed in escrow, in either case for adjustment in respect of the sale price of such asset or Equity Interests or for liabilities associated with such Asset Sale or sale of Equity Interests and retained by the Partnership or any of its Restricted Subsidiaries until such time as such reserve is reversed or such escrow arrangement is terminated, in which case Net Proceeds shall include only the amount of the reserve so reversed or the amount returned to the Partnership or its Restricted Subsidiaries from such escrow arrangement, as the case may be.
Non-Recourse Debt means Indebtedness as to which:
(a) neither the Partnership nor any of its Restricted Subsidiaries (i) provides credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (ii) is directly or indirectly liable as a guarantor or otherwise except for Customary Recourse Exceptions, or (iii) constitutes the lender of such Indebtedness; and
(b) as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Partnership or any of its Restricted Subsidiaries, except as contemplated by clause (n) of the definition of Permitted Liens, and except for Customary Recourse Exceptions.
Note Custodian means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
Obligations means any principal, interest, penalties, fees, indemnifications, reimbursement obligations, damages and other liabilities payable under the documentation governing any Indebtedness.
Officer means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice President of such Person (or, with respect to the Partnership, so long as it remains a partnership, the General Partner).
Officers Certificate means a certificate signed on behalf of each of the Partnership and MarkWest Finance by two of its Officers, one of whom must be the principal executive officer, the principal financial officer or the principal accounting officer of such Person, that meets the requirements of Section 13.04 hereof.
Operating Company means MarkWest Energy Operating Company, L.L.C., a Delaware limited liability company, and its successors.
Opinion of Counsel means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 13.04 hereof. The counsel may be an employee of or counsel to the Partnership, MarkWest Finance or the General Partner (or any Subsidiary Guarantor, if applicable), any Subsidiary of the Partnership or the Trustee.
Partnership means MarkWest Energy Partners, L.P., a Delaware limited partnership, and its successors.
Partnership Agreement means the Third Amended and Restated Agreement of Limited Partnership of MarkWest Energy Partners, L.P., dated as of February 21, 2008, as such may be amended, modified or supplemented from time to time.
Permitted Business means either (1) gathering, transporting, treating, processing, marketing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto including entering into Hedging Obligations to support these businesses, or (2) any other business that generates gross income that constitutes qualifying income under Section 7704(d) of the Code.
Permitted Business Investments means Investments by the Partnership or any of its Restricted Subsidiaries in any Unrestricted Subsidiary of the Partnership or in any Joint Venture, provided that:
(a) either (i) at the time of such Investment and immediately thereafter, the Partnership could incur $1.00 of additional Indebtedness under Section 5.09(a) or (ii) such Investment does not exceed the aggregate amount of Incremental Funds (as defined in Section 5.08) not previously expended at the time of making such Investment;
(b) if such Unrestricted Subsidiary or Joint Venture has outstanding Indebtedness at the time of such Investment, either (i) all such Indebtedness is Non-Recourse Debt or is owed to the Partnership or one of its Restricted Subsidiaries or (ii) it is Indebtedness of such Unrestricted Subsidiary or Joint Venture that could, at the time such Investment is made and, if later, at the time any such Indebtedness is incurred, be incurred by the Partnership and its Restricted Subsidiaries in accordance with the limitation on Indebtedness set forth in Section 5.09(a); and
(c) such Unrestricted Subsidiarys or Joint Ventures activities are not outside the scope of the Permitted Business.
Permitted Investments means:
(a) any Permitted Business Investment;
(b) any Investment in, or that results in the creation of, any Restricted Subsidiary of the Partnership;
(c) any Investment in the Partnership or in a Restricted Subsidiary of the Partnership (excluding redemptions, purchases, acquisitions or other retirements of Equity Interests in the Partnership but including purchases of its Notes);
(d) any Investment in cash or Cash Equivalents;
(e) any Investment by the Partnership or any Restricted Subsidiary of the Partnership in a Person if as a result of such Investment:
(i) such Person becomes a Restricted Subsidiary of the Partnership; or
(ii) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Partnership or a Restricted Subsidiary of the Partnership;
(f) any Investment made as a result of the receipt of consideration consisting of other than cash or Cash Equivalents from an Asset Sale that was made pursuant to and in compliance with Section 5.07, including pursuant to clause (f) of the items deemed not to be Asset Sales in the definition of that term;
(g) any Investment in a Person solely in exchange for the issuance of Equity Interests (other than Disqualified Equity) of the Partnership;
(h) Investments in stock, obligations or securities received in settlement of debts owing to the Partnership or any of its Restricted Subsidiaries as a result of bankruptcy or insolvency proceedings or upon the foreclosure, perfection or enforcement of any Lien in favor of the Partnership or any such Restricted Subsidiary, in each case as to debt owing to the Partnership or any such Restricted Subsidiary that arose in the ordinary course of business of the Partnership or any such Restricted Subsidiary;
(i) any Investment in Hedging Obligations permitted to be incurred under Section 5.09 hereof; and
(j) other Investments in any Person engaged in a Permitted Business (other than an Investment in an Unrestricted Subsidiary) having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (j) since the Issue Date and existing at the time of the Investment, which is the subject of the determination, was made, not to exceed the greater of (i) $75.0 million and (ii) 2.5% of Consolidated Net Tangible Assets; provided, however, that if any Investment pursuant to this clause (j) is made in any Person that is not a Restricted Subsidiary of the Partnership at the date of the making of such Investment and such Person becomes a Restricted Subsidiary of the Partnership after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (b) above and shall cease to have been made pursuant to this clause (j) for so long as such Person continues to be a Restricted Subsidiary of the Partnership.
Permitted Liens means:
(a) Liens securing Indebtedness under any of the Credit Facilities;
(b) Liens in favor of the Partnership or any of its Restricted Subsidiaries;
(c) any interest or title of a lessor in the property subject to a Capital Lease Obligation;
(d) Liens on property of a Person existing at the time such Person is merged with or into or consolidated with the Partnership or any Restricted Subsidiary of the Partnership, provided that such Liens were in existence prior to, and were not obtained in contemplation of, such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated with the Partnership or such Restricted Subsidiary;
(e) Liens on property existing at the time of acquisition thereof by the Partnership or any Restricted Subsidiary of the Partnership, provided that such Liens were in existence prior to, and were not obtained in contemplation of, such acquisition and relate solely to such property, accessions thereto and the proceeds thereof;
(f) Liens to secure the performance of tenders, bids, leases, statutory obligations, surety or appeal bonds, government contracts, performance bonds or other obligations of a like nature incurred in the ordinary course of business;
(g) Liens on any property or asset acquired, constructed or improved by the Partnership or any Restricted Subsidiary, which (a) are in favor of the seller of such property or asset, in favor of the Person constructing or improving such property or asset, or in favor of the Person that provided the funding for the acquisition, construction or improvement of such property or asset, (b) are created within 360 days after the date of acquisition, construction or improvement, (c) secure the purchase price or construction or improvement cost, as the case may be, of such property or asset in an amount not to exceed the lesser of (i) the cost to the Partnership and its Restricted Subsidiaries of such acquisition, construction or improvement of such asset or property and (ii) 100% of the fair market value of such acquisition, construction or improvement of such property or asset, and (d) are limited to the asset or property so acquired, constructed or improved (including proceeds thereof, accessions thereto and upgrades thereof);
(h) Liens to secure performance of Hedging Obligations of the Partnership or a Restricted Subsidiary;
(i) Liens existing on the Issue Date;
(j) Liens arising under operating agreements, joint venture agreements, partnership agreements, construction agreements, oil and gas leases, farmout agreements, division orders, agreements for the purchase, gathering, processing, sale, transportation or exchange of Hydrocarbons, unitization and pooling declarations and agreements, area of mutual interest agreements and other agreements arising in the ordinary course of the Partnerships or any Restricted Subsidiarys business that are customary in the Permitted Business;
(k) Liens securing the Obligations of the Issuers under the Notes and the Indenture and of the Subsidiary Guarantors under the Guarantees;
(l) Liens upon specific items of inventory, receivables or other goods or proceeds of the Partnership or any of its Restricted Subsidiaries securing such Persons Obligations in respect of bankers acceptances or receivables securitizations issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory, receivables or other goods or proceeds and permitted by Section 5.09 hereof;
(m) Liens securing any Indebtedness equally and ratably with all Obligations due under the Notes or any Guarantee pursuant to a contractual covenant that limits Liens in a manner substantially similar to Section 5.10 hereof;
(n) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any Joint Venture owned by the Partnership or any Restricted Subsidiary of the Partnership to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or Joint Venture;
(o) Liens incurred in the ordinary course of business of the Partnership or any Restricted Subsidiary of the Partnership, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness then outstanding and secured by any Liens incurred pursuant to this clause (o) does not exceed the greater of $75.0 million or 2.5% of the Consolidated Net Tangible Assets of the Partnership; and
(p) any Lien renewing, extending, refinancing or refunding a Lien permitted by clauses (a) through (o) above; provided, however, that (i) the principal amount of Indebtedness secured by such Lien does not exceed the principal amount of such Indebtedness outstanding immediately prior to the renewal, extension, refinancing or refunding of such Lien plus all accrued interest on the Indebtedness secured thereby and the amount of all fees, expenses and premiums incurred in connection therewith, and (ii) no assets encumbered by any such Lien other than the assets permitted to be encumbered immediately prior to such renewal, extension, refinancing or refunding are encumbered thereby.
Permitted Refinancing Indebtedness means any Indebtedness of the Partnership or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of the Partnership or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:
(a) the principal amount of such Permitted Refinancing Indebtedness does not exceed the principal amount of, plus accrued interest on, the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus the amount of necessary fees and expenses incurred in connection therewith and any premiums paid on the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded);
(b) such Permitted Refinancing Indebtedness has a final maturity date no earlier than the final maturity date of and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded;
(c) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Notes or the Guarantees, such Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes or the Guarantees, as the case may be, on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and
(d) such Indebtedness is not incurred (other than by way of a guarantee) by a Restricted Subsidiary (other than MarkWest Finance) if the Partnership is the issuer or other primary obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.
Person means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or any agency or political subdivision thereof or any other entity.
Prospectus means the prospectus of the Issuers dated January 7, 2013 relating to the offering of the Initial Notes.
Rating Agency means each of Standard & Poors and Moodys, or if Standard & Poors or Moodys or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuers (as certified by a resolution of the Board of Directors of the General Partner) which shall be substituted for Standard & Poors or Moodys, or both, as the case may be.
Rating Category means:
(a) with respect to S&P, any of the following categories: AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories); and
(b) with respect to Moodys, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories).
Ratings Decline means a decrease in the rating of the Notes by either Moodys or S&P by one or more gradations (including gradations within Rating Categories as well as between Rating Categories). In determining whether the rating of the Notes has decreased by one or more gradations, gradations within Rating Categories, namely + or - for S&P, and 1, 2, and 3 for Moodys, will be taken into account; for example, in the case of S&P, a rating decline either from BB+ to BB or BB to B+ will constitute a decrease of one gradation.
Reference Treasury Dealer means each of Barclays Capital Inc. and another primary U.S. government securities dealer in the United States (a Primary Treasury Dealer) selected by the Partnership, and their respective successors; provided, however, that if either of the foregoing shall not be a Primary Treasury Dealer at the appropriate time, the Partnership shall substitute therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m. New York time on the third business day preceding such redemption date.
Reporting Default means a Default described in Section 7.01(d).
Responsible Officer, when used with respect to the Trustee, means the officer in the Corporate Trust Department of the Trustee having direct responsibility for administration of the Indenture.
Restricted Investment means an Investment other than a Permitted Investment.
Restricted Subsidiary of a Person means any Subsidiary of the referenced Person that is not an Unrestricted Subsidiary. Notwithstanding anything in the Indenture to the contrary, each
of MarkWest Finance and the Operating Company shall be a Restricted Subsidiary of the Partnership.
SEC means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended.
Significant Subsidiary means any Subsidiary that would be a significant subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act and the Exchange Act, as such Regulation is in effect on the Issue Date.
Standard & Poors or S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc., or any successor to the rating agency business thereof.
Stated Maturity means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and shall not include any contingent Obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
Subordinated Obligation means any Indebtedness of the Partnership or MarkWest Finance (whether outstanding on the Issue Date or thereafter incurred) that is subordinate or junior in right of payment to the Notes pursuant to a written agreement.
Subsidiary means, with respect to any Person:
(a) any corporation, association or other business entity (other than an entity referred to in clause (b) below) of which more than 50% of the total Voting Stock is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(b) any partnership (whether general or limited), limited liability company or joint venture (i) the sole general partner or member of which is such Person or a Subsidiary of such Person, or (ii) if there is more than a single general partner or member, either (1) the only general partners, members, managing general partners or managing members of which are such Person or one or more Subsidiaries of such Person (or any combination thereof) or (2) such Person owns or controls, directly or indirectly, a majority of the outstanding general partner interests, member interests or other Voting Stock of such partnership, limited liability company or joint venture, respectively.
Subsidiary Guarantors means each of:
(a) the Operating Company, MarkWest Hydrocarbon, Inc., the General Partner, MarkWest Blackhawk, L.L.C., MarkWest Energy Appalachia, L.L.C., MarkWest Energy East Texas Gas Company, L.L.C., MarkWest Gas Services, L.L.C., MarkWest Javelina Company, L.L.C., MarkWest Javelina Pipeline Company, L.L.C., MarkWest Mountaineer Pipeline Company, L.L.C., MarkWest Michigan Pipeline Company, L.L.C., MarkWest New
Mexico, L.L.C., MarkWest Pinnacle, L.L.C., MarkWest Pipeline Company, L.L.C., MarkWest PNG Utility, L.L.C., MarkWest Power Tex, L.L.C., MarkWest Texas PNG Utility, L.L.C., MarkWest Oklahoma Gas Company, L.L.C., MarkWest Utica Operating Company, L.L.C., Mason Pipeline Limited Liability Company, Matrex, L.L.C., MarkWest Liberty Gas Gathering, L.L.C., MarkWest Marketing, L.L.C., MarkWest Gas Marketing, L.L.C., MarkWest McAlester, L.L.C., West Shore Processing Company, L.L.C., MarkWest Ranger Pipeline Company, L.L.C., MarkWest Lufkin Pipeline, L.L.C. and MarkWest Texas LPG Pipeline, L.L.C;
(b) any other Subsidiary of the Partnership that becomes a Subsidiary Guarantor in accordance with the provisions of Section 5.13 and Article XI hereof; and
(c) their respective successors and assigns.
in each case until such Subsidiary Guarantor ceases to be such in accordance with the Indenture. Notwithstanding anything in the Indenture to the contrary, MarkWest Finance shall not be a Subsidiary Guarantor.
Tax Payment means any payment of foreign, federal, state or local tax liabilities.
TIA means the Trust Indenture Act of 1939 (15 U.S.C. §§77aaa-77bbbb), as in effect on the date on which this Supplemental Indenture was executed and, to the extent required by law, as amended.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity (computed by the Partnership as of the second business day immediately preceding such redemption date) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
Trustee initially means Wells Fargo Bank, National Association and any other Person or Persons appointed as such from time to time pursuant to the Indenture, and, subject to the provisions of Article VIII, includes its or their successors and assigns.
2012 Issue Date means August 10, 2012, the initial date of issuance of the Issuers 5.5% Senior Notes due 2023.
U.S. Government Obligations means securities that are (1) direct Obligations of the United States of America for the payment of which its full faith and credit is pledged; (2) Obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case under clauses (1) or (2) above, are not callable or redeemable at the option of the issuers thereof; or (3) depository receipts issued by a bank or trust company as custodian with respect to any such U.S. Government Obligations or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation evidenced by such depository receipt.
Unrestricted Subsidiary means MarkWest Liberty Midstream & Resources, L.L.C., a Delaware limited liability company, MarkWest Utica EMG, L.L.C., a Delaware limited liability company and any Subsidiary of the Partnership (other than MarkWest Finance or the Operating Company) that is designated by the Board of Directors of the General Partner as an Unrestricted Subsidiary pursuant to a Board Resolution, but only to the extent that such Subsidiary: (1) has no Indebtedness (other than Non-Recourse Debt) owing to any Person other than the Partnership or any of its Restricted Subsidiaries, except to the extent permitted by subclause (b)(ii) of the definition of Permitted Business Investments; (2) except as permitted by Section 5.12 hereof, is not a party to any agreement, contract, arrangement or understanding with the Partnership or any Restricted Subsidiary of the Partnership unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Partnership or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Partnership; (3) is a Person with respect to which neither the Partnership nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Persons financial condition or to cause such Person to achieve any specified levels of operating results; and (4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Partnership or any of its Restricted Subsidiaries, except to the extent such guarantee or credit support would be released upon such designation. All Subsidiaries of an Unrestricted Subsidiary shall be also Unrestricted Subsidiaries. Notwithstanding anything in the Indenture to the contrary, neither MarkWest Finance nor the Operating Company shall be designated as an Unrestricted Subsidiary.
Any designation of a Subsidiary of the Partnership as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution of the General Partner giving effect to such designation and an Officers Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 5.08 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of the Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Partnership as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 5.09 hereof, the Partnership shall be in default of such covenant.
Voting Stock of any Person as of any date means the Equity Interests of such Person pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers, general partners or trustees of such Person (regardless of whether, at the time, Equity Interests of any other class or classes shall have, or might have, voting power by reason of the occurrence of any contingency) or, with respect to a partnership (whether general or limited), any general partner interest in such partnership.
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (1) the sum of the products obtained by
multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (2) the then outstanding principal amount of such Indebtedness.
Section 2.02 Other Definitions.
Term |
|
Defined in Section |
Affiliate Transaction |
|
5.12 |
Additional Notes |
|
Recitals |
Asset Sale Offer |
|
4.09 |
Base Indenture |
|
Preamble |
Calculation Date |
|
2.01 (definition of Fixed Charge Coverage Ratio) |
Change of Control Offer |
|
5.06(a) |
Change of Control Payment |
|
5.06(a) |
Change of Control Payment Date |
|
5.06(b) |
Covenant Defeasance |
|
9.03 |
Discharge |
|
12.01 |
DTC |
|
3.06 |
Event of Default |
|
7.01 |
Excess Proceeds |
|
5.07(c) |
Guarantee |
|
14.01 |
Incremental Funds |
|
5.08 |
incur |
|
5.09 |
Indenture |
|
Preamble |
Initial Notes |
|
Recitals |
Issuers |
|
Preamble |
Legal Defeasance |
|
9.02 |
MarkWest Finance |
|
Preamble |
Notes |
|
Recitals |
Offer Amount |
|
4.09 |
Offer Period |
|
4.09 |
Paying Agent |
|
3.06 |
Payment Default |
|
7.01 |
Permitted Debt |
|
5.09 |
Purchase Date |
|
4.09 |
Register |
|
3.06 |
Registrar |
|
3.06 |
Regular Record Date |
|
3.03 |
Restricted Payments |
|
5.08 |
Section 2.03 Incorporation by Reference of Trust Indenture Act.
Whenever the Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of the Indenture.
The following TIA term used in this Supplemental Indenture has the following meaning:
obligor on the Notes means the Partnership, MarkWest Finance or any Subsidiary Guarantor and any successor obligor upon the Notes.
All other terms used in this Supplemental Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
Section 2.04 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) or is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) provisions apply to successive events and transactions;
(f) references to sections of or rules under the Securities Act or the Exchange Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time;
(g) unless the context otherwise requires, any reference to an Article or a Section refers to an Article or a Section, as the case may be, of this Supplemental Indenture; and
(h) the words herein, hereof and hereunder and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.
ARTICLE III
THE NOTES
Section 3.01 Forms Generally.
The Notes and the Trustees certificate of authentication shall be in substantially the form set forth in Exhibit A hereto, and the notations of Guarantee shall be in substantially the form set forth in Exhibit B hereto. The Notes may have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing such Notes as evidenced by their execution thereof.
The terms and provisions contained in the Notes (including the notations of Guarantees) shall constitute, and are hereby expressly made, a part of the Indenture, and the Issuers, the Subsidiary Guarantors and the Trustee, by their execution and delivery of the Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Certificated Notes shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officers executing such Notes, as evidenced by their execution of such Notes.
The Initial Notes shall be issued initially in the form of a Global Note, which shall be deposited with the Trustee, as Note Custodian. The aggregate principal amount of any Global Note may from time to time be increased or decreased by adjustments made on the schedule attached to such Global Note or on other records of the Trustee, acting as Note Custodian.
Section 3.02 Form of Legend for Global Notes.
Every Global Note authenticated and delivered under the Indenture shall bear the Global Note Legend in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Section 3.03 Title and Terms.
The Notes shall be titled the 4.5% Senior Notes due 2023. The Trustee shall authenticate the Notes to be authenticated and delivered under this Supplemental Indenture on the Issue Date in an aggregate amount equal to $1,000,000,000, upon delivery of an Issuer Order.
The Notes will mature on July 15, 2023. Interest on the Notes will accrue at the rate of 4.5% per annum and will be payable semiannually in cash on each Interest Payment Date to the Persons who are registered Holders of Notes at the close of business on the January 1 and July 1 (the Regular Record Date) immediately preceding the applicable Interest Payment Date. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including the date of issuance to but excluding the actual Interest Payment Date. If an Interest Payment Date falls on a day that is not a Business Day, the interest payment to be made on such Interest Payment Date will be made on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date, and no additional interest will accrue as a result of such delayed payment.
The Notes shall be redeemable as provided in Article IV and subject to Defeasance and Covenant Defeasance as provided in Article IX. The Notes shall have such other terms as are indicated in Exhibit A.
Section 3.04 Denominations.
The Notes shall be issuable only in fully registered form without coupons and only in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
Section 3.05 Execution and Authentication.
One Officer of the Partnership and one Officer of MarkWest Finance shall sign the Notes for the Partnership and MarkWest Finance, respectively, by manual or facsimile signature. If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of the Trustee. Such signature shall be conclusive evidence that the Note has been authenticated under the Indenture.
The aggregate principal amount of Notes which may be authenticated and delivered under the Indenture is unlimited. The Issuers may, subject to Section 5.09 and applicable law,
issue Additional Notes under the Indenture. The Initial Notes and any Additional Notes subsequently issued shall be treated as a single class for all purposes under the Indenture, including waivers, amendments, redemptions and offers to purchase.
At any time and from time to time after the execution of this Supplemental Indenture, the Trustee shall, upon receipt of an Issuer Order, authenticate Notes for original issue in an aggregate principal amount specified in such Issuer Order. The Issuer Order shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated. The Trustee may appoint an authenticating agent acceptable to the Issuers to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in the Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of either of the Issuers.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under the Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication substantially in the form provided for in Exhibit A, signed manually in the name of the Trustee by an authorized signatory, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Issuers, and the Issuers shall deliver such Note to the Trustee for cancellation as provided in Section 3.15, for all purposes of the Indenture such Note shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of the Indenture.
Section 3.06 Registration, Registration of Transfer and Exchange.
The Issuers and the Subsidiary Guarantors shall maintain in the continental United States a registrar with an office or agency where Notes may be presented for registration of transfer or for exchange (Registrar) and a paying agent with an office or agency where Notes may be presented for payment (Paying Agent). The Registrar shall keep a register (the Register) of the Notes and of their transfer and exchange. The Issuers may appoint one or more co-registrars and one or more additional paying agents. The term Registrar includes any co-registrar and the term Paying Agent includes any additional paying agent. The Issuers may change any Paying Agent or Registrar without prior notice to any Holder. The Issuers shall notify the Trustee in writing of the name and address of any Agent not a party to the Indenture. If the Issuers fail to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Issuers or any of their Subsidiaries may act as Paying Agent or Registrar.
The Issuers initially appoint The Depository Trust Company (DTC) to act as Depositary with respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar and Paying Agent and to act as Note Custodian with respect to the Global Notes at the Corporate Trust Office.
Upon surrender for registration of transfer of any Note at the office of the Registrar, the Issuers shall execute and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes, of any authorized denominations and of like tenor and aggregate principal amount.
All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuers evidencing the same debt, and entitled to the same benefits under the Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuers or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuers and the Registrar duly executed, by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Notes, but the Issuers may require payment of a sum sufficient to cover any transfer tax or other governmental taxes and fees that may be imposed by law or the Indenture in connection with any registration of transfer or exchange of Notes.
If the Notes are to be redeemed in part, the Issuers shall not be required (A) to register the transfer of or exchange any Notes during a period of 15 days before a selection of Notes for redemption under Section 4.02, or (B) to register the transfer of or exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. Further, the Issuers shall not be required to register the transfer of or exchange any Notes between a record date and the next succeeding Interest Payment Date.
The provisions of clauses (a) through (d) below shall apply only to Global Notes:
(a) Each Global Note authenticated under the Indenture shall be registered in the name of the Depositary designated for such Global Note or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Note shall constitute a single Note for all purposes of the Indenture.
(b) Notwithstanding any other provision in the Indenture, no Global Note may be exchanged in whole or in part for Notes registered, and no transfer of a Global Note in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Note or a nominee thereof, unless (A) such Depositary (i) has notified the Issuers that it is no longer willing or able to discharge its responsibilities properly as Depositary for such Global Note or (ii) has ceased to be a clearing agency registered under the Exchange Act, and in either case the Issuers have not appointed a qualified successor within 90 days, (B) an Event of Default has occurred and is continuing and the Depositary has notified the Issuers and the Trustee of its desire to exchange such Global Note for Certificated Notes or (C) subject to the Depositarys rules, the Issuers, at their option, have elected to terminate the book-entry system through the Depositary.
(c) Subject to clause (b) above, any exchange of a Global Note for other Notes may be made in whole or in part, and all Notes issued in exchange for a Global Note or any portion thereof shall be registered in such names as the Depositary for such Global Note shall direct.
(d) Every Note authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Note or any portion thereof, whether pursuant to this Section or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Note, unless such Note is registered in the name of a Person other than the Depositary for such Global Note or a nominee thereof.
Section 3.07 Paying Agent to Hold Money in Trust.
The Issuers shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest, on the Notes, and will notify the Trustee of any default by the Partnership, MarkWest Finance or the Subsidiary Guarantors in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuers at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than an Issuer or a Subsidiary Guarantor) shall have no further liability for the money. If an Issuer or a Subsidiary Guarantor acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Partnership or MarkWest Finance, the Trustee shall serve as Paying Agent for the Notes.
Section 3.08 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Issuers shall furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Issuers shall otherwise comply with TIA Section 312(a).
Section 3.09 Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee or either of the Issuers and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuers shall issue and the Trustee, upon receipt of an Issuer Order, shall authenticate a replacement Note (accompanied by a notation of the Guarantees duly endorsed by the Subsidiary Guarantors) if the Trustees requirements are met. An indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuers to protect the Issuers, the Subsidiary Guarantors, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuers may charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuers and the Subsidiary Guarantors and shall be entitled to all of the benefits of the Indenture equally and proportionately with all other Notes duly issued hereunder. The provisions of this Section 3.09 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement of mutilated, destroyed, lost or stolen Notes.
Section 3.10 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interests in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not outstanding. Except as set forth in Section 3.11 hereof, a Note does not cease to be outstanding because an Issuer or an Affiliate of an Issuer holds the Note.
If a Note is replaced pursuant to Section 3.09 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 5.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than an Issuer or a Subsidiary or an Affiliate of an Issuer) holds, on a redemption date or other maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
Section 3.11 Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by an Issuer, by any Subsidiary Guarantor or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Partnership or any Subsidiary Guarantor, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded.
Section 3.12 Payment of Interest; Interest Rights Preserved.
If a Holder has given wire transfer instructions to the Issuers, the Issuers will make all payments of principal of, premium, if any, and interest on the Notes in accordance with those instructions. All other payments in respect of the Notes shall be made at the office or agency of the Paying Agent in Dallas, Texas; provided that the Issuers may, at their option, pay interest on the Notes by check mailed to the Holders at their registered address as it appears in the Register.
The Company shall pay principal of, premium, if any, and interest on the Global Notes registered in the name of or held by DTC or its nominee in immediately available funds to DTC or its nominee, as the case may be, as the registered Holder of such Global Notes.
Interest on any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Note is registered at the close of business on the Regular Record Date for such interest.
If any of the Partnership, MarkWest Finance or any Subsidiary Guarantor defaults in a payment of interest on the Notes, it or they (to the extent of their obligations under the Guarantees) shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 3.03 hereof. The Issuers shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note, the special record date and the date of the proposed payment. The Issuers shall fix or cause to be fixed each such special record date and payment date, provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Issuers (or, upon the written request of the Issuers, the Trustee in the name and at the expense of the Issuers) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.
Subject to the foregoing provisions of this Section, each Note delivered under the Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 3.13 Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the Issuers, the Subsidiary Guarantors, the Trustee and any agent of the Issuers or the Trustee may treat the Person in whose name such Note is registered as the owner of such Note for the purpose of receiving payment of principal of, and any premium and (subject to Section 407) any interest on, such Note and for all other purposes whatsoever, whether or not such Note be overdue, and none of the Issuers, the Subsidiary Guarantors, the Trustee nor any of their respective agents shall be affected by notice to the contrary.
None of the Issuers, the Subsidiary Guarantors, the Trustee, nor any of their respective agents will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, Beneficial Ownership interests of a Note or for maintaining, supervising or reviewing any records relating to such Beneficial Ownership interests.
Section 3.14 Temporary Notes.
Until Certificated Notes are ready for delivery, the Issuers may prepare and the Trustee, upon receipt of an Issuer Order, shall authenticate temporary Notes (accompanied by a notation of the Guarantees duly endorsed by the Subsidiary Guarantors). Temporary Notes shall be substantially in the form of Certificated Notes but may have variations that the Issuers consider appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuers shall prepare and the Trustee, upon receipt of an Issuer Order,
shall authenticate Certificated Notes (accompanied by a notation of the Guarantees duly endorsed by the Subsidiary Guarantors) in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of the Indenture.
Section 3.15 Cancellation.
Either of the Issuers at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall treat such canceled Notes in accordance with its documents retention policies. The Issuers may not issue new Notes to replace Notes that have been paid or that have been delivered to the Trustee for cancellation.
Section 3.16 Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.17 Global Securities.
Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary.
Section 3.18 CUSIP Numbers.
The Issuers in issuing the Notes may use CUSIP numbers (if then generally in use), and, if they do so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuers will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE IV
REDEMPTION AND PREPAYMENT OF NOTES
Section 4.01 Notices to Trustee.
If an Issuer elects to redeem Notes pursuant to the optional redemption provisions of Section 4.07 hereof, it shall furnish to the Trustee, at least ten Business Days (unless a shorter period is acceptable to the Trustee) before the date of giving notice of the redemption pursuant to Section 4.03, an Officers Certificate setting forth (i) the clause of this Supplemental Indenture pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount of Notes to be redeemed, (iv) the redemption price and (v) whether it requests the Trustee to give
notice of such redemption. Any such notice may be cancelled at any time prior to the mailing of notice of such redemption to any Holder and shall thereby be void and of no effect.
Section 4.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the Trustee will select Notes for redemption as follows:
(a) if the Notes are listed for trading on a national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are so listed; or
(b) if the Notes are not so listed or there are no such requirements, on a pro rata basis (or, in the case of Notes in global form, the Trustee will select Notes for redemption based on DTCs method that most nearly approximates a pro rata selection), by lot or by such method as the Trustee shall deem fair and appropriate.
No Notes of $2,000 or less shall be redeemed in part. Notices of redemption shall be mailed by first class mail at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at its registered address. Notices of redemption may not be conditional.
If any Note is to be redeemed in part only, the notice of redemption that relates to that Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder thereof upon cancellation of the original Note. Notes called for redemption without condition become due on the date fixed for redemption. On and after the redemption date, interest ceases to accrue on Notes or portions of them called for redemption unless the Issuers default in making such redemption payment.
Section 4.03 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date, the Issuers shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a Legal Defeasance, Covenant Defeasance or Discharge.
The notice shall identify the Notes to be redeemed (including CUSIP numbers) and shall state:
(a) the redemption date;
(b) the redemption price (if then determined and otherwise the basis for its determination);
(c) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption (other than a Global Note) must be surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Issuers default in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this Supplemental Indenture pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes.
If any of the Notes to be redeemed is in the form of a Global Note, then the Issuers shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to redemption.
At the Issuers request, the Trustee shall give the notice of redemption in the Issuers names and at their expense; provided, however, that the Issuers shall have delivered to the Trustee, as provided in Section 4.01, an Officers Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
Section 4.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 4.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price. A notice of redemption may not be conditional, except as otherwise permitted in the Indenture.
Section 4.05 Deposit of Redemption Price.
Not later than 11:00 a.m., New York City time, on the redemption date, the Issuers shall deposit with the Trustee or with the Paying Agent (or, if the Partnership or a Subsidiary thereof is acting as its own Paying Agent, segregate and hold in trust as provided in Section 3.07 hereof) money sufficient to pay the redemption price of, and accrued and unpaid interest on, all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Issuers any money deposited with the Trustee or the Paying Agent by the Issuers in excess of the amounts necessary to pay the redemption price of, and accrued and unpaid interest on, all Notes to be redeemed.
If the Issuers comply with the provisions of the preceding paragraph, on and after the redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption. If a Note is redeemed on or after an interest record date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Issuers to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 3.03 hereof.
Section 4.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuers shall issue and, upon receipt of an Issuer Order, the Trustee shall authenticate for the Holder at the expense of the Issuers a new Note (accompanied by a notation of the Guarantees duly endorsed by the Subsidiary Guarantors) equal in principal amount to the unredeemed portion of the Note surrendered.
Section 4.07 Optional Redemption.
The Issuers may redeem all or, from time to time, a part of the Notes, at a redemption price equal to:
(i) If the redemption date is prior to April 15, 2023, the greater of (a) 100% of the principal amount of the notes or (b) the sum of the present values of the remaining scheduled payments of principal and interest thereon from the redemption date to July 15, 2023 (exclusive of any accrued interest) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points; or
(ii) if the redemption date is on or after April 15, 2023, 100% of the aggregate principal amount of the notes to be redeemed,
plus, in each case, any interest accrued but not paid to the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date).
Any redemption pursuant to this Section 4.07 shall be made pursuant to the provisions of Section 4.01 through 4.06 hereof.
Section 4.08 Mandatory Redemption.
Except for any repurchase offers required to be made pursuant to Sections 5.06 and 5.07 hereof, the Issuers shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes or to repurchase the Notes at the option of the Holders.
Section 4.09 Offer to Purchase by Application of Net Proceeds.
In the event that, pursuant to Section 5.07 hereof, the Partnership shall be required to commence a pro rata offer (an Asset Sale Offer) to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the Net Proceeds of sales of assets to purchase Notes and such other pair passu Indebtedness, it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of at least 30 days following its commencement but no longer than 60 days, except to the extent that a longer period is required by applicable law (the Offer Period). Promptly after the termination of the Offer Period (the Purchase Date), the Partnership shall purchase the principal amount of Notes required to be purchased pursuant to Section 5.07 hereof (the Offer Amount) or, if less than the Offer Amount has been tendered, all Notes tendered and not withdrawn in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
Upon the commencement of an Asset Sale Offer, the Partnership shall send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 4.09 and Section 5.07 hereof and the length of time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not validly tendered or accepted for payment shall continue to accrue interest;
(d) that, unless the Partnership defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled Option of Holder to Elect Purchase on the reverse of the Note completed, or transfer by book-entry transfer, to the Partnership, a depositary, if appointed by the Partnership, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(f) that Holders shall be entitled to withdraw their election if the Partnership, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(g) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Issuers shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuers so that only Notes in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof, shall be purchased); and
(h) that Holders whose Notes were purchased only in part shall be issued new Notes (accompanied by a notation of the Guarantees duly endorsed by the Subsidiary Guarantors) equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
On the Purchase Date, the Partnership shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or if less than the Offer Amount has been validly tendered and not properly withdrawn, all Notes so tendered and not withdrawn, shall deposit by 11:00 a.m., New York City time, with the Paying Agent or depositary an amount equal to the purchase price in respect of all Notes or portions thereof accepted for payment, and shall deliver to the Trustee an Officers Certificate stating that such Notes or portions thereof were accepted for payment by the Partnership in accordance with the terms of this Section 4.09. Upon surrender and cancellation of a Certificated Note that is purchased in part, the Issuers shall promptly issue and the Trustee, upon receipt of an Issuer Order, shall authenticate and deliver to the surrendering Holder of such Certificated Note a new Certificated Note equal in principal amount to the unpurchased portion of such surrendered Certificated Note; provided that each such new Certificated Note shall be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Respecting a Global Note that is purchased in part pursuant to an Asset Sale Offer, the Trustee shall make an endorsement thereon to reduce the principal amount of such Global Note to an amount equal to the unpurchased portion of such Global Note, as provided in Section 3.06 hereof. The depositary or the Paying Agent, as the case may be, shall promptly mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Partnership for purchase, and the Issuers shall promptly issue a new Note (in each case, accompanied by a notation of the Guarantees duly endorsed by the Subsidiary Guarantors), and the Trustee, upon receipt of an Issuer Order, shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Partnership to the Holder thereof. The Partnership shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date.
ARTICLE V
COVENANTS
Section 5.01 Payment of Notes.
The Issuers shall pay or cause to be paid the principal of and premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than an
Issuer or any Subsidiary Guarantor thereof, holds as of 11:00 a.m. Eastern Time on the due date money deposited by the Issuers in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.
The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium at the then applicable interest rate on the Notes to the extent lawful. The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest, without regard to any applicable grace period, at the same rate to the extent lawful.
Section 5.02 Maintenance of Office or Agency.
The Issuers shall maintain in the continental United States an office or agency (which may be an office of the Trustee or an Affiliate of the Trustee, Registrar or co-registrar), where Notes may be surrendered or presented for payment, where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuers or the Subsidiary Guarantors in respect of the Notes and the Indenture may be served. The Issuers shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuers shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Issuers may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Issuers shall give prompt written notice to the Trustee of any such designation or rescission and of any change in location of any such other office or agency.
The Issuers hereby designate the Corporate Trust Office of the Trustee as one such office or agency of the Issuers in accordance with Section 3.06.
Section 5.03 Compliance Certificate.
(a) The Issuers and the Subsidiary Guarantors shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers Certificate stating that a review of the activities of the Issuers and the Restricted Subsidiaries of the Partnership during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Issuers and the Subsidiary Guarantors have kept, observed, performed and fulfilled their respective obligations under the Indenture and the Guarantees, respectively, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge each of such Issuers and such Subsidiary Guarantors, as the case may be, has kept, observed, performed and fulfilled each and every covenant contained in the Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of the Indenture (or, if a Default or Event of Default shall have occurred and be continuing, describing all such Defaults or Events of Default of which he or she may have knowledge and what action
such Issuer or such Subsidiary Guarantor, as the case may be, is taking or proposes to take with respect thereto).
(b) Each of the Issuers shall, so long as any of the Notes are outstanding, deliver to the Trustee, forthwith upon any Officer of the General Partner or MarkWest Finance becoming aware of any Default or Event of Default, an Officers Certificate specifying such Default or Event of Default and what action the Issuers are taking or propose to take with respect thereto.
Section 5.04 Taxes.
The Issuers shall pay, and shall cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.
Section 5.05 Stay, Extension and Usury Laws.
Each of the Issuers and the Subsidiary Guarantors covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of the Indenture; and each of the Issuers and the Subsidiary Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
Section 5.06 Change of Control.
(a) If a Change of Control occurs, each Holder of Notes shall have the right to require the Partnership to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holders Notes pursuant to the offer described below (the Change of Control Offer). In the Change of Control Offer, the Partnership shall offer a Change of Control Payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest thereon, if any, to the date of purchase (the Change of Control Payment), subject to the rights of any Holder in whose name a Note is registered on a record date occurring prior to the Change of Control Payment Date to receive interest due on an Interest Payment Date that is on or prior to such Change of Control Payment Date. Within 30 days following any Change of Control, the Partnership shall mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase Notes on the Change of Control Payment Date specified in such notice, pursuant to the procedures required by the Indenture and described in such notice. The Partnership shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To
the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 5.06, the Partnership shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under this Section 5.06 by virtue of such compliance.
(b) Within 30 days following any Change of Control, the Partnership shall mail by first class mail, a notice to each Holder, with a copy of such notice to the Trustee. The notice, which shall govern the terms of the Change of Control Offer, shall state, among other things:
(i) that a Change of Control has occurred and a Change of Control Offer is being made as provided for herein, and that, although Holders are not required to tender their Notes, all Notes that are validly tendered shall be accepted for payment;
(ii) the Change of Control Payment and the Change of Control Payment Date, which will be no earlier than 30 days and no later than 60 days after the date such notice is mailed (the Change of Control Payment Date);
(iii) that any Note accepted for payment pursuant to the Change of Control Offer (and duly paid for on the Change of Control Payment Date) shall cease to accrue interest after the Change of Control Payment Date;
(iv) that any Notes (or portions thereof) not validly tendered shall continue to accrue interest;
(v) that any Holder electing to have a Note purchased pursuant to any Change of Control Offer shall be required to surrender the Note, with the form entitled Option of Holder to Elect Purchase on the reverse of the Note completed, or transfer by book-entry transfer, to the Partnership, a depositary, if appointed by the Partnership, or a Paying Agent at the address specified in the notice at least one (1) Business Day before the Change of Control Payment Date;
(vi) that Holders shall be entitled to withdraw their election if the Partnership, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Change of Control Offer, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(vii) the instructions and any other information necessary to enable Holders to tender their Notes (or portions thereof) and have such Notes (or portions thereof) purchased pursuant to the Change of Control Offer.
(c) On or before the Change of Control Payment Date, the Partnership shall, to the extent lawful, accept for payment all Notes or portions thereof properly tendered and not
withdrawn pursuant to the Change of Control Offer. Promptly after such acceptance, on the Change of Control Payment Date, the Partnership will:
(i) deposit by 11:00 a.m., New York City time, with the Paying Agent or depositary an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and
(ii) deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted together with an Officers Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Partnership.
(d) On the Change of Control Payment Date, the Paying Agent shall mail to each Holder of Notes accepted for payment the Change of Control Payment for such Notes (or, if all the Notes are then in global form, make such payment through the facilities of DTC), and the Issuers shall promptly issue a new Note (in each case, accompanied by a notation of the Guarantees duly endorsed by the Subsidiary Guarantors), and the Trustee, upon receipt of an Issuer Order, shall authenticate and mail (or cause to be transferred by book entry) to each Holder such new Note equal in principal amount to any unpurchased portion of the Notes surrendered; provided that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Partnership shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(e) The provisions described in this Section 5.06 that require the Partnership to make a Change of Control Offer following a Change of Control shall be applicable regardless of whether or not any other provisions of the Indenture are applicable.
(f) Notwithstanding the other provisions of this Section 5.06, the Partnership shall not be required to make a Change of Control Offer upon a Change of Control, and a Holder will not have the right to require that the Partnership repurchase any Notes pursuant to a Change of Control Offer, if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Partnership and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer, (2) notice of redemption of all outstanding Notes has been given pursuant to the Indenture, unless and until there is a default in payment of the applicable redemption price, or (3) in connection with or in contemplation of any Change of Control, the Partnership has made an offer to purchase (an Alternate Offer) any and all Notes validly tendered at a cash price equal to or higher than the Change of Control Payment and has purchased all Notes properly tendered in accordance with the terms of such Alternate Offer.
(g) A Change of Control Offer may be made in advance of a Change of Control, and conditioned upon the occurrence of the Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Change of Control Offer.
(h) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer or an Alternate Offer and the
Partnership (or a third party making the Change of Control Offer as provided in Section 5.06(f)) purchases all of the Notes held by such Holders, the Issuers will have the right, upon not less than 30 nor more than 60 days notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer or Alternate Offer described above, as the case may be, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest on the notes that remain outstanding, to the date of redemption (subject to the right of holders of record on the relevant record date to receive interest due on an Interest Payment Date that is on or prior to the redemption date).
Section 5.07 Asset Sales.
The Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Partnership (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(b) such fair market value is determined by (a) an executive officer of the General Partner if the value is less than $30.0 million, as evidenced by an Officers Certificate delivered to the Trustee or (b) the Board of Directors of the General Partner if the value is $30.0 million or more, as evidenced by a resolution of such Board of Directors of the General Partner; and
(c) at least 75% of the aggregate consideration received by the Partnership and its Restricted Subsidiaries in the Asset Sale and all other Asset Sales of the Partnership and its Restricted Subsidiaries since the Issue Date is in the form of cash or Cash Equivalents. For purposes of this clause (c), each of the following shall be deemed to be cash:
(i) any liabilities (as shown on the Partnerships most recent consolidated balance sheet) of the Partnership or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Partnership or such Restricted Subsidiary from, or indemnifies it against, further liability; and
(ii) any securities, notes or other Obligations received by the Partnership or any such Restricted Subsidiary from such transferee that are within 90 days after the Asset Sale (subject to ordinary settlement periods) converted by such Issuer or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion).
Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Partnership or a Restricted Subsidiary may apply (or enter into a definitive agreement for such application
within such 360-day period, provided that such application occurs within 90 days after the end of such 360-day period) such Net Proceeds at its option:
(a) to repay senior Indebtedness of the Partnership and/or its Restricted Subsidiaries (or to make an offer to repurchase or redeem any such Indebtedness, provided that such repurchase or redemption closes within 45 days after the end of such 360-day period);
(b) to make a capital expenditure in a Permitted Business;
(c) to acquire other long-term tangible assets that are used or useful in a Permitted Business; or
(d) to invest in any other Permitted Investments other than Investments in Cash Equivalents, Interest Swaps or Currency Agreements.
Pending the final application of any such Net Proceeds, the Partnership or a Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by the Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 5.07(b) above will constitute Excess Proceeds. When the aggregate amount of Excess Proceeds exceeds $25.0 million, within ten days thereof the Partnership will make a pro rata offer (an Asset Sale Offer) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase or redeem the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the Purchase Date, subject to the rights of any Holder in whose name a Note is registered on a record date occurring prior to the Purchase Date to receive interest due on an Interest Payment Date that is on or prior to such Purchase Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Partnership and its Restricted Subsidiaries may use such Excess Proceeds for any purpose not otherwise prohibited by the Indenture, including, without limitation, the repurchase or redemption of Indebtedness of the Issuers or any Subsidiary Guarantor that is subordinated to the Notes or, in the case of a Subsidiary Guarantor, the Guarantee of such Subsidiary Guarantor. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated for repurchases of Notes pursuant to the Asset Sale Offer for Notes, the Trustee shall select the Notes to be purchased on a pro rata basis (or, in the case of notes in global form, the Trustee will select Notes for redemption based on DTCs method that most nearly approximates a pro rata selection). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
The Partnership shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale
Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 4.09 or this Section 5.07, the Partnership shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 4.09 or this Section 5.07 by virtue of such compliance.
Section 5.08 Restricted Payments.
The Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any other payment or distribution on account of the Partnerships or any of its Restricted Subsidiaries Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Partnership or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Partnerships or of any of its Restricted Subsidiaries Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests of the Partnership (other than Disqualified Equity) and other than dividends or distributions payable to the Partnership or a Restricted Subsidiary of the Partnership);
(b) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving an Issuer) any Equity Interests of the Partnership or of any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Partnership or any of its Restricted Subsidiaries);
(c) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Obligation or Guarantor Subordinated Obligation, except a payment of interest or principal at the Stated Maturity thereof or within one year of the Stated Maturity thereof; or
(d) make any Investment other than a Permitted Investment (all such payments and other actions set forth in clauses (a) through (d) above being collectively referred to as Restricted Payments);
unless, at the time of and after giving effect to such Restricted Payment, no Default (except a Reporting Default) or Event of Default shall have occurred and be continuing or would occur as a consequence thereof and either:
(a) if the Fixed Charge Coverage Ratio for the Partnerships four most recent fiscal quarters for which internal financial statements are available is not less than 1.75 to 1.0, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Partnership and its Restricted Subsidiaries during the quarter in which such Restricted Payment is made, is less than the sum, without duplication, of:
(i) Available Cash as of the end of the immediately preceding quarter, plus
(ii) the sum of (1) the aggregate net cash proceeds of any (A) capital contribution to the Partnership from any Person (other than to a Restricted Subsidiary of the Partnership) made after the 2012 Issue Date or (B) issuance and sale (other than to a Restricted Subsidiary of the Partnership) made after the Issue Date of Equity Interests (other than Disqualified Equity) of the Partnership or from the issuance or sale (other than to a Restricted Subsidiary of the Partnership) made after the 2012 Issue Date of convertible or exchangeable Disqualified Equity or convertible or exchangeable debt securities of the Partnership that have been converted into or exchanged for such Equity Interests (other than Disqualified Equity), and (2) the fair market value of any Permitted Business or long-term tangible assets that are useful in a Permitted Business to the extent acquired in consideration of Equity Interests of the Partnership (other than Disqualified Equity) since the 2012 Issue Date, plus
(iii) to the extent that any Restricted Investment that was made after the 2012 Issue Date is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the lesser of the refund of capital or similar payment made in cash or Cash Equivalents with respect to such Restricted Investment (less the cost of such disposition, if any) and the initial amount of such Restricted Investment (other than to a Restricted Subsidiary of the Partnership), plus
(iv) the net reduction in Restricted Investments resulting from dividends, repayments of loans or advances, or other transfers of assets in each case to the Partnership or any of its Restricted Subsidiaries from any Person (including, without limitation, Unrestricted Subsidiaries) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries, to the extent such amounts have not been included in Available Cash for any period commencing on or after the 2012 Issue Date (items (ii), (iii) and (iv) of this clause (a) being referred to as Incremental Funds), minus
(v) the aggregate amount of Incremental Funds previously expended pursuant to this clause (a) or clause (b) below; or
(b) if the Fixed Charge Coverage Ratio for the Partnerships four most recent fiscal quarters for which internal financial statements are available is less than 1.75 to 1.0, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Partnership and its Restricted Subsidiaries during the quarter in which such Restricted Payment is made (such Restricted Payments for purposes of this clause (b) meaning only distributions on common units of the Partnership, plus the related distribution on the general partner interest) is less than the sum, without duplication, of:
(i) $200.0 million less the aggregate amount of all prior Restricted Payments made by the Partnership and its Restricted Subsidiaries pursuant to this clause (b)(i) since the 2012 Issue Date, plus
(ii) Incremental Funds to the extent not previously expended pursuant to this clause (b) or clause (a) above.
So long as no Default (except a Reporting Default) has occurred and is continuing or would be caused thereby (except with respect to clause (a) below under which the payment of a distribution or dividend is permitted), the preceding provisions of this Section 5.08 shall not prohibit:
(a) the payment by the Partnership or any of its Restricted Subsidiaries of any distribution or dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of the Indenture;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any Subordinated Obligation or any Guarantor Subordinated Obligation or of any Equity Interests of the Partnership in exchange for, or out of the net cash proceeds of, a substantially concurrent (i) capital contribution to the Partnership from any Person (other than a Restricted Subsidiary of the Partnership) or (ii) sale (other than to a Restricted Subsidiary of the Partnership) of Equity Interests (other than Disqualified Equity) of the Partnership (a sale will be deemed substantially concurrent if such redemption, repurchase, retirement, defeasance or other acquisition occurs not more than 120 days after such sale); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded or deducted from the calculation of Available Cash and Incremental Funds;
(c) the redemption, repurchase, retirement, defeasance or other acquisition of any Subordinated Obligation or Guarantor Subordinated Obligation with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any distribution or dividend by a Restricted Subsidiary to the Partnership or to the holders of the Equity Interests (other than Disqualified Equity) of such Restricted Subsidiary on a pro rata basis; and
(e) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Partnership or any of its Restricted Subsidiaries pursuant to any management equity subscription agreement or equity option agreement or other employee benefit plan or to satisfy obligations under any Equity Interests appreciation rights or option plan or similar arrangement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $3.0 million in any calendar year.
In computing the amount of Restricted Payments previously made for purposes of Section 5.08, Restricted Payments made under clauses (a) (but only if the declaration of such dividend or other distribution has not been counted in a prior period) and, to the extent of amounts paid to holders other than the Partnership or any of its Restricted Subsidiaries, clause (d) of this Section shall be included, and Restricted Payments made under clauses (b), (c) and (e) and, except to the extent noted above, clause (d) of this Section shall not be included. The amount of all Restricted Payments (other than cash) shall be the fair market value, on the date of
the Restricted Payment, of the Restricted Investment proposed to be made or the asset(s) or securities proposed to be transferred or issued by the Partnership or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment, except that the fair market value of any non-cash distribution or dividend paid within 60 days after the date of declaration will be determined as of such date of declaration.
Section 5.09 Incurrence of Indebtedness and Issuance of Disqualified Equity.
(a) The Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, incur) any Indebtedness (including Acquired Debt), and the Partnership will not issue any Disqualified Equity and will not permit any of its Restricted Subsidiaries to issue any Disqualified Equity; provided, however, that the Partnership and any Restricted Subsidiary may incur Indebtedness (including Acquired Debt), and the Partnership and the Restricted Subsidiaries may issue Disqualified Equity, if the Fixed Charge Coverage Ratio for the Partnerships most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Equity is issued would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Equity had been issued, as the case may be, at the beginning of such four-quarter period.
(b) Notwithstanding the prohibitions of Section 5.09(a), the Partnership and its Restricted Subsidiaries may incur any of the following items of Indebtedness (collectively, Permitted Debt):
(i) the incurrence by the Partnership and any Restricted Subsidiary of Indebtedness under Credit Facilities and the guarantees thereof; provided that the aggregate principal amount of all Indebtedness of the Partnership and the Restricted Subsidiaries incurred pursuant to this clause (i) and outstanding under all Credit Facilities after giving effect to such incurrence does not exceed the greater of (A) $1.2 billion or (B) $500.0 million plus 25.0% of the Consolidated Net Tangible Assets of the Partnership;
(ii) the incurrence by the Partnership and its Restricted Subsidiaries of Existing Indebtedness (other than under the Credit Facilities);
(iii) the incurrence by the Issuers and the Subsidiary Guarantors of Indebtedness represented by the Notes issued and sold in the offering of the Initial Notes, and the related Guarantees;
(iv) the incurrence by the Partnership or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or
improvement of property, plant or equipment used in the business of the Partnership or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding shall not exceed the greater of (a) $75.0 million or (b) 2.5% of the Consolidated Net Tangible Assets of the Partnership at such time;
(v) the incurrence by the Partnership or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund, Indebtedness that was permitted by the Indenture to be incurred under Section 5.09(a) or clause (ii) or (iii) of this Section 5.09(b) or this clause (v);
(vi) the incurrence by the Partnership or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Partnership and any of its Restricted Subsidiaries; provided, however, that:
(A) if the Partnership is the obligor on such Indebtedness and a Subsidiary Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Subsidiary Guarantor is the obligor on such Indebtedness and neither the Partnership nor another Subsidiary Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Guarantee of such Subsidiary Guarantor; and
(B) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Partnership or a Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Partnership nor a Restricted Subsidiary thereof, shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Partnership or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);
(vii) the incurrence by the Partnership or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging (but not for speculative purposes) (A) foreign currency exchange rate risks of the Partnership or any Restricted Subsidiary, (B) interest rate risks with respect to any floating rate Indebtedness of the Partnership or any Restricted Subsidiary that is permitted by the terms of the Indenture to be outstanding or (C) commodities pricing risks of the Partnership or any Restricted Subsidiary in respect of Hydrocarbons used, produced, processed or sold by the Partnership or any of its Restricted Subsidiaries;
(viii) the guarantee by the Partnership or any of its Restricted Subsidiaries of Indebtedness of the Partnership or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 5.09; provided, that in the event such Indebtedness that is being guaranteed is a Subordinated Obligation or a Guarantor Subordinated Obligation, then the guarantee shall be subordinated in right of payment to the Notes or the Guarantee, as the case may be;
(ix) bid, performance, surety and appeal bonds incurred in the ordinary course of business, including guarantees and obligations respecting standby letters of credit supporting such obligations, to the extent not drawn (in each case other than an obligation for money borrowed);
(x) the incurrence by the Partnership or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Partnership or any Joint Venture but only to the extent that such liability is the result of the Partnerships or any such Restricted Subsidiarys being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (x) and then outstanding does not exceed $25.0 million;
(xi) the incurrence by the Partnership or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation meeting either one of the financial tests set forth in clause (iv) of Section 6.01(a); and
(xii) the incurrence by the Partnership or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount at any time outstanding not to exceed the greater of (a) $150.0 million or (b) 5.0% of the Consolidated Net Tangible Assets of the Partnership.
(c) For purposes of determining compliance with this Section 5.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in paragraphs (b)(i) through (b)(xii) above, or is entitled to be incurred pursuant to Section 5.09(a), the Partnership shall be permitted to classify (or later reclassify in whole or in part) such item of Indebtedness on the date of its incurrence in any manner that complies with this Section 5.09. An item of Indebtedness may be divided and classified in one or more of the types of Permitted Indebtedness. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 5.09(a).
(d) The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Equity in the form of additional shares of the same class of Disqualified Equity shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Equity for purposes of this Section
5.09; provided, in each such case, that the amount thereof is included in Fixed Charges of the Partnership as accrued. Notwithstanding any other provision of this Section 5.09, the maximum amount of Indebtedness that the Partnership or any Restricted Subsidiary may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. Further, the accounting reclassification of any obligation of the Partnership or any of its Restricted Subsidiaries as Indebtedness will not be deemed an incurrence of Indebtedness for purposes of this Section 5.09.
Section 5.10 Liens.
The Partnership shall not, and shall not permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist any Lien of any kind securing Indebtedness upon any asset now owned or hereafter acquired, except Permitted Liens, without making effective provision whereby all Obligations due under the Notes and the Indenture or any Guarantee, as applicable, will be secured by a Lien equally and ratably with (or prior to in the case of Liens with respect to Subordinated Obligations or Guarantor Subordinated Obligations, as the case may be) any and all Obligations thereby secured for so long as any such Obligations shall be so secured.
Section 5.11 Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on its Equity Interests to the Partnership or any of the Partnerships Restricted Subsidiaries, or pay any indebtedness or other obligations owed to the Partnership or any of the other Restricted Subsidiaries;
(ii) make loans or advances to or make other Investments in the Partnership or any of the other Restricted Subsidiaries; or
(iii) transfer any of its properties or assets to the Partnership or any of the other Restricted Subsidiaries.
(b) The restrictions contained in Section 5.11(a) shall not apply to encumbrances or restrictions existing under or by reason of:
(i) agreements as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of any such agreements or any Existing Indebtedness to which such agreement relates, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are no more restrictive, taken as a whole, with respect to such distribution, dividend and other payment restrictions and loan or investment restrictions than those contained in such agreement, as in effect on the Issue Date;
(ii) the Indenture, the Notes and the Guarantees;
(iii) applicable law;
(iv) any instrument governing Indebtedness or Equity Interests of a Person acquired by the Partnership or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the property or assets of any Person, other than such Person, or the property or assets of such Person, so acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of the Indenture to be incurred;
(v) customary non-assignment provisions in agreements for the purchase, gathering, processing, sale, transportation or exchange of Hydrocarbons or similar operational agreements or in licenses, leases, rights-of-way or other easements or servitudes, in each case entered into in the ordinary course of business;
(vi) Capital Lease Obligations, mortgage financings or purchase money obligations, in each case for property acquired in the ordinary course of business that impose restrictions on the property so acquired of the nature described in clause (iii) of Section 5.11(a);
(vii) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition;
(viii) Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(ix) Liens securing Indebtedness otherwise permitted to be incurred pursuant to the provisions of Section 5.10 that limit the right of the Partnership or any of its Restricted Subsidiaries to dispose of the assets subject to such Lien;
(x) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business;
(xi) any agreement or instrument relating to any property or assets acquired after the Issue Date, so long as such encumbrance or restriction relates only to the property or assets so acquired and is not and was not created in anticipation of such acquisitions;
(xii) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(xiii) with respect to any Foreign Subsidiary, any encumbrance or restriction contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was incurred if either (a) the encumbrance or restriction applies only in the event of a payment default or a default with respect to a financial covenant in such Indebtedness or agreement or (b) the Partnership determines that any such encumbrance or restriction will not materially affect the Issuers ability to make principal or interest payments on the Notes, as determined in good faith by the Board of Directors of the General Partner, whose determination shall be conclusive; and
(xiv) any other agreement governing Indebtedness of the Partnership or any Restricted Subsidiary that is permitted to be incurred by Section 5.12; provided, however, that such encumbrances or restrictions are not materially more restrictive, taken as a whole, than those contained in the Indenture or the Credit Agreement as it exists on the Issue Date.
Section 5.12 Transactions With Affiliates.
The Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each, an Affiliate Transaction), unless:
(a) such Affiliate Transaction is on terms that are no less favorable to the Partnership or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Partnership or such Restricted Subsidiary with an unrelated Person; and
(b) the Partnership delivers to the Trustee, with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, a resolution of the Board of Directors of the General Partner set forth in an Officers Certificate certifying that such Affiliate Transaction complies with this Section 5.12 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the General Partner.
The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of Section 5.11(a):
(a) any employment, equity option or equity appreciation agreement or plan entered into by the Partnership or any of its Restricted Subsidiaries in the ordinary course of business;
(b) transactions between or among the Partnership and/or its Restricted Subsidiaries;
(c) Permitted Investments or Restricted Payments that are permitted by Section 5.08;
(d) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Partnership or a Restricted Subsidiary, including reimbursement or advancement of out-of-pocket expenses and provisions of officers and directors liability insurance;
(e) sales of Equity Interests (other than Disqualified Equity) to Affiliates of the Partnership;
(f) in the case of contracts for gathering, transporting, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services reasonably related or ancillary thereto, or other operational contracts, any such contracts are entered into in the ordinary course of business on terms substantially similar to those contained in similar contracts entered into by the Partnership or any Restricted Subsidiary and third parties;
(g) transactions with a Person (other than an Unrestricted Subsidiary of the Partnership) that is an Affiliate of the Partnership solely because the Partnership owns an Equity Interest in such Person;
(h) transactions between the Partnership or any of its Restricted Subsidiaries and any Person that would not otherwise constitute an Affiliate Transaction except for the fact that one director of such other Person is also a director of the General Partner or such Restricted Subsidiary, as applicable; provided that such director abstains from voting as a director of the General Partner or such Restricted Subsidiary, as applicable, on any matter involving such other Person; and
(i) transactions involving an Affiliate of the Partnership in which an unrelated third Person owns Voting Stock at least equal to that owned by the Partnership or any of its Restricted Subsidiaries.
Section 5.13 Additional Subsidiary Guarantees.
If, after the Issue Date, any Restricted Subsidiary of the Partnership that is not already a Subsidiary Guarantor guarantees any other Indebtedness of either of the Issuers or any Indebtedness of the Operating Company, or if the Operating Company, if not then a Subsidiary Guarantor, guarantees any other Indebtedness of either of the Issuers or incurs any Indebtedness under any Credit Facility, then in either case such Subsidiary must become a Subsidiary Guarantor by executing a supplemental indenture substantially in the form of Exhibit C hereto and delivering an Opinion of Counsel to the Trustee pursuant to Section 10.06 within 10 Business Days of the date on which it guaranteed or incurred such Indebtedness. Notwithstanding the preceding, any Guarantee of a Restricted Subsidiary that was incurred
pursuant to this Section 5.13 shall be released in accordance with the terms and subject to the conditions of Section 11.04.
Section 5.14 Designation of Restricted and Unrestricted Subsidiaries.
(a) The Board of Directors of the General Partner may designate any Restricted Subsidiary of the Partnership to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, all outstanding Investments owned by the Partnership and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be an Investment made as of the time of such designation and will reduce the amount available for Restricted Payments under Section 5.08(a), or represent Permitted Investments. All such outstanding Investments will be valued at their fair market value at the time of such designation. That designation will only be permitted if such Restricted Payment or Permitted Investments would be permitted under the Indenture at that time and such Restricted Subsidiary otherwise complies with the definition of an Unrestricted Subsidiary. All Subsidiaries of an Unrestricted Subsidiary shall also be Unrestricted Subsidiaries. Upon the designation of a Restricted Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary, the Guarantee of such entity shall be released and the Trustee shall be authorized to take such actions as may be appropriate to reflect such release.
(b) The Board of Directors of the General Partner may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Partnership of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (1) such Indebtedness is permitted under Section 5.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.
Section 5.15 Business Activities.
The Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Partnership and its Restricted Subsidiaries, taken as a whole.
MarkWest Finance shall not incur Indebtedness unless (a) the Partnership is a co-obligor or guarantor of such Indebtedness or (b) the net proceeds of such Indebtedness are loaned to the Partnership, used to acquire outstanding debt securities issued by the Partnership or used to repay Indebtedness of the Partnership as permitted under Section 5.09. MarkWest Finance shall not engage in any business not related directly or indirectly to obtaining money or arranging financing for the Partnership or its Restricted Subsidiaries.
Section 5.16 Sale and Leaseback Transactions.
The Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any sale and leaseback transaction; provided that the Partnership or any Restricted Subsidiary may enter into a sale and leaseback transaction if:
(a) the Partnership or that Restricted Subsidiary, as applicable, could have (i) incurred Indebtedness in an amount equal to the Attributable Debt relating to such sale and leaseback transaction under Section 5.09(a), and (ii) incurred a Lien to secure such Indebtedness pursuant to Section 5.10;
(b) the gross cash proceeds of that sale and leaseback transaction are at least equal to the fair market value of the property that is the subject of such sale and leaseback transaction; and
(c) the transfer of assets in that sale and leaseback transaction is permitted by, and the Partnership applies the proceeds of such transaction in compliance with, the provisions set forth under Sections 4.09 and 5.07.
Section 5.17 Reports.
Whether or not required by the SEC, so long as any Notes are outstanding, the Partnership will file with the SEC (unless the SEC will not accept such a filing) within the time periods specified in the SECs rules and regulations, and upon request, the Partnership will furnish (without exhibits) to the Trustee for delivery to the Holders of Notes:
(a) all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Partnership were required to file such forms, including a Managements Discussion and Analysis of Financial Condition and Results of Operations and, with respect to the annual information only, a report on the annual financial statements by the Partnerships certified independent accountants; and
(b) all current reports that would be required to be filed with the SEC on Form 8-K if the Partnership were required to file such reports.
The availability of the foregoing information or reports on the SECs website will be deemed to satisfy the foregoing delivery requirements.
If as of the end of any such quarterly or annual period referred to in Section 5.17(a), the Partnership has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the Partnership shall deliver (promptly after such SEC filing referred to in Section 5.17(a)) to the Trustee for delivery to the Holders of the Notes quarterly and annual financial information required by Section 5.17(a) as revised to include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Managements Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of the Partnership and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Partnership.
Whether or not required by the SEC, the Partnership will make such information available to securities analysts, investors and prospective investors upon request. In addition, upon request the Partnership shall furnish the Trustee such other non-confidential information, documents and other reports which the Partnership is required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act.
Any and all Defaults or Events of Default arising from a failure to furnish or file in a timely manner any information or report required by this Section 5.17 shall be deemed cured (and the Partnership shall be deemed to be in compliance with this Section 5.17) upon furnishing or filing such information or report as contemplated by this Section 5.17 (but without regard to the date on which such information or report is so furnished or filed); provided that such cure shall not otherwise affect the rights of the Holders of the Notes under Article VII hereof if the principal, premium, if any, and interest have been accelerated in accordance with the terms of Article VII hereof and such acceleration has not been rescinded or cancelled prior to such cure.
Delivery of reports, information and documents to the Trustee pursuant to this Section 5.17 is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Partnerships compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
Section 5.18 Termination of Covenants
If at any time (a) the Notes have an Investment Grade Rating from either of the Rating Agencies, (b) no Default has occurred and is continuing and (c) the Issuers have delivered to the Trustee an Officers Certificate certifying to (a) and (b) of this Section 5.18, the Partnership and its Restricted Subsidiaries shall no longer be subject to the provisions of Sections 4.09, 5.07, 5.08, 5.09, 5.11, 5.12, 5.15, clauses (a)(i) and (c) of Section 5.16, and clause (a)(iv) of Section 6.01 of the Indenture. However, the Partnership and its Restricted Subsidiaries will remain subject to all of the other provisions of the Indenture.
ARTICLE VI
SUCCESSORS
Section 6.01 Merger, Consolidation, or Sale of Assets.
(a) Neither of the Issuers may, directly or indirectly: (x) consolidate or merge with or into another Person (whether or not such Issuer is the survivor); or (y) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to another Person; unless:
(i) either: (A) such Issuer is the surviving entity of such transaction; or (B) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, provided that MarkWest Finance may not consolidate or merge with or into any entity other than a corporation satisfying such requirement for so long as the Partnership remains a partnership;
(ii) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or the Person to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made expressly assumes all the obligations of such Issuer under the Notes and the Indenture pursuant to agreements reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of Default exists;
(iv) in the case of a transaction involving the Partnership and not MarkWest Finance, either:
(A) the Partnership or the Person formed by or surviving any such consolidation or merger (if other than the Partnership), or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.09(a); or
(B) immediately after giving effect to such transaction on a pro forma basis and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, the Fixed Charge Coverage Ratio of the Partnership or the Person formed by or surviving any such consolidation or merger (if other than the Partnership) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made, will be equal to or greater than the Fixed Charge Coverage Ratio of the Partnership immediately before such transactions; and
(v) such Issuer has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger or disposition and, if a supplemental indenture is required, such supplemental indenture comply with the Indenture and all conditions precedent therein relating to such transaction have been satisfied.
(b) Notwithstanding Section 6.01(a), the Partnership is permitted to reorganize as any other form of entity in accordance with the procedures established in the Indenture; provided that:
(i) the reorganization involves the conversion (by merger, sale, contribution or exchange of assets or otherwise) of the Partnership into a form of entity other than a limited partnership formed under Delaware law;
(ii) the entity so formed by or resulting from such reorganization is an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia;
(iii) the entity so formed by or resulting from such reorganization assumes all of the obligations of the Partnership under the Notes and the Indenture pursuant to agreements reasonably satisfactory to the Trustee;
(iv) immediately after such reorganization no Default or Event of Default exists; and
(v) such reorganization is not adverse to the Holders of the Notes (for purposes of this clause (v) it is stipulated that such reorganization shall not be considered adverse to the Holders of the Notes solely because the successor or survivor of such reorganization (A) is subject to federal or state income taxation as an entity or (B) is considered to be an includible corporation of an affiliated group of corporations within the meaning of Section 1504(b)(i) of the Code or any similar state or local law).
(c) No Subsidiary Guarantor may consolidate with or merge with or into (whether or not such Subsidiary Guarantor is the surviving Person) another Person, except the Partnership or another Subsidiary Guarantor, unless (i) immediately after giving effect to such transaction, no Default or Event of Default exists, and (ii) the Person formed by or surviving any such consolidation or merger assumes all the obligations of such Subsidiary Guarantor pursuant to the Subsidiary Guarantors Guarantee of the Notes and the Indenture pursuant to a supplemental indenture substantially in the form of Exhibit C hereto, except that no such assumption or supplemental indenture shall be required in those circumstances described in clauses (i) and (ii) of Section 11.05 hereof. In case of any such consolidation or merger and upon the assumption by the successor Person by supplemental indenture, executed and delivered to the Trustee substantially in the form of Exhibit C hereto, of the Guarantees contained herein and the due and punctual performance of all of the covenants of the Indenture to be performed by the Subsidiary Guarantor, such successor shall succeed to and be substituted for the Subsidiary Guarantor with the same effect as if it had been named herein as a Subsidiary Guarantor. Such successor thereupon may cause to be signed any or all of the notations of the Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Issuers and delivered to the Trustee. All the Guarantees so issued shall in all respects have the same legal rank and benefit under the Indenture as the Guarantees theretofore and thereafter issued in accordance with the terms of the Indenture as though all of such Guarantees had been issued at the date of the execution hereof.
Section 6.02 Successor Entity Substituted.
(a) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of an Issuer in accordance with Section 6.01 hereof, the surviving entity formed by such consolidation or into or with which such Issuer is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of the Indenture referring to the Partnership or MarkWest Finance, as the case may be, shall refer instead to the surviving entity and not to the Partnership
or MarkWest Finance, as the case may be), and may exercise every right and power of the Partnership or MarkWest Finance, as the case may be, under the Indenture with the same effect as if such successor Person had been named as an Issuer herein; and thereafter, if an Issuer is dissolved following a disposition of all or substantially all of its properties or assets in accordance with the Indenture, it shall be discharged and released from all obligations and covenants under the Indenture and the Notes; provided, however, that the predecessor shall not be relieved from the obligation to pay the principal of and interest on the Notes in the case of a lease of all or substantially all of its properties or assets.
(b) If the surviving entity shall have succeeded to and been substituted for an Issuer, such surviving entity may cause to be signed, and may issue either in its own name or in the name of the applicable Issuer prior to such succession any or all of the Notes issuable hereunder which theretofore shall not have been signed by such Issuer and delivered to the Trustee; and, upon the order of such surviving entity, instead of such Issuer, and subject to all the terms, conditions and limitations in the Indenture prescribed, the Trustee shall authenticate and shall deliver any Notes which previously shall have been signed and delivered by the Officers of such Issuer to the Trustee for authentication, and any Notes which such surviving entity thereafter shall cause to be signed and delivered to the Trustee for that purpose (in each instance with notations of Guarantees thereon by the Subsidiary Guarantors). All of the Notes so issued and so endorsed shall in all respects have the same legal rank and benefit under the Indenture as the Notes theretofore or thereafter issued and endorsed in accordance with the terms of the Indenture and the Guarantees as though all such Notes had been issued and endorsed at the date of the execution hereof.
(c) In case of any such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter to be issued or the Guarantees to be endorsed thereon as may be appropriate.
(d) For all purposes of the Indenture and the Notes, Subsidiaries of any surviving entity (other than an Issuer) will, upon such transaction or series of transactions, become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant to the Indenture and all Indebtedness, and all Liens on property or assets, of such surviving entity and its Restricted Subsidiaries immediately prior to such transaction or series of transactions shall be deemed to have been incurred upon such transaction or series of transactions.
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.01 Events of Default.
Each of the following is an Event of Default:
(a) default for 30 days in the payment when due of interest on the Notes;
(b) default in payment when due of the principal of or premium, if any, on the Notes;
(c) failure by the Partnership to comply with the provisions described under Section 6.01 hereof;
(d) failure by the Partnership to comply with the provisions described under Section 5.17 hereof for 90 days after notice to the Issuers by the Trustee or to the Issuers and Trustee by Holders of at least 25% in aggregate principal amount of the Notes then outstanding;
(e) subject to Section 5.18, failure by the Partnership to comply with the provisions described under Section 4.09, 5.06, 5.07, 5.08, 5.09, 5.10, 5.11. 5.12, 5.13, 5.14, 5.15 or 5.16 hereof for 30 days after notice to the Issuers by the Trustee or to the Issuers and Trustee by Holders of at least 25% in aggregate principal amount of the Notes then outstanding (provided that no such notice need be given, and an Event of Default shall occur, 30 days after a failure to comply with the covenants in Section 5.08 or 5.09 hereof, unless theretofore cured), in each case other than a failure to purchase Notes which will constitute an Event of Default under clause (b) of this Section 7.01;
(f) failure by the Partnership to comply with any of its other agreements in the Indenture for 60 days after notice to the Issuers by the Trustee or to the Issuers and Trustee by Holders of at least 25% in aggregate principal amount of the Notes then outstanding;
(g) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by either Issuer or any of the Restricted Subsidiaries of the Partnership (or the payment of which is guaranteed by either Issuer or any of such Restricted Subsidiaries), whether such Indebtedness or guarantee now exists or is created after the date of this Supplemental Indenture, if that default:
(i) is caused by a failure to pay principal of or premium, if any, or interest on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness (a Payment Default), or
(ii) results in the acceleration of such Indebtedness prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $20.0 million or more; provided that if any such default is cured or waived or any such acceleration rescinded, or such Indebtedness is repaid, within a period of 30 days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, such Event of Default and any consequential acceleration of the Notes shall be automatically rescinded, so long as such rescission does not conflict with any judgment or decree;
(h) failure by an Issuer or any Restricted Subsidiary of the Partnership to pay final judgments entered by a court of competent jurisdiction aggregating in excess of $20.0 million, which judgments are not paid, discharged or stayed for a period of 60 days;
(i) except as permitted by the Indenture, any Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Subsidiary Guarantor, or any Person acting on behalf of a Subsidiary Guarantor, shall deny or disaffirm its obligations under its Guarantee;
(j) either Issuer or any Restricted Subsidiary of the Partnership that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Partnership that, taken as a whole, would constitute a Significant Subsidiary, pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a custodian of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due; and
(k) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against an Issuer or any Restricted Subsidiary of the Partnership that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Partnership that, taken as a whole, would constitute a Significant Subsidiary in an involuntary case;
(ii) appoints a custodian of an Issuer or any Restricted Subsidiary of the Partnership that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Partnership that, taken as a whole, would constitute a Significant Subsidiary or for all or substantially all of the property of an Issuer or any Restricted Subsidiary of the Partnership that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Partnership that, taken as a whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of an Issuer or any Restricted Subsidiary of the Partnership that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Partnership that, taken as a whole, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 7.02 Acceleration.
If any Event of Default (other than an Event of Default specified in clause (j) or (k) of Section 7.01 hereof) occurs and is continuing, the Trustee may, and upon written request of the Holders of at least 25% in aggregate principal amount of the then outstanding Notes shall, declare all the Notes to be due and payable immediately. Upon any such declaration, the Notes shall become due and payable immediately. Notwithstanding the foregoing, if an Event of Default specified in clause (j) or (k) of Section 7.01 hereof occurs with respect to an Issuer, all outstanding Notes shall be due and payable immediately without further action or notice. The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may on behalf of the Holders of all of the Notes rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or premium that has become due solely because of the acceleration) have been cured or waived.
Section 7.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or the Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 7.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of, premium and/or interest on, the Notes (including in connection with an offer to purchase) (provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of the Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 7.05 Control by Majority.
Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture or that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes (it being understood that the Trustee has no affirmative duty to determine whether or not such direction is unduly prejudicial to such Holders) or that may involve the Trustee in personal liability.
Section 7.06 Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to the Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested, provide to the Trustee indemnity or security satisfactory to the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after receipt of the request and the offer and, if requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a majority in principal amount of the then outstanding Notes do not give the Trustee a direction inconsistent with the request.
A Holder of a Note may not use the Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note.
Section 7.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of the Indenture, the right of any Holder of a Note to receive payment of principal, premium and interest on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 7.08 Collection Suit by Trustee.
If an Event of Default specified in Section 7.01(a) or (b) occurs and is continuing, the Trustee is authorized to recover a judgment in its own name and as trustee of an express trust against the Issuers for the whole amount of principal of, premium and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 7.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to an Issuer or any of the Subsidiary Guarantors (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 8.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 8.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 7.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 8.07 hereof, including payment of all compensation, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for principal, premium and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium and interest, respectively; and
Third: to the Issuers or the Subsidiary Guarantors or to such other party as a court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 7.10.
Section 7.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under the Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys fees and expenses against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 7.11 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 7.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE VIII
TRUSTEE
Section 8.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by the Indenture, and use the same degree of care and skill in its exercise that a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express provisions of the Indenture and the Trustee need perform only those duties that are specifically set forth in the Indenture and no others, and no implied covenants or obligations shall be read into the Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of the Indenture. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of the Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to any provision of the Indenture relating to the time, method and place of conducting any proceeding or remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under the Indenture.
(d) Whether or not therein expressly so provided, every provision of the Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section.
(e) No provision of the Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability. The Trustee shall be under no obligation to exercise any of its rights and powers under the Indenture at the request of any Holders, unless such Holder shall have offered to the Trustee security or indemnity satisfactory to it against any claim, loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Partnership or MarkWest Finance. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 8.02 Rights of Trustee.
(a) Subject to the provisions of Section 8.01(a) hereof, the Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document, but may accept the same as conclusive evidence of the truth and accuracy of such statement or the correctness of such opinion.
(b) Before the Trustee acts or refrains from acting in the administration of the Indenture, it may require an Officers Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may execute any of its trusts or powers or perform any duties under the Indenture either directly by or through agents or attorneys, and may in all cases pay, subject to reimbursement as provided herein, such reasonable compensation as it deems proper to all such agents and attorneys employed or retained by it, and the Trustee shall not be responsible for any misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by the Indenture.
(e) Unless otherwise specifically provided in the Indenture, any demand, request, direction or notice from an Issuer or any Subsidiary Guarantor shall be sufficient if signed by an Officer of the General Partner (in the case of the Partnership), by an Officer of MarkWest Finance (in the case of MarkWest Finance) or by an Officer of such Subsidiary Guarantor (in the case of such Subsidiary Guarantor).
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by the Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the claims, costs, expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The Trustee is not required to make any inquiry or investigation into facts or matters stated in any document but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the Trustee determines to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuers, personally or by agent or attorney at the sole cost of the Issuers and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(h) The Trustee is not required to take notice or shall not be deemed to have notice of any Default or Event of Default hereunder except Defaults or Events of Default under Sections 7.01(a) and 7.01(b) hereof, unless a Responsible Officer of the Trustee has actual knowledge thereof or has received notice in writing of such Default or Event of Default from the Issuers or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding and such notice references the Notes and this Supplemental Indenture, and in the absence of any such notice, the Trustee may conclusively assume that no such Default or Event of Default exists.
(i) The Trustee is not required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under the Indenture.
(j) Under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Notes.
(k) In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders of Notes, each representing less than the aggregate principal amount of Notes outstanding required to take any action hereunder, the Trustee, in its sole discretion may determine what action, if any, shall be taken.
(l) The Trustees immunities and protections from liability and its right to indemnification in connection with the performance of its duties under the Indenture shall extend to the Trustees officers, directors, agents, attorneys and employees. Such immunities and protections and right to indemnification, together with the Trustees right to compensation, shall survive the Trustees resignation of removal, the discharge of the Indenture and final payments of the Notes.
(m) The permissive right of the Trustee to take actions permitted by the Indenture shall not be construed as an obligation or duty to do so.
(n) Except for information provided by the Trustee concerning the Trustee, the Trustee shall have no responsibility for any information and any offering memorandum, disclosure material or prospectus distributed with respect to the Notes.
(o) The Trustee shall not be liable for any action taken or omitted by it in good faith at the direction of the Holders of not less than a majority in aggregate principal amount of the Notes as to the time, method, and place of conducting any proceedings for any remedy available to the Trustee or the exercising of any power conferred by the Indenture.
(p) Subject to Section 8.01(d), whether or not therein expressly so provided, every provision of the Indenture relating to the conduct of, or affecting the liability of, or affording protection to the Trustee shall be subject to the provisions of this Section 8.02.
(q) Any action taken, or omitted to be taken, by the Trustee in good faith, pursuant to the Indenture upon the request or authority or consent of any Person who, at the time of making such request or giving such authority or consent, is the Holder of any Note shall be conclusive and binding upon all future Holders of that Note and upon securities executed and delivered in exchange therefore or in place thereof.
(r) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
Section 8.03 Individual Rights of Trustee.
The Trustee in its commercial banking or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuers, any Subsidiary Guarantors or any Affiliate of the Partnership with the same rights it would have if it were not Trustee. Any Affiliate of the Trustee or Agent may do the same with like rights and duties. However, in the event that the Trustee acquires any conflicting interest (as defined in the TIA) after a Default has occurred and is continuing it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee or resign. The Trustee is also subject to Sections 8.10 and 8.11 hereof.
Section 8.04 Trustees Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of the Indenture, the Notes or the Guarantees, it shall not be accountable for the Issuers use of the proceeds from the Notes or any money paid to an Issuer or upon an Issuers direction under any provision of the Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other
document in connection with the sale of the Notes or pursuant to the Indenture other than its certificate of authentication.
Section 8.05 Notice of Defaults.
If a Default or Event of Default known to the Trustee occurs, the Trustee shall mail to Holders of Notes a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that withholding the notice is in the interests of the Holders of the Notes.
Section 8.06 Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15 following the date of this Supplemental Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief report dated as of such reporting date that complies with TIA Section 313(a) (but if no event described in TIA Section 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to the Partnership and filed with the SEC and each stock exchange on which the Notes are listed in accordance with TIA Section 313(d). The Issuers shall promptly notify the Trustee when the Notes are listed on any stock exchange.
Section 8.07 Compensation and Indemnity.
The Issuers and the Subsidiary Guarantors shall pay to the Trustee from time to time such compensation as shall be agreed upon in writing between the Issuers and the Trustee for its acceptance of the Indenture and services hereunder. The Trustees compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuers and the Subsidiary Guarantors shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustees agents and counsel.
The Issuers and the Subsidiary Guarantors shall indemnify each of the Trustee or any successor Trustee against any and all losses, damages, claims, liabilities or expenses (including reasonable attorneys fees and expenses) incurred by it arising out of or in connection with the acceptance or administration of its duties under the Indenture, including the costs and expenses of enforcing the Indenture against either of the Issuers or any Subsidiary Guarantor (including this Section 8.07) and defending itself against any claim (whether asserted by an Issuer, any Subsidiary Guarantor, or any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its negligence or bad faith. The Trustee shall notify the Issuers promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuers shall not relieve the Issuers and the Subsidiary Guarantors of their obligations hereunder. The Issuers and the Subsidiary Guarantors shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Issuers and the Subsidiary Guarantors shall pay the reasonable fees and expenses of such separate counsel; provided that the Issuers and the Subsidiary Guarantors will not be required to pay such fees and expenses if they assume the Trustees defense with counsel acceptable to and approved by the Trustee (such approval not to be unreasonably withheld) and there is no conflict of interest between the Issuers and the Trustee in connection with such defense. The Issuers and the Subsidiary Guarantors need not pay for any settlement made without their consent, which consent shall not be unreasonably withheld. Neither the Issuers nor the Subsidiary Guarantors need reimburse the Trustee for any expense or indemnity against any liability or loss of the Trustee to the extent such expense, liability or loss is attributable to the negligence or bad faith of the Trustee.
The obligations of the Issuers and the Subsidiary Guarantors under this Section 8.07 shall survive the satisfaction and discharge of the Indenture.
To secure the Issuers and the Subsidiary Guarantors payment obligations in this Section, the Trustee shall have a Lien (which it may exercise through right of set-off) prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal, premium, if any, and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of the Indenture. When the Trustee incurs expenses or renders services after an Event of Default specified in Section 7.01(j) or (k) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2) to the extent applicable.
Section 8.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustees acceptance of appointment as provided in this Section. The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuers. The Holders of Notes of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuers in writing. The Issuers may remove the Trustee if:
(a) the Trustee fails to comply with Section 8.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuers shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuers.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuers, any Subsidiary Guarantor or the Holders of Notes of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who has been a Holder of a Note for at least six months, fails to comply with Section 8.10, such Holder of a Note may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuers. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under the Indenture. The successor Trustee shall mail a notice of its succession to Holders of the Notes. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 8.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 8.08, the Issuers and the Subsidiary Guarantors obligations under Section 8.07 hereof shall continue for the benefit of the retiring Trustee.
Section 8.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or association, the successor corporation or association without any further act shall be the successor Trustee. As soon as practicable, the successor Trustee shall mail a notice of its succession to the Issuers and the Holders of the Notes.
Section 8.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation or association organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trust powers, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50 million as set forth in its most recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section 310(b), provided, however, that
there shall be excluded from the operation of TIA Section 310(b)(l) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Issuers are outstanding if the requirements of such exclusion set forth in TIA Section 310(b)(l) are met. For purposes of the preceding sentence, the optional provision permitted by the second sentence of Section 310(b)(9) of the Trust Indenture Act shall be applicable.
Section 8.11 Preferential Collection of Claims Against Issuers.
The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein.
Section 8.12 U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Supplemental Indenture agree that they will provide the Trustee with such information within their possession or control as it may reasonably request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Section 8.13 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
ARTICLE IX
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 9.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may, at the option of the Board of Directors of the General Partner (in the case of the Partnership) or of the Board of Directors of MarkWest Finance (in the case of MarkWest Finance) evidenced by a resolution set forth in an Officers Certificate, at any time, elect to have either Section 9.02 or 9.03 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article IX.
Section 9.02 Legal Defeasance and Discharge.
Upon the Issuers exercise under Section 9.01 hereof of the option applicable to this Section 9.02, the Issuers and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 9.04 hereof, be deemed to have been discharged from their respective Obligations and certain other obligations with respect to all outstanding Notes and Guarantees, as applicable, on the date the conditions set forth below are satisfied (hereinafter, Legal Defeasance). For this purpose, Legal Defeasance means that the Issuers and the Subsidiary Guarantors shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be outstanding only for the purposes of Section 9.05 hereof and the other Sections of this Supplemental Indenture referred to in clauses (a) and (b) of this sentence below, and to have satisfied all its other obligations under such Notes and the Indenture (and the Trustee, on demand of and at the expense of the Issuers, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 9.04 hereof, and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, and interest on, such Notes when such payments are due, (b) the Issuers obligations with respect to such Notes under Sections 3.05, 3.06, 3.07, 3.09, 3.14 and 5.02 hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuers and the Subsidiary Guarantors obligations in connection therewith and (d) this Article IX. Subject to compliance with this Article IX, the Issuers may exercise the option under this Section 9.02 notwithstanding the prior exercise of its option under Section 9.03 hereof.
Section 9.03 Covenant Defeasance.
Upon the Issuers exercise under Section 9.01 hereof of the option applicable to this Section 9.03, the Issuers and the Subsidiary Guarantors shall, subject to the satisfaction of the conditions set forth in Section 9.04 hereof, be released from their obligations under the covenants contained in Sections 4.09, 5.04, 5.06, 5.07, 5.08, 5.09, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.16, 5.17 and 6.01(a)(iv) hereof and any covenant added to the Indenture subsequent to the Issue Date pursuant to Section 10.01 hereof with respect to the outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, Covenant Defeasance), and the Notes shall thereafter be deemed not outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed outstanding for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuers may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 7.01 hereof, but, except as specified above, the remainder of the Indenture and such Notes shall be unaffected thereby. In addition, upon the Issuers exercise under Section 9.01 hereof of the option applicable to this
Section 9.03 hereof, subject to the satisfaction of the conditions set forth in Section 9.04 hereof, Sections 7.01(d) through 7.01(i) hereof shall not constitute Events of Default.
Section 9.04 Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of either Section 9.02 or 9.03 hereof to the outstanding Notes:
(a) the Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in United States dollars, U.S. Government Obligations, or a combination thereof, in such amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest, on the outstanding Notes at the Stated Maturity thereof or on the applicable redemption date, as the case may be, and the Issuers must specify whether the Notes are being defeased to Stated Maturity or to a particular redemption date;
(b) in the case of an election under Section 9.02 hereof, the Issuers shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that (i) the Partnership has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 9.03 hereof, the Issuers shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing either on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness), and the granting of Liens to secure such borrowings);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than the Indenture or any agreement governing other Indebtedness being defeased, discharged or replaced) to which the Partnership or any of its Subsidiaries is a party or by which the Partnership or any of its Subsidiaries is bound;
(f) the Issuers shall have delivered to the Trustee an Officers Certificate stating that the deposit was not made by the Issuers with the intent of preferring the Holders over
any other creditors of the Issuers or the Subsidiary Guarantors or with the intent of defeating, hindering, delaying or defrauding other creditors of the Issuers; and
(g) the Issuers shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 9.05 Deposited Money and Government Securities to be Held in Trust, Other Miscellaneous Provisions.
Subject to Section 12.03 hereof, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 9.05, the Trustee) pursuant to Section 9.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and the Indenture, to the payment, either directly or through any Paying Agent (including either Issuer acting as a Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Issuers and the Subsidiary Guarantors shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable U.S. Government Obligations deposited pursuant to Section 9.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article IX to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuers from time to time upon the request of the Issuers any money or non-callable U.S. Government Obligations held by it as provided in Section 9.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 9.04(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
If the Issuers exercise either their Legal Defeasance or Covenant Defeasance option, each Subsidiary Guarantor shall be released and relieved of any obligations under its Guarantee and any security for the Notes (other than the trust fund described in Section 9.04 hereof) shall be released.
Section 9.06 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars or U.S. Government Obligations in accordance with Section 9.02 or 9.03 hereof, as the case may be, by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuers and the Subsidiary Guarantors Obligations under the Indenture, the Notes and the
Guarantees, as applicable, shall be revived and reinstated as though no deposit had occurred pursuant to Section 9.02 or 9.03 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 9.02 or 9.03 hereof, as the case may be; provided, however, that, if the Issuers or the Subsidiary Guarantors make any payment of principal of, premium, if any, or interest on any Note following the reinstatement of its Obligations, the Issuers and the Subsidiary Guarantors shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE X
AMENDMENT, SUPPLEMENT AND WAIVER
Section 10.01 Without Consent of Holders of Notes.
Notwithstanding Section 10.02 of this Supplemental Indenture, the Issuers and the Subsidiary Guarantors and the Trustee may amend or supplement the Indenture, the Guarantees, or the Notes without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of Certificated Notes;
(c) to provide for the assumption of an Issuers or a Subsidiary Guarantors obligations to the Holders of the Notes in the case of a merger or consolidation or sale of all or substantially all of such Issuers or Subsidiary Guarantors properties or assets pursuant to Article VI hereof;
(d) to add or release Subsidiary Guarantors pursuant to the terms of the Indenture;
(e) to make any change that would provide any additional rights or benefits to the Holders of the Notes or surrender any right or power conferred upon the Issuers or the Subsidiary Guarantors by the Indenture that does not adversely affect the rights hereunder of any Holder of the Notes, provided that any change to conform the Indenture to the Prospectus shall not be deemed to adversely affect such rights;
(f) to provide for the issuance of additional Notes in accordance with the limitations set forth in the Indenture;
(g) to comply with requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA;
(h) to evidence or provide for the acceptance of appointment under the Indenture of a successor Trustee;
(i) to add any additional Events of Default;
(j) to secure the Notes and/or the Guarantees; or
(k) to provide for the reorganization of the Partnership as any other form of entity in accordance with Section 6.01(b).
Upon the request of the Issuers accompanied by a resolution of the Board of Directors of the General Partner (in the case of the Partnership), and of the Board of Directors of MarkWest Finance and each of the Subsidiary Guarantors (in the case of MarkWest Finance and the Subsidiary Guarantors), authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 10.06 hereof, the Trustee shall join with the Issuers and each of the Subsidiary Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of the Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under the Indenture or otherwise.
Section 10.02 With Consent of Holders of Notes.
Except as provided below in this Section 10.02, the Issuers, the Subsidiary Guarantors and the Trustee may amend or supplement the Indenture (including Sections 4.09, 5.06 and 5.07 hereof), the Guarantees, and the Notes with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, the Notes), and, subject to Sections 7.04 and 7.07 hereof, any existing Default or Event of Default or compliance with any provision of the Indenture, the Guarantees or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes (including consents obtained in connection with a tender offer or exchange offer for the Notes).
Upon the request of the Issuers accompanied by a resolution of the Board of Directors of the General Partner (in the case of the Partnership) and of the Board of Directors of MarkWest Finance and each of the Subsidiary Guarantors (in the case of MarkWest Finance and each of the Subsidiary Guarantors) authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 10.06 hereof, the Trustee shall join with the Issuers and each of the Subsidiary Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture affects the Trustees own rights, duties or immunities under the Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under this Section 10.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes effective, the Issuers shall mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Issuers to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Sections 7.04 and 7.07 hereof, the Holders of a majority in aggregate principal amount of the Notes then outstanding may waive compliance in a particular instance by the Issuers with any provision of the Indenture or the Notes. However, without the consent of each Holder affected, an amendment, supplement or waiver may not (with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or alter or waive any of the provisions with respect to the redemption or repurchase of the Notes, except as provided above with respect to Sections 4.09, 5.06 and 5.07 hereof;
(c) reduce the rate of or change the time for payment of interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of principal of or premium, if any, or interest on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in principal amount of the then outstanding Notes and a waiver of the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the Notes;
(f) make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal of or premium, if any, or interest on the Notes (other than as permitted by clause (g) below);
(g) waive a redemption or repurchase payment with respect to any Note (other than a payment required by the covenants contained in Sections 4.09, 5.06 and 5.07 hereof);
(h) except as otherwise permitted by the Indenture, release any Subsidiary Guarantor from any of its Obligations under its Guarantee or the Indenture, or change any Guarantee in any manner that would adversely affect the right of Holders; or
(i) make any change in Section 7.04 or 7.07 hereof or in the foregoing amendment, supplement and waiver provisions (except to increase any percentage set forth therein).
Section 10.03 Compliance with Trust Indenture Act.
Every amendment or supplement to the Indenture, the Guarantees, or the Notes shall be set forth in an amended or supplemental Indenture that complies with the TIA as then in effect.
Section 10.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holders Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Issuers may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to consent to such amendment, supplement or waiver or revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No consent shall be valid or effective for more than 90 days after such record date except to the extent that the requisite number of consents to the amendment, supplement or waiver have been obtained within such 90-day period or as set forth in the next paragraph of this Section 10.04.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless it makes a change described in any of clauses (a) through (i) of Section 10.02, in which case, the amendment, supplement or waiver shall bind only each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same indebtedness as the consenting Holders Note.
Section 10.05 Notation or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuers in exchange for all Notes may issue and the Trustee, upon receipt of an Issuer Order, shall authenticate new Notes (accompanied by a notation of the Guarantees duly endorsed by the Subsidiary Guarantors) that reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 10.06 Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article X if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. In executing any amended or supplemental indenture, the Trustee shall be entitled to receive and (subject to Section 8.01) shall be fully protected in relying upon, an Officers Certificate of the Partnership and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by the Indenture and that all conditions precedent have been satisfied.
Section 10.07 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article X, the Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of the Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. After a supplemental indenture becomes effective, the Issuers shall mail to Holders a notice briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section.
ARTICLE XI
GUARANTEES
Section 11.01 Guarantees.
Subject to the provisions of this Article XI, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the other Obligations of the Issuers hereunder or thereunder, that: (a) the principal of, premium and interest on the Notes shall be promptly paid in full when due, whether at the maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium and interest on the Notes, if any, to the extent lawful, and all other Obligations of the Issuers to the Holders or the Trustee under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at Stated Maturity, by acceleration or otherwise. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions of the Indenture and the Notes, the recovery of any judgment against the Issuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Subsidiary Guarantor. To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest, notice and all demands whatsoever and covenants that its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture.
If any Holder or the Trustee is required by any court or otherwise to return to the Issuers or Subsidiary Guarantors, or any custodian, trustee, liquidator or other similar official acting in
relation to either the Issuers or Subsidiary Guarantors, any amount paid by any of them to the Trustee or such Holder, these Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby until payment in full of all Obligations guaranteed hereby.
Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes of these Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VII hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of these Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees.
Section 11.02 Limitation of Guarantors Liability.
Each Subsidiary Guarantor and, by its acceptance hereof, each Holder hereby confirms that it is its intention that the Guarantee by such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Guarantees. To effectuate the foregoing intention, each such Person hereby irrevocably agrees that the Obligation of such Subsidiary Guarantor under its Guarantee under this Article XI shall be limited to the maximum amount as shall, after giving effect to such maximum amount and all other (contingent or otherwise) liabilities of such Subsidiary Guarantor that are relevant under such laws, and after giving effect to any rights to contribution of such Subsidiary Guarantor pursuant to any agreement providing for an equitable contribution among such Subsidiary Guarantor and other Affiliates of the Issuers of payments made by guarantees by such parties, result in the Obligations of such Subsidiary Guarantor in respect of such maximum amount not constituting a fraudulent conveyance. Each Holder, by accepting the benefits hereof, confirms its intention that, in the event of bankruptcy, reorganization or other similar proceeding of either of the Issuers or any Subsidiary Guarantor in which concurrent claims are made upon such Subsidiary Guarantor hereunder, to the extent such claims shall not be fully satisfied, each such claimant with a valid claim against such Issuer shall be entitled to a ratable share of all payments by such Subsidiary Guarantor in respect of such concurrent claims.
Section 11.03 Execution and Delivery of Notations of Guarantees.
To evidence the Guarantees set forth in Section 11.01 hereof, each Subsidiary Guarantor hereby agrees that a notation of the Guarantees substantially in the form of Exhibit B shall be endorsed on each Note authenticated and delivered by the Trustee and that the Base Indenture and Supplemental Indenture shall each be executed on behalf of such Subsidiary Guarantor by one of its Officers.
Each Subsidiary Guarantor hereby agrees that the Guarantees set forth in Section 11.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of the Guarantees. If an Officer whose signature is on the Base Indenture or Supplemental Indenture or on the notation of Guarantees no longer holds that office at the time the Trustee authenticates the Note on which the notation of the Guarantees is endorsed, the Guarantees shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantees set forth in the Indenture on behalf of the Subsidiary Guarantors.
Section 11.04 Releases.
Concurrently with any sale of assets (including, if applicable, all of the Equity Interests of any Subsidiary Guarantor), any Liens in favor of the Trustee in the assets sold thereby shall be released; provided that in the event of an Asset Sale, the Net Proceeds from such sale or other disposition are treated in accordance with the provisions of Section 5.07 hereof. The Guarantee and all other obligations under the Indenture of a Subsidiary Guarantor will be released: (i) in connection with any sale or other disposition of all or substantially all of the assets of such Subsidiary Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) a Restricted Subsidiary, if that sale or other disposition does not violate Section 5.07 hereof; or (ii) in connection with any sale or other disposition of the Equity Interests of a Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) an Issuer or a Restricted Subsidiary, if that sale or other disposition does not violate Section 5.07 hereof and the Subsidiary Guarantor ceases to be a Restricted Subsidiary of the Partnership as a result of the sale or other disposition; or (iii) if the Partnership designates any Restricted Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary; or (iv) upon Legal Defeasance or Covenant Defeasance pursuant to Article IX hereof or upon satisfaction and discharge of the Indenture pursuant to Article XII hereof; or (v) in the case of any Subsidiary Guarantor other than the Operating Company, at such time as such Subsidiary Guarantor ceases to guarantee any other Indebtedness of either of the Issuers and any Indebtedness of the Operating Company; or (vi) in the case of the Operating Company, at such time as the Operating Company ceases to guarantee any other Indebtedness of either of the Issuers, provided that it is then no longer an obligor with respect to any Indebtedness under any Credit Facility. Upon delivery by the Partnership to the Trustee of an Officers Certificate to the effect that such sale or other disposition was made by the Partnership in accordance with the provisions of the Indenture, including without limitation Section 5.07 hereof, or such Guarantee is to be released pursuant to the provisions of the immediately preceding sentence, the Trustee shall execute any documents reasonably required in order to evidence the release of any Subsidiary Guarantor from all of its obligations under its Guarantee and the Indenture. Any Subsidiary Guarantor not released from its obligations under its Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Subsidiary Guarantor under the Indenture as provided in this Article XI.
Section 11.05 Trustee to Include Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have been appointed by the Issuers and be then acting hereunder, the term Trustee as used in this Article XI shall in such case (unless the context shall otherwise require) be construed as extending to and including such Paying Agent within its meaning as fully and for all intents and purposes as if such Paying Agent were named in this Article XI in place of the Trustee.
ARTICLE XII
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.
The Indenture shall upon the request of the Issuers cease to be of further effect (except for the Issuers obligations under Section 8.07 hereof, the Issuers rights of optional redemption under Article IV hereof, and the Trustees and the Paying Agents obligations under Section 12.02 and 12.03 hereof and except as provided in the penultimate paragraph of this Section 12.01) and the Trustee, at the expense of the Issuers, shall execute proper instruments acknowledging satisfaction and discharge of the Indenture when
(a) either
(i) all Notes theretofore authenticated and delivered (other than (A) Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.09 and (B) Notes for whose payment money has been deposited in trust with the Trustee or any Paying Agent and thereafter paid to the Issuers or discharged from such trust) have been delivered to the Trustee for cancellation; or
(ii) all such Notes not theretofore delivered to the Trustee for cancellation
(A) have become due and payable;
(B) shall become due and payable at their Stated Maturity within one year by reason of the mailing of a notice of redemption or otherwise, or
(C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuers,
and the Issuers or any Subsidiary Guarantor, in the case of clause (A), (B) or (C) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the benefit of the Holders, cash in U.S. dollars, U.S. Government Obligations or a combination of cash in U.S. dollars and U.S. Government Obligations, in amounts as will be sufficient without consideration of
any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of fixed maturity or redemption;
(b) in respect of Section 12.01(a)(ii), no Event of Default shall have occurred and be continuing on the date of such deposit (other than an Event of Default resulting from the borrowing of funds to be applied to such deposit and any similar deposit relating to other Indebtedness and, in each case, the granting of Liens to secure such borrowings) and such deposit will not result in a breach or violation of, or constitute a default under, any material agreement or instrument to which the Partnership or any of its Subsidiaries is a party or by which the Partnership or any of its Subsidiaries is bound (other than with respect to the borrowing of funds to be applied concurrently to make the deposit required to effect such satisfaction and discharge and any similar concurrent deposit relating to other Indebtedness, and in each case the granting of Liens to secure such borrowings);
(c) the Issuers or any Subsidiary Guarantor has paid or caused to be paid all sums then due and payable hereunder by the Issuers;
(d) the Issuers have delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at fixed maturity or the redemption date, as the case may be; and
(e) the Issuers have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the Indenture (Discharge) have been satisfied.
Notwithstanding the satisfaction and discharge of the Indenture, the Issuers obligations in 3.05, 3.06, 3.07, 3.09, 3.14, 5.02, 8.07, 8.08, 12.02, 12.03 and 12.04, and the Trustees and Paying Agents obligations in Section 12.03 shall survive until the Notes are no longer outstanding. Thereafter, only the Issuers obligations in Section 12.03 shall survive.
In order to have money available on a payment date to pay principal (and premium, if any, on) or interest on the Notes, the U.S. Government Obligations shall be payable as to principal (and premium, if any) or interest at least one Business Day before such payment date in such amounts as shall provide the necessary money. The U.S. Government Obligations shall not be callable at the issuers option.
Section 12.02 Application of Trust.
All money deposited with the Trustee pursuant to Section 12.01 shall be held in trust and, at the written direction of the Issuers, be invested prior to maturity in U.S. Government Obligations, and applied by the Trustee in accordance with the provisions of the Notes and the Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for the payment of which money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
Section 12.03 Repayment of the Issuers.
The Trustee and the Paying Agent shall promptly pay to the Issuers upon written request any excess money or securities held by them at any time.
Subject to applicable escheat laws, the Trustee and the Paying Agent shall notify the Issuers of, and pay to the Issuers upon written request, any money held by them for the payment of principal or interest that remains unclaimed for two years after the date upon which such payment shall have become due; provided that the Issuers shall have either caused notice of such payment to be mailed to each Holder of the Notes entitled thereto no less than 30 days prior to such repayment or within such period shall have published such notice in a financial newspaper of widespread circulation published in The City of New York, including, without limitation, The Wall Street Journal (national edition). After payment to the Issuers, Holders entitled to the money must look to the Issuers for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease. In the absence of a written request from the Issuers to return unclaimed funds to the Issuers, the Trustee shall from time to time deliver all unclaimed funds to or as directed by applicable escheat authorities, as determined by the Trustee in its sole discretion, in accordance with the customary practices and procedures of the Trustee.
Section 12.04 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 12.01 by reason of any legal proceeding or by reason of any order or judgment of any court of governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuers and Subsidiary Guarantors Obligations under the Indenture, the Notes and the Guarantees, as applicable, shall be revived and reinstated as though no deposit has occurred pursuant to Section 12.01 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 12.02, provided, however, that if the Issuers or the Subsidiary Guarantors have made any payment of interest or premium, if any, on or principal of any Notes because of the reinstatement of their Obligations, the Issuers or such Subsidiary Guarantors shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE XIII
MISCELLANEOUS
Section 13.01 Notices.
Any notice or communication by the Issuers or the Trustee to the others is duly given if in writing (in the English language) and delivered in person or mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next day delivery, to the others address:
If to the Issuers or any Subsidiary Guarantor:
MarkWest Energy Partners, L.P.
1515 Arapahoe St., Tower 1, Suite 1600
Denver, Colorado 80202
Attention: Chief Financial Officer
With a copy to:
Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin St.
Houston, Texas 77002
Telecopier No.: (713) 615-5139
Attention: Matthew R. Pacey, Esq.
If to the Trustee or Paying Agent:
Wells Fargo Bank, National Association
750 St. Paul Place, Suite 1750
Dallas, Texas 75201
Attention: Corporate, Municipal & Escrow Services
Telecopier No.: (214) 756-7401
The Issuers, any Subsidiary Guarantor or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if sent by facsimile transmission; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Any notice or communication shall also be so mailed to any Person described in TIA Section 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If either of the Issuers mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
Section 13.02 Communication by Holders of Notes with Other Holders of Notes.
The Trustee is subject to TIA Section 312(b), and Holders may communicate pursuant thereto with other Holders with respect to their rights under the Indenture or the Notes. The Issuers, the Subsidiary Guarantors, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 13.03 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers or any Subsidiary Guarantor to the Trustee to take any action under the Indenture, the Issuers or such Subsidiary Guarantors shall furnish to the Trustee:
(a) an Officers Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 13.04 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in the Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 13.04 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the General Partner, an Issuer or any Subsidiary Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, and may state that it is so based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the General Partner, an Issuer or such Subsidiary Guarantor stating that the information with respect to such factual matters is in possession of the General Partner, an Issuer or such Subsidiary Guarantor, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate of opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under the Indenture, they may, but need not, be consolidated and form one instrument.
Section 13.04 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in the Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include:
(a) a statement that the person making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Section 13.05 No Personal Liability of Directors, Officers, Employees and Unitholders and No Recourse Against General Partner.
No past, present or future director, officer, partner, employee, incorporator, manager or unitholder or other owner of Equity Interests of the Issuers, the General Partner or any Subsidiary Guarantor, as such, shall have any liability for any Obligations of the Issuers or the Subsidiary Guarantors under the Notes, the Indenture or the Guarantees or for any claim based on, in respect of, or by reason of, such Obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 13.06 No Adverse Interpretation of Other Agreements.
The Indenture may not be used to interpret any other indenture, loan or debt agreement of either of the Issuers or any Subsidiary of the Partnership or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret the Indenture or the Guarantees.
Section 13.07 Successors.
All agreements of the Issuers and the Subsidiary Guarantors in the Indenture, the Notes and the Guarantees shall bind their respective successors. All agreements of the Trustee in the Indenture shall bind its successors. Any act or proceeding pursuant to any provision of the Indenture authorized or required to be done or performed by any board, committee or officer of an Issuer shall and may be done and performed with like force and effect by the like board, committee or officer of any successor.
Section 13.08 Counterpart Originals.
The parties may sign any number of copies of this Supplemental Indenture, and each party hereto may sign any number of separate copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 13.09 Indenture and Notes to Be Construed in Accordance with the Laws of the State of New York.
THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, EACH NOTE AND THE GUARANTEES SHALL BE DEEMED TO BE NEW YORK CONTRACTS, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE.
Section 13.10 Provisions Required by TIA to Control.
If and to the extent that any provision of the Indenture limits, qualifies or conflicts with another provision included in the Indenture which is required to be included in an indenture qualified under the TIA by any of Sections 310 to 318, inclusive, of the TIA, such required provision shall control.
Section 13.11 Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar and any Paying Agent may make reasonable rules for their functions.
Section 13.12 Severability.
In case any provision in the Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.13 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of the Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following pages]
IN WITNESS WHEREOF, the parties have executed this Supplemental Indenture as of the date first written above.
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MARKWEST ENERGY FINANCE CORPORATION | ||
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer | |
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MARKWEST ENERGY PARTNERS, L.P. | ||
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer | |
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MARKWEST HYDROCARBON, INC. | ||
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer | |
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MARKWEST ENERGY GP, L.L.C. | ||
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer |
Signature Page to Tenth Supplemental Indenture
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MASON PIPELINE LIMITED LIABILITY COMPANY | ||
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By: |
MarkWest Hydrocarbon, Inc., |
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its Sole Member |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer | |
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MARKWEST ENERGY OPERATING COMPANY, L.L.C. | ||
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer |
Signature Page to Tenth Supplemental Indenture
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MARKWEST BLACKHAWK, L.L.C. MARKWEST ENERGY APPALACHIA, L.L.C. MARKWEST ENERGY EAST TEXAS GAS COMPANY, L.L.C. MARKWEST GAS MARKETING, L.L.C. MARKWEST GAS SERVICES, L.L.C. MARKWEST JAVELINA COMPANY, L.L.C. MARKWEST JAVELINA PIPELINE COMPANY, L.L.C. MARKWEST LIBERTY GAS GATHERING, L.L.C. MARKWEST LUFKIN PIPELINE, L.L.C. MARKWEST MARKETING, L.L.C. MARKWEST MOUNTAINEER PIPELINE COMPANY, L.L.C. MARKWEST NEW MEXICO, L.L.C. MARKWEST PINNACLE, L.L.C. MARKWEST PIPELINE COMPANY, L.L.C. MARKWEST PNG UTILITY, L.L.C. MARKWEST POWER TEX, L.L.C. MARKWEST TEXAS LPG PIPELINE, L.L.C MARKWEST TEXAS PNG UTILITY, L.L.C. MARKWEST UTICA OPERATING COMPANY, L.L.C. | ||
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Sole Member |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer |
Signature Page to Tenth Supplemental Indenture
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MARKWEST MICHIGAN PIPELINE COMPANY, L.L.C. MARKWEST OKLAHOMA GAS COMPANY, L.L.C. | ||
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Managing Member |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer | |
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MATREX, L.L.C. | ||
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By: |
West Shore Processing Company L.L.C., |
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its Sole Member and Manager |
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Sole Member and Manager |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer |
Signature Page to Tenth Supplemental Indenture
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MARKWEST RANGER PIPELINE COMPANY, L.L.C. | ||
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By: |
MarkWest Energy Appalachia, L.L.C., |
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its Sole Member |
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Sole Member |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer | |
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MARKWEST MCALESTER, L.L.C. | ||
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By: |
MarkWest Oklahoma Gas Company, L.L.C., |
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its Sole Member |
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Managing Member |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer |
Signature Page to Tenth Supplemental Indenture
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WEST SHORE PROCESSING COMPANY L.L.C. | ||
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Managing Member |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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By: |
MarkWest Energy GP, L.L.C., |
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its General Partner |
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By: |
/s/ Nancy Buese | |
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Name: |
Nancy Buese | |
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Title: |
Senior Vice President and Chief Financial Officer |
Signature Page to Tenth Supplemental Indenture
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WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE | |
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By: |
/s/ Patrick T. Giordano |
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Name: |
Patrick T. Giordano |
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Title: |
Vice President |
Signature Page to Tenth Supplemental Indenture
SCHEDULE A
Schedule of Subsidiary Guarantors
MarkWest Energy Operating Company, L.L.C.
MarkWest Hydrocarbon, Inc.
MarkWest Energy GP, L.L.C.
MarkWest Blackhawk, L.L.C.
MarkWest Energy Appalachia, L.L.C.
MarkWest Energy East Texas Gas Company, L.L.C.
MarkWest Gas Services, L.L.C.
MarkWest Javelina Company, L.L.C.
MarkWest Javelina Pipeline Company, L.L.C.
MarkWest Lufkin Pipeline, L.L.C.
MarkWest Mountaineer Pipeline Company, L.L.C.
MarkWest Michigan Pipeline Company, L.L.C.
MarkWest New Mexico, L.L.C.
MarkWest Pinnacle, L.L.C.
MarkWest Pipeline Company, L.L.C.
MarkWest PNG Utility, L.L.C.
MarkWest Power Tex, L.L.C.
MarkWest Texas LPG Pipeline, L.L.C
MarkWest Texas PNG Utility, L.L.C.
MarkWest Oklahoma Gas Company, L.L.C.
Mason Pipeline Limited Liability Company
Matrex, L.L.C.
MarkWest Liberty Gas Gathering, L.L.C.
MarkWest Marketing, L.L.C.
MarkWest Gas Marketing, L.L.C.
MarkWest McAlester, L.L.C.
MarkWest Ranger Pipeline Company, L.L.C.
MarkWest Utica Operating Company, L.L.C.
West Shore Processing Company, L.L.C.
Exhibit A
FORM OF NOTE
(Face of Note)
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.(1)
CUSIP: 570506AR6
4.5% Senior Notes due 2023
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MARKWEST ENERGY PARTNERS, L.P.
and
MARKWEST ENERGY FINANCE CORPORATION
promise to pay to or registered assigns, the principal sum of dollars of the United States of America [or such greater or lesser amount as may from time to time be endorsed on the Schedule of Exchanges of Interests in the Global Note](2) on July 15, 2023.
Interest Payment Dates: January 15 and July 15 of each year
(1) This is included in Global Notes only.
(2) This is included in Global Notes only.
Record Dates: January 1 and July 1
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authorization hereon has been duly executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit of the Indenture or be valid or obligatory for any purpose.
MARKWEST ENERGY FINANCE CORPORATION |
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MARKWEST ENERGY PARTNERS, L.P. | |||
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MarkWest Energy GP, L.L.C., | ||
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its General Partner | ||
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Certificate of Authentication:
This is one of the Notes referred to in the within-mentioned Indenture.
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
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Authorized Signatory |
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Date of Authentication: ,
[Back of Note]
4.5% Senior Notes due 2023
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1. Interest. MarkWest Energy Partners, L.P., a Delaware limited partnership (the Partnership), and MarkWest Energy Finance Corporation, a Delaware corporation (MarkWest Finance and, together with the Partnership, the Issuers), promise to pay interest on the principal amount of this Note at 4.5% per annum. The Issuers will pay interest semi-annually on January 15 and July 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an Interest Payment Date). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from January 10, 2013; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be July 15, 2013. The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the rate then in effect; the Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest, without regard to any applicable grace periods, from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
2. Method of Payment. The Issuers will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the January 1 or July 1 next preceding the Interest Payment Date, even if such Notes are cancelled after such record date and on or before such Interest Payment Date, except as provided in Section 3.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium and interest at the office or agency of the Paying Agent maintained for such purpose in Dallas, Texas, or, at the option of the Issuers, payment of interest may be made by check mailed to the Holders at their addresses set forth in the Register, and provided that payment by wire transfer of immediately available funds will be required with respect to principal of, interest and premium on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuers or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuers may change any Paying Agent or Registrar without prior notice to any Holder. The Issuers or any of their Subsidiaries may act in any such capacity.
4. Indenture. The Issuers issued the Notes under an Indenture dated as of November 2, 2010 among the Issuers, the Subsidiary Guarantors named therein and the Trustee, as
supplemented and amended by the Tenth Supplemental Indenture, dated as of January 10, 2013 among the Issuers, the Subsidiary Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling to the extent permitted by law. The Notes are unsecured general obligations of the Issuers.
5. Optional Redemption. Subject to the additional terms and conditions set forth in the Indenture:
(a) The Issuers may redeem all or, from time to time, a part of the Notes, at a redemption price equal to:
(i) If the redemption date is prior to April 15, 2023, the greater of (i) 100% of the principal amount of the Notes or (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon from the redemption date to July 15, 2023 (exclusive of any accrued interest) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points; or
(ii) if the redemption date is on or after April 15, 2023, 100% of the principal amount of the notes to be redeemed,
plus, in each case, any interest accrued but not paid to the date of redemption (subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date.
(b) In the event that Holders of not less than 90% of the aggregate principal amount of the outstanding Notes accept a Change of Control Offer and the Partnership purchases all of the Notes held by such Holders, the Issuers will have the right, upon not less than 30 nor more than 60 days notice, given not more than 30 days following the purchase pursuant to the Change of Control Offer described below, to redeem all of the Notes that remain outstanding following such purchase at a redemption price equal to the Change of Control Payment plus, to the extent not included in the Change of Control Payment, accrued and unpaid interest on the notes that remain outstanding, to the date of redemption (subject to the right of holders of record on the relevant record date to receive interest due on an Interest Payment Date that is on or prior to the redemption date).
6. Mandatory Redemption. Except as set forth in paragraph 7 below, the Issuers shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes or to repurchase the Notes at the option of the Holders.
7. Repurchase at Option of Holder. Subject to the additional terms and conditions set forth in the Indenture:
If there is a Change of Control, each Holder of Notes will have the right to require the Partnership to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holders Notes (the Change of Control Offer) at a purchase price equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest thereon, if any, to the date of purchase. Within 30 days following any Change of Control, the Partnership shall mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture and information regarding such other matters as is required under Section 5.06 of the Indenture. The Holder of this Note may elect to have this Note or a portion hereof in an authorized denomination purchased by completing the form entitled Option of Holder to Elect Purchase appearing below and tendering this Note pursuant to the Change of Control Offer.
If the Issuers or any Restricted Subsidiary of the Partnership consummates an Asset Sale, in certain circumstances specified in Section 5.07 of the Indenture the Issuers shall commence a pro rata offer to all Holders of Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an Asset Sale Offer) pursuant to Section 4.09 of the Indenture to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase in accordance with the procedures set forth in the Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds allocated for repurchase of Notes, the Trustee shall select the Notes to be purchased on a pro rata basis. Holders of Notes that are the subject of an Asset Sale Offer will receive an offer to purchase from the Issuers prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled Option of Holder to Elect Purchase on the reverse of the Notes.
8. Notice of Redemption. Notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a Legal Defeasance, Covenant Defeasance or Discharge. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption unless the Issuers defaults in making such redemption payment.
9. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in minimum denominations of $2,000 or integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuers may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuers need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the portion of any Note being redeemed in part that is not being redeemed. Also, the Issuers need
not exchange or register the transfer of any Notes for a period of 15 days before the mailing of a notice of redemption or during the period between a record date and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture, the Guarantees or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes, and any existing default or compliance with any provision of the Indenture, the Guarantees or the Notes may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes. Without the consent of any Holder of a Note, the Indenture, the Guarantees or the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of Certificated Notes, to provide for the assumption of an Issuers or a Subsidiary Guarantors obligations to Holders of the Notes in case of a merger or consolidation or sale of all or substantially all of such Issuers or Subsidiary Guarantors properties or assets, as applicable, to add or release Subsidiary Guarantors pursuant to the terms of the Indenture, to make any change that would provide any additional rights or benefits to the Holders of the Notes or surrender any right or power conferred upon the Issuers or the Subsidiary Guarantors by the Indenture that does not adversely affect the rights under the Indenture of any such Holder, to provide for the issuance of additional Notes in accordance with the limitations set forth in the Indenture, to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act, to evidence or provide for the acceptance of appointment under the Indenture of a successor Trustee, to add additional Events of Default, to secure the Notes and/or the Guarantees or to provide for the reorganization of the Partnership as any other form of entity.
12. Defaults and Remedies. Events of Default include in summary form: (i) default for 30 days in the payment when due of interest on the Notes; (ii) default in payment when due of the principal of or premium, if any, on the Notes; (iii) failure by the Partnership or any of its Restricted Subsidiaries to comply with Section 6.01 of the Indenture; (iv) failure by the Partnership to comply with the provisions described under Section 4.09, 5.06, 5.07, 5.08, 5.09, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15 or 5.16 of the Indenture for 30 days or under Section 5.17 of the Indenture for 90 days, in each case after notice to the Issuers by the Trustee or to the Issuers and Trustee by Holders of at least 25% in aggregate principal amount of the Notes then outstanding (provided that no such notice need be given, and an Event of Default shall occur, 30 days after a failure to comply with the covenants in Section 5.08 or 5.09 of the Indenture, unless theretofore cured), in each case other than a failure to purchase Notes which will constitute an Event of Default under clause (ii) above; (v) failure by the Partnership to comply with any of its other agreements in the Indenture for 60 days after notice to the Issuers by the Trustee or to the Issuers and Trustee by Holders of at least 25% in aggregate principal amount of the Notes then outstanding; (vi) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by an Issuer or any Restricted Subsidiary of the Partnership (or the payment of which is guaranteed
by an Issuer or any Restricted Subsidiary of the Partnership), whether such Indebtedness or guarantee now exists, or is created after the Issue Date, if that default (a) is caused by a failure to pay principal of or premium, if any, or interest on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness (a Payment Default) or (b) results in the acceleration of such Indebtedness prior to its express maturity and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $20.0 million or more; provided that if any such default is cured or waived or any such acceleration rescinded, or such Indebtedness is repaid, within a period of 30 days from the continuation of such default beyond the applicable grace period or the occurrence of such acceleration, as the case may be, such Event of Default and any consequential acceleration of the Notes shall be automatically rescinded, so long as such rescission does not conflict with any judgment or decree; (vii) the failure by an Issuer or any Restricted Subsidiary of the Partnership to pay final judgments entered by courts of competent jurisdiction aggregating in excess of $20.0 million, which judgments are not paid, discharged or stayed for a period of 60 days; (viii) except as permitted by the Indenture, any Guarantee of a Subsidiary Guarantor shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Subsidiary Guarantor, or any Person acting on behalf of any Subsidiary Guarantor, shall deny or disaffirm its obligations under its Guarantee; and (ix) certain events of bankruptcy or insolvency with respect to an Issuer or any Restricted Subsidiary of the Partnership that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary. If any Event of Default occurs and is continuing, the Trustee may or at the request of the Holders of at least 25% in aggregate principal amount of the then outstanding Notes shall declare all the Notes to be due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, with respect to an Issuer, all outstanding Notes will become due and payable without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest.
The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of interest on, or the principal or premium, if any, of the Notes. The Issuers and the Subsidiary Guarantors are required to deliver to the Trustee annually an Officers Certificate regarding compliance with the Indenture, and the Issuers are required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
13. Trustee Dealings with Partnership. The Trustee, in its commercial banking or any other capacity, may make loans to, accept deposits from, and perform services for the Partnership or its Affiliates, and may otherwise deal with the Partnership or its Affiliates, as if it were not the Trustee.
14. Personal Liability of Directors, Officers, Employees and Unitholders; No Recourse Against General Partner. No past, present or future director, officer, partner, employee, incorporator, manager or unitholder or other owner of Equity Interests of the Issuers, the General Partner, or any Subsidiary Guarantor, as such, shall have any liability for any Obligations of the Issuers or the Subsidiary Guarantors under the Notes, the Indenture, the Guarantees or for any claim based on, in respect of, or by reason of, such Obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
15. Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers have caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. The Issuers will furnish to any Holder upon written request and without charge a copy of the Indenture.
Requests may be made to:
MarkWest Energy Partners, L.P.
1515 Arapahoe St., Tower 1, Suite 1600
Denver, Colorado, 80202
Attention: Chief Financial Officer
[FORM OF ASSIGNMENT]
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to:
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type name, address and zip code of assignee)
and irrevocably appoint to transfer this Note on the books of the Issuers. The agent may substitute another to act for him.
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(Sign exactly as name appears on the other side of this Note) |
Signature Guarantee*
* NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the following recognized signature Guarantee Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) in such other guarantee program acceptable to the Trustee.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Partnership pursuant to Sections 4.09 and 5.07 or Section 5.06 of the Indenture, check the box below:
o Sections 4.09 and 5.07 |
o Section 5.06 |
If you want to elect to have only part of the Note purchased by the Issuers pursuant to Sections 4.09 and 5.07 or Section 5.06 of the Indenture, state the amount you elect to have purchased (must be a minimum of $2,000 or an integral multiple of $1,000 in excess thereof):
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Signature Guarantee*
* NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the following recognized signature Guarantee Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) in such other guarantee program acceptable to the Trustee.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Certificated Note, or exchanges of a part of another Global Note or Certificated Note for an interest in this Global Note, have been made:
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* This schedule should only be included if the Note is issued in global form.
EXHIBIT B
FORM OF GUARANTEE NOTATION
Subject to the limitations set forth in the Indenture (the Indenture) referred to in the Note upon which this notation is endorsed, each of the entities listed on Schedule A thereto (hereinafter referred to as the Subsidiary Guarantors, which term includes any successor or additional Subsidiary Guarantor under the Indenture) (i) has unconditionally guaranteed: (a) the due and punctual payment of the principal of, premium and interest on the Notes, whether at maturity or interest payment date, by acceleration, call for redemption or otherwise, (b) the due and punctual payment of interest on the overdue principal of, premium and interest if lawful, on the Notes, (c) the due and punctual payment or performance of all other Obligations of the Issuers to the Holders or the Trustee, all in accordance with the terms set forth in the Indenture, and (d) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the prompt payment in full thereof when due or performance thereof in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise and (ii) has agreed to pay any and all costs and expenses (including reasonable attorneys fees) incurred by the Trustee or any Holder in enforcing any rights under this Guarantee.
This Guarantee Notation is subject to the limitations set forth in the Indenture, including Article XI thereof.
No member, manager, stockholder, partner, officer, employee, director or incorporator, as such, past, present or future, of the Subsidiary Guarantors shall have any personal liability under this Guarantee by reason of his or its status as such member, manager, partner, stockholder, officer, employee, director or incorporator.
The Guarantee shall be binding upon each Subsidiary Guarantor and its successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges herein conferred upon that party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof.
Each Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Note upon which this notation of Guarantee is noted shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized officers.
The Subsidiary Guarantors may be released from their Guarantees upon the terms and subject to the conditions provided in the Indenture.
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MARKWEST HYDROCARBON, INC. | ||
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MARKWEST ENERGY GP, L.L.C. | ||
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MASON PIPELINE LIMITED LIABILITY COMPANY | ||
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MarkWest Hydrocarbon, Inc., |
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MARKWEST ENERGY OPERATING COMPANY, L.L.C. | ||
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MarkWest Energy Partners, L.P., |
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its Managing Member |
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MarkWest Energy GP, L.L.C., |
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its General Partner |
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Senior Vice President and Chief Financial Officer |
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WEST SHORE PROCESSING COMPANY, L.L.C. | ||
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MarkWest Energy Operating Company, L.L.C., |
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its Sole Member and Manager |
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MarkWest Energy Partners, L.P., |
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its Managing Member |
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MarkWest Energy GP, L.L.C., |
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MARKWEST RANGER PIPELINE COMPANY, L.L.C. | ||
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MarkWest Energy Appalachia, L.L.C., |
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its Sole Member |
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MarkWest Energy Operating Company, L.L.C., |
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its Sole Member |
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MarkWest Energy Partners, L.P., |
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MarkWest Energy GP, L.L.C., |
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its General Partner |
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MARKWEST BLACKHAWK, L.L.C. | ||
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MARKWEST ENERGY APPALACHIA, L.L.C. | ||
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MARKWEST ENERGY EAST TEXAS GAS COMPANY, L.L.C. | ||
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MARKWEST GAS MARKETING, L.L.C. | ||
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MARKWEST GAS SERVICES, L.L.C. | ||
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MARKWEST JAVELINA COMPANY, L.L.C. | ||
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MARKWEST JAVELINA PIPELINE COMPANY, L.L.C. | ||
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MARKWEST LIBERTY GAS GATHERING, L.L.C. | ||
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MARKWEST LUFKIN PIPELINE, L.L.C. | ||
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MARKWEST MARKETING, L.L.C. | ||
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MARKWEST MOUNTAINEER PIPELINE COMPANY, L.L.C. | ||
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MARKWEST NEW MEXICO, L.L.C. | ||
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MARKWEST PINNACLE, L.L.C. | ||
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MARKWEST PIPELINE COMPANY, L.L.C. | ||
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MARKWEST PNG UTILITY, L.L.C. | ||
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MARKWEST POWER TEX, L.L.C. | ||
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MARKWEST TEXAS LPG PIPELINE, L.L.C | ||
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MARKWEST TEXAS PNG UTILITY, L.L.C. | ||
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MARKWEST UTICA OPERATING COMPANY, L.L.C. | ||
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MarkWest Energy Operating Company, L.L.C., |
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its Sole Member |
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MarkWest Energy Partners, L.P., |
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its Managing Member |
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MarkWest Energy GP, L.L.C., |
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its General Partner |
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MARKWEST MICHIGAN PIPELINE COMPANY, L.L.C. | ||
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MARKWEST OKLAHOMA GAS COMPANY, L.L.C. | ||
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MarkWest Energy Operating Company, L.L.C., |
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its Managing Member |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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MarkWest Energy GP, L.L.C., |
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its General Partner |
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MATREX, L.L.C. | ||
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West Shore Processing Company, L.L.C. |
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its Sole Member and Manager |
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By: |
MarkWest Energy Operating Company, L.L.C., |
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its Sole Member and Manager |
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By: |
MarkWest Energy Partners, L.P., |
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its Managing Member |
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MarkWest Energy GP, L.L.C., |
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its General Partner |
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Nancy Buese | |
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Senior Vice President and Chief Financial Officer |
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MARKWEST MCALESTER, L.L.C. | ||
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By: |
MarkWest Oklahoma Gas Company, L.L.C., |
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its Sole Member |
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MarkWest Energy Operating Company, L.L.C., |
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its Managing Member |
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MarkWest Energy Partners, L.P., |
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its Managing Member |
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MarkWest Energy GP, L.L.C., |
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its General Partner |
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Nancy Buese | |
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Senior Vice President and Chief Financial Officer |
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
This SUPPLEMENTAL INDENTURE, dated as of , is among MarkWest Energy Partners, L.P., a Delaware limited partnership (the Partnership), MarkWest Energy Finance Corporation, a Delaware corporation (MarkWest Finance and, together with the Partnership, the Issuers), each of the parties identified under the caption Subsidiary Guarantors on the signature page hereto (the Subsidiary Guarantors) and Wells Fargo Bank, National Association, a national banking association, as Trustee.
RECITALS
WHEREAS, the Issuers, the initial Subsidiary Guarantors and the Trustee entered into an Indenture, dated as of November 2, 2010 (as supplemented and amended by the Tenth Supplemental Indenture dated as of January 10, 2013, the Indenture), pursuant to which the Issuers have issued $1,000,000,000 in principal amount of 4.5% Senior Notes due 2023 (the Notes);
WHEREAS, Section 10.01 of the Indenture provides that the Issuers, the Subsidiary Guarantors and the Trustee may amend or supplement the Indenture in order to add Subsidiary Guarantors pursuant to Section 5.13 or 6.01(c) thereof, without the consent of the Holders of the Notes; and
WHEREAS, all acts and things prescribed by the Indenture, by law and by the Certificate of Incorporation and the Bylaws (or comparable constituent documents) of the Issuers, of the Subsidiary Guarantors and of the Trustee necessary to make this Supplemental Indenture a valid instrument legally binding on the Issuers, the Subsidiary Guarantors and the Trustee, in accordance with its terms, have been duly done and performed;
NOW, THEREFORE, to comply with the provisions of the Indenture and in consideration of the above premises, the Issuers, the Subsidiary Guarantors and the Trustee covenant and agree for the equal and proportionate benefit of the respective Holders of the Notes as follows:
ARTICLE 1
This Supplemental Indenture is supplemental to the Indenture and does and shall be deemed to form a part of, and shall be construed in connection with and as part of, the Indenture for any and all purposes.
This Supplemental Indenture shall become effective immediately upon its execution and delivery by each of the Issuers, the Subsidiary Guarantors and the Trustee.
ARTICLE II
From this date, in accordance with Section 4.13 or 5.01(c) and by executing this Supplemental Indenture, the Guarantors whose signatures appear below are subject to the provisions of the Indenture to the extent provided for in Article XI thereunder.
ARTICLE III
Except as specifically modified herein, the Indenture and the Notes are in all respects ratified and confirmed (mutatis mutandis) and shall remain in full force and effect in accordance with their terms with all capitalized terms used herein without definition having the same respective meanings ascribed to them as in the Indenture.
The Trustee accepts the amendments of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Issuers and the Subsidiary Guarantors, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of such executed copies together shall represent the same agreement.
[NEXT PAGE IS SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first written above.
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MARKWEST ENERGY PARTNERS, L.P. | |||
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BY: MARKWEST ENERGY GP, L.L.C., | |||
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ITS GENERAL PARTNER | |||
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MARKWEST ENERGY FINANCE CORPORATION | |||
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SUBSIDIARY GUARANTORS | |||
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WELLS FARGO BANK, NATIONAL ASSOCIATION, | |||
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Exhibit 5.1
January 10, 2013
MarkWest Energy Partners, L.P.
1515 Arapahoe Street, Tower 1, Suite 1600
Denver, Colorado 80202
Ladies and Gentlemen:
We have acted as counsel for MarkWest Energy Partners, L.P., a Delaware limited partnership (the Partnership), with respect to certain legal matters in connection with the registration by the Partnership and its wholly-owned subsidiary MarkWest Energy Finance Corporation (Finance Corp. and, together with the Partnership, the Issuers) under the Securities Act of 1933, as amended (the Securities Act), of the proposed offer and sale (i) by the Issuers of $1,000,000,000 aggregate principal amount of 4.5% Senior Notes due 2023 (the Notes), to be issued and sold pursuant to an underwriting agreement dated January 7, 2013 (the Underwriting Agreement), by and among the Issuers, the Subsidiary Guarantors named therein and the Underwriters named therein, and (ii) by the Subsidiary Guarantors of the note guarantees (the Guarantees). The Notes and the Guarantees are referred to collectively herein as the Securities. Capitalized terms used but not defined herein shall have the meanings given such terms in the Underwriting Agreement.
The Securities are being offered and sold pursuant to a prospectus supplement, dated January 7, 2013, (the Prospectus Supplement) filed with the Securities and Exchange Commission (the Commission) pursuant to Rule 424(b) on January 7, 2013, to a prospectus dated October 26, 2012 (such prospectus, as amended and supplemented by Post-Effective Amendment No. 1 Filed on January 7, 2013 and the Prospectus Supplement, the Prospectus), included in a Registration Statement on Form S-3 (Registration No. 333-184605) (the Registration Statement), which Registration Statement became effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act.
The Securities are to be issued as securities pursuant to an Indenture (the Base Indenture), dated November 2, 2010, by and among the Issuers, the Subsidiary Guarantors and Wells Fargo Bank, National Association, as trustee (the Trustee), as supplemented and amended by the Tenth Supplemental Indenture (herein so called), to be dated August 10, 2012, establishing the forms and terms of the Securities. The Base Indenture, as so supplemented and amended by the Tenth Supplemental Indenture, is referred to as the Indenture.
We have examined, among other things, originals or copies, certified or otherwise identified to our satisfaction, of (i) the organizational certificates, certificate of limited partnership or formation (as the case may be) and the limited partnership or limited liability company agreements (as the case may be) of the Partnership, MarkWest Energy GP, L.L.C., a Delaware limited liability company (the General Partner), which is the sole general partner of the Partnership, Finance Corp. and of each of the Subsidiary Guarantors, (ii) certain resolutions adopted by the Board of Directors of the General Partner relating to the registration of the Securities and related matters, (iii) certain resolutions adopted by the Finance Committee of the Board of Directors of the General Partner, (iv) certain resolutions adopted by the Board of Directors of Finance Corp., (v) certain resolutions adopted by each of the Subsidiary Guarantors, (vi) the Registration Statement, (vii) the Prospectus, (viii) each of the Indenture and the Tenth Supplemental Indenture and (ix) such other certificates, instruments and documents as we consider appropriate for purposes of the opinions hereafter expressed. In addition, we reviewed such questions of law as we considered appropriate.
Based on the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that when (a) the Tenth Supplemental Indenture has been duly executed and delivered by the parties thereto and (b) the Notes have been duly executed and issued by the Issuers and duly authenticated by the Trustee and paid for by the Underwriters as contemplated by the Underwriting Agreement, (i) the Notes will constitute valid and legally binding obligations of the Issuers, enforceable against the Issuers in accordance with
their terms, and (ii) the Guarantees will constitute valid and binding obligations of the Subsidiary Guarantors, enforceable against the Subsidiary Guarantors in accordance with their terms.
The opinions expressed herein are qualified in the following respects:
A. As to any facts material to the opinions contained herein, we have made no independent investigation of such facts and have relied, to the extent that we deem such reliance proper, upon certificates of public officials and officers or other representatives of the Issuers and the Subsidiary Guarantors.
B. We have assumed that (i) all information contained in all documents submitted to us for review is accurate and complete, (ii) all signatures on all documents examined by us are genuine, (iii) all documents submitted to us as originals are originals and all documents submitted to us as copies conform to the originals of those documents, (iv) each certificate from governmental officials reviewed by us is accurate, complete and authentic and all public records are accurate and complete, (v) each natural person signing any document has the legal capacity to do so, (vi) each person signing in a representative capacity any document reviewed by us had the legal capacity to do so, and (vii) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Prospectus and the Underwriting Agreement.
C. The opinions expressed herein are limited in all respects to the laws of the State of New York and we are expressing no opinion as to the effect of the laws of any other jurisdiction.
D. The opinion is qualified to the extent that the enforceability of any document, instrument or security may be limited by or subject to bankruptcy, insolvency, fraudulent transfer or conveyance, reorganization, moratorium or other similar laws relating to or affecting creditors rights generally, and general equitable or public policy principles.
E. We express no opinions concerning (i) the validity or enforceability of any provisions contained in the Indenture that purport to waive or not give effect to rights to notices, defenses, subrogation or other rights or benefits that cannot be effectively waived under applicable law or (ii) the enforceability of indemnification provisions to the extent they purport to relate to liabilities resulting from or based upon negligence or any violation of federal or state securities or blue sky laws.
We hereby consent to the filing of this opinion of counsel as Exhibit 5.1 to the Current Report on Form 8-K of the Partnership dated on or about the date hereof, to the incorporation by reference of this opinion of counsel into the Registration Statement and to the reference to our Firm under the heading Legal Matters in the Prospectus Supplement and the Prospectus. In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission issued thereunder.
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Very truly yours, |
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/s/ Vinson & Elkins L.L.P. |
Exhibit 99.1
MarkWest Energy Partners Announces Public Offering of $1.0 Billion of Senior Notes Due 2023
DENVER(BUSINESS WIRE)January 7, 2013MarkWest Energy Partners, L.P. (NYSE: MWE) (the Partnership) and its subsidiary MarkWest Energy Finance Corporation announced today that, subject to market conditions, they intend to commence a public offering of $1,000,000,000 in aggregate principal amount of senior unsecured notes due 2023 (the Notes).
The Partnership intends to use a portion of the net proceeds from the Notes offering, together with cash on hand resulting in part from its recent equity offerings, to fund the redemption of all of its outstanding 8.75% Senior Notes due 2018, and a portion of its 6.5% Senior Notes due 2021 and 6.25% Senior Notes due 2022, with the balance of such proceeds to be used to fund the Partnerships capital expenditure program, for general working capital and for other general partnership purposes. Any redemption of these series of senior notes will be made by separate notice to holders of such senior notes and nothing in this press release is intended to constitute such notice.
Barclays, BofA Merrill Lynch, Citigroup, Goldman, Sachs & Co., J.P. Morgan, Morgan Stanley, Natixis, RBC Capital Markets, SunTrust Robinson Humphrey, UBS Investment Bank, US Bancorp, and Wells Fargo Securities are acting as joint book-running managers for the Notes offering. The Notes offering is being made only by means of a prospectus supplement and accompanying base prospectus. A copy of the prospectus supplement and accompanying base prospectus associated with this offering may be obtained from the underwriters as follows:
· Barclays, c/o Broadridge Financial Solutions, 1155 Long Island Ave. Edgewood, NY 11717. By email at barclaysprospectus@broadridge.com, or Toll-Free: (888) 603-5847;
· BofA Merrill Lynch, Attention: Prospectus Department, 222 Broadway, New York, NY 10038. By email at dg.prospectus_requests@baml.com;
· Citigroup, c/o Broadridge Financial Solutions, 1155 Long Island Ave. Edgewood, NY 11717. By email at batprospectusdept@citi.com, or Toll-Free: (800) 831-9146;
· Goldman, Sachs & Co., Attention: Prospectus Department, 200 West Street, New York, NY 10282. By email at prospectus-ny@ny.email.gs.com, or Toll-Free: (866) 471-2526;
· J.P. Morgan, c/o Broadridge Financial Solutions, 1155 Long Island Ave. Edgewood, NY 11717. Toll-Free: (866) 803-9204;
· Morgan Stanley, Attention: Prospectus Department, 180 Varick Street, 2nd Floor, New York, NY 10014. By email at prospectus@morganstanley.com, or Toll-Free: (866) 718-1649;
· Natixis, Attention: Natixis Securities Americas LLC Fixed Income Syndicate, 1251 Avenue of the Americas (4th floor), New York, NY 10020. Toll-Free: (866) 245-0436;
· RBC Capital Markets, Three World Financial Center, 200 Vesey Street, 10th Floor, New York, NY 10281-8098. By email at CM-USA-Prospectus@rbc.com, or Toll-Free: (877) 280-1299;
· SunTrust Robinson Humphrey, Attention: High Yield Syndicate, 333 Peachtree Road, 10th Floor, Atlanta, GA 30326. By phone: (404) 926-5052;
· UBS Investment Bank, Attention: Prospectus Dept., 299 Park Avenue, New York, NY 10171. Toll-Free: (877) 827-6444, ext. 561 3884;
· US Bancorp, Attention: Stephen Philipson High Yield Syndicate, 214 North Tryon Street, Charlotte, NC 28202. By email at stephen.philipson@usbank.com, or Toll-Free: (877) 558-2607; or
· Wells Fargo Securities, LLC, 550 South Tryon Street, 7th Floor MAC D1086-070, Charlotte, NC 28202. By email at cmclientsupport@wellsfargo.com, or Toll-Free: (800) 326-5897.
An electronic copy of the preliminary prospectus supplement and the accompanying base prospectus is available from the Securities and Exchange Commissions (SEC) web site at http://www.sec.gov. The Notes are being offered pursuant to an effective shelf registration statement that the Partnership previously filed with the SEC. This press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these Notes in any state in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state.
MarkWest Energy Partners, L.P. is a master limited partnership engaged in the gathering, transportation, and processing of natural gas; the transportation, fractionation, marketing, and storage of natural gas liquids; and the gathering and transportation of crude oil. MarkWest has extensive natural gas gathering, processing, and transmission operations in the southwest, Gulf Coast, and northeast regions of the United States, including the Marcellus Shale, and is the largest natural gas processor and fractionator in the Appalachian region.
This press release includes forward-looking statements. All statements other than statements of historical facts included or incorporated herein may constitute forward-looking statements. Actual results could vary significantly from those expressed or implied in such statements and are subject to a number of risks and uncertainties. Although MarkWest believes that the expectations reflected in the forward-looking statements are reasonable, MarkWest can give no assurance that such expectations will prove to be correct. The forward-looking statements involve risks and uncertainties that affect operations, financial performance, and other factors as discussed in filings with the Securities and Exchange Commission. Among the factors that could cause results to differ materially are those risks discussed in the periodic reports filed with the SEC, including MarkWests Annual Report on Form 10-K for the year ended December 31, 2011 and its Quarterly Reports on Form 10-Q for the quarters ended March 31, 2012, June 30, 2012 and September 30, 2012. You are urged to carefully review and consider the cautionary statements and other disclosures made in those filings, specifically those under the heading Risk
Factors. MarkWest does not undertake any duty to update any forward-looking statement except as required by law.
Source: MarkWest Energy Partners, L.P.
MarkWest Energy Partners, L.P.
Frank Semple, 866-858-0482
Chairman, President & CEO
or
Nancy Buese, 866-858-0482
Senior VP & CFO
or
Josh Hallenbeck, 866-858-0482
VP of Finance & Treasurer
investorrelations@markwest.com
Exhibit 99.2
MarkWest Energy Partners Announces Pricing of an Offering of $1.0 Billion of 4.5% Senior Notes Due 2023
DENVER(BUSINESS WIRE)January 7, 2013MarkWest Energy Partners, L.P. (NYSE: MWE) (the Partnership) and its subsidiary MarkWest Energy Finance Corporation announced today that they have priced at par an offering of $1,000,000,000 in aggregate principal amount of 4.5% senior unsecured notes due 2023 (the Notes). The offering of the Notes is expected to settle on January 10, 2013, subject to customary closing conditions.
Barclays, BofA Merrill Lynch, Citigroup, Goldman, Sachs & Co., J.P. Morgan, Morgan Stanley, Natixis, RBC Capital Markets, SunTrust Robinson Humphrey, UBS Investment Bank, US Bancorp, and Wells Fargo Securities are acting as joint book-running managers for the Notes offering. The Notes offering is being made only by means of a prospectus supplement and accompanying base prospectus. A copy of the prospectus supplement and accompanying base prospectus associated with this offering may be obtained from the underwriters as follows:
· Barclays, c/o Broadridge Financial Solutions, 1155 Long Island Ave. Edgewood, NY 11717. By email at barclaysprospectus@broadridge.com, or Toll-Free: (888) 603-5847;
· BofA Merrill Lynch, Attention: Prospectus Department, 222 Broadway, New York, NY 10038. By email at dg.prospectus_requests@baml.com;
· Citigroup, c/o Broadridge Financial Solutions, 1155 Long Island Ave. Edgewood, NY 11717. By email at batprospectusdept@citi.com, or Toll-Free: (800) 831-9146;
· Goldman, Sachs & Co., Attention: Prospectus Department, 200 West Street, New York, NY 10282. By email at prospectus-ny@ny.email.gs.com, or Toll-Free: (866) 471-2526;
· J.P. Morgan, c/o Broadridge Financial Solutions, 1155 Long Island Ave. Edgewood, NY 11717. Toll-Free: (866) 803-9204;
· Morgan Stanley, Attention: Prospectus Department, 180 Varick Street, 2nd Floor, New York, NY 10014. By email at prospectus@morganstanley.com, or Toll-Free: (866) 718-1649;
· Natixis, Attention: Natixis Securities Americas LLC Fixed Income Syndicate, 1251 Avenue of the Americas (4th floor), New York, NY 10020. Toll-Free: (866) 245-0436;
· RBC Capital Markets, Three World Financial Center, 200 Vesey Street, 10th Floor, New York, NY 10281-8098. By email at CM-USA-Prospectus@rbc.com, or Toll-Free: (877) 280-1299;
· SunTrust Robinson Humphrey, Attention: High Yield Syndicate, 333 Peachtree Road, 10th Floor, Atlanta, GA 30326. By phone: (404) 926-5052;
· UBS Investment Bank, Attention: Prospectus Dept., 299 Park Avenue, New York, NY 10171. Toll-Free: (877) 827-6444, ext. 561 3884;
· US Bancorp, Attention: Stephen Philipson High Yield Syndicate, 214 North Tryon Street, Charlotte, NC 28202. By email at stephen.philipson@usbank.com, or Toll-Free: (877) 558-2607; or
· Wells Fargo Securities, LLC, 550 South Tryon Street, 7th Floor MAC D1086-070, Charlotte, NC 28202. By email at cmclientsupport@wellsfargo.com, or Toll-Free: (800) 326-5897.
The Partnership expects to receive net proceeds from the Notes offering, after deducting underwriting discounts, commissions, and offering expenses, of approximately $986,900,000. The Partnership intends to use a portion of such proceeds, together with cash on hand resulting in part from its recent equity offerings, to fund the redemption of all of its outstanding 8.75% Senior Notes due 2018, and a portion of its 6.5% Senior Notes due 2021 and 6.25% Senior Notes due 2022, with the balance of such proceeds to be used to fund the Partnerships capital expenditure program, for general working capital and for other general partnership purposes. Any redemption of these series of senior notes will be made by separate notice to holders of such senior notes and nothing in this press release is intended to constitute such notice.
An electronic copy of the preliminary prospectus supplement and the accompanying base prospectus is available from the Securities and Exchange Commissions (SEC) web site at http://www.sec.gov. The Notes are being offered pursuant to an effective shelf registration statement that the Partnership previously filed with the SEC. This press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these Notes in any state in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state.
MarkWest Energy Partners, L.P. is a master limited partnership engaged in the gathering, transportation, and processing of natural gas; the transportation, fractionation, marketing, and storage of natural gas liquids; and the gathering and transportation of crude oil. MarkWest has extensive natural gas gathering, processing, and transmission operations in the southwest, Gulf Coast, and northeast regions of the United States, including the Marcellus Shale, and is the largest natural gas processor and fractionator in the Appalachian region.
This press release includes forward-looking statements. All statements other than statements of historical facts included or incorporated herein may constitute forward-looking statements. Actual results could vary significantly from those expressed or implied in such statements and are subject to a number of risks and uncertainties. Although MarkWest believes that the expectations reflected in the forward-looking statements are reasonable, MarkWest can give no assurance that such expectations will prove to be correct. The forward-looking statements involve risks and uncertainties that affect operations, financial performance, and other factors as discussed in filings with the Securities and Exchange Commission. Among the factors that could cause results to differ materially are those risks discussed in the periodic reports filed with the SEC, including MarkWests Annual Report on Form 10-K for the year ended December 31, 2011 and its Quarterly Reports on Form 10-Q for the quarters ended March 31, 2012, June 30, 2012 and September 30, 2012. You are urged to carefully review and consider the cautionary statements and other disclosures made in those filings, specifically those under the heading Risk
Factors. MarkWest does not undertake any duty to update any forward-looking statement except as required by law.
SOURCE: MarkWest Energy Partners, L.P.
MarkWest Energy Partners, L.P.
Frank Semple, 866-858-0482
Chairman, President & CEO
or
Nancy Buese, 866-858-0482
Senior VP and CFO
or
Josh Hallenbeck, 866-858-0482
VP of Finance & Treasurer
investorrelations@markwest.com
Exhibit 99.3
MarkWest Energy Partners Closes Public Offering of
$1.0 Billion of 4.5% Senior Notes Due 2023
DENVERJanuary 10, 2013MarkWest Energy Partners, L.P. (NYSE: MWE) (the Partnership) and its subsidiary MarkWest Energy Finance Corporation today annouced the closing of a public offering of $1,000,000,000 of 4.5% senior unsecured notes due 2023 (the Notes) priced at par.
The Partnership intends to use a portion of the net proceeds from the Notes offering, together with cash on hand resulting in part from its recent equity offerings, to fund the redemption of all of its outstanding 8.75% Senior Notes due 2018, and a portion of its 6.5% Senior Notes due 2021 and 6.25% Senior Notes due 2022, with the balance of such proceeds to be used to fund the Partnerships capital expenditure program, for general working capital and for other general partnership purposes. Any redemption of these series of senior notes will be made by separate notice to holders of such senior notes and nothing in this press release is intended to constitute such notice.
Barclays, BofA Merrill Lynch, Citigroup, Goldman, Sachs & Co., J.P. Morgan, Morgan Stanley, Natixis, RBC Capital Markets, SunTrust Robinson Humphrey, UBS Investment Bank, US Bancorp, and Wells Fargo Securities acted as joint book-running managers for the Notes offering. A copy of the prospectus supplement and accompanying base prospectus associated with this offering may be obtained from the underwriters as follows:
· Barclays, c/o Broadridge Financial Solutions, 1155 Long Island Ave. Edgewood, NY 11717. By email at barclaysprospectus@broadridge.com, or Toll-Free: (888) 603-5847;
· BofA Merrill Lynch, Attention: Prospectus Department, 222 Broadway, New York, NY 10038. By email at dg.prospectus_requests@baml.com;
· Citigroup, c/o Broadridge Financial Solutions, 1155 Long Island Ave. Edgewood, NY 11717. By email at batprospectusdept@citi.com, or Toll-Free: (800) 831-9146;
· Goldman, Sachs & Co., Attention: Prospectus Department, 200 West Street, New York, NY 10282. By email at prospectus-ny@ny.email.gs.com, or Toll-Free: (866) 471-2526;
· J.P. Morgan, c/o Broadridge Financial Solutions, 1155 Long Island Ave. Edgewood, NY 11717. Toll-Free: (866) 803-9204;
· Morgan Stanley, Attention: Prospectus Department, 180 Varick Street, 2nd Floor, New York, NY 10014. By email at prospectus@morganstanley.com, or Toll-Free: (866) 718-1649;
· Natixis, Attention: Natixis Securities Americas LLC Fixed Income Syndicate, 1251 Avenue of the Americas (4th floor), New York, NY 10020. Toll-Free: (866) 245-0436;
· RBC Capital Markets, Three World Financial Center, 200 Vesey Street, 10th Floor, New York, NY 10281-8098. By email at CM-USA-Prospectus@rbc.com, or Toll-Free: (877) 280-1299;
· SunTrust Robinson Humphrey, Attention: High Yield Syndicate, 333 Peachtree Road, 10th Floor, Atlanta, GA 30326. By phone: (404) 926-5052;
· UBS Investment Bank, Attention: Prospectus Dept., 299 Park Avenue, New York, NY 10171. Toll-Free: (877) 827-6444, ext. 561 3884;
· US Bancorp, Attention: Stephen Philipson High Yield Syndicate, 214 North Tryon Street, Charlotte, NC 28202. By email at stephen.philipson@usbank.com, or Toll-Free: (877) 558-2607; or
· Wells Fargo Securities, LLC, 550 South Tryon Street, 7th Floor MAC D1086-070, Charlotte, NC 28202. By email at cmclientsupport@wellsfargo.com, or Toll-Free: (800) 326-5897.
An electronic copy of the prospectus supplement and the accompanying base prospectus is available from the Securities and Exchange Commissions (SEC) web site at http://www.sec.gov. The Notes were offered pursuant to an effective shelf registration statement that the Partnership previously filed with the SEC. This press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these Notes in any state in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state.
MarkWest Energy Partners, L.P. is a master limited partnership engaged in the gathering, transportation, and processing of natural gas; the transportation, fractionation, marketing, and storage of natural gas liquids; and the gathering and transportation of crude oil. MarkWest has extensive natural gas gathering, processing, and transmission operations in the southwest, Gulf Coast, and northeast regions of the United States, including the Marcellus Shale, and is the largest natural gas processor and fractionator in the Appalachian region.
This press release includes forward-looking statements. All statements other than statements of historical facts included or incorporated herein may constitute forward-looking statements. Actual results could vary significantly from those expressed or implied in such statements and are subject to a number of risks and uncertainties. Although MarkWest believes that the expectations reflected in the forward-looking statements are reasonable, MarkWest can give no assurance that such expectations will prove to be correct. The forward-looking statements involve risks and uncertainties that affect operations, financial performance, and other factors as discussed in filings with the Securities and Exchange Commission. Among the factors that could cause results to differ materially are those risks discussed in the periodic reports filed with the SEC, including MarkWests Annual Report on Form 10-K for the year ended December 31, 2011 and its Quarterly Reports on Form 10-Q for the quarters ended March 31, 2012, June 30, 2012 and September 30, 2012. You are urged to carefully review and consider the cautionary statements and other disclosures made in those filings, specifically those under the heading Risk Factors. MarkWest does not undertake any duty to update any forward-looking statement except as required by law.
Source: MarkWest Energy Partners, L.P.
MarkWest Energy Partners, L.P.
Frank Semple, 866-858-0482
Chairman, President & CEO
or
Nancy Buese, 866-858-0482
Senior VP & CFO
or
Josh Hallenbeck, 866-858-0482
VP of Finance & Treasurer
investorrelations@markwest.com