WESTERN GAS PARTNERS, LP $500,000,000 5.375% Senior Notes due 2021 Underwriting Agreement
Exhibit 1.1
Execution Copy
WESTERN GAS PARTNERS, LP
$500,000,000
5.375% Senior Notes due 2021
5.375% Senior Notes due 2021
May 9, 2011
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Fargo Securities, LLC
as Representatives
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Securities, LLC
as Representatives
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Western Gas Partners, LP, a Delaware limited partnership (the “Partnership”), proposes
to issue and sell to the underwriters named in Schedule A annexed hereto (the
“Underwriters”), for whom Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxx Fargo Securities, LLC
are acting as representatives (the “Representatives”), $500,000,000 aggregate principal
amount of its 5.375% Senior Notes due 2021 (the “Notes”), to be fully and unconditionally
guaranteed (collectively, the “Guarantees”) on a senior, unsecured basis by the direct and
indirect subsidiaries of the Partnership listed on Schedule B hereto (the
“Guarantors”). The Notes and the Guarantees are collectively referred to herein as
the “Securities”). The Securities will be issued under an indenture to be dated as of May
18, 2011 (the “Base Indenture”), among the Partnership, the Guarantors and Xxxxx Fargo
Bank, National Association, as trustee (the “Trustee”), as supplemented by the First
Supplemental Indenture, to be dated as of May 18, 2011 (the “Supplemental Indenture” and
the Base Indenture, as supplemented by the Supplemental Indenture, the “Indenture”).
This agreement (the “Agreement”) is to confirm the agreement among the Partnership,
Western Gas Holdings, LLC, a Delaware limited liability company and general partner of the
Partnership (the “General Partner” and, together with the Partnership and the Guarantors,
the “Western Gas Parties”), and the Guarantors, on the one hand, and the Underwriters, on
the other hand, concerning the purchase of the Notes from the Partnership by the Underwriters. The
Western Gas Parties and Chipeta Processing LLC, a Delaware limited liability company and indirect
subsidiary of the Partnership (“Chipeta”), are collectively referred to herein as the
“Partnership Entities.”
The Western Gas Parties and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties and subject
to the terms and conditions set forth herein, the Partnership agrees to issue and sell to the
respective Underwriters, the General Partner agrees to cause the Partnership to issue and sell to
the respective Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Partnership, the principal amount of Notes set forth opposite the name of such
Underwriter in Schedule A attached hereto, subject to adjustment in accordance with
Section 8 hereof, in each case at a purchase price equal to 98.128% of the principal amount
thereof, plus accrued interest, if any, from the Closing Date (as defined below).
2. Payment and Delivery. Payment of the purchase price for the Notes shall be made to
the Partnership by Federal Funds wire transfer against electronic delivery of the Notes in
book-entry form to the Representatives through the facilities of The Depository Trust Company
(“DTC”) for the respective accounts of the Underwriters. Such payment and delivery shall be
made at 9:00 A.M., Houston, Texas time, on May 18, 2011 (the “Closing Date”) (unless
another time shall be agreed to by the Representatives and the Partnership or unless postponed in
accordance with the provisions of Section 8 hereof). The time at which such payment and
delivery are to be made is sometimes referred to herein as the “time of purchase.” Delivery
of the Notes shall be made in book-entry form through the Full Fast Program of the facilities of
DTC unless the Underwriters shall otherwise instruct. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition of the obligation of
the Underwriters.
Delivery of the documents described in Section 6 hereof with respect to the purchase
of the Notes shall be made at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx 00000, at 9:00 A.M., Houston, Texas time, on the Closing Date.
3. Representations and Warranties of the Western Gas Parties. Each of the Western Gas
Parties, jointly and severally, represents, warrants to and agrees with each of the Underwriters
that:
(a) A registration statement on Form S-3 (File No. 333-174043) relating to the
Securities (i) has been prepared by the Partnership in conformity 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 such registration
statement and any amendment thereto have been delivered by the Partnership to the
Representatives. As used in this Agreement:
(i) “Applicable Time” means 5:45 p.m. (New York City time) on the date
of this Agreement;
(ii) “Effective Date” means any date as of which any part of such
registration statement relating to the Securities became, or is deemed to have
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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 Partnership or used or referred to by the Partnership in connection
with the offering of the Securities;
(iv) “Preliminary Prospectus” means any preliminary prospectus relating
to the Securities included in such 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, the
most recent Preliminary Prospectus, together with the information included on
Schedule C-1 hereto and each Issuer Free Writing Prospectus filed or used by
the Partnership 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;
(vi) “Prospectus” means the final prospectus relating to the
Securities, including any prospectus supplement thereto relating to the Securities,
as filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations;
and
(vii) “Registration Statement” means, collectively, the various parts
of the registration statement referred to in this Section 3(a), each as amended as
of the Effective Date for such part, including any Preliminary Prospectus or the
Prospectus and all exhibits to such registration statement.
Any reference to any Preliminary Prospectus 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 date of such Preliminary Prospectus or the Prospectus, as the case
may be. 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) prior to or on the date hereof (including, for purposes hereof, any
documents incorporated by reference therein prior to the date hereof). Any reference to any
amendment or supplement to 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 such Preliminary Prospectus or the
Prospectus, as the case may be, and incorporated by reference in such Preliminary Prospectus
or the 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.
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 has been instituted or threatened by the Commission.
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(b) 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 the Partnership or
any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of
the Rules and Regulations) made any offer relating to the Securities in reliance on the
exemption of Rule 163 of the Rules and Regulations, a “well-known seasoned issuer” (as
defined in Rule 405 of the Rules and Regulations). The Registration Statement is an
“automatic shelf registration statement” (as defined in Rule 405 of the Rules and
Regulations) and was filed not earlier than the date that is three years prior to the
Closing Date.
(c) Partnership Not an Ineligible Issuer. For purposes of firm commitment underwritten
offerings contemplated under the Registration Statement, the Partnership was not at the time
of the initial filing of the Registration Statement and at the earliest time thereafter that
the Partnership or another offering participant made a bona fide offer (within the meaning
of Rule 164(h)(2) of the Rules and Regulations) of the Securities, is not on the date hereof
and will not be at the time of purchase, an “ineligible issuer” (as defined in Rule 405 of
the Rules and Regulations). The Partnership has been since the time of the initial filing of
the Registration Statement and continues to be eligible to use Form S-3 for the offering of
the Securities.
(d) Form of Documents. The Registration Statement conformed and will conform in all
material respects on each Effective Date and at the time of purchase, 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 at the time of
purchase 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 of the Commission thereunder.
(e) Registration Statement. The Registration Statement did not, as of each 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 Partnership through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, which information is specified in
Section 10.
(f) Prospectus. The Prospectus will not, as of its date and at the time of purchase,
contain an untrue statement of a material fact or omit to state a material fact
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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 contained in or omitted from the Prospectus in reliance upon and in
conformity with written information furnished to the Partnership through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein, which information is
specified in Section 10.
(g) 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, contain 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) Pricing Disclosure Package. The Pricing Disclosure Package did not, as of the
Applicable Time, contain 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 contained in or omitted from the Pricing Disclosure
Package in reliance upon and in conformity with written information furnished to the
Partnership through the Representatives by or on behalf of any Underwriters specifically for
inclusion therein, which information is specified in Section 10.
(i) Issuer Free Writing Prospectus and Pricing Disclosure Package. Each Issuer Free
Writing Prospectus (including, without limitation, any road show that is a free writing
prospectus under Rule 433), when considered together with the Pricing Disclosure Package as
of the Applicable Time, did not contain 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.
(j) Each Issuer Free Writing Prospectus. 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 Partnership has complied with any
filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules
and Regulations. The Partnership has not made any offer relating to the Securities that
would constitute an Issuer Free Writing Prospectus without the prior written consent of the
Representatives, except as set forth on Schedule C-2 hereto. The Partnership has
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 (it being
understood that, as of the date hereof, the Partnership has not retained any Issuer Free
Writing Prospectus for the three-year period required thereby). Each Issuer Free Writing
Prospectus does not and will not include any information that conflicts with the information
contained in the Registration Statement or the Pricing Disclosure Package, including any document incorporated therein and any prospectus
supplement deemed to be a part thereof that has not been superseded or modified.
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(k) Formation of the Partnership Entities. Each of the Partnership Entities has been
duly formed and is validly existing as a limited partnership or limited liability company,
as the case may be, and is in good standing under the laws of the State of Delaware, the
State of Texas, the State of Wyoming or the State of Colorado, as the case may be, with full
limited partnership or limited liability company power and authority to own, lease and
operate its properties and conduct its business as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus and (i) in the case of the Western Gas
Parties, to execute and deliver this Agreement and consummate the transactions contemplated
hereby, (ii) in the case of the Partnership, to issue, sell and deliver the Notes, (iii) in
the case of the General Partner, to act as the general partner of the Partnership, and (iv)
in the case of the Guarantors, to issue the Guarantees.
(l) Foreign Qualification and Registration. Each of the Partnership Entities is duly
qualified to do business as a foreign limited partnership or limited liability company, as
the case may be, and is in good standing in each jurisdiction where the ownership or lease
of its properties or the conduct of its business requires such qualification (as set forth
in Schedule D hereto), except for any failures to be so qualified and in good
standing that would not, individually or in the aggregate, (i) have a material adverse
effect on the business, assets, condition (financial or otherwise), results of operations or
prospects of the Partnership Entities taken as a whole (a “Material Adverse Effect”)
or (ii) subject the limited partners of the Partnership to any material liability or
disability.
(m) Ownership of the General Partner. (i) WGR Holdings, LLC, a Delaware limited
liability company (“Holdings”), owns all of the issued and outstanding shares of
capital stock of XXX GP, Inc., a Delaware corporation (“XXX GP”); such shares of
capital stock have been duly authorized and validly issued in accordance with the articles
of incorporation and by-laws of XXX GP, each as in effect as of the date hereof and at the
time of purchase (collectively, the “XXX GP Operating Agreements”), and are fully
paid (to the extent required by the XXX GP Operating Agreements) and nonassessable; and
Holdings owns such shares of capital stock free and clear of all liens, encumbrances,
security interests, charges or claims (“Liens”); (ii) Holdings owns a 99%
membership interest in the General Partner and XXX GP owns a 1% membership interest in the
General Partner; such membership interests have been duly authorized and validly issued in
accordance with the limited liability company agreement of the General Partner, as in effect
as of the date hereof and at the time of purchase (the “General Partner LLC
Agreement”), and are fully paid (to the extent required by the General Partner LLC
Agreement) and nonassessable (except as such nonassessability may be affected by Section
18-607 of the Delaware Limited Liability Company Act (the “Delaware LLC Act”)); and
Holdings and XXX GP own their respective membership interests in the General Partner free
and clear of all Liens.
(n) Ownership of General Partner Interest in the Partnership. The General Partner is
the sole general partner of the Partnership, with a 2.0% general partner interest in the
Partnership; such general partner interest has been duly authorized and validly issued in
accordance with the agreement of limited partnership of the Partnership, as in effect as of the date hereof and at the time of purchase (the “Partnership
Agreement”), and the General Partner owns such general partner interest free and clear
of all Liens,
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except for restrictions on transferability contained in the Partnership Agreement and as
otherwise described in the Registration Statement (excluding the exhibits thereto), the
Pricing Disclosure Package and the Prospectus.
(o) Capitalization. As of the date hereof, there are 54,889,781 common units
representing limited partner interests in the Partnership (the “Common Units”) and
26,536,306 subordinated units representing limited partner interests in the Partnership (the
“Subordinated Units”) outstanding; Holdings owns 10,302,631 Common Units and
26,536,306 Subordinated Units (such Common Units and Subordinated Units being collectively
referred to herein as the “Sponsor Units”); and the General Partner owns 1,661,757
general partner units and all of the Incentive Distribution Rights (as defined in the
Partnership Agreement). All of the Sponsor Units and the limited partner interests
represented thereby and the Incentive Distribution Rights have been duly authorized and
validly issued in accordance with the Partnership Agreement and are fully paid (to the
extent required by the Partnership Agreement) and nonassessable (except as such
nonassessability may be affected by (i) matters described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus and (ii) Sections 17-303 and 17-607 of the
Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”); and all of
the Sponsor Units owned by Holdings and the Incentive Distribution Rights owned by the
General Partner will be owned free and clear of all Liens, except with respect to the
restrictions on transferability contained in the Partnership Agreement and as otherwise
described in the Registration Statement (excluding the exhibits thereto), the Pricing
Disclosure Package and the Prospectus.
(p) Ownership of Guarantors. The Partnership directly or indirectly owns all of the
issued and outstanding limited partnership interests and membership interests, as
applicable, in the Guarantors, in each case free and clear of all Liens. The issued and
outstanding partnership interests and membership interests, as applicable, of each Guarantor
have been duly authorized and validly issued in accordance with its partnership agreement or
limited liability company agreement, as applicable (collectively, the “Constituent
Agreements”), and the certificate of limited partnership or certificate of formation or
conversion or other constituent document, as applicable, each as in effect as of the date
hereof and at the time of purchase and are fully paid (to the extent required by the
Constituent Agreements) and nonassessable (except as such nonassessability may be affected
by Sections 17-303 and 17-607 of the Delaware LP Act, Section 18-607 of the Delaware LLC
Act, Article 101.206 of the Texas Business Organizations Code, Section 00-00-000 and
00-00-000 of the Wyoming Limited Liability Company Act and Section 7-80-606 of the Colorado
Limited Liability Company Act, as applicable).
(q) Ownership of Chipeta. WGR Operating, LP, a Delaware limited partnership (the
“Operating Partnership”), owns 51.0% of the issued and outstanding membership
interests in Chipeta; such membership interests have been duly authorized and validly issued
in accordance with the limited liability company agreement of Chipeta, as in effect as of
the date hereof and at the time of purchase (the “Chipeta LLC Agreement”), and are fully paid (to the extent required by the Chipeta LLC
Agreement) and nonassessable (except as such nonassessability may be affected by Section
18-607 of
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the Delaware LLC Act); and the Operating Partnership owns such membership interests
free and clear of all Liens.
(r) Ownership of Fort Union. Western Gas Wyoming, L.L.C., a Delaware limited liability
company (“WGW”), owns 14.81% of the issued and outstanding membership interests in
Fort Union Gas Gathering, L.L.C., a Delaware limited liability company (“Fort
Union”); such membership interests have been duly authorized and validly issued in
accordance with the limited liability company agreement of Fort Union, as in effect as of
the date hereof and at the time of purchase (the “Fort Union LLC Agreement”), and
are fully paid (to the extent required by the Fort Union LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act);
and WGW owns such membership interests free and clear of all Liens.
(s) Ownership of White Cliffs. Anadarko Wattenberg Company, LLC, a Delaware limited
liability company (“AWC”), owns 10.00% of the issued and outstanding membership
interests in White Cliffs Pipeline, L.L.C., a Delaware limited liability company (“White
Cliffs”); such membership interests have been duly authorized and validly issued in
accordance with the limited liability company agreement of White Cliffs, as in effect as of
the date hereof and at the time of purchase (the “White Cliffs LLC Agreement”), and
are fully paid (to the extent required by the White Cliffs LLC Agreement) and nonassessable
(except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act);
and AWC owns such membership interests free and clear of all Liens.
(t) No Other Subsidiaries. The Partnership has no other direct or indirect
“subsidiaries” (as defined under the Securities Act) other than the Guarantors and Chipeta.
Other than its ownership interest in the Guarantors and Chipeta, the Partnership does not
own, and at the time of purchase will not own, directly or indirectly, any shares of stock,
any other equity interests or any long-term debt securities of any corporation, partnership,
limited liability company, joint venture, association or other entity, other than its
interests in Fort Union and White Cliffs and the note issued by Anadarko Petroleum
Corporation as described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus. All equity interests in the Guarantors and Chipeta have been issued in
compliance with all applicable securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar right. No options,
warrants or other rights to purchase, agreements or other obligations to issue or rights to
convert any obligation into equity interests in any of the Guarantors or Chipeta are
outstanding.
(u) Valid Issuance of the Notes. The Notes have been duly authorized and, when executed
by the Partnership, authenticated by the Trustee in accordance with the Indenture and
delivered against payment of the purchase price for the Notes as provided in this Agreement,
will constitute valid and legally binding obligations of the Partnership enforceable against the Partnership in accordance with their terms, except as
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
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reorganization, moratorium and similar laws relating to or affecting creditors’ rights
generally and by general principles of equity.
(v) Valid Issuance of the Guarantees. The Guarantees have been duly authorized, and,
when the Notes have been duly executed, authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the purchase price for the
Notes as provided in this Agreement, will constitute valid and legally binding obligations
of each Guarantor enforceable against each Guarantor in accordance with their terms, except
as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or affecting creditors’ rights
generally and by general principles of equity.
(w) Conformity of Indenture and Securities to Description. The Indenture and the
Securities, when issued and delivered against payment therefor as provided herein and in the
Indenture, will conform in all material respects to the descriptions thereof contained in
the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(x) Authority and Authorization. The Partnership has all requisite power and authority
under the Partnership Agreement and the Delaware LP Act to issue, sell and deliver the
Notes, in accordance with and upon the terms and conditions set forth in this Agreement, the
Partnership Agreement, the Indenture, the Registration Statement, the Pricing Disclosure
Package and the Prospectus. Each Guarantor has all requisite limited partnership or limited
liability power and authority, as the case may be, under the Constituent Documents and the
laws of its jurisdiction of formation, to issue the Guarantees, in accordance with and upon
the terms and conditions set forth in this Agreement, the applicable Constituent Documents,
the Indenture, the Registration Statement, the Pricing Disclosure Package and the
Prospectus. At the time of purchase all limited partnership and limited liability company
action, as the case may be, required to be taken by the Partnership and the Guarantors or
any of their partners or members for the authorization, issuance, sale and delivery of the
Securities and the consummation of the transactions contemplated by this Agreement and the
Indenture shall have been validly taken.
(y) Authorization, Execution and Delivery of this Agreement. This Agreement has been
duly authorized, executed and delivered by each of the Western Gas Parties.
(z) Authorization and Enforceability of the Indenture. The execution and delivery of,
and the performance by the Partnership and each Guarantor of their respective obligations
under, the Indenture, have been duly and validly authorized by the Partnership and each
Guarantor. The Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”) and, assuming due authorization, execution and delivery
of the Base Indenture and the Supplemental Indenture by the Trustee, when the Base Indenture
and Supplemental Indenture have been duly executed and delivered by the Partnership and the
Guarantors, the Indenture will constitute a valid and legally binding agreement of the Partnership and the
Guarantors, enforceable against the Partnership and the Guarantors in accordance with its
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terms, except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws relating to or affecting creditors’
rights generally and by general principles of equity.
(aa) No Defaults. No Partnership Entity is in breach or violation of or in default
under (nor has any event occurred which, with notice, lapse of time or both, would result in
any breach or violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness under) (i) its
formation, governing or other organizational documents, (ii) any indenture, mortgage, deed
of trust, bank loan, credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound or affected, (iii) any federal, state, local or foreign
law, regulation or rule, (iv) any rule or regulation of any self-regulatory organization or
other non-governmental regulatory authority (including, without limitation, the rules and
regulations of the New York Stock Exchange (the “NYSE”)), or (v) any decree,
judgment or order applicable to it or any of its properties, except in the case of clauses
(ii) through (v) for any such breaches, violations or default that would not, individually
or in the aggregate, have a Material Adverse Effect, affect the validity of the Securities
or prevent or materially interfere with the consummation of the transactions contemplated by
this Agreement, including the proposed offering of the Securities (the “Offering”).
(bb) No Conflicts. The execution, delivery and performance of this Agreement by the
Western Gas Parties, the issuance and sale of the Notes by the Partnership, the issuance of
the Guarantees by the Guarantors, the execution, delivery and performance of the Indenture
by the Partnership and each Guarantor and the consummation of the transactions contemplated
by this Agreement and the Indenture will not conflict with, result in any breach or
violation of, constitute a default under (or constitute any event which, with notice, lapse
of time or both, would result in any breach or violation of, constitute a default under or
give the holder of any indebtedness (or a person acting on such holder’s behalf) the right
to require the repurchase, redemption or repayment of all or a part of such indebtedness
under), or result in the creation or imposition of a Lien on any property or assets of any
Partnership Entity pursuant to (i) the formation, governing or other organizational
documents of any of the Partnership Entities, (ii) any indenture, mortgage, deed of trust,
bank loan, credit agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which any of the Partnership Entities is a
party or by which any of the Partnership Entities or any of their respective properties may
be bound or affected, (iii) any federal, state, local or foreign law, regulation or rule,
(iv) any rule or regulation of any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the rules and regulations of the NYSE),
or (v) any decree, judgment or order applicable to any of the Partnership Entities or any of
their respective properties, except in the cases of clauses (ii) through (v) for any such
conflicts, breaches, violations or defaults that would not, individually or in the
aggregate, have a Material Adverse Effect, affect the validity of the Securities or prevent or materially interfere with the consummation of the transactions
contemplated by this Agreement, including the Offering.
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(cc) No Consents. No approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission, board, body,
authority or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the NYSE), or approval
of the security holders of the Partnership Entities (each, a “Consent”), is required
in connection with the issuance and sale of the Notes by the Partnership, the issuance of
the Guarantees by the Guarantors, the execution, delivery and performance of this Agreement
and the Indenture by the Western Gas Parties party thereto, or the consummation by such
Western Gas Parties of the transactions contemplated by this Agreement and the Indenture,
other than (i) Consents required under the Securities Act, the Exchange Act, the Trust
Indenture Act and state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters, (ii) under the rules and regulations of
the Financial Industry Regulatory Authority (“FINRA”), (iii) Consents that have been, or
prior to the Closing Date will be, obtained and (iv) Consents that, if not obtained, would
not, individually or in the aggregate, have a Material Adverse Effect.
(dd) No Preemptive Rights, Registration Rights or Options. Except as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no (i)
preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon
the voting or transfer of, any equity securities of the Partnership or (ii) outstanding
options or warrants to purchase any securities of the Partnership, in each case pursuant to
any agreement or other instrument to which the Partnership is a party or by which the
Partnership may be bound. Except for such rights that have been waived or as described in
the Registration Statement, Pricing Disclosure Package and the Prospectus, neither the
filing of the Registration Statement nor the offering or sale of the Securities as
contemplated by this Agreement gives rise to any rights for or relating to the registration
of any securities of the Partnership.
(ee) Permits. Each of the Partnership Entities has all necessary licenses,
authorizations, consents and approvals (each, a “Permit”) and has made all necessary
filings required under any applicable law, regulation or rule, and has obtained all
necessary Permits from other persons, in order to conduct its business, except for such
Permits that, if not obtained, would not, individually or in the aggregate, result in a
Material Adverse Effect; and no Partnership Entity is in violation of or default under, or
has received notice of any proceedings relating to the revocation or modification of, any
such Permit or any federal, state, local or foreign law, regulation or rule or any decree,
order or judgment applicable to such Partnership Entity, except for any such violations,
defaults, revocations or modifications that would not, individually or in the aggregate,
have a Material Adverse Effect.
(ff) Disclosure of Certain Items. All legal or governmental proceedings, affiliate
transactions, off-balance sheet transactions, contracts, licenses, agreements, properties,
leases or documents of a character required to be described in or incorporated by reference
into the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed as an exhibit to the Registration Statement have been so
described or filed as required; and the statements included in the Registration Statement,
11
the Pricing Disclosure Package and the Prospectus under the headings “Description of Notes,”
“Description of Debt Securities and Guarantees,” “Certain United States Federal Income Tax
Considerations” and “Underwriting,” insofar as they purport to summarize legal or
governmental matters or proceedings or the terms of statutes, rules, regulations, agreements
or documents, are fair and accurate summaries of such legal or governmental matters or
proceedings, statutes, rules, regulations, agreements or documents.
(gg) Litigation. Except as described in the Registration Statement (excluding the
exhibits thereto), the Pricing Disclosure Package and the Prospectus, there are no actions,
suits, claims, investigations or proceedings pending or, to the knowledge of the Partnership
or the General Partner, threatened or contemplated to which the Partnership Entities or any
of their respective directors or officers is or would be a party or to which any of their
respective properties is or would be subject at law or in equity, before or by any federal,
state, local or foreign governmental or regulatory commission, board, body, authority or
agency, or before or by any self-regulatory organization or other non-governmental
regulatory authority (including, without limitation, the NYSE), except for any such actions,
suits, claims, investigations or proceedings that would not, individually or in the
aggregate, if resolved adversely to any Partnership Entity, have a Material Adverse Effect,
affect the validity of the Notes or prevent or materially interfere with consummation of the
transactions contemplated by this Agreement, including the Offering.
(hh) Independent Registered Public Accounting Firm. KPMG LLP, who has audited the
financial statements contained or incorporated by reference in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, is an independent registered public
accounting firm with respect to the Partnership and the General Partner within the meaning
of the Securities Act and the applicable rules and regulations thereunder adopted by the
Commission and the Public Company Accounting Oversight Board (United States) (the
“PCAOB”).
(ii) Financial Statements. The historical financial statements (including the related
notes and supporting schedule) contained or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, (i) comply in all material
respects with the applicable requirements under the Securities Act and the Exchange Act
(except that certain supporting schedules are omitted), (ii) 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, and (iii) have been prepared in accordance with accounting principles
generally accepted in the United States of America consistently applied throughout the
periods involved, except to the extent disclosed therein. The other financial information of
the General Partner and the Partnership and its subsidiaries, including non-GAAP financial
measures, if any, contained or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus has been derived from the accounting records
of the General Partner, the Partnership and its subsidiaries, and fairly presents the
information purported to be shown thereby. Nothing has come to the attention of any of the Partnership Entities that has caused them to
believe that the statistical and market-related data included in the Registration Statement,
12
the Pricing Disclosure Package and the Prospectus is not based on or derived from sources
that are reliable and accurate in all material respects.
(jj) No Material Adverse Change. Subsequent to the respective dates as of which
information is given in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, in each case excluding any amendments or supplements to the foregoing made after
the execution of this Agreement, except as described in the Registration Statement
(excluding the exhibits thereto), the Pricing Disclosure Package and the Prospectus, there
has not been (i) any material adverse change, or any developments that are reasonably likely
to result in, individually or in the aggregate, a material adverse change, in the business,
assets, management, condition (financial or otherwise), prospects or results of operations
of the Partnership Entities (taken as a whole), (ii) any transaction that is material to the
Partnership Entities (taken as a whole), (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred by any Partnership Entity
that is material to the Partnership Entities (taken as a whole), (iv) any material change in
the capitalization, ownership or outstanding indebtedness of any Partnership Entity or (v)
any dividend or distribution of any kind declared, paid or made on the security interests of
any Partnership Entity.
(kk) Investment Company. None of the Partnership Entities is, at no time during which a
prospectus is required by the Securities Act to be delivered (whether physically or through
compliance with Rule 172 under the Securities Act or any similar rule) in connection with
any sale of the Securities will any of them be, nor, after giving effect to the Offering and
the application of the proceeds therefrom, will any of them be, an “investment company” or
an entity “controlled” by an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”).
(ll) Title to Properties. The Partnership Entities have good and marketable title to
all real property and good title to all personal property described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus as being owned by any of them,
free and clear of all Liens, except for Liens that do not materially affect the value of
such property and do not materially interfere with the use made or proposed to be made of
such property by the Partnership Entities and Liens described in the Registration Statement
(excluding the exhibits thereto), the Pricing Disclosure Package and the Prospectus.
(mm) Rights-of-Way. Each Partnership Entity has such consents, easements, rights-of-way
or licenses from any person (“rights-of-way”) as are necessary to enable it 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 or the Prospectus, except for (i)
qualifications, reservations and encumbrances that would not, individually or in the
aggregate, have a Material Adverse Effect and (ii) such rights-of-way that, if not obtained,
would not result in, individually or in the aggregate, a Material Adverse Effect; and, except as described in the Registration Statement (excluding the exhibits
thereto), the Pricing Disclosure Package and the Prospectus or as would not interfere with
the
13
operations of the Partnership Entities as conducted on the date hereof to such a material
extent that the Representatives could reasonably conclude that proceeding with the Offering
would be inadvisable, none of such rights-of-way contains any restriction that is materially
burdensome to the Partnership Entities, taken as a whole.
(nn) Labor and Employment Matters. No Partnership Entity is engaged in any unfair labor
practice, and no labor disputes with the employees of or to be seconded to any Partnership
Entity exist or, to the knowledge of the Partnership or the General Partner after due
inquiry, are imminent or threatened that would, individually or in the aggregate, have a
Material Adverse Effect. To the knowledge of the Partnership or the General Partner: (i)
there is (A) no unfair labor practice complaint pending or threatened against any
Partnership Entity before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under collective bargaining agreements pending or
threatened, (B) no strike, labor dispute, slowdown or stoppage pending or threatened against
any Partnership Entity and (C) no union representation dispute currently existing concerning
the employees of or to be seconded to any Partnership Entity, (ii) no union organizing
activities are currently taking place concerning the employees of or to be seconded to any
Partnership Entity and (iii) there has been no violation of any federal, state, local or
foreign law relating to discrimination in the hiring, promotion or pay of employees, any
applicable wage or hour laws or any provision of the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”), or the rules and regulations promulgated thereunder
concerning the employees of or to be seconded to any Partnership Entity.
(oo) Environmental Compliance. Except as described in the Registration Statement
(excluding the exhibits thereto), the Pricing Disclosure Package and the Prospectus, (i)
each Partnership Entity and each of the properties, assets and operations of the Partnership
Entities is in compliance with any and all applicable federal, state, local or foreign laws,
statutes, ordinances, rules, regulations, orders, decrees, judgments, injunctions, permits,
licenses, authorizations or other binding requirements, or common laws, relating to health,
safety or the protection, cleanup or restoration of the environment or natural resources,
including those relating to the distribution, processing, generation, treatment, storage,
disposal, transportation, other handling or release or threatened release of Hazardous
Materials (as defined below) (“Environmental Laws”), (ii) each Partnership Entity
has received and is in compliance with all permits, licenses, authorizations or other
approvals required under applicable Environmental Laws to conduct its business as it is
currently being conducted, (iii) no Partnership Entity has received written notice of any,
and to the knowledge of the Partnership or the General Partner, after reasonable inquiry,
there are no events, conditions or activities that could reasonably be expected to form the
basis for any, actual or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants,
and (iv) no Partnership Entity is subject to any pending or, to the knowledge of the
Partnership or the General Partner, threatened actions, suits, demands, orders or
proceedings against any Partnership Entity relating to any Environmental Laws (collectively,
“Proceedings”), except for any (A) failures to comply with Environmental Laws or to receive or comply with required permits, licenses, authorizations or other
approvals, (B) actual or potential liabilities or (C) Proceedings that would not,
14
individually or in the aggregate, have a Material Adverse Effect. Except as described in the
Registration Statement (excluding the exhibits thereto), the Pricing Disclosure Package and
the Prospectus, no Partnership Entity has entered into any agreement relating to any alleged
violation of any Environmental Law or any actual or alleged release or threatened release or
cleanup at any location of any Hazardous Materials (as defined below). Except as described
in the Registration Statement (excluding the exhibits thereto), the Pricing Disclosure
Package and the Prospectus, no Partnership Entity is currently named as a “potentially
responsible party” under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (“CERCLA”). As used herein, “Hazardous
Materials” means any material (including, without limitation, pollutants, contaminants,
hazardous or toxic substances or wastes) that is regulated by or may give rise to liability
under any Environmental Law.
(pp) ERISA Compliance. None of the following events has occurred or exists with respect
to any of the Partnership Entities: (i) a failure to fulfill the obligations, if any, under
the minimum funding standards of Section 302 of ERISA, and the regulations and published
interpretations thereunder with respect to any Plan, determined without regard to any waiver
of such obligations or extension of any amortization period; (ii) an audit or investigation
by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty
Corporation or any other federal or state governmental agency or any foreign regulatory
agency with respect to the employment or compensation of employees of or to be seconded to
the Partnership Entities that would have a Material Adverse Effect; or (iii) any breach of
any contractual obligation, or any violation of law or applicable qualification standards,
with respect to the employment or compensation of employees of or to be seconded to the
Partnership Entities by any such Partnership Entity that would have a Material Adverse
Effect. None of the following events has occurred or is reasonably likely to occur with
respect to any of the Partnership Entities: (i) a material increase in the aggregate amount
of contributions required to be made to all Plans in the current fiscal year compared to the
amount of such contributions made by the Partnership Entities in the most recently completed
fiscal year; (ii) a material increase in the Partnership Entities’ “accumulated
post-retirement benefit obligations” (within the meaning of Statement of Financial
Accounting Standards 106) compared to the amount of such obligations in the most recently
completed fiscal year; (iii) any event or condition giving rise to a liability under Title
IV of ERISA that would have a Material Adverse Effect; or (iv) the filing of a claim by one
or more employees of, former employees of, or employees to be seconded to the Partnership
Entities related to its or their employment that would have a Material Adverse Effect. For
purposes of this paragraph, the term “Plan” means a plan (within the meaning of
Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which any Partnership
Entity may have any liability.
(qq) Tax Returns. All tax returns required to be filed by the Partnership Entities have
been timely filed, and all taxes and other assessments of a similar nature (whether imposed
directly or through withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from such entities have been timely paid, other
than those (i) that are being contested in good faith and for which adequate reserves have been provided or (ii) that, if not paid, would not, individually or in
the aggregate, have a Material Adverse Effect.
15
(rr) Insurance. The Partnership Entities maintain insurance covering the properties,
operations, personnel and businesses of the Partnership Entities as such Partnership
Entities reasonably deem adequate; such insurance insures against losses and risks to an
extent which is adequate, in accordance with customary industry practice, to protect the
Partnership Entities and their respective businesses; all such insurance is fully in force
on the date hereof and will be fully in force at the time of purchase; and the Partnership
Entities have no reason to believe that they will not be able to renew such insurance as and
when such insurance expires.
(ss) Third Party Defaults. To the knowledge of the Partnership or the General Partner,
no third party to any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or instrument to or by
which any of the Partnership Entities is a party or bound or to which their respective
properties are subject is in breach, default or violation under any such agreement (and no
event has occurred that, with notice or lapse of time or both, would constitute such an
event), which breach, default or violation would have a Material Adverse Effect.
(tt) Internal Controls. The Partnership Entities maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(uu) Disclosure Controls. The Partnership has established and will maintain and
evaluate “disclosure controls and procedures” (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act) and “internal control over financial reporting” (as such term
is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information relating to the Partnership is
made known to the General Partner’s Chief Executive Officer and its Chief Financial Officer,
and such disclosure controls and procedures are effective to perform the functions for which
they were established; the Partnership’s independent auditors and the Audit Committee of the
Board of Directors of the General Partner have been advised of (i) all significant
deficiencies, if any, in the design or operation of internal control over financial
reporting which could adversely affect the Partnership’s ability to record, process,
summarize and report financial data and (ii) all fraud, if any, whether or not material,
that involves management or other employees who have a role in the Partnership’s internal
control over financial reporting; all material weaknesses, if any, in the Partnership’s
internal control over financial reporting have been identified to the Partnership’s
independent auditors; and since the date of the most recent evaluation of such disclosure controls and procedures and internal control over financial reporting,
there have been no significant changes in the Partnership’s internal control over financial
16
reporting or in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant deficiencies and material
weaknesses.
(vv) Xxxxxxxx-Xxxxx. The Partnership Entities have taken all necessary action to ensure
that, upon and at all times after the filing of the Registration Statement, the Partnership
Entities and their respective officers and directors, in their capacities as such, were and
will be in compliance in all material respects with the applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and the rules and regulations
of the Commission and the NYSE promulgated thereunder.
(ww) Foreign Corrupt Practices Act. No Partnership Entity nor, to the knowledge of the
Partnership or the General Partner, any employee or agent of the Partnership Entities has
made any payment of funds of the Partnership Entities or received or retained any funds in
violation of any law, rule or regulation (including, without limitation, the Foreign Corrupt
Practices Act of 1977), which payment, receipt or retention is of a character required to be
disclosed in the Registration Statement, the Preliminary Prospectuses and the Prospectus.
(xx) Money Laundering Laws. The operations of the Partnership Entities are and have
been conducted at all times in 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, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines issued, administered
or enforced by any governmental agency (collectively, “Money Laundering Laws”); and
no action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator or non-governmental authority involving the Partnership Entities with
respect to Money Laundering Laws is pending or, to the knowledge of the Partnership or the
General Partner, threatened.
(yy) OFAC. No Partnership Entity nor, to the knowledge of the Partnership or the
General Partner, any director, officer, agent, employee or affiliate of the Partnership
Entities is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Partnership
Entities will not directly or indirectly use the proceeds of the Offering, or lend,
contribute or otherwise make available such proceeds to any other person or entity, for the
purpose of financing the securities activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(zz) No Prohibition on Distributions. No Partnership Entity is currently prohibited,
directly or indirectly, from making distributions with respect to its equity securities,
from repaying to any other Partnership Entity any loans or advances or from transferring any
property or assets to the Partnership or any other Partnership Entity, except pursuant to
the Chipeta LLC Agreement and as described in the Registration Statement (excluding the
exhibits thereto), the Pricing Disclosure Package and the Prospectus.
17
(aaa) Related Party Transactions. No Partnership Entity has, directly or
indirectly (i) extended credit, arranged to extend credit, or renewed any extension of
credit, in the form of a personal loan, to or for any director or executive officer of the
General Partner or its affiliates, or to or for any family member or affiliate of any
director or executive officer of the General Partner or its affiliates or (ii) made any
material modification to the term of any personal loan to any director or executive officer
of the General Partner or its affiliates, or any family member or affiliate of any director
or executive officer of the General Partner or its affiliates.
(bbb) Stabilization or Manipulation. None of the Partnership Entities or any of their
“affiliates” (as such term is defined in Rule 405 promulgated under the Securities Act) has
taken, directly or indirectly, any action which has constituted, or that was designed or
might reasonably be expected to cause or result in, the stabilization or manipulation of the
price of any security of the Partnership to facilitate the sale or resale of the Securities.
(ccc) FINRA Affiliations. To the knowledge of the Partnership or the General Partner,
after due inquiry, there are no affiliations or associations between (i) any member of FINRA
and (ii) the Partnership, the General Partner or any of the General Partner’s officers or
directors or any 5% or greater securityholder of the Partnership, except as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(ddd) No Distribution of Other Offering Materials. None of the Partnership Entities has
distributed, nor will they distribute, prior to the later to occur of (i) the time of
purchase, and (ii) the completion of the distribution of the Securities, any “prospectus”
(as defined under the Securities Act) in connection with the offering and sale of the
Securities other than the Registration Statement, the Pricing Disclosure Package and the
Prospectus or other materials, if any, permitted by the Securities Act, including Rule 134
promulgated thereunder.
In addition, any certificate signed by an officer of any of the Partnership Entities and
delivered to the Underwriters or counsel for the Underwriters in connection with the offering or
sale of the Securities shall be deemed to be a representation and warranty by such Partnership
Entity, as to matters covered thereby, to each Underwriter.
4. Certain Covenants of the Western Gas Parties. The Western Gas Parties, jointly and
severally, hereby agree:
(a) Preparation of Prospectus and Registration Statement. (i) To prepare the Prospectus
in a form approved by the Underwriters and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than Commission’s close of business on the second
business day following the execution and delivery of this Agreement; (ii) to make no further
amendment or any supplement to the Registration Statement or to the Prospectus except as
permitted herein; (iii) to advise the Underwriters, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
18
Prospectus has been filed and to furnish the Underwriters with copies thereof; (iv) to
advise the Underwriters promptly after it receives notice thereof of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of the
Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose or of any request by the Commission for the amending or
supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus or for additional information; and (v) in the event of the issuance of any stop
order or of any order preventing or suspending the use of the Prospectus or any Issuer Free
Writing Prospectus or suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal.
(b) Copies of Registration Statements. To furnish promptly to the Underwriters and to
counsel for the Underwriters, upon request, a signed copy or a conformed copy of the
Registration Statement as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed therewith.
(c) Exchange Act Reports. To file promptly all reports and any definitive proxy or
information statements required to be filed by the Partnership with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (“Exchange Act Reports”)
subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or
in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is
required in connection with the offering or sale of the Securities.
(d) Copies of Documents to the Underwriters. To deliver promptly to the Underwriters
such number of the following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits), (ii) each Preliminary Prospectus,
the Prospectus and any amended or supplemented Prospectus, (iii) each Issuer Free Writing
Prospectus and (iv) any document incorporated by reference in any Preliminary Prospectus or
the Prospectus; and, if the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) of the Rules and Regulations) is required at any time after the
date hereof in connection with the offering or sale of the Securities or any other
securities relating thereto and if at such time any events shall have occurred as a result
of which the Prospectus as then amended or supplemented 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 the light of the circumstances under which they were made when such Prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is
delivered, not misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the
Rules and Regulations) or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or the Exchange Act
or with a request from the Commission, to notify the Underwriters immediately thereof and to
promptly prepare and, subject to Section 4(e) hereof, file with the Commission an
19
amended Prospectus or supplement to the Prospectus which will correct such statement or
omission or effect such compliance.
(e) Filing of Amendment or Supplement. To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus, any supplement to the Prospectus
or any new, replacement registration statement that may, in the judgment of the Partnership
or the Underwriters, be required by the Securities Act or the Exchange Act or requested by
the Commission. Prior to filing with the Commission any amendment to the Registration
Statement, any supplement to the Prospectus or any new, replacement registration statement,
any document incorporated by reference in the Prospectus or any Prospectus pursuant to Rule
424 of the Rules and Regulations, to furnish a copy thereof to the Underwriters and counsel
for the Underwriters and not to file any such document to which the Underwriters shall
reasonably object after having been given reasonable notice of the proposed filing thereof
unless the Partnership is required by law to make such filing. The Partnership will furnish
to the Underwriters such number of copies of such new registration statement, amendment or
supplement as the Underwriters may reasonably request and use its commercially reasonable
efforts to cause such new registration statement or amendment to be declared effective as
soon as practicable. In any such case, the Partnership will promptly notify the
Representatives of such filings and effectiveness.
(f) Reports to Security Holders. As soon as practicable after the time of purchase, to
make generally available to the Partnership’s security holders an earnings statement of the
Partnership and its subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the option of the
Partnership, Rule 158).
(g) Copies of Reports. For a period of two years following the date hereof, to furnish
to the Underwriters copies of all materials furnished by the Partnership to its security
holders and all reports and financial statements furnished by the Partnership to the
Commission pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder, in each case to the extent that such materials, reports and financial statements
are not publicly filed with the Commission.
(h) Blue Sky Laws. Promptly to take from time to time such actions as the Underwriters
may reasonably request to qualify the Securities for offering and sale under the securities
or Blue Sky laws of such jurisdictions as the Underwriters may designate and to continue
such qualifications in effect for so long as required for the resale of the Securities; and
to arrange for the determination of the eligibility for investment of the Securities under
the laws of such jurisdictions as the Underwriters may reasonably request; provided
that no Partnership Entity shall be obligated to qualify as a foreign entity in any
jurisdiction in which it is not so qualified or to file a general consent to service of
process in any jurisdiction.
(i) Application of Proceeds. To apply the net proceeds from the sale of the Securities
as set forth in the Pricing Disclosure Package and the Prospectus.
20
(j) Investment Company. To take such steps as shall be necessary to ensure that no
Partnership Entity shall become an “investment company” as defined in the Investment Company
Act.
(k) Issuer Free Writing Prospectuses. Not to make any offer relating to the Securities
that would constitute an Issuer Free Writing Prospectus without the prior written consent of
the Representatives.
(l) Retention of Issuer Free Writing Prospectuses. To retain in accordance with the
Rules and Regulations all Issuer Free Writing Prospectuses not required to be filed pursuant
to the Rules and Regulations; and if at any time after the date hereof and prior to the time
of purchase, any events shall have occurred as a result of which any Issuer Free Writing
Prospectus, as then amended or supplemented, would conflict with the information in the
Registration Statement, the most recent Preliminary Prospectus or the Prospectus or, when
considered together with the most recent Preliminary Prospectus, 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 the light of the circumstances under which they were made, not
misleading, or, if for any other reason it shall be necessary to amend or supplement any
Issuer Free Writing Prospectus, to notify the Representatives and, upon their reasonable
request or as required by the Rules and Regulations, to file such document and to prepare
and furnish without charge to each Underwriter as many copies as the Representatives may
from time to time reasonably request of an amended or supplemented Issuer Free Writing
Prospectus that will correct such conflict, statement or omission or effect such compliance.
(m) Stabilization. To not directly or indirectly take any action designed to or which
constitutes or which might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any security of the
Partnership to facilitate the sale or resale of the Securities.
(n) Covenant to Pay Costs. Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees
and taxes in connection with (i) the preparation and filing of the Registration Statement,
each Preliminary Prospectus, the Prospectus, each Permitted Free Writing Prospectus and any
amendments or supplements thereto, and the printing and furnishing of copies of each thereof
to the Underwriters, counsel for the Underwriters and dealers (including costs of mailing
and shipment), (ii) the registration, issuance, sale and delivery of the Securities
including any stock or transfer taxes and stamp or similar duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iii) the producing, word
processing and/or printing of this Agreement, any agreement among underwriters, any dealer
agreements, any powers of attorney and any closing documents (including compilations
thereof) and the reproduction and/or printing and furnishing of copies of each thereof to
the Underwriters and (except closing documents) to dealers (including costs of mailing and
shipment), (iv) the qualification of the Securities for offering and sale under state or
foreign laws and the determination of their eligibility for investment under state or
foreign law (including the legal fees and filing fees and other disbursements of counsel for
the Underwriters) and the printing and furnishing of copies
21
of any blue sky surveys or legal investment surveys to the Underwriters and to dealers,
(v) the registration of the Securities under the Exchange Act, (vi) any filing for review of
the public offering of the Securities by FINRA, but not including the legal fees and other
disbursements of counsel to the Underwriters relating to FINRA matters, (vii) the fees and
disbursements of the Trustee for the Notes, (viii) the costs and expenses of the Partnership
Entities relating to presentations or meetings undertaken in connection with the marketing
of the offering and sale of the Securities to prospective investors and the Underwriters’
sales forces, including, without limitation, 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, lodging and other expenses incurred by the officers of
the Partnership Entities and any such consultants, and the cost of any aircraft chartered in
connection with the road show, (ix) the costs and expenses of qualifying the Securities for
inclusion in the book-entry settlement system of the DTC, (x) the preparation and filing of
the Registration Statement, including any amendments thereto, and (xi) the performance of
the Western Gas Parties’ other obligations hereunder.
5. Reimbursement of Underwriters’ Expenses. If the Securities are not delivered at the
time of purchase for any reason other than the termination of this Agreement pursuant to the fifth
paragraph of Section 8 hereof or the default by one or more of the Underwriters in its or
their respective obligations hereunder, the Western Gas Parties, jointly and severally, shall, in
addition to paying the amounts described in Section 4(p) hereof, reimburse the Underwriters
for all of their out-of-pocket expenses, including the fees and disbursements of their counsel;
provided, however, that if this agreement is terminated because of the occurrence
of any event specified in clause (b) of the second paragraph of Section 7 (other than as
specified in clause (b)(ii) thereof), the Western Gas Parties shall not be obligated to reimburse
the Underwriters for any expenses specified in this Section 5.
6. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
part of the Western Gas Parties on the date hereof, at the time of purchase to the performance by
the Western Gas Parties of their obligations hereunder and to the following additional conditions
precedent:
(a) The Prospectus shall have been timely filed with the Commission in accordance with
Section 4(a) of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Prospectuses or any Issuer
Free Writing Prospectuses or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; any request of the
Commission for inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with to the reasonable satisfaction of the
Underwriters; and the Commission shall not have notified the Partnership of any objection to
the use of the form of the Registration Statement.
(b) The Registration Statement, the Prospectus or the Pricing Disclosure Package, or
any amendment or supplement thereto, do not contain an untrue statement of
22
a fact which, in the opinion of counsel for the Underwriters, is material or do not
omit to state any fact which, in the opinion of such counsel, is material and is required to
be stated therein or in the documents incorporated by reference therein or is necessary to
make the statements therein not misleading.
(c) All partnership and limited liability company proceedings and other legal matters
incident to the authorization, execution and filing of the Registration Statement, any
Preliminary Prospectus, the Prospectus, the Indenture and any Issuer Free Writing
Prospectus, and all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material respects to counsel for
the Underwriters, and the Partnership shall have furnished to such counsel all documents and
information that they or their counsel may reasonably request to enable them to pass upon
such matters.
(d) The Partnership shall have furnished to the Representatives at the time of purchase
an opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the Partnership, addressed to the
Underwriters, and dated the time of purchase, with executed copies for each of the other
Underwriters, in form and substance reasonably satisfactory to the Representatives,
substantially in the form set forth in Exhibit A hereto.
(e) The Partnership shall have furnished to the Representatives at the time of purchase
an opinion of Xxxxxxx XxXxxxxxx LLP, counsel for the Partnership, addressed to the
Underwriters, and dated the time of purchase, with executed copies for each of the other
Underwriters, in form and substance reasonably satisfactory to the Representatives.
(f) The Partnership shall have furnished to the Representatives at the time of purchase
an opinion of Holland & Xxxx LLP, special Colorado counsel for the Western Gas Parties,
addressed to the Underwriters, and dated the time of purchase, with executed copies for each
of the other Underwriters, in form and substance reasonably satisfactory to the
Representatives, substantially in the form set forth in Exhibit B hereto.
(g) The Partnership shall have furnished to the Representatives at the time of purchase
an opinion of Xxxxx X. Xxxxxxx, Assistant Secretary of the General Partner, addressed to the
Underwriters, and dated the time of purchase with executed copies for each of the other
Underwriters, in form and substance reasonably satisfactory to the Representatives,
substantially in the form set forth in Exhibit C hereto.
(h) At the time of execution of this Agreement, the Underwriters shall have received
from KPMG LLP a letter or letters, in form and substance satisfactory to the Underwriters,
addressed to the Underwriters and dated the date hereof (i) confirming that they are an
independent registered public accounting firm within the meaning of the Securities Act and
are in compliance with the applicable rules and regulations thereunder adopted by the
Commission and the PCAOB, and (ii) stating that, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as of which specified
financial information is given in the Pricing Disclosure Package and the Prospectus, as of a
date not more than five days prior to the date hereof), the conclusions and findings of such
firm with respect to the financial information and other
23
matters ordinarily covered by accountants’ “comfort letters” to underwriters in
connection with registered public offerings.
(i) With respect to the letter or letters of KPMG referred to in the preceding
paragraph and delivered to the Underwriters concurrently with the execution of this
Agreement (the “initial letters”), such accounting firm shall have furnished to the
Underwriters a letter (the “bring-down letter”) of KPMG, addressed to the
Underwriters and dated the date of the time of purchase (i) confirming that they are an
independent registered public accounting firm within the meaning of the Securities Act and
are in compliance with the applicable rules and regulations thereunder adopted by the
Commission and the PCAOB, (ii) stating that, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a date not more than
five days prior to the date of the bring-down letter), the conclusions and findings of such
firm with respect to the financial information and other matters covered by the initial
letters and (iii) confirming in all material respects the conclusions and findings set forth
in the initial letters.
(j) The Representatives shall have received at the time of purchase the favorable
opinion of Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, addressed to the
Underwriters, and dated the time of purchase in form and substance reasonably satisfactory
to the Representatives.
(k) Prior to and at the time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under the Securities Act
and no proceedings shall have been initiated under Section 8(d) or 8(e) of the Securities
Act; (ii) the Registration Statement and all amendments thereto shall not 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; (iii) none of the Preliminary
Prospectuses or the Prospectus, and no amendment or supplement thereto, shall 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 are made,
not misleading; (iv) the Pricing Disclosure Package shall not, and no amendment or
supplement thereto shall, 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 are made, not misleading; and (v) no Permitted Free Writing
Prospectus shall 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 are made, not misleading.
(l) Between the time of execution of this Agreement and the time of purchase, (i) no
material adverse change, or any developments that are reasonably likely to result in,
individually or in the aggregate, a material adverse change, in the business, assets,
management, condition (financial or otherwise), prospects or results of operations of the
Partnership Entities, taken as a whole, shall have occurred or become known and (ii) no
transaction which is material and adverse to the Partnership Entities, taken as a whole,
shall have been entered into by any of the Partnership Entities or become
24
probable, the effect of which is, in the judgment of the Representatives, so material
or adverse as to make it impracticable or inadvisable to proceed with the Offering or the
delivery of the Securities as contemplated by the Prospectus.
(m) No action shall have been taken and no statute, rule, regulation or order shall
have been enacted, adopted or issued by any governmental agency or body which would, as of
the time of purchase, prevent the issuance or sale of the Securities; and no injunction,
restraining order or order of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the time of purchase which would prevent the
issuance or sale of the Securities.
(n) The Partnership and each Guarantor shall have delivered to the Representatives at
the time of purchase a certificate of the Chief Executive Officer and Chief Financial
Officer of the General Partner (in the case of the Partnership) and each Guarantor, dated
the time of purchase, in the form attached as Exhibit D-1 and Exhibit D-2 hereto,
respectively.
(o) The Partnership Entities shall have furnished to the Representatives such other
documents and certificates as to the accuracy and completeness of any statement in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus as of the time of purchase as the Representatives may reasonably request.
7. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of the Representatives, if (a) since the time of execution of this Agreement or
the earlier respective dates as of which information is given in the Registration Statement, the
Pricing Disclosure Package, the Prospectus and any Permitted Free Writing Prospectus, there has
been any change, or any developments that are reasonably likely to result in, individually or in
the aggregate, a material adverse change, in the business, assets, management, condition (financial
or otherwise), prospects or results of operations of any Partnership Entity, the effect of which
change or development on the Partnership Entities, taken as a whole, is, in the sole judgment of
the Representatives, so material and adverse as to make it impractical or inadvisable to proceed
with the Offering or the delivery of the Securities on the terms and in the manner contemplated in
the Registration Statement, the Pricing Disclosure Package, the Prospectus and each Permitted Free
Writing Prospectus, (b) since the time of execution of this Agreement, there shall have occurred
(i) a suspension or material limitation in trading in securities generally on the NYSE or the
NASDAQ; (ii) a suspension or material limitation in trading in the Partnership’s securities on the
NYSE; (iii) a general moratorium on commercial banking activities declared by either federal or New
York State authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States; (iv) an outbreak or escalation of hostilities or acts of
terrorism involving the United States or a declaration by the United States of a national emergency
or war; or (v) any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event specified in clause
(iv) or (v), in the sole
25
judgment of the Representatives, makes it impractical or inadvisable to proceed with the
Offering or the delivery of the Securities on the terms and in the manner contemplated in the
Registration Statement, the Pricing Disclosure Package, the Prospectus and each Permitted Free
Writing Prospectus, or (c) since the time of execution of this Agreement, there shall have occurred
any downgrading in, or any notice or announcement shall have been given or made of (i) any intended
or potential downgrading or (ii) any watch, review or possible change that does not indicate an
affirmation or improvement in the rating accorded to, any securities of or guaranteed by any
Partnership Entity by any “nationally recognized statistical rating organization,” as that term is
defined in Rule 436(g)(2) under the Securities Act as in effect on July 20, 2010.
If the Representatives elect to terminate this Agreement as provided in this Section
7, the Partnership and each other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Securities, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Western Gas Parties shall be unable to comply with any of the terms of
this Agreement, the Western Gas Parties shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 4(p), 5 and 9 hereof),
and the Underwriters shall be under no obligation or liability to the Western Gas Parties under
this Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. Increase in Underwriters’ Commitments. Subject to Sections 6 and 7
hereof, if any Underwriter shall default in its obligation to take up and pay for the Notes to be
purchased by it hereunder (otherwise than for a failure of a condition set forth in Section
6 hereof or a reason sufficient to justify the termination of this Agreement under the
provisions of Section 7 hereof) and if the aggregate principal amount of the Notes that all
Underwriters so defaulting shall have agreed but failed to take up and pay for does not exceed 10%
of the aggregate principal amount of the Notes to be purchased on the Closing Date, the
non-defaulting Underwriters (including the Underwriters, if any, substituted in the manner set
forth below) shall take up and pay for (in addition to the aggregate principal amount of the Notes
they are obligated to purchase pursuant to Section 1 hereof) the aggregate principal amount
of the Notes agreed to be purchased by all such defaulting Underwriters, as hereinafter provided.
Such Notes shall be taken up and paid for by such non-defaulting Underwriters in such amount or
amounts as the Representatives may designate with the consent of each Underwriter so designated or,
in the event no such designation is made, such Notes shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate principal amount of the Notes
set forth opposite the names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter of its obligations hereunder, the Partnership
agrees with the non-defaulting Underwriters that it will not sell any Notes hereunder unless all of
the Notes are purchased by the Underwriters (or by substituted Underwriters selected by the
Representatives with the approval of the Partnership or selected by the Partnership with the
approval of the Representatives).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Partnership
for a defaulting Underwriter or Underwriters in accordance with the foregoing
26
provision, the Partnership or the Representatives shall have the right to postpone the time of
purchase for a period not exceeding five business days in order that any necessary changes in the
Registration Statement and the Prospectus and other documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 8 with like effect as if such substituted Underwriter had
originally been named in Schedule A hereto.
If the aggregate principal amount of the Notes that the defaulting Underwriter or Underwriters
agreed to purchase exceeds 10% of the aggregate principal amount of the Notes, and if neither the
non-defaulting Underwriters nor the Partnership shall make arrangements within the five business
day period stated above for the purchase of all the Notes that the defaulting Underwriter or
Underwriters agreed to purchase hereunder, this Agreement shall terminate without further act or
deed and without any liability on the part of the Partnership to any Underwriter and without any
liability on the part of any non-defaulting Underwriter to the Partnership. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
9. Indemnity and Contribution.
(a) Each of the Western Gas Parties, jointly and severally, agrees to indemnify, defend and
hold harmless each Underwriter, its partners, directors, officers and agents, affiliates of such
Underwriter who have, or who are alleged to have, participated in the distribution of the
Securities as underwriters, and any person who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally, any such Underwriter
or any such person may incur under the Securities Act, the Exchange Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by any post-effective amendment
thereof by the Partnership) or any omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein not misleading, except insofar as
any such loss, damage, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in, and in conformity with the
information specified in Section 10 hereof furnished in writing by or on behalf of such
Underwriter through the Representatives to the Partnership expressly for use in, the Registration
Statement or arises out of or is based upon any omission or alleged omission to state a material
fact in the Registration Statement in connection with such information, which material fact was not
contained in such information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact included in any Preliminary Prospectus,
the Pricing Disclosure Package, the Prospectus, in any Permitted Free Writing Prospectus, in any
“issuer information” (as defined in Rule 433 under the Securities Act) of the Partnership or in any
Prospectus together with any combination of one or more Permitted Free Writing Prospectuses, if
any, or arises out of or is based upon any omission or alleged
27
omission 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, except, with respect to such
Preliminary Prospectus, Pricing Disclosure Package, Prospectus or Permitted Free Writing
Prospectuses, insofar as any such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact contained in, and in
conformity with the information specified in Section 10 hereof furnished in writing by or
on behalf of such Underwriter through the Representatives to the Partnership expressly for use in,
such Preliminary Prospectus, Pricing Disclosure Package, Prospectus or Permitted Free Writing
Prospectus or arises out of or is based upon any omission or alleged omission to state a material
fact in such Preliminary Prospectus, Pricing Disclosure Package, Prospectus or Permitted Free
Writing Prospectus in connection with such information, which material fact was not contained in
such information and which material fact was necessary in order to make the statements in such
information, in the light of the circumstances under which they were made, not misleading, or (iii)
any untrue statement or alleged untrue statement of a material fact included in any “road show” (as
defined in Rule 433 under the Securities Act) not constituting an Issuer Free Writing Prospectus.
(b) Each Underwriter severally agrees to indemnify, defend and hold harmless the Western Gas
Parties, their directors, officers, agents, and any person who controls the Western Gas Parties
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or severally,
the Western Gas Parties or any such person may incur under the Securities Act, the Exchange Act,
the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out
of or is based upon (i) any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with the information specified in Section 10 hereof
furnished in writing by or on behalf of such Underwriter through the Representatives to the
Partnership expressly for use in, the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Partnership), or any omission or alleged
omission to state a material fact in such Registration Statement in connection with such
information, which material fact was not contained in such information and which material fact was
required to be stated in such Registration Statement or was necessary to make such information not
misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained
in, and in conformity with the information specified in Section 10 hereof furnished in
writing by or on behalf of such Underwriter through the Representatives to the Partnership
expressly for use in, a Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus or a
Permitted Free Writing Prospectus, or any omission or alleged omission to state a material fact in
such Prospectus or Permitted Free Writing Prospectus in connection with such information, which
material fact was not contained in such information and which material fact was necessary in order
to make the statements in such information, in the light of the circumstances under which they were
made, not misleading.
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought against a
person (an “indemnified party”) in respect of which indemnity may be sought against any of
the Western Gas Parties or an Underwriter (as applicable, the “indemnifying party”)
pursuant to subsection (a) or (b) of this Section 9, such indemnified party
shall promptly notify such indemnifying party in writing of the institution of such Proceeding and
such indemnifying party
28
shall assume the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses; provided,
however, that the failure to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may have to any indemnified
party or otherwise. The indemnified party or parties shall have the right to employ its or their
own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless the employment of such counsel shall have been authorized
in writing by the indemnifying party in connection with the defense of such Proceeding or the
indemnifying party shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or them which are
different from, additional to or in conflict with those available to such indemnifying party (in
which case such indemnifying party shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any of which events such fees and
expenses shall be borne by such indemnifying party and paid as incurred (it being understood,
however, that, except as provided in Section 9(b), such indemnifying party shall not be
liable for the expenses of more than one separate counsel (in addition to any local counsel) in any
one Proceeding or series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The indemnifying party shall not be liable
for any settlement of any Proceeding effected without its written consent but, if settled with its
written consent, such indemnifying party agrees to indemnify and hold harmless the indemnified
party or parties from and against any loss or liability by reason of such settlement.
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 sentence of this Section 9(c), then 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 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying party at least 30
days’ prior notice of its intention to settle. No indemnifying party shall, without the prior
written consent of the indemnified party, 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 and does not include an admission of fault or culpability or a failure to
act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsection (a) or (b) of this Section 9 or
insufficient to hold an indemnified party harmless in respect of any losses, damages, expenses,
liabilities or claims referred to therein, then each applicable indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the relative
benefits received by the Western Gas Parties on the one hand and the Underwriters on the other hand
from the Offering or (ii) if the allocation provided by clause (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 (i) above but also the relative fault of the Western Gas Parties on the one
hand and of the Underwriters on
29
the other in connection with the statements or omissions which resulted in such losses,
damages, expenses, liabilities or claims, as well as any other relevant equitable considerations.
The relative benefits received by the Western Gas Parties on the one hand and the Underwriters on
the other shall be deemed to be in the same respective proportions as the total proceeds from the
Offering (net of underwriting discounts and commissions but before deducting expenses) received by
the Western Gas Parties, and the total underwriting discounts and commissions received by the
Underwriters, bear to the aggregate public offering price of the Notes. The relative fault of the
Western Gas Parties on the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission relates to information supplied by the Western Gas
Parties or by the Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, damages, expenses, liabilities and claims referred to in this
subsection shall be deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating, preparing to defend or defending any Proceeding.
(e) The Western Gas Parties and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 9 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 subsection (d)
above. Notwithstanding the provisions of this Section 9, 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 such Underwriter and distributed to the public were offered to the public exceeds
the amount of any damage that such Underwriter has otherwise been required to pay by reason of such
untrue statement 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 Underwriters’ obligations to contribute pursuant to this Section 9 are several in
proportion to their respective underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in this Section 9 and the
covenants, warranties and representations of the Western Gas Parties contained in this Agreement
shall remain in full force and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors, officers or agents, any affiliate of such Underwriter who
has, or who is alleged to have, participated in the distribution of the Securities as an
underwriter, or any person who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, or by or on behalf of the Western Gas Parties,
their directors, officers, agents or any person who controls the Western Gas Parties within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and shall survive
any termination of this Agreement or the issuance and delivery of the Securities. The Western Gas
Parties and each Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Western Gas Parties, against any of their officers or
directors in connection with the issuance and sale of the Securities, or in connection with the
Registration Statement, the Pricing Disclosure Package, the Prospectus or any Permitted Free
Writing Xxxxxxxxxx.
00
00. Information Furnished by the Underwriters. The concession figure appearing in the
third paragraph under the caption “Underwriting” and the statements relating to stabilization by
the Underwriters appearing in the fifth and sixth paragraphs under the caption “Underwriting” in
the Prospectus, constitute the only information furnished by or on behalf of the Underwriters, as
such information is referred to in Sections 3 and 9 hereof.
11. Notices. All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile
transmission to each of (i) Xxxxxx Xxxxxxx & Co. Incorporated, Attention: Global Capital
Markets Syndicate Desk, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) Xxxxx Fargo
Securities, LLC, Attention: Transaction Management Department, Facsimile: (704) 383-9165,
000 X. Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, XX 00000.
(b) if to the Western Gas Parties, shall be delivered or sent by mail or facsimile
transmission to the offices of the Partnership at 0000 Xxxx Xxxxxxx Xxxxx, Xxx Xxxxxxxxx,
Xxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Chief Executive Officer.
12. Governing Law; Construction. This Agreement and any claim, counterclaim or dispute
of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Western
Gas Parties consent to the jurisdiction of such courts and personal service with respect thereto.
The Western Gas Parties hereby consent to personal jurisdiction, service and venue in any court in
which any Claim arising out of or in any way relating to this Agreement is brought by any third
party against any Underwriter or any indemnified party. Each Underwriter and the Western Gas
Parties (each on its own behalf and, to the extent permitted by applicable law, on behalf of its
equity owners and affiliates) waive all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising out of or relating
to this Agreement. Each of the Western Gas Parties agrees that a final judgment in any such action,
proceeding or counterclaim brought in any such court shall be conclusive and binding upon the
Western Gas Parties and may be enforced in any other courts to the jurisdiction of which the
Western Gas Parties are or may be subject, by suit upon such judgment.
14. Parties at Interest. The Agreement set forth herein has been and is made solely
for the benefit of the Underwriters and the Western Gas Parties and to the extent provided in
Section 9 hereof the controlling persons, affiliates, partners, directors and officers
referred to in such Section, and their respective successors, assigns, heirs, personal
representatives and executors and administrators. No other person, partnership, association or
corporation (including
31
a purchaser, as such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
15. No Fiduciary Relationship. The Western Gas Parties hereby acknowledge that the
Underwriters are acting solely as underwriters in connection with the purchase and sale of the
Partnership’s securities. The Western Gas Parties further acknowledge that the Underwriters are
acting pursuant to a contractual relationship created solely by this Agreement entered into on an
arm’s length basis, and in no event do the parties intend that the Underwriters act or be
responsible as a fiduciary to the Partnership Entities, their management, security holders or
creditors or any other person in connection with any activity that the Underwriters may undertake
or have undertaken in furtherance of the purchase and sale of the Securities, either before or
after the date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar
obligations to the Partnership Entities, either in connection with the transactions contemplated by
this Agreement or any matters relating to such transactions, and each Western Gas Party hereby
confirms its understanding and agreement to that effect. The Western Gas Parties and the
Underwriters agree that they are each responsible for making their own independent judgments with
respect to any such transactions and that any opinions or views expressed by the Underwriters to
the Partnership Entities regarding such transactions, including, but not limited to, any opinions
or views with respect to the price or market for the Partnership’s securities, do not constitute
advice or recommendations to the Partnership Entities. Each Western Gas Party hereby waives and
releases, to the fullest extent permitted by law, any claims that it may have against the
Underwriters with respect to any breach or alleged breach of any fiduciary or similar duty to the
Partnership Entities in connection with the transactions contemplated by this Agreement or any
matters relating to such transactions.
16. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
17. Successors and Assigns. This Agreement shall be binding upon the Underwriters, the
Western Gas Parties, their respective successors and assigns and any successor or assign of any
substantial portion of any of the Western Gas Parties or any of the Underwriters’ respective
businesses and/or assets.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
32
If the foregoing correctly sets forth the understanding among the Western Gas Parties and the
several Underwriters, please so indicate in the space provided below for that purpose, whereupon
this Agreement and your acceptance shall constitute a binding agreement between the Western Gas
Parties and the Underwriters, severally.
| Very truly yours, Western Gas Holdings, LLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President,
Chief Financial Officer and Treasurer |
|||
| Western Gas Partners, LP By: Western Gas Holdings, LLC, its general partner |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President,
Chief Financial Officer and Treasurer |
|||
| Anadarko Gathering Company LLC Anadarko Wattenberg Company, LLC Xxxx-XxXxx Gathering LLC MIGC LLC Pinnacle Gas Treating LLC Western Gas Wyoming, L.L.C. By: WGR Operating, LP, as sole member By: Western Gas Operating, LLC, its general partner |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Chief Financial Officer |
|||
Western Gas Partners, LP
Signature Page to Underwriting Agreement
Signature Page to Underwriting Agreement
| Western Gas Operating, LLC |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Chief Financial Officer |
|||
| WGR Operating, LP By: Western Gas Operating, LLC, its general partner |
||||
| By: | /s/ Xxxxxxxx X. Xxxx | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President and Chief Financial Officer |
|||
Western Gas Partners, LP
Signature Page to Underwriting Agreement
Signature Page to Underwriting Agreement
Accepted and agreed to as of the date first above written, on behalf of itself and the other
several Underwriters name in Schedule X.
| XXXXXX XXXXXXX & CO. INCORPORATED |
||||
| By: | /s/ Yurij Slyz | |||
| Name: | Yurij Slyz | |||
| Title: | Executive Director | |||
| XXXXX FARGO SECURITIES, LLC |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Director | |||
Western Gas Partners, LP
Signature Page to Underwriting Agreement
Signature Page to Underwriting Agreement
SCHEDULE A
Underwriters
| Principal | ||||
| Amount of | ||||
| Underwriter | Notes | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
$ | 115,000,000 | ||
Xxxxx Fargo Securities, LLC |
$ | 115,000,000 | ||
Scotia Capital (USA) Inc. |
$ | 55,000,000 | ||
SG Americas Securities, LLC |
$ | 55,000,000 | ||
U.S. Bancorp Investments, Inc. |
$ | 55,000,000 | ||
Barclays Capital Inc. |
$ | 17,500,000 | ||
BMO Capital Markets Corp. |
$ | 17,500,000 | ||
Citigroup Global Markets Inc. |
$ | 17,500,000 | ||
Comerica Securities, Inc. |
$ | 17,500,000 | ||
RBC Capital Markets, LLC |
$ | 17,500,000 | ||
RBS Securities Inc. |
$ | 17,500,000 | ||
Total |
$ | 500,000,000 | ||
Schedule A-1
SCHEDULE B
Guarantors
Anadarko Gathering Company, LLC, a Delaware limited liability company
Anadarko Wattenberg Company, LLC, a Delaware limited liability company
Xxxx-XxXxx Gathering LLC, a Colorado limited liability company
MIGC LLC, a Delaware limited liability company
Pinnacle Gas Treating LLC, a Texas limited liability company
Western Gas Operating, LLC, a Delaware limited liability company
Western Gas Wyoming, L.L.C., a Wyoming limited liability company
WGR Operating, LP, a Delaware limited partnership
Anadarko Wattenberg Company, LLC, a Delaware limited liability company
Xxxx-XxXxx Gathering LLC, a Colorado limited liability company
MIGC LLC, a Delaware limited liability company
Pinnacle Gas Treating LLC, a Texas limited liability company
Western Gas Operating, LLC, a Delaware limited liability company
Western Gas Wyoming, L.L.C., a Wyoming limited liability company
WGR Operating, LP, a Delaware limited partnership
Schedule B-1
SCHEDULE C-1
Information Included in the Pricing Disclosure Package
Issuer: |
Western Gas Partners, LP | |
Guarantors: |
Anadarko Gathering Company, LLC | |
| Anadarko Wattenberg Company, LLC | ||
| Xxxx-XxXxx Gathering LLC | ||
| MIGC LLC | ||
| Pinnacle Gas Treating LLC | ||
| Western Gas Operating, LLC | ||
| Western Gas Wyoming, L.L.C. | ||
| WGR Operating, LP | ||
Security Type: |
Senior Unsecured Notes | |
Form: |
SEC Registered | |
Pricing Date: |
May 9, 2011 | |
Settlement Date: |
(T+7) May 18, 2011 | |
Maturity Date: |
June 1, 2021 | |
Principal Amount: |
$500,000,000 | |
Benchmark: |
3.625% due February 15, 2021 | |
Benchmark Price / Yield: |
103-28 / 3.160% | |
Spread to Benchmark: |
+ 237.5 bps | |
Yield to Maturity: |
5.535% | |
Coupon: |
5.375% | |
Public Offering Price: |
98.778% | |
Net Proceeds Before Expenses: |
$490,640,000 | |
Optional Redemption: |
Redeemable at any time before March 1, 2021 in amount equal to the principal amount plus a make whole premium, using a discount rate of T+ 40 bps, plus accrued and unpaid interest. Redeemable at any time on or after March 1, 2021 in amount equal to the principal amount plus accrued and unpaid interest. | |
Interest Payment Dates: |
June 1 and December 1, beginning December 1, 2011 | |
CUSIP / ISIN: |
958254 AA2 / US958254AA26 | |
Joint Book-Running Managers: |
Xxxxxx Xxxxxxx & Co. Incorporated | |
| Xxxxx Fargo Securities, LLC | ||
| Scotia Capital (USA) Inc. | ||
| SG Americas Securities, LLC. |
Schedule C-1-1
| U.S. Bancorp Investments, Inc. | ||
Co-Managers:
|
Barclays Capital Inc. | |
| BMO Capital Markets Corp. | ||
| Citigroup Global Markets Inc. | ||
| Comerica Securities, Inc. | ||
| RBC Capital Markets, LLC | ||
| RBS Securities Inc. |
Additional Information:
As of March 31, 2011, on a pro forma basis to give effect to the issuance of the notes in this
offering and the application of the net proceeds in this offering in the manner described under
“Use of Proceeds” on page S-14 of the preliminary prospectus supplement, we had (all amounts in
thousands) cash and cash equivalents of $51,481, total debt of $675,000, with no borrowings
outstanding under our credit facility and $500,000 of notes offered hereby, and total
capitalization of $2,016,897. This information supplements the information contained in the
capitalization table under the column heading “As Adjusted” on page S-15 of the preliminary
prospectus supplement.
Supplementing the definition of “Comparable Treasury Issue” on page S-20 of the preliminary
prospectus supplement, the proviso to that definition reads: “provided, however, that if no
maturity is within three months before or after the maturity date for such notes, yields for the
two published maturities most closely corresponding to such United States Treasury security will be
determined and the Treasury Rate will be interpolated or extrapolated from those yields on a
straight line basis rounding to the nearest month.”
The Issuer has filed a registration statement (including a prospectus) with the U.S. Securities and
Exchange Commission (the “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
Issuer has filed with the SEC for more complete information about the Issuer and this offering. You
may get these documents for free by visiting XXXXX on the SEC web site at xxxx://xxx.xxx.xxx.
Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Xxxxxx Xxxxxxx & Co. Incorporated toll-free
at 1-866-718-1649 or Xxxxx Fargo Securities, LLC toll-free at 0-000-000-0000.
This Pricing Supplement is qualified in its entirety by reference to the Preliminary Prospectus
Supplement dated May 9, 2011 (the “Preliminary Prospectus Supplement”). The information in this
Pricing Supplement supplements the Preliminary Prospectus Supplement and supersedes the information
in the Preliminary Prospectus Supplement to the extent inconsistent with the information in the
Preliminary Prospectus Supplement.
Schedule C-1-2
SCHEDULE C-2
Permitted Free Writing Prospectus
None.
..
Schedule C-2-1
SCHEDULE D
Jurisdictions of Foreign Qualification
| Partnership Entity | Jurisdictions of Foreign Qualification | |
Western Gas Holdings, LLC
|
Arizona, Colorado, Kansas, New Mexico, | |
| Oklahoma, Texas, Utah, Wyoming | ||
Western Gas Partners, LP
|
Arizona, Colorado, Kansas, New Mexico, | |
| Oklahoma, Texas, Utah, Wyoming | ||
Western Gas Operating, LLC
|
Arizona, Colorado, Kansas, New Mexico, | |
| Oklahoma, Texas, Utah, Wyoming | ||
WGR Operating, LP
|
Arizona, Colorado, Kansas, New Mexico, | |
| Oklahoma, Texas, Utah, Wyoming | ||
Anadarko Gathering Company, LLC
|
Kansas, Louisiana, Mississippi, Oklahoma, | |
| Texas, Utah | ||
Pinnacle Gas Treating LLC
|
None | |
MIGC LLC
|
Colorado, Wyoming | |
Western Gas Wyoming, L.L.C.
|
None | |
Chipeta Processing LLC
|
Colorado, Utah | |
Xxxx-XxXxx Gathering LLC
|
None | |
Anadarko Wattenberg Company, LLC
|
None |
Schedule D-1
EXHIBIT A
Form of Opinion of Xxxxxx & Xxxxxx, L.L.P.
| 1. | Each Western Gas Party other than WGW and Xxxx-XxXxx Gathering LLC (individually, a “Covered Partnership Entity”) is validly existing as a limited partnership or limited liability company, as applicable, and is in good standing under the laws of the State of Delaware or, in the case of Pinnacle Gas Treating LLC, the State of Texas. |
| 2. | Each Covered Partnership Entity is duly qualified to do business as a foreign limited partnership or limited liability company, as applicable, in, and is in good standing under the laws of, each jurisdiction so identified on Schedule D. |
| 3. | Each Covered Partnership Entity has all requisite entity power to own its properties and conduct its business, in each case in all material respects, as described in the Pricing Disclosure Package and the Prospectus. Each Covered Partnership Entity has the entity power and authority necessary to (i) execute and deliver the Underwriting Agreement and the Indenture and perform its obligations thereunder, (ii) in the case of the Partnership, issue, sell and deliver the Notes, and (iii) in the case of each Covered Partnership Entity (other than the Partnership and the General Partner) issue and deliver the Guarantees. The General Partner has the limited liability company power and authority necessary to act as the general partner of the Partnership. |
| 4. | The Underwriting Agreement has been duly authorized, executed and delivered by each Covered Partnership Entity. |
| 5. | The Indenture has been duly qualified under the Trust Indenture Act, and each of the Base Indenture and the Supplemental Indenture has been authorized, executed and delivered by each Covered Partnership Entity party thereto. |
| 6. | The Notes have been duly authorized, executed and delivered by the Partnership. The Guarantees of the Covered Partnership Entities (other than the General Partner) have been duly authorized by the applicable Covered Partnership Entity (other than the General Partner). |
| 7. | The Indenture constitutes a valid and legally binding agreement of each Western Gas Party party thereto (assuming due authorization, execution and delivery of each of the Base Indenture and Supplemental Indenture by WGW and Xxxx-XxXxx Gathering LLC), enforceable against such Western Gas Party in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity. |
| 8. | The Notes, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price for the Notes as provided in this Agreement, will constitute valid and legally binding obligations of the Partnership enforceable against the Partnership in accordance with their terms, except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, |
Exhibit A-1
| reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity. | ||
| 9. | When the Notes have been duly executed, authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase price for the Notes as provided in this Agreement, the Guarantees will constitute valid and legally binding obligations of each Guarantor enforceable against such Guarantor in accordance with their terms, except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity. | |
| 10. | Anadarko indirectly owns of record all of the issued and outstanding shares of capital stock of Western Gas Resources, Inc., a Delaware corporation (“Western Gas Resources”), free and clear of all liens, charges, claims, encumbrances or other security interests (“Liens”), except Liens arising under Anadarko’s debt instruments, in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming Anadarko as debtor is on file in the office of the Secretary of State of the State of Delaware. | |
| 11. | Western Gas Resources owns of record all of the issued and outstanding membership interests in Holdings free and clear of all Liens in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming Western Gas Resources as debtor is on file in the office of the Secretary of State of the State of Delaware. | |
| 12. | (a) Holdings owns of record a 99% membership interest in the General Partner free and clear of all Liens in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming Holdings as debtor is on file in the office of the Secretary of State of the State of Delaware; (b) Holdings owns of record all of the issued and outstanding capital stock of XXX GP free and clear of all Liens in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming Holdings as debtor is on file in the office of the Secretary of State of the State of Delaware. XXX GP owns of record a 1% membership interest in the General Partner free and clear of all Liens in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming XXX GP as debtor is on file in the office of the Secretary of State of the State of Delaware. | |
| 13. | The General Partner is the sole general partner of the Partnership and owns of record a 2.0% general partner interest in the Partnership free and clear of all Liens (except for restrictions on transferability contained in the Partnership Agreement and as otherwise described in the Pricing Disclosure Package and the Prospectus) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the General Partner as debtor is on file in the office of the Secretary of State of the State of Delaware. | |
| 14. | The Partnership directly or indirectly owns of record all of the issued and outstanding partnership interests and membership interests, as applicable, in each Guarantor free and |
Exhibit A-2
| clear of all Liens in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership, the Operating Partnership or Western Gas Operating, LLC, a Delaware limited liability company, as debtor is on file in the office of the Secretary of State of the State of Delaware. | ||
| 15. | The Operating Partnership owns of record a 51% membership interest in Chipeta free and clear of all Liens (except for restrictions on transferability contained in Chipeta’s limited liability company agreement) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file in the office of the Secretary of State of the State of Delaware. | |
| 16. | Except as described in the Pricing Disclosure Package and the Prospectus, (a) there are no preemptive rights or other rights to subscribe for or purchase, nor any restriction upon the voting or transfer of, any equity securities of the Partnership pursuant to or under the formation, governing or other organizational documents of the Partnership, any material agreement or other instrument filed as an exhibit to the Partnership’s Annual Report on Form 10-K for the year ended December 31, 2010, the Quarterly Report on Form 10-Q for the quarter ended March 31, 2011 or any Current Report on Form 8-K filed subsequent to the Form 10-K (collectively, the “Material Agreements”), or any law, rule or regulation of the Delaware LP Act, the Delaware LLC Act, the laws of the State of Texas or federal law, and (b) the offering, issuance or sale of the Securities as contemplated by the Underwriting Agreement does not give rise under the formation, governing or other organizational documents of the Partnership or any Material Agreement to any rights for or relating to the registration of any securities of the Partnership, other than those that have been waived. | |
| 17. | The Registration Statement automatically became effective under the Act on May 9, 2011. To our knowledge, 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 SEC. The filings of the Preliminary Prospectus and the Prospectus pursuant to Rule 424 under the Act were made in the manner and within the time period required by such Rule. | |
| 18. | No permit, consent, approval, authorization, order, registration, filing or qualification (“Consent”) under the Delaware LP Act, the Delaware LLC Act, the laws of the State of Texas or federal law is required in connection with the offering, issuance or sale of the Notes by the Partnership and the Guarantees by the other Covered Partnership Entities (other than the General Partner), or the execution, delivery and performance of the Underwriting Agreement and the Indenture by the Covered Partnership Entities, other than (a) such Consents required under state securities or “Blue Sky” laws, (b) such Consents that have been obtained or made and (c) filings with the SEC required in the performance by the Covered Partnership Entities of their obligations under Section 4 of the Underwriting Agreement. | |
| 19. | The offering, issuance and sale of the Notes by the Partnership and the Guarantees by the other Covered Partnership Entities (other than the General Partner) to be sold pursuant to the Underwriting Agreement, the execution, delivery and performance of the |
Exhibit A-3
| Underwriting Agreement and the Base Indenture and the Supplemental Indenture by the Covered Partnership Entities party thereto, and the consummation by such Covered Partnership Entities of the transactions contemplated thereby do not and will not (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 the property or assets of the Partnership Entities pursuant to any Material Agreement, (B) result in any violation of the provisions of any formation, governing or other organizational documents of any of the Partnership Entities, as applicable, or (C) result in the violation of the Delaware LP Act, the Delaware LLC Act, the laws of the State of Texas 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 any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority known to us, 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 or a material adverse effect on the ability of any of the Western Gas Parties to consummate the transactions contemplated by the Underwriting Agreement and the Indenture. | ||
| 20. | No Partnership Entity is, and after giving effect to the Offering and the application of the proceeds therefrom as described in the Pricing Disclosure Package and the Prospectus, no Partnership Entity will be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. | |
| 21. | The description of the Securities and the Indenture included in the Pricing Disclosure Package and the Prospectus under the headings “Description of Notes” and “Description of the Debt Securities and Guarantees” are accurate in all material respects. |
In addition, such counsel shall state that they have participated in conferences with officers
and other representatives of the Partnership Entities, the independent public accountants of the
Partnership, the Representatives 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 specified in paragraph (21) of the foregoing opinion), based on the foregoing, no
facts have come to such counsel’s attention that lead such counsel to believe that:
(A) each of the Registration Statement, as of the date of the Underwriting Agreement, and the
Preliminary Prospectus, as of the date of the Preliminary Prospectus, appeared on its face to be
appropriately responsive in all material respects with the requirements of the Securities Act and
the rules and regulations thereunder, except that such counsel need not express any view as to the
antifraud provisions of the U.S. federal securities laws and the rules and regulations promulgated
under such provisions,
Exhibit A-4
(B) 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,
(C) 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
(D) the Prospectus, as of its date and on the applicable Closing Date, included or includes an
untrue statement of a material fact or omitted or omits to state a material fact necessary 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 or accounting
information included or incorporated by reference in or omitted from the Registration Statement,
the Pricing Disclosure Package or the Prospectus and (iii) representations and warranties and other
statements of fact included in the exhibits to the Registration Statement or any documents
incorporated by reference.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact, to the
extent such counsel deems appropriate, upon representations of the Western Gas Parties set forth in
this Agreement and upon certificates of officers and employees of the Partnership 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 the Delaware LP Act, the Delaware LLC Act, the laws of the State of Texas or federal
law, (D) with respect to the opinions expressed in paragraph (2) 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 Partnership 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 D hereto (each of which shall be dated as of a recent date and
shall be provided to the Underwriters or their counsel), and (E) state that they express no opinion
with respect to (i) any permits to own or operate any real property or (ii) state or local taxes or
tax statutes to which any of the limited partners of the Partnership or any of the members of the
General Partner may be subject.
Exhibit A-5
EXHIBIT B
Form of Opinion of Colorado Counsel
| 1. | Xxxx-XxXxx Gathering LLC (“Xxxx-XxXxx”) is validly existing as a limited liability company and is in good standing under the laws of the State of Colorado. | |
| 2. | Xxxx-XxXxx has all requisite limited liability company power to own its properties and conduct its business, in each case in all material respects, as described in the Pricing Disclosure Package and the Prospectus. Xxxx-XxXxx has the limited liability company power and authority necessary to (a) execute and deliver the Underwriting Agreement, the Base Indenture and the Supplemental Indenture and perform its obligations thereunder, and (b) issue the Guarantee. | |
| 3. | The execution and delivery of the Underwriting Agreement has been duly authorized by all necessary limited liability company action on the part of Xxxx-XxXxx, and has been executed and delivered by Xxxx-XxXxx. | |
| 4. | The execution and delivery of the Indenture has been duly authorized by all necessary limited liability company action on the part of Xxxx-XxXxx, and has been executed and delivered by Xxxx-XxXxx. | |
| 5. | The Guarantee has been duly authorized by all necessary limited liability company action on the part of Xxxx-XxXxx. | |
| 6. | No permit, consent, approval, authorization, order, registration, filing or qualification (“Consent”) under the Colorado Limited Liability Company Act or the laws of the State of Colorado is required in connection with the offering, issuance or sale of the Guarantee by Xxxx-XxXxx or the execution, delivery and performance of the Underwriting Agreement and the Indenture by Xxxx-XxXxx, other than such Consents required under state securities or “Blue Sky” laws (with regard to which such counsel shall not be expressing an opinion). | |
| 7. | The offering, issuance and sale of the Guarantee by Xxxx-XxXxx, the execution, delivery and performance of the Underwriting Agreement, the Base Indenture and the Supplemental Indenture by Xxxx-XxXxx, and the consummation by Xxxx-XxXxx of the transactions contemplated thereby do not and will not result in the violation of the Colorado Limited Liability Company Act or the laws of the State of Colorado (provided that such counsel need not express any opinion with respect to compliance with any state securities, antifraud or tax laws). |
Exhibit B-1
EXHIBIT C
Form of Opinion of Xxxxx X. Xxxxxxx
Assistant Secretary of Western Gas Holdings, LLC
Assistant Secretary of Western Gas Holdings, LLC
1. To my knowledge, there are no contracts, licenses, agreements, leases or documents of a
character that are required to be described in the Registration Statement, the Pricing Disclosure
Package or the Prospectus or to be filed as an exhibit to the Registration Statement that have not
been so described or filed as required.
2. Each Partnership Entity has all necessary licenses, authorizations, consents and approvals
(each, a “Permit”) and has made all necessary filings required under any applicable law,
regulation or rule, and has obtained all necessary Permits from other persons, in order to conduct
its business, except for such Permits that, if not obtained, would not have a Material Adverse
Effect; and no Partnership Entity is in violation of or default under, or has received notice of
any proceedings relating to the revocation or modification of, any such Permit or any federal,
state, local or foreign law, regulation or rule or any decree, order or judgment applicable to such
Partnership Entity, except for any such violations, defaults, revocations or modifications that
would not, individually or in the aggregate, have a Material Adverse Effect.
Capitalized terms used herein without definition shall have the meanings ascribed to them in
the Underwriting Agreement.
Exhibit C-1
EXHIBIT D-1
Officers’ Certificate of Partnership
May 18, 2011
Each of the undersigned, Xxxxxx X. Xxxxxxxx, President and Chief Executive Officer of Western
Gas Holdings, LLC, a Delaware limited liability company (the “General Partner”), which is
the general partner of Western Gas Partners, LP, a Delaware limited partnership (the
“Partnership”), and Xxxxxxxx X. Xxxx, Senior Vice President, Chief Financial Officer and
Treasurer of the General Partner, on behalf of the Partnership, does hereby certify pursuant to
Section 6(o) of that certain Underwriting Agreement dated May 9, 2011 (the
“Underwriting Agreement”) among the General Partner, the Partnership and the Guarantors,
and, on behalf of the several Underwriters named therein, Xxxxxx Xxxxxxx & Co. Incorporated and
Xxxxx Fargo Securities, LLC, that as of May 18, 2011:
1. He has reviewed the Registration Statement, each Preliminary Prospectus, the Prospectus and
each Permitted Free Writing Prospectus, if any.
2. The representations and warranties of the Partnership and the General Partner as set forth
in the Underwriting Agreement are true and correct as of the date hereof and as if made on the date
hereof.
3. The Partnership and the General Partner have performed all of their obligations under the
Underwriting Agreement as are to be performed at or before the date hereof.
4. The conditions set forth in Section 6(l) of the Underwriting Agreement have been
met.
5. From the time of execution of the Underwriting Agreement to and including the date hereof,
no material adverse change, or any developments that are reasonably likely to result in,
individually or in the aggregate, a material adverse change, in the business, assets, management,
condition (financial or otherwise), prospects or results of operations of the Partnership Entities,
taken as a whole, has or have occurred.
6. Each of (i) Xxxxxx & Xxxxxxx LLP, (ii) Xxxxxx & Xxxxxx L.L.P. and (iii) Holland & Xxxx LLP
is entitled to rely on this certificate in connection with the opinion such firm is rendering
pursuant to Section 6 of the Underwriting Agreement.
Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
[Signature page follows]
Exhibit D-1-1
In Witness Whereof, the undersigned have hereunto set their hands on the date first
set forth above.
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| Name: | Xxxxxxxx X. Xxxx | |||
| Title: | Senior Vice President, Chief Financial Officer and Treasurer |
|||
Exhibit D-1-2
EXHIBIT D-2
Officers’ Certificate of the Guarantors
May 18, 2011
Each of the undersigned, Xxxxxx X. Xxxxxxxx and Xxxxxxxx X. Xxxx, the Chief Executive Officer
and Chief Financial Officer, respectively, of each Guarantor, does hereby certify pursuant to
Section 6(o) of that certain Underwriting Agreement dated May 9, 2011 (the
“Underwriting Agreement”) among the General Partner, the Partnership and the Guarantors,
and, on behalf of the several Underwriters named therein, Xxxxxx Xxxxxxx & Co. Incorporated and
Xxxxx Fargo Securities, LLC, that as of May 18, 2011:
1. He has reviewed the Registration Statement, each Preliminary Prospectus, the Prospectus and
each Permitted Free Writing Prospectus, if any.
2. The representations and warranties of each Guarantor as set forth in the Underwriting
Agreement are true and correct as of the date hereof and as if made on the date hereof.
3. Each Guarantor has performed all of its obligations under the Underwriting Agreement as are
to be performed at or before the date hereof.
4. The conditions set forth in Section 6(l) of the Underwriting Agreement have been
met.
5. Each of (i) Xxxxxx & Xxxxxxx LLP, (ii) Xxxxxx & Xxxxxx L.L.P. and (iii) Holland & Xxxx LLP
is entitled to rely on this certificate in connection with the opinion such firm is rendering
pursuant to Section 6 of the Underwriting Agreement.
Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
[Signature page follows]
Exhibit E-2-1
In Witness Whereof, the undersigned have hereunto set their hands on the date first
set forth above.
| Name: | ||||
| Title: | ||||
| Name: | ||||
| Title: | ||||
Exhibit E-2-2
