WESTERN GAS PARTNERS, LP 18,750,000 Common Units Representing Limited Partner Interests Underwriting Agreement May 8, 2008
Execution Copy
WESTERN GAS PARTNERS, LP
18,750,000 Common Units
Representing Limited Partner Interests
Representing Limited Partner Interests
May 8, 2008
May 8, 2008
UBS Securities LLC
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx & Co. Incorporated
as Managing Underwriters
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx & Co. Incorporated
as Managing Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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 UBS Securities LLC, Citigroup Global Markets Inc., Credit Suisse
Securities (USA) LLC and Xxxxxx Xxxxxxx & Co. Incorporated are acting as representatives (the
“Representatives”), an aggregate of 18,750,000 common units (the “Firm Units”)
representing limited partner interests in the Partnership (the “Common Units”). In
addition, the Partnership proposes to grant to the Underwriters the option to purchase up to an
additional 2,812,500 Common Units (the “Additional Units”), solely for the purpose of
covering over-allotments. The Firm Units and the Additional Units are hereinafter collectively
referred to as the “Units.” The Units are described in the Prospectus, which is referred
to below.
This agreement (the “Agreement”) is to confirm the agreement among the Partnership,
Anadarko Petroleum Corporation, a Delaware corporation (“Anadarko”), Western Gas Resources,
Inc., a Delaware corporation (“Western Gas”), WGR Holdings, LLC, a Delaware limited
liability company (“Holdings”), and Western Gas Holdings, LLC, a Delaware limited liability
company (the “General Partner,” and together with the Partnership, Anadarko, Western Gas,
and Holdings, the “Western Gas Parties”), on the one hand, and the Underwriters on the
other hand, concerning the purchase of the Units from the Partnership by the Underwriters.
The Western Gas Parties, together with Western Gas Operating, LLC, a Delaware limited
liability company (“Operating GP”), WGR Operating, LP, a Delaware limited partnership (the
“Operating Partnership”), Anadarko Gathering Company, LLC, a Delaware limited liability
company (“AGC”), Pinnacle Gas Treating LLC, a Texas limited liability company
(“PGT”), and MIGC LLC, a Delaware limited liability company (“MIGC”), are
collectively referred to herein as the “Western Gas Entities.” Each of Operating GP, the
Operating Partnership, AGC, PGT and MIGC is sometimes hereinafter referred to herein as an
“Operating Subsidiary,” and they are collectively referred to herein as the “Operating
Subsidiaries.” The Western Gas Entities, other than Anadarko and Western Gas, are collectively
referred to herein as the “Partnership Entities.”
The Partnership hereby acknowledges that, in connection with the proposed offering of the
Units (the “Offering”), it has requested UBS Financial Services, Inc. (the “DUP
Manager”) to administer a directed unit program (the “Directed Unit Program”), under
which up to
2,812,500 Firm Units, or 15.0% of the Firm Units to be purchased by the Underwriters (the
“Reserved Units”), shall be reserved for sale by the DUP Manager at the initial public
offering price to the officers, directors and employees of the General Partner and its affiliates,
including Anadarko, and certain other persons having a relationship with the Partnership, as
designated by the Partnership (the “Directed Unit Participants”), as part of the
distribution of the Units by the Underwriters, subject to the terms of this Agreement, the
applicable rules, regulations and interpretations of the Financial Industry Regulatory Authority
(“FINRA”) and all other applicable laws, rules and regulations. The number of Units
available for sale to the general public will be reduced to the extent that Directed Unit
Participants purchase Reserved Units. The Underwriters may offer any Reserved Units not purchased
by Directed Unit Participants to the general public on the same basis as the other Units being
issued and sold hereunder. The Partnership has supplied the DUP Manager with the names, addresses
and telephone numbers of the individuals or other entities that the Partnership has designated to
be participants in the Directed Unit Program. It is understood that any number of those so
designated to participate in the Directed Unit Program may decline to do so.
The Partnership has prepared and filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively, the
“Act”), with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-1 (File No. 333-146700) under the Act, including a prospectus,
relating to the Units. In addition, amendments to such registration statement have been prepared
and filed with the Commission in accordance with the Act.
Except where the context otherwise requires, “Registration Statement,” as used herein,
means the registration statement on Form S-1 (File No. 333-146700), as amended at the time of such
registration statement’s effectiveness for purposes of Section 11 of the Act, as such section
applies to the respective Underwriters (the “Effective Time”), including (i) all documents
filed as a part thereof, (ii) any information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Act and deemed, pursuant to Rule 430A or Rule 430C
under the Act, to be part of the registration statement at the Effective Time, and (iii) any
additional registration statement filed pursuant to Rule 462(b) under the Act.
The Partnership has furnished to the Representatives, for use by the Underwriters and by
dealers in connection with the Offering, copies of one or more preliminary prospectuses relating to
the Units. Except where the context otherwise requires, “Preliminary Prospectus,” as used
herein, means each such preliminary prospectus, in the form so furnished.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
prospectus relating to the Units, filed by the Partnership with the Commission pursuant to Rule
424(b) under the Act on or before the second business day after the date hereof (or such earlier
time as may be required under the Act) or, if no such filing is required, the final prospectus
included in the Registration Statement at the time it became effective under the Act, in each case
in the form furnished by the Partnership to the Representatives for use by the Underwriters and by
dealers in connection with the Offering.
“Permitted Free Writing Prospectuses,” as used herein, means each document listed on
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Schedule B-1 attached hereto, each “road show” (as defined in Rule 433 under the Act), if
any, related to the Offering contemplated hereby that is a “written communication” (as defined in
Rule 405 under the Act) (each such road show, a “Road Show”) and any other “free writing
prospectus” (as defined in Rule 405 under the Act) to which the Representatives provide their prior
consent.
“Disclosure Package,” as used herein, means any Preliminary Prospectus together with
any combination of one or more of the Permitted Free Writing Prospectuses, if any, and the
information set forth on Schedule B-2 attached hereto.
As used in this Agreement, “business day” shall mean a day on which the New York Stock
Exchange (the “NYSE”) is open for trading. The terms “herein,” “hereof,” “hereto,”
“hereinafter” and similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or other subdivision of
this Agreement. The term “or,” as used herein, is not exclusive.
The Partnership has prepared and filed, in accordance with Section 12 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the
“Exchange Act”), with the Commission a registration statement on Form 8-A (File No.
001-34046) (as amended, the “Exchange Act Registration Statement”) under the Exchange Act
to register, under Section 12(b) of the Exchange Act, the class of securities consisting of the
Common Units.
It is understood and agreed to by all parties that the Partnership was recently formed by
Holdings and the General Partner to gather, treat and transport natural gas. The Partnership will
initially indirectly own AGC, PGT and MIGC. Currently, Anadarko indirectly owns AGC, PGT and MIGC
through its indirect ownership of WGR Asset Holding Company LLC (“Asset Holdco”). Prior to
the date hereof, the following transactions (the “Formation Transactions”) occurred:
1. Western Gas formed Asset Holdco and contributed $1,000 in exchange for all of the
membership interests in Asset Holdco;
2. Asset Holdco formed Holdings and contributed $4,000 in exchange for all of the membership
interests in Holdings;
3. Asset Holdco formed the General Partner and contributed $1,000 in exchange for all of the
membership interests in the General Partner;
4. The General Partner and Asset Holdco formed the Partnership and contributed $60 and $2,940,
respectively, in exchange for a 2% general partner interest and a 98% limited partner interest in
the Partnership, respectively;
5. Asset Holdco contributed all of the membership interests in the General Partner and its 98%
limited partner interest in the Partnership to Holdings;
6. The Partnership formed Operating GP and contributed $1,000 in exchange for all
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of the membership interests in Operating GP;
7. Operating GP and the Partnership formed the Operating Partnership and contributed $0.10 and
$999.90, respectively, in exchange for a 0.01% general partner interest and a 99.99% limited
partner interest in the Operating Partnership, respectively; and
8. Asset Holdco distributed all of the membership interests in Holdings to Western Gas.
It is further understood and agreed by all parties that the following transactions (the
“Offering Transactions”) will occur substantially contemporaneously with the time of
purchase (as defined in Section 2 hereof):
1. Asset Holdco will distribute all of the membership interests in AGC, PGT and MIGC to
Western Gas;
2. Western Gas will contribute to the General Partner, on behalf of Holdings, a membership
interest in AGC with a value equal to 2% of the equity value of the Partnership at the time of
purchase (the “GP Contribution Interest”);
3. Western Gas will contribute to Holdings all of the remaining membership interest in AGC and
all of the membership interests in PGT and MIGC;
4. The General Partner will contribute the GP Contribution Interest to the Partnership in
exchange for (a) 1,083,115 general partner units representing a continuation of its 2.0% general
partner interest in the Partnership and (b) the Incentive Distribution Rights (as defined in the
Partnership Agreement, which is defined in Section 3(i) hereof);
5. Holdings will contribute all of the remaining interest in AGC and all of the interests in
PGT and MIGC to the Partnership in exchange for (a) 4,973,806 Common Units, (b) 26,536,306
subordinated units representing limited partner interests in the Partnership (the “Subordinated
Units”), (c) the right to receive, upon the earlier to occur of the expiration of the
Over-Allotment Option period or the exercise in full of the Over-Allotment Option, (1) a number of
additional Common Units that is equal to the excess, if any, of (x) 2,812,500 over (y) the
aggregate number of Common Units, if any, actually purchased by and issued to the Underwriters
pursuant to the exercise of the Over-Allotment Option and (2) a reimbursement of pre-formation
capital expenditures in an amount equal to the total amount of cash, if any, contributed by the
Underwriters to the Partnership at the additional time(s) of purchase with respect to the Common
Units purchased by and issued to the Underwriters pursuant to the exercise of the Over-Allotment
Option (if the Over-Allotment Option is not exercised, the Common Units issuable pursuant to the
right to receive additional Common Units described in this clause will, together with the Common
Units described in clause (a) and the Subordinated Units described in clause (b), represent a 63.4%
limited partner interest in the Partnership) and (d) the right to receive a distribution of $14.3
million as a reimbursement for certain pre-formation capital expenditures;
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6. The Partnership will contribute all of the membership interests in AGC, PGT and MIGC to the
Operating Partnership, of which 0.01% of such membership interests will be contributed on behalf of
Operating GP;
7. The public, through the Underwriters, will contribute $309.4 million in cash (the
“Offering Proceeds”) to the Partnership in exchange for 18,7500,000 Common Units, which
will, if the Over-Allotment Option is not exercised, represent a 34.6% limited partner interest in
the Partnership;
8. The Partnership will use the Offering Proceeds to (a) pay the Underwriters’ discounts and a
structuring fee totaling approximately $20.1 million, (b) pay approximately $5.0 million of
Offering expenses, (c) make a loan of $260.0 million to Anadarko in exchange for a 30-year note
bearing interest at a fixed annual rate of 6.5% (the “Note”), (d) reimburse Anadarko for
$14.3 million of capital expenditures it incurred with respect to the assets contributed to the
Partnership and (e) provide $10.0 million for general partnership purposes;
9. The 98% limited partner interest in the Partnership held by Holdings and the 2% general
partner interest in the Partnership held by the General Partner will be redeemed and the initial
capital contributions of Asset Holdco and the General Partner will thereupon be refunded, and any
interest or other profit that may have resulted from the investment or other use of such capital
contributions will be distributed to Holdings and the General Partner in proportion to such capital
contributions.
10. The Partnership will enter into a $30.0 million working capital facility with Anadarko as
the lender (the “Credit Facility”); and
11. The agreements of limited partnership and the limited liability company agreements of the
Partnership Entities will be amended and restated to the extent necessary to reflect the foregoing
transactions and any other transactions contemplated by the Contribution Agreements (as described
below).
If the Underwriters exercise the Over-Allotment Option, the Partnership will use the net
proceeds of the sale of Additional Units to reimburse Anadarko for capital expenditures it incurred
with respect to the assets contributed to the Partnership during the two-year period prior to the
Offering. In connection with the Formation Transactions and the Offering Transactions
(collectively, the “Transactions”), the parties to the Transactions have entered or will
enter into various agreements, assignments, conveyances, contribution agreements and related
documents (collectively, the “Contribution Documents”). Additionally, the Partnership, the
General Partner and Anadarko will enter into an omnibus agreement to be dated as of the Closing
Date (the “Omnibus Agreement”), the General Partner and Anadarko will enter into a services
and secondment agreement to be dated as of the Closing Date (the “Services Agreement”) and
the General Partner and Andarko will enter into a tax sharing agreement to be dated as of the
Closing Date (the “Tax Sharing Agreement,” and together with the Contribution Documents,
the Omnibus Agreement and the Services Agreement, the “Transaction Documents”). The
Transaction Documents, the Operating Agreements (as defined below) and the Credit Facility are
collectively referred to herein as the “Operative Documents”).
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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 number of Firm Units 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 of $15.51 per Unit. The Partnership is
advised by the Representatives that the Underwriters intend (i) to make a public offering of their
respective portions of the Firm Units as soon after the effective date of the Registration
Statement as in the Representatives’ judgment is advisable and (ii) initially to offer the Firm
Units upon the terms set forth in the Prospectus. The Representatives may from time to time
increase or decrease the public offering price after the initial public offering to such extent as
they may determine.
In addition, the Partnership hereby grants to the several Underwriters the option (the
“Over-Allotment Option”) to purchase, and upon the basis of the representations and
warranties and subject to the terms and conditions set forth herein, in the event that the
Underwriters sell more Common Units in the Offering than the number of Firm Units, the Underwriters
shall have the right to purchase, severally and not jointly, from the Partnership, ratably in
accordance with the number of Firm Units to be purchased by each of them, all or a portion of the
Additional Units at the same purchase price per Unit to be paid by the Underwriters to the
Partnership for the Firm Units. The Over-Allotment Option may be exercised by the Representatives
on behalf of the several Underwriters at any time and from time to time on or before the thirtieth
day following the date of the Prospectus, by written notice to the Partnership. Such notice shall
set forth the aggregate number of Additional Units as to which the Over-Allotment Option is being
exercised and the date and time when the Additional Units are to be delivered (any such date and
time being referred to herein as an “additional time of purchase”); provided,
however, that no additional time of purchase shall be earlier than the time of purchase (as
defined in Section 2 hereof) nor earlier than the second business day after the date on
which the Over-Allotment Option shall have been exercised nor later than the tenth business day
after the date on which the Over-Allotment Option shall have been exercised. The number of
Additional Units to be sold to each Underwriter shall be the number that bears the same proportion
to the aggregate number of Additional Units being purchased as the number of Firm Units set forth
opposite the name of such Underwriter in Schedule A attached hereto bears to the aggregate
number of Firm Units, subject to such adjustments as the Representatives may determine are
necessary to eliminate fractional Units and subject to adjustment in accordance with Section
8 hereof.
2. Payment and Delivery. Payment of the purchase price for the Firm Units shall be
made to the Partnership by Federal Funds wire transfer against electronic delivery of the Firm
Units 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 14, 2008 (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
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delivery are to be made is sometimes referred to herein as the “time of purchase.”
Electronic transfer of the Firm Units shall be made to the Representatives at the time of purchase
in such names and in such denominations as they shall specify.
Payment of the purchase price for the Additional Units shall be made at the additional time of
purchase in the same manner as the payment for the Firm Units. Electronic transfer of the
Additional Units shall be made to the Representatives at the additional time of purchase in such
names and in such denominations as they shall specify.
Delivery of the documents described in Section 6 hereof with respect to the purchase
of the Firm Units and any purchase of Additional Units shall be made at the offices of Xxxxxxx
Xxxxx LLP, 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, at 9:00 A.M., Houston, Texas time, on the
Closing Date and the date of the closing of any purchase of Additional Units.
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) Effectiveness of Registration Statement. The Registration Statement has heretofore
become effective under the Act or, with respect to any registration statement to be filed to
register the offer and sale of Units pursuant to Rule 462(b) under the Act, will be filed
with the Commission and become effective under the Act no later than 10:00 P.M., New York
City time, on the date of determination of the public offering price for the Units; no stop
order of the Commission preventing or suspending the use of any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the
Registration Statement, has been issued, and no proceedings for such purpose have been
instituted or, to the Partnership’s knowledge after due inquiry, are contemplated by the
Commission; and the Exchange Act Registration Statement has become effective as provided in
Section 12 of the Exchange Act.
(b) Compliance with Act; No Material Misstatements or Omissions. The Registration
Statement complied when it became effective, complies as of the date hereof and, as amended
or supplemented, will comply at the time of purchase, each additional time of purchase, if
any, and at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or any similar rule)
in connection with any sale of Units, in all material respects, with the requirements of the
Act; the Registration Statement did not, as of the Effective Time, 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; each Preliminary Prospectus
complied at the time it was filed with the Commission, and complies as of the date hereof,
in all material respects, with the requirements of the Act; at no time during the period
that begins on the earlier of the date of such Preliminary Prospectus and the date such
Preliminary Prospectus was filed with the Commission and ends at the time of purchase did or
will any Preliminary Prospectus, as then amended or supplemented, include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not
misleading, and at no time during such period did or will any
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Preliminary Prospectus, as then amended or supplemented, together with any combination
of one or more of the then-issued Permitted Free Writing Prospectuses, if any, include an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were made, not
misleading; the Prospectus will comply, as of its date, the date that it is filed with the
Commission, the time of purchase, each additional time of purchase, if any, and at all times
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Units, in all material respects, with the requirements of the Act (including,
without limitation, Section 10(a) of the Act); at no time during the period that begins on
the earlier of the date of the Prospectus and the date the Prospectus is filed with the
Commission and ends at the later of the time of purchase, the latest additional time of
purchase, if any, and the end of the period during which a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Units did or will the Prospectus, as then
amended or supplemented, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; at no time during the period that
begins on the date of the earliest use of any Permitted Free Writing Prospectus and ends at
the time of purchase did or will any Permitted Free Writing Prospectus include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not
misleading, or conflict with the information contained in the Registration Statement, the
Preliminary Prospectuses or the Prospectus; provided, however, that the
Western Gas Parties make no representation or warranty in this Section 3(b) with
respect to any statement contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus in reliance upon and in
conformity with information specified in Section 10 hereof, furnished in writing by
or on behalf of any Underwriter through the Representatives to the Partnership expressly for
use in the Registration Statement, such Preliminary Prospectus, the Prospectus or such
Permitted Free Writing Prospectus. To the extent required by Rule 433(d) under the Act, all
Permitted Free Writing Prospectuses were preceded or accompanied by a statutory prospectus
meeting the requirements of Section 10 of the Act.
(c) No Other Prospectus. Prior to the execution of this Agreement, the Partnership has
not, directly or indirectly, offered or sold any Units by means of any “prospectus” (within
the meaning of the Act) or used any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Units, in each case other than the Preliminary
Prospectuses and the Permitted Free Writing Prospectuses, if any; the Partnership has not,
directly or indirectly, prepared, used or referred to any Permitted Free Writing Prospectus
except in compliance with Rules 164 and 433 under the Act; assuming that any such Permitted
Free Writing Prospectus is accompanied or preceded by the most recent Preliminary Prospectus
that contains a price range or the Prospectus, as the case may be, and that any such
Permitted Free Writing Prospectus is so used or referred to after the Registration Statement
was filed with the Commission (and after any such Permitted Free Writing Prospectus was, if
required pursuant to Rule 433(d) under
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the Act, filed with the Commission), the use of or reference to any such Permitted Free
Writing Prospectus by any Underwriter will satisfy the provisions of Rule 164 and Rule 433
(without reliance on subsection (b), (c) or (d) of Rule 164); each of the Preliminary
Prospectuses is a prospectus that, other than by reason of Rule 433 or Rule 431 under the
Act, satisfies the requirements of Section 10 of the Act, including a price range where
required by rule; neither the Partnership nor the Underwriters are disqualified, by reason
of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer
and sale of the Units, a “free writing prospectus” (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; the Partnership is not an “ineligible issuer”
(as defined in Rule 405 under the Act) as of the eligibility determination date for purposes
of Rules 164 and 433 under the Act with respect to the Offering contemplated hereby; the
parties hereto agree and understand that the content of any and all “road shows” (as defined
in Rule 433(h)(4) under the Act) related to the Offering contemplated hereby is solely the
property of the Partnership; and the Partnership has caused there to be made available at
least one version of a “bona fide electronic road show” (as defined in Rule 433(h)(5) under
the Act) in a manner such that, pursuant to Rule 433(d)(8)(ii) under the Act, the
Partnership is not required, pursuant to Rule 433(d) under the Act, to file with the
Commission any Road Show.
(d) Formation of the Western Gas Entities. Each of the Western Gas Entities has been
duly formed and is validly existing as a limited partnership, limited liability company or
corporation, as the case may be, and is in good standing under the laws of the State of
Delaware or the State of Texas, as the case may be, with full partnership, limited liability
company or corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and each Permitted Free Writing 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 Units, (iii) in the case of the General Partner, to act as the general partner
of the Partnership, and (iv) in the case of each Western Gas Entity that is a party to an
Operative Document, to execute and deliver such Operative Document and consummate the
transactions contemplated thereby.
(e) Foreign Qualification and Registration. Each of the Western Gas Entities is duly
qualified to do business as a foreign limited partnership, limited liability company or
corporation, 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 C 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.
(f) Ownership of Western Gas. At the time of purchase and each additional time of
purchase, after giving effect to the Transactions, Anadarko will directly and indirectly own
all of the issued and outstanding shares of capital stock of Western Gas;
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such shares of capital stock will be duly authorized and validly issued; and Anadarko
will own such shares of capital stock free and clear of all claims, liens, encumbrances,
security interests, equities and charges (“Liens”).
(g) Ownership of Holdings. At the time of purchase and each additional time of
purchase, after giving effect to the Transactions, Western Gas will own all of the issued
and outstanding membership interests in Holdings; such membership interests will be duly
authorized and validly issued in accordance with the limited liability company agreement of
Holdings, as in effect at each such time (the “Holdings LLC Agreement”), fully paid
(to the extent required by the Holdings 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 Western Gas will own such membership interests
free and clear of all Liens.
(h) Ownership of the General Partner. At the time of purchase and each additional time
of purchase, after giving effect to the Transactions, Holdings will own all of the issued
and outstanding membership interests in the General Partner; such membership interests will
be duly authorized and validly issued in accordance with the limited liability company
agreement of the General Partner, as in effect at each such time (the “General Partner
LLC Agreement”), 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 LLC Act); and Holdings will own such membership interests free and
clear of all Liens.
(i) Ownership of General Partner Interest in the Partnership. At the time of purchase
and each additional time of purchase, after giving effect to the Transactions, the General
Partner will be the sole general partner of the Partnership, with a 2.0% general partner
interest in the Partnership; such general partner interest will be duly authorized and
validly issued in accordance with the agreement of limited partnership of the Partnership,
as in effect at each such time (the “Partnership Agreement”); and the General
Partner will own such general partner interest free and clear of all Liens, except for
restrictions on transferability contained in the Partnership Agreement and as otherwise
described in the Registration Statement (excluding the exhibits thereto), each Preliminary
Prospectus and the Prospectus.
(j) Ownership of Sponsor Units. At the time of purchase, after giving effect to the
Transactions and assuming that the Over-Allotment Option has not been exercised at such time
of purchase, there will be 23,723,806 Common Units and 26,536,306 Subordinated Units
outstanding; at the time of purchase, after giving effect to the Transactions and assuming
that the Over-Allotment Option has not been exercised at such time of purchase, Holdings
will own 4,973,806 Common Units, 26,536,306 Subordinated Units and the right to receive
additional Common Units in an amount equal to 2,812,500 less the number of Additional Units,
if any, purchased by the Underwriters pursuant to the exercise of the Over-Allotment Option
(such Common Units and Subordinated Units and any Common Units issuable pursuant to the
right to receive additional Common Units described in this clause being collectively
referred to herein as the “Sponsor Units”); and at the time of purchase and after
giving effect to the
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Transactions, the General Partner will own 1,083,115 general partner units and all of
the Incentive Distribution Rights (as defined in the Partnership Agreement). On the
31st day following the date of the Prospectus, there will be 26,536,306 Common
Units and 26,536,306 Subordinated Units outstanding; on such day, Holdings will own the
number of Common Units equal to 7,786,306 less the number of Additional Units, if any,
purchased by the Underwriters pursuant to the exercise of the Over-Allotment Option and
26,536,306 Subordinated Units; and on such day, the General Partner will own 1,083,115
general partner units and all of the Incentive Distribution Rights. All of the Sponsor
Units and the limited partner interests represented thereby and the Incentive Distribution
Rights will be duly authorized and validly issued in accordance with the Partnership
Agreement and will be 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 Preliminary Prospectus and the Prospectus under the caption
“Risk Factors—Risks Inherent in an Investment in Us—Your liability may not be limited if a
court finds that unitholder action constitutes control of our business,” “Risk Factors—Risks
Inherent in an Investment in Us—Unitholders may have liability to repay distributions that
were wrongfully distributed to them” and “The Partnership Agreement—Limited Liability” (and
any similar information, if any, contained in any Permitted Free Writing Prospectus) and
(ii) Sections 17-303 and 17-607 of 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), each Preliminary Prospectus and the Prospectus.
(k) Ownership of Operating GP. At the time of purchase and each additional time of
purchase, after giving effect to the Transactions, the Partnership will own all of the
issued and outstanding membership interests in Operating GP; such membership interests will
be duly authorized and validly issued in accordance with the limited liability company
agreement of Operating GP, as in effect at each such time (the “Operating GP LLC
Agreement”), fully paid (to the extent required by the Operating GP LLC Agreement) and
nonassessable (except as such nonassessability may be affected by Section 18-607 of the
Delaware LLC Act); and the Partnership will own such membership interests free and clear of
all Liens.
(l) Ownership of the Operating Partnership. At the time of purchase and each
additional time of purchase, after giving effect to the Transactions, the Partnership will
be the sole limited partner of the Operating Partnership, with a 99.99% limited partner
interest in the Operating Partnership; such limited partner interest will be duly authorized
and validly issued in accordance with the agreement of limited partnership of the Operating
Partnership, as in effect at each such time (the “Operating Partnership LP
Agreement”), fully paid (to the extent required by the Operating Partnership LP
Agreement) and nonassessable (except as such nonassessability may be affected by Sections
17-303 and 17-607 of the Delaware LP Act); and the Partnership will own such limited partner
interest free and clear of all Liens. At the time of purchase and each additional time of
purchase, after giving effect to the Transactions, Operating GP will be the sole general
partner of the Operating Partnership, with 0.01% general partner interest
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in the Operating Partnership; such general partner interest will be duly authorized and
validly issued in accordance with the Operating Partnership LP Agreement; and the
Partnership will own such general partner interest free and clear of all Liens.
(m) Ownership of AGC. At the time of purchase and each additional time of purchase,
after giving effect to the Transactions, the Operating Partnership will own all of the
issued and outstanding membership interests in AGC; such membership interests will be duly
authorized and validly issued in accordance with the limited liability company agreement of
AGC, as in effect at each such time (the “AGC LLC Agreement”), fully paid (to the
extent required by the AGC LLC Agreement) and nonassessable (except as such nonassessability
may be affected by Section 18-607 of the Delaware LLC Act); and the Operating Partnership
will own such membership interests free and clear of all Liens.
(n) Ownership of PGT. At the time of purchase and each additional time of purchase,
after giving effect to the Transactions, the Operating Partnership will own all of the
issued and outstanding membership interests in PGT; such membership interests will be duly
authorized and validly issued in accordance with the limited liability company agreement of
PGT, as in effect at each such time (the “PGT LLC Agreement”), fully paid (to the
extent required by the PGT LLC Agreement) and nonassessable (except as such nonassessability
may be affected by 101.206 of the Texas Business Organizations Code (“TBOC”)); and
the Operating Partnership will own such membership interests free and clear of all Liens.
(o) Ownership of MIGC. At the time of purchase and each additional time of purchase,
after giving effect to the Transactions, the Operating Partnership will own all of the
issued and outstanding membership interests in MIGC; such membership interests will be duly
authorized and validly issued in accordance with the limited liability company agreement of
MIGC, as in effect at each such time (the “MIGC LLC Agreement”), fully paid (to the
extent required by the MIGC LLC Agreement) and nonassessable (except as such
nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and the
Operating Partnership will own such membership interests free and clear of all Liens.
(p) No Other Subsidiaries. The Partnership has no other direct or indirect
“subsidiaries” (as defined under the Act) other than the Operating Subsidiaries. Other than
its ownership interest in the Operating Subsidiaries, the Partnership does not own, and at
the time of purchase and each additional 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 the Note. All equity interests in the Operating Subsidiaries 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 Operating
Subsidiaries are outstanding.
(q) Valid Issuance of the Units. At the time of purchase and each additional
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time of purchase, the Units to be sold by the Partnership, and the limited partner
interests represented thereby, will be duly authorized in accordance with the Partnership
Agreement and, when issued and delivered to the Underwriters against payment therefor as
provided herein, will be validly issued, fully paid (to the extent required under the
Partnership Agreement) and nonassessable (except as such nonassessability may be affected by
(i) matters described in the Registration Statement, the Preliminary Prospectus and the
Prospectus under the caption “Risk Factors—Risks Inherent in an Investment in Us—Your
liability may not be limited if a court finds that unitholder action constitutes control of
our business,” “Risk Factors—Risks Inherent in an Investment in Us—Unitholders may have
liability to repay distributions that were wrongfully distributed to them” and “The
Partnership Agreement—Limited Liability” (and any similar information, if any, contained in
any Permitted Free Writing Prospectus) and (ii) Sections 17-303 and 17-607 of the Delaware
LP Act); other than the Sponsor Units and the Incentive Distribution Rights, the Units will
be the only limited partner interests of the Partnership issued and outstanding at the time
of purchase and each additional time of purchase; and the issuance and delivery of the Units
against payment therefore as provided herein will not violate any restriction upon the
transfer thereof or any preemptive right, resale right, right of first refusal or similar
right pursuant to the Partnership’s certificate of limited partnership, the Partnership
Agreement or any agreement or other instrument to which the Partnership, any of the
Partnership Entities or any of their affiliates is a party or by which any of them or any of
their respective properties may be bound or affected.
(r) Conformity of Securities to Description. The Units, when issued and delivered in
accordance with the terms of the Partnership Agreement and against payment therefor as
provided herein will conform, and the Sponsor Units, the general partner interest and the
Incentive Distribution Rights conform, or when issued and delivered in accordance with the
terms of the Partnership Agreement will conform, in all material respects to the
descriptions thereof, if any, contained in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and each Permitted Free Writing Prospectus.
(s) 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 (i) the
Units, in accordance with and upon the terms and conditions set forth in this Agreement, the
Partnership Agreement, the Registration Statement, the Preliminary Prospectuses and the
Prospectus, and (ii) the Sponsor Units, in accordance with the terms and conditions set
forth in the Partnership Agreement and the Transaction Documents. At the time of purchase
and each additional time of purchase, all partnership, limited liability company and
corporate action, as the case may be, required to be taken by the Western Gas Entities or
any of their partners, members or stockholders for the authorization, issuance, sale and
delivery of the Units and the Sponsor Units, the consummation of the transactions (including
the Transactions) contemplated by this Agreement and the execution and delivery of the
Operative Documents shall have been validly taken.
(t) Authorization, Execution and Delivery of this Agreement. This Agreement has been
duly authorized, executed and delivered by each of the Western Gas Parties.
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(u) Authorization, Execution, Delivery and Enforceability of Other Agreements. At or
before the time of purchase:
(i) The Holdings LLC Agreement will be duly authorized, executed and delivered
by Western Gas and will be a valid and legally binding agreement of Western Gas,
enforceable against Western Gas in accordance with its terms;
(ii) The General Partner LLC Agreement will be duly authorized, executed and
delivered by Holdings and will be a valid and legally binding agreement of Holdings,
enforceable against Holdings in accordance with its terms;
(iii) The Partnership Agreement will be duly authorized, executed and delivered
by the General Partner and Holdings and will be a valid and legally binding
agreement of the General Partner and Holdings, enforceable against both of them in
accordance with its terms;
(iv) The Operating GP LLC Agreement will be duly authorized, executed and
delivered by the Partnership and will be a valid and legally binding agreement of
the Partnership, enforceable against the Partnership in accordance with its terms;
(v) The Operating Partnership LP Agreement will be duly authorized, executed
and delivered by the Partnership and Operating GP and will be a valid and legally
binding agreement of the Partnership and Operating GP, enforceable against both of
them in accordance with its terms;
(vi) The AGC LLC Agreement will be duly authorized, executed and delivered by
the Operating Partnership and will be a valid and legally binding agreement of the
Operating Partnership, enforceable against the Operating Partnership in accordance
with its terms;
(vii) The MIGC LLC Agreement will be duly authorized, executed and delivered by
the Operating Partnership and will be a valid and legally binding agreement of the
Operating Partnership, enforceable against the Operating Partnership in accordance
with its terms;
(viii) The PGT LLC Agreement (together with the Holdings LLC Agreement, the
General Partner LLC Agreement, the Partnership Agreement, the Operating GP LLC
Agreement, the Operating Partnership LP Agreement, the AGC LLC Agreement and the
MIGC LLC Agreement, the “Operating Agreements”) will be duly authorized,
executed and delivered by the Operating Partnership and will be a valid and legally
binding agreement of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms;
(ix) Each of the Contribution Documents will be duly authorized, executed and
delivered by the parties thereto and will be a valid and legally
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binding agreement of each of the parties thereto, enforceable against each of
such parties in accordance with its terms;
(x) The Omnibus Agreement will be duly authorized, executed and delivered by
the Partnership, the General Partner and Anadarko and will be a valid and legally
binding agreement of each of them, enforceable against each of them in accordance
with its terms;
(xi) The Services Agreement will be duly authorized, executed and delivered by
the General Partner and Anadarko and will be a valid and legally binding agreement
of both of them, enforceable against both of them in accordance with its terms;
(xii) The Tax Sharing Agreement will be duly authorized, executed and delivered
by the General Partner and Anadarko and will be a valid and legally binding
agreement of both of them, enforceable against both of them in accordance with its
terms;
(xiii) The Credit Facility will be duly authorized, executed and delivered by
the Partnership and Anadarko and will be a valid and legally binding agreement of
both of them, enforceable against both of them in accordance with its terms;
provided that, with respect to each agreement described in this Section
3(u), the enforceability thereof may be limited by (A) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting
creditors’ rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and (B) public policy,
applicable laws relating to fiduciary duties and indemnification and an implied covenant of
good faith and fair dealing.
(v) No Defaults. No Western Gas 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 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 Units or prevent or materially interfere with the
consummation of the transactions contemplated by this Agreement,
- 15 -
including the Offering, and the other transactions (including, but not limited to, the
Transactions) contemplated by the Registration Statement, the Preliminary Prospectuses, the
Prospectus, any Permitted Free Writing Prospectus and the Operative Documents.
(w) No Conflicts. The execution, delivery and performance of this Agreement and the
Operative Documents, the issuance and sale of the Units and the consummation of the
transactions contemplated hereby and thereby (including, without limitation, the
Transactions) 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 Western Gas Entity
pursuant to (i) the formation, governing or other organizational documents of any of the
Western Gas 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 Western Gas Entities is a party or by which any
of the Western Gas 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 Western Gas 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 Units or prevent or
materially interfere with the consummation of the transactions contemplated by this
Agreement, including the Offering, and the other transactions (including, but not limited
to, the Transactions) contemplated by the Registration Statement, the Preliminary
Prospectuses, the Prospectus, any Permitted Free Writing Prospectus and the Operative
Documents.
(x) 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 Western Gas Entities (each, a “Consent”), is required
in connection with the issuance and sale of the Units, the execution, delivery and
performance of the Operative Documents by the Western Gas Entities or the consummation by
the Western Gas Entities of the transactions contemplated hereby or thereby (including,
without limitation, the Transactions), other than (i) registration of the Units under the
Act, which has been effected (or, with respect to any registration statement to be filed
hereunder pursuant to Rule 462(b) under the Act, will be effected in accordance herewith),
(ii) any necessary qualification under the securities or blue sky laws of the various
jurisdictions in which the Units are being offered by the Underwriters, (iii) under the
rules and regulations of FINRA and (iv) Consents that have been, or prior to the Closing
Date will be, obtained.
(y) No Preemptive Rights, Registration Rights, Options or Other Rights.
- 16 -
Except as described in the Registration Statement (excluding the exhibits thereto),
each Preliminary Prospectus and the Prospectus, (i) no person has the right, contractual or
otherwise, to cause the Partnership to issue or sell to it any Units or other equity
interests of the Partnership, (ii) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any Units or other equity interests in
the Partnership, (iii) no person has any resale rights in respect of any Units or other
equity interests in the Partnership that would be required to be disclosed in the
Registration Statement and are not so disclosed, (iv) no person has the right to act as an
underwriter or as a financial advisor to the Partnership in connection with the Offering and
(v) no person has the right, contractual or otherwise, to cause the Partnership to register
under the Act any Units or other equity interests in the Partnership, or to include any
Units or other equity interests in the Partnership in the Registration Statement or the
Offering contemplated thereby.
(z) 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.
(aa) 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 the Registration Statement,
the Preliminary Prospectuses 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, the Preliminary Prospectuses and the Prospectus
under the headings “Our Cash Distribution Policy and Restrictions on Distributions,”
“Provisions of our Partnership Agreement Relating to Cash Distributions,” “Management’s
Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and
Capital Resources,” “Business—Safety and Maintenance,” “Business—Regulation of Operations,”
“Business—Environmental Matters,” “Business—Title to Properties and Rights of Way,”
“Management,” “Certain Relationships and Related Party Transactions,” “Conflicts of Interest
and Fiduciary Duties,” “Description of the Common Units,” “The Partnership Agreement,”
“Material Tax Consequences” and “Underwriting” (and any similar information contained in
each Permitted Free Writing Prospectus), 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.
(bb) Litigation. Except as described in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus, there are no
- 17 -
actions, suits, claims, investigations or proceedings pending or, to the Western Gas
Parties’ knowledge, threatened or contemplated to which the Western Gas 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 Western Gas Entity, have a Material Adverse Effect,
affect the validity of the Units or prevent or materially interfere with consummation of the
transactions contemplated by this Agreement, including the Offering, and the other
transactions (including, but not limited to, the Transactions) contemplated by the
Registration Statement, the Preliminary Prospectuses, the Prospectus, any Permitted Free
Writing Prospectus and the Operative Documents.
(cc) Independent Registered Public Accounting Firm. KPMG LLP, whose reports on the
financial statements of certain of the Partnership Entities and the combined financial
statements of Western Gas Partners Predecessor (as defined in such financial statements) are
included in the Registration Statement, the Preliminary Prospectuses, the Prospectus and
each Permitted Free Writing Prospectus containing an audit report, are independent
registered public accountants as required by the Act and by the rules of the Public Company
Accounting Oversight Board.
(dd) Financial Statements. The financial statements included in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and, if any, each Permitted Free
Writing Prospectuses, together with the related notes and schedules, present fairly in all
material respects the financial position of the Partnership, the General Partner, MIGC and
Western Gas Partners Predecessor as of the dates indicated and the results of operations,
cash flows and changes in parents’, partners’ or members’ equity, as the case may be, of the
Partnership, the General Partner, MIGC and Western Gas Partners Predecessor for the periods
specified; such financial statements have been prepared in compliance with the requirements
of the Act and Exchange Act and in conformity with U.S. generally accepted accounting
principles applied on a consistent basis during the periods involved; all pro forma
financial statements or data included in the Registration Statement, the Preliminary
Prospectuses, the Prospectus and each Permitted Free Writing Prospectus (excluding the pro
forma information and assumptions set forth under the caption “Our Cash Distribution Policy
and Restrictions on Distributions—Unaudited Pro Forma Available Cash for the Year Ended
December 31, 2007” and in the related notes) comply with the requirements of the Act
(including, without limitation, Regulations S-X and G under the Act), the Exchange Act, Item
10 under Regulation S-K and Financial Interpretation No. 46, and the assumptions used in the
preparation of such pro forma financial statements and data are reasonable, the pro forma
adjustments used therein are appropriate to give effect to the transactions or circumstances
described therein and the pro forma adjustments have been properly applied to the historical
amounts in the compilation of those statements and data; all other financial and statistical
data contained in the Registration Statement, the Preliminary Prospectuses, the Prospectus
and each Permitted Free Writing Prospectus are accurately and fairly presented and prepared
on a
- 18 -
basis consistent with the financial statements and books and records of the Western Gas
Entities; the assumptions and forecasts underlying the pro forma information set forth
under the captions “Our Cash Distribution Policy and Restrictions on
Distributions—Partnership Statement of Estimated Adjusted EBITDA” and “Our Cash Distribution
Policy and Restrictions on Distributions—Unaudited Pro Forma Available Cash for the Year
Ended December 31, 2007” and in the related notes in the Registration Statement, the
Preliminary Prospectuses and the Prospectus (and any similar information, if any, contained
in any Permitted Free Writing Prospectus) are, in the informed judgment of management of the
Partnership Entities, reasonable, and with respect to the pro forma information set forth
under the caption “Our Cash Distribution Policy and Restrictions on Distributions—Unaudited
Pro Forma Available Cash for the Year Ended December 31, 2007” and in the related notes, the
pro forma adjustments used therein are appropriate to give effect to the transactions or
circumstances described therein and the pro forma adjustments have been properly applied to
the historical amounts in the compilation of those statements and data; there are no
financial statements (historical or pro forma) that are required to be included in the
Registration Statement, any Preliminary Prospectus or the Prospectus that are not so
included as required; the Partnership Entities do not have any material liabilities or
obligations, direct or contingent (including any off-balance sheet obligations), not
described in the Registration Statement (excluding the exhibits thereto), each Preliminary
Prospectus and the Prospectus; and all disclosures contained in the Registration Statement,
the Preliminary Prospectuses, the Prospectus and each Permitted Free Writing Prospectus
regarding “non-GAAP financial measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G and Item 10 of Regulation S-K under
the Act, to the extent applicable.
(ee) No Material Adverse Change. Subsequent to the respective dates as of which
information is given in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and each Permitted Free Writing 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), each Preliminary
Prospectus 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.
(ff) Lock-Up Agreement. The Partnership has obtained for the benefit of the
Underwriters the agreement (a “Lock-Up Agreement”), in the form set forth as
Exhibit A hereto, of (i) each director and “officer” (within the meaning of Rule
16a-1(f) under the Exchange Act) of the General Partner, (ii) each Directed Unit Participant
who purchases in excess of $100,000 worth of Reserved Units pursuant to the Directed Unit
Program, (iii) each holder of Sponsor Units and (iv) each other holder of Common Units named
in Exhibit A-1 hereto.
- 19 -
(gg) Investment Company. None of the Partnership Entities is, at no time during which
a prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with any sale of
Units will any of them be, nor, after giving effect to the Offering and sale of the Units
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”).
(hh) 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 Preliminary Prospectuses, the Prospectus and each Permitted Free Writing
Prospectus as being owned by any of them, free and clear of all Liens, except for Liens that
would not materially interfere with the use of any such property for the conduct of their
businesses and Liens described in the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus and the Prospectus. All property described in the
Registration Statement, the Preliminary Prospectuses, the Prospectus and each Permitted Free
Writing Prospectus as being held under lease by any Partnership Entity is held thereby under
valid, subsisting and enforceable leases.
(ii) 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
Preliminary Prospectuses, the Prospectus and each Permitted Free Writing Prospectus, subject
to such qualifications as may be set forth in the Registration Statement, each such
Preliminary Prospectus, the Prospectus or each such Permitted Free Writing 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),
each Preliminary Prospectus and the Prospectus or as would not interfere with the 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.
(jj) Intellectual Property. The Partnership Entities own, or have obtained valid and
enforceable licenses for or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), tradenames, service names,
copyrights, trade secrets and other proprietary information (collectively, “Intellectual
Property”) described in the Registration Statement, the Preliminary Prospectuses, the
Prospectus and, if any, each Permitted Free Writing Prospectus as being owned or licensed by
them or that are necessary for the conduct of their respective businesses as currently
conducted or as proposed to be conducted, except for any failures to own, license or have
rights to such Intellectual Property that would not, individually or
- 20 -
in the aggregate, have a Material Adverse Effect. The Western Gas Parties are unaware
of any claim to the contrary or any challenge by any other person to the rights of any of
the Partnership Entities with respect to any Intellectual Property. No Partnership Entity
has infringed or is infringing the intellectual property of a third party or has received
notice of a claim by a third party to the contrary.
(kk) 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 Western Gas Parties after due inquiry,
are imminent or threatened that would, individually or in the aggregate, have a Material
Adverse Effect. To the knowledge of the Western Gas Parties: (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.
(ll) Environmental Compliance. Except as described in the Registration Statement
(excluding the exhibits thereto), each Preliminary Prospectus 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 Western Gas Entity has received written notice of any,
and to the knowledge of the Western Gas Parties, 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
Western Gas Entity is subject to any pending or, to the knowledge of the Western Gas
Parties, 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, individually or in the aggregate, have a Material Adverse
- 21 -
Effect. Except as described in the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus 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), each Preliminary Prospectus 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.
(mm) Environmental Compliance Review. In the ordinary course of its business, each
Partnership Entity conducts a periodic review of the effect of the Environmental Laws on its
business, operations and properties, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any capital or operating
expenditures required for cleanup, closure of properties or compliance with Environmental
Laws or any permit, license or approval), any related constraints on operating activities
and any potential liabilities to third parties.
(nn) 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 Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee
Retirement Income Security Act of 1974, as amended (“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.
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(oo) 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.
(pp) Insurance. The Western Gas Entities maintain insurance covering the properties,
operations, personnel and businesses of the Partnership Entities as such Western Gas
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 each additional
time of purchase; and the Western Gas Entities have no reason to believe that they will not
be able to renew such insurance as and when such insurance expires.
(qq) No Business Interruptions. No Partnership Entity has sustained, since the date of
the last audited financial statements included in the Registration Statement, the
Preliminary Prospectuses, the Prospectus or any Permitted Free Writing Prospectuses, any
material loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree.
(rr) Non-Renewal of Contracts and Agreements; Third Party Defaults. Except as
described in the Registration Statement (excluding the exhibits thereto), each Preliminary
Prospectus and the Prospectus, no Western Gas Entity has sent or received any communication
regarding the termination of, or intent not to renew, any of the contracts or agreements
referred to or described in any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus, or referred to or described in, or filed as an exhibit to, the
Registration Statement, and no such termination or non-renewal has been threatened by any of
the Western Gas Entities or, to the knowledge of the Western Gas Parties, any other party to
any such contract or agreement. To the knowledge of the Western Gas Parties, after due
inquiry, 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 Western Gas 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.
(ss) 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
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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.
(tt) 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 reporting or in
other factors that could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses.
(uu) 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 NYSE promulgated thereunder.
(vv) Forward-Looking Statements. Each “forward-looking statement” (within the meaning
of Section 27A of the Act or Section 21E of the Exchange Act) contained in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and each Permitted Free Writing
Prospectus has been made or reaffirmed with a reasonable basis and in good faith.
(ww) Statistical and Market-Related Data. All statistical or market-related data
included in the Registration Statement, the Preliminary Prospectuses, the Prospectus and
each Permitted Free Writing Prospectus are based on or derived from sources that the
Partnership reasonably believes to be reliable and accurate, and the Partnership has
obtained the written consent to the use of such data from such sources to the extent
required.
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(xx) Foreign Corrupt Practices Act. No Partnership Entity nor, to the knowledge of the
Western Gas Parties, 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.
(yy) 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 Western Gas Parties,
threatened.
(zz) OFAC. No Partnership Entity nor, to the knowledge of the Western Gas Parties, 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 Western Gas 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 activities of
any person currently subject to any U.S. sanctions administered by OFAC.
(aaa) 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 as described
in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus
and the Prospectus.
(bbb) 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.
(ccc) No Other Securities. Immediately after the issuance and sale of the Units as
contemplated hereby, except as described in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus, no other securities of
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the Partnership shall be issued or outstanding; and the issuance and sale of the Units
as contemplated hereby will not cause any holder of Common Units, securities that are
convertible into or exchangeable or exercisable for Common Units or warrants, options or
other rights to purchase Common Units (or any other securities of the Partnership that are
substantially similar to Common Units) to have any right to acquire any securities of the
Partnership.
(ddd) NYSE Listing. The Common Units have been approved for listing on the NYSE,
subject only to official notice of issuance.
(eee) No Broker’s Fees. Except pursuant to this Agreement and for the structuring fee
payable to UBS Securities LLC, no Western Gas Entity has incurred any liability for any
finder’s or broker’s fee or agent’s commission in connection with the execution and delivery
of this Agreement or the consummation of the transactions (including, without limitation,
the Transactions) contemplated hereby or by the Registration Statement, the Preliminary
Prospectuses, the Prospectus or any Permitted Free Writing Prospectus.
(fff) Stabilization or Manipulation. None of the Western Gas Entities or any of their
“affiliates” (as such term is defined in Rule 405 promulgated under the 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 Units.
(ggg) FINRA Affiliations. To the knowledge of the Western Gas Parties, 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,
any 5% or greater securityholder of the Partnership or any beneficial owner of the
Partnership’s unregistered equity securities that were acquired at any time on or after the
180th day immediately preceding the date the Registration Statement was initially filed with
the Commission, except as described in the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus and the Prospectus.
(hhh) Lending Relationship. Except as described in the Registration Statement
(excluding the exhibits thereto), each Preliminary Prospectus and the Prospectus, no
Partnership Entity (i) has any material lending or other relationship with any bank or
lending affiliate of any Underwriter and (ii) intends to use any of the proceeds from the
Offering to repay any outstanding debt owed to any affiliate of any Underwriter.
(iii) Directed Unit Program. The Registration Statement, each Preliminary Prospectus,
the Prospectus and each Permitted Free Writing Prospectus comply, and any further amendments
or supplements thereto will comply, with any applicable laws or regulations of any foreign
jurisdiction in which any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus is distributed in connection with the Directed Unit Program; and no
approval, authorization, consent or order of or filing with any governmental or regulatory
commission, board, body, authority or agency, other than those heretofore obtained, is
required in connection with the offering of the Reserved Units in any jurisdiction where the Reserved Units are being offered.
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(jjj) Reserved Unit Sales. The Partnership has not offered, or caused the Underwriters
to offer, Units to any person pursuant to the Directed Unit Program with the intent to
influence unlawfully (i) a customer or supplier of the Partnership Entities to alter the
customer’s or supplier’s level or type of business with the Partnership Entities, or (ii) a
trade journalist or publication to write or publish favorable information about the
Partnership Entities or any of their businesses or services.
(kkk) No Distribution of Other Offering Materials. None of the Western Gas Entities
has distributed, nor will they distribute, prior to the later to occur of (i) the time of
purchase and each additional time of purchase and (ii) the completion of the distribution of
the Units, any “prospectus” (as defined under the Act) in connection with the offering and
sale of the Units other than the Registration Statement, the Preliminary Prospectuses, the
Prospectus, any Permitted Free Writing Prospectuses or other materials, if any, permitted by
the Act, including Rule 134 promulgated thereunder.
In addition, any certificate signed by an officer of any of the Western Gas Entities and
delivered to the Underwriters or counsel for the Underwriters in connection with the offering or
sale of the Units shall be deemed to be a representation and warranty by such Western Gas 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) Blue Sky Qualification. To furnish such information as may be required and
otherwise to cooperate in qualifying the Units for offering and sale under the securities or
blue sky laws of such states or other jurisdictions as the Representatives may designate,
and to maintain such qualifications in effect so long as the Representatives may request for
the distribution of the Units (provided, however, that the Partnership shall
not be required to qualify as a foreign corporation or to consent to the service of process
under the laws of any such jurisdiction (except service of process with respect to the
offering and sale of the Units)); and to promptly advise the Representatives of the receipt
by the Partnership of any notification with respect to the suspension of the qualification
of the Units for offer or sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(b) Copies of Prospectus. To make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective, and thereafter from
time to time to furnish to the Underwriters, as many copies of the Prospectus (as amended or
supplemented if the Partnership shall have made any amendments or supplements thereto after
the effective date of the Registration Statement) as the Underwriters may request for the
purposes contemplated by the Act; and in case any Underwriter is required to deliver
(whether physically or through compliance with Rule 172 under the Act or any similar rule)
in connection with any sale of Units a prospectus after the nine-month period referred to in
Section 10(a)(3) of the Act, the Partnership will prepare, at its expense, promptly upon
request such amendment or
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amendments to the Registration Statement and the Prospectus as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) Post-Effective Amendments. If, at the time this Agreement is executed and
delivered, it is necessary or appropriate for a post-effective amendment to the Registration
Statement, or a registration statement under Rule 462(b) under the Act, to be filed with the
Commission and become effective before the Units may be sold, to use their best efforts to
cause such post-effective amendment or such registration statement to be filed and become
effective, and to pay any applicable fees in accordance with the Act, as soon as possible;
and to advise the Underwriters promptly and, if requested by the Underwriters, to confirm
such advice in writing, (i) when such post-effective amendment or such registration
statement has become effective, and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the
Partnership agrees to file in a timely manner in accordance with such Rules);
(d) Filing of Amendments or Supplements. To advise the Underwriters promptly,
confirming such advice in writing, of any request by the Commission for amendments or
supplements to the Registration Statement or the Exchange Act Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for
additional information with respect thereto, or of notice of the institution of proceedings
for the suspension of, or the entry of a stop order suspending, the effectiveness of the
Registration Statement and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to use their best efforts to obtain the lifting
or removal of such order as soon as possible; and to advise the Underwriters promptly of any
proposal to amend or supplement the Registration Statement or the Exchange Act Registration
Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus, and to provide the Underwriters and Underwriters’ counsel copies of any such
documents for review and comment a reasonable amount of time prior to any proposed filing
and to file no such amendment or supplement to which the Underwriters shall object in
writing;
(e) Exchange Act Reports. Subject to Section 4(d) hereof, to file promptly all
reports and documents and any preliminary or definitive proxy or information statement
required to be filed by the Partnership with the Commission in order to comply with the
Exchange Act for so long as a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Units;
(f) Rule 462(b) Registration Statement. If necessary or appropriate, to file a
registration statement pursuant to, and in accordance with, Rule 462(b) under the Act, and
pay the applicable fees in accordance with the Act,
(g) Misstatements and Omissions. To advise the Underwriters promptly of the happening
of any event within the period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Units, which event could require
- 28 -
the making of any change in the Prospectus then being used so that the Prospectus would
not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading, and to advise the Underwriters promptly if, during such
period, it shall become necessary to amend or supplement the Prospectus to cause the
Prospectus to comply with the requirements of the Act, and, in each case, during such time,
subject to Section 4(d) hereof, to promptly prepare and furnish, at the
Partnership’s expense, to the Underwriters such amendments or supplements to such Prospectus
as may be necessary to reflect any such change or to effect such compliance;
(h) Earnings Information. To make generally available to the Partnership’s security
holders, and to deliver to the Underwriters, an earnings statement of the Partnership (which
will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve months
beginning after the “effective date” of the Registration Statement (as defined in Rule
158(c) under the Act) as soon as is reasonably practicable after the termination of such
twelve-month period but in any case not later than 18 months after the effective date of the
Registration Statement;
(i) Annual Report. Unless otherwise available through the Comission’s electronic data
gathering, analysis and retrieval system (“XXXXX”), to furnish to the Partnership’s
security holders as soon as practicable after the end of each fiscal year an annual report
(including a consolidated balance sheet and statements of income, unitholders’ equity and
cash flow of the General Partner, the Partnership and the Operating Subsidiaries, as the
case may be, for such fiscal year, accompanied by a copy of the certificate or report
thereon of a nationally recognized independent registered public accountants);
(j) Copies of the Registration Statement. Unless otherwise available through XXXXX, to
furnish to the Underwriters and Underwriters’ counsel as many copies of the Registration
Statement, as initially filed with the Commission, and of all amendments thereto (including
all exhibits thereto) as may reasonably be requested;
(k) Copies of Other Documents. Unless otherwise available through XXXXX, to furnish
each of the Underwriters for a period of five years from the date of this Agreement (i)
copies of any reports, proxy statements or other communications which the Partnership shall
send to its security holders (excluding any periodic income tax reporting materials) or
shall from time to time publish or publicly disseminate, (ii) copies of all annual,
quarterly, transition and current reports filed with the Commission on Forms 10-K, 10-Q or
8-K, or such other similar forms as may be designated by the Commission, (iii) copies of
documents or reports filed with any national securities exchange on which any class of
securities of the Partnership is listed and (iv) such other information as the Underwriters
may reasonably request regarding the Partnership Entities, in each case to the extent that
such materials are not publicly available;
(l) Interim Financial Statements. Unless otherwise available through XXXXX, to furnish
to the Underwriters as early as practicable prior to the time of purchase and each
additional time of purchase, but not later than two business days prior
- 29 -
thereto, a copy of the latest available unaudited interim and monthly consolidated
financial statements, if any, of the General Partner, the Partnership and the Operating
Subsidiaries which have been read by the Partnership’s independent registered public
accountants, as stated in their letter to be furnished pursuant to Section 6(c)
hereof;
(m) Application of Proceeds. To apply the net proceeds from the sale of the Units in
the manner set forth under the caption “Use of Proceeds” in the Registration Statement, each
Preliminary Prospectus and the Prospectus and to file such reports with the Commission with
respect to the sale of the Units and the application of the proceeds therefrom as may be
required by Rule 463 under the Act;
(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 Units including any
stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or
delivery of the Units 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 Units 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 of any blue sky surveys or legal investment surveys to the
Underwriters and to dealers, (v) the listing of the Units on any securities exchange or
qualification of the Units for listing on the NYSE and any registration thereof under the
Exchange Act, (vi) any filing for review of the public offering of the Units by FINRA,
including the legal fees and filing fees and other disbursements of counsel to the
Underwriters relating to FINRA matters, (vii) the fees and disbursements of any transfer
agent or registrar for the Units, (viii) the costs and expenses of the Western Gas Entities
relating to presentations or meetings undertaken in connection with the marketing of the
offering and sale of the Units 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 Western
Gas 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 Units for inclusion in the
book-entry settlement system of the DTC, (x) the preparation and filing of the Exchange Act
Registration Statement, including any amendments thereto, (xi) the offer and sale of the
Reserved Units, including all costs and expenses of the DUP Manager and the Underwriters,
including the fees and disbursement of counsel for the Underwriters and (xii) the
performance of the Western Gas Parties’ other obligations hereunder;
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(o) Compliance with Rules 433(d) and (g). To comply with Rule 433(d) under the Act
(without reliance on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(p) Partnership Lock-Up. Beginning on the date hereof and ending on, and including,
the date that is 180 days after the date hereof (the “Lock-Up Period”), without the
prior written consent of the Representatives, not to (i) issue, sell, offer to sell,
contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder with respect to, any Common Units, any other securities of the
Partnership that are substantially similar to Common Units, any securities that are
convertible into or exchangeable or exercisable for Common Units, or any warrants or other
rights to purchase Common Units, (ii) file or cause to become effective a registration
statement under the Act relating to the offer and sale of any Common Units, any other
securities of the Partnership that are substantially similar to Common Units, any securities
that are convertible into or exchangeable or exercisable for Common Units, or any warrants
or other rights to purchase Common Units, (iii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences of
ownership of any Common Units, any other securities of the Partnership that are
substantially similar to Common Units, any securities that are convertible into or
exchangeable or exercisable for Common Units, or any warrants or other rights to purchase
Common Units, whether any such transaction is to be settled by delivery of Common Units or
such other securities, in cash or otherwise or (iv) publicly announce an intention to effect
any transaction specified in clause (i), (ii) or (iii), except, in each case, for (A) the
registration of the offer and sale of the Units as contemplated by this Agreement, (B)
issuances of Common Units upon the exercise of options or warrants disclosed as outstanding
in the Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus
and the Prospectus, and (C) the issuance of equity-based awards not exercisable during the
Lock-Up Period pursuant to option or other equity compensation plans described in the
Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the
Prospectus; provided, however, that if (x) during the period that begins on
the date that is fifteen (15) calendar days plus three (3) business days before the last day
of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Partnership issues
an earnings release or material news or a material event relating to the Partnership occurs;
or (y) prior to the expiration of the Lock-Up Period, the Partnership announces that it will
release earnings results during the sixteen (16) day period beginning on the last day of the
Lock-Up Period, then the restrictions imposed by this Section (4)(q) shall continue
to apply until the expiration of the date that is fifteen (15) calendar days plus three (3)
business days after the date on which the issuance of the earnings release or the material
news or material event occurs;
(q) Lock-Up Agreements and Restrictions. To cause (i) each director and “officer”
(within the meaning of Rule 16a-1(f) under the Exchange Act) of the General Partner, (ii)
each Directed Unit Participant who purchases in excess of $100,000 worth of Reserved Units
pursuant to the Directed Unit Program, (iii) each holder of Sponsor Units
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and (iv) each other security holder named in Exhibit A-1 hereto to execute and
deliver to the Underwriters a Lock-Up Agreement and otherwise to cause all of the Common
Units (including, without limitation, the Reserved Units) that are subject to such Lock-Up
Agreements to be restricted from sale, transfer, assignment, pledge or hypothecation to such
extent as may be required by FINRA and its rules, and to direct the transfer agent to place
stop transfer restrictions upon such Common Units (including, without limitation, the
Reserved Units) during the Lock-Up Period or any such longer period of time as may be
required by FINRA and its rules; and to comply with all applicable securities and other
laws, rules and regulations in each jurisdiction in which such Common Units (including,
without limitation, the Reserved Units) are offered in connection with this Agreement and
the Directed Unit Program;
(r) Press Releases and Other Communications. Prior to the time of purchase and each
additional time of purchase, to issue no press release or other communication directly or
indirectly (other than a press release issued in compliance with Rule 134 under the Act) and
to hold no press conferences with respect to any of the Partnership Entities, the financial
condition, results of operations, business, properties, assets, or liabilities of any of the
Partnership Entities, or the Offering, without the Underwriters’ prior consent, which shall
not be unreasonably withheld;
(s) Distribution of Prospectuses. At any time at or after the execution of this
Agreement, to make, directly or indirectly, no offer or sale of any Units by means of any
“prospectus” (within the meaning of the Act) and use no “prospectus” (within the meaning of
the Act) in connection with the Offering, in each case other than the Prospectus and any
Permitted Free Writing Prospectus;
(t) No Stabilization. To take, directly or indirectly, no action that will constitute,
or that is 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 Units;
(u) NYSE Listing. To use their best efforts to cause the Common Units, including the
Units, to be listed on the NYSE and to maintain such listing; and
(v) Transfer Agent. To maintain a transfer agent and, if necessary under the
jurisdiction of formation of the Partnership, a registrar for the Common Units.
5. Reimbursement of Underwriters’ Expenses. If the Units are not delivered at the
time of purchase or each additional 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(n)
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.
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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 and at each additional
time of purchase, to the performance by the Western Gas Parties of their obligations hereunder and
to the following additional conditions precedent:
(a) The Partnership shall have furnished to the Representatives at the time of purchase
and at each additional 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 or the
additional time of purchase, as the case may be, with executed copies for each of the other
Underwriters, in form and substance reasonably satisfactory to the Representatives, each
substantially in form set forth in Exhibit B-1 hereto.
(b) The Partnership shall have furnished to the Representatives at the time of purchase
and at each additional time of purchase an opinion of Xxxxxx X. XxXxxxxxx, Vice President,
General Counsel and Corporate Secretary of the General Partner, addressed to the
Underwriters, and dated the time of purchase or the additional time of purchase, as the case
may be, with executed copies for each of the other Underwriters, in form and substance
reasonably satisfactory to the Representatives, each substantially in form set forth in
Exhibit B-2 hereto.
(c) The Representatives shall have received from KPMG LLP customary comfort letters
dated the date of this Agreement, the date of the Prospectus, the time of purchase and each
additional time of purchase and addressed to the Underwriters (with executed copies for each
of the Underwriters) in the forms satisfactory to the Representatives, which letters shall
cover, without limitation, the various financial disclosures contained in the Registration
Statement, the Preliminary Prospectuses, the Prospectus and each Permitted Free Writing
Prospectus.
(d) The Representatives shall have received at the time of purchase and at each
additional time of purchase the favorable opinion of Xxxxxxx Xxxxx LLP, counsel for the
Underwriters, addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, in form and substance reasonably
satisfactory to the Representatives.
(e) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which the Representatives shall have objected.
(f) The Registration Statement, the Exchange Act Registration Statement and any
registration statement required to be filed, prior to the sale of the Units, under the Act
pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act
or the Exchange Act, as the case may be. The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M., New York City time,
on the second full business day after the date of this Agreement (or such earlier time as
may be required under the Act).
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(g) Prior to and at the time of purchase and each additional time of purchase, (i) no
stop order with respect to the effectiveness of the Registration Statement shall have been
issued under the Act and no proceedings shall have been initiated under Section 8(d) or 8(e)
of the 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) no Disclosure Package, 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.
(h) Between the time of execution of this Agreement and the later of the time of
purchase and each additional 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 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 Units as contemplated by the Prospectus.
(i) The Partnership shall have delivered to the Representatives at the time of purchase
and at each additional time of purchase a certificate of the Chief Executive Officer and
Chief Financial Officer of the General Partner, dated the time of purchase or the additional
time of purchase, as the case may be, in the form attached as Exhibit C hereto.
(j) The Representatives shall have received each of the signed Lock-Up Agreements
referred to in Section 3(ff) hereof, and each such Lock-Up Agreement shall be in
full force and effect at the time of purchase and at each additional time of purchase.
(k) 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 and each additional time of purchase as the
Representatives may reasonably request.
(l) The Units shall have been approved for listing on the NYSE, subject only to notice
of issuance at or prior to the time of purchase.
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(m) FINRA shall not have raised any objection that has not been resolved with respect
to the fairness or reasonableness of the underwriting, or other arrangements of the
transactions, contemplated hereby.
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
Preliminary Prospectuses, 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 Western Gas 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 Units on the terms and in the manner contemplated in the
Registration Statement, the Preliminary Prospectuses, 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, the
American Stock Exchange 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 judgment of the Representatives, makes it
impractical or inadvisable to proceed with the Offering or the delivery of the Units on the terms
and in the manner contemplated in the Registration Statement, the Preliminary Prospectuses, 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 Western Gas Entity by any “nationally recognized statistical
rating organization,” as that term is defined in Rule 436(g)(2) under the Act.
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 Units, 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 Entities 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(n), 5 and 9 hereof),
and the Underwriters shall be under no obligation or liability to the Western Gas Parties under
this
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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 Firm Units 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 number of Firm Units that all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed 10% of the total
number of Firm Units, 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
number of Firm Units they are obligated to purchase pursuant to Section 1 hereof) the
number of Firm Units agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Units 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 Units shall be taken up and paid for
by all non-defaulting Underwriters pro rata in proportion to the aggregate number of Firm Units 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 Firm Units hereunder unless
all of the Firm Units 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 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 number of Firm Units that the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Units, 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 Firm Units 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.
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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 and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the 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 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 Prospectus (the term Prospectus for the purpose of this
Section 9 being deemed to include any Preliminary Prospectus, the Prospectus and any
amendments or supplements to the foregoing), in any Permitted Free Writing Prospectus, in
any “issuer information” (as defined in Rule 433 under the 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 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
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
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 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, (iii) any untrue statement or alleged untrue statement of a material
fact included in any “road show” (as defined in Rule 433 under the Act) not constituting an
Issuer Free Writing Prospectus or (iv) the Directed Unit Program, except, with respect to
this clause (iv), insofar as such loss, damage, expense, liability or claim is finally
judicially determined to have resulted from the gross negligence or willful misconduct of
the Underwriters in conducting the Directed Unit Program.
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(b) Without limitation of and in addition to its obligations under the other paragraphs
of this Section 9, each of the Western Gas Parties, jointly and severally, agrees to
indemnify, defend and hold harmless the DUP Manager, its partners, directors and officers,
and any person who controls the DUP Manager within the meaning of Section 15 of the 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 DUP Manager or any such
person may incur under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim (i) arises out of or is based upon (A) any of
the matters referred to in clauses (i) through (iii) of Section 9(a), or (B) any
untrue statement or alleged untrue statement of a material fact contained in any material
prepared by, on behalf of or with the approval of the Partnership for distribution to
Directed Unit Participants in connection with the Directed Unit Program or is caused by any
omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; (ii) is or was caused by the
failure of any Directed Unit Participant to pay for and accept delivery of Reserved Units
that the Directed Unit Participant has agreed to purchase; or (iii) otherwise arises out of
or is based upon the Directed Unit Program, provided, however, that the
Western Gas Parties shall not be responsible under this clause (iii) for any loss, damage,
expense, liability or claim that is finally judicially determined to have resulted from the
gross negligence or willful misconduct of the DUP Manager in conducting the Directed Unit
Program. Section 9(d) shall apply equally to any Proceeding (as defined in
Section 9(d) hereof) brought against the DUP Manager or any such person in respect
of which indemnity may be sought against the Western Gas Parties pursuant to the immediately
preceding sentence, except that the Western Gas Parties shall be liable for the expenses of
one separate counsel (in addition to any local counsel) for the DUP Manager and any such
person, separate and in addition to counsel for the persons who may seek indemnification
pursuant to Section 9(a) in any such Proceeding.
(c) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Western Gas Parties, their directors and officers, and any person who controls the Western
Gas Parties within the meaning of Section 15 of the 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 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
- 38 -
hereof furnished in writing by or on behalf of such Underwriter through the
Representatives to the Partnership expressly for use in, a 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.
(d) 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), (b) or (c)
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 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(d),
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
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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.
(e) If the indemnification provided for in this Section 9 is unavailable to an
indemnified party under subsection (a), (b) or (c) 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 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 Units. 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.
(f) 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 (e) 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 Units 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 Act) shall be entitled to
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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.
(g) 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 or officers or any person (including
each partner, officer or director of such person) who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of
the Western Gas Parties, their directors or officers or any person who controls the Western
Gas Parties within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and shall survive any termination of this Agreement or the issuance and delivery of the
Units. 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
Units, or in connection with the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus.
10. Information Furnished by the Underwriters. The concession and reallowance figures
appearing under the caption “Underwriting—Commissions and Discounts” and the statements relating to
stabilization by the Underwriters appearing under the caption “Underwriting—Price Stabilization,
Short Positions” 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. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000-0000, Attention: Syndicate Department, Citigroup Global Markets Inc., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000, Attention: General Counsel (Fax: (000) 000-0000), Credit Suisse
Securities (USA) LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Transactions
Advisory Group and Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000 and, if to
the Western Gas Parties, shall be sufficient in all respects if delivered or sent to the Western
Gas Parties at the offices of the Partnership at 0000 Xxxx Xxxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxx
00000, Attention: Xxxxxx X. Xxxx, President and 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
- 41 -
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, 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
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 Western Gas 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 Units, either before or after the
date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to
the Western Gas 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 Western Gas
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 Western Gas Entities. Each Western Gas Entity hereby waives and releases,
to the fullest extent permitted by law, any claims that the it may have against the Underwriters
with respect to any breach or alleged breach of any fiduciary or similar duty to the Western Gas
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
- 42 -
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.
18. Miscellaneous. UBS Securities LLC (“UBS”), an indirect, wholly owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of UBS AG. Because UBS is a separately incorporated entity, it is solely
responsible for its own contractual obligations and commitments, including obligations with respect
to sales and purchases of securities. Securities sold, offered or recommended by UBS are not
deposits, are not insured by the Federal Deposit Insurance Corporation, are not guaranteed by a
branch or agency, and are not otherwise an obligation or responsibility of a branch or agency.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
- 43 -
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, | ||||||
| Anadarko Petroleum Corporation | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Name: | ||||||
| Title: | President and Chief Executive Officer | |||||
| Western Gas Resources, Inc. | ||||||
| By: | /s/ Xxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| WGR Holdings, LLC | ||||||
| By: | /s/ Xxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | President and Chief Executive Officer | |||||
| Western Gas Holdings, LLC | ||||||
| By: | /s/ Xxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | President and Chief Executive Officer | |||||
Western Gas Partners, LP
Signature Page to Underwriting Agreement
Signature Page to Underwriting Agreement
| Western Gas Partners, LP | ||||||
| By: Western Gas Holdings, LLC, its general partner | ||||||
| By: | /s/ Xxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | President and Chief Executive 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 named in Schedule
A
|
| UBS Securities LLC |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxx Xxxxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxxxx | |||
| Title: | Director | |||
| Citigroup Global Markets Inc. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
| Credit Suisse Securities (USA) LLC |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Director | |||
| Xxxxxx Xxxxxxx & Co. Incorporated |
||||
| By: | /s/ X. Xxxx | |||
| Name: | X. Xxxx | |||
| Title: | Executive Director | |||
Western Gas Partners, LP
Signature Page to Underwriting Agreement
Signature Page to Underwriting Agreement
EXHIBIT A
Lock-Up Agreement
, 2008
UBS Securities LLC
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
Citigroup Global Markets Inc.
Credit Suisse Securities (USA) LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Together with the other Underwriters
named in Schedule A to the Underwriting Agreement
referred to herein
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”) to be entered into by Anadarko Petroleum
Corporation, a Delaware corporation, Western Gas Resources, Inc., a Delaware corporation, WGR
Holdings, LLC, a Delaware limited liability company, Western Gas Holdings, LLC, a Delaware limited
liability company, Western Gas Partners, LP, a Delaware limited partnership (the
“Partnership”), and UBS Securities LLC, Citigroup Global Markets Inc., Credit Suisse
Securities (USA) LLC and Xxxxxx Xxxxxxx & Co. Incorporated (together, the
“Representatives”) and the other underwriters named in Schedule A to the
Underwriting Agreement, with respect to the initial public offering (the “Offering”) of
18,750,000 common units of the Partnership representing limited partner interests in the
Partnership (the “Common Units”). Capitalized terms used but not defined herein shall have
the meanings given to them in the Underwriting Agreement.
In order to induce the Underwriters to enter into the Underwriting Agreement, the undersigned
agrees that, for a period (the “Lock-Up Period”) beginning on the date hereof and ending
on, and including, the date that is 180 days after the date of the Underwriting Agreement, the
undersigned will not, without the prior written consent of the Representatives, (i) sell, offer to
sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission (the “Commission”) promulgated thereunder (the
“Exchange Act”) with respect to, any Common Units, any other securities of the Partnership
that are substantially similar to the Common Units, any securities convertible into or exchangeable
or exercisable for Common Units, or any warrants or other rights to purchase Common Units, (ii)
file (or
Exhibit A-1
participate in the filing of) a registration statement with the Commission in respect of any Common
Units, (iii) enter into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of any Common Units, any other securities of
the Partnership that are substantially similar to the Common Units, any securities convertible into
or exchangeable or exercisable for Common Units, or any warrants or other rights to purchase Common
Units whether any such transaction is to be settled by delivery of Common Units or such other
securities, in cash or otherwise or (iv) publicly announce an intention to effect any transaction
specified in clause (i), (ii) or (iii). The foregoing sentence shall not apply to (a) the
registration of the issuance and sale of the Common Units as contemplated by the Underwriting
Agreement and the sale of the Common Units to the Underwriters (as defined in the Underwriting
Agreement) in the Offering, (b) bona fide gifts, provided the recipient thereof agrees in writing
with the Underwriters to be bound by the terms of this Lock-Up Agreement or (c) dispositions to any
trust for the direct or indirect benefit of the undersigned and/or the immediate family of the
undersigned, provided that such trust agrees in writing with the Underwriters to be bound by the
terms of this Lock-Up Agreement. For purposes of this paragraph, “immediate family” shall mean the
undersigned and the spouse, any lineal descendent, father, mother, brother or sister of the
undersigned.
In addition, the undersigned hereby waives any rights the undersigned may have to require
registration of Common Units in connection with the filing of a registration statement relating to
the Offering. The undersigned further agrees that, for the Lock-Up Period, the undersigned will
not, without the prior written consent of the Representatives, make any demand for, or exercise any
right with respect to, the registration of Common Units or any securities convertible into or
exercisable or exchangeable for Common Units, or warrants or other rights to purchase Common Units
or any such securities.
Notwithstanding the above, if (a) during the period that begins on the date that is fifteen
(15) calendar days plus three (3) business days before the last day of the Lock-Up Period and ends
on the last day of the Lock-Up Period, the Partnership issues an earnings release or material news
or a material event relating to the Partnership occurs; or (b) prior to the expiration of the
Lock-Up Period, the Partnership announces that it will release earnings results during the sixteen
(16) day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by
this Lock-Up Agreement shall continue to apply until the expiration of the date that is fifteen
(15) calendar days plus three (3) business days after the date on which the issuance of the
earnings release or the material news or material event occurs.
In addition, the undersigned hereby waives any and all preemptive rights, participation
rights, resale rights, rights of first refusal and similar rights that the undersigned may have in
connection with the Offering or with any issuance or sale by the Partnership of any equity or other
securities before the Offering, except for any such rights as have been heretofore duly exercised.
The undersigned hereby confirms that the undersigned has not, directly or indirectly, taken,
and hereby covenants that the undersigned will not, directly or indirectly, take any action
designed, or which has constituted or will constitute or might reasonably be expected, to cause or
result in the stabilization or manipulation of the price of any security of the Partnership to
Exhibit A-2
facilitate the sale or resale of the Common Units.
* * *
Exhibit A-3
If (i) the Partnership notifies you in writing that it does not intend to proceed with the
Offering, (ii) the registration statement filed with the Commission with respect to the Offering is
withdrawn or (iii) for any reason the Underwriting Agreement shall be terminated prior to the “time
of purchase” (as defined in the Underwriting Agreement), this Lock-Up Agreement shall be terminated
and the undersigned shall be released from its obligations hereunder.
| Yours very truly, | ||||
Exhibit A-4
EXHIBIT A-1
LIST OF PARTIES TO EXECUTE LOCK-UP AGREEMENTS
| Name | Position | |
1. Western Gas Holdings,
LLC |
||
2. Xxxxxx X. Xxxx
|
President, Chief Executive Officer and Director | |
3. Xxxxxxx X. Xxxxx
|
Senior Vice President and Chief Financial Officer | |
4. Xxxxx X. Xxx
|
Senior Vice President, Chief Operating Officer and Director | |
5. Xxxxxx X. XxXxxxxxx
|
Vice President, General Counsel and Corporate Secretary | |
6. Xxxxxx X. Xxxxx
|
Vice President and Treasurer | |
7. X. X. Xxxxxx
|
Chairman of the Board | |
8. Xxxxxx Xxxxxxx
|
Director | |
9. Xxxxxxx X. Xxxxx
|
Director | |
10. Xxxxx X. Xxxxx
|
Director | |
11. Xxxx X. Xxxx
|
Director | |
12. Xxxxxx X. Xxxxxx
|
Director | |
13. Xxxxx X. Xxxxx
|
Director |
Exhibit X-0-0
XXXXXXX X-0
FORM OF OPINION OF XXXXXX & XXXXXX, L.L.P.
| 1. | Each of the Western Gas Entities has been duly formed and is validly existing as a limited partnership, limited liability company or corporation, as the case may be, and is in good standing under the laws of the State of Delaware or the State of Texas, as the case may be. |
| 2. | Each Western Gas Entity has the full partnership, limited liability company or corporate power and authority to own, lease and operate its properties and conduct its business as described in the Disclosure Package and the Prospectus and (a) in the case of the Western Gas Parties, to execute and deliver the Underwriting Agreement and perform its obligations under the Underwriting Agreement, (b) in the case of the Partnership, to issue, sell and deliver the Units, (c) in the case of the General Partner, to act as the general partner of the Partnership, and (d) in the case of each Western Gas Entity that is a party to an Operative Document, to execute and deliver such Operative Document and consummate the transactions contemplated thereby. |
| 3. | Each of the Western Gas Entities is duly qualified to do business as a foreign limited partnership, limited liability company or corporation, as the case may be, and is in good standing under the laws of each jurisdiction set forth opposite its name on Annex A hereto. |
| 4. | The Underwriting Agreement has been duly authorized, executed and delivered by each of the Western Gas Parties. |
| 5. | Each of the Operative Documents has been duly authorized, executed and delivered by each of the Western Gas Entities that is party thereto and, assuming the due authorization, execution and delivery by each party thereto (other than the Western Gas Entities), constitutes a valid and binding obligation of each such Western Gas Entity, enforceable against each such Western Gas Entity in accordance with its terms. |
| 6. | As of the date hereof, immediately prior to the issuance and sale of any Units to the Underwriters in accordance with the Underwriting Agreement, the issued and outstanding limited partner interests of the Partnership consist of 4,973,806 Common Units and 26,536,306 Subordinated Units (collectively, the “Sponsor Units”) and the Incentive Distribution Rights. Such Sponsor Units and Incentive Distribution Rights and the limited partner interests represented thereby have been duly authorized and validly issued in accordance with the Partnership Agreement and are fully paid (to the extent required by the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by (a) matters described in the Disclosure Package and the Prospectus under the caption “Risk Factors—Risks Inherent in an Investment in Us—Your liability may not be limited if a court finds that unitholder action constitutes control of our business,” “Risk Factors—Risks Inherent in an Investment in Us—Unitholders may have liability to |
Exhibit B-1-1
| repay distributions that were wrongfully distributed to them” and “The Partnership Agreement—Limited Liability” (and any similar information, if any, contained in any Permitted Free Writing Prospectus) and (b) Sections 17-303 and 17-607 of the Delaware LP Act). Holdings owns the Sponsor Units and the General Partner owns the Incentive Distribution Rights free and clear of all Liens, except with respect to the restrictions on transferability contained in Partnership Agreement and as otherwise described in the Disclosure Package and the Prospectus. |
| 7. | The issuance, sale and delivery by the Partnership of (a) the Sponsor Units to Holdings and (b) the Incentive Distribution Rights to the General Partner pursuant to the Partnership Agreement and the Contribution Agreement do not require registration under the Securities Act. |
| 8. | The Units to be sold by the Partnership pursuant to the Underwriting Agreement, and the limited partner interests represented thereby, have been duly authorized in accordance with the Partnership Agreement and, when issued and delivered to the Underwriters against payment therefor in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by (a) matters described in the Disclosure Package and the Prospectus under the caption “Risk Factors—Risks Inherent in an Investment in Us—Your liability may not be limited if a court finds that unitholder action constitutes control of our business,” “Risk Factors—Risks Inherent in an Investment in Us—Unitholders may have liability to repay distributions that were wrongfully distributed to them” and “The Partnership Agreement—Limited Liability” (and any similar information, if any, contained in any Permitted Free Writing Prospectus) and (b) Sections 17-303 and 17-607 of the Delaware LP Act); and other than the Sponsor Units and the Incentive Distribution Rights, the Units will be the only limited partner interests of the Partnership issued and outstanding. |
| 9. | Anadarko directly and indirectly owns all of the issued and outstanding shares of capital stock of Western Gas; such shares of capital stock have been duly authorized and validly issued; and Anadarko owns such shares of capital stock free and clear of all Liens (a) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming Western Gas as debtor is on file in the office of the Secretary of State of the State of Delaware or (b) otherwise known to us. |
| 10. | Western Gas owns all of the issued and outstanding membership interests in Holdings; such membership interests have been duly authorized and validly issued in accordance with the Holdings LLC Agreement and are fully paid (to the extent required by the Holdings LLC Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and Western Gas owns such membership interests free and clear of all Liens (a) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming Western Gas as debtor is on file in the office of the Secretary of State of the State of Delaware or (b) otherwise known to us. |
Exhibit B-1-2
| 11. | Holdings owns all of the issued and outstanding membership interests in the General Partner; such membership interests have been duly authorized and validly issued in accordance with 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 LLC Act); and Holdings owns such membership interests free and clear of all Liens (a) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming Holdings as debtor is on file in the office of the Secretary of State of the State of Delaware or (b) otherwise known to us. |
| 12. | 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 Partnership Agreement; and the General Partner owns such general partner interest free and clear of all Liens (except for restrictions on transferability contained in the Partnership Agreement and as otherwise described in the Disclosure Package and the Prospectus) (a) 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 or (b) otherwise known to us. |
| 13. | The Partnership owns all of the issued and outstanding membership interests in Operating GP; such membership interests have been duly authorized and validly issued in accordance with the Operating GP LLC Agreement and are fully paid (to the extent required by the Operating GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and the Partnership owns such membership interests free and clear of all Liens (a) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership as debtor is on file in the office of the Secretary of State of the State of Delaware or (b) otherwise known to us. |
| 14. | The Partnership is the sole limited partner of the Operating Partnership, with a 99.99% limited partner interest in the Operating Partnership; such limited partner interest has been duly authorized and validly issued in accordance with the Operating Partnership LP Agreement and is fully paid (to the extent required by the Operating Partnership LP Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-303 and 17-607 of the Delaware LP Act); and the Partnership owns such limited partner interest free and clear of all Liens (a) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership as debtor is on file in the office of the Secretary of State of the State of Delaware or (b) otherwise known to us. Operating GP is the sole general partner of the Operating Partnership, with a 0.01% general partner interest in the Operating Partnership; such general partner interest has been duly authorized and validly issued in accordance with the Operating Partnership LP Agreement; and Operating GP owns such general partner interest free and clear of all Liens (a) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming Operating GP as debtor is on file in the office of the Secretary of State of the State of Delaware or (b) otherwise known to us. |
Exhibit B-1-3
| 15. | The Operating Partnership owns all of the issued and outstanding membership interests in AGC; such membership interests have been duly authorized and validly issued in accordance with the AGC LLC Agreement and are fully paid (to the extent required by the AGC LLC Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and the Operating Partnership owns such membership interests free and clear of all Liens (a) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file in the office of the Secretary of State of the State of Delaware or (b) otherwise known to us. |
| 16. | The Operating Partnership owns all of the issued and outstanding membership interests in PGT; such membership interests have been duly authorized and validly issued in accordance with the PGT LLC Agreement and are fully paid (to the extent required by the PGT LLC Agreement) and nonassessable (except as such nonassessability may be affected by Section 101.206 of the TBOC); and the Operating Partnership owns such membership interests free and clear of all Liens (a) in respect of which a financing statement under the Uniform Commercial Code of the State of Texas naming the Operating Partnership as debtor is on file in the office of the Secretary of State of the State of Texas or (b) otherwise known to us. |
| 17. | The Operating Partnership owns all of the issued and outstanding membership interests in MIGC; such membership interests have been duly authorized and validly issued in accordance with the MIGC LLC Agreement and are fully paid (to the extent required by the MIGC LLC Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-607 of the Delaware LLC Act); and the Operating Partnership owns such membership interests free and clear of all Liens (a) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file in the office of the Secretary of State of the State of Delaware or (b) otherwise known to us. |
| 18. | The Units are duly listed and admitted and authorized for trading, subject to official notice of issuance, on the NYSE. |
| 19. | Except as described in the Disclosure Package and the Prospectus, (a) there are no (i) preemptive rights or other rights to subscribe for or purchase, nor any restriction upon the voting or transfer of, any equity securities of any of the Partnership Entities, (ii) outstanding options or warrants to purchase, or agreements or other obligations to issue, any securities of the Partnership Entities or (iii) rights to convert any securities into or exchange or exercise any securities for any equity interest in any of the Partnership Entities and (b) neither the filing of the Registration Statement nor the offering, issuance or sale of the Units as contemplated by the Underwriting Agreement gives rise to any rights for or relating to the registration of any Units or other securities of any of the Partnership Entities other than those that have been waived, in each case pursuant to or under the formation, governing or other organizational documents of the Partnership |
Exhibit B-1-4
| Entities, any other agreement or instrument filed as an exhibit to the Registration Statement, or the Delaware LP Act, the Delaware LLC Act, the General Corporation Law of the State of Delaware (the “DGCL”), the laws of the State of Texas or federal law. |
| 20. | The Units, the Sponsor Units, the general partner interest in the Partnership and the Incentive Distribution Rights conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus. |
| 21. | Each of the Registration Statement, as of the Effective Time, the Preliminary Prospectus, as of its date, and the Prospectus, when filed with the Commission pursuant to Rule 424(b) and on the Closing Date (except for the financial statements and related schedules, including the notes and schedules thereto and the auditor’s reports thereon, and any other related financial and accounting data included therein or excluded therefrom, as to which we express no opinion), appeared on its face to be appropriately responsive, in all material respects, to the requirements of the Act. |
| 22. | The Registration Statement has become effective under the Act and, to our knowledge, no stop order proceedings with respect thereto are pending or threatened under the Act, and any required filing of the Prospectus and any supplement thereto pursuant to Rule 424 under the Act has been made in the manner and within the time period required by such Rule 424 and in the manner and within the time period required by Rule 430A under the Act; and the class of securities consisting of the Common Units has become registered under Section 12 of the Exchange Act. |
| 23. | No permit, consent, approval, authorization, order, registration, filing or qualification under the Delaware LP Act, the Delaware LLC Act, the DGCL, the laws of the State of Texas or federal law is required in connection with the offering, issuance or sale by the Partnership of the Units, the execution, delivery and performance of the Underwriting Agreement by the Western Gas Parties, the execution, delivery and performance of the Operative Documents by the Western Gas Entities that are parties thereto or the consummation of the Transactions by the Western Gas Entities, except for such permits, consents, approvals, authorizations, orders, registrations, filings or qualifications that have been obtained or made. |
| 24. | None of (a) the offering, issuance or sale of the Units by the Partnership, (b) the execution, delivery and performance of the Underwriting Agreement and the Operative Documents by the Western Gas Entities that are parties thereto or (c) the consummation of the Transactions by the Western Gas Entities (i) conflicts or will conflict with or constitutes or will constitute a violation of the formation, governing or other organizational documents of any of the Western Gas Entities, (ii) conflicts or will conflict with or constitutes or will constitute a breach or violation of, or a default (or an event that, with notice or lapse of time or both, would constitute such a default) under, any agreement or other instrument filed as an exhibit to the Registration Statement, (iii) violates or will violate the Delaware LP Act, the Delaware LLC Act, the DGCL, the laws of the State of Texas or federal law, (iv) violates or will violate any order, judgment, decree or injunction of any court, governmental agency or body of the States of Delaware |
Exhibit B-1-5
| or Texas or of the United States of America known to us having jurisdiction over any of the Western Gas Entities or any of their properties or assets in a proceeding to which any of them is a party or any of them or their properties is subject or (v) results or will result in the creation or imposition of any Lien upon any property or assets of any of the Partnership Entities; provided, however, that no opinion is expressed pursuant to this paragraph [24] with respect to federal or state securities laws and other anti-fraud laws. |
| 25. | No Partnership Entity is, and after giving effect to the Offering and the application of the proceeds therefrom as described in the Registration Statement, each Preliminary Prospectus and the Prospectus, no Partnership Entity will 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. |
| 26. | The statements included in the Disclosure Package and the Prospectus under the headings “Our Cash Distribution Policy and Restrictions on Distributions,” “Provisions of our Partnership Agreement Relating to Cash Distributions,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources,” “Management,” “Certain Relationships and Related Party Transactions,” “Conflicts of Interest and Fiduciary Duties,” “Description of the Common Units,” “The Partnership Agreement,” “Material Tax Consequences,” “Investment in Western Gas Partners, LP by Employee Benefit Plans” and “Underwriting” (and any similar information contained in each Permitted Free Writing Prospectus), 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. The description of the federal statutes, rules and regulations set forth in the Disclosure Package and the Prospectus under “Business—Safety and Maintenance,” “Business—Regulation of Operations,” “Business—Environmental Matters” and “Business—Title to Properties and Rights of Way” constitute accurate summaries of such statutes, rules and regulations in all material respects. |
| 27. | Except as described in the Disclosure Package and the Prospectus, no person has the right, which has not been waived, under any Applicable Agreement or Operative Document to require the registration under the Act or any sale of securities issued by the Partnership by reason of the filing or effectiveness of the Registration Statement [or the Rule 462(b) Registration Statement]. |
| 28. | The opinion of Xxxxxx & Xxxxxx, L.L.P. that is filed as Exhibit 8.1 to the Registration Statement (filed with the Commission on January 30, 2008) is confirmed and the Underwriters may rely on such opinion as if it were addressed to them. |
We have participated in conferences with officers and other representatives of the Western Gas
Entities, the independent public accountants of the Partnership and representatives of the
Underwriters, at which the contents of the Registration Statement, the Disclosure Package and the
Prospectus and related matters were discussed, and although we have not independently verified, are
not passing upon and are not assuming any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement, the
Exhibit B-1-6
Disclosure Package and the Prospectus (except to the extent specified in paragraph [26]
above), based on the foregoing, no facts have come to our attention that lead us to believe that:
(A) the Registration Statement, as of the Effective Time, 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,
(B)
the Disclosure Package, as of the Applicable Time,1 contained any untrue statement
of a material fact or omitted 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
(C) the Prospectus, as of its date and the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading;
except that in each case, we do not express any opinion with respect to (i) the financial
statements included therein, including the notes and schedules thereto and the independent
registered public accountants’ reports thereon or (ii) the other financial and accounting data
contained in or omitted from the Registration Statement, the Disclosure Package or the Prospectus
and (iii) representations and warranties included in the exhibits to the Registration Statement.
Capitalized terms used herein without definition shall have the meanings ascribed to them in
the Underwriting Agreement.
| 1 | [ : ] [a.m./p.m.] on [ ], 2008. |
Exhibit B-1-7
EXHIBIT B-2
FORM OF OPINION OF XXXXXX X. XXXXXXXXX
GENERAL COUNSEL OF WESTERN GAS HOLDINGS, LLC
GENERAL COUNSEL 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 Preliminary Prospectuses or the Prospectus or to be filed as an exhibit to the Registration Statement have not been so described or filed as required. |
| 2. | Each Partnership Entity has all necessary licences, 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. |
| 3. | Except as described in the Registration Statement, the Preliminary Prospectus, the Prospectus and, if any, each Permitted Free Writing Prospectus, there are no actions, suits, claims investigations or proceedings pending or, to my knowledge, threatened or contemplated to which the Western Gas 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 Western Gas Entity, have a Material Adverse Effect. |
Capitalized terms used herein without definition shall have the meanings ascribed to them in
the Underwriting Agreement.
Exhibit B-2-1
EXHIBIT C
OFFICERS’ CERTIFICATE
Each of the undersigned, Xxxxxx X. Xxxx, 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 Xxxxxxx X. Xxxxx, Senior Vice President and Chief Financial Officer of
the General Partner, on behalf of the Partnership, does hereby certify pursuant to Section
6(i) of that certain Underwriting Agreement dated May 8, 2008 (the “Underwriting
Agreement”) among Anadarko Petroleum Corporation, Western Gas Resources, Inc., WGR Holdings,
LLC, the General Partner and the Partnership (collectively, the “Western Gas Parties”),
and, on behalf of the several Underwriters named therein, UBS Securities LLC, Citigroup Global
Markets Inc., Credit Suisse Securities (USA) LLC and Xxxxxx Xxxxxxx & Co. Incorporated, that as of
May 14, 2008:
| 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 Western Gas Parties 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 Western Gas Parties 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(g) 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. |
Capitalized terms used herein without definition shall have the respective meanings ascribed
to them in the Underwriting Agreement.
[Signature page follows]
Exhibit C-1
In Witness Whereof, the undersigned have hereunto set their hands on this May 14,
2008.
| Name: | Xxxxxx X. Xxxx | |||||
| Title: | President and Chief Executive Officer | |||||
| Name: | Xxxxxxx X. Xxxxx | |||||
| Title: | Senior Vice President and Chief Financial Officer | |||||
Exhibit C-2
