EXHIBIT 99.5
EXCHANGE AGREEMENT
This EXCHANGE AGREEMENT (the "Exchange Agreement") is entered into as of
this day of , 1999 (the "Effective Date") between Western Gas
Resources, Inc. (the "Company") and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
a national banking association (the "Exchange Agent").
RECITALS
A. This Exchange Agreement is entered into in connection with the offer by
the Company (the "Exchange Offer") to exchange $1,000 principal amount of its
10% Senior Subordinated Notes due 2009 (the "Exchange Notes"), which have been
registered under the Securities Act of 1933, as amended, pursuant to a
Registration Statement, for each $1,000 principal amount of its outstanding 10%
Senior Subordinated Notes due 2009 (the "Old Notes"), pursuant to the terms of
the Prospectus (the "Prospectus") and the related Letter of Transmittal (the
"Letter of Transmittal") described in Section 2(b), below.
B. The Prospectus and the associated Letter of Transmittal provide the terms
and conditions under which Holders (as hereinafter defined) may tender some or
all of their Old Notes in exchange for Exchange Notes (the "Exchange"), which
Notes are issued pursuant to that certain Indenture dated as of June 15, 1999,
by and between the Company, the guarantors named therein (the "Guarantors") and
Chase Bank of Texas, National Association, as Trustee.
AGREEMENTS
1. Appointment of Exchange Agent. The Exchange Agent is hereby appointed by
the Company: (a) to effect the Exchange in accordance with the Prospectus, each
executed Letter of Transmittal and the instructions that follow; and (b) to act
as agent for the holders (individually, a "Holder" and collectively, the
"Holders") of the Old Notes identified in the register for the Old Notes. The
Exchange Agent agrees to act in accordance with the terms of this Exchange
Agreement for a period commencing on the date of this Exchange Agreement and
ending on , 1999, at midnight, New York City time, unless requested
by the Company on terms acceptable to the Exchange Agent to act in connection
with the Exchange Offer as Exchange Agent until some later date or unless
sooner terminated as provided in Section 14 hereof.
2. Delivery of Documents. The Company shall deliver the following documents
(collectively, the "Exchange Documents") to the Exchange Agent on or before the
date of this Exchange Agreement:
(a) the final Prospectus;
(b) the form of the Letter of Transmittal to be used by the Holders in
transmitting Old Notes for surrender in connection with the Exchange; and
(c) the form of the Notice of Guaranteed Delivery (as such term is
defined in the Prospectus).
3. Holders. The listing of the Holders of the Old Notes as of the close of
business on , 1999 (the "Record Date") shall be conclusive evidence
of the identities of the Holders of such Old Notes.
4. Mailing to Holders. The Company shall initially mail to each Holder of
record and to participants in The Depository Trust Company's book-entry system
(pursuant to information provided by The Depository Trust Company) on the
Effective Date one or more copies of each of the relevant Exchange Documents.
Thereafter, at the request of the Company, a Holder or an entity acting on
behalf of a Holder or such participant, the Exchange Agent may mail additional
copies of any one or more of the Exchange Documents to such Holder or entity.
The Exchange Agent shall provide notice of such mailing, including names and
addresses, to the Company.
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5. Exchange Procedure for Global FAST Notes. (a) The Depository Trust
Company ("DTC") shall receive, from each DTC Participant, electronic notice of
a bondholder's request to exchange the Old Notes to the Exchange Notes and this
notice shall be conclusive evidence of a request for exchange and shall take
the place of the receipt of original Letters of Transmittal and Notes. At the
time of receipt of a DTC electronic notice, the Old Notes shall be considered
properly presented for exchange.
(b) If the Exchange Agent receives executed Letters of Transmittal, the
Exchange Agent shall verify receipt of the Old Notes and examine the executed
Letters of Transmittal received by the Exchange Agent in connection therewith
and the other documents delivered or mailed to the Exchange Agent to ascertain
whether they appear to be properly completed and executed in accordance with
the instructions set forth in the Letter of Transmittal.
Old Notes shall be considered properly presented to the Exchange Agent only
if: (i) the Old Notes, accompanied by either a properly completed and duly
executed Letters of Transmittal or an electronic notice of bondholders' request
to exchange from the DTC Participant, are received by the Exchange Agent
(together with any other required documents) in accordance with the
instructions set forth in the Letter of Transmittal prior to the Expiration
Date (as such term is defined in the Prospectus); (ii) the adequacy of the
items and documents relating to the Letter of Transmittal therefor has been
favorably passed upon by the Company as provided below; and (iii) such tenders
of Old Notes are not withdrawn in accordance with the terms of the Exchange
Offer; provided that the Old Notes may be received within three New York Stock
Exchange trading days after the Expiration Date if tender of such Old Notes is
made pursuant to the Guaranteed Delivery Procedures contained in the
Prospectus.
In the event any Letter of Transmittal or other document has been improperly
completed or executed or is not in proper form for presentation (as required by
the instructions stated in the Letter of Transmittal), or if some other
irregularity in connection with the presentation of any of the Old Notes
exists, the Exchange Agent shall consult with an Authorized Representative (as
defined in Section 7 hereof) as to proper action to take to correct such
irregularity, except that no such consultation shall be necessary with respect
to any such irregularity that is of a routine nature and that is cured by the
appropriate party delivering to the Exchange Agent the items necessary for cure
pursuant to the Exchange Agent's instructions.
The Exchange Agent is authorized, and hereby agrees, to waive any
irregularity in connection with the presentation of any of the Old Notes by any
Holder with the written approval of an Authorized Representative. Determination
of all questions as to any irregularity or the proper documents shall be made
in writing by an Authorized Representative, and such determination shall be
final and binding.
Notwithstanding anything to the contrary herein, no Old Note may be accepted
for exchange until the Company shall have given the Exchange Agent written
notice of its acceptance for exchange of such Old Note.
(b) Upon receipt by the Exchange Agent of (i) Electronic notice from DTC of
a request for exchange accompanied by the Old Notes or (ii) one or more Old
Notes and (ii) a Letter of Transmittal covering such Old Notes completed in
accordance with the instructions therein, the Exchange Agent shall request the
Company to accept such Old Notes for exchange and to issue the Exchange Notes
to which such Holder is entitled. Such request shall be substantially in the
form of Exhibit A.
(c) The Company, upon receipt of the request described in the immediately
preceding clause (b) from the Exchange Agent, shall (i) provide written notice
to the Exchange Agent of the Company's acceptance of such Old Notes for
exchange and (ii) issue the Exchange Notes to which such Holder is entitled and
deliver the same to the Trustee (as such term is defined in the Prospectus) for
authentication. Chase Bank of Texas, National Association, acting in its
capacity as Trustee under the Indenture, shall promptly authenticate such
Exchange Notes and deliver such authenticated Notes to the party indicated in
the Letter of Transmittal at the Company's cost and risk.
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(d) All Exchange Notes distributed pursuant hereto shall be either
personally delivered or forwarded by first-class mail, postage prepaid, unless
otherwise directed, and the Company shall bear all cost and risk of such
delivery.
(e) The Exchange Agent may (but shall have no obligation to) take any and
all other actions it deems necessary or appropriate as the Exchange Agent in
connection with the Exchange Offer and under the customs and practices normally
applied to such transactions and arrangements; provided however, that it is
understood and agreed that the Exchange Agent shall have no duty or obligation
hereunder, under the Exchange Offer or under the Indenture in its capacity as
Exchange Agent except for those specifically set forth herein.
(f) Notwithstanding anything to the contrary aforesaid, with respect to Old
Notes and Exchange Notes in global form registered in the name of a nominee of
The Depository Trust Company, the Company and the Exchange Agent shall be
deemed to have satisfied the foregoing exchange procedures by complying with
the terms and provisions of the Automated Tender Offer Program, together with
any related procedures, of The Depository Trust Company.
6. Cancellation of Old Notes. The Exchange Agent is directed to cancel and
shall maintain in its custody all Old Notes, together with any Letters of
Transmittal and related documents it may receive that (in each case) have been
accepted by the Company for exchange.
Upon the termination of this Exchange Agreement, the Exchange Agent shall
forward to the Company all documents received by the Exchange Agent in
connection with accepted tenders of the Old Notes (including any Old Notes and
all Letters of Transmittal, telegrams or facsimile transmissions which may be
presented) with respect to which an Exchange has been effectuated, and shall
return to the relevant Holder any Old Notes that were not properly tendered or
were otherwise not accepted for tender by the Company. Such deliveries shall be
effectuated by courier or other means acceptable to the Company and shall be at
the sole cost and risk of the Company.
7. Future Instructions. The Exchange Agent may rely and act on any
instructions from any Authorized Representative with respect to all matters
pertaining to this Exchange Agreement and the transactions contemplated hereby.
"Authorized Representative" is hereby defined as the Chairman of the Board, the
President, any Vice President, the Chief Financial Officer or the Treasurer of
the Company or legal counsel acting on behalf of any of the foregoing.
Any instructions given to the Exchange Agent orally by any Authorized
Representative shall be confirmed in writing (including by facsimile
transmission) by such Authorized Representative as soon as practicable. The
foregoing notwithstanding, the Exchange Agent shall not be liable or
responsible and shall be fully authorized and protected from acting, or failing
to act, in accordance with any oral instructions that do not conform with the
written confirmation received in accordance with this section.
8. Payment for Services Rendered and Expenses. For services rendered as the
Exchange Agent hereunder, the Exchange Agent shall be entitled to compensation
as set forth in Exhibit B to this Exchange Agreement. The Exchange Agent will
present the Company with an invoice for payment promptly after termination of
this Exchange Agreement. Payment shall be made by the Company promptly after
receipt of the invoice.
9. Exculpation. The Exchange Agent shall:
(a) have no obligation to expend its own funds with respect to the
Exchange Offer or any of its duties hereunder or to otherwise make payment
with respect to any tendered Old Note or any Exchange Note distributed
hereunder;
(b) have no duties or obligations other than those specifically set
forth herein, or as may subsequently be agreed to in writing by the
Exchange Agent and the Company;
(c) not be required to make and shall make no representations as to and
shall have no responsibilities regarding the determination of the validity,
sufficiency, value or genuineness of any Old Note or the
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aggregate principal amount represented thereby presented in accordance with
the terms of any Letter of Transmittal (other than verification of the
principal amounts reflected on the Old Notes tendered to the Exchange Agent
in connection with the Exchange Offer) and will not be required to make and
shall not make any representations as to the validity, value or genuineness
of the transactions contemplated by the Exchange Offer or in the Exchange
Documents or as to the accuracy or otherwise as to any of the terms of the
Exchange Documents;
(d) not be obligated to take any legal action hereunder that might in
the Exchange Agent's reasonable judgment involve any expenses or liability,
unless the Exchange Agent has been furnished with reasonable indemnity
therefor from the Company and the Guarantors;
(e) not be liable for any lost profits, lost savings or other
special, exemplary, consequential or incidental damages;
(f) conclusively rely on, and shall be fully protected by the Company in
acting upon, any instrument, opinion, notice, certificate, letter,
facsimile transmission, telegram or other document delivered to the
Exchange Agent and in good faith believed by it to be genuine and to have
been signed by the proper party or parties;
(g) conclusively rely on and shall be fully protected by the Company in
acting upon the written or oral instructions of any Authorized
Representative with respect to any matter relating to the Exchange Agent's
actions specifically covered by this Exchange Agreement; and
(h) be permitted to consult with counsel satisfactory to the Exchange
Agent and the advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by the Exchange Agent hereunder and under any of the Exchange
Documents in good faith and in accordance with such advice or opinion of
such counsel.
10. Liability of Exchange Agent; Indemnification. The Exchange Agent and its
officers, directors, employees, agents, contractors, subsidiaries and
affiliates shall not be liable for any action taken or suffered by the Exchange
Agent or such agent of the Exchange Agent in good faith in accordance with the
Exchange Offer, this Exchange Agreement, the Exchange Documents or the
instructions of any Authorized Representative, the Company or the Company's
counsel, other than any liability arising out of the gross negligence, willful
misconduct or bad faith of the Exchange Agent. The Company hereby irrevocably
and unconditionally, jointly and severally, covenants and agrees to indemnify
and hold the Exchange Agent and its officers, directors, employees, agents,
contractors, subsidiaries and affiliates harmless from and against any fees,
costs, expenses (including reasonable expenses of legal counsel), losses,
liabilities, claims or damages (collectively the "Indemnified Liabilities"),
which without gross negligence, willful misconduct or bad faith on its part,
may be paid, incurred or suffered by it, or to which it may become subject by
reason of or as a result of the preparation of this Exchange Agreement, the
review and administration of any other Exchange Documents or the administration
or performance of the Exchange Agent's duties hereunder or under any Exchange
Document, or by reason of or as a result of the Exchange Agent's compliance
with the instructions set forth herein or with any written or oral instruction
delivered to it pursuant hereto, or as a result of defending itself against any
claim or liability resulting from its actions as Exchange Agent hereunder or
under any of the Exchange Documents, including any claim against the Exchange
Agent by any Holder or any beneficial owner of a Note or any other person or
entity; the foregoing indemnity is specifically intended to include any
negligent action on the Exchange Agent's part taken without gross negligence,
willful misconduct or bad faith. To the extent any indemnity contained herein
is contrary to or unenforceable under applicable law, the Company hereby agrees
to contribute to the Exchange Agent the maximum amount of the Indemnified
Liabilities permitted under applicable law. The Exchange Agent shall be
entitled to participate at its own expense in the defense of any such action,
proceeding, suit or claim. All amounts due to the Exchange Agent hereunder
shall constitute expenses of administration under any Bankruptcy Law (as
defined in the Indenture).
11. Representations. The Company represents and warrants that (i) it is duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization, (ii) the making and
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consummation of the Exchange Offer and the execution, delivery and performance
of all transactions contemplated thereby (including without limitation this
Exchange Agreement) have been duly authorized by all necessary corporate action
and will not result in a breach of or constitute a default under the articles
of incorporation or bylaws of the Company or any indenture, agreement or
instrument to which it is a party or is bound (including, without limitation,
the Indenture), (iii) this Exchange Agreement has been duly executed and
delivered by the Company and constitutes a legal, valid, binding and
enforceable obligation, (iv) the Exchange Offer and the Exchange Documents will
comply in all material respects with all applicable requirements of law and (v)
there is no litigation pending or, to the best of its knowledge, threatened as
of the date hereof in connection with the Exchange Offer.
12. Governing Law. This Exchange Agreement shall be construed and enforced
in accordance with the laws of the State of Texas and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of the parties hereto.
13. Notices. All reports, notices and other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand, by first-class mail, postage prepaid, or by facsimile as follows:
If to the Company:
Western Gas Resources, Inc.
00000 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: General Counsel
Telephone: (000) 000-0000
Telecopy:
Attention:
If to the Exchange Agent:
Chase Bank of Texas, National Association
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy:(000) 000-0000
14. Termination; Compensation: Resignation. This Exchange Agreement will
terminate on , 1999 unless extended as provided in Section 1 hereof
or sooner terminated as provided below. Notwithstanding Section 1 hereof, in
the event the Exchange Offer is terminated, this Exchange Agreement shall also
be terminated and shall be of no further force and effect, without any
liability on the part of any of the parties hereto, provided that the Company
shall reimburse the Exchange Agent for all reasonable and necessary fees, costs
and expenses incurred by the Exchange Agent in connection with this Exchange
Agreement and/or the Exchange Documents including, but not limited to,
reimbursement of the fees set forth in Exhibit B hereto and payment pursuant to
the indemnification and contribution on provisions set forth in Section 10
hereof and such reimbursement, indemnification and contribution provisions
shall survive the termination of this Exchange Agreement; provided further,
that the Exchange Agent shall forward any Letters of Transmittal and Old Notes
received by the Exchange Agent after the date of termination and the
effectuation of the Exchange of such Old Notes to the Company as provided in
Section 6 above. This Exchange Agreement (a) may not be terminated by the
Company prior to , 1999 unless all fees and all reasonable and
necessary expenses incurred by the Exchange Agent in accordance with Exhibit B
hereto shall have been paid to the Exchange Agent and the conditions set forth
in the immediately succeeding sentence shall have been satisfied and (b) may be
terminated by the Exchange Agent at any time. If this Exchange Agreement is
terminated prior to effectuation of the Exchange of all Old Notes, then the
Exchange Agent may (but shall not be obligated to) continue to perform its
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duties hereunder until a new Exchange Agent shall have been appointed and the
Exchange Agent shall have received an opinion of counsel in form and substance
satisfactory to the Exchange Agent with respect to the legality and validity of
such appointment and as to such other matters as the Exchange Agent shall
require and such other documentation as the Exchange Agent shall reasonably
require, whereupon the Exchange Agent shall deliver to the new Exchange Agent
all Notes, Letters of Transmittal and other documents as the Exchange Agent may
then be holding pursuant to this Exchange Agreement.
15. Amendment. This Exchange Agreement represents the entire agreement
between the parties with respect to its subject matter and may not be amended
except by an instrument in writing signed by each of the parties; provided
however, that this Exchange Agreement may be terminated or extended by the
written agreement of the Company and the Exchange Agent.
16. Counterparts. This Exchange Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Exchange Agreement.
Western Gas Resources, Inc.
By: _________________________________
Xxxx X. Xxxxxx
Executive Vice President and
General Counsel
Chase Bank Of Texas, National
Association, as Exchange Agent
By: _________________________________
Xxxxx X. Xxxxx
Vice President and Trust Officer
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EXHIBIT A
EXCHANGE REQUEST
[Date]
Re: Western Gas Resources, Inc. ("Company") Exchange of its 10% Senior
Subordinated Notes due 2009, (the "Old Notes") for 10% Senior Subordinated
Notes due 2009, (the "Exchange Notes") as contemplated in the Prospectus
dated , 1999.
Pursuant to the Exchange Agreement dated as of , 1999, we have
received the DTC notice of exchange or, a Letter of Transmittal, together with
the Old Notes and other necessary documents, representing $ aggregate
principal amount of the Old Notes, and we hereby request the Company to accept
such offer and to issue Exchange Notes evidencing $ as follows:
Please notify us of acceptance and issue the Exchange Notes.
All documents, received by the Exchange Agent which are related to the
tender of such Notes are available for inspection at 0000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxxxxx, Xxxxx 00000.
Upon completion of this exchange, the aggregate principal amount of Old
Notes outstanding will be $ .
Very truly yours,
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EXHIBIT B
WESTERN GAS RESOURCES, INC. EXCHANGE AGREEMENT
EXCHANGE AGENT FEE
$2,000 For those duties specified in this Exchange Agreement. Additional time
spent on duties not anticipated above will be billed at $175 per hour.
ADDITIONAL EXPENSES
Out-of-pocket expenses are in addition to fees quoted above. This includes,
but is not limited to, legal fees and expenses, wire charges, printing costs,
postage, travel costs, forms, etc.
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