Exhibit 2.1
CONTRIBUTION AGREEMENT
by and among
WESTERN GAS RESOURCES, INC.
WGR HOLDINGS, LLC
WGR ASSET HOLDING COMPANY LLC
WESTERN GAS HOLDINGS, LLC
WES GP, INC.
as Contributing Parties
and
WESTERN GAS PARTNERS, LP
WESTERN GAS HOLDINGS, LLC
WESTERN GAS OPERATING, LLC
WGR OPERATING, LP
as Recipient Parties
and, for certain limited purposes,
ANADARKO PETROLEUM CORPORATION
Covering the Contribution of
a 100% membership interest in Kerr-McGee Gathering LLC
Dated as of July 30, 2010
TABLE OF CONTENTS
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Page
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Article I DEFINITIONS AND RULES OF CONSTRUCTION
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2
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Section 1.1 Definitions
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2
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Section 1.2 Rules of Construction
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10
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Article II CONTRIBUTION; CLOSING
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11
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Section 2.1 Contribution of the KMGG Interest
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11
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Section 2.2 Consideration
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11
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Section 2.3 Borrowing by the Partnership; Tax Treatment of Cash Consideration
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11
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Section 2.4 Contemplated Legal Steps
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12
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Article III CLOSING
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13
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Section 3.1 The Closing
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13
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Section 3.2 Deliveries by the Contributing Parties
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13
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Section 3.3 Deliveries by the Recipient Parties
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14
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Section 3.4 Closing Costs; Transfer Taxes and Fees
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14
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Section 3.5 Receipts and Credits
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15
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Section 3.6 Prorations
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16
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Article IV REPRESENTATIONS AND WARRANTIES OF ANADARKO AND THE CONTRIBUTING PARTIES
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16
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Section 4.1 Organization
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16
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Section 4.2 Authorization; Enforceability
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16
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Section 4.3 No Conflicts
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17
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Section 4.4 Preference Rights and Transfer Requirements
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17
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Section 4.5 Litigation
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17
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Section 4.6 Title
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18
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Section 4.7 Taxes and Assessments
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19
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Section 4.8 Compliance With Laws
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19
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Section 4.9 Environmental Matters
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20
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Section 4.10 Brokers and Finders
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20
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Section 4.11 Permits
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20
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Section 4.12 Contracts
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21
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-i-
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Page
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Section 4.13 Condition of Assets
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21
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Section 4.14 Matters Relating to KMGG
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21
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Section 4.15 No Undisclosed Liabilities; Accuracy of Data
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21
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Section 4.16 Absence of Certain Changes
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22
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Section 4.17 Sufficiency of the Assets
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22
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Section 4.18 Regulatory Matters
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22
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Section 4.19 Outstanding Capital Commitments
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22
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Section 4.20 Insurance
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23
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Section 4.21 Employees; Labor Relations
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23
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Section 4.22 Management Projections and Budgets
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23
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Section 4.23 Investment
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23
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Article V REPRESENTATIONS AND WARRANTIES OF THE RECIPIENT PARTIES
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24
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Section 5.1 Organization of Recipient
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24
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Section 5.2 Authorization; Enforceability
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24
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Section 5.3 No Conflicts
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24
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Section 5.4 Litigation
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24
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Section 5.5 Brokers Fees
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24
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Section 5.6 Investment
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25
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Article VI COVENANTS
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25
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Section 6.1 Conduct of Business
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25
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Section 6.2 Access
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26
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Section 6.3 Additional Agreements
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26
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Section 6.4 Replacement of Bonds, Letters of Credit and Guarantees
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26
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Section 6.5 General Matters
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26
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Section 6.6 KMGG Interest Matters
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27
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Section 6.7 Required Consents
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27
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Article VII CONDITIONS TO CLOSING
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27
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Section 7.1 Conditions to Each Partys Obligation to Close
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27
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Section 7.2 Conditions to the Recipient Parties Obligation to Close
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27
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Section 7.3 Conditions to the Contributing Parties Obligation to Close
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28
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Article VIII TERMINATION
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29
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Section 8.1 Termination
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29
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Section 8.2 Effect of Termination
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29
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-ii-
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Article IX INDEMNIFICATION
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30
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Section 9.1 Survival
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30
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Section 9.2 Indemnification of the Anadarko Indemnified Parties
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30
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Section 9.3 Indemnification of the Partnership Indemnified Parties
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30
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Section 9.4 Demands
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32
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Section 9.5 Right to Contest and Defend
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32
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Section 9.6 Cooperation
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33
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Section 9.7 Payment of Losses
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33
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Section 9.8 Limitations on Indemnification
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33
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Section 9.9 Sole Remedy
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34
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Section 9.10 Express Negligence Rule
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34
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Article X ADDITIONAL AGREEMENTS
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35
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Section 10.1 Further Assurances
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35
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Article XI MISCELLANEOUS
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35
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Section 11.1 Expenses
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35
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Section 11.2 Notices
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35
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Section 11.3 Severability
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37
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Section 11.4 Governing Law; Consent to Jurisdiction
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37
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Section 11.5 Parties in Interest
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38
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Section 11.6 Assignment
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38
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Section 11.7 No Amendment or Waiver
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38
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Section 11.8 Counterparts
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38
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Section 11.9 Integration
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38
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Section 11.10 Determinations by the Partnership
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39
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Section 11.11 Public Statements
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39
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Disclosure Schedules
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Schedule 4.4
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- Preference Rights and Transfer Requirements
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Part 1 Contracts
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Part 2 Surface Contracts
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Schedule 4.5
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- Contributing Party Litigation
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Schedule 4.6(a)
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- Title to KMGG Interest
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Schedule 4.6(b)
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- Title to KMGG Assets
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Part 1 Exceptions
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Part 2 Material KMGG Surface Contracts
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Schedule 4.7(a)
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- Tax Matters Relating to KMGG
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Schedule 4.8
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- Compliance With Laws
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Schedule 4.9
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- Environmental Matters
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Schedule 4.11
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- KMGG Permits
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Schedule 4.12
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- KMGG Contract Matters
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Part 1 All Material Contracts
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Part 2 Exceptions
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Schedule 4.14
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- Obligations Relating to KMGG
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Schedule 4.15
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- Bonds, Letters of Credit and Guarantees
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Schedule 4.16
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- Absence of Certain Changes
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Schedule 4.17
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- Sufficiency of the Assets
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Schedule 4.19
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- Outstanding KMGG Capital Commitments
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Schedule 4.20
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- Insurance
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Schedule 5.4
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- Recipient Party Litigation
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Exhibits
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Exhibit A
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Description of Fort Lupton Plant
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Exhibit B
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Description of Wattenberg Gathering System
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Exhibit C
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Description of KMGG Assets
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Exhibit D
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Form of KMGG Interest Contribution Agreement
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Exhibit E
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Form of Partnership Agreement Amendment
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Exhibit F
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Form of Omnibus Agreement Amendment
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Exhibit G
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Hedging Arrangements
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-iv-
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT, dated as of July 30, 2010 (the
Agreement
), is made and entered
into by and among Western Gas Resources, Inc., a Delaware corporation (
WGR
), WGR Asset Holding
Company LLC, a Delaware limited liability company (
WGRAH
), WGR Holdings, LLC, a Delaware limited
liability company (
WGR Holdings
), Western Gas Holdings, LLC, a Delaware limited liability company
(the
General Partner
), WES GP, Inc. (
WES GP
and, together with the General Partner, WGR, WGRAH
and WGR Holdings, the
Contributing Parties
), and Western Gas Partners, LP, a Delaware limited
partnership (the
Partnership
), Western Gas Operating, LLC, a Delaware limited liability company
(
Western Gas Operating
), and WGR Operating, LP, a Delaware limited partnership (the
Operating
Partnership
, and, together with the Partnership, the General Partner and Western Gas Operating,
the
Recipient Parties
). The Contributing Parties and Recipient Parties are sometimes referred to
in this Agreement each as a
Party
and collectively as the
Parties
. In addition, Anadarko
Petroleum Corporation, a Delaware corporation (
Anadarko
), is a party to this Agreement for the
limited purposes set forth in
Article II
,
Section 3.5
,
Article IV
,
Section 6.5
,
Article VIII
,
Article IX
and
Article XI
and is a
Party under this Agreement solely to that extent.
RECITALS
WHEREAS, WGR owns all of the equity interests in WGRAH and WGR Holdings, each of which is a
disregarded entity for U.S. federal income tax purposes;
WHEREAS, WGRAH owns all of the KMGG Interest (as defined herein);
WHEREAS, WGR Holdings owns 99% of the equity interests in the General Partner, which is a
partnership for U.S. federal income tax purposes;
WHEREAS, WGR Holdings owns all of the equity interests in WES GP, which is a corporation for
federal income tax purposes;
WHEREAS, WES GP owns 1% of the equity interests in the General Partner;
WHEREAS, WGR Holdings is a limited partner of the Partnership;
WHEREAS, the General Partner is the sole general partner of the Partnership;
WHEREAS, the Partnership owns all of the equity interests in Western Gas Operating, which is a
disregarded entity for U.S. federal income tax purposes;
WHEREAS, the Partnership is the sole limited partner and Western Gas Operating is the sole
general partner of the Operating Partnership;
WHEREAS, WGRAH desires to distribute the KMGG Interest to WGR and WGR desires to acquire the
same;
WHEREAS, WGR desires to contribute the KMGG Interest to WGR Holdings and WGR Holdings desires
to acquire the same;
WHEREAS, WGR Holdings desires to contribute an undivided interest in the KMGG Interest to WES
GP, and WES GP desires to acquire such undivided interest;
WHEREAS, WES GP desires to contribute such undivided interest in the KMGG Interest to the
General Partner, and the General Partner desires to acquire such undivided interest;
WHEREAS, WGR Holdings desires to contribute an undivided interest in the KMGG Interest to the
General Partner, and the General Partner desires to acquire such undivided interest;
WHEREAS WGR Holdings and the General Partner desire to contribute all of the undivided
interests in the KMGG Interest to the Partnership for the consideration described herein, and the
Partnership desires to acquire such undivided interests for such consideration;
WHEREAS, the Partnership desires to contribute an undivided interest in the KMGG Interest to
Western Gas Operating, and Western Gas Operating desires to acquire such undivided interest;
WHEREAS, the Partnership and Western Gas Operating desire to transfer all of the undivided
interests in the KMGG Interest to the Operating Partnership, and the Operating Partnership desires
to acquire such undivided interests; and
WHEREAS, in order to avoid multiple conveyances of the KMGG Interest, each of the Parties
entitled to receive an interest in the KMGG Interest agrees that WGRAH will be instructed to convey
such interest to any Party to which it is required to make such a conveyance, with the result that
WGRAH will execute and deliver a document to convey the KMGG Interest directly to the Operating
Partnership.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1
Definitions
.
Affiliate
means, with respect to any Person, any other Person that, directly or indirectly,
Controls, is Controlled by or is under common Control with, such specified Person through one or
more intermediaries or otherwise;
provided
,
however
, that (i) with respect to each of the Anadarko
Entities and the Contributing Parties, the term Affiliate shall exclude the Partnership Entities,
(ii) with respect to each of the Partnership Entities and the Recipient Parties, the term
Affiliate shall exclude the Anadarko Entities, and (iii) KMGG shall be deemed to be an Affiliate
of the Anadarko Entities and the Contributing Parties before the Closing Date and an Affiliate of
the Partnership Entities and the Recipient Parties on and after the Closing Date.
-2-
Accounting Time
has the meaning set forth in
Section 3.5(a)
.
Aggregate Consideration
has the meaning set forth in
Section 9.8(a)
.
Agreement
has the meaning set forth in the preamble.
Anadarko
has the meaning set forth in the preamble.
Anadarko Entities
means Anadarko and any other Person Controlled by Anadarko other than the
Partnership Entities.
Anadarko Indemnified Parties
has the meaning set forth in
Section 9.2
.
Ancillary Documents
means, collectively, the Recipient Party Ancillary Documents and the
Contributing Party Ancillary Documents.
Business Day
means any day that is not a Saturday, Sunday or legal holiday in the State of
Texas or a federal holiday in the United States.
Cash Consideration
means $473,100,000.00.
Closing
has the meaning set forth in
Section 3.1
.
Closing Date
has the meaning set forth in
Section 3.1
.
Code
means the Internal Revenue Code of 1986, as amended and as interpreted by the
applicable Treasury Regulations thereunder.
COGCC
has the meaning set forth in
Section 9.3(c)
.
Consent Decree
has the meaning set forth in
Section 9.3(g)
.
Contributing Parties
has the meaning set forth in the preamble.
Contributing Party Ancillary Documents
means each agreement, document, instrument or
certificate to be delivered by any Contributing Party, or any Affiliate thereof, at the Closing
pursuant to
Section 3.2
and each other document or contract entered into by any
Contributing Party, or any Affiliate thereof, in connection with this Agreement or the Closing.
Contributing Party Closing Certificate
has the meaning set forth in
Section 7.2(c)
.
Control
means, where used with respect to any Person, the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or otherwise, and the terms
"
Controlling
and
Controlled
have correlative meanings.
Deductible
has the meaning set forth in
Section 9.8(a)
.
Effective Time
has the meaning set forth in
Section 3.1
.
-3-
Environmental Activity
shall mean any investigation, study, assessment, evaluation,
sampling, testing, monitoring, containment, removal, disposal, closure, corrective action,
remediation (regardless of whether active or passive), natural attenuation, restoration,
bioremediation, response, repair, corrective measure, cleanup, pollution control or abatement that
is required or necessary under any applicable Environmental Law, including institutional or
engineering controls or participation in a governmental voluntary cleanup program to conduct
voluntary investigatory and remedial actions for the clean-up, removal or remediation of Hazardous
Substances that exceed actionable levels established pursuant to Environmental Laws, or
participation in a supplemental environmental project in partial or whole mitigation of a fine or
penalty.
Environmental Laws
means all federal, state, and local laws, statutes, rules, regulations,
orders, judgments, ordinances, codes, injunctions, decrees, Environmental Permits and other legally
enforceable requirements and rules of common law relating to (i) pollution or protection of the
environment or natural resources, (ii) any Release or threatened Release of, or any exposure of any
Person or property to, any Hazardous Substances or (iii) the generation, manufacture, processing,
distribution, use, treatment, storage, transport, disposal or handling of any Hazardous
Substances; including the federal Comprehensive Environmental Response, Compensation and Liability
Act, the Superfund Amendments and Reauthorization Act, the Resource Conservation and Recovery Act,
the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, the Toxic Substances Control
Act, the Oil Pollution Act of 1990, the Federal Hazardous Materials Transportation Law, the
Occupational Safety and Health Act, the Marine Mammal Protection Act, the Endangered Species Act,
the National Environmental Policy Act and other environmental conservation and protection laws,
each as amended through the Closing Date.
Environmental Permit
means any permit, approval, identification number, license,
registration, certification, consent, exemption, variance or other authorization required under or
issued pursuant to any applicable Environmental Law.
Equity Interest
means any capital stock, partnership interest, membership interest or other
unit of equity security, equity ownership or voting security (including any security convertible
into or exchangeable or exercisable for any of the same).
Fort Lupton Plant
means the Fort Lupton natural gas processing plant (including all
appurtenances thereto), which plant is more specifically described on
Exhibit A
.
GAAP
means generally accepted accounting principles in the United States, consistently
applied.
General Partner
has the meaning set forth in the preamble.
Governmental Entity
means any Federal, state, local, municipal or foreign court or
governmental agency, authority or instrumentality or regulatory body having jurisdiction.
GP Consideration
means 21,392 general partner units of the Partnership.
Hazardous Substance
means (i) any substance that is designated, defined or classified under
any Environmental Law as a hazardous waste, solid waste, hazardous material, pollutant,
-4-
contaminant or toxic or hazardous substance, or terms of similar meaning, or that is otherwise
regulated under any Environmental Law, including any hazardous substance as defined under the
Comprehensive Environmental Response, Compensation, and Liability Act, as amended, (ii) oil as
defined in the Oil Pollution Act of 1990, as amended, including oil, gasoline, natural gas, fuel
oil, motor oil, waste oil, diesel fuel, jet fuel and other refined petroleum hydrocarbons and
petroleum products and (iii) radioactive materials, asbestos containing materials or
polychlorinated biphenyls.
Hedging Arrangements
means the hedging arrangements substantially in the form of
Exhibit
G
.
Hydrocarbons
means oil, gas, condensate and other gaseous and liquid hydrocarbons or any
combination thereof and sulphur extracted from hydrocarbons.
Indemnified Party
means any Person entitled to indemnification in accordance with
Article IX
.
Indemnifying Party
means any Person from whom indemnification is required in accordance with
Article IX
.
Indemnity Claim
has the meaning set forth in
Section 9.4
.
Keep Whole Contract
means that Gas Processing Agreement, dated as of August 1, 1997, by and
between Amoco Production Company, in its capacity as a producer, and Amoco Production Company, in
its capacity as operator of the Wattenberg Gas Processing Plant, as amended through the date of
this Agreement.
KMGG
means Kerr-McGee Gathering LLC, a Colorado limited liability company, the name of which
will remain unchanged immediately following the consummation of the transactions contemplated by
this Agreement.
KMGG Asset Required Consents
means any consent, approval, authorization or permit of, or
filing with or notification to, any Person which was required to be obtained, made or complied with
for or in connection with any sale, assignment or transfer to KMGG of any KMGG Asset or any KMGG
Surface Contract (or any interest in any of them), and such required consent, approval,
authorization, permit, filing or notification has not been obtained, made or complied with prior to
Closing.
KMGG Assets
means the Wattenberg Gathering System and the Fort Lupton Plant and the other
assets owned, held, used or held for use by KMGG, which other assets are more specifically
described on
Exhibit C
.
KMGG Contracts
means all contracts, agreements, instruments, undertakings or commitments
(including intercompany contracts, agreements, instruments, undertakings or commitments), written
or oral, by which KMGG or any of its properties or assets are bound, or that relate to or are
otherwise applicable to KMGG or the KMGG Assets (including exchange agreements, transportation or
gathering agreements, connection or interconnect agreements, construction agreements, operating
agreements, environmental compliance agreements,
-5-
processing agreements, work orders, purchase orders, service agreements, rental agreements,
compression agreements, utility services agreements, non-disturbance agreements for the benefit of
the KMGG, fractionation agreements, and agreements for the sale and purchase of oil, gas,
casinghead gas or other Hydrocarbons or processing agreements to the extent applicable to KMGG or
any of its properties or assets).
KMGG Interest
means 100% of the limited liability company interests in KMGG.
KMGG LLC Agreement
means the limited liability company agreement of KMGG dated July 1, 2009.
KMGG Permits
has the meaning set forth in
Section 4.11
.
KMGG Surface Contracts
means all easements, KMGG Permits, licenses, servitudes,
rights-of-way, surface leases, fee interests in real property and other surface rights appurtenant
to, and used or held for use in connection with KMGG or the KMGG Assets, including those identified
on
Schedule 4.6(b)
.
Knowledge
and any variations thereof or words to the same effect means: (i) with respect to
the Contributing Parties, the actual knowledge of (a) the officers of the Contributing Parties and
their respective Affiliates and (b) the employees of Contributing Parties who have responsibility
for KMGG and who have the title of Midstream General Manager or Midstream Commercial Development
Regional Manager; and (ii) with respect to the Recipient Parties, the actual knowledge of the
officers of Recipient Parties and their respective Affiliates.
Laws
means all statutes, laws, rules, regulations, Orders, ordinances, writs, injunctions,
judgments and decrees of all Governmental Entities.
Lien
means any lien, security interest, mortgage, pledge, charge, encumbrance or right of
others.
Losses
means any losses, damages, liabilities, claims, demands, causes of action, judgments,
settlements, fines, penalties, sanctions, costs and expenses (including court costs and reasonable
attorneys and experts fees) of any and every kind or character.
Material Adverse Effect
means any effect that is material and adverse to the ownership,
operation, value, properties, assets, liabilities, financial condition, results of operations, or
business (as currently operated) of (a) KMGG, the KMGG Assets or the KMGG Interest or (b) the Fort
Lupton Plant or the Wattenberg Gathering System or the assets related thereto, or the Contributing
Parties interest therein;
provided
,
however
, that Material Adverse Effect shall not include (i)
any effect resulting from the announcement of entering into this Agreement or of the transactions
contemplated by this Agreement; (ii) any effect resulting from changes in general market, economic
or financial conditions or any outbreak of hostilities or war, (iii) any effect that affects the
Hydrocarbon exploration, production, development, processing, gathering and/or transportation
industry generally (including changes in commodity prices or general market prices in the
Hydrocarbon exploration, production, development, processing, gathering and/or transportation
industry generally) unless such effect disproportionately affects
-6-
KMGG, the KMGG Interest or the Wattenberg Gathering System, as applicable, relative to such
industry, and (iv) any effect resulting from a change in Laws.
Omnibus Agreement
means the Omnibus Agreement dated as of May 14, 2008 among the
Partnership, the General Partner and Anadarko, as amended through the date of this Agreement.
Omnibus Agreement Amendment
means an instrument substantially in the form set forth on
Exhibit F
.
Operating Costs
means all invoices, costs, expenses, disbursements and payables (as
determined in accordance with GAAP consistent with past practices) attributable to the operation
(but not the ownership) of the KMGG Assets in the ordinary course of business and regularly
invoiced to KMGG. For clarity, Operating Costs do not include, without limitation, all invoices,
costs, expenses, disbursements, payables or Losses directly or indirectly arising out of, resulting
from or attributable to: (i) actual or claimed personal injury, illness or death; property damage;
environmental damage or contamination; negligence, misconduct or failure to operate properly; other
torts; private rights of action given under any Law; violation of any Law; or breach or violation
of contract, agreement or duty; (ii) obligations to abandon, dismantle, remediate or remove
pipelines or facilities; (iii) calamity, natural disaster, casualty, fire, explosion, weather or
condemnation; (iv) claims, investigations, administrative proceedings, arbitration or litigation
directly or indirectly arising out of, resulting from or attributable to any of the foregoing; (v)
any claims for any of the foregoing or for indemnification, contribution, reimbursement or similar
matters with respect to invoices, costs, expenses, disbursements, payables or Losses of the type
described in clauses (i) through (iv), whether such claims are made pursuant to contract or
otherwise; (vi) matters similar to those described in clauses (i) through (v); and (vii) other
matters outside the ordinary course of business or related to the ownership of the KMGG Assets.
Operating Partnership
has the meaning set forth in the preamble.
Order
means any order, writ, injunction, decree, ruling, compliance or consent order or
decree, settlement agreement, schedule and similar binding legal agreement issued by or entered
into with a Governmental Entity.
Partnership
has the meaning set forth in the preamble.
Partnership Agreement Amendment
means an instrument substantially in the form set forth on
Exhibit E
.
Partnership Agreement
means the First Amended and Restated Agreement of Limited Partnership
of the Partnership, dated as of May 14, 2008, as such agreement is amended and in effect on the
date of this Agreement.
Partnership Debt
has the meaning set forth in
Section 2.3
.
Partnership Entities
means the General Partner and each member of the Partnership Group.
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Partnership Group
means the Partnership and its Subsidiaries treated as a single
consolidated entity.
Partnership Indemnified Parties
has the meaning set forth in
Section 9.3
.
Party
and
Parties
have the meanings set forth in the preamble.
Percentage of Proceeds Contract
means that Gas Processing Agreement, dated as of November
16, 1990 by and between HS Resources, Inc., as producer, and Amoco Production Company, as plant
operator, as amended through the date of this Agreement.
Permitted Liens
means (i) liens for Taxes, impositions, assessments, fees, rents or other
governmental charges levied or assessed or imposed not yet delinquent or being contested in good
faith by appropriate proceedings, provided appropriate reserves have been established with respect
to such contest, (ii) statutory liens (including materialmens, warehousemens, mechanics,
repairmens, landlords, and other similar liens) arising in the ordinary course of business
securing payments not yet delinquent or being contested in good faith by appropriate proceedings,
and (iii) utility easements, restrictive covenants and defects, imperfections or irregularities of
title that do not and could not reasonably be expected to interfere materially with the ordinary
conduct of the business of the KMGG Assets or KMGG.
Person
means any individual, firm, corporation, partnership (general or limited), limited
liability company, trust, joint venture, Governmental Entity or other entity.
Plant Accounting Agreement
means that Gas Processing and Plant Accounting Agreement, dated
March 5, 1993, by and between KN Front Range Gathering Company and Amoco Production Company, as
amended through the date of this Agreement.
Preference Right
means any right or agreement that enables any Person to purchase or acquire
the KMGG Interest or any properties or assets of KMGG (or any interest in or portion of any of
them) as a result of or in connection with (i) the sale, assignment or other transfer of the KMGG
Interest or any properties or assets of KMGG (or any interest in or portion of any of them) or (ii)
the execution or delivery of this Agreement or the consummation or performance of this Agreement or
the transactions contemplated hereby.
Recipient Party Ancillary Documents
means each agreement, document, instrument or
certificate to be delivered by any Recipient Party, or any Affiliate thereof, at the Closing
pursuant to
Section 3.3
and each other document or contract entered into by any Recipient
Party, or any Affiliate thereof, in connection with this Agreement or the Closing.
Recipient Parties
has the meaning set forth in the preamble.
Recipient Party Closing Certificate
has the meaning set forth in
Section 7.3(b)
.
Release
means any depositing, spilling, leaking, pumping, pouring, placing, emitting,
discarding, abandoning, emptying, discharging, migrating, injecting, escaping, leaching, dumping or
disposing into the environment.
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Revolving Credit Agreement
means the Revolving Credit Agreement, dated as of October 29,
2009, by and among the Partnership, Wells Fargo Bank, National Association, as Administrative
Agent, Bank of America, N.A. and DnB NOR Bank ASA, as Syndication Agents, the Bank of Nova Scotia
and BNP Paribas, as Documentation Agents and the Lenders party thereto.
Securities Act
means the Securities Act of 1933.
Special Committee
has the meaning set forth in the Partnership Agreement.
Subsidiary
means, with respect to any Person, (i) a corporation of which more than 50% of
the voting power of shares entitled (without regard to the occurrence of any contingency) to vote
in the election of directors or other governing body of such corporation is owned, directly or
indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such
Person or a combination thereof, (ii) a partnership (whether general or limited) in which more than
50% of the partnership interests (considering all of the partnership interests of the partnership
as a single class) is owned, directly or indirectly, at the date of determination, by such Person,
by one or more Subsidiaries of such Person, or a combination thereof, or (iii) any other Person
(other than a corporation or a partnership) in which such Person, one or more Subsidiaries of such
Person, or a combination thereof, directly or indirectly, at the date of determination, has (A) at
least a majority ownership interest or (B) the power to elect or direct the election of a majority
of the directors or other governing body of such Person.
Tax
or
Taxes
means (i) all taxes, assessments, duties, levies, imposts or other similar
charges imposed by a Governmental Entity, including all income, franchise, profits, capital gains,
capital stock, transfer, gross receipts, margins, sales, use, transfer, service, occupation, ad
valorem, property, excise, severance, windfall profits, premium, stamp, license, payroll,
employment, social security, unemployment, disability, environmental (including taxes under Code
Section 59A), alternative minimum, add-on, value-added, withholding (including backup withholding)
and other taxes, assessments, duties, levies, imposts or other similar charges of any kind
whatsoever (whether payable directly or by withholding and whether or not requiring the filing of a
Tax Return), and all estimated taxes, deficiency assessments, additions to tax, additional amounts
imposed by any Governmental Entity, penalties and interest, (ii) any liability for the payment of
any amounts of any of the foregoing types as a result of being a member of an affiliated,
consolidated, combined or unitary group, or being a party to any agreement or arrangement whereby
liability for payment of such amounts was determined or taken into account with reference to the
liability of any other Person, and (iii) any liability for the payment of any amounts as a result
of being a party to any Tax-Sharing Agreement or with respect to the payment of any amounts of any
of the foregoing types as a result of any express or implied obligation to indemnify any other
Person.
Tax Authority
means any Governmental Entity having jurisdiction over the assessment,
determination, collection or imposition of any Tax.
Tax Returns
means all reports, returns, statements (including estimated reports, returns or
statements) and other similar filings relating to, or required to be filed in connection with, any
Taxes.
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Tax-Sharing Agreements
means all existing contracts or arrangements (whether or not written)
regarding the sharing, allocation, or payment of Taxes or amounts in lieu of Taxes.
Term Loan Agreement
means the Term Loan Agreement to be dated as of the Closing Date, by and
among the Partnership and Wells Fargo Bank, National Association, as Administrative Agent and the
lenders party thereto.
Termination Date
has the meaning set forth in
Section 8.1(a)(ii)
.
TPH
has the meaning set forth in
Section 4.22
.
Transfer Requirements
means any consent, approval, authorization or permit of, or filing
with or notification to, any Person which is required to be obtained, made or complied with for or
in connection with any sale, assignment or transfer of the KMGG Interest.
Treasury Regulations
has the meaning set forth in
Section 2.3
.
Unit Consideration
means 1,048,196 common units of the Partnership.
Wattenberg Gathering System
means the gas gathering system (including all appurtenances
thereto), which is more specifically described on
Exhibit B
.
Wattenberg Plant
means the Wattenberg Gas Processing Plant located in Section 32, Township
3S, Range 65W, Adams County, Colorado.
WES GP
has the meaning set forth in the preamble.
Western Gas Operating
has the meaning set forth in the preamble.
WGR
has the meaning set forth in the preamble.
WGR Holdings
has the meaning set forth in the preamble.
WGRAH
has the meaning set forth in the preamble.
Section 1.2
Rules of Construction
.
(a) All article, section, schedule and exhibit references used in this Agreement are to
articles, sections, schedules and exhibits to this Agreement unless otherwise specified.
The schedules and exhibits attached to this Agreement constitute a part of this Agreement
and are incorporated herein for all purposes.
(b) If a term is defined as one part of speech (such as a noun), it shall have a
corresponding meaning when used as another part of speech (such as a verb). Terms defined
in the singular have the corresponding meanings in the plural, and vice versa. Unless the
context of this Agreement clearly requires otherwise, words importing the masculine gender
shall include the feminine and neutral genders and vice versa. The terms
includes,
include
and
including
shall be deemed to be followed by the words
without limitation
.
The words
hereof,
hereto,
hereby,
herein,
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hereunder
and words of similar import, when used in this Agreement, shall refer to
this Agreement as a whole and not to any particular section or article in which such words
appear.
(c) It is the intention of the Parties that every covenant, term and provision of this
Agreement shall be construed simply according to its fair meaning and not strictly for or
against any Party (not withstanding any rule of law requiring an agreement to be strictly
construed against the drafting party), it being understood that the Parties to this
Agreement are sophisticated and have had adequate opportunity and means to retain counsel to
represent their interests and to otherwise negotiate the provisions of this Agreement.
(d) The captions in this Agreement are for convenience only and shall not govern or be
considered a part of or affect the construction or interpretation of any provision of this
Agreement.
(e) All references to currency herein shall be to, and all payments required hereunder
shall be paid in, United States dollars.
(f) All accounting terms used herein and not expressly defined herein shall have the
meanings given to them under GAAP.
(g) Any event hereunder requiring the payment of cash or cash equivalents on a day that
is not a Business Day shall be deferred until the next Business Day without interest.
(h) Any reference to a Law shall include any amendment thereof or any successor
thereto, and any rules and regulations promulgated thereunder, in each case as existing on
the date of this Agreement.
ARTICLE II
CONTRIBUTION; CLOSING
Section 2.1
Contribution of the KMGG Interest
. At the Closing, upon the terms and subject to the
conditions set forth in this Agreement, WGRAH shall contribute, assign, transfer and convey (or
cause to be contributed, assigned, transferred and conveyed) to the Operating Partnership, and the
Operating Partnership shall accept contribution of, the KMGG Interest pursuant to the KMGG Interest
Contribution Agreement and in accordance with
Section 2.4
.
Section 2.2
Consideration
. In consideration for the contribution of the KMGG Interest, the Partnership
shall (i) distribute to WGR Holdings at Closing the Cash Consideration, (ii) issue to WGR Holdings
at Closing the Unit Consideration and (iii) issue to the General Partner the GP Consideration.
Section 2.3
Borrowing by the Partnership; Tax Treatment of Cash Consideration
. Immediately prior to
the Closing, the Partnership shall borrow $450,000,000.00 of the Cash Consideration under the Term
Loan Agreement, the Revolving Credit Agreement, or both (the
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Partnership Debt). The Parties intend that (i) the distribution of the Cash Consideration to WGR
Holdings shall be made first out of proceeds of the Partnership Debt, and such portion of the Cash
Consideration shall qualify as a debt-financed transfer under Section 1.707-5(b) of the Treasury
Regulations promulgated under the Code (the Treasury Regulations); (ii) WGRs share of the
Partnership Debt under Sections 1.752-2 and 1.707-5(a)(2)(i) of the Treasury Regulations shall be
the entire amount of the Partnership Debt; and (iii) the distribution of the Cash Consideration to
WGR Holdings in excess of amounts distributed out of proceeds of the Partnership Debt shall be made
to reimburse WGR Holdings for capital expenditures described in Section 1.707-4(d) of the Treasury
Regulations to the extent such distribution does not exceed the amount of capital expenditures
described in Section 1.707-4(d) of the Treasury Regulations. The Parties agree to act at all times
in a manner consistent with this intended treatment of the Cash Consideration and the Partnership
Debt, including disclosing the distribution of the Cash Consideration in accordance with the
requirements of Section 1.707-3(c)(2) of the Treasury Regulations.
Section 2.4
Contemplated Legal Steps
. To avoid multiple state law conveyances of the KMGG Interest,
each Party entitled to receive an interest in the KMGG Interest pursuant to this
Section
2.4
agrees that WGRAH is instructed to convey such interests to each successive Party such that
WGRAH will convey ownership of the KMGG Interest directly to the Operating Partnership in a single
state law conveyance, which shall accomplish the following discrete transfers:
(a) WGRAH distributes the KMGG Interest to WGR;
(b) WGR contributes the KMGG Interest to WGR Holdings;
(c) WGR Holdings contributes an undivided interest in the KMGG Interest to the General
Partner where:
(i) The undivided interest transferred by WGR Holdings to the General Partner
is equal to 1.98% of Net Equity; and
(ii) Net Equity is an amount equal to the gross fair market value of the KMGG
Interest
minus
the Cash Consideration to be distributed to WGR Holdings pursuant to
Section 2.2
;
(d) WGR Holdings contributes an undivided interest in the KMGG Interest to WES GP equal
to 0.02% of Net Equity;
(e) WES GP contributes an undivided interest in the KMGG Interest to the General
Partner equal to 0.02% of Net Equity;
(f) WGR Holdings and the General Partner contribute their respective undivided
interests in the KMGG Interest to the Partnership such that:
(i) The General Partner receives an increased general partner capital account
and the GP Consideration; and
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(ii) WGR Holdings receives the Cash Consideration and the Unit Consideration;
(g) The Partnership conveys an undivided 0.01% interest in the KMGG Interest to Western
Gas Operating; and
(h) The Partnership and Western Gas Operating convey their undivided interests in the
KMGG Interest to the Operating Partnership in exchange for increased capital accounts.
ARTICLE III
CLOSING
Section 3.1
The Closing
. The closing of the transactions contemplated by this Agreement (the
Closing
) shall take place at the offices of Anadarko Petroleum Corporation, 1201 Lake Robbins
Drive, The Woodlands, Texas 77380, commencing at 10:00 a.m. local time on the third Business Day
following the satisfaction or waiver of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than conditions with respect to actions the
Parties shall take at the Closing itself) or such other date as Recipient Parties and Contributing
Parties may mutually determine (the
Closing Date
), subject to the rights of the Parties under
Article VIII
;
provided
,
however
, that after the Closing has occurred, unless otherwise
agreed by the Parties, the Closing shall be deemed to have been consummated at 12:01 a.m. Houston,
Texas time on the Closing Date (the
Effective Time
).
Section 3.2
Deliveries by the Contributing Parties
. At the Closing, the Contributing Parties will
deliver (or cause to be delivered) the following:
(a) A counterpart to the KMGG Interest Contribution Agreement, duly executed by the
applicable Contributing Party or Contributing Parties;
(b) The Contributing Party Closing Certificate, duly executed by an officer of
Anadarko;
(c) A certificate under Section 1.1445-2(b)(2) of the Treasury Regulations certifying
that each applicable Contributing Party is not a foreign person within the meaning of
Section 1445(f)(3) of the Code;
(d) A counterpart to the Partnership Agreement Amendment, duly executed by the General
Partner;
(e) A counterpart to the Omnibus Agreement Amendment, duly executed by Anadarko and the
General Partner;
(f) A counterpart to the Hedging Arrangements, duly executed by the appropriate
Contributing Parties; and
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(g) Such other certificates, instruments of conveyance and documents as may be
reasonably requested by the Recipient Parties prior to the Closing Date to carry out the
intent and purposes of this Agreement.
Section 3.3
Deliveries by the Recipient Parties
. At the Closing, the Recipient Parties will deliver
(or cause to be delivered) the following:
(a) The Cash Consideration, by wire transfer to an account specified by WGR;
(b) The Unit Consideration, by issuance of a certificate reflecting the issuance of
such common units to WGR Holdings, by instruction to the Partnerships transfer agent or
otherwise;
(c) The GP Consideration, by issuance of a certificate reflecting the issuance of such
general partner units to the General Partner;
(d) A counterpart to the KMGG Interest Contribution Agreement, duly executed by the
applicable Recipient Party or Recipient Parties;
(e) The Recipient Party Closing Certificate, duly executed by an officer of the General
Partner;
(f) A counterpart to the Omnibus Agreement Amendment, duly executed by the Partnership;
(g) A counterpart to the Hedging Arrangements, duly executed by the appropriate
Recipient Parties; and
(h) Such other certificates, instruments of conveyance and documents as may be
reasonably requested by the Contributing Parties prior to the Closing Date to carry out the
intent and purposes of this Agreement.
Section 3.4
Closing Costs; Transfer Taxes and Fees
.
(a)
Allocation of Costs.
The Contributing Parties shall be responsible for and
pay all sales, transfer, use and similar Taxes arising from or associated with the transfer
of the KMGG Interest (other than Taxes based on income) and all costs and expenses
(including recording fees and real estate transfer taxes and real estate transfer stamps)
incurred in connection with obtaining or recording title to the KMGG Interest.
(b)
Reimbursement.
If any Recipient Party, on the one hand, or any
Contributing Party, on the other hand, pays any tax agreed to be borne by the other Party
under this Agreement, such other Party shall promptly reimburse the paying Party for the
amounts so paid. If any Party receives any tax refund or credit applicable to a tax paid by
another Party hereunder, the receiving Party shall promptly pay such amounts to the Party
entitled thereto.
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Section 3.5
Receipts and Credits
.
(a) Subject to the terms hereof, all monies, proceeds, receipts, credits and income
attributable to the KMGG Assets (as determined in accordance with GAAP consistent with past
practices) (i) for all periods of time at, from and after 12:01 a.m. Houston, Texas time on
the first day of July 2010 (the
Accounting Time
), shall be the sole property and
entitlement of KMGG, and, to the extent received by any Contributing Party or one of its
Affiliates, shall be promptly accounted for and transmitted to KMGG and (ii) for all periods
of time prior to the Accounting Time, shall be the sole property and entitlement of the
Contributing Parties and, to the extent received by KMGG, shall be promptly accounted for
and transmitted to a Contributing Party or Anadarko. The Parties acknowledge that because
of cash management systems in place, all monies, proceeds, receipts, credits and income
attributable to the KMGG Assets, to the extent actually received by KMGG or a Contributing
Party prior to the Closing Date, will have already been transmitted to a Contributing Party
or Anadarko and therefore that all monies, proceeds, receipts, credits and income
attributable to the KMGG Assets from and after the Accounting Time must be transmitted to
KMGG.
(b) In addition, subject to the terms hereof, all invoices, costs, expenses,
disbursements and payables attributable to the KMGG Assets (as determined in accordance with
GAAP consistent with past practices) (A) for all periods of time at, from and after the
Effective Time, shall be the sole obligation of KMGG, and KMGG shall promptly pay or, if
paid by any Contributing Party, promptly reimburse such Contributing Party for, same and (B)
for all periods of time prior to the Effective Time, shall be the sole obligation of the
Contributing Parties, and the Contributing Parties shall promptly pay or, if paid by KMGG or
any Recipient Party, promptly reimburse KMGG or such Recipient Party for, same.
(c) Notwithstanding
Section 3.5(b)
, subject to the terms hereof, (A) all
Operating Costs attributable to the operation of the KMGG Assets in the ordinary course of
business during the period from the Accounting Time to the Effective Time shall be the sole
obligation of KMGG, and (B) KMGG shall promptly pay or, if paid by any Contributing Party,
promptly reimburse such Contributing Party for, same, but in each case only up to the amount
of all monies, proceeds, receipts, credits and income attributable to the KMGG Assets
actually received by KMGG attributable to the operation of the KMGG Assets during the period
from the Accounting Time to the Effective Time.
(d) Other than Operating Costs (to the extent provided in Section 3.5(c)), the
Contributing Parties shall be solely responsible for, and shall indemnify and hold the
Partnership Indemnified Parties harmless from and against, all invoices, costs, expenses,
disbursements, payables and Losses paid, incurred or suffered by the Contributing Parties,
the Partnership Indemnified Parties, KMGG or the KMGG Assets arising out of or attributable
to the ownership or operation of the KMGG Assets during the period from the Accounting Time
to the Effective Time. The indemnification provided in this
Section 3.5(d)
is in
addition to, and is not subject to the provisions of, the indemnification in
Article
IX
, including any limitations or Deductible therein.
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(e) Any amounts owing to KMGG or a Party in accordance with
Section 3.5(a), (b),
(c) or (d)
shall be settled among KMGG and the Parties promptly. For avoidance of
doubt, adjustments and other payments pursuant to this
Section 3.5
shall not
constitute adjustments of the Cash Consideration, Unit Consideration or GP Consideration.
(f) For a period of six months following the Closing Date, the Parties shall grant to
each other full access to all relevant books and records and relevant personnel to allow
each of them to confirm the payments made under this
Section 3.5
, but only to the
extent the granting Party may do so without breaching any contractual restriction binding on
such Party,
provided
that such Party will use commercially reasonable methods to have such
restriction(s) waived for such purpose.
Section 3.6
Prorations
. On the Closing Date, or as promptly as practicable following the Closing Date,
but in no event later than 60 calendar days thereafter, the real and personal property taxes,
water, gas, electricity and other utilities, local business or other license fees to the extent
assigned and other similar periodic charges payable with respect to KMGG or the KMGG Assets (in
each of the foregoing cases, to the extent the same constitute Operating Costs) shall be prorated
between KMGG, on the one hand, and the Contributing Parties, on the other hand, with the
Contributing Parties being responsible for amounts related to the period up to but excluding the
Accounting Time and KMGG being responsible for amounts related to the period at and after the
Accounting Time. If the final real property tax rate or final assessed value for the current tax
year is not established by the Closing Date, the prorations shall be made on the basis of the rate
or assessed value in effect for the preceding tax year and shall be adjusted when the exact amounts
are determined. All such prorations shall be based upon the most recent available assessed value
available prior to the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ANADARKO AND THE
CONTRIBUTING PARTIES
Anadarko and the Contributing Parties, jointly and severally, hereby represent and warrant to
the Recipient Parties as follows:
Section 4.1
Organization
. Each Contributing Party is an entity duly organized, validly existing and in
good standing under the Laws of its state of organization and has all requisite entity power and
authority to own the KMGG Interest. KMGG is a limited liability company duly organized, validly
existing and in good standing under the Laws of its state of organization and has all requisite
entity power and authority to own, operate and lease its assets and to carry on its business as now
conducted, and is duly qualified to do business as a foreign entity in each jurisdiction where its
assets are located or its business is conducted.
Section 4.2
Authorization; Enforceability
. Each Contributing Party has, as appropriate, full corporate
or limited liability company power and authority to execute, deliver, and perform its obligations
under this Agreement and any Contributing Party Ancillary
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Documents to which it is a party. The execution, delivery, and performance by each Contributing
Party of this Agreement and the Contributing Party Ancillary Documents, and the consummation by
such Contributing Party of the transactions contemplated hereby and thereby, have been duly
authorized by all necessary corporate or limited liability company action of the Contributing
Parties. This Agreement has been duly executed and delivered by each Contributing Party and
constitutes (and each Contributing Party Ancillary Document executed or to be executed by each
Contributing Party has been, or when executed will be, duly executed and delivered by such
Contributing Party and constitutes, or when executed and delivered will constitute), a valid and
legally binding obligation of such Contributing Party, enforceable against it in accordance with
its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar Laws affecting creditors rights
and remedies generally and (ii) equitable principles which may limit the availability of certain
equitable remedies (such as specific performance) in certain instances.
Section 4.3
No Conflicts
. Subject to compliance with the Preference Rights and Transfer Requirements
set forth in
Schedule 4.4
, the execution and delivery by each Contributing Party of this
Agreement and the other Contributing Party Ancillary Documents to which it is a party, and the
performance of its obligations hereunder and thereunder, do and will not, and the consummation of
the transactions contemplated hereby and thereby will not, (i) violate, conflict with, or result in
any breach of any provision of, or allow or give to others any right to exercise any rights or
remedies under, such Contributing Partys organizational documents or any material agreement or
instrument to which it is a party or by which it is bound, or the KMGG LLC Agreement or any other
organizational document of KMGG, (ii) violate any Law applicable to any Contributing Party, the
KMGG Assets or KMGG, or (iii) violate, result in any breach of, or constitute a default under, or
give to others any rights of termination, acceleration or cancellation of, or result in the
creation of any Lien (other than a Permitted Lien) on any of the KMGG Assets or the KMGG Interest
pursuant to, the KMGG Contracts or any other note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument relating to such assets or properties or by
which any of such assets or properties is bound or affected, except (in the case of (iii) above)
for (a) rights to consent by, required notices to, filings with, approval or authorizations of, or
other actions by any Governmental Entity where the same are not required prior to the sale,
assignment or contribution of such asset or are customarily obtained subsequent to the sale,
assignment or contribution thereof, and (b) violations, breaches, defaults or Liens which would
not, individually or in the aggregate, have a Material Adverse Effect.
Section 4.4
Preference Rights and Transfer Requirements
. None of the KMGG Assets, the KMGG Interest,
or any portion of any of them is subject to any Preference Right or Transfer Requirement which may
be applicable to the transactions contemplated by this Agreement, except as set forth in
Schedule 4.4
.
Section 4.5
Litigation
. Except as disclosed on
Schedule 4.5
, (i) there are no claims, demands,
actions, suits, or proceedings (including condemnation, expropriation, or forfeiture proceedings)
pending before any Governmental Entity or arbitrator (or, to the Contributing Parties Knowledge,
threatened in writing) against a Contributing Party or any of its Affiliates, KMGG, the KMGG Assets
or the KMGG Interest or the ownership or operation of any thereof (a) seeking to prevent the
consummation of the transactions contemplated hereby, or (b) which,
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individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(ii) no event has occurred nor does any circumstance exist that may give rise to, or serve as a
basis for, the commencement of any proceeding described in the immediately foregoing clause (i);
and (iii) there is no Order relating to the use or ownership of the KMGG Assets or the KMGG
Interest to which a Contributing Party, its Affiliates, or any of the KMGG Assets, the KMGG
Interest or KMGG is subject.
Section 4.6
Title
.
(a) WGRAH has good and valid title to, holds of record and owns beneficially the KMGG
Interest free and clear of any Liens other than transfer restrictions imposed thereon by
applicable securities Laws and as set forth on
Schedule 4.6(a)
. There are no
outstanding options, warrants, rights or other securities convertible into or exchangeable
or exercisable for Equity Interests of KMGG, any other commitments or agreements providing
for the issuance of additional Equity Interests or the repurchase or redemption of Equity
Interests of KMGG, and there are no agreements or rights of any kind which may obligate KMGG
to issue, purchase, redeem or otherwise acquire any of its Equity Interests, other than as
expressly set forth in the KMGG LLC Agreement. Except as expressly set forth in the KMGG
LLC Agreement (a true, correct and complete copy of which has been provided to the Recipient
Parties), there are no voting agreements, proxies or other similar agreements or
understandings with respect to the Equity Interests of KMGG. The KMGG Interest is duly
authorized, validly issued and outstanding and fully paid, and was issued free of preemptive
rights and in compliance with applicable Laws. Immediately after the Closing, the Recipient
Parties will own, beneficially and of record, the KMGG Interest. WGRAH is the sole member
of KMGG, has not resigned as such, and has taken no action, and no event has occurred and no
circumstances exist, that would cause it to cease to be a member. As the sole member of
KMGG, WGRAH is in compliance with and has performed its obligations under the KMGG LLC
Agreement.
(b) Except as set forth on
Schedule 4.6(b)
, KMGG is the owner of valid and
indefeasible easement rights, leasehold and/or fee ownership interests (including rights of
way) in and to the lands on which are located any KMGG Assets sufficient to enable KMGG to
use or operate the KMGG Assets in substantially the same manner that the KMGG Assets were
used and operated by KMGG immediately prior to the Closing Date. A true and complete list
of all material KMGG Surface Contracts is set forth on
Schedule 4.6(b)
. KMGG has
good and valid title in fee to all real property and interests in real property constituting
part of the KMGG Assets and purported to be owned in fee, and good and valid title to the
leasehold estates in all other real property and interests in real property (including
rights of way) constituting part of the KMGG Assets, in each case except as would not have a
Material Adverse Effect. KMGG owns all such KMGG Surface Contracts, real property and
interests in real property free and clear of any Liens other than Permitted Liens. KMGG has
good and marketable title to all tangible personal property included in the KMGG Assets,
free and clear of all Liens other than Permitted Liens, other than tangible personal
property owned on the date of this Agreement but subsequently sold or otherwise disposed of
in the ordinary course of business consistent with prior practice.
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Section 4.7
Taxes and Assessments
.
(a)
KMGG
. Except as set forth on
Schedule 4.7(a)
, with respect to KMGG
(i) all Tax Returns required to be filed have been duly filed on a timely basis with the
appropriate Tax Authority, and are true, correct and complete in all material respects, (ii)
all Taxes due and owing (whether or not shown as due on any Tax Returns) have been timely
paid in full, (iii) there are no Liens on any of the assets of KMGG that arose in connection
with any failure (or alleged failure) to pay any Tax, (iv) there is no claim, action, or
proceeding pending by any applicable Tax Authority in connection with any Tax, (v) no Tax
Returns are now under audit or examination by any Tax Authority, (vi) there are no
agreements or waivers providing for an extension of time with respect to the filing of any
Tax Returns or the assessment or collection of any such Tax, (vii) no written claim has been
made by any Tax Authority in a jurisdiction where KMGG does not file a Tax Return that it is
or may be subject to taxation in that jurisdiction, (viii) KMGG is not a party to any
Tax-Sharing Agreement, or is otherwise liable for the Taxes of any other Person (including
as a transferee or successor), (ix) no power of attorney that is currently in force has been
granted with respect to any matter relating to Taxes that could affect KMGG, and (xi) KMGG
has not, during any period for which the statute of limitations for any relevant Tax has not
expired, participated in any listed transaction required to be disclosed under Treasury
Regulation Section 1.6011-4.
(b)
Tax Classification
. KMGG is disregarded as an entity separate from its
owner for federal income tax purposes. The classification for federal income tax purposes of
KMGG will not change after the Closing by reason of any action taken by any of the
Contributing Parties on or before the Closing Date or by reason of any action taken on or
before the Closing Date by any Person who was at the time such action was taken an Affiliate
of any of the Contributing Parties.
(c)
Qualifying Income
. In the 12 month period ended December 31, 2009, more
than 90% of the gross income (as determined for federal income tax purposes) of the
businesses conducted by KMGG was qualifying income, within the meaning of Section 7704(d) of
the Code. The Contributing Parties expect that more than 90% of the gross income of the
business that is to be conducted by KMGG in 2010 will be such qualifying income, provided
that no significant change occurs after the Closing Date with respect to the methods by
which the KMGG Assets generate revenue. No action has been taken, or is contemplated, by
any Contributing Party or KMGG that is expected to result in a significant change in the
methods by which the KMGG Assets generate revenue.
Section 4.8
Compliance With Laws
. Except as set forth in
Schedule 4.8
, the KMGG
Assets, the KMGG Interest and KMGG are, and the ownership and operation of KMGG, the KMGG Interest
and the KMGG Assets are, in compliance with the provisions and requirements of all Laws of all
Governmental Entities having jurisdiction with respect to KMGG, the KMGG Interest or the KMGG
Assets, or the ownership, operation, development, maintenance, or use of any thereof, except where
the failure to so comply would not have a Material Adverse Effect. Notwithstanding the foregoing,
the Contributing Parties make no representation or warranty, express or implied, under this
Section 4.8
relating to any Environmental Activity or Environmental Law, which are
addressed in
Section 4.9
.
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Section 4.9
Environmental Matters
. To the Knowledge of the Contributing Parties, except as
set forth on
Schedule 4.9
:
(a) The operations of KMGG are in compliance in all material respects with all
Environmental Laws, which compliance includes the possession and maintenance of, and
compliance with, all material Environmental Permits required under all applicable
Environmental Laws;
(b) The Contributing Parties and KMGG have not caused or allowed the generation, use,
treatment, manufacture, storage or disposal of any Hazardous Substance at, on or from the
KMGG Assets, except in accordance with all applicable Environmental Laws;
(c) None of the Contributing Parties or KMGG is the subject of any outstanding
administrative or judicial order of judgment, agreement or arbitration award from any
Governmental Entity under any Environmental Laws relating to the KMGG Assets and requiring
remediation or the payment of a fine or penalty; and
(d) None of the Contributing Parties or KMGG is subject to any action pending or
threatened in writing, whether judicial or administrative, alleging noncompliance with
Environmental Laws or any other environmental matter, including any Environmental Activity,
relating to the KMGG Assets.
Section 4.10
Brokers and Finders
. No investment banker, broker, finder, financial advisor
or other intermediary has been retained by or is authorized to act on behalf of any of the
Contributing Parties or any Affiliate thereof who is entitled to receive from any Party or its
Affiliates any fee or commission in connection with the transactions contemplated by this
Agreement.
Section 4.11
Permits
. Except as set forth in
Schedule 4.11
, KMGG has obtained and
is maintaining all permits, licenses, variances, exemptions, Orders, franchises, consents,
registrations, authorizations, permissions and approvals of all Governmental Entities necessary or
desirable for the lawful ownership, lease and operation of KMGG and its business and assets (the
"
KMGG Permits
), the loss of which would, individually or in the aggregate, have a Material Adverse
Effect, in compliance with all Laws and the terms and conditions of such KMGG Permits. Except as
set forth in
Schedule 4.11
, no KMGG Permits will be subject to suspension, modification,
revocation or nonrenewal as a result of the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby. All KMGG Permits that are held in the name
of any employee, officer, director, stockholder, agent or otherwise on behalf of KMGG or the KMGG
Assets shall be deemed included under the warranty in this Section.
-20-
Section 4.12
Contracts
.
Schedule 4.12
sets forth a complete and accurate list of
all material KMGG Contracts. The Contributing Parties have provided true, correct and complete
copies of all material KMGG Contracts to the Recipient Parties. None of KMGG, any Contributing
Party nor, to the Knowledge of the Contributing Parties, any other Person, is in default under any
material KMGG Contract except as disclosed on
Schedule 4.12
. Except as set forth in
Schedule 4.12
, each material KMGG Contract (other than such Contracts with respect to which
all performance and payment obligations have been fully performed or otherwise discharged by all
parties thereto prior to the Closing) (i) is in full force and effect and (ii) represents the
legal, valid and binding obligation of KMGG, any applicable Contributing Party and, to the
Knowledge of the Contributing Parties, the other parties thereto, in each case enforceable in
accordance with its terms. Except as disclosed on
Schedule 4.12
, there are no material
Contracts with Affiliates of a Contributing Party that will be binding on KMGG or any of its assets
after Closing. Except as set forth in
Schedule 4.12
, KMGG is not, no Contributing Party is
and, to the Knowledge of the Contributing Parties, no other party is in breach of any KMGG
Contract, no notice of default or breach has been received or delivered by KMGG or any Contributing
Party under any KMGG Contract, the resolution of which is currently outstanding, and there are no
current notices received by KMGG or any Contributing Party of the exercise of any premature
termination, price redetermination, market-out or curtailment of any KMGG Contract.
Section 4.13
Condition of Assets
(a) . There are no material structural defects
relating to any of the KMGG Assets, and the KMGG Assets are in good repair, working order and
operating condition, ordinary wear and tear excepted, and are adequate for the operation of the
KMGG Assets consistent with past business practices. To the Knowledge of the Contributing Parties,
all improvements to the real property owned or used in connection with the KMGG Assets do not
encroach in any material respect on property of others (other than encroachments that would not
materially impair the operations of the KMGG Assets). There is no pending or, to the Knowledge of
the Contributing Parties, threatened condemnation of any part of the KMGG Assets by any
Governmental Entity which would have a material adverse effect on the ownership or operation of the
KMGG Assets.
Section 4.14
Matters Relating to KMGG
. KMGG owns no Equity Interest in any Person, is
party to no contracts other than the KMGG Contracts, has no material assets other than the KMGG
Assets described in
Exhibits A, B and C
, and has no material liabilities or obligations of
any kind or character other than those set forth on
Schedule 4.14
, all of which arise out
of its construction and/or ownership of the KMGG Assets or status as a party to the KMGG Contracts.
Section 4.15
No Undisclosed Liabilities; Accuracy of Data
.
(a) To the Knowledge of the Contributing Parties, all information that has been made
available to the Recipient Parties and their representatives by any Contributing Party or
any of their directors, partners, officers, employees, agents, advisors or representatives
in connection with this negotiation and execution of this Agreement and the transactions
contemplated hereby, is complete and correct in all material respects and does not contain
any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein not
-21-
misleading in any material respect in light of the circumstances under which such
statements were made.
(b)
Schedule 4.15
sets forth all bonds, letters of credit and guarantees posted
as of the date of this Agreement by KMGG or any Contributing Party with any Governmental
Entity or third Person relating to the KMGG Assets.
Section 4.16
Absence of Certain Changes
. Since December 31, 2009, (i) the KMGG Assets and
KMGG have been operated only in the ordinary course of business consistent with past practices of
the Contributing Parties and KMGG, (ii) there has not been any material damage, destruction or loss
with respect to KMGG or the KMGG Assets, and (iii) except as disclosed on Schedule 4.16, neither
KMGG nor the KMGG Assets have become subject to any material obligation or liability, other than
those contained in approved budgets, true and complete copies of which have been delivered to the
Recipient Parties, incurred in the ordinary course of business consistent with past practice since
December 31, 2009, or otherwise permitted under this Agreement to be incurred between the date
hereof and the Closing Date.
Section 4.17
Sufficiency of the Assets
.
(a) The KMGG Assets constitute all of the assets related to the ownership, use and
operation of the Wattenberg Gathering System and are sufficient to permit KMGG to own and
operate the Wattenberg Gathering System and the Fort Lupton Plant in the manner the business
represented thereby was conducted by KMGG on the date of this Agreement and immediately
prior to the Closing Date.
(b) Except as listed on
Schedule 4.17
, (i) there are no obligations under the
terms of the instruments creating the possessory interests of KMGG in the KMGG Assets
requiring the payment of any money to permit the continued use of the rights granted by such
instruments and (ii) there are no provisions permitting the termination of any instrument
creating the possessory interests of KMGG in the KMGG Assets prior to the abandonment of the
improvements thereon established by the respective instruments or unless such termination is
caused by the occurrence of an event of default under the terms of such instruments, in each
case outside the ordinary course of business or that would have a Material Adverse Effect.
Section 4.18
Regulatory Matters
.
(a) KMGG is not regulated as a common carrier under applicable Law;
(b) The assets of KMGG are intrastate pipelines and not currently subject to regulation
by the United States Federal Energy Regulatory Commission; and
(c) No assets of KMGG were acquired through the use or threatened use of eminent domain
by KMGG or a Contributing Party or, to the Knowledge of the Contributing Parties, by any
other Person.
Section 4.19
Outstanding Capital Commitments
. As of the date of this Agreement, there are
no outstanding capital commitments or other expenditure commitments or budgets of
-22-
KMGG which will require any Contributing Party or Recipient Party to make capital contributions to
KMGG in respect of the KMGG Interest other than those shown on
Schedule 4.19
.
Section 4.20
Insurance
.
Schedule 4.20
lists all insurance policies separately
maintained by (or on behalf of) the Contributing Parties with respect to KMGG, the KMGG Assets and
the KMGG Interest.
Section 4.21
Employees; Labor Relations
. KMGG has no employees.
Section 4.22
Management Projections and Budgets
. The projections and budgets provided to
the Partnership (including those provided to Tudor, Pickering, Holt & Co., LLC (
TPH
), the
financial advisor to the Special Committee), by the Contributing Parties as part of the
Partnerships review in connection with this Agreement have a reasonable basis and are consistent
with the Contributing Parties managements current expectations. The other financial and
operational information provided by the Contributing Parties to TPH as part of its review of the
proposed transaction for the Special Committee is complete and correct in all material respects for
the periods covered, and is derived from and is consistent with the Contributing Parties and
KMGGs books and records.
Section 4.23
Investment
.
The Contributing Parties (which for purposes of this Section
include any Anadarko Entity designated by Anadarko to receive any portion of the Unit
Consideration) are not acquiring the Unit Consideration with a view to or for sale in connection
with any distribution thereof or any other security related thereto in violation of the Securities
Act or any state securities Laws. The Contributing Parties are familiar with investments of the
nature of the Unit Consideration, understand that this investment involves substantial risks, have
adequately investigated the Partnership and the Unit Consideration, and have substantial knowledge
and experience in financial and business matters such that they are capable of evaluating, and have
evaluated, the merits and risks inherent in acquiring the Unit Consideration, and are able to bear
the economic risks of such investment. The Contributing Parties have had the opportunity to visit
with the Partnership and meet with its officers and other representatives to discuss the business,
assets, liabilities, financial condition, and operations of the Partnership, have received all
materials, documents and other information that the Contributing Parties deem necessary or
advisable to evaluate the Partnership and the Unit Consideration, and have made their own
independent examination, investigation, analysis and evaluation of the Partnership and the Unit
Consideration, including their own estimate of the value of the Unit Consideration. The
Contributing Parties have undertaken such due diligence (including a review of the properties,
liabilities, books, records and contracts of the Partnership) as the Contributing Parties deem
adequate. The Contributing Parties acknowledge that the common units constituting the Unit
Consideration have not been registered under applicable federal and state securities laws and that
the such common units may not be sold, transferred, offered for sale, pledged, hypothecated or
otherwise disposed of unless such transfer, sale, assignment, pledge, hypothecation or other
disposition is registered under applicable federal and state securities laws or pursuant to an
exemption from registration under any federal or state securities laws, and that the certificates
representing such common units will bear a legend to the foregoing effect.
-23-
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE RECIPIENT PARTIES
The Recipient Parties, jointly and severally, hereby represent and warrant to the Contributing
Parties as follows:
Section 5.1
Organization of Recipient
. Each Recipient Party is an entity duly organized,
validly existing and in good standing under the Laws of its state of organization, and has all
requisite entity power and authority to own the KMGG Interest.
Section 5.2
Authorization; Enforceability
. Each Recipient Party, as appropriate, has full
partnership or limited liability company power and authority to execute, deliver, and perform its
obligations under this Agreement and any Recipient Party Ancillary Documents to which it is a
party. The execution, delivery, and performance by each Recipient Party of this Agreement and the
Recipient Party Ancillary Documents and the consummation by such Recipient Party of the
transactions contemplated hereby and thereby, have been duly authorized by all necessary
partnership or limited liability company action, as appropriate, of the Recipient Parties. This
Agreement has been duly executed and delivered by each Recipient Party and constitutes (and each
Recipient Party Ancillary Document executed or to be executed by each Recipient Party has been, or
when executed will be, duly executed and delivered by such Recipient Party and constitutes), or
when executed and delivered will constitute, a valid and legally binding obligation of the
Recipient Party, enforceable against it in accordance with its terms, except as such enforceability
may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar Laws affecting creditors rights and remedies generally and (ii)
equitable principles which may limit the availability of certain equitable remedies (such as
specific performance) in certain instances.
Section 5.3
No Conflicts
. The execution and delivery by each Recipient Party of this
Agreement and the other Recipient Party Ancillary Documents to which it is a party, and the
performance of its obligations hereunder and thereunder, do not, and the consummation of the
transactions contemplated hereby and thereby will not, (i) violate, conflict with, or result in any
breach of any provision of such Recipient Partys organizational documents or any agreement or
instrument to which it is a party or by which it is bound, or (ii) violate any Law applicable to
such Recipient Party, except in the case of (ii) above for violations which would not have a
material adverse effect on such Recipient Partys ability to consummate the transactions
contemplated by this Agreement.
Section 5.4
Litigation
. Except as set forth in
Schedule 5.4
, there are no claims,
demands, actions, suits, or proceedings pending before any Governmental Entity or arbitrator or, to
the Recipient Parties Knowledge, threatened in writing against any Recipient Party or any of its
Affiliates which are reasonably likely to impair materially the ability of the Recipient Parties to
perform their obligations under this Agreement or the Recipient Party Ancillary Documents.
Section 5.5
Brokers Fees
. Except for TPH, no investment banker, broker, finder, financial
advisor or other intermediary has been retained by or is authorized to act on behalf of any of the
Recipient Parties or any of their Affiliates who is entitled to receive from any Party or
-24-
any of its Affiliates any fee or commission in connection with the transactions contemplated by
this Agreement.
Section 5.6
Investment
. The Recipient Parties are not acquiring the KMGG Interest with a
view to or for sale in connection with any distribution thereof in violation of the Securities Act
or any state securities Laws. The Recipient Parties have such knowledge and experience in
financial and business matters that they are capable of evaluating the merits and risks of an
investment in the KMGG Interest. The Recipient Parties acknowledge that the KMGG Interest has not
been registered under applicable federal and state securities Laws and that the KMGG Interest may
not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of unless
such transfer, sale, assignment, pledge, hypothecation or other disposition is registered under
applicable federal and state securities Laws or pursuant to an exemption from registration under
any federal or state securities Laws.
ARTICLE VI
COVENANTS
Section 6.1
Conduct of Business
. Except as specifically provided in this Agreement or as
expressly agreed to in writing by the Partnership, during the period from the date of this
Agreement until the Closing, each Contributing Party shall (i) cause KMGG to own, operate and
maintain the KMGG Assets in all material respects according to its usual and ordinary course of
business consistent with past practice, (ii) cause KMGG to conduct its operations in all material
respects according to its usual and ordinary course of business consistent with its past practice
and (iii) cause KMGG to preserve intact its assets and its current business organization and
preserve its relationships with customers, suppliers, licensors, licensees, advertisers,
distributors, shippers and others having business dealings with it. Without limiting the
generality of the foregoing, except as expressly provided in this Agreement or as expressly agreed
to in writing by the Partnership, the Contributing Parties shall not agree to, promote, or vote or
cause to be voted the KMGG Interest in favor of, or permit KMGG to:
(a) declare, set aside or pay any dividends, or make any distributions, in respect of
its Equity Interests; or repurchase, redeem or otherwise acquire any such Equity Interests;
(b) merge into or with or consolidate with any other Person or acquire all or
substantially all of the business or assets of any Person or other entity;
(c) make any change in its organizational documents or governing instruments;
(d) purchase any securities of any Person, except short-term debt securities of
governmental entities, or make any investment in any corporation, partnership, joint venture
or other business enterprise;
(e) increase its indebtedness, or incur any obligation or liability, direct or
indirect, other than the incurrence of liabilities pursuant to existing agreements in the
ordinary course of business consistent with past practice;
-25-
(f) (i) issue or sell any membership interests or other Equity Interests in KMGG, (ii)
amend any of the terms of any such interests outstanding as of the date hereof, or (iii)
admit any new members;
(g) adopt a plan of complete or partial liquidation or resolutions providing for or
authorizing its liquidation, dissolution, recapitalization, restructuring, or other
reorganization; or
(h) make any capital commitments or other expenditure commitments or change any budgets
of KMGG which will require any Recipient Party to make any capital contributions to KMGG in
respect of the KMGG Interest other than those shown on
Schedule 4.19
.
Section 6.2
Access
. From the date of this Agreement until the Closing Date, each
Contributing Party shall (and, as applicable, shall cause KMGG to), upon reasonable advance notice
by the Partnership, (i) provide each Recipient Party and its representatives reasonable access,
during normal business hours, to the KMGG Assets and KMGG and (ii) furnish to each Recipient Party
such documents and information in the possession or control of Contributing Parties concerning the
KMGG Assets, KMGG and the KMGG Interest, as the Partnership from time to time may reasonably
request, but only to the extent that Contributing Parties may comply with the covenants in clause
(i) and (ii) above without breaching any confidentiality obligation or other contractual
restriction binding on any Contributing Party.
Section 6.3
Additional Agreements
. Subject to the terms and conditions of this Agreement,
each of the Parties shall use its commercially reasonable efforts to do, or cause to be taken all
action and to do, or cause to be done, all things necessary, proper, or advisable to consummate and
make effective the transactions contemplated by this Agreement, including the fulfillment of the
conditions set forth in
Article VII
, to the extent that the fulfillment of such conditions
is within the control of such Party; provided, however
,
that in no event shall any Party or its
Affiliates be required to divest any interest that they may have in any material assets or
business.
Section 6.4
Replacement of Bonds, Letters of Credit and Guarantees
. The Parties understand
that none of the bonds, letters of credit or guarantees, if any, set forth on
Schedule 4.15
posted by any Contributing Party with any Governmental Entity or third Person and relating to the
KMGG Interest are to be transferred to the Recipient Parties. The Recipient Parties shall use
commercially reasonable efforts to obtain, or cause to be obtained in the name of a Recipient
Party, replacements for such bonds, letters of credit and guarantees, and shall use commercially
reasonable efforts to cause, effective on or promptly after the Closing, the cancellation or return
to the Contributing Parties of such bonds, letters of credit and guarantees posted by such
Contributing Party, but only to the extent such replacements are necessary or required under the
KMGG Contracts or by applicable Law.
Section 6.5
General Matters
. The Recipient Parties shall use commercially reasonable
efforts to take all action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this Agreement, including the
Contributing Parties conditions to closing in
Section 7.3
. Anadarko and the Contributing
Parties
-26-
shall use commercially reasonable efforts to take all action and to do all things necessary,
proper, or advisable in order to consummate and make effective the transactions contemplated by
this Agreement, including the Recipient Parties conditions to closing in
Section 7.2
.
Section 6.6
KMGG Interest Matters
. Until the Closing, WGRAH will not resign as the sole
member of KMGG.
Section 6.7
Required Consents
. In the event any of the KMGG Asset Required Consents have
not been obtained, made or complied with as of the Closing, the Contributing Parties will, and will
cause their Affiliates to, obtain, make or comply with promptly after Closing any such KMGG Asset
Required Consents.
ARTICLE VII
CONDITIONS TO CLOSING
Section 7.1
Conditions to Each Partys Obligation to Close
. The obligations of the Parties
to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction,
at or prior to the Closing, of each of the following conditions:
(a)
No Restraint.
No temporary restraining order, preliminary or permanent
injunction or other Order issued by any Governmental Entity or other legal restraint or
prohibition preventing the consummation of the transactions contemplated by this Agreement
shall be in effect.
(b)
Legality of Transactions.
No action shall have been taken nor any Law
shall have been enacted by any Governmental Entity that makes the consummation of the
transactions contemplated by this Agreement illegal.
(c)
Opinion of Financial Advisor to Special Committee.
The Special Committee
shall have received the opinion, in form and substance satisfactory to the Special
Committee, of TPH, the financial advisor to the Special Committee, that the transactions
contemplated by this Agreement are fair to the Partnership from a financial point of view,
and such opinion shall not have been withdrawn.
Section 7.2
Conditions to the Recipient Parties Obligation to Close
. The obligation of
the Recipient Parties to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction (or waiver by the Partnership in its sole discretion), at or prior to
the Closing, of each of the following conditions:
(a)
Preference Rights and Transfer Requirements.
With respect to each
Preference Right, (i) each holder of such Preference Right has waived such Preference Right
or (ii) the time in which such Preference Right may be exercised has expired and no suit,
action or other proceeding has been initiated by a third party seeking to restrain, enjoin
or otherwise prohibit the consummation of the transactions contemplated hereby in connection
with a claim to enforce such Preference Right. All Transfer Requirements related to the
KMGG Interest have been complied with or otherwise satisfied.
-27-
(b)
Representations and Warranties.
The representations and warranties set
forth in
Article IV
shall be true and correct in all material respects (other than
representations and warranties that are already qualified as to materiality or Material
Adverse Effect, which representations and warranties shall be true and correct in all
respects) as of the Closing Date as though made on and as of the Closing Date, and the
Recipient Parties shall have received a certificate to such effect signed on behalf of
Anadarko and the Contributing Parties by an officer of Anadarko.
(c)
Performance of Obligations.
The Contributing Parties shall have performed
in all material respects (other than covenants and obligations that are already qualified as
to materiality or Material Adverse Effect, which covenants and obligations shall have been
performed in all respects) all covenants and obligations required to be performed by the
Contributing Parties under this Agreement prior to or on the Closing Date, and the Recipient
Parties shall have received a certificate to such effect signed on behalf of the
Contributing Parties by an officer of Anadarko (such certificate, together with the
certificate described in
Section 7.2(b)
, the
Contributing Party Closing
Certificate
).
(d)
Contributing Party Ancillary Documents.
The Contributing Parties shall
have delivered, or caused to be delivered, to the Recipient Parties the Contributing Party
Ancillary Documents required under
Section 3.2
.
Section 7.3
Conditions to the Contributing Parties Obligation to Close
. The obligation of
the Contributing Parties to consummate the transactions contemplated by this Agreement shall be
subject to the satisfaction (or waiver by Anadarko), at or prior to the Closing, of each of the
following conditions:
(a)
Representations and Warranties.
The representations and warranties of the
Recipient Parties set forth in
Article V
shall be true and correct in all material
respects (other than representations and warranties that are already qualified as to
materiality or Material Adverse Effect, which representations and warranties shall be true
and correct in all respects) as of the Closing Date as though made on and as of the Closing
Date, and the Contributing Parties shall have received a certificate to such effect signed
on behalf of the Recipient Parties by an officer of the General Partner.
(b)
Performance of Obligations.
The Recipient Parties shall have performed in
all material respects (other than covenants and obligations that are already qualified as to
materiality or Material Adverse Effect, which covenants and obligations shall have been
performed in all respects) all covenants and obligations required to be performed by the
Recipient Parties under this Agreement prior to or on the Closing Date, and the Contributing
Parties shall have received a certificate to such effect signed on behalf of the Recipient
Parties by an officer of the General Partner (such certificate, together with the
certificate described in
Section 7.3(a)
, the
Recipient Party Closing Certificate
).
(c)
Recipient Party Ancillary Documents.
The Recipient Parties shall have
delivered, or caused to be delivered, to the Contributing Parties the Recipient Party
Ancillary Documents required under
Section 3.3
.
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(d)
Delivery of Consideration.
The Recipient Parties shall have delivered the
Cash Consideration, the Unit Consideration and the GP Consideration in accordance with
Section 3.3
.
ARTICLE VIII
TERMINATION
Section 8.1
Termination
.
(a)
Right to Terminate.
This Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing:
(i) by mutual written consent of Anadarko and the Partnership;
(ii) by either Anadarko or the Partnership if the Closing has not occurred
within 90 days of the date of this Agreement (the
Termination Date
); provided,
however
,
that this right to terminate this Agreement shall not be available to any
Party whose breach of this Agreement or whose Affiliates breach of this Agreement
has been the cause of, or resulted in, the failure of the Closing to occur on or
before such date;
(iii) by either Anadarko or the Partnership if a Governmental Entity shall have
issued an Order or taken any other action, in each case permanently restraining,
enjoining, or otherwise prohibiting the transactions contemplated by this Agreement;
or
(iv) by Anadarko in the event of a breach by any Recipient Party, or by the
Partnership in the event of a breach by Anadarko or any Contributing Party, of any
representation, warranty, covenant or other agreement contained in this Agreement
which (A) would give rise to the failure of a condition set forth in
Section
7.2(b)
,
Section 7.2(c)
,
Section 7.3(a)
or
Section
7.3(b)
, as applicable, and (B) cannot be or has not been cured by the earlier of
(1) 20 days following receipt by the breaching party of written notice of such
breach or (2) the Business Day immediately preceding the Termination Date.
(b)
Effect of Investigation.
The right of any Party to terminate this
Agreement pursuant to this
Section 8.1
shall remain operative and in full force and
effect regardless of the actual or constructive knowledge of such Party regarding the
subject matter giving rise to such right of termination.
Section 8.2
Effect of Termination
. Upon termination of this Agreement pursuant to
Section 8.1
, the undertakings of the Parties set forth in this Agreement shall forthwith be
of no further force and effect;
provided
,
however
, that no such termination shall relieve any Party
of any intentional material breach of any term or provision hereof.
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ARTICLE IX
INDEMNIFICATION
Section 9.1
Survival
.
(a) The representations and warranties in this Agreement shall survive the Closing
until the applicable dates specified in
Sections 9.1(b)
and
9.1(c)
and
regardless of any inspection or investigation by or on behalf of the Recipient Parties or
the Contributing Parties, respectively; provided that any representation or warranty with
respect to which a claim for indemnification has been brought pursuant to this
Article
IX
that is pending at the end of the applicable survival period shall continue to
survive until the final resolution of such claim.
(b) The liability of Anadarko and the Contributing Parties for the breach of any of the
representations and warranties of Anadarko and the Contributing Parties set forth in
Article IV
shall be limited to claims for which a Partnership Indemnified Party
delivers written notice to Anadarko on or before 18 months after the Closing Date;
provided
,
however
, that (i) the representations and warranties in
Section 4.9
shall be limited
to claims for which a Partnership Indemnified Party delivers written notice to Anadarko on
or before 24 months after the Closing Date; and (ii) the representations and warranties set
forth in
Sections 4.1
,
4.2
and
4.7
shall not be limited as to time
other than the applicable statute of limitations.
(c) The liability of the Recipient Parties for the breach of any of the representations
and warranties of the Recipient Parties set forth in
Article V
shall be limited to
claims for which an Anadarko Indemnified Party delivers written notice to the Partnership on
or before 18 months after the Closing Date;
provided
,
however
, that the representations and
warranties set forth in
Sections 5.1
and
5.2
shall not be limited as to time
other than the applicable statute of limitations.
Section 9.2
Indemnification of the Anadarko Indemnified Parties
. Solely for the purpose of
indemnification in this
Section 9.2
, the representations and warranties of the Recipient
Parties in this Agreement shall be deemed to have been made without regard to any materiality or
Material Adverse Effect qualifiers. The Partnership, from and after the Closing Date, shall
indemnify and hold Anadarko and the Contributing Parties and their respective Affiliates (other
than any of the Partnership Entities), shareholders, unitholders, members, directors, officers,
employees, agents and representatives (together with Anadarko and the Contributing Parties, the
"
Anadarko Indemnified Parties
) harmless from and against any and all Losses, suffered or incurred
by the Anadarko Indemnified Parties as a result of, caused by, arising out of, or in any way
relating to (a) subject to
Section 9.1
, any breach of a representation or warranty of the
Recipient Parties in this Agreement (which for this purpose is deemed not to include
Exhibit
D
or
Exhibit G
), and (b) any breach of any agreement or covenant on the part of the
Recipient Parties in this Agreement.
Section 9.3
Indemnification of the Partnership Indemnified Parties
. Solely for the purpose
of indemnification in this
Section 9.3
, the representations and warranties of Anadarko and
the Contributing Parties in this Agreement shall be deemed to have been made without
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regard to any materiality or Material Adverse Effect qualifiers. Anadarko shall indemnify and hold
the Recipient Parties and their respective Affiliates (other than any of the Anadarko Entities),
shareholders, unitholders, members, directors, officers, employees, agents and representatives
(together with the Recipient Parties, the
Partnership Indemnified Parties
) harmless from and
against any and all Losses suffered or incurred by the Partnership Indemnified Parties as a result
of, caused by, arising out of, or in any way relating to:
(a) subject to
Section 9.1
, any breach of a representation or warranty of
Anadarko or the Contributing Parties in this Agreement (which for this purpose is deemed not
to include
Exhibit D
or
Exhibit G
);
(b) any breach of any agreement or covenant on the part of Anadarko or the Contributing
Parties in this Agreement;
(c) (i) any Environmental Activity related to, any costs of compliance with, failure to
comply with, penalties under or other costs related to compliance with, the Consent Order
issued in 1992 to Panhandle Eastern Pipeline by the Colorado Oil and Gas Conservation
Commission (the
COGCC
) that encompasses (among other things) the remediation plans
associated with the Brighton, Dougan, Fort Lupton, Frederick, Hambert, Hudson, and Vollmar
Compressor Plants and the Platteville Liquids Terminal; and (ii) any Environmental Activity
related to any Releases prior to the Closing from or relating to, or the presence of any
Hazardous Substance prior to the Closing on or relating to, the Fort Lupton Plant or the
Wattenberg Gathering System, including any plumes (onsite or which extend offsite) or
inaccessible soils, any matters included within the Voluntary Clean Up Program under the
direction of the Colorado Department of Public Health and Environment, and any COGCC
regulated groundwater remediation projects;
(d) all Tax liabilities (i) attributable to the ownership or operation of the KMGG
Interest prior to the Closing Date, or (ii) with respect to KMGG, arising under Treasury
Regulation Section 1.1502-6 and any similar Law, by contract, as successor or transferee or
otherwise and which Tax is attributable to having been a member of any consolidated,
combined or unitary group prior to the Closing Date;
(e) (i) any delivery or non-delivery of Hydrocarbons to, or processing, recovery,
treatment, blending or stabilization of, or other process applied to, Hydrocarbons at, by or
relative to, the Wattenberg Plant, and any payment or failure to pay with respect thereto,
in each case whether occurring prior to or after the Closing Date, and (ii) any breach or
violation of, or any payment or failure to pay under, or accounting or settlements under, or
revisions to or errors with respect to accounting or settlements under, or otherwise
relative to, the Plant Accounting Agreement, the Percentage of Proceeds Contract, the Keep
Whole Contract or any other contracts or agreements relative to the Wattenberg Plant, in
each case whether occurring prior to or after the Closing Date;
(f) (i) any breach or violation of, default under, failure to comply with, or penalty
related to the Consent Decree entered in
United States v. Kerr-McGee Corporation
, Civil
Action No. 07-CV-01034-WDM-MJW, in the United States District
-31-
Court for the District of Colorado (the
Consent Decree
) that is related to any
facility covered by the Consent Decree other than the KMGG Assets or assets that are
otherwise owned by the Partnership, (ii) any breach or violation of, default under, failure
to comply with, or penalty related to the Consent Decree that is related to the KMGG Assets
and that occurred prior to Closing and (iii) to the extent incurred within three years after
the Closing Date, any costs of compliance with, failure to comply with, penalties under or
other costs related to compliance with the Consent Decree of the KMGG Assets; or
(g) the failure to obtain, make or comply with any KMGG Asset Required Consents.
Section 9.4
Demands
. The Indemnified Party agrees that within 30 days after it becomes
aware of facts giving rise to a claim for indemnification pursuant to this
Article IX
,
including receipt by it of notice of any demand, assertion, claim, action or proceeding, judicial
or otherwise, by any third party (any such third party action being referred to herein as the
"
Indemnity Claim
), with respect to any matter as to which it claims to be entitled to indemnity
under the provisions of this Agreement, it will provide notice thereof in writing to the
Indemnifying Party specifying in reasonable detail the nature of and specific basis for such claim.
Notwithstanding the foregoing, the Indemnified Partys failure to provide notice under this
Section 9.4
will not relieve the Indemnifying Party from the liability hereunder with
respect to such matter except in the event and only to the extent that the Indemnifying Party is
materially prejudiced by such failure or delay. Such notice shall include a formal demand for
indemnification under this Agreement.
Section 9.5
Right to Contest and Defend
. The Indemnifying Party shall be entitled at its
cost and expense to contest and defend by all appropriate legal proceedings any Indemnity Claim
with respect to which it is called upon to indemnify the Indemnified Party under the provisions of
this Agreement; provided, that notice of the intention to so contest shall be delivered by the
Indemnifying Party to the Indemnified Party within 20 days from the date of receipt by the
Indemnifying Party of notice by the Indemnified Party of the assertion of the Indemnity Claim. Any
such contest may be conducted in the name and on behalf of the Indemnifying Party or the
Indemnified Party as may be appropriate. Such contest shall be conducted by reputable counsel (in
the reasonable opinion of the Indemnifying Party) employed by the Indemnifying Party and not
reasonably objected to by the Indemnified Party, but the Indemnified Party shall have the right but
not the obligation to participate in such proceedings and to be represented by counsel of its own
choosing at its sole cost and expense. The Indemnifying Party shall have full authority to
determine all action to be taken with respect thereto; provided, however, that the Indemnifying
Party will not have the authority to subject the Indemnified Party to any obligation whatsoever,
other than the performance of purely ministerial tasks or obligations not involving material
expense. If the Indemnifying Party does not elect to contest any such Indemnity Claim, the
Indemnifying Party shall be bound by the result obtained with respect to such claim by the
Indemnified Party. If the Indemnifying Party shall have assumed the defense of an Indemnity Claim,
the Indemnified Party shall agree to any settlement, compromise or discharge of an Indemnity Claim
that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to
pay the full amount of the liability in connection with such Indemnity Claim, which fully and
completely releases the Indemnified
-32-
Party in connection with such Indemnity Claim and which would not otherwise adversely affect the
Indemnified Party.
Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the
defense of any Indemnity Claim (and shall be liable for the reasonable fees and expenses of counsel
incurred by the Indemnified Party in defending such Indemnity Claim) if the Indemnity Claim seeks
an order, injunction or other equitable relief or relief for other than money damages against the
Indemnified Party which the Indemnified Party reasonably determines, upon the advice of outside
counsel, cannot be separated from any related claim for money damages. If such equitable relief or
other relief portion of the Indemnity Claim can be so separated from that for money damages, the
Indemnifying Party shall be entitled to assume the defense of the portion relating to money
damages.
Section 9.6
Cooperation
. The Indemnified Party agrees to cooperate with the Indemnifying
Party with respect to all aspects of the defense of any Indemnity Claims covered by the
indemnification set forth in this
Article IX
, including the prompt furnishing to the
Indemnifying Party of any correspondence or other notice relating thereto that the Indemnified
Party may receive, permitting the names of the Indemnified Party to be utilized in connection with
such defense, the making available to the Indemnifying Party of any files, records or other
information of the Indemnified Party that the Indemnifying Party reasonably considers relevant to
such defense and the making available to the Indemnifying Party of any employees of the Indemnified
Party; provided, however, that in connection therewith the Indemnifying Party agrees to use
reasonable efforts to minimize the impact thereof on the operations of the Indemnified Party and
further agrees to maintain the confidentiality of all files, records and other information
furnished by the Indemnified Party pursuant to this
Section 9.6
, unless otherwise required
by Law or the listing standards of the New York Stock Exchange or any other applicable exchange or
quotation system. In no event shall the obligation of the Indemnified Party to cooperate with the
Indemnifying Party as set forth in the immediately preceding sentence be construed as imposing upon
the Indemnified Party an obligation to hire and pay for counsel in connection with the defense of
any claims covered by the indemnification set forth in this
Article IX
;
provided
,
however
,
that the Indemnified Party may, at its own option, cost and expense, hire and pay for counsel in
connection with any such defense. The Indemnifying Party agrees to keep any such counsel hired by
the Indemnified Party reasonably informed as to the status of any such defense, but the
Indemnifying Party shall have the right to retain sole control over such defense to the extent
provided above.
Section 9.7
Payment of Losses
. The indemnification required hereunder shall be made by
monthly payments of the amount thereof during the course of the investigation or defense, within 30
days as and when reasonably specific bills are received or Loss is incurred and reasonable evidence
thereof is delivered. In calculating any amount to be paid by an Indemnifying Party by reason of
the indemnification provisions of this Agreement, the amount to be paid shall be reduced by (i) any
insurance proceeds related to indemnified Losses realized by the Indemnified Party and (ii) any
amounts related to indemnified Losses recovered by the Indemnified Party under contractual
indemnities from third parties.
Section 9.8
Limitations on Indemnification
.
-33-
(a) To the extent the Partnership Indemnified Parties are entitled to indemnification
for Losses pursuant to
Section 9.3(a)
(other than for Losses related to a breach of
the representations and warranties in
Section 4.6
), Anadarko shall not be liable for
those Losses unless the aggregate amount of Losses exceeds 1% of the sum of (i) the Cash
Consideration, plus (ii) the dollar value of the Unit Consideration on the Closing Date,
plus (iii) the dollar value of the GP Consideration on the Closing Date (with each general
partner unit being deemed for this purpose to have the same value as a common unit) (the sum
of (i), (ii) and (iii) being the
Aggregate Consideration
) (the
Deductible
), and then
only to the extent of any such excess.
(b) In addition, to the extent the Partnership Indemnified Parties are entitled to
indemnification for Losses pursuant to
Section 9.3(a)
, Anadarko shall not be liable
for such Losses that exceed, in the aggregate, 25% of the Aggregate Consideration less the
Deductible.
(c) Notwithstanding
Section 9.8(a)
and
(b)
, to the extent the
Partnership Indemnified Parties are entitled to indemnification for Losses pursuant to
Section 9.3(b)
,
9.3(c)
,
9.3(d)
,
9.3(e),
9.3(f)
or
9.3(g)
or for claims arising from fraud, Anadarko shall be fully liable for such
Losses without respect to the Deductible in
Section 9.8(a)
and the limitations in
Section 9.8(b)
.
(d) To the extent the Anadarko Indemnified Parties are entitled to indemnification for
Losses pursuant to
Section 9.2(a)
, the Partnership shall not be liable for those
Losses unless the aggregate amount of Losses exceeds, in the aggregate, the Deductible, and
then only to the extent of any such excess. In addition, to the extent the Anadarko
Indemnified Parties are entitled to indemnification for Losses pursuant to
Section
9.2(a)
, the Partnership shall not be liable for such Losses that exceed, in the
aggregate, 10% of the Aggregate Consideration less the Deductible.
(e) Notwithstanding
Section 9.8(d)
, to the extent the Anadarko Indemnified
Parties are entitled to indemnification for Losses pursuant to
Section 9.2(b)
or for
claims arising from fraud, the Partnership shall be fully liable for such Losses without
respect to the Deductible and the limitations in
Section 9.8(d)
.
Section 9.9
Sole Remedy
. Notwithstanding anything herein to the contrary, after the
Closing, this
Article IX
contains the Anadarko Indemnified Parties and the Partnership
Indemnified Parties exclusive remedy against each other with respect to breaches of the
representations, warranties, covenants and agreements of the Parties contained in
Article
IV
and
Article V
and in the covenants in this Agreement to be performed prior to
Closing, in each case other than claims or causes of action arising from fraud. All references in
this
Article IX
to such breaches of such representations, warranties, covenants and
agreements include any affirmation of such representations, warranties, covenants and agreements
contained in the certificates delivered at Closing by the Contributing Parties pursuant to
Section 3.2(b)
and by the Recipient Parties pursuant to
Section 3.3(e)
.
Section 9.10
Express Negligence Rule
. THE INDEMNIFICATION PROVISIONS PROVIDED FOR IN THIS
AGREEMENT HAVE BEEN EXPRESSLY NEGOTIATED IN
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EVERY DETAIL, ARE INTENDED TO BE GIVEN FULL AND LITERAL EFFECT, AND SHALL BE APPLICABLE WHETHER OR
NOT THE LIABILITIES, OBLIGATIONS, CLAIMS, JUDGMENTS, LOSSES, COSTS, EXPENSES OR DAMAGES IN QUESTION
ARISE OR AROSE SOLELY OR IN PART FROM THE GROSS, ACTIVE, PASSIVE OR CONCURRENT NEGLIGENCE, STRICT
LIABILITY, OR OTHER FAULT OF ANY INDEMNIFIED PARTY. ANADARKO AND THE CONTRIBUTING PARTIES AND THE
RECIPIENT PARTIES ACKNOWLEDGE THAT THIS STATEMENT COMPLIES WITH THE EXPRESS NEGLIGENCE RULE AND
CONSTITUTES CONSPICUOUS NOTICE. NOTICE IN THIS CONSPICUOUS NOTICE IS NOT INTENDED TO PROVIDE OR
ALTER THE RIGHTS AND OBLIGATIONS OF ANADARKO AND THE PARTIES, ALL OF WHICH ARE SPECIFIED ELSEWHERE
IN THIS AGREEMENT.
ARTICLE X
ADDITIONAL AGREEMENTS
Section 10.1
Further Assurances
. The Contributing Parties hereby agree that, from time to
time, at the request of a Recipient Party and without further consideration, they will execute and
deliver to the Recipient Parties such other deeds, bills of sale, instruments of conveyance,
assignment and transfer, and notices, affidavits and acknowledgements, and take such action as the
Recipient Parties may reasonably require to effectively convey, transfer, and assign to the
Recipient Parties, and to put the Recipient Parties in possession of the KMGG Interest. After the
Closing, each Party shall take such further actions, including obtaining consents to assignment
from third parties, and execute such further documents as may be necessary or reasonably requested
by the other Parties in order to effectuate the intent of this Agreement and the Ancillary
Documents and to provide such other Parties with the intended benefits of this Agreement and the
Ancillary Documents.
ARTICLE XI
MISCELLANEOUS
Section 11.1
Expenses
. Except as provided in
Section 3.4
, or as provided in the
Ancillary Documents, regardless of whether the transactions contemplated in this Agreement occur,
all costs and expenses incurred by the Parties in connection with the consummation of the
transactions contemplated hereby shall be borne solely and entirely by the Party which has incurred
such cost or expense.
Section 11.2
Notices
. Any notice or other communication to be given under this Agreement
by any Party to another shall be in writing and shall be (i) delivered personally, (ii) sent by
courier service requiring acknowledgement of receipt, or (iii) sent by facsimile transmission.
Notice given by personal delivery or courier shall be effective upon actual receipt. Notice given
by facsimile transmission shall be confirmed by appropriate answer-back, and shall be effective
upon actual receipt if received during the recipients normal business hours, or at the beginning
of the recipients next Business Day after receipt if not received during the recipients normal
business hours. Notices or other communications shall be directed to the following addresses:
Notices to Anadarko:
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Anadarko Petroleum Corporation
1201 Lake Robbins Drive
The Woodlands, Texas 77380
Attention: Senior Vice President, General Counsel
and Chief Administrative Officer
Facsimile No.: (832) 636-0547
Notices to any of the Contributing Parties:
Western Gas Resources, Inc.
1201 Lake Robbins Drive
The Woodlands, Texas 77380
Attention: President
Facsimile No.: (832) 636-7130
WES GP, Inc.
1201 Lake Robbins Drive
The Woodlands, Texas 77380
Attention: President
Facsimile No.: (832) 636-7130
WGR Holdings, LLC
1201 Lake Robbins Drive
The Woodlands, Texas 77380
Attention: President
Facsimile No.: (832) 636-7130
WGR Asset Holding Company LLC
1201 Lake Robbins Drive
The Woodlands, Texas 77380
Attention: President
Facsimile No.: (832) 636-7130
Western Gas Holdings, LLC
1201 Lake Robbins Drive
The Woodlands, Texas 77380
Attention: President
Facsimile No.: (832) 636-6001
Notices to any of the Recipient Parties:
Western Gas Partners, LP
1201 Lake Robbins Drive
The Woodlands, Texas 77380
Attention: General Partner
Facsimile No.: (832) 636-6001
-36-
Western Gas Holdings, LLC
1201 Lake Robbins Drive
The Woodlands, Texas 77380
Attention: President and Chief Executive Officer
Facsimile No.: (832) 636-6001
Western Gas Operating, LLC
1201 Lake Robbins Drive
The Woodlands, Texas 77380
Attention: President and Chief Executive Officer
Facsimile No.: (832) 636-6001
WGR Operating, LP
1201 Lake Robbins Drive
The Woodlands, Texas 77380
Attention: General Partner
Facsimile No.: (832) 636-6001
with copies (which shall not constitute notice) to:
Special Committee of the Board of Directors of Western Gas Holdings, LLC
1201 Lake Robbins Drive
The Woodlands, Texas 77380
Attention: Chairman
Facsimile No.: (832) 636-6001
Bracewell & Giuliani LLP
711 Louisiana, Suite 2300
Houston, Texas 77002
Attention: Gary W. Orloff
Facsimile No.: (713) 221-2166
Any Party may at any time change its address for service from time to time by giving notice in
accordance with this
Section 11.2
.
Section 11.3
Severability
. If any term or other provision of this Agreement or in any
other document delivered pursuant hereto shall, for any reason, be held to be invalid, illegal, or
incapable of being enforced under applicable Law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect. Upon such
determination that any term or other provision of this Agreement is invalid, illegal, or incapable
of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to
effect the original intention of the Parties as closely as possible in a mutually acceptable manner
in order that the transactions contemplated herein are consummated as originally contemplated to
the fullest extent possible.
Section 11.4
Governing Law; Consent to Jurisdiction
. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of Texas,
-37-
excluding any conflicts-of-law rule or principle that might refer the construction or
interpretation of this Agreement to the laws of another state. The Parties hereto irrevocably
submit to the jurisdiction of the courts of the State of Texas and the federal courts of the United
States of America located in Harris County, Texas over any dispute between the Parties arising out
of this Agreement or the transaction contemplated hereby, and each Party irrevocably agrees that
all such claims in respect of such dispute shall be heard and determined in such courts. The
Parties hereto irrevocably waive, to the fullest extent permitted by Law, any objection which they
may now or hereafter have to the venue of any dispute arising out of this Agreement or the
transaction contemplated hereby being brought in such court or any defense of inconvenient forum
for the maintenance of such dispute. Each Party agrees that a judgment in any such dispute may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
Section 11.5
Parties in Interest
. This Agreement shall be binding upon and inure solely to
the benefit of each Party hereto and their successors and permitted assigns, and nothing in this
Agreement, express or implied, is intended to confer upon any other Person any rights or remedies
of any nature whatsoever under or by reason of this Agreement, except for express language with
respect to the Partnership Indemnified Parties and the Anadarko Indemnified Parties contained in
the indemnification provisions of
Article IX
.
Section 11.6
Assignment
. Neither this Agreement nor any of the rights, interests, or
obligations hereunder may be assigned, by operation of Law or otherwise, by any Party without the
prior written consent of the other Parties, and any attempted assignment without such consent shall
be void.
Section 11.7
No Amendment or Waiver
. No amendment, supplement, modification or waiver of
this Agreement shall be binding unless executed in writing by the Party to be bound thereby. No
waiver of any of the provisions of this Agreement or a breach hereof shall be deemed or shall
constitute a waiver of any other provision hereof (regardless of whether similar), nor shall any
such waiver constitute a continuing waiver unless otherwise expressly provided.
Section 11.8
Counterparts
. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument. Facsimile copies of signatures shall constitute original signatures for all
purposes of this Agreement and any enforcement hereof.
Section 11.9
Integration
. This Agreement, the Exhibits and Schedules hereto and the
Ancillary Documents supersede any previous understandings or agreements among the Parties, whether
oral or written, with respect to their subject matter. This Agreement, the Exhibits and Schedules
hereto and the Ancillary Documents contain the entire understanding of the Parties with respect to
the subject matter hereof and thereof. No understanding, representation, promise or agreement,
whether oral or written, is intended to be or shall be included in or form part of this Agreement
or the Ancillary Documents unless it is contained in a written amendment hereto or thereto and
executed by the Parties hereto or thereto after the date of this Agreement or the Ancillary
Documents.
-38-
Section 11.10
Determinations by the Partnership
. Whenever a determination, decision or
approval by the Partnership is called for in this Agreement, such determination, decision or
approval must be authorized by the Special Committee.
Section 11.11
Public Statements
. The Parties hereto shall consult with each other and no
Party shall issue any public announcement or statement with respect to the transactions
contemplated hereby without the consent of the other Parties, unless such announcement or statement
is required by applicable Law or stock exchange requirements.
[Signature page follows]
-39-
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above
written.
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RECIPIENT PARTIES:
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WESTERN GAS PARTNERS, LP
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By:
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Western Gas Holdings, LLC,
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its General Partner
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By:
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/s/ Donald R. Sinclair
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Name:
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Donald R. Sinclair
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Its:
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President and Chief Executive Officer
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WESTERN GAS HOLDINGS, LLC
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By:
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/s/ Donald R. Sinclair
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Name:
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Donald R. Sinclair
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Its:
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President and Chief Executive Officer
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WESTERN GAS OPERATING, LLC
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By:
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/s/ Donald R. Sinclair
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Name:
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Donald R. Sinclair
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Its:
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President and Chief Executive Officer
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WGR OPERATING, LP
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By:
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Western Gas Operating, LLC,
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its General Partner
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By:
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/s/ Donald R. Sinclair
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Name:
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Donald R. Sinclair
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Its:
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President and Chief Executive Officer
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Signature Page to Contribution Agreement
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CONTRIBUTING PARTIES:
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WESTERN GAS RESOURCES, INC.
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By:
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/s/ R.A. Walker
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Name:
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R.A. Walker
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Its:
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Chairman of the Board and President
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WGR HOLDINGS, LLC
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By:
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/s/ R.A. Walker
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Name:
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R.A. Walker
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Its:
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President
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WGR ASSET HOLDING COMPANY LLC
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By:
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/s/ R.A. Walker
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Name:
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R.A. Walker
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Its:
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President
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WESTERN GAS HOLDINGS, LLC
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By:
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/s/ Donald R. Sinclair
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Name:
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Donald R. Sinclair
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Its:
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President and Chief Executive Officer
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WES GP, INC.
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By:
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/s/ R.A. Walker
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Name:
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R.A. Walker
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Its:
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President
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Signature Page to Contribution Agreement
Executed by Anadarko Petroleum Corporation, solely for purposes of its obligations and rights
under
Article II
,
Section 3.5
,
Article IV
,
Section 6.5
,
Article
VIII
,
Article IX
and
Article XI
of this Agreement.
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ANADARKO PETROLEUM CORPORATION
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By:
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/s/ R.A. Walker
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Name:
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R.A. Walker
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Its:
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President and Chief Operating Officer
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Signature Page to Contribution Agreement
Exhibit 10.2
TERM LOAN AGREEMENT
Dated as of August 2, 2010
among
WESTERN GAS PARTNERS, LP,
as the Borrower,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
DNB NOR BANK ASA, NEW YORK BRANCH,
as Syndication Agent,
U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agent
and
THE LENDERS SIGNATORY HERETO
WELLS FARGO SECURITIES, LLC
DNB NOR MARKETS, INC.
Co-Lead Arrangers and Bookrunners
TABLE OF CONTENTS
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Page
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ARTICLE I
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DEFINITIONS AND ACCOUNTING TERMS
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Section 1.01 Defined Terms
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1
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Section 1.02 Use of Defined Terms
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14
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Section 1.03 Accounting Terms
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14
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Section 1.04 Interpretation
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14
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ARTICLE II
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AMOUNT AND TERMS OF LOANS
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Section 2.01 Loans
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14
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Section 2.02 Repayment of Loans; Evidence of Debt
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15
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Section 2.03 Procedure for Borrowing
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16
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Section 2.04 Reserved
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16
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Section 2.05 Reserved
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16
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Section 2.06 Reserved
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16
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Section 2.07 Optional Prepayments
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16
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Section 2.08 Reserved
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16
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Section 2.09 Reserved
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16
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Section 2.10 Interest
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17
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Section 2.11 Computation of Interest
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18
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Section 2.12 Funding of Borrowings
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19
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Section 2.13 Pro Rata Treatment and Payments
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19
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Section 2.14 Increased Cost of Loans
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21
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Section 2.15 Illegality
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23
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Section 2.16 Taxes
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23
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Section 2.17 Substitute Loan Basis
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25
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Section 2.18 Certain Conversions or Continuations
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26
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Section 2.19 Certain Notices
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26
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Section 2.20 Minimum Amounts of Eurodollar Borrowings
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26
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Section 2.21 Break Funding Payments
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26
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ARTICLE III
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REPRESENTATIONS AND WARRANTIES
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Section 3.01 Representations of the Borrower
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27
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ARTICLE IV
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AFFIRMATIVE COVENANTS
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Section 4.01 Financial Statements and Other Information
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29
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Section 4.02 Notices of Material Events
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30
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Section 4.03 Compliance with Laws
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31
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Section 4.04 Use of Proceeds
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31
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i
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Page
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Section 4.05 Maintenance of Property; Insurance
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31
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Section 4.06 Additional Guarantors
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31
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Section 4.07 Books and Records; Inspections
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32
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Section 4.08 Payment of Obligations
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32
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Section 4.09 Material Contracts
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32
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ARTICLE V
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FINANCIAL COVENANTS
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Section 5.01 Consolidated Leverage Ratio
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32
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Section 5.02 Consolidated Interest Coverage Ratio
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32
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ARTICLE VI
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NEGATIVE COVENANTS
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Section 6.01 Nature of Business
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33
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Section 6.02 Liens
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33
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Section 6.03 Dispositions
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35
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Section 6.04 Transactions with Affiliates
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35
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Section 6.05 Indebtedness
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36
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Section 6.06 Investments
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37
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Section 6.07 Restricted Payments
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38
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Section 6.08 Intercompany Payments
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39
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Section 6.09 Limitations on Sales and Leasebacks
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39
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Section 6.10 Fundamental Changes
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39
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Section 6.11 Negative Pledge Agreements
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40
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ARTICLE VII
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CONDITIONS OF LENDING
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Section 7.01 Conditions Precedent to the Loans
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40
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Section 7.02 Additional Conditions Precedent to the Loans
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42
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ARTICLE VIII
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EVENTS OF DEFAULT
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Section 8.01 Events of Default
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42
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ARTICLE IX
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THE AGENTS
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Section 9.01 Powers
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44
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Section 9.02 Agents Reliance, Etc.
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44
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Section 9.03 No Responsibility for Recitals, Etc.
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44
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Section 9.04 Right to Indemnity
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44
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Section 9.05 Action on Instructions of Lenders
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45
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Section 9.06 Employment of Agents
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45
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Section 9.07 Reliance on Documents
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45
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Section 9.08 Rights as a Lender
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45
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Section 9.09 Non-Reliance on Agents or other Lenders
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45
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Section 9.10 Events of Default
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46
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ii
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Page
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Section 9.11 Successor Agent
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46
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Section 9.12 Arrangers and Other Agents
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46
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ARTICLE X
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MISCELLANEOUS
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Section 10.01 Notices
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46
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Section 10.02 Waivers; Amendments
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47
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Section 10.03 Expenses; Indemnity; Damage Waiver
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48
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Section 10.04 Successors and Assigns
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49
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Section 10.05 Survival
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52
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Section 10.06 Counterparts; Integration; Effectiveness
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52
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Section 10.07 Severability
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52
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Section 10.08 Right of Setoff
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52
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Section 10.09 Governing Law; Jurisdiction; Consent to Service of Process
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53
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Section 10.10 WAIVER OF JURY TRIAL
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53
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Section 10.11 Headings
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54
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Section 10.12 Confidentiality
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54
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Section 10.13 Termination and Substitution of Lender
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54
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Section 10.14 USA Patriot Act Notice
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55
|
|
Annexes, Schedules and Exhibits:
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Annex I
|
|
(List of Commitments)
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Schedule I
|
|
(Pricing Schedule)
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Schedule II
|
|
(Subsidiaries)
|
Schedule III
|
|
(Transactions with Affiliates)
|
|
|
|
Exhibit A
|
|
(Form of Note)
|
Exhibit B
|
|
(Assignment and Assumption)
|
Exhibit C
|
|
(Form of Guaranty Agreement)
|
iii
This
TERM LOAN AGREEMENT
is made as of August 2, 2010 (the
Effective Date
), by and among
WESTERN GAS PARTNERS, LP, a limited partnership organized under the laws of the State of Delaware
(the
Borrower
), WELLS FARGO BANK, NATIONAL ASSOCIATION, individually and as Administrative Agent
(herein, together with its successors in such capacity, the
Administrative Agent
), DNB NOR BANK
ASA, NEW YORK BRANCH, as Syndication Agent (herein, together with its successors in such capacity,
the
Syndication Agent
), U.S. BANK NATIONAL ASSOCIATION, as Documentation Agent (herein, together
with its successors in such capacity, the
Documentation Agent
), and each of the Lenders that is a
signatory hereto or which becomes a signatory hereto pursuant to Section 10.04 (individually,
together with its successors and assigns, a
Lender
and collectively, the
Lenders
).
In consideration of the mutual covenants and agreements contained herein, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Defined Terms
. As used in this Agreement, and unless the context otherwise
requires, the following terms shall have the meanings set out respectively after each:
Acquired Indebtedness
(i) with respect to any Person that becomes a Subsidiary after the
Effective Date as the result of a Permitted Acquisition, Indebtedness of such Person and its
Subsidiaries (including, for the avoidance of doubt, Indebtedness incurred in the ordinary course
of such Persons business to acquire assets used or useful in its business) existing at the time
such Person becomes a Subsidiary that was not incurred in connection with, or in contemplation of,
such Person becoming a Subsidiary and (ii) with respect to the Borrower or any Subsidiary, any
Indebtedness of a Person (including, for the avoidance of doubt, Indebtedness incurred in the
ordinary course of such Persons business to acquire assets used or useful in its business), other
than the Borrower or a Subsidiary, existing at the time such Person is merged with or into the
Borrower or a Subsidiary, or Indebtedness expressly assumed by the Borrower or any Subsidiary in
connection with the acquisition of an asset or assets from such Person, which Indebtedness was not,
in any case, incurred by such other Person in connection with, or in contemplation of, such merger
or acquisition.
Acquisition
the acquisition by any Person, in a single transaction or in a series of
related transactions, of property or assets (other than capital expenditures in the ordinary course
of business) of, or of a business unit or division of, another Person or, except as permitted by
Section 6.06(d), at least a majority of the securities having ordinary voting power for the
election of directors, managing general partners or the equivalent of another Person, in each case
whether or not involving a merger or consolidation with such other Person and whether for cash,
property, services, assumption of Indebtedness, securities or otherwise.
Administrative Agent
as defined in the preamble hereof.
Administrative Questionnaire
an Administrative Questionnaire in a form supplied by the
Administrative Agent.
1
Affected Loans
as defined in Section 2.18.
Affiliate
with respect to any Person, another Person that directly or indirectly (through
one or more intermediaries) Controls or is Controlled by or is under common Control with the Person
specified.
Agents
each of the Administrative Agent, the Syndication Agent and the Documentation
Agent.
Agreement
this Term Loan Agreement, as the same may be amended, modified, supplemented or
restated from time to time in accordance with the terms hereof.
Alternate Base Rate
for any day, a rate per annum equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus
1
/
2
of
1%, and (c) the LIBO Rate for a one month Interest Period on such day (or if such day is not a
Business Day, the immediately preceding Business Day) plus
1
/
2
of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the LIBO Rate
shall be effective from and including the effective date of such change in the Prime Rate, the
Federal Funds Effective Rate or the LIBO Rate, respectively.
Alternate Base Rate Loans
Loans hereunder at all times when they bear interest at a rate
based upon the Alternate Base Rate.
Anadarko
Anadarko Petroleum Corporation, a Delaware corporation.
APC Revolver
the $1,300,000,000 Revolving Credit Agreement dated March 4, 2008, among
Anadarko, the Borrower, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders party
thereto, as amended or replaced from time to time.
Applicable Percentage
with respect to any Lender, such Lenders percentage of outstanding
Loans.
Assignment and Assumption
an assignment and assumption entered into by a Lender and an
assignee (with the consent of any party whose consent is required by Section 10.04), and accepted
by the Administrative Agent, in the form of
Exhibit B
or any other form approved by the
Administrative Agent.
Available Cash
the meaning ascribed to such term in the Partnership Agreement as in effect
on the Effective Date, with such amendments thereto as agreed to by the Majority Lenders.
Bankruptcy Laws
Title 11 of the United States Code entitled Bankruptcy, as amended from
time to time and any similar other applicable law or statute in any other jurisdiction as amended
from time to time.
Base Rate Margin
a rate per annum determined in accordance with the Pricing Schedule.
2
Board
the Board of Governors of the Federal Reserve System.
Board of Directors
with respect to a Person, the board of directors or other governing
body of such Person.
Borrower
Western Gas Partners, LP, a Delaware limited partnership or permitted successor
and assigns under Section 10.04.
Borrowing
Loans of the same Type, made, converted or continued on the same date and, in
the case of Eurodollar Loans, as to which a single Interest Period is in effect.
Borrowing Request
the request by the Borrower for the Borrowing of the term Loans in
accordance with Section 2.03.
Business Day
any day that is not a Saturday, Sunday or other day on which commercial banks
in New York City, New York are authorized or required by law to remain closed;
provided
that when
used in connection with a Eurodollar Loan, the term Business Day shall also exclude any day on
which banks are not open for dealings in Dollar deposits in the London interbank market.
Capital Lease
as applied to any Person, any lease of any property (whether real, personal
or mixed) by that Person as lessee that, in accordance with GAAP, is required to be accounted for
as a capital lease on the balance sheet of that Person.
Cash Equivalents
as at any date, (a) securities guaranteed or insured by the United States
or any agency or instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve months from the
date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of (i) any
Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Moodys is at least P-1 or the equivalent thereof (any
such bank being an Approved Bank), in each case with maturities of not more than 270 days from
the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any
Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or
guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moodys and maturing within six months of the date of
acquisition, (d) repurchase agreements entered into by any Person with a bank or trust company
(including any of the Lenders) or recognized securities dealer having capital and surplus in excess
of $500,000,000 for direct obligations issued by or fully guaranteed by the United States in which
such Person shall have a perfected first priority security interest (subject to no other Liens) and
having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) Investments, classified in accordance with GAAP as current assets,
in money market investment programs registered under the Investment Company Act of 1940 which are
administered by reputable financial institutions having capital of at least $500,000,000 or having
portfolio assets of at least $5,000,000,000 and the portfolios of which are comprised primarily of
Investments of the character described in the foregoing subdivisions (a) through (d).
3
Change of Control
(a) Anadarko shall cease to own, directly or indirectly, 51% of the
voting ownership interest of the General Partner, or (b) the General Partner shall cease to either
be or control the sole general partner of the Borrower.
Chipeta
Chipeta Processing LLC.
Code
the Internal Revenue Code of 1986, as amended from time to time.
Commission
the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or, if at any time after the execution of this
Agreement such Commission is not existing and performing the duties now assigned to it, then the
body performing such duties at such time.
Commitment
with respect to each Lender, the commitment of such Lender to make a single
term Loan to the Borrower pursuant to Section 2.01 in the amount set forth on
Annex I
.
Consolidated EBITDA
for any period, an amount equal to Consolidated Net Income for such
period plus, to the extent deducted in determining Consolidated Net Income for such period, the
aggregate amount of (a) taxes based on or measured by income, (b) Consolidated Interest Expense and
(c) depreciation and amortization expenses.
Consolidated Indebtedness
at any time, the Indebtedness of the Borrower and its
Subsidiaries, determined on a consolidated basis as of such time in accordance with GAAP.
Consolidated Interest Coverage Ratio
as of the last day of each fiscal quarter of the
Borrower, the ratio of (a) Consolidated EBITDA for the period of four consecutive fiscal quarters
ending on such day to (b) Consolidated Interest Expense for the period of four consecutive fiscal
quarters ending on such day.
Consolidated Interest Expense
for any period, the sum (determined without duplication) of
the aggregate gross interest expense (excluding, for the avoidance of doubt, any interest income)
of the Borrower and its Subsidiaries for such period, including to the extent included in interest
expense under GAAP: (a) amortization of debt discount and (b) capitalized interest.
Consolidated Leverage Ratio
as of the last day of each fiscal quarter of the Borrower, the
ratio of (a) Consolidated Indebtedness on such day to (b) Consolidated EBITDA for the period of
four consecutive fiscal quarters ending on such day.
Consolidated Net Income
for any period, the net income of the Borrower and its
Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided,
that: (A) Consolidated Net Income shall not include (i) extraordinary gains or extraordinary
losses, (ii) net gains and losses in respect of disposition of assets other than in the ordinary
course of business, (iii) gains or losses attributable to write-ups or write-downs of assets
including unrealized gains or losses with respect to hedging and derivative activities, (iv) gains
or losses attributable to any Joint Venture unless such gains are actually distributed to the
Borrower or its Subsidiaries in cash and (v) the cumulative effect of a change in accounting
principles, all as reported in the Borrowers consolidated statement(s) of income for the relevant
4
period(s) prepared in accordance with GAAP; and (B) if the Borrower or any Subsidiary shall
acquire or dispose of any property during such period, then Consolidated Net Income shall be
calculated after giving
pro forma
effect to such acquisition or disposition, as if such acquisition
or disposition had occurred on the first day of such period.
Consolidated Net Tangible Assets
as of any date of determination, the total amount of
assets of the Borrower and its Subsidiaries determined on a consolidated basis after deducting
therefrom the value (net of any applicable reserves) of all current liabilities (excluding (i) any
current liabilities that by their terms are extendable or renewable at the option of the obligor
thereon to a time more than 12 months after the time as of which the amount thereof is being
computed, and (ii) current maturities of long-term debt), goodwill, trade names, trademarks,
patents and other like intangible net assets, all as set forth, or on a
pro forma
basis would be
set forth, on the consolidated balance sheet of the Borrower and its Subsidiaries for the most
recently completed fiscal quarter, in accordance with GAAP.
Control
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability to exercise voting
power, by contract, or otherwise. Controlling and Controlled have meanings correlative
thereto.
Default
an event which with the giving of notice or the passage of time, or both, would
constitute an Event of Default.
Defaulting Lender
any Lender that shall (a) (i) fail to make the Loan required to be made
by it hereunder or (ii) state in writing that it will not make, or that it has disaffirmed or
repudiated its obligation to make, the Loan required to be made by it hereunder, unless, in either
case, such failure to make such Loan by a Lender is the subject of a good faith dispute, or (b)
assign or transfer all or a part of its rights hereunder without the prior written consent of the
Borrower, unless such assignment or transfer is made without the consent of the Borrower pursuant
to Section 10.04(b)(i)(A).
Disposition
or
Dispose
the sale, transfer, license, lease or other disposition
(including any Sale and Leaseback Transaction) of any property by the Borrower or any Subsidiary
(including the equity interests of any Subsidiary), including any sale, assignment, transfer or
other disposal, with or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
Documentation Agent
as defined in the preamble hereof.
Domestic Lending Office
initially, the office of a Lender designated as such in its
Administrative Questionnaire, and thereafter such other office of such Lender, if any, of which
such Lender shall have most recently notified the Administrative Agent and the Borrower in writing.
Effective Date
as defined in the preamble.
Environmental Laws
to the extent relating to exposure to hazardous or toxic substances or
materials, any applicable and legally enforceable requirement of any Governmental
5
Authority pertaining to (a) the protection of human health, safety, and the indoor or outdoor
environment, (b) the conservation, management, or use of natural resources and wildlife, (c) the
protection or use of surface water and groundwater, (d) the management, manufacture, possession,
presence, use, generation, transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure to, any hazardous or toxic
substance or material or (e) pollution (including any release to land surface water and
groundwater) and includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization
Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et seq.,
Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 USC 1251 et
seq., Clean Air Act, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976, 15 USC
2601 et seq., Hazardous Materials Transportation Law, 49 USC App. 1501 et seq., Occupational Safety
and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right to Know Act of 1986, 42 USC 11001 et seq., National
Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as amended,
42 USC 300(f) et seq., any analogous implementing or successor law, and any amendment, rule,
regulation, order, or directive issued thereunder.
Equity Interests
shares of capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust or other equity ownership interests in a
Person, and any warrants, options or other rights entitling the holder thereof to purchase or
acquire any such Equity Interest.
ERISA
the Employee Retirement Income Security Act of 1974, as amended from time to time.
ERISA Affiliate
any trade or business (whether or not incorporated) that, together with
the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer
under Section 414 of the Code.
ERISA Event
(a) any reportable event, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived), (b) the withdrawal of the Borrower, a Subsidiary or any ERISA Affiliate
from a Plan during a plan year in which it was a substantial employer as defined in Section
4001(a)(2) of ERISA, (c) the failure of a Plan to meet the minimum funding standards under Section
412 of the Code or Section 302 of ERISA (determined without regard to Section 412(c) of the Code or
Section 302(c) of ERISA), (d) the incurrence by the Borrower, any Subsidiary or any of ERISA
Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan, (e)
the receipt by the Borrower, a Subsidiary or any ERISA Affiliate from the Pension Benefit Guaranty
Corporation or a plan administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan, (f) the incurrence by the Borrower, a
Subsidiary or any ERISA Affiliate of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan, (g) the failure of a Plan to satisfy the
requirements of Section 401(a)(29) of the Code, Section 436 of the Code or
6
Section 206(g) of ERISA, or (h) the receipt by the Borrower, a Subsidiary or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower, a
Subsidiary or any ERISA Affiliate of any notice, concerning the imposition of withdrawal liability
under Section 4202 of ERISA, or a determination that a Multiemployer Plan is, or is expected to be,
insolvent, in reorganization, in endangered status, or in critical status (within the
meaning assigned to such terms under ERISA).
Eurodollar Lending Office
initially, the office of a Lender designated as such in its
Administrative Questionnaire, and thereafter such other office of such Lender, if any, of which
such Lender shall have most recently notified the Administrative Agent and the Borrower in writing.
Eurodollar Loan
a Loan denominated in Dollars that bears interest at a rate based upon the
LIBO Rate.
Eurodollar Margin
a rate per annum determined in accordance with the Pricing Schedule.
Event of Default
any of the events of default set forth in ARTICLE VIII.
Excluded Taxes
with respect to the Administrative Agent, any Lender or any other recipient
of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income
or franchise taxes imposed on (or measured by) the net income or taxable margin (within the
meaning of the Texas Franchise Tax) of such Administrative Agent, Lender or other recipient by the
United States or any political subdivision thereof, or by the jurisdiction under the laws of which
such recipient is organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by
the United States, or any similar tax imposed by any other jurisdiction in which the Borrower is
located, (c) in the case of a Foreign Lender, any withholding tax that is imposed in respect of
amounts payable by the Borrower by the United States of America or by any other jurisdiction in
which such Lender is organized, has its principal office or its applicable lending office on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such Foreign Lenders failure
to comply with Section 2.16(e) except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to Section
2.16(e), (d) in the case of a Lender other than a Foreign Lender, any backup withholding that is
imposed in respect of amounts payable by the Borrower by the United States of America that is
attributable to such Lenders failure to comply with Section 2.16(e), and (e) any U.S. Federal
withholding taxes imposed by FATCA other than by reason of a change in law imposed after the date
hereof.
FATCA
means the Foreign Account Tax Compliance Act of 2009, Sections 1471 through 1474 of
the Code and any regulations or official interpretations thereof.
Federal Funds Effective Rate
for any day, the weighted average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the rates on overnight US Federal funds
7
transactions with members of the US Federal Reserve System arranged by Federal funds brokers,
as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
Financial Officer
the chief financial officer, principal accounting officer, treasurer or
controller of the Borrower or any other officer or employee that any of the foregoing may, in
accordance with the Borrowers customary business practices, designate to act as a Financial
Officer by notice to the Administrative Agent in accordance with this Agreement.
Fitch
Fitch, Inc., and any successor thereto that is a nationally recognized rating
agency.
Foreign Lender
any Lender that is organized under the laws of a jurisdiction other than
that in which the Borrower is located. For purposes of this definition, the United States of
America, each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
GAAP
generally accepted accounting principles in the United States of America, as in
effect from time to time.
General Partner
Western Gas Holdings, LLC, a Delaware limited liability company.
Governmental Authority
the government of the United States, any other nation or any
political subdivision thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to government.
Guarantor
each of the Subsidiaries of the Borrower listed on
Schedule II
other
than Chipeta, and (b) each other Subsidiary of the Borrower that is not a Joint Venture and that
guarantees the Loans pursuant to Section 4.06.
Guaranty Agreement
the Guaranty Agreement dated as of even date herewith by the
Guarantors, in favor of the Administrative Agent for the benefit of the Lenders.
Indebtedness
any indebtedness which (a) is for money borrowed, (b) represents the deferred
purchase price of property or assets purchased, except trade accounts payable in the ordinary
course of business, (c) is in respect of a capitalized lease or (d) is in respect of a guarantee of
any of the foregoing obligations of another Person.
Indemnitee
has the meaning specified in Section 10.03(b).
Indemnified Taxes
Taxes other than Excluded Taxes.
8
Information
as defined in Section 10.12.
Information Memorandum
the Confidential Information Memorandum dated June 28, 2010
relating to the Borrower and the Transactions.
Intercompany Loan
the intercompany loan from Anadarko to the Borrower dated December 19,
2008 in an aggregate amount not exceeding $175,000,000.
Interest Election Request
as defined in Section 2.10(c).
Interest Payment Date
(a) as to any Alternate Base Rate Loan (except as provided in
Section 2.18), the end of any calendar quarter with respect thereto and, as to any Lender, the
Maturity Date for such Lender, and (b) as to any Eurodollar Loan, the last day of the Interest
Period with respect thereto, and, for Interest Periods longer than 3 months, each date which is 3
months, or a whole multiple thereof, from the first day of such Interest Period.
Interest Period
with respect to any Eurodollar Loan, (i) initially, the period commencing
on the Effective Date or continuation date, as the case may be, with respect to such Eurodollar
Loan and ending 2 weeks or 1, 2, 3, 6 or, to the extent funds are available, as determined by the
Administrative Agent, 9 or 12 months thereafter, as selected by the Borrower in its Borrowing
Request or Interest Election Request, as the case may be, given with respect thereto, and (ii)
thereafter, each period commencing on the last day of the next preceding Interest Period applicable
to such Eurodollar Loan and ending 2 weeks or 1, 2, 3, 6 or, to the extent funds are available, as
determined by the Administrative Agent, 9 or 12 months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than two Business Days prior to the last
day of the then current Interest Period with respect thereto;
provided
, that (A) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next preceding Business Day,
and (B) any Interest Period (other than a 2 week Interest Period) that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period.
Investment
with respect to any Person, (a) any purchase or other acquisition by such
Person of (i) any Equity Interest issued by, (ii) a beneficial interest in any Equity Interest
issued by, or (iii) any other equity ownership interest in, any other Person, (b) any purchase by
that Person of all or a significant part of the assets of a business conducted by another Person,
(c) any loan, advance (other than deposits with financial institutions available for withdrawal on
demand, prepaid expenses, accounts receivable and similar items made or incurred in the ordinary
course of business as presently conducted), or capital contribution by that Person to any other
Person, including all Indebtedness of any other Person to that Person arising from a sale of
property by that Person other than in the ordinary course of its business, and (d) any guaranty
obligation incurred by that Person in respect of Indebtedness of any other Person.
9
Investment Grade Rating
the rating of the Loans or senior unsecured non-credit enhanced
publicly held debt of the Borrower, by at least two of the three rating agencies as follows: BBB-
or better by S&P or Baa3 or better by Moodys or BBB- or better by Fitch.
Investment Grade Rating Date
the date on which the Borrower achieves an Investment Grade
Rating.
Joint Venture
any Person, other than an individual, the Borrower or a wholly-owned
Subsidiary of the Borrower, in which the Borrower or a Subsidiary of the Borrower holds or acquires
an Equity Interest (whether by way of capital stock, partnership or limited liability company
interest, or other evidence of ownership) excluding warrants, options or unexercised right to
acquire or purchase an Equity Interest.
Lender
as defined in the preamble hereof.
LIBO Rate
with respect to any Eurodollar Borrowing for any Interest Period, the rate
reported by Bloomberg L.P. in its index of rates (or any successor to or substitute for such index,
providing rate quotations comparable to those currently provided on such page of such index, as
determined by the Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to US Dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as
the rate for US Dollar deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the LIBO Rate with respect to
such Eurodollar Borrowing for such Interest Period shall be the rate at which US Dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period.
Lien
any mortgage, pledge, hypothecation, assignment, deposit arrangement, security
interest, encumbrance, lien (statutory or otherwise), preference, priority or charge of any kind
(including any conditional sale or other title retention agreement, any financing or similar
statement or notice filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and any lease in the nature
thereof).
Loan
the term Loan made by each Lender to the Borrower pursuant to Section 2.01(a) of this
Agreement, and, as the context may require, each Alternate Base Rate Loan and Eurodollar Loan
comprising such Lenders term Loan.
Loans
shall mean the term Loans made by the Lenders to the
Borrower pursuant to Section 2.01(a) of this Agreement and, as the context may require, the
Alternate Base Rate Loans and Eurodollar Loans comprising each Lenders term Loan as provided in
Section 2.01(c) of this Agreement.
Loan Document(s)
this Agreement, the Guaranty Agreement, any Notes and each and every
other agreement executed in connection with this Agreement.
Majority Lenders
at any time, Lenders holding more than 50.0% of the then aggregate
outstanding principal amount of the Loans.
10
Margin Regulations
Regulations T, U and X of the Board.
Material Adverse Change
any change occurring since December 31, 2009, in the consolidated
financial position or results of operations of the Borrower and its Subsidiaries taken as a whole
that has had or could reasonably be expected to have the effect of preventing the Borrower from
carrying on its business or from meeting its current and anticipated obligations on a timely basis.
Material Subsidiary
any Subsidiary which as of any relevant date either (i) represents
more than five percent (5%) of the Consolidated Net Income of the Borrower for the preceding period
of four (4) consecutive fiscal quarters for which financial statements are then available or (ii)
if such Subsidiary were formed or acquired during such period, would have represented more than
five percent (5%) of Consolidated Net Income assuming that Consolidated Net Income were calculated
after giving
pro forma
effect to such acquisition or formation, as if it had occurred on the first
day of such period.
Maturity Date
August 2, 2013.
Moodys
Moodys Investors Service, Inc., and any successor thereto that is a nationally
recognized rating agency.
Multiemployer Plan
a Plan which is a multiemployer plan as defined in section 3(37) or
4001 (a)(3) of ERISA.
Note
any promissory note of the Borrower payable to the order of a Lender in substantially
the form attached hereto as
Exhibit A
.
Other Taxes
any and all present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to, this Agreement, other than
income, franchise and similar taxes and Excluded Taxes.
Participant
as defined in Section 10.04(c)(i).
Partnership Agreement
the Amended and Restated Agreement of Limited Partnership of the
Borrower, as may be amended from time to time.
Permitted Acquisitions
an Acquisition by the Borrower or any of its Subsidiaries, so long
as (i) no Default or Event of Default is in existence or would be created thereby, (ii) (x) a
substantial part of the assets of the Person (including any Joint Venture) or (y) the assets being
acquired by the Borrower or such Subsidiaries are commonly understood to be in the midstream energy
business, and (iii) immediately after giving effect to such acquisition, the Borrower has aggregate
availability of not less than $50,000,000 under committed credit facilities and its Consolidated
Leverage Ratio does not exceed 4.25 to 1.00.
Permitted Senior Debt
any Indebtedness in an aggregate principal amount not to exceed, at
any one time outstanding, (a) the greater of (i) $50,000,000 and (ii) 15% of Consolidated Net
Tangible Assets minus (b) the Principal Amount of the Loans, calculated as of
11
the date such Indebtedness is incurred; provided that, for purposes of this definition with
respect to any such Indebtedness of a Joint Venture of the Borrower with no recourse to the
Borrower or any wholly-owned Subsidiary thereof, only that portion of such Indebtedness reflecting
the Borrowers pro rata ownership interest therein shall be included in calculating compliance
herewith.
Permitted Senior Debt Document
means any indenture, note purchase agreement, term loan
agreement, revolving credit agreement, commercial paper facility or other agreement pursuant to
which any Permitted Senior Debt is incurred.
Person
any individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or political subdivision
thereof.
Plan
any employee pension benefit plan, as defined in section 3(2) of ERISA, which (a) is
currently or hereafter sponsored, maintained or contributed to by the Borrower, a Subsidiary or an
ERISA Affiliate or (b) was at any time during the six calendar years preceding the Effective Date,
sponsored, maintained or contributed to by the Borrower, a Subsidiary or an ERISA Affiliate.
Pricing Schedule
the schedule attached hereto as
Schedule I
and identified as
such.
Prime Rate
the rate of interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its principal U.S. office; each change in the
Prime Rate shall be effective from and including the date such change is publicly announced as
being effective. Such rate is set by the Administrative Agent as a general reference rate of
interest, taking into account such factors as the Administrative Agent may deem appropriate; it
being understood that many of the Administrative Agents commercial or other loans are not priced
in relation to such rate, that it is not necessarily the lowest or best rate actually charged to
any customer and that the Administrative Agent may make various commercial or other loans at rates
of interest having no relationship to such rate.
Principal Amount
the outstanding principal amount of any Loan.
Register
as defined in Section 10.04(b)(iv).
Related Parties
with respect to any specified Person, such Persons Affiliates and the
respective directors, officers, employees, advisors and agents of such Person and such Persons
Affiliates.
Restricted Payment
any dividend or other distribution (whether in cash, securities or
other property) with respect to any equity interests in the Borrower or any of its Subsidiaries, or
any payment (whether in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such equity interests in the Borrower or any of its Subsidiaries or any option,
warrant or other right to acquire any such equity interests in the Borrower or any of its
Subsidiaries.
12
Revolving Credit Agreement
that certain Revolving Credit Agreement dated October 29, 2009
among Borrower, Wells Fargo Bank, National Association, as administrative agent, and the lenders
named therein, as from time to time amended, supplemented, replaced, restated or otherwise modified
from time to time, together with any and all other documents, instruments and certificates executed
and delivered pursuant thereto, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
S&P
Standard & Poors Ratings Group, a division of The McGraw-Hill Companies, and any
successor thereto that is a nationally recognized rating agency.
Sale and Leaseback Transaction
as defined in Section 6.09.
Subsidiary
with respect to any Person (the parent) at any date, any corporation, limited
liability company, partnership, association or other entity the accounts of which would be
consolidated with those of the parent in the parents consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity (a) of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such
date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent. Unless the context otherwise clearly requires,
reference in this Agreement to a Subsidiary or the Subsidiaries refers to a Subsidiary or the
Subsidiaries of the Borrower.
Syndication Agent
as defined in the preamble hereof.
Taxes
any and all present or future taxes, levies, imposts, duties, deductions, charges or
withholdings and interest or penalties in respect thereof imposed by any Governmental Authority.
Transactions
the execution, delivery, and performance by the Borrower of this Agreement,
the borrowing of the Loans and the use of the proceeds thereof.
Type
as to any Loan or Borrowing, its nature as an Alternate Base Rate Loan or an
Alternate Base Rate Borrowing, a Eurodollar Loan or a Eurodollar Borrowing.
US
or
United States
the United States of America, its fifty states, and the District of
Columbia.
US Dollars
or
US$
or
$
or
Dollars
lawful money of the United States of America.
USA Patriot Act
as defined in Section 10.14.
Working Capital Line
the working capital line of credit issued by Anadarko to the Borrower
pursuant to that Working Capital Loan Agreement dated as of May 25, 2010, as the
13
same may be amended, restated, modified or replaced from time to time, in an aggregate amount
not exceeding $30,000,000.
Section 1.02 Use of Defined Terms
. Any defined term used in the plural preceded by the
definite article shall be taken to encompass all members of the relevant class. Any defined term
used in the singular preceded by any shall be taken to indicate any number of the members of the
relevant class.
Section 1.03 Accounting Terms
. All accounting terms not specifically defined herein shall be
construed in each case in accordance with GAAP as in effect from time to time;
provided that
unless
the Borrower and the Majority Lenders shall otherwise agree in writing, no such change shall modify
or affect the manner in which compliance with the covenants contained herein is computed such that
all such computations shall be conducted utilizing financial information presented consistently
with prior periods.
Section 1.04 Interpretation
. The word including (and with correlative meaning include)
means including, without limitation, the generality of any description preceding such term.
ARTICLE II
AMOUNT AND TERMS OF LOANS
Section 2.01 Loans
.
(a) Subject to the terms and conditions of this Agreement, each Lender severally agrees
to make a single term Loan to the Borrower on the Effective Date in a principal amount that
will not result in (i) such Lenders Loan exceeding such Lenders Commitment or (ii) the sum
of the total Loans of all Lenders exceeding the total Commitments. The Borrower may not use
the Commitments by borrowing, repaying and prepaying the Loans in whole or in part, and
reborrowing.
(b) The term Loan shall be made only on the Effective Date as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their Commitments. The
failure of any Lender to make its Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder, provided that the Commitments of the Lenders are several
and no Lender shall be responsible for any other Lenders failure to make its Loan as
required.
(c) Subject to Section 2.17, the Loans may be (i) Eurodollar Loans, (ii) Alternate Base
Rate Loans or (iii) a combination thereof, as determined by the Borrower. Eurodollar Loans
shall be made and maintained by each Lender at either its Eurodollar Lending Office or its
Domestic Lending Office, at its option, provided that the exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the terms of this
Agreement or create or increase any obligation of the Borrower not otherwise arising, or
arising in such increased amount, under Section 2.14.
14
Section 2.02 Repayment of Loans; Evidence of Debt
.
(a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal and accrued interest amount of the Loan
of such Lender on the Maturity Date in respect of such Lender;
provided that
all Loans shall
be paid on such earlier date upon which the maturity of the Loans shall have been accelerated
pursuant to ARTICLE VIII.
(b) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting from the Loan
made by such Lender, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder, and (iii) the amount of any sum received
by the Administrative Agent hereunder for the account of the Lenders and each Lenders share
thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b) and (c) of
this Section 2.02 shall be prima facie evidence of the existence and amounts of the
obligations recorded therein;
provided
that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that the Loan made by it to the Borrower be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver to such
Lender a promissory note payable to the order of such Lender in substantially the form
attached hereto as
Exhibit A
. Thereafter, the Loan evidenced by such Note and
interest thereon shall, at all times (including after assignment pursuant to Section 10.04),
be represented by one or more Notes in such form payable to the order of the payee named
therein.
(f) Each Lender is authorized to and shall endorse the date, Type and amount of the Loan
made by such Lender, each continuation thereof, each conversion of all or a portion thereof
to the same or another Type, and the date and amount of each payment of principal with
respect thereto on the schedule annexed to and constituting a part of its Note from the
Borrower. No failure to make or error in making any such endorsement as authorized hereby
shall affect the validity of the obligations of the Borrower to repay the unpaid Principal
Amount of the Loan made to the Borrower with interest thereon as provided in Section 2.10 or
the validity of any payment thereof made by the Borrower. Each Lender shall, at the request
of the Borrower, deliver to the Borrower copies of the Borrowers Note and the schedules
annexed thereto.
15
Section 2.03 Procedure for Borrowing
. The Borrower shall borrow the Loans on the Effective
Date, which shall be a Business Day;
provided
that the Borrower shall notify the Administrative
Agent by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a
form approved by the Administrative Agent and signed by the Borrower of the Borrowing (the
Borrowing Request
) not later than 10:00 a.m., New York City time (a) three (3) Business Days
prior to the Effective Date, in the case of Eurodollar Loans, and (b) on the Effective Date, in the
case of Alternate Base Rate Loans. Such written Borrowing Request shall specify (i) the amount to
be borrowed, (ii) the Effective Date, (iii) whether the Borrowing is to consist of Eurodollar
Loans, Alternate Base Rate Loans, or a combination thereof (in each case stating the amounts and
currency requested), (iv) in the case of Eurodollar Loans, the length of the Interest Period(s)
therefor, and (v) the location and number of the Borrowers account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.12. The Borrowing shall be in an
amount specified in the Borrowing Request not to exceed the aggregate amount of the Commitments.
Upon receipt of such notice, the Administrative Agent shall promptly notify each Lender thereof.
Each Lender will make the amount of its pro rata share of the Borrowing available to the
Administrative Agent for the account of the Borrower in accordance with Section 2.12. The proceeds
of the Borrowing of Loans will be made available to the Borrower by the Administrative Agent in
accordance with Section 2.12.
Section 2.04 Reserved
.
Section 2.05 Reserved
.
Section 2.06 Reserved
.
Section 2.07 Optional Prepayments
.
(a) The Borrower may, at its option, as provided in this Section 2.07, at any time and
from time to time prepay the Loans payable by the Borrower, in whole or in part, upon notice
to the Administrative Agent, specifying (i) the date and amount of prepayment, and (ii) the
respective amounts to be prepaid in respect of such Loans. Upon receipt of such prepayment
notice, the Administrative Agent shall promptly notify each Lender thereof. The payment
amount specified in such notice shall be due and payable on the date specified. All
prepayments pursuant to this Section 2.07 shall include accrued interest on the amount
prepaid to the date of prepayment and, in the case of prepayments of Eurodollar Loans, any
amounts payable pursuant to Section 2.21. The Loans shall also be subject to prepayment as
provided in Section 10.13.
(b) Partial optional prepayments pursuant to this Section 2.07 shall be in an aggregate
principal amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof. All
prepayments of Loans pursuant to this Section 2.07 shall be without the payment by the
Borrower of any premium or penalty except for amounts payable pursuant to Section 2.21.
Section 2.08 Reserved
.
Section 2.09 Reserved
.
16
Section 2.10 Interest
.
(a) Each Eurodollar Loan shall bear interest for each day during each Interest Period
with respect thereto on the unpaid Principal Amount thereof at a rate per annum equal to the
LIBO Rate for such Interest Period plus the Eurodollar Margin for such day. Each Alternate
Base Rate Loan shall bear interest on the unpaid Principal Amount thereof at a fluctuating
rate per annum equal to the Alternate Base Rate plus the Base Rate Margin. Upon the
occurrence and continuance of any Event of Default occurring pursuant to Section 8.01(a),
Section 8.01(f) or Section 8.01(g), all Loans outstanding and such overdue amount, in the
case of a failure to pay amounts when due, shall automatically bear interest (as well after
as before judgment), at a rate per annum which is two percent (2%) above the rate which would
otherwise be applicable to such Loan pursuant to whichever of the three preceding sentences
shall apply (the
Post-Default Rate
) until paid in full. Upon the occurrence and
continuance of any Event of Default other than those listed in the previous sentence, all
Loans outstanding shall bear interest at the Post-Default Rate upon the written election of
the Majority Lenders. Interest shall be payable in arrears on each Interest Payment Date;
provided
,
however
, that interest payable on overdue principal shall be payable on demand.
(b) The Borrowing initially shall be of the Type specified in the Borrowing Request and,
in the case of a Eurodollar Loan, shall have an initial Interest Period as specified in the
Borrowing Request. Thereafter, the Borrower may elect to convert the Borrowing to a
different Type or to continue the Borrowing for an additional Interest Period (and elect
Interest Periods therefor), all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing, in which case
each such portion shall be allocated ratably among the Lenders holding the Loans comprising
such Borrowing, and the Loans comprising each such portion shall then and thereafter be
considered a separate Borrowing.
(c) To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election (the
Interest Election Request
) by telephone by the
time that a Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on the effective
date of such election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent and signed
by the Borrower.
(d) Each telephonic and written Interest Election Request shall identify the Borrower
and specify the following information in compliance with Section 2.03:
(i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
17
(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an Alternate Base Rate Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term
Interest Period
.
(e) If any such Interest Election Request requests a Eurodollar Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed to have selected an Interest
Period of one months duration.
(f) Promptly following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lenders obligation with respect
to each resulting Borrowing.
(g) If the Borrower fails to deliver a timely Interest Election Request with respect to
a Eurodollar Loan prior to the end of the Interest Period applicable thereto, then, unless
such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be continued as an Alternate Base Rate Loan. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Majority Lenders, so notifies the Borrower, then,
so long as such Event of Default is continuing (i) no outstanding Borrowing may be continued
as a Eurodollar Loan, and (ii) unless repaid, each Eurodollar Loan shall be continued as an
Alternate Base Rate Loan at the end of the Interest Period applicable thereto.
Section 2.11 Computation of Interest
.
(a) Interest on Alternate Base Rate Loans shall be calculated on the basis of a 365- (or
366- as the case may be) day year for the actual days elapsed. Interest on Eurodollar Loans
shall be calculated on the basis of a 360-day year for the actual days elapsed. The
Administrative Agent shall notify the Borrower and the Lenders of each determination of a
LIBO Rate. Any change in the interest rate resulting from a change in the Alternate Base
Rate shall become effective as of the opening of business on the day on which such change in
the applicable rate shall become effective. The Administrative Agent shall notify the
Borrower and the Lenders of the effective date and the amount of each such change in the
Alternative Base Rate.
(b) The Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the computations used by the Administrative Agent in determining
any interest rate pursuant to Section 2.11(a).
18
Section 2.12 Funding of Borrowings
.
(a) Each Lender shall make the Loan to be made by it hereunder on the Effective Date by
wire transfer of immediately available funds by 12:00 p.m., New York City time, to the
account of the Administrative Agent designated by it for such purpose by notice to the
Lenders. The Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower designated by
the Borrower in the Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to
the Effective Date that such Lender will not make available to the Administrative Agent such
Lenders share of the Borrowing, the Administrative Agent may assume that such Lender has
made such share available on the Effective Date in accordance with Section 2.12(a) and may,
in reliance upon such assumption, make available to the Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the Borrowing available to the
Administrative Agent, then each such Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender,
the greater of the cost incurred by the Administrative Agent for making such Lenders share
of the Borrowing and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, or (ii) in the case of the Borrower, the interest
rate applicable to Alternate Base Rate Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lenders Loan included in the
Borrowing.
Section 2.13 Pro Rata Treatment and Payments
.
(a) The Borrowing by the Borrower from the Lenders, each payment (including each
prepayment) by the Borrower on account of the principal of and interest on the Loans shall be
made pro rata according to the Applicable Percentages, except that (i) payments or
prepayments, and offsets against or reductions from the amount of payments and prepayments,
in each case, specifically for the account of a particular Lender under the terms of Section
2.14, Section 2.15, Section 2.16, Section 2.21, Section 10.03 or Section 10.13 shall be made
for the account of such Lender, and (ii) if any Lender shall become a Defaulting Lender, from
and after the date upon which such Lender shall have become a Defaulting Lender, any payment
made on account of principal of or interest on the Loans shall be applied, first for the
account of the Lenders other than the Defaulting Lender, pro rata according to the Applicable
Percentages of such Lenders, until the principal of and interest on the Loans of such Lenders
shall have been paid in full and, second for the account of such Defaulting Lender, provided
that the application of such payments in accordance with this clause (ii) shall not
constitute an Event of Default or a Default, and no payment of principal of or interest on
the Loans of such Defaulting Lender shall be considered to be overdue for purposes of Section
2.10(a), if, had such payments been applied without regard to this clause (ii), no such Event
of Default or Default would have occurred and no such payment of principal of or interest on
the Loans of such
19
Defaulting Lender would have been overdue. All payments (including prepayments) to be
made by the Borrower on account of principal and interest shall be made in immediately
available funds without setoff or counterclaim and shall be made to the Administrative Agent
on behalf of the Lenders at the Administrative Agents office as notified to the Borrower
from time to time at least five (5) Business Days before any change in such office. On the
date of this Agreement, the office of the Administrative Agent is located at Wells Fargo
Bank, National Association, Houston Energy Group, 1000 Louisiana Street, 9th Floor, Houston,
TX 77002, Attention of Will Rogers, Phone No.: (713) 319-1362, Facsimile No.: (713)
739-1087. The Administrative Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received.
(b) If any payment hereunder (other than payments on the Eurodollar Loans) becomes due
and payable on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension. If any payment on a Eurodollar
Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such extension would be
to extend such payment into another calendar month in which event such payment shall be made
on the immediately preceding Business Day.
(c) Except as provided in Section 2.14, Section 2.15, Section 2.16, Section 2.21,
Section 10.03, Section 10.13, and this Section 2.13, if any Lender shall, by exercising any
right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of
or interest on any of the Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Loans with respect to the Loans
of other Lenders to the extent necessary so that the benefit of all such payments shall be
shared by such Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans;
provided
that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the
extent it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the Borrower rights
of set-off and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Administrative Agent
20
for the account of the Lenders hereunder that the Borrower will not make such payment,
the Administrative Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the
amount due. In such event, if the Borrower has not in fact made such payment, then each of
the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the cost incurred by the Administrative Agent for
making such distributed amount and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.12(b) or Section 2.13(d), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lenders obligations
under such Sections until all such unsatisfied obligations are fully paid.
Section 2.14 Increased Cost of Loans
.
(a) If any change in any applicable law, treaty or governmental regulation after the
date of this Agreement, or in the interpretation or application thereof after the date of
this Agreement, or compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental Authority made or issued
after the date of this Agreement, which:
(i) does or shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, or deposits or other
liabilities in or for the account of, advances or loans by, or other credit extended by, or
any other acquisition of funds by, any office of such Lender; or
(ii) does or shall impose on such Lender or the London interbank market any other
condition affecting this Agreement, any Note or the Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to such Lender of making, continuing
or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan), or to
reduce any amount received or receivable by such Lender hereunder or under any Note (whether of
principal, interest, or otherwise), then, in any such case, the Borrower shall pay such Lender,
upon written demand being made to the Borrower by such Lender, such additional amount or amounts
which will compensate such Lender for such amounts as such Lender reasonably deems to be material
with respect to this Agreement, the Notes, or the Loans hereunder,
provided
, however, that if all
or any such additional cost would not have been payable, or such reduction would not have occurred,
but for such Lenders decision to designate a new Eurodollar Lending Office or Domestic Lending
Office or refusal to change to another Eurodollar Lending Office or Domestic Lending Office as
provided below, the Borrower shall have no obligation under this Section 2.14 to compensate such
Lender for such amount. Such
21
demand shall be accompanied by a certificate of a duly authorized officer of such Lender setting
forth the amount of such payment and the basis therefor. Each Lender shall also give written
notice to the Borrower and the Administrative Agent of any event occurring after the date of this
Agreement which would entitle such Lender to compensation pursuant to this Section 2.14 as promptly
as practicable after it obtains knowledge thereof and determines to request such compensation and
will designate a different Eurodollar Lending Office or a Domestic Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation and will not, in
the sole opinion of such Lender, be disadvantageous to such Lender. Notwithstanding the foregoing,
in the event that any Lender shall demand payment pursuant to this Section 2.14, the Borrower may,
upon at least two (2) Business Days notice to the Administrative Agent and such Lender, continue
in whole (but not in part) the Eurodollar Loans of such Lender into Alternate Base Rate Loans
without regard to the requirements of Section 2.10.
(b) If any Lender shall have reasonably determined that the adoption after the date of
this Agreement of any law, rule or regulation regarding capital adequacy, or any change
therein or in the interpretation or application thereof after the date of this Agreement or
compliance by any Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any central bank or other Governmental Authority made or
issued after the date of this Agreement, does or shall have the effect of reducing the rate
of return on such Lenders capital, or in the capital of such Lenders holding company, if
any, as a consequence of its obligations hereunder to a level below that which such Lender,
or such Lenders holding company, could have achieved but for such adoption, change or
compliance (taking into consideration such Lenders policies and the policies of such
Lenders holding company with respect to capital adequacy) by an amount reasonably deemed by
such Lender to be material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request therefor, the
Borrower shall pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction from and after such date the Borrower receives the request;
provided
,
however
, that the foregoing shall not apply to any capital adequacy requirement
imposed solely by reason of any business combination effected after the Effective Date.
(c) A certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as the case may be, as specified in paragraph
(a) or (b) of this Section 2.14 shall be delivered to the Borrower and shall be prima facie
evidence of the amount of such payment. The Borrower shall pay such Lender the amount shown
as due on any such certificate within ten (10) days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation pursuant to this
Section 2.14 shall not constitute a waiver of such Lenders right to demand such
compensation;
provided
that the Borrower shall not be required to compensate a Lender
pursuant to this Section 2.14 for any increased costs or reductions incurred more than 270
days prior to the date that such Lender notifies the Borrower of the change in law giving
rise to such increased costs or reductions and of such Lenders intention to claim
compensation therefor;
provided further
that, if the change in law giving rise to such
22
increased costs or reductions is retroactive, then the 270-day period referred to above
shall be extended to include the period of retroactive effect thereof.
Section 2.15 Illegality
. Notwithstanding anything herein contained, if any Lender shall make
a good faith determination that a change in any applicable law or regulation after the date of this
Agreement or in the interpretation thereof after the date of this Agreement by any authority
charged with the administration thereof shall make it unlawful for such Lender to give effect to
its obligations to make, continue or maintain its Eurodollar Loans under this Agreement, the
obligation of such Lender to make, continue or maintain Eurodollar Loans hereunder shall be
suspended for the duration of such illegality. Such Lender, by written notice to the
Administrative Agent and the Borrower, shall declare that such Lenders obligation to make
Eurodollar Loans and to, continue and maintain Eurodollar Loans shall be suspended, and the
Borrower, on the last day of the then current Interest Period applicable to such Eurodollar Loans
or portion thereof or, if such Lender so requests, on such earlier date as may be required by
relevant law, shall continue such Eurodollar Loans or portion thereof as Alternate Base Rate Loans
without regard to the requirements of Section 2.10. If and when such illegality ceases to exist,
such suspension shall cease and such Lender shall notify the Borrower and the Administrative Agent
thereof and any Loans previously continued from Eurodollar Loans to Alternate Base Rate Loans
pursuant to this Section 2.15 shall be continued as Loans of Types corresponding to the Loans
maintained by the other Lenders on the last day of the Interest Period of the corresponding
Eurodollar Loans of such other Lenders.
Section 2.16 Taxes
.
(a) Any and all payments by or on account of any obligation of the Borrower under each
Loan Document shall be made free and clear of and without deduction or withholding for any
Indemnified Taxes or Other Taxes;
provided
that if the Borrower shall be required to deduct
or withhold any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions or withholding
(including deductions or withholding applicable to additional sums payable under this
Section), the Administrative Agent or any Lender receives an amount equal to the sum it would
have received had no such deductions or withholding been made, (ii) the Borrower shall make
such deductions or withholding, and (iii) the Borrower shall pay the full amount deducted or
withheld to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender, within ten
(10) days after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes paid by the Administrative Agent or such Lender, on or with respect to any
payment by or on account of any obligation of the Borrower under each Loan Document
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the
23
relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender, or by the Administrative Agent on its own
behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding
tax under the law of the jurisdiction in which the Borrower is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation prescribed
by applicable law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or with withholding at a reduced rate. In addition, each Lender
that is not (i) a Foreign Lender or (ii) an exempt recipient that is either (A) a
corporation described in U.S. Treasury regulation section 1.6049-4(c)(1)(ii)(A)(1) or (B) a
financial institution described in U.S. Treasury regulation section 1.6049-4(c)(1)(ii)(M)
(provided that the Lender is reasonably identifiable as a financial institution pursuant to
the last two sentences of subparagraph (M)), agrees to provide Borrower with such form or
forms, including IRS Form W-9, as may be required under the Code, or other laws of the United
States or reasonably requested by Borrower, as a condition to exemption from, United States
backup withholding before receiving its first payment under this Agreement and at any other
time reasonably requested by Borrower.
(f) For any period during which a Lender has failed to provide the Borrower with the
appropriate documentation as required by Section 2.16(e), the Borrower shall not be obligated
to pay, and such Lender shall not be entitled to secure additional amounts under this Section
2.16 with respect to Indemnified Taxes imposed by a Governmental Authority to the extent that
such additional amounts would not have arisen but for such failure of such Lender.
(g) If the Administrative Agent or a Lender determines, in its sole discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts pursuant to this
Section 2.16, it shall pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.16
with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to such refund);
provided
,
however
, that the Borrower, upon the request of the Administrative Agent or such
Lender, agrees to forthwith repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event
24
the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. Nothing contained in this Section 2.16 shall require the
Administrative Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower or any other
Person.
(h) If the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16(a), then such
Lender shall use reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (a) would eliminate or reduce amounts payable pursuant to Section 2.16(a), in the
future and (b) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such designation
or assignment.
(i) If a payment made to a Lender under this Agreement would be subject to withholding
tax imposed by FATCA if such Lender fails to comply with the applicable reporting
requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code,
as applicable), such Lender shall deliver to the Administrative Agent, at the time or times
prescribed by applicable law and at such time or times reasonably requested by the
Administrative Agent, such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Administrative Agent as may be necessary for the Administrative
Agent to comply with its obligations under FATCA, to determine that such Lender has complied
with such Lenders obligations under FATCA or to determine the amount to deduct and withhold
from such payment.
Section 2.17 Substitute Loan Basis
. In the event that prior to the commencement of any
Interest Period for any Eurodollar Borrowing the Majority Lenders shall reasonably determine (which
determination shall be final and conclusive and binding upon the Borrower) that (a) by reason of
changes affecting the London Interbank Eurodollar Market, adequate and fair means do not exist for
ascertaining the LIBO Rate for such requested Interest Period, or (b) the LIBO Rate will not
adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans
included in such Borrowing for such Interest Period then, and in any such event, the Administrative
Agent shall forthwith give notice to the Borrower and, (i) unless, on the date upon which such
Eurodollar Loans were to be made, the Borrower notifies the Administrative Agent that it elects not
to borrow on such date, any Eurodollar Loans requested to be made on the first day of such Interest
Period shall be made as Alternate Base Rate Loans, (ii) any Loans that were to have been, on the
first day of such Interest Period, continued as Eurodollar Loans, shall be continued as Alternate
Base Rate Loans on the date upon which such Loans were to have been continued, and (iii) any
outstanding Eurodollar Loans shall be continued, on the last day of the Interest Period applicable
thereto, as Alternate Base Rate Loans on the date upon which such Loans are to be continued. The
Administrative Agent shall give written notice to the Borrower of any event occurring after the
giving of such notice which permits an adequate and fair means of ascertaining the LIBO Rate and
until such notice by the
25
Administrative Agent, no further Eurodollar Loans shall be made or continued as such, nor
shall the Borrower have the right to continue as Eurodollar Loans.
Section 2.18 Certain Conversions or Continuations
. If the Eurodollar Loans of any Lender are
converted or continued as Alternate Base Rate Loans pursuant to Section 2.14 or Section 2.15 (such
Eurodollar Loans being herein called
Affected Loans
), unless and until such Lender gives written
notice that the circumstances which gave rise to such conversion or continuation no longer exist
(which such Lender agrees to do promptly upon such circumstances ceasing to exist) such Lender
shall not make further Affected Loans and all Loans which would otherwise be made by such Lender
as, or continued by such Lender into, Affected Loans shall be made instead as, or continued as
Alternate Base Rate Loans (on which interest and principal shall be payable simultaneously with the
related Loans of the other Lenders).
Section 2.19 Certain Notices
. Notices by the Borrower under each of Section 2.03, Section
2.07, Section 2.14, Section 2.17, and Section 2.10 and under the definition of Interest Period in
Section 1.01 (a) shall (unless otherwise specifically provided) be given in writing, by telecopy or
by telephone (confirmed promptly in writing), and (b) shall be effective only if received by the
Administrative Agent and, in the case of Section 2.14, the Lender involved, not later than 11:30
a.m. (New York City time) on the day specified in the respective Section or definition as the
latest day such notice may be given. Notices by the Borrower under each of Section 2.03, Section
2.07, Section 2.14, Section 2.17, and Section 2.10 shall be irrevocable.
Section 2.20 Minimum Amounts of Eurodollar Borrowings
. All Borrowings and continuations of
Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections so that, after giving effect thereto, the aggregate Principal
Amount of the Loans comprising each Eurodollar Borrowing shall be equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof.
Section 2.21 Break Funding Payments
. In the event of (a) the payment of any Principal Amount
of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the continuation of any Eurodollar Loan other
than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, continue
or prepay any Loan on the date specified in any notice delivered pursuant hereto, (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the Principal Amount of such Loan had such event not occurred, at the LIBO Rate (in the
case of a Eurodollar Loan) that would have been applicable to such Loan, for the period from the
date of such event to the last day of the then current Interest Period therefor (or, in the case of
a failure to borrow or continue, for the period that would have been the Interest Period for such
Loan), over (ii) the amount of interest which would accrue on such Principal Amount for such period
at the interest rate which such Lender would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from other banks in the Eurodollar
market. A certificate of any such Lender setting forth any amount or amounts that such Lender is
entitled to receive pursuant to this Section shall be delivered to
26
the Borrower and the Administrative Agent and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days
after receipt thereof. Notwithstanding anything to the contrary contained herein, no Lender shall
be entitled to receive any amount or amounts pursuant to this Section if such amount or amounts are
attributable solely to the merger or other consolidation of such Lender with another Lender.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations of the Borrower
. The Borrower represents and warrants to the
Administrative Agent and the Lenders that:
(a) The Borrower and each Subsidiary has been duly formed and is validly existing and in
good standing under the laws of the jurisdiction of its organization and (ii) the Borrower
and each Subsidiary is qualified to do business as a foreign entity and is in good standing
in each jurisdiction of the United States in which the ownership of its properties or the
conduct of its business requires such qualification and where the failure to so qualify would
constitute a Material Adverse Change.
(b) This Agreement, the Transactions and all other Loan Documents to which the Borrower
or any Subsidiary is a party have been duly authorized, executed and delivered by the
Borrower or such Subsidiary, and each of this Agreement, its Notes and the other Loan
Documents to which it is a party constitutes a valid and binding agreement of the Borrower,
enforceable in accordance with its respective terms, subject to the effect of applicable
bankruptcy, insolvency or similar laws affecting creditors rights generally and equitable
principals of general applicability. The Borrowers Notes have been duly authorized by the
Borrower and, when executed, issued and delivered pursuant hereto for value received, will
constitute valid and binding obligations of the Borrower, enforceable in accordance with
their terms, except as (i) may be limited by bankruptcy, insolvency or similar laws affecting
creditors rights generally, and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general applicability. There
are no actions, suits or proceedings pending or, to the knowledge of the Borrower or any
Subsidiary, threatened against the Borrower or any Subsidiary which purports to affect the
legality, validity or enforceability of this Agreement, any other Loan Document or any of
their respective Notes.
(c) The execution, delivery and performance of each Loan Document by the Borrower and
its Subsidiaries will not violate or conflict with (i) the organizational documents of the
Borrower or any Subsidiary, as in effect on the Effective Date, or (ii) any indenture, loan
agreement or other similar agreement or instrument binding on the Borrower or any Subsidiary.
(d) The Borrower and its Subsidiaries are in compliance with all laws, rules,
regulations, orders, decrees and requirements of any Governmental Authority applicable to
them or their properties, except where the necessity of compliance therewith
27
is being contested in good faith by appropriate proceedings or such failure to comply
would not have or would not reasonably be expected to cause a Material Adverse Change.
(e) On the Effective Date there are no actions, suits, proceedings or investigations
pending or, to the knowledge of the Borrower, threatened against the Borrower or any
Subsidiary before any Governmental Authority as to which, in the opinion of the Borrower,
there is a reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to constitute a
Material Adverse Change.
(f) The consolidated balance sheets of the Borrower (and its predecessor entity) and its
consolidated Subsidiaries as of December 31, 2008 and 2009, and the related consolidated
statements of income, partners (or stockholders) equity and cash flows for each of the
years in the three-year period ended December 31, 2009, audited by KPMG LLP, present fairly,
in all material respects, the consolidated financial position of the Borrower and its
consolidated Subsidiaries as of December 31, 2008 and 2009, and the results of their
operations and their cash flows for each of the years in the three-year period ended December
31, 2009, in conformity with GAAP applied on a consistent basis.
(g) There has been no Material Adverse Change.
(h) Neither the Borrower nor any Subsidiary is an
investment company
as defined in, or
subject to regulation under, the Investment Company Act of 1940.
(i) No ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events for which liability is reasonably expected to
occur, could reasonably be expected to result in a Material Adverse Change. The present value
of all accumulated benefit obligations of all underfunded Plans (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed the fair market
value of the assets of all such underfunded Plans by an amount that could reasonably be
expected to be a Material Adverse Change.
(j) Neither the Information Memorandum nor any of the other reports, financial
statements, certificates or other information furnished by or on behalf of the Borrower to
the Agents or any Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished), taken as a whole,
contains any material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they were made,
not misleading;
provided
that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time, it being understood that projections by their nature
are inherently uncertain and no assurances are being given that the results reflected in the
projected financial information will be achieved.
28
(k) The Borrowers Subsidiaries as of the Effective Date are listed on
Schedule II
.
(l) The General Partner has filed all United States Federal income tax returns and all
other material tax returns and reports required to be filed (or obtained extensions with
respect thereto) and has paid all taxes required to have been paid by it, except (i) taxes
the validity of which is being contested in good faith by appropriate proceedings, and with
respect to which the General Partner, to the extent required by GAAP, has set aside on its
books adequate reserves or (ii) to the extent the failure to do so (individually or
collectively) would not reasonably be expected to result in a Material Adverse Change.
(m) Each of the real properties owned or leased by the Borrower or any of its
Subsidiaries and all their operations at such properties are in compliance with all
applicable Environmental Laws and neither the Borrower nor any of its Subsidiaries has
received any notice regarding violation of any Environmental Law with respect to the
properties or the businesses operated by the Borrower or any of its Subsidiaries, except as
would not reasonably be expected to result in a Material Adverse Change.
(n) No Event of Default has occurred and is continuing.
(o) The Borrower and its Subsidiaries are not engaged principally, or as one of its or
their important activities, in the business of extending credit for the purpose, whether
immediate, incidental or ultimate, of buying or carrying margin stock (within the meaning of
the Margin Regulations).
(p) The Borrower and each of its Subsidiaries is and, after the consummation of the
transactions contemplated by this Agreement, will be solvent within the meaning of such
term under the United States Bankruptcy Code.
ARTICLE IV
AFFIRMATIVE COVENANTS
Until the principal of and interest on each Loan and all fees payable hereunder shall have been
paid in full, the Borrower covenants and agrees with the Lenders that:
Section 4.01 Financial Statements and Other Information
. The Borrower will furnish to the
Administrative Agent and each Lender:
(a) Within the period required by applicable law (and concurrently with the filing
thereof with the Commission), copies of the annual reports, information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Borrower may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934; or, if the Borrower is not required to file information, documents or reports pursuant
to either of said Sections, then such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934 in respect of a security
29
listed and registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
provided, however
, that the Borrower shall be deemed
to have furnished the information required by this Section 4.01(a) if it shall have timely
made the same available on EDGAR on the worldwide web and complied with Section 4.01(f) in
respect thereof;
provided further
, however, that if any Lender is unable to access EDGAR on
the worldwide web, the Borrower agrees to provide such Lender with paper copies of the
information required to be furnished pursuant to this Section 4.01(a) promptly following
notice from the Administrative Agent that such Lender has requested same.
(b) Within sixty (60) days after the close of each of the first three quarters of each
fiscal year of the Borrower, a statement by a responsible officer of the Borrower calculating
compliance or non-compliance, as the case may be, with Section 5.01 and Section 5.02 (if
applicable) as of the close of such period and stating whether to the knowledge of the
Borrower an event has occurred during such period and is continuing which constitutes an
Event of Default or a Default, and, if so, stating the facts with respect thereto.
(c) Within one hundred twenty (120) days after the close of each fiscal year of the
Borrower, a statement by a responsible officer of the Borrower calculating compliance or
non-compliance, as the case may be, with Section 5.01 and Section 5.02 (if applicable) as of
the close of such period and stating whether to the knowledge of the Borrower an event has
occurred during such period and is continuing which constitutes an Event of Default or a
Default, and, if so, stating the facts with respect thereto.
(d) Such other information respecting the financial condition or operations of the
Borrower and its Subsidiaries as the Administrative Agent or any Lender may from time to time
reasonably request.
(e) Information required to be delivered pursuant to Section 4.01(a) above shall be
deemed to have been delivered on the date on which the Borrower provides notice to the
Administrative Agent that such information has been posted on EDGAR (and the Borrower hereby
agrees to provide such notice).
Section 4.02 Notices of Material Events
. The Borrower will furnish to the Administrative
Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower that if adversely
determined, could reasonably be expected to result in a Material Adverse Change; and
(c) any other development that results in, or could reasonably be expected to result in,
a Material Adverse Change.
30
Each notice delivered under this Section 4.02 shall be accompanied by a statement of a Financial
Officer or other executive officer of the Borrower setting forth the details of the event or
development requiring such notice and any action taken with respect thereto.
Section 4.03 Compliance with Laws
. The Borrower will, and will cause each of the Subsidiaries
to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to
it or its property, and shall obtain all consents and approvals required by any Governmental
Authority (including the U.S. Department of Justice) with respect to acquisitions, except where the
necessity of compliance therewith is being contested in good faith by appropriate proceedings or
where the failure to do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Change.
Section 4.04 Use of Proceeds
.
(a) The proceeds of the Loans shall be used to repay borrowings under the Revolving
Credit Agreement, provide working capital and for capital expenditures, Permitted
Acquisitions or other general corporate purposes.
(b) No part of the proceeds of any Loan will be used for any purpose which violates the
Margin Regulations.
Section 4.05 Maintenance of Property; Insurance
.
(a) The Borrower will keep, and will cause each of its Subsidiaries to keep, all
property useful and necessary in its business in good working order and condition, ordinary
wear and tear excepted, except where the failure to do so could not reasonably be expected to
result in a Material Adverse Change.
(b) The Borrower will at all times maintain, with financially sound and reputable
insurers, insurance of the kinds, covering the risks and in the relative proportionate
amounts (including as to self-insurance) customarily carried by companies engaged in the same
or similar business and similarly situated;
provided
that the Borrower shall not be required
to maintain insurance against risks or in amounts no longer economically available on a de
novo or renewal basis, as applicable, to other companies engaged in the same or similar
business and similarly situated.
Section 4.06 Additional Guarantors
. The Borrower shall promptly cause any newly formed or
acquired Subsidiary other than a Joint Venture to guarantee the Loans made under this Agreement
pursuant to the Guaranty Agreement. In connection with any such guaranty, the Borrower shall, or
shall cause each such Subsidiary to, (a) execute and deliver a supplement to the Guaranty Agreement
executed by such Subsidiary and (b) execute and deliver such other additional closing documents,
certificates and legal opinions as shall reasonably be requested by the Administrative Agent. On
the Investment Grade Rating Date, if no Default or Event of Default has occurred and is continuing,
the Subsidiaries guaranteeing the Indebtedness shall be released of their obligations under the
Guaranty Agreement and this Section 4.06 shall have no further force or effect.
31
Section 4.07 Books and Records; Inspections
. The Borrower will keep, and will cause each of
its Subsidiaries to keep, complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP (including the establishment and maintenance of
appropriate reserves). The Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested. In the absence of an Event of Default and
notwithstanding anything to the contrary in Section 10.03, the Borrower shall not be required to
pay for more than one such visit in any year.
Section 4.08 Payment of Obligations
. The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations, including Tax liabilities of the Borrower and all of its
Subsidiaries before the same shall become delinquent or in default, except where (i) the validity
or amount thereof is being contested in good faith by appropriate proceedings, (ii) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance
with GAAP and (iii) the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Change.
Section 4.09 Material Contracts
. The Borrower will comply, and will cause its Subsidiaries to
comply, with all contracts necessary for the ongoing operation and business of the Borrower or such
Subsidiary in the ordinary course, except where the failure to comply would not have or would not
reasonably be expected to cause a Material Adverse Change.
ARTICLE V
FINANCIAL COVENANTS
Until the principal of and interest on each Loan and all fees payable hereunder shall have been
paid in full, the Borrower covenants and agrees with the Lenders that:
Section 5.01 Consolidated Leverage Ratio
. The Consolidated Leverage Ratio, as at the end of
each fiscal quarter of the Borrower (beginning with the fiscal quarter ending September 30, 2010),
shall be less than or equal to 4.50 to 1.00.
Section 5.02 Consolidated Interest Coverage Ratio
. The Consolidated Interest Coverage Ratio,
as at the end of each fiscal quarter of the Borrower (beginning with the fiscal quarter ending
September 30, 2010) occurring prior to the Investment Grade Rating Date, shall be greater than or
equal to 3.00 to 1.00. For each fiscal quarter ending on and after the Investment Grade Rating
Date, the Borrower shall have no further obligation to comply with this Section 5.02.
ARTICLE VI
NEGATIVE COVENANTS
Until the principal of and interest on each Loan and all fees payable hereunder shall have been
paid in full, the Borrower covenants and agrees with the Lenders that:
32
Section 6.01 Nature of Business
. The Borrower will not, nor will it permit its Subsidiaries
to (whether now owned or acquired or formed subsequent to the Effective Date), materially alter the
character of its or their business on a consolidated basis from the midstream energy business.
Section 6.02 Liens
. The Borrower will not create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it or any of its Subsidiaries, except for the following:
(a) Liens for taxes, assessments or other governmental or quasi-governmental charges or
levies not yet due or which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate provisions are being maintained
in accordance with GAAP;
(b) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and interest owners of oil and gas production and other Liens imposed by law,
created in the ordinary course of business and for amounts not past due for more than 60 days
or which are being contested in good faith by appropriate proceedings which are sufficient to
prevent imminent foreclosure of such Liens, are promptly instituted and diligently conducted
and with respect to which adequate reserves or other appropriate provisions are being
maintained in accordance with GAAP;
(c) Liens incurred or deposits made in the ordinary course of business (including,
without limitation, surety bonds and appeal bonds) in connection with workers compensation,
unemployment insurance and other types of social security benefits or to secure the
performance of tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or arising as a result of
progress payments under government contracts;
(d) easements (including, without limitation, reciprocal easement agreements and utility
agreements), rights of way, covenants, consents, reservations, encroachments, variations and
other restrictions, charges or encumbrances (whether or not recorded) affecting the use of
real property;
(e) Liens with respect to judgments and attachments which do not result in an Event of
Default;
(f) Liens created pursuant to construction, operating and maintenance agreements,
transportation agreements and other similar agreements and related documents entered into in
the ordinary course of business;
(g) Liens, deposits or pledges to secure the performance of bids, tenders, contracts
(other than contracts for the payment of money), leases permitted under the terms of this
Agreement (other than Capital Leases), public or statutory obligations, surety, stay, appeal,
indemnity, performance or other obligations arising in the ordinary course of business;
33
(h) Liens securing obligations under Capital Leases; provided, that (i) any such Liens
attach only to the property which is the subject of such Capital Lease, (ii) such Liens
secure only the Indebtedness comprised of such Capital Lease and (iii) the aggregate
Indebtedness being secured by such Liens does not exceed at any one time calculated as of the
date such Capital Lease is created ten percent 10% of Consolidated Net Tangible Assets;
(i) Liens securing Acquired Indebtedness;
(j) rights of first refusal entered into in the ordinary course of business;
(k) Liens consisting of any (i) rights reserved to or vested in any municipality or
governmental, statutory or public authority to control or regulate any property of the
Borrower or any Subsidiary or to use such property, (ii) obligations or duties to any
municipality or public authority with respect to any franchise, grant, license, lease or
permit and the rights reserved or vested in any Governmental Authority or public utility to
terminate any such franchise, grant, license, lease or permit or to condemn or expropriate
any property, or (iii) zoning laws, ordinances or municipal regulations;
(l) Liens on deposits required by any Person with whom the Borrower or any of its
Subsidiaries enters into forward contracts, futures contracts, swap agreements (including
interest rate swap agreements) or other commodities contracts in the ordinary course of
business;
(m) Liens arising out of the refinancing, extension, renewal or refunding of any
Indebtedness secured by any Lien permitted by this Section 6.02; provided, that the principal
amount of such Indebtedness is not increased (other than to provide for the payment of any
underwriting discounts and fees related to any refinancing Indebtedness as well as any
premiums owed on and accrued and unpaid interest related to the original Indebtedness) and is
not secured by any additional assets; and
(n) Liens securing (i) Permitted Senior Debt and (ii) other obligations in an amount not
to exceed, in the aggregate, at any one time, calculated as of the date such Lien is
incurred, 15% of Consolidated Net Tangible Assets less the principal amount of Permitted
Senior Debt then outstanding and permitted to be secured pursuant to clause (i) above (and,
for purposes of this Section 6.02(n), with respect to any such secured Indebtedness of a
Joint Venture of the Borrower with no recourse to the Borrower or any wholly-owned Subsidiary
thereof, only that portion of such Indebtedness reflecting the Borrowers pro rata ownership
interest therein shall be included in calculating compliance herewith),
provided that
, if the
amount of such Permitted Senior Debt and other obligations exceed the amount specified above,
then at the time such Liens to secure such Permitted Senior Debt or other obligations are
granted, the Loans and other obligations under this Agreement and other Loan Documents shall
be secured equally and ratably with such Permitted Senior Debt or other obligations.
34
Section 6.03 Dispositions
. Prior to the Investment Grade Rating Date, the Borrower will not
make, nor permit its Subsidiaries to make any Disposition except:
(a) Dispositions of inventory in the ordinary course of business;
(b) Dispositions of machinery and equipment no longer used or useful in the conduct of
business of the Borrower and its Subsidiaries that are Disposed of in the ordinary course of
business;
(c) Dispositions of assets to the Borrower or a Subsidiary;
(d) Dispositions of or constituting Investments permitted under Section 6.06;
(e) Dispositions of accounts receivable in connection with the collection or compromise
thereof;
(f) Dispositions of licenses, sublicenses, leases or subleases granted to others not
interfering in any material respect with the business of the Borrower and its Subsidiaries;
(g) Dispositions of Cash Equivalents for fair market value;
(h) Dispositions in which: (i) the assets being disposed are used simultaneously in
exchange for replacement assets or (ii) the net proceeds thereof are either (A) reinvested
within 180 days from such Disposition in assets to be used in the ordinary course of the
business of the Borrower and its Subsidiaries and/or (B) used
first
, to permanently
reduce on a dollar for dollar basis the commitments under the Revolving Credit Agreement, and
then
, to prepay the Loans; or
(i) other Dispositions not exceeding in the aggregate for the Borrower and its
Subsidiaries (i) 10% of Consolidated Net Tangible Assets in any fiscal year (measured as of
the date of determination) and (ii) 20% of Consolidated Net Tangible Assets during the term
of this Agreement.
Section 6.04 Transactions with Affiliates
. The Borrower will not, and will not permit any of
its Subsidiaries to, directly or indirectly, pay any funds to or for the account of, make any
investment in, lease, sell, transfer or otherwise dispose of any assets, tangible or intangible,
to, or participate in, or effect, any transaction with, any officer, director, employee or
Affiliate (other than the Borrower or one of its Subsidiaries) unless such transaction between the
Borrower and its Subsidiaries on the one hand and any officer, director, employee or Affiliate
(other than the Borrower or one of its Subsidiaries) on the other hand, shall be on terms that are
fair and reasonable to the Borrower or such Subsidiary; provided, that the foregoing provisions of
this Section 6.04 shall not (a) prohibit the Borrower or any Subsidiary from declaring or paying
any lawful dividend or distribution otherwise permitted hereunder, (b) prohibit the Borrower or any
Subsidiary from providing credit support for its Subsidiaries as it deems appropriate in the
ordinary course of business, (c) prohibit the Borrower or any Subsidiary from engaging in a
transaction or transactions on terms that are not fair and reasonable to such Person, provided that
35
such transaction or transactions occurs within a related series of transactions, which, in the
aggregate, are fair and reasonable to such Person, (d) prohibit the Borrower or any Subsidiary from
engaging in non-material transactions with any Affiliate other than the Borrower or any Subsidiary
that are not fair and reasonable to such Person, but are in the ordinary course of such Persons
business, so long as, in each case, after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing, (e) prohibit the Borrower or any Subsidiary from entering
into or performing its obligations under any of the agreements listed on
Schedule III
or
any amendments, modifications or replacements thereto that, in the aggregate, are not materially
adverse to the Borrower or any Subsidiary party thereto, or (f) prohibit the Borrower or any
Subsidiary from compensating its employees and officers in the ordinary course of business;
provided, further, that a finding by the Board of Directors of General Partner that a transaction
or series of transactions is on terms which are fair and reasonable to the Borrower or any
Subsidiary shall be dispositive.
Section 6.05 Indebtedness
. Prior to the Investment Grade Rating Date, the Borrower will not,
nor will it permit its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness under the Loan Documents;
(b) Investments permitted under Section 6.06 that would constitute Indebtedness;
(c) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under hedging agreements or other derivative products; provided that, such
obligations are (or were) entered into by such Person in the ordinary course of business for
the purpose of directly mitigating risks associated with liabilities, commitments,
investments, assets, or property held or reasonably anticipated by such Person, or changes in
the value of securities issued by such Person, and not for purposes of speculation or taking
a market view;
(d) current liabilities of the Borrower or its Subsidiaries incurred in the ordinary
course of business but not incurred through (i) the borrowing of money or (ii) the obtaining
of credit except for credit on an open account basis customarily extended and in fact
extended in connection with normal purchases of goods and services;
(e) Indebtedness in respect of taxes, assessments, governmental charges or levies and
claims for labor, materials and supplies to the extent that payment therefor shall not at the
time be required to be made in accordance with the provisions of this Agreement;
(f) Indebtedness in respect of the Working Capital Line and Intercompany Loan in an
aggregate principal amount not to exceed $205,000,000;
(g) Indebtedness in respect of the Revolving Credit Agreement;
(h) Indebtedness in respect of the APC Revolver in an aggregate amount not to exceed
$100,000,000;
36
(i) Indebtedness in respect of judgments or awards only to the extent, for the period
and for an amount not resulting in a Default or Event of Default;
(j) refinancings, extensions, renewals and refunding of Indebtedness permitted by this
Section 6.05;
(k) Acquired Indebtedness; and
(l) Permitted Senior Debt.
On and after the Investment Grade Rating Date, the Borrower will not (i) create, incur, assume or
suffer to exist any Indebtedness (other than Loans hereunder) unless at the time of the incurrence
thereof and after giving effect thereto (x) the Borrower shall be in compliance with Section 5.01
and (y) no Default or Event of Default shall have occurred and be continuing or (ii) permit its
Subsidiaries to, create, incur, assume or suffer any Indebtedness (other than guarantees of the
Loans hereunder), except (x) Indebtedness in an aggregate amount not to exceed, at any one time
outstanding as of the date such Indebtedness is incurred, not to exceed the lesser of (A) 20% of
Consolidated Net Tangible Assets less, if the Loans and other obligations under this Agreement have
not been secured as contemplated under Section 6.02(n), the amount of Indebtedness secured under
Section 6.02(n) and (B) 15% of Consolidated Net Tangible Assets and (y) Acquired Indebtedness.
Section 6.06 Investments
. Prior to the Investment Grade Rating Date, the Borrower will not,
nor will it permit its Subsidiaries to, make any Investments, except:
(a) Investments held by the Borrower or a Subsidiary of the Borrower in the form of cash
or Cash Equivalents;
(b) Investments in any Subsidiary of the Borrower or by any Subsidiary in the Borrower;
(c) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;
(d) Investments in any Joint Venture for the purpose of developing capital projects in
the midstream energy business;
provided that
either (i) such Joint Venture is not subject to
any contract or other consensual restriction or limitation on the ability of such Joint
Venture to make Restricted Payments to the Borrower or its Subsidiaries (each a
Payment
Restriction
) other than limitations contained in its organizational documents subjecting
such Restricted Payments to the discretion of its Board of Directors and/or permitting
Restricted Payments only to the extent of available cash (as defined therein), (ii) such
Investment is in a Joint Venture that was in existence prior to the Effective Date, or (iii)
if such Investment is in Joint Ventures subject to Payment Restrictions (other than as
permitted in the foregoing clause (ii)), the aggregate amount of all such Investments does
not exceed, at any one time outstanding, calculated as
37
of the date such Investment is made, 25% of Consolidated Net Tangible Assets;
provided
that
in no event shall the aggregate amount of Investments in Joint Ventures, other than
Investments in Joint Ventures permitted under the foregoing clause (ii), calculated as of the
date such Investment is made, exceed 30% of Consolidated Net Tangible Assets;
(e) Investments in Permitted Acquisitions;
(f) Loans and advances to the General Partner to enable the General Partner to pay
general and administrative costs and expenses pursuant to the Partnership Agreement;
(g) A $260,000,000 loan to Anadarko issued in connection with the Borrowers initial
public offering in the form of a 6.5% 30-year note payable quarterly, with principal and all
accrued and unpaid interest due in full at maturity; and
(h) other Investments in an aggregate amount not to exceed, at any one time outstanding,
$25,000,000.
Section 6.07 Restricted Payments
. Prior to the Investment Grade Rating Date, the Borrower
will not, nor will it permit its Subsidiaries to, declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) the Borrower may declare and pay dividends or distributions with respect to its
Equity Interests payable solely in additional Equity Interests of the Borrower;
(b) Subsidiaries may declare and pay dividends or distributions ratably with respect to
their Equity Interests;
(c) so long as no Default or Event of Default has occurred and is continuing or would
result therefrom, the Borrower may declare and pay quarterly cash dividends or distributions
to its partners of Available Cash in accordance with the Partnership Agreement;
(d) the Borrower and its Subsidiaries may make payments or other distributions to
officers, directors or employees with respect to the exercise by any such Persons of options,
warrants or other rights to acquire Equity Interests in the Borrower or such Subsidiary
issued pursuant to an employment, equity award, equity option or equity appreciation
agreement or plans entered into by the Borrower or such Subsidiary in the ordinary course of
business;
(e) so long as no Default or Event of Default exists and is continuing, the Borrower may
make repurchases of its Equity Interests; and
(f) so long as no Default or Event of Default exists and is continuing, the Borrower may
make special distributions to the General Partner in connection with any Permitted
Acquisition with Anadarko or any of its Subsidiaries (other than the Borrower and its
Subsidiaries) in an amount, for any Permitted Acquisition, not greater than the aggregate
value of the consideration for the property or assets acquired.
38
Section 6.08 Intercompany Payments
.
(a) The Borrower will not, nor will it permit its Subsidiaries to, make any payment of
principal on any intercompany Indebtedness owed to any Person other than the Borrower or its
Subsidiaries, except (i) payments made by the Borrower on the Working Capital Line, and (ii)
as may be refinanced with a public or private debt or equity issuance;
provided that
, if no
Loan is outstanding, the Borrower may make payments on the Intercompany Loan.
(b) If an Event of Default has occurred and is continuing, then the Borrower and its
Subsidiaries shall not offset any intercompany payables or receivables owing among any of the
Borrower and any of its Subsidiaries on the one hand and Anadarko or any of its Subsidiaries,
other that the Borrower or its Subsidiaries, on the other.
Section 6.09 Limitations on Sales and Leasebacks
. The Borrower will not, and will not permit
any Subsidiary to, enter into any arrangement with any bank, insurance company or other lender or
investor (not including the Borrower or any Subsidiary) or to which any such lender or investor is
a party, providing for the leasing by the Borrower or a Subsidiary for a period, including
renewals, in excess of three years, of any property which has been or is to be sold or transferred
more than one hundred eighty (180) days after the completion of construction and commencement of
full operation thereof, by the Borrower or any Subsidiary to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor on the security of
such property (herein referred to as a
sale and leaseback transaction
) unless the Borrower,
within one hundred eighty (180) days after the sale or transfer shall have been made by the
Borrower or by a Subsidiary, applies an amount equal to the greater of (i) the net proceeds of the
sale of the property sold and leased back pursuant to such arrangement or (ii) the net amount
(after deducting applicable reserves) at which such property is carried on the books of the
Borrower or such Subsidiary at the time of entering into such arrangement, to the retirement of
Indebtedness of the Borrower.
Section 6.10 Fundamental Changes
. The Borrower shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets substantially as an entirety to
any Person unless:
(a) (i) in the case of a merger or amalgamation, the Borrower is the surviving entity;
or
(ii) the Person formed by such consolidation or into which the Borrower is merged or the
Person which acquires by conveyance or transfer, or which leases, the properties and assets of
the Borrower substantially as an entirety shall be a corporation, partnership or trust, shall
be organized and existing under the laws of the United States of America, any State thereof or
the District of Columbia, shall (1) have unsecured non-credit enhanced publicly held
indebtedness with an Investment Grade Rating, and (2) expressly assume, by an agreement
supplemental hereto, executed and delivered to the Administrative Agent, in form reasonably
satisfactory to the Administrative Agent, the obligations of the Borrower hereunder, including
the due and punctual payment of the principal of and interest on all
39
the Loans and the performance of every covenant of this Agreement on the part of the
Borrower to be performed or observed; and
(b) immediately after giving effect to such transaction, no Event of Default or Default
shall have occurred and be continuing.
Section 6.11 Negative Pledge Agreements
. Prior to the Investment Grade Rating Date, the
Borrower will not, and will not permit any Subsidiary to, create, incur, assume or suffer to exist
any contract, agreement or understanding (other than this Agreement, the Revolving Credit Agreement
or the Permitted Senior Debt Documents) which prohibits or restricts the granting, conveying,
creation or imposition of any Lien on any of its property in favor of the Administrative Agent and
the Lenders (other than any obligation under the Revolving Credit Agreement or the Permitted Senior
Debt Documents to secure the obligations under this Agreement equally and ratably with other senior
Indebtedness permitted to be incurred under Section 6.05) or restricts any Subsidiary from paying
dividends or making distributions to the Borrower or any Subsidiary that is a guarantor, or which
requires the consent of other Persons in connection therewith; provided, that this covenant shall
not apply to Chipeta or to any other Joint Venture in which the Equity Interests of the Borrower or
any Subsidiary constitute an Investment not prohibited under Section 6.06.
For the sake of clarity, nothing in this Section 6.11 shall restrict Anadarko or any Subsidiary of
Anadarko, other than the Borrower or any of its Subsidiaries.
ARTICLE VII
CONDITIONS OF LENDING
Section 7.01 Conditions Precedent to the Loans.
. The obligations of the Lenders to make the
Loans shall not become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 10.02):
(a) Appropriate Notes are issued payable to the order of such Lender, if requested;
(b) The Administrative Agent (or its counsel) shall have received (i) from each party
hereto either (1) a counterpart of this Agreement signed on behalf of such party, or (2)
written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement and (ii) from each Subsidiary that is a guarantor, either (1) a
counterpart of the Guaranty signed on behalf of such party, or (2) written evidence
satisfactory to the Administrative Agent (which may include telecopy transmission of a signed
signature page of the Guaranty) that such party has signed a counterpart of the Guaranty;
(c) The Administrative Agent and the Lenders shall have received all fees and other
amounts due and payable on the Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by
the Borrower hereunder;
40
(d) The Lenders shall have received (i) satisfactory audited consolidated financial
statements of the Borrower (and its predecessor entity) for the three most recent fiscal
years ended prior to the Effective Date as to which such financial statements are available,
(ii) satisfactory unaudited interim consolidated financial statements of the Borrower for
each fiscal quarterly period ended subsequent to the date of the latest financial statements
delivered pursuant to clause (i) of this paragraph as to which such financial statements are
available, (iii)
pro forma
consolidated financial statements as of the Effective Date of the
Borrower and its Subsidiaries for the most recent fiscal year after giving effect to the
Loans made under this Agreement and (iv) projections prepared by the Borrower of its balance
sheet, income statements, Consolidated Leverage Ratio and the Consolidated Interest Coverage
Ratio for the term of this Agreement;
(e) The Administrative Agent (or its counsel) shall have received certified copies of
the resolutions of (i) the Board of Directors of the General Partner, as general partner of
and on behalf of the Borrower, authorizing the execution, delivery and performance of this
Agreement and the execution, issuance, delivery and performance of its Notes and (ii) the
Board of Directors of and on behalf of each Subsidiary that is a guarantor, authorizing the
execution, delivery and performance under the Guaranty Agreement;
(f) The Administrative Agent (or its counsel) shall have received certificates of
responsible officers of the General Partner, as general partner and on behalf of the
Borrower, to the effect that:
(i) the representations and warranties contained in ARTICLE III are true and accurate
on and as of the date of the making of each such Loan as though made on and as of such date
(except to the extent that such representations and warranties relate solely to an earlier
date); and
(ii) no event has occurred and is continuing or would result from the proposed
Borrowing, which constitutes an Event of Default or a Default.
(g) The Administrative Agent (or its counsel) shall have received an opinion:
(i) of Vinson & Elkins LLP, special counsel to the Borrower, in form and substance
reasonably acceptable to the Administrative Agent and its counsel; and
(ii) of an associate general counsel or the general counsel of the Borrower, in form
and substance reasonably acceptable to the Administrative Agent and its counsel;
(h) There shall not have occurred a Material Adverse Change;
(i) The Lenders shall have received such documents and other instruments as are
customary for transactions of this type or as they or their counsel may reasonably request;
41
(j) The Administrative Agent (or its counsel) shall have received a certificate of a
responsible officer of the Borrower relating to the USA Patriot Act; and
(k) The Administrative Agent shall be reasonably satisfied that, as of the Effective
Date, after giving
pro forma
effect to the Loans made under this Agreement, the Consolidated
Leverage Ratio of the Borrower and its Subsidiaries will not exceed 3.00 to 1.00.
Section 7.02 Additional Conditions Precedent to the Loans
. The obligation of each Lender to
make its Loan is subject to the further conditions precedent that, on the Effective Date, Section
7.01(f)(i) and Section 7.01(f)(ii) shall be true with respect to such Loan, and the Borrowing shall
be deemed to constitute a certification by the Borrower that such statements are true.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01 Events of Default
. If one or more of the following events of default (
Events of
Default
) shall occur and be continuing:
(a) the Borrower shall default in any payment of principal of any Loan when and as the
same shall become due and payable, or the Borrower shall default in any payment of interest
on any Loan, or in the payment of any fees or other amounts, when and as the same shall
become due and payable, and such default shall continue for a period of three (3) Business
Days;
(b) any representation or warranty, or certification made by the Borrower herein or any
Subsidiary that is a guarantor under the Guaranty Agreement or any statement or
representation or certification made or deemed to be made pursuant to ARTICLE III, ARTICLE
VII or the Guaranty Agreement shall prove to have been incorrect in any material respect when
made;
(c) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 4.02(a) or Section 4.04 applicable to it or ARTICLE VI required to be
observed or performed by the Borrower;
(d) the Borrower shall default in the performance of any other term, condition, covenant
or agreement contained in this Agreement (except as set forth in Section 8.01(a) or Section
8.01(c)) required to be performed by it and such default shall continue unremedied for a
period of thirty (30) days after written notice thereof, specifying such default and
requiring it to be remedied, shall have been received by the Borrower from any Lender;
(e) the Borrower or any Material Subsidiary shall (i) default in the payment of
principal of any Indebtedness in an aggregate principal amount in excess of $10,000,000
(other than the Loans) beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration
42
or otherwise, or (ii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, and such default shall have resulted in such
Indebtedness being declared due and payable prior to its stated maturity;
(f) the Borrower or any Material Subsidiary shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator
of itself or of its property, (ii) admit in writing its inability to pay its debts as such
debts become due, (iii) make a general assignment for the benefit of its creditors, (iv)
commence a voluntary case under any Bankruptcy Law, (v) file a petition seeking to take
advantage of any other law providing for similar relief of debtors, or (vi) consent or
acquiesce in writing to any petition duly filed against it in any involuntary case under any
Bankruptcy Law;
(g) a proceeding or case shall be commenced, without the application or consent of the
Borrower or any Material Subsidiary, in any court of competent jurisdiction seeking (i) its
liquidation, reorganization, dissolution or winding up, or the composition or readjustment of
its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of
it or of its assets, or (iii) similar relief in respect of it, under any law providing for
the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed
and in effect, for a period of sixty (60) days (or such longer period, so long as the
Borrower or any such Material Subsidiary shall be taking such action in good faith as shall
be reasonably necessary to obtain the timely dismissal or stay of such proceeding or case);
or an order for relief shall be entered in an involuntary case under any applicable
Bankruptcy Law, against the Borrower or any such Subsidiary;
(h) there is entered against the Borrower or any Material Subsidiary one or more final
non-appealable judgments for the payment of money in an aggregate amount in excess of
$25,000,000 (net of insurance coverage which is reasonably expected to be paid by the
insurer), and the same shall remain undischarged for a period of sixty (60) consecutive days
during which execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of the Borrower or any Material
Subsidiary to enforce any such judgment;
(i) the Loan Documents after delivery thereof shall for any reason, except to the extent
permitted by the terms thereof, cease to be in full force and effect and valid, binding and
enforceable in accordance with their terms against the Borrower or a Guarantor (other than a
Subsidiary that is not a Material Subsidiary) party thereto or shall be repudiated by any of
them, or cease to create a valid and perfected Lien of the priority required thereby on any
of the collateral purported to be covered thereby, except to the extent permitted by the
terms of this Agreement, or the Borrower or any Subsidiary or any of their Affiliates shall
so state in writing.
(j) an ERISA Event shall have occurred that, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a liability which would
have a Material Adverse Change; or
43
(k) any Change of Control shall occur,
then and in each and every case the Majority Lenders, by notice in writing to the Borrower, may
declare the unpaid balance of the Loans and any other amounts payable hereunder to be forthwith due
and payable and thereupon such balance shall become so due and payable without presentation,
protest or further demand or notice of any kind, all of which are hereby expressly waived; provided
that in the case of Section 8.01(f) or (g) above, the Loans and any other amounts payable hereunder
shall forthwith be due and payable.
ARTICLE IX
THE AGENTS
Section 9.01 Powers
. Each Lender hereby irrevocably appoints and authorizes the
Administrative Agent to act as its agent hereunder. The Administrative Agent shall have and may
exercise such powers hereunder and under any agreement executed and delivered pursuant to the terms
hereof as are specifically delegated to the Administrative Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto. The Administrative Agent shall
have no duties or responsibilities except those expressly set forth in this Agreement, and shall
not by reason of this Agreement have a fiduciary relationship with any Lender.
Section 9.02 Agents Reliance, Etc.
Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or omitted to be
taken by any of them hereunder or under any agreement executed and delivered pursuant to the terms
hereof or in connection herewith or therewith except for their own gross negligence or willful
misconduct.
Section 9.03 No Responsibility for Recitals, Etc.
The Administrative Agent shall not be
responsible to the Lenders for any recitals, statements, warranties or representations herein or
under any agreement executed and delivered pursuant to the terms hereof, for the value,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, the Notes or any
agreement executed and delivered pursuant hereto or be bound to ascertain or inquire as to the
performance or observance of any of the terms of this Agreement on the part of the Borrower or of
any of the terms of any such other agreement by any party thereto.
Section 9.04 Right to Indemnity
. The Administrative Agent shall be fully justified in failing
or refusing to take any action hereunder or under any agreement executed and delivered pursuant to
the terms hereof unless it shall first be indemnified (upon requesting such indemnification) to its
satisfaction by the Lenders against any and all liability and expense which it may incur by reason
of taking or continuing to take any such action. The Lenders agree to indemnify the Administrative
Agent, to the extent not reimbursed by the Borrower, under this Agreement, ratably in accordance
with the aggregate Principal Amount of the Loans made by them for any and all liabilities,
obligations, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent as agent in any way relating to or arising out of this Agreement, the Notes or
any other documents contemplated by or referred to herein or the transactions contemplated hereby
(including the costs and expenses which the Borrower is obligated to pay under this Agreement but
excluding, unless an Event of Default has
44
occurred and is continuing, normal administrative costs and expenses incident to the
performance of its agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or of any such other documents;
provided
no such liability, obligation, damage, penalty,
action, judgment, suit, cost, expense or disbursement results from the Administrative Agents gross
negligence or willful misconduct;
provided, however
, that, in the event the Administrative Agent
receives indemnification from the Lenders hereunder with respect to costs and expenses which the
Borrower is obligated to pay under this Agreement, the Administrative Agent shall remit to the
Lenders the amount of such costs and expenses to the extent subsequently paid by the Borrower, such
remittance to be in accordance with the proportionate amount of the indemnification made by each
respective Lender.
Section 9.05 Action on Instructions of Lenders
. The Administrative Agent shall in all cases
be fully protected in acting or refraining from acting hereunder or under any agreement executed
and delivered pursuant to the terms hereof in accordance with written instructions to it signed by
the Majority Lenders, and (subject to Section 9.01) such instructions and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders.
Section 9.06 Employment of Agents
. The Administrative Agent may employ agents and
attorneys-in-fact and shall not be answerable, except as to money or securities received by them or
their authorized agents, for the default or misconduct of any such agent or attorney-in-fact
selected by it with reasonable care.
Section 9.07 Reliance on Documents
. The Administrative Agent shall be entitled to rely upon
(a) any paper or document believed by it to be genuine and to have been signed or sent by the
proper person or persons, and (b) the opinion of its counsel with respect to legal matters. The
Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a notice of the assignment or transfer thereof satisfactory to the
Administrative Agent signed by such payee shall have been filed with the Administrative Agent.
Section 9.08 Rights as a Lender
. With respect to its Commitment and the Loans made by it, the
Administrative Agent shall have the same rights and powers hereunder and under any agreement
executed and delivered pursuant to the terms hereof as any Lender, and may exercise the same as
though it were not the Administrative Agent, and the term Lender or Lenders shall, unless the
context otherwise indicates, include the Administrative Agent in its capacity as a Lender hereunder
and thereunder. The Administrative Agent and its respective Affiliates may accept deposits from,
lend money to, and generally engage in any kind of banking or trust business with the Borrower, the
Subsidiaries and their respective Affiliates as if it were not the Administrative Agent.
Section 9.09 Non-Reliance on Agents or other Lenders
. Each Lender agrees that it has,
independently and without reliance on the Administrative Agent or on any other Lender, and based on
such documents and information as it has deemed appropriate, made its own credit analysis of the
Borrower and decision to enter into this Agreement and that it will, independently and without
reliance upon any Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and decisions in taking or
not taking action under this Agreement or the Notes. The Administrative Agent shall not be
required to keep itself informed as to the performance or observance by the
45
Borrower of this Agreement, the performance or observation by any guarantor under the Guaranty
Agreement or any other document referred to or provided for herein or therein or to inspect the
properties or books of the Borrower or any such party that is a guarantor under the Guaranty
Agreement. Except for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent shall have no duty or
responsibility to provide any Lender with any credit or other information concerning the affairs,
financial condition or business of the Borrower or which may at any time come into possession of
any Agent or any of their respective Affiliates.
Section 9.10 Events of Default
. If the Administrative Agent receives actual knowledge of an
Event of Default hereunder, such Agent shall promptly inform the Lenders thereof. The
Administrative Agent shall not be deemed to have actual knowledge of an Event of Default hereunder
until it shall have received a written notice from the Borrower or any Lender referring to this
Agreement, describing such Event of Default and stating that such notice is a Notice of Default.
Section 9.11 Successor Agent
. Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time
by notifying the Lenders and the Borrower. Upon any such resignation, the Majority Lenders shall
have the right, in consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Majority Lenders and shall have accepted such appointment within 30
days after such retiring Administrative Agent gives notice of its resignation, then such retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as the Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and duties of such
retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After an Administrative Agents resignation hereunder, the provisions
of this ARTICLE IX and Section 10.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as the Administrative Agent
hereunder.
Section 9.12 Arrangers and Other Agents
. Nothing contained in this Agreement shall be
construed to impose any obligation or duty whatsoever on any Persons named on the cover of this
Agreement or elsewhere in this Agreement as Arrangers, as Syndication Agent, or as Documentation
Agent, other than those applicable to all Lenders as such.
ARTICLE X
MISCELLANEOUS
Section 10.01 Notices
. Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications provided for herein shall
be in writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
46
(a) if to the Borrower, to it at 1201 Lake Robbins Drive, The Woodlands, Texas 77380,
Attention of the Senior Vice President and Chief Financial Officer, Facsimile No. (832)
636-0278; messenger delivery to 1201 Lake Robbins Drive, The Woodlands, Texas 77380;
(b) if to the Administrative Agent, to Wells Fargo Bank, National Association, Houston
Energy Group, 1000 Louisiana Street, 9
th
Floor, Houston, Texas 77002, Attention of
Will Rogers, Facsimile No.: (713) 739-1087; or
(c) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.
Section 10.02 Waivers; Amendments
.
(a) No failure or delay by the Administrative Agent or any Lender in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any departure by
the Borrower therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, to the fullest extent permitted by applicable law, the making of a Loan shall
not be construed as a waiver of any Event of Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such Event of Default
at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the Borrower and the
Majority Lenders or by the Borrower and the Administrative Agent with the consent of the
Majority Lenders;
provided
that no such agreement shall (i) increase the Commitment of any
Lender without the written consent of such Lender, (ii) reduce any Principal Amount or reduce
the rate of interest thereon without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of any Principal Amount or any interest thereon,
or reduce the amount of, waive or excuse any such payment, without the written consent of
each Lender affected thereby, (iv) change Section 2.13(a) or Section 2.13(c) in a manner that
would alter the pro rata sharing of payments required thereby, without the written consent of
each Lender, (v) change Section 7.01, without the consent of each Lender, (vi) release any
Guarantor (except as set forth in Section 4.06 and the Guaranty Agreement) or (vii) change
any of the provisions of
47
this Section or the definition of Majority Lenders or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the written
consent of each Lender;
provided further
that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent hereunder without the prior
written consent of the Administrative Agent.
Section 10.03 Expenses; Indemnity; Damage Waiver
.
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the syndication
(prior to the Effective Date) of the credit facilities provided for herein, the preparation,
execution, delivery and administration of this Agreement or any amendments, modifications or
waivers of the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated but subject to the cap on legal expenses agreed with the
Administrative Agent), and (ii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made hereunder, including all such reasonable
out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Loans. Notwithstanding anything to the contrary, the Borrower shall not have any
obligation to pay the fees or expenses of any Lender or the Administrative Agent in
connection with any assignment of, or the grant of any participation in, any rights of a
Lender under or in connection with this Agreement;
provided
that the provisions of this
sentence shall not apply to any Lender substituted for a Defaulting Lender pursuant to
Section 10.13 (b) and (c).
(b) The Borrower shall indemnify the Administrative Agent and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
Indemnitee
)
against, and hold each Indemnitee harmless from, any and all losses, penalties, claims,
damages, liabilities and related expenses, including the fees, charges and disbursements of
any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this Agreement or
any agreement or instrument contemplated hereby, the performance by the parties hereto of
their respective obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii)
any actual or alleged presence or release of hazardous materials on or from any property
owned or operated by the Borrower or any Subsidiary, or any environmental liability related
in any way to the Borrower or any Subsidiary, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a party
thereto;
provided
that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, penalties, claims, damages, liabilities or related expenses either
(i) did not result directly or indirectly from
48
the action or inaction of the Borrower or any Subsidiary, or (ii) resulted from the
gross negligence, unlawful conduct or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to be paid by them
to the Administrative Agent under paragraph (a) or (b) of this Section, each Lender severally
agrees to pay to the Administrative Agent such Lenders Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount;
provided
that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against
Administrative Agent in its capacity as such.
(d) All amounts due under this Section shall be payable promptly after written demand
therefor together with a copy of the invoice(s) or other documentation setting forth in
reasonable detail the amount demanded and the matter(s) to which it relates.
Section 10.04 Successors and Assigns
.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby, except that
(i) the Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder except with the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender
may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or
by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees (other than the Borrower or its Affiliates) all or a portion
of its rights and obligations under this Agreement (including all or a portion of its Loans
at the time owing to it) with the prior written consent (such consent not to be unreasonably
withheld or delayed) of:
(A) the Borrower, provided that no consent of the Borrower shall be required
for an assignment to a Lender, an Affiliate of a Lender or, if an Event of Default
under Section 8.01(a), (b), (g), (h) or (i) has occurred and is continuing, any
other assignee; and
(B) the Administrative Agent,
provided
that no consent of the Administrative
Agent shall be required for an assignment of any Loans to an assignee that is a
Lender immediately prior to giving effect to such assignment or an Affiliate of a
Lender.
49
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lenders Loan, the
amount of the Loan of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$10,000,000 unless each of the Borrower and the Administrative Agent otherwise
consent,
provided
that no such consent of the Borrower shall be required if an Event
of Default under Section 8.01(a), (b), (g), (h) or (i) has occurred and is
continuing;
(B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lenders rights and obligations under this Agreement and,
unless each of the Borrower and the Administrative Agent otherwise consent, shall
result in the assigning Lender having no less than $10,000,000 in Loans after giving
effect to such assignment;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this
Section, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned
by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lenders
rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Section 2.14, Section 2.16, Section
2.21 and Section 10.03). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 10.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain a copy of each Assignment and Assumption delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
Register
).
The entries in the Register shall be prima facie evidence of the existence and amounts of
the obligations recorded therein, and the Borrower, the
50
Administrative Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignees completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b)(ii)(C) of this Section and any written consent to such
assignment required by paragraph (b)(i) of this Section and upon satisfaction of the
additional conditions set forth in paragraph (b)(ii) of this Section, the Administrative
Agent shall accept such Assignment and Assumption and record the information contained
therein in the Register maintained at the New York office of the Administrative Agent. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in
the applicable Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent,
sell participations to one or more banks or other entities other than the Borrower or its
Affiliates (a
Participant
) in all or a portion of such Lenders rights and obligations
under this Agreement (including all or a portion of the Loans owing to it);
provided
that (A)
such Lenders obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lenders rights and obligations
under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this
Agreement;
provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such Participant. Subject to
paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Section 2.14, Section 2.16 and Section 2.21 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. Notwithstanding anything to the contrary, unless otherwise contractually
agreed, no Participant shall be entitled to the benefits of Section 10.08 as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any greater payment under Section 2.14 or
Section 2.16 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrowers prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) and Section 2.16(g) as though it were a Lender.
51
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank in accordance with Regulation A of the
Board, and to a trustee for the benefit of holders of debt securities issued by such Lender, and
this Section shall not apply to any such pledge or assignment of a security interest; provided that
no such pledge or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
Section 10.05 Survival
. All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto
and shall survive the execution and delivery of this Agreement and the making of any Loans,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of any Event of
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid. The
provisions of Section 2.14, Section 2.16, Section 2.21, Section 10.03, this Section 10.05, and
ARTICLE IX shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans or the termination of this Agreement
or any other provision hereof.
Section 10.06 Counterparts; Integration; Effectiveness
. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the parties relating to
the subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section 7.01, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
Section 10.07 Severability
. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 10.08 Right of Setoff
. If (a) an Event of Default shall have occurred and be
continuing, and (b) the principal of the Loans has been accelerated each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by law, to set off
and
52
apply any and all deposits (general or special, time or demand, provisional or final) at any
time held and other obligations at any time owing by such Lender to or for the credit or the
account of the Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and remedies (including
other rights of setoff) which such Lender may have. Any Lender exercising a right of set off under
this Section 10.08 shall promptly notify the Administrative Agent of such action.
Section 10.09 Governing Law; Jurisdiction; Consent to Service of Process
.
(a)
THIS AGREEMENT AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK
.
(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the courts of the Supreme Court of the State of
New York, sitting in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from either thereof, in any action or
proceeding arising out of or relating to this Agreement, the Notes, or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any such action
or proceeding may be heard and determined in such New York State court or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement or any other Loan Document shall affect any right that the Administrative
Agent, any of the other agents or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in the courts of
any jurisdiction.
(c) Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 10.01. Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any other manner permitted by law.
Section 10.10 WAIVER OF JURY TRIAL
.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (a)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS
53
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
.
Section 10.11 Headings
. Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this Agreement.
Section 10.12 Confidentiality
. The Administrative Agent and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates directors, officers, employees and agents, including accountants,
legal counsel and other advisors who have a reason to use such Information in connection with the
administration of this Agreement (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and instructed to keep such
Information confidential and will agree to use the Information solely for the purpose of such
administration), (b) to the extent requested by any regulatory authority or any self-regulatory
body having authority to regulate or oversee any aspect of any Lenders (or any Affiliate of such
Lender) business or property, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement,
or to any counterparty (or its advisor) to any swap, securitization, or derivative transaction
referencing or involving any of its rights or obligations under this Agreement, (g) with the
consent of the Borrower, or (h) to the extent such Information (i) becomes publicly available other
than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent
or any Lender on a non-confidential basis from a source other than the Borrower or any of its
Affiliates. For the purposes of this Section,
Information
means all information received from
the Borrower relating to the Borrower or its business, other than any such information that is
available to the Administrative Agent or any Lender on a non-confidential basis prior to disclosure
by the Borrower; provided that, in the case of information received from the Borrower after the
Effective Date, such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided in this Section
shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would accord
to its own confidential information.
Section 10.13 Termination and Substitution of Lender
.
(a) If (i) the obligation of any Lender to continue Loans as Eurodollar Loans has been
suspended pursuant to Section 2.15 or (ii) any Lender has demanded compensation under Section
2.14 or Section 2.16, then the Borrower may, upon three Business Days notice to such Lender
through the Administrative Agent, prepay in full all of the outstanding Loans of such Lender,
or its assignee, together with accrued interest thereon to the date of prepayment and all
other amounts payable hereunder to such Lender accrued to the date of prepayment, and
concurrently therewith terminate this Agreement
54
with respect to such Lender by giving notice of such termination to the Administrative
Agent and such Lender.
(b) So long as no Default or Event of Default has occurred and is continuing, if any
Lender shall become a Defaulting Lender, the Borrower may, in its sole discretion and without
prejudice to any right or remedy that the Borrower may have against such Defaulting Lender
with respect to, on account of, arising from or relating to any event pursuant to which such
Lender shall be a Defaulting Lender, upon notice to such Defaulting Lender and the
Administrative Agent, (i) if at such time there are no Loans of such Defaulting Lender
outstanding, terminate this Agreement with respect to such Defaulting Lender, or (ii) if at
such time such Defaulting Lender shall have its Loan outstanding, subject to obtaining a
substitute lender or lenders to assume the Loan of such Defaulting Lender pursuant to
subsection (c) below, terminate this Agreement with respect to such Defaulting Lender and
prepay in full the outstanding Loan of such Defaulting Lender together with accrued interest
to the date of prepayment and any other amounts due such Defaulting Lender under the Loan
Documents, provided that the provisions of Section 2.19 shall not apply to any such
prepayment.
(c) If the Borrower elects to terminate this Agreement with respect to any Lender under
Section 10.13(b)(ii), the Borrower shall cooperate in good faith with the Administrative
Agent, to seek a mutually satisfactory substitute lender or lenders (which may be one or more
of the Lenders) to assume the Commitment and/or Loan of such relevant Lender and until a
substitute lender (or lenders) has been found and documents reasonably acceptable to each of
the substitute lender or lenders, the Administrative Agent and the Borrower have been
executed to provide for the assignment of the rights and obligations of the Defaulting Lender
to the substitute lender or lenders in accordance with Section 10.04. If the Borrower elect
to terminate this Agreement with respect to any Lender under Section 10.13(a)(i) or (ii), the
total Commitments hereunder shall be reduced by an amount equal to such terminated Lenders
Commitment.
Section 10.14 USA Patriot Act Notice
. Each Lender hereby notifies the Borrower that pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)) (the
USA Patriot Act
), it is required to obtain, verify and record information that
identifies the Borrower and its Subsidiaries, which information includes the name and address of
the Borrower and such Subsidiaries and other information that will allow such Lender to identify
the Borrower and such Subsidiaries in accordance with the USA Patriot Act.
[SIGNATURES BEGIN ON NEXT PAGE]
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IN WITNESS WHEREOF
, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first above written.
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BORROWER
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WESTERN GAS PARTNERS, LP
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By:
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Western Gas Holdings, LLC,
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its general partner
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By:
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/s/ Donald R. Sinclair
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Name:
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Donald R. Sinclair
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Title:
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President and Chief Executive Officer
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[Signature Page $250,000,000 Term Loan Agreement]
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ADMINISTRATIVE AGENT
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WELLS FARGO BANK, NATIONAL
ASSOCIATION
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By:
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/s/ William Rogers
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Name:
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William Rogers
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Title:
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Managing Director
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[Signature Page $250,000,000 Term Loan Agreement]
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LENDER
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WELLS FARGO BANK, NATIONAL
ASSOCIATION
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By:
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/s/ William Rogers
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Name:
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William Rogers
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Title:
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Managing Director
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[Signature Page $250,000,000 Term Loan Agreement]
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LENDER
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DNB NOR BASK ASA, NEW YORK BRANCH
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By:
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/s/ Barbara Gronquist
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Name:
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Barbara Gronquist
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Title:
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Senior Vice President
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By:
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/s/ Nikolai A. Nachamkin
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Name:
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Nikolai A. Nachamkin
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Title:
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Senior Vice President
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[Signature Page $250,000,000 Term Loan Agreement]
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LENDER
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U.S. BANK NATIONAL ASSOCIATION
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By:
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/s/ Justin M. Alexander
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Name:
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Justin M. Alexander
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Title:
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Vice President
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|
[Signature Page $250,000,000 Term Loan Agreement]
|
|
|
|
|
|
|
LENDER
:
|
|
MORGAN STANLEY BANK, N.A.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Ryan Vetsch
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Ryan Vetsch
|
|
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
[Signature Page $250,000,000 Term Loan Agreement]
|
|
|
|
|
|
|
LENDER
:
|
|
BANK OF MONTREAL
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ James V. Ducote
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
James V. Ducote
|
|
|
|
|
Title:
|
|
Director
|
|
|
[Signature Page $250,000,000 Term Loan Agreement]
|
|
|
|
|
LENDER
:
|
|
BARCLAYS BANK PLC
|
|
|
|
|
|
|
|
By:
|
|
/s/ Ann Sutton
|
|
|
|
|
|
|
|
Name:
|
|
Ann Sutton
|
|
|
Title:
|
|
Director
|
[Signature Page $250,000,000 Term Loan Agreement]
|
|
|
|
|
LENDER
:
|
|
DEUTSCHE BANK AG NEW YORK BRANCH
|
|
|
|
|
|
|
|
By:
|
|
/s/ Andreas Neumeier
|
|
|
|
|
|
|
|
Name:
|
|
Andreas Neumeier
|
|
|
Title:
|
|
Managing Director
|
|
|
|
|
|
|
|
By:
|
|
/s/ Ming K. Chu
|
|
|
|
|
|
|
|
Name:
|
|
Ming K. Chu
|
|
|
Title:
|
|
Vice President
|
[Signature Page $250,000,000 Term Loan Agreement]
|
|
|
|
|
LENDER
:
|
|
ROYAL BANK OF CANADA
|
|
|
|
|
|
|
|
By:
|
|
/s/ Jay T. Sartain
|
|
|
|
|
|
|
|
Name:
|
|
Jay T. Sartain
|
|
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
[Signature Page $250,000,000 Term Loan Agreement]
|
|
|
|
|
LENDER
:
|
|
SCOTIABANC INC.
|
|
|
|
|
|
|
|
By:
|
|
/s/ J.F. Todd
|
|
|
|
|
|
|
|
Name:
|
|
J.F. Todd
|
|
|
Title:
|
|
Managing Director
|
[Signature Page $250,000,000 Term Loan Agreement]
|
|
|
|
|
LENDER
:
|
|
UBS LOAN FINANCE LLC
|
|
|
|
|
|
|
|
By:
|
|
/s/ Irja R. Otsa
|
|
|
|
|
|
|
|
Name:
|
|
Irja R. Otsa
|
|
|
Title:
|
|
Associate Director
|
|
|
|
|
|
|
|
By:
|
|
/s/ April Varner-Nanton
|
|
|
|
|
|
|
|
Name:
|
|
April Varner-Nanton
|
|
|
Title:
|
|
Director
|
[Signature Page $250,000,000 Term Loan Agreement]
|
|
|
|
|
LENDER
:
|
|
CITIBANK, N.A.
|
|
|
|
|
|
|
|
By:
|
|
/s/ K. Clinton Gerst
|
|
|
|
|
|
|
|
Name:
|
|
K. Clinton Gerst
|
|
|
Title:
|
|
Attorney-In-Fact
|
[Signature Page $250,000,000 Term Loan Agreement]
|
|
|
|
|
LENDER
:
|
|
COMERICA BANK
|
|
|
|
|
|
|
|
By:
|
|
/s/ Paul Edmonds
|
|
|
|
|
|
|
|
Name:
|
|
Paul Edmonds
|
|
|
Title:
|
|
Vice President
|
[Signature Page $250,000,000 Term Loan Agreement]
ANNEX I
LIST OF COMMITMENTS
|
|
|
|
|
|
|
|
|
|
|
Commitment/
|
|
|
|
|
|
|
Amount of
|
|
|
Percentage of
|
|
Lenders
|
|
Term Loan
|
|
|
Term Loans
|
|
Wells Fargo Bank, National Association
|
|
$
|
35,000,000
|
|
|
|
14.00
|
%
|
DnB NOR Bank ASA, New York Branch
|
|
$
|
35,000,000
|
|
|
|
14.00
|
%
|
U.S. Bank National Association
|
|
$
|
18,000,000
|
|
|
|
7.20
|
%
|
Morgan Stanley Bank, N.A.
|
|
$
|
18,000,000
|
|
|
|
7.20
|
%
|
Bank of Montreal
|
|
$
|
18,000,000
|
|
|
|
7.20
|
%
|
Barclays Bank PLC
|
|
$
|
18,000,000
|
|
|
|
7.20
|
%
|
Deutsche Bank AG New York Branch
|
|
$
|
18,000,000
|
|
|
|
7.20
|
%
|
Royal Bank of Canada
|
|
$
|
18,000,000
|
|
|
|
7.20
|
%
|
SCOTIABANC INC.
|
|
$
|
18,000,000
|
|
|
|
7.20
|
%
|
UBS Loan Finance LLC
|
|
$
|
18,000,000
|
|
|
|
7.20
|
%
|
Citibank, N.A.
|
|
$
|
18,000,000
|
|
|
|
7.20
|
%
|
Comerica Bank
|
|
$
|
18,000,000
|
|
|
|
7.20
|
%
|
|
|
|
|
|
|
|
Totals
|
|
$
|
250,000,000
|
|
|
|
100.00
|
%
|
|
|
|
|
|
|
|
Annex I-1
Commitments
SCHEDULE I
PRICING SCHEDULE
Prior to Borrower obtaining a rating on its senior unsecured non-credit enhanced publicly held
indebtedness of BBB-/Baa3 or higher from S&P, Moodys or Fitch and a rating not less than BB+/Ba1
from at least one other such agency, pricing shall be based upon the Consolidated Leverage Ratio as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Eurodollar
|
|
Base Rate
|
Level
|
|
Consolidated Leverage Ratio
|
|
Margin
|
|
Margin
|
|
I
|
|
|
Less than 2.50 to 1.00
|
|
|
2.500
|
%
|
|
|
1.500
|
%
|
II
|
|
Greater than or equal to 2.50 to 1.00 but less than 3.00 to 1.00
|
|
|
2.750
|
%
|
|
|
1.750
|
%
|
III
|
|
Greater than or equal to 3.00 to 1.00 but less than 4.00 to 1.00
|
|
|
3.000
|
%
|
|
|
2.000
|
%
|
IV
|
|
Greater than or equal to 4.00 to 1.00
|
|
|
3.500
|
%
|
|
|
2.500
|
%
|
The applicable interest Margins shall be based on the applicable Level of the Pricing Grid
based on the calculation of the Total Leverage Ratio set forth in the compliance certificate
delivered on the Effective Date until the first calculation date following the receipt by the
Administrative Agent and the Lenders of the financial information and related compliance
certificate for the first full fiscal quarter ending after the Effective Date.
On and after the date on which the Borrower obtains such ratings, pricing shall be based upon the
Borrowers rating on its senior unsecured non-credit enhanced publicly held indebtedness as
follows:
|
|
|
|
|
|
|
|
|
Senior Unsecured
|
|
Eurodollar
|
|
Base Rate
|
Debt Rating
|
|
Margin
|
|
Margin
|
>
BBB+ / Baa1
|
|
|
2.000
|
%
|
|
|
1.000
|
%
|
BBB / Baa2
|
|
|
2.250
|
%
|
|
|
1.250
|
%
|
BBB- / Baa3
|
|
|
2.500
|
%
|
|
|
1.500
|
%
|
< BBB- / Baa3
|
|
|
3.000
|
%
|
|
|
2.000
|
%
|
If there are at least two ratings from S&P, Moodys or Fitch, then if the highest and lowest
ratings are different by one notch, the highest rating will govern and if there is a two notch or
greater difference between the highest and the lowest rating, then the governing rating will be
one level better than the lowest rating. If the Borrower ceases to have senior unsecured
non-credit enhanced publicly held indebtedness which is rated by at least two of S&P, Moodys and
Fitch, then from and after the date on which the Borrower ceases to have such indebtedness so
rated, pricing shall be based on the first table in this pricing schedule.
Schedule I
Pricing Schedule
SCHEDULE II
SUBSIDIARIES
Anadarko Gathering Company, LLC
a Delaware limited liability company,
Kerr-McGee Gathering LLC
a Colorado limited liability company,
MIGC, LLC
a Delaware limited liability company,
Pinnacle Gas Treating, LLC
a Texas limited liability company,
Western Gas Operating, LLC
a Delaware limited liability company,
Western Gas Partners Finance Corporation,
a Delaware corporation
Western Gas Wyoming LLC
a Wyoming limited liability company,
WGR Operating, LP
a Delaware limited partnership,
Schedule II
Subsidiaries
SCHEDULE III
AFFILIATE AGREEMENTS
1.
|
|
Contribution, Conveyance and Assumption Agreement by and among Western Gas Partners,
LP, Western Gas Holdings, LLC, Anadarko Petroleum Corporation, WGR Holdings, LLC, Western
Gas Resources, Inc., WGR Asset Holding Company LLC, Western Gas Operating, LLC and WGR
Operating, LP, dated as of May 14, 2008.
|
|
2.
|
|
Contribution Agreement, dated as of November 11, 2008, by and among Western Gas
Resources, Inc., WGR Asset Holding Company LLC, WGR Holdings, LLC, Western Gas Holdings,
LLC, Western Gas Partners, LP, Western Gas Operating, LLC and WGR Operating, LP.
|
|
3.
|
|
Contribution Agreement, dated as of July 10, 2009, by and among Western Gas Resources,
Inc., WGR Asset Holding Company LLC, Anadarko Uintah Midstream, LLC, WGR Holdings, LLC,
Western Gas Holdings, LLC, WES GP, Inc., Western Gas Partners, LP, Western Gas Operating,
LLC and WGR Operating, LP.
|
4.
|
|
Contribution Agreement, dated as of January 29, 2010, by and among Western Gas
Resources, Inc., WGR Asset Holding Company LLC, Mountain Gas Resources LLC, WGR Holdings,
LLC, Western Gas Holdings, LLC, WES GP, Inc., Western Gas Partners, LP, Western Gas
Operating, LLC and WGR Operating, LP.
|
5.
|
|
Contribution Agreement, dated as of May 27, 2010 by and among Western Gas Resources,
Inc., WGR Asset Holding Company LLC, WGR Holdings, LLC, Western Gas Holdings, LLC, WES GP,
Inc., Western Gas Partners, LP, Western Gas Operating LLC and WGR Operating, LP.
|
6.
|
|
First Amended and Restated Agreement of Limited Partnership of Western Gas Partners,
LP, dated May 14, 2008.
|
7.
|
|
Amendment No. 1 to First Amended and Restated Agreement of Limited Partnership of
Western Gas Partners, LP, dated as of December 19, 2008.
|
8.
|
|
Amendment No. 2 to First Amended and Restated Agreement of Limited Partnership of
Western Gas Partners, LP, dated as of April 15, 2009.
|
9.
|
|
Amendment No. 3 to First Amended and Restated Agreement of Limited Partnership of
Western Gas Partners, LP dated July 22, 2009.
|
10.
|
|
Amendment No. 4 to First Amended and Restated Agreement of Limited Partnership of
Western Gas Partners, LP dated January 29, 2010.
|
11.
|
|
Amended and Restated Limited Liability Company Agreement of Western Gas Holdings, LLC,
dated as of May 14, 2008.
|
Schedule III
Affiliate Agreements
12.
|
|
Term Loan Agreement due 2013 dated as of December 19, 2008 by and between Anadarko
Petroleum Corporation and Western Gas Partners, LP.
|
13.
|
|
Omnibus Agreement by and among Western Gas Partners, LP, Western Gas Holdings, LLC and
Anadarko Petroleum Corporation, dated as of May 14, 2008.
|
14.
|
|
Amendment No. 1 to Omnibus Agreement by and among Western Gas Partners, LP, Western Gas
Holdings, LLC, and Anadarko Petroleum Corporation, dated as of December 19, 2008.
|
15.
|
|
Amendment No. 2 to Omnibus Agreement by and among Western Gas Partners, LP, Western Gas
Holdings, LLC, and Anadarko Petroleum Corporation, dated as of July 22, 2009.
|
16.
|
|
Amendment No. 3 to Omnibus Agreement by and among Western Gas Partners, LP, Western Gas
Holdings, LLC, and Anadarko Petroleum Corporation, dated as of December 31, 2009.
|
17.
|
|
Amendment No. 4 to Omnibus Agreement by and among Western Gas Partners, LP, Western Gas
Holdings, LLC, and Anadarko Petroleum Corporation, dated as of January 29, 2010.
|
18.
|
|
Tax Sharing Agreement by and among Anadarko Petroleum Corporation and Western Gas
Partners, LP, dated as of May 14, 2008.
|
19.
|
|
Services and Secondment Agreement between Western Gas Holdings, LLC and Anadarko
Petroleum Corporation dated May 14, 2008.
|
20.
|
|
Anadarko Petroleum Corporation Fixed Rate Note due 2038.
|
21.
|
|
Working Capital Loan Agreement between Anadarko Petroleum Corporation and Western Gas
Partners, LP, dated as of May 25, 2010.
|
22.
|
|
Revolving Credit Agreement, dated as of March 4, 2008, by and among Anadarko Petroleum
Corporation, Western Gas Partners, LP, JPMorgan Chase Bank, N.A., The Royal Bank of
Scotland, PLC, BNP Paribas, Bank of America, N.A., BMO Capital Markets Financing, Inc., The
Bank of Tokyo-Mitsubishi UFJ, LTD., and each of the Lenders named therein.
|
23.
|
|
Gas Processing Agreement between Chipeta Processing LLC and Kerr-McGee Oil & Gas
Onshore LP.
|
24.
|
|
Amended and Restated Limited Liability Company Agreement of Chipeta Processing LLC.
|
Schedule III
Affiliate Agreements
25.
|
|
Dew Gas Gathering Agreement between Anadarko Gathering Company LLC and Anadarko
Petroleum Corporation.
|
26.
|
|
Haley Gas Gathering Agreement between Anadarko Gathering Company LLC and Anadarko
Petroleum Corporation.
|
27.
|
|
Hugoton Gas Gathering Agreement between Anadarko Gathering Company LLC and Anadarko
Petroleum Corporation.
|
28.
|
|
Pinnacle Gas Gathering Agreement between Pinnacle Gas Treating LLC and Anadarko
Petroleum Corporation.
|
29.
|
|
Indemnification Agreements (the form of which is on file with the Securities and
Exchange Commission) by and between Western Gas Holdings, LLC, its Officers and Directors.
|
30.
|
|
Western Gas Partners, LP 2008 Long-Term Incentive Plan.
|
31.
|
|
Amended and Restated Western Gas Holdings, LLC Equity Incentive Plan.
|
Schedule III
Affiliate Agreements
EXHIBIT A
FORM OF NOTE
, 20
For value received, Western Gas Partners LP, a limited partnership formed under the laws of
the State of Delaware (the
Borrower
), promises to pay to the order of (the
Lender
) at the
office of Wells Fargo Bank, National Association specified in Section 2.13(a) of the Term Loan
Agreement, dated as of August 2, 2010, among the Borrower, the Lender, the several other banks
party thereto, Wells Fargo Bank, National Association, as Administrative Agent, the Document Agent
named therein, and the Syndication Agent named therein, (as may be amended, supplemented or
modified from time to time hereafter, the
Agreement
; terms defined in the Agreement shall have
their defined meanings when used in this Note), in lawful money of the United States of America the
principal amount of
*
DOLLARS ($
*
) or, if less than such principal
amount, the aggregate unpaid principal amount of all Loans made by the Lender to the undersigned
pursuant to Section 2.01 of the Agreement. Such principal shall be payable on the date or dates
specified in Section 2.02 of, or elsewhere in, the Agreement.
The undersigned further agrees to pay interest at said office, in like money, on the unpaid
principal amount owing hereunder from time to time from the Effective Date at the rates specified
in Section 2.10 of the Agreement. Such interest shall be payable on the dates specified in Section
2.10 of the Agreement. The date, Type, Tranche and amount of each Loan made by the Lender pursuant
to Section 2.01 of the Agreement, each continuation of all or a portion thereof to another Type and
the date and amount of each payment of principal with respect thereto shall be endorsed by the
holder of this Note on
Schedule A
annexed hereto, which holder may add additional pages to
such Schedule. No failure to make or error in making any such endorsement as authorized hereby
shall affect the validity of the obligations of the Borrower hereunder or the validity of any
payment hereof made by the Borrower.
This Note is one of the Notes referred to in the Agreement and is entitled to the benefits
thereof and is subject to prepayment in whole or in part as provided therein.
Upon the occurrence of any one or more of the Events of Default specified in the Agreement,
all amounts then remaining unpaid on this Note may be declared to be immediately due and payable as
provided in the Agreement.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK.
Exhibit A-1
Form of Note
|
|
|
|
|
|
|
WESTERN GAS PARTNERS, LP
|
|
|
|
|
|
|
|
By:
|
|
Western Gas Holdings, LLC,
|
|
|
its general partner
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
Exhibit A-2
Form of Note
SCHEDULE A
LOANS AND REPAYMENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of
|
|
|
Amount of Loan
|
|
Type of Loan
|
|
Interest Rate
|
|
Principal Repair
|
|
Notation Made by
|
|
|
|
|
|
|
|
|
|
Exhibit A-3
Form of Note
EXHIBIT B
[FORM OF] ASSIGNMENT AND ASSUMPTION
Reference is made to the Term Loan Agreement dated as of August 2, 2010 (as amended and in
effect on the date hereof, the
Credit Agreement
), among Western Gas Partners, LP, the Lenders
named therein, Wells Fargo Bank, National Association, as Administrative Agent, the Documentation
Agent named therein, and the Syndication Agent named therein. Terms defined in the Credit
Agreement are used herein with the same meanings.
The Assignor named as such below hereby sells and assigns, without recourse, to the Assignee
named as such on the reverse hereof, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date set forth below, the interests set
forth below (the
Assigned Interest
) in the Assignors rights and obligations under the Credit
Agreement, including, without limitation, the interests set forth below in the and Loans owing to
the Assignor which are outstanding on the Assignment Date, but excluding accrued interest to and
excluding the Assignment Date. The Assignee hereby acknowledges receipt of a copy of the Credit
Agreement. From and after the Assignment Date (i) the Assignee shall be a party to and be bound by
the provisions of the Credit Agreement and, to the extent of the Assigned Interest, have the rights
and obligations of a Lender thereunder, and (ii) the Assignor shall, to the extent of the Assigned
Interest, relinquish its rights, and be released from its obligations under the Credit Agreement
arising thereafter.
This Assignment and Assumption is being delivered to the Administrative Agents together with
(i) if the Assignee is a Foreign Lender, any documentation required to be delivered by the Assignee
pursuant to Section 2.16(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed by the Assignee. The
[Assignee/Assignor] shall pay the fee payable to the Administrative Agent pursuant to Section
10.04(b)(ii)(C) of the Credit Agreement.
This Assignment and Assumption shall be governed by and construed in accordance with the laws
of the State of New York.
Date of Assignment:
Legal Name of Assignor:
(
Assignor
)
Legal Name of Assignee:
(
Assignee
)
Assignees Address for Notices:
Effective Date of Assignment
(
Assignment Date
):
The terms set forth above and on the reverse side hereof are hereby agreed to:
Exhibit B-1
Form of Assignment and Assumption
|
|
|
|
|
|
|
Percentage Assigned of Loans
|
|
|
(set forth to at least 8 decimals
|
|
|
as a percentage of the Facility and
|
Principal Amount of Loans
|
|
the aggregate Loans of all Lenders
|
Assigned
|
|
thereunder
|
$
|
|
|
%
|
|
|
|
|
|
|
|
|
[Name of Assignor], as Assignor
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[Name of Assignee], as Assignee
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
Exhibit B-2
Form of Assignment and Assumption
The undersigned hereby consent to the within assignment:
1
|
|
|
|
|
|
|
WESTERN GAS PARTNERS, LP,
as Borrower
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
Western Gas Holdings, LLC,
its general partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Administrative Agent
|
|
|
|
|
|
|
|
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By:
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Name:
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Title:
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1
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Consents to be included to the extent required by Section 10.04(b) of the Credit Agreement.
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Exhibit B-3
Form of Assignment and Assumption
EXHIBIT C
FORM OF GUARANTY
Exhibit C-1
Form of Guaranty
GUARANTY
made by
EACH OF THE OBLIGORS (as defined herein)
in favor of
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Administrative Agent
Dated as of August 2, 2010
TABLE OF CONTENTS
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SECTION 1
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DEFINITIONS
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Section 1.01
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Defined Terms
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1
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SECTION 2
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GUARANTY
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Section 2.01
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Guaranty
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2
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Section 2.02
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Right of Set-off
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3
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Section 2.03
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No Subrogation
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3
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Section 2.04
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Amendments, etc. with respect to the Borrowers Obligations; Waiver of Rights
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4
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Section 2.05
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Guaranty Absolute and Unconditional
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4
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Section 2.06
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Reinstatement
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5
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Section 2.07
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Payments
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5
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Section 2.08
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Release
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5
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SECTION 3
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REPRESENTATIONS AND WARRANTIES
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Section 3.01
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Representations and Warranties
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SECTION 4
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COVENANTS
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Section 4.01
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[Intentionally Omitted]
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SECTION 5
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MISCELLANEOUS
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Section 5.01
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Authority of Administrative Agent
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Section 5.02
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Notices
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6
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Section 5.03
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Counterparts
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6
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Section 5.04
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Severability
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Section 5.05
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Integration
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7
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Section 5.06
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Amendments in Writing; No Waiver; Cumulative Remedies
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7
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Section 5.07
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Loan Documents
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7
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Section 5.08
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Section Headings
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Section 5.09
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Successors and Assigns
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Section 5.10
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GOVERNING LAW
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Section 5.11
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Submission to Jurisdiction
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Section 5.12
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Acknowledgments
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Section 5.13
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WAIVERS OF JURY TRIAL
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Section 5.14
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Additional Obligors
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SCHEDULES:
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Schedule 1
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Address for Notices
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Schedule 2
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Form of Assumption Agreement
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i
GUARANTY
GUARANTY
, dated as of August 2, 2010, is made by each of the signatories hereto (each of the
signatories hereto, together with any other subsidiary of the Borrower that becomes a party hereto
from time to time after the date hereof, the
Obligors
), in favor of WELLS FARGO BANK, NATIONAL
ASSOCIATION, as administrative agent (in such capacity, the
Administrative Agent
) for the lenders
(the
Lenders
) party to the Loan Agreement.
R E C I T A L S
The Lenders have severally agreed to make a term Loan to the Borrower upon the terms and
subject to the conditions set forth in the Term Loan Agreement dated as of even date herewith (as
such may be amended, supplemented or otherwise modified from time to time, the
Loan Agreement
),
among
WESTERN GAS PARTNERS, LP
, a Delaware limited partnership (the
Borrower
), the financial
institutions now or hereafter signatory thereto (the
Lenders
), the Administrative Agent for the
Lenders, and the other Agents and Lenders party thereto.
The Obligors are each direct or indirect subsidiaries of the Borrower.
The Borrower and the Obligors are engaged in related businesses, and therefore each Obligor
will derive substantial direct and indirect benefit from the making of the term Loans to the
Borrower under the Loan Agreement.
The Loans are necessary and convenient to the conduct, promotion and attainment of the
business of the Borrower and each Obligor.
It is a condition precedent to the obligation of the Lenders to make their respective term
Loan to the Borrower under the Loan Agreement that each Obligor shall have executed and delivered
this Guaranty to the Administrative Agent for the ratable benefit of the Lenders.
Now, therefore, in consideration of the premises herein and to induce the Administrative Agent
and the Lenders to enter into the Loan Agreement and to induce the Lenders to make their respective
term Loan to the Borrower thereunder, each Obligor hereby agrees with the Administrative Agent, for
the ratable benefit of the Lenders, as follows:
SECTION 1
DEFINITIONS
Section 1.01 Defined Terms
. Unless otherwise defined herein, each term defined in the Loan
Agreement and used herein shall have the meaning given to it in the Loan Agreement.
Assumption Agreement
means an Assumption Agreement substantially in the form attached hereto
as Schedule 2.
Borrowers Obligations
means the collective reference to all obligations of the Borrower and
its Subsidiaries under the Guaranteed Documents, including, without limitation, the unpaid
principal of and interest on the Loans and all other obligations and liabilities of the
Borrower (including, without limitation, interest accruing at the then applicable rate
provided in the Loan Agreement after the maturity of the Loans and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) to the Administrative Agent or any Lender, whether absolute
or contingent, due or to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, the Guaranteed Documents, whether on account of principal, interest,
reimbursement obligations, reasonable fees, indemnities, reasonable costs, reasonable expenses or
otherwise (including, without limitation, all reasonable fees and disbursements of counsel to the
Administrative Agent or any Lender that are required to be paid by the Borrower pursuant to the
terms of any Guaranteed Documents).
Guaranteed Creditor
means the collective reference to the Administrative Agent and the
Lenders.
Guaranteed Document
means the collective reference to this Guaranty, the Loan Agreement, any
Note, the other Loan Documents and any other document made, delivered or given in connection with
any of the foregoing.
The words hereof, herein and hereunder and words of similar import when used in this
Guaranty shall refer to this Guaranty as a whole and not to any particular provision of this
Guaranty, and section and paragraph references are to this Guaranty unless otherwise specified.
The meanings given to terms defined herein shall be equally applicable to both the singular
and plural forms of such terms.
SECTION 2
GUARANTY
Section 2.01 Guaranty
.
(a) Subject to the provisions of Section 2.01(b), each Obligor hereby, jointly and severally,
unconditionally and irrevocably, guarantees to each Guaranteed Creditor and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment and performance by
the Borrower or its Subsidiaries when due (whether at the stated maturity, by acceleration or
otherwise) of the Borrowers Obligations.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum
liability of each Obligor hereunder and under the other Loan Documents shall in no event exceed the
amount which can be guaranteed by such Obligor under applicable federal and state laws relating to
the insolvency of debtors.
(c) Each Obligor further agrees to pay any and all expenses (including, without limitation,
all reasonable fees and disbursements of counsel) which may be paid or incurred by any Guaranteed
Creditor in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Borrowers Obligations and/or enforcing any rights with respect to,
or collecting against, an Obligor under this Guaranty. This Guaranty shall remain in full force
and effect until the Borrowers Obligations are paid in full, or
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until a release of this Guaranty is made pursuant to Section 2.08, notwithstanding that from
time to time prior thereto no amounts may be outstanding under the Loan Agreement.
(d) Each Obligor agrees that the Borrowers Obligations may at any time and from time to time
exceed the amount of the liability of such Obligor hereunder without impairing this Guaranty or
affecting the rights and remedies of any Guaranteed Creditor hereunder.
(e) No payment or payments made by the Borrower, any Obligor, any other guarantor or any other
Person or received or collected by a Guaranteed Creditor from the Borrower, an Obligor, any other
guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation
or application at any time or from time to time in reduction of or in payment of the Borrowers
Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any
Obligor hereunder which shall, notwithstanding any such payment or payments (other than payments
made by the Borrower or an Obligor in respect of the Borrowers Obligations or payments received or
collected from an Obligor in respect of the Borrowers Obligations), remain liable for the
Borrowers Obligations up to the maximum liability of any Obligor hereunder until the Borrowers
Obligations are paid in full.
(f) Each Obligor agrees that whenever, at any time, or from time to time, it shall make any
payment to any Guaranteed Creditor on account of its liability hereunder, it will notify the
Administrative Agent in writing that such payment is made under this Guaranty for such purpose.
Section 2.02 Right of Set-off
. During the continuance of any Event of Default, each Obligor
hereby irrevocably authorizes each Lender at any time and from time to time without prior notice to
such Obligor, any such notice being expressly waived by each Obligor, to set-off and appropriate
and apply any and all deposits (general or special, time or demand, provisional or final, but
excluding deposits held by such Obligor as a fiduciary for others), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute
or contingent, matured or unmatured, at any time held or owing by such Lender to or for the credit
or the account of such Obligor, or any part thereof in such amounts as such Lender may elect,
against and on account of the obligations and liabilities of such Obligor to such Lender hereunder
and claims of every nature and description of such Lender against such Obligor, in any currency,
whether arising hereunder, under the Loan Agreement, any Note, any Loan Documents or otherwise, as
such Lender may elect, whether or not the Administrative Agent or any Lender has made any demand
for payment and although such obligations, liabilities and claims may be contingent or unmatured.
Such Lender shall notify the relevant Obligor and the Administrative Agent promptly of any such
set-off and the application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of each Lender under
this subsection are in addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Administrative Agent or such Lender may have.
Section 2.03 No Subrogation
. Notwithstanding any payment or payments made by an Obligor
hereunder or any set-off or application of funds of an Obligor by any Lender, an Obligor shall not
be entitled to be subrogated to any of the rights of the Administrative Agent or any Lender against
the Borrower or any collateral security or guarantee or right of offset held by any
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Lender for the payment of the Borrowers Obligations until all amounts owing to the Guaranteed
Creditor by the Borrower or its Subsidiaries on account of the Borrowers Obligations are paid in
full, nor shall an Obligor seek or be entitled to seek any contribution or reimbursement from the
Borrower in respect of payments made by an Obligor hereunder until all amounts owing to the
Guaranteed Creditor by the Borrower or its Subsidiaries on account of the Borrowers Obligations
are paid in full. If any amount shall be paid to an Obligor on account of such subrogation rights
at any time when all of the Borrowers Obligations shall not have been paid in full, such amount
shall be held by such Obligor in trust for the Administrative Agent and the Lenders, segregated
from other funds of such Obligor, and shall, forthwith upon receipt by such Obligor, be turned over
to the Administrative Agent in the exact form received by such Obligor (duly indorsed by such
Obligor to the Administrative Agent, if required), to be applied against the Borrowers
Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine.
Section 2.04 Amendments, etc. with respect to the Borrowers Obligations; Waiver of Rights
.
Each Obligor shall remain obligated hereunder notwithstanding that, without any reservation of
rights against any Obligor and without notice to or further assent by any Obligor: (a) any demand
for payment of any of the Borrowers Obligations made by any Guaranteed Creditor may be rescinded
by such party and any of the Borrowers Obligations continued; (b) the Borrowers Obligations, or
the liability of any other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or
released by any Guaranteed Creditor; (c) the Loan Agreement, the Notes and the other Loan Documents
and any other documents executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Administrative Agent may deem advisable
from time to time; and (d) any collateral security, guarantee or right of offset at any time held
by any Guaranteed Creditor for the payment of the Borrowers Obligations may be sold, exchanged,
waived, surrendered or released. No Guaranteed Creditor shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the Borrowers
Obligations or for this Guaranty or any property subject thereto. When making any demand hereunder
against an Obligor, the Administrative Agent or any Lender may, but shall be under no obligation
to, make a similar demand on the Borrower, and any failure by such Guaranteed Creditor to make any
such demand or to collect any payments from the Borrower or any release of the Borrower shall not
relieve an Obligor in respect of which a demand or collection is not made, and shall not impair or
affect the rights and remedies, express or implied, or as a matter of law, of any Guaranteed
Creditor against an Obligor. For the purposes hereof demand shall include the commencement and
continuance of any legal proceedings.
Section 2.05 Guaranty Absolute and Unconditional
. Each Obligor waives any and all notice of
the creation, renewal, extension or accrual of any of the Borrowers Obligations and notice of or
proof of reliance by any Guaranteed Creditor upon this Guaranty or acceptance of this Guaranty.
The Borrowers Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty.
All dealings between the Borrower and any Obligor, on the one hand, and any Guaranteed Creditor, on
the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance
upon this Guaranty. Each Obligor waives diligence,
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presentment, protest, demand for payment and notice of default or nonpayment to or upon the
Borrower with respect to the Borrowers Obligations. Each Obligor understands and agrees that this
Guaranty shall be construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity, regularity or enforceability of any Guaranteed Document, any of
the Borrowers Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by any Guaranteed Creditor, (b)
any defense, set-off or counterclaim (other than a defense of payment or performance) which may at
any time be available to or be asserted by the Borrower against any Guaranteed Creditor, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of the Borrower or any
Obligor) which constitutes, or might be construed to constitute, an equitable or legal discharge of
the Borrower for the Borrowers Obligations, or of any Obligor under this Guaranty, in bankruptcy
or in any other instance. When pursuing its rights and remedies hereunder against any Obligor,
each Guaranteed Creditor may, but shall be under no obligation to, pursue such rights and remedies
as it may have against the Borrower or any other Person or against any collateral security or
guarantee for the Borrowers Obligations or any right of offset with respect thereto, and any
failure by any Guaranteed Creditor to pursue such other rights or remedies or to collect any
payments from the Borrower or any such other Person or to realize upon any such collateral security
or guarantee or to exercise any such right of offset, or any release of the Borrower or any such
other Person or any such collateral security, guarantee or right of offset, shall not relieve any
Obligor of any liability hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of any Guaranteed Creditor against any Obligor.
This Guaranty shall remain in full force and effect and be binding in accordance with and to the
extent of its terms upon each Obligor and the successors and assigns thereof, and shall inure to
the benefit of each Guaranteed Creditor, and their respective successors, indorsees, transferees
and assigns, until all the Borrowers Obligations and the obligations of each Obligor under this
Guaranty shall have been satisfied by payment in full in cash.
Section 2.06 Reinstatement
. This Guaranty shall continue to be effective, or be reinstated,
as the case may be, if at any time payment, or any part thereof, of any of the Borrowers
Obligations is rescinded or must otherwise be restored or returned by the Administrative Agent or
any Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Obligor, or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower or any Obligor or any substantial
part of its property, or otherwise, all as though such payments had not been made.
Section 2.07 Payments
. Each Obligor hereby guarantees that payments hereunder will be paid to
the Administrative Agent, for the ratable benefit of the Lenders, without set-off, deduction or
counterclaim, in dollars, in immediately available funds, at the offices of the Administrative
Agent specified in Section 10.01 of the Loan Agreement.
Section 2.08 Release
. Upon the earlier of (i) the Investment Grade Rating Date and (ii) the
irrevocable and indefeasible payment of the Borrowers Obligations, the Administrative Agent, on
behalf of the Guaranteed Creditor, shall execute a release of the Obligors from any further
obligations under this Guaranty or with regard to the Borrowers Obligations.
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SECTION 3
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties
. Each Obligor hereby represents and warrants that
the representations and warranties set forth in Article III of the Loan Agreement as they relate to
such Obligor or to the other Loan Documents to which such Obligor is a party, each of which is
hereby incorporated herein by reference, are true and correct, and each Guaranteed Creditor shall
be entitled to rely on each of them as if they were fully set forth herein, provided that each
reference in each such representation and warranty to the Borrowers knowledge shall, for the
purposes of this Section 3, be deemed to be a reference to such Obligors knowledge.
Each Obligor agrees that the foregoing representations and warranties shall be deemed to have
been made by such Obligor on the date of the Loans under the Loan Agreement (except to the extent
that such representations and warranties are expressly made only as of an earlier date, in which
case such representations and warranties shall have been true and correct on and as of such earlier
date).
SECTION 4
COVENANTS
Section 4.01
[Intentionally Omitted].
SECTION 5
MISCELLANEOUS
Section 5.01 Authority of Administrative Agent
. Each Obligor acknowledges that the rights and
responsibilities of the Administrative Agent under this Guaranty with respect to any action taken
by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of any
option, right, request, judgment or other right or remedy provided for herein or resulting or
arising out of this Guaranty shall, as between the Administrative Agent and the Lenders, be
governed by the Loan Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and any Obligor, the
Administrative Agent shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting in the manner set forth in Article IX of the
Loan Agreement, and the Obligors shall not be under any obligation, or entitlement, to make any
inquiry respecting such authority.
Section 5.02 Notices
. All notices and other communications provided for herein shall be given
in the manner and subject to the terms of Section 10.01 of the Loan Agreement; provided that any
such notice, request or demand to or upon an Obligor shall be addressed to such Obligor at its
notice address set forth on Schedule 1.
Section 5.03 Counterparts
. This Guaranty may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract.
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Section 5.04 Severability
. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 5.05 Integration
. This Guaranty represents the agreement of each Obligor with respect
to the subject matter hereof and there are no promises, undertakings, representations or warranties
by the Administrative Agent or any Lender relative to the subject matter hereof not reflected
herein.
Section 5.06 Amendments in Writing; No Waiver; Cumulative Remedies
.
(a) None of the terms or provisions of this Guaranty may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by each Obligor and the Administrative
Agent in accordance with Section 10.02 of the Loan Agreement.
(b) No Guaranteed Creditor shall by any act (except by a written instrument pursuant to
Section 5.06(a) hereof), delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any Default or Event of Default or in any breach
of any of the terms and conditions hereof. No failure to exercise and no delay in exercising, on
the part of any Guaranteed Creditor, any right, remedy, power or privilege hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. A waiver by any Guaranteed Creditor of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or remedy which such
Guaranteed Creditor would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative and not exclusive of any other
rights, remedies, powers and privileges provided by law.
Section 5.07 Loan Documents
. Each Obligor agrees that this Guaranty shall constitute a Loan
Document under the Loan Agreement.
Section 5.08 Section Headings
. The section headings used in this Guaranty are for convenience
of reference only and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.
Section 5.09 Successors and Assigns
. This Guaranty shall be binding upon the successors and
assigns of each Obligor and shall inure to the benefit of the Administrative Agent and the Lenders
and their successors and assigns.
Section 5.10 GOVERNING LAW
. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Section 5.11 Submission to Jurisdiction
.
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(a) Each Obligor hereby irrevocably and unconditionally submits for itself and its property,
to the nonexclusive jurisdiction of the courts of the Supreme Court of the State of New York,
sitting in New York County and of the United States District Court of the Southern District of New
York, and any appellate court from either thereof, in any action or proceeding arising out of or
relating to this Guaranty, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State court or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Guaranty shall affect
any right that any Guaranteed Creditor or any of the other agents may otherwise have to bring any
action or proceeding relating to this Guaranty against any Obligor or its properties in the courts
of any jurisdiction.
(b) Each party to this Guaranty irrevocably consents to service of process in the manner
provided for notices in Section 10.01 of the Loan Agreement. Nothing in this Guaranty will affect
the right of any party to this Agreement to serve process in any other manner permitted by law.
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Section 5.12 Acknowledgments
. Each Obligor hereby acknowledges that:
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(a) it has been advised by counsel in the negotiation, execution and delivery of this Guaranty
and the other Loan Documents;
(b) no Guaranteed Creditor has any fiduciary relationship with or duty to such Obligor arising
out of or in connection with this Agreement or any of the other Guaranteed Documents, and the
relationship between the Guaranteed Creditor, on one hand, and such Obligor, on the other hand, in
connection herewith or therewith is solely that of guarantor and creditor; and
(c) no joint venture is created hereby or by the other Guaranteed Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Guaranteed Creditor or among the
Borrower and the Guaranteed Creditor.
Section 5.13 WAIVERS OF JURY TRIAL
. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (a) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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Section 5.14 Additional Obligors
. Each Subsidiary of the Borrower that is required to become
a party to this Guaranty pursuant to Section 4.06 of the Loan Agreement shall become an Obligor for
all purposes of this Guaranty upon execution and delivery by such Subsidiary of an Assumption
Agreement and shall thereafter have the same rights, benefits and obligations as an Obligor party
hereto on the date hereof.
[
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IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be duly executed and
delivered by its duly authorized officer as of the day and year first above written.
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OBLIGORS:
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ANADARKO GATHERING COMPANY LLC
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KERR-MCGEE GATHERING LLC
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MIGC LLC
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PINNACLE GAS TREATING LLC
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WESTERN GAS WYOMING, L.L.C.
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By:
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WGR Operating, LP, as sole member
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By:
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Western Gas Operating, LLC,
its general partner
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By:
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Name:
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Title:
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WESTERN GAS OPERATING, LLC
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By:
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Name:
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Title:
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WESTERN GAS PARTNERS FINANCE
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CORPORATION
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By:
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Name:
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Title:
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WGR OPERATING, LP
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By:
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Western Gas Operating, LLC,
its general partner
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By:
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Name:
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Title:
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Signature Page
Term Loan Guaranty Agreement
(Western Gas Operating, LP)
Acknowledged and Agreed to as
of the date hereof by:
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ADMINISTRATIVE AGENT:
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WELLS FARGO BANK, NATIONAL
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ASSOCIATION
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By:
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Name:
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Title:
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Signature Page
Term Loan Guaranty Agreement
(Western Gas Partners, LP)
SCHEDULE 1
ADDRESS FOR NOTICES
For each of the Obligors named herein:
1201 Lake Robbins Drive
The Woodlands, TX 77380
Attn: Senior Vice President and CFO
Facsimile: (832) 636-0278
Schedule 1
SCHEDULE 2
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, dated as of [ ], 201[ ], made by [ ],
a [ ] (the
Additional Obligor
), in favor of WELLS FARGO BANK, NATIONAL
ASSOCIATION, as administrative agent (in such capacity, the
Administrative Agent
) for the
Guaranteed Creditor (used herein as defined in the Guaranty Agreement referred to below). All
capitalized terms not defined herein shall have the meaning ascribed to them in the Loan Agreement
referred to below.
W I T N E S S E T H:
WHEREAS, Western Gas Partners, LP, a Delaware limited partnership (the
Borrower
),
the Administrative Agent, and certain financial institutions as agents and lenders have entered
into that certain Term Loan Agreement, dated as of August 2, 2010 (as amended, restated,
supplemented or otherwise modified from time to time, the
Loan Agreement
);
WHEREAS, in connection with the Loan Agreement, the Borrower and certain of its Affiliates
(other than the Additional Obligor) have entered into a Guaranty Agreement, dated as of August 2,
2010 (as amended, restated, supplemented or otherwise modified from time to time, the
Guaranty
Agreement
) in favor of the Administrative Agent for the benefit of the Guaranteed Creditor;
WHEREAS, the Loan Agreement requires the Additional Obligor to become a party to the Guaranty
Agreement; and
WHEREAS, the Additional Obligor has agreed to execute and deliver this Assumption Agreement in
order to become a party to the Guaranty Agreement;
NOW, THEREFORE, IT IS AGREED:
1.
Guaranty Agreement
. By executing and delivering this Assumption Agreement, the
Additional Obligor, as provided in Section 5.14 of the Guaranty Agreement, hereby becomes a party
to the Guaranty Agreement as an Obligor thereunder with the same force and effect as if originally
named therein as an Obligor and, without limiting the generality of the foregoing, hereby expressly
assumes all obligations and liabilities of an Obligor thereunder. The Additional Obligor hereby
represents and warrants that each of the representations and warranties contained in Section 3 of
the Guaranty Agreement is true and correct as to such Person on and as the date hereof (after
giving effect to this Assumption Agreement) as if made on and as of such date.
2.
Governing Law
. This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed
and delivered as of the date first above written.
Schedule 2-1
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[
ADDITIONAL OBLIGOR
]
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By:
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Name:
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Title:
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Schedule 2-2