WILLIAMS PARTNERS L.P.
WILLIAMS PARTNERS FINANCE CORPORATION
$600,000,000
7 1 / 4 %
Notes due 2017
Citigroup
Global Markets Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As Representatives of the Initial Purchasers
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
c/o Lehman
Brothers Inc.
745 Seventh Avenue
New York, New York 10019
c/o Merrill
Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center
New York, New York 10080
Williams Partners
L.P., a limited partnership organized under the laws of Delaware
(the “ Partnership ”), and Williams Partners
Finance Corporation, a Delaware corporation (“ Williams
Finance ,” and together with the Partnership, the “
Issuers ”), as co-issuers, propose to issue and sell
to the several parties named in Schedule I hereto (the
“ Initial Purchasers ”), for whom you (the
“ Representative s”) are acting as
representatives, $600,000,000 aggregate principal amount of their
7 1
/ 4 % Senior
Notes due 2017 (the “ Securities ”). The
Securities are to be issued under an indenture (the “
Indenture ”), to be dated as of the Closing Date (as
defined herein), among the Partnership, Williams Finance and The
Bank of New York, as trustee (the “ Trustee ”).
The Securities will have the benefit of a registration rights
agreement (the “ Registration Rights Agreement
”), to be dated as of the Closing Date, among the
Partnership, Williams Finance and the Initial Purchasers, pursuant
to which the Partnership and Williams Finance will agree to
register the Securities under the Act (as defined herein) subject
to the terms and conditions therein specified. The use of the
neuter in this Agreement shall include the feminine and masculine
wherever appropriate. Certain terms used herein are defined in
Section 22 hereof.
The sale of the
Securities to the Initial Purchasers will be made without
registration of the Securities under the Act in reliance upon
exemptions from the registration requirements of the
Act.
In connection with
the sale of the Securities, the Partnership has prepared an
offering memorandum, setting forth information concerning the
Issuers, the Securities and the Registration Rights Agreement, in
form and substance reasonably satisfactory to the Initial
Purchasers. As used in this Agreement “ Preliminary
Memorandum ” means the preliminary offering memorandum
dated as of December 4, 2006 and “ Final
Memorandum ” means the offering memorandum dated the date
hereof, each as then amended or supplemented at the date thereof
including any and all exhibits thereto and any information
incorporated by reference therein. The Issuers hereby confirm that
they have authorized the use of the Disclosure Package (as defined
herein), the Preliminary Memorandum and the Final Memorandum, and
any amendment or supplement thereto, in connection with the offer
and sale of the Securities by the Initial Purchasers. Unless stated
to the contrary, any references herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Disclosure Package,
the Preliminary Memorandum and the Final Memorandum shall be deemed
to refer to and include any information filed under the Exchange
Act subsequent to the Execution Time (as defined herein) that is
incorporated by reference therein.
Williams Partners
GP LLC, a Delaware limited liability company, serves as the general
partner (the “ General Partner ”) of the
Partnership. Williams Energy Services, LLC, a Delaware limited
liability company (“ WES ”) and a direct wholly
owned subsidiary of The Williams Companies, Inc., a Delaware
corporation (“ Williams ”), serves as the sole
member of the General Partner. Each of WES, Williams Discovery
Pipeline LLC, a Delaware limited liability company (“
Williams Pipeline ”), Williams Partners Holdings LLC,
a Delaware limited liability company (“ Holdings
”), and Williams Energy, L.L.C., a Delaware limited liability
company (“ WE ”), are limited partners of the
Partnership. The Partnership is the sole member of Williams
Partners Operating LLC, a Delaware limited liability company
(“ OLLC ”), and is the sole stockholder of
Williams Finance. OLLC is the sole member of each of Mid-Continent
Fractionation and Storage, LLC, a Delaware limited liability
company (“ MCFS ”), and Carbonate Trend Pipeline
LLC, a Delaware limited liability company (“ CTP
”), and owns a 40% limited liability company interest in
Discovery Producer Services, LLC, a Delaware limited liability
company (“ DPS ”), and a 25.1% limited liability
company interest in Williams Four Corners LLC, a Delaware limited
liability company (“ Four Corners LLC ”). DPS is
the sole member of Discovery Gas Transmission, LLC, a Delaware
limited liability company (“ DGT ”).
Prior to or as of
the date hereof, the following have occurred:
(a) The
General Partner, WES, Williams Field Services Group, LLC (“
WFS Group ”), Williams Field Services Company, LLC
(“ WFS Company ,” collectively with the General
Partner, WES and WFS Group, the “ Seller Parties
”), the Partnership and OLLC entered into a Purchase and Sale
Agreement, dated November 16, 2006 (the “ Four
Corners Purchase and Sale Agreement ”), pursuant to which
the Partnership will acquire an additional 74.9% member interest
(the “ Four Corners Interest ”) in Four Corners
LLC from the Seller Parties for aggregate consideration of
$1.223 billion;
2
(b) The
Partnership entered into a Common Unit and Class B Unit
Purchase Agreement, dated December 1, 2006 (the “
Private Unit Purchase Agreement ”), with certain
qualified institutional buyers named as purchasers therein to issue
and sell approximately $350 million of Common Units and
Class B units representing limited partner interests in the
Partnership (“ Class B Units ,” such
Class B Units together with the Common Units issued and sold
pursuant thereto, the “ Privately Placed Units
”) to such purchasers in a private placement (the “
Equity Private Placement ”); and
(c) The
Partnership has filed with the Commission a preliminary prospectus
supplement, dated December 4, 2006, pursuant to Rule 424(b)
under the Act relating to the underwritten public offering by the
Partnership of 6,900,000 Common Units (plus an additional 1,035,000
Common Units issuable upon exercise of the underwriters’
option to purchase additional Common Units) (the “ Public
Equity Offering ”).
On the Closing
Date, the following transactions will occur, unless otherwise
noted:
(a) Pursuant
to this Agreement, the Initial Purchasers will pay cash to the
Issuers in exchange for the Securities;
(b) Certain
public investors, through the Underwriters in the Public Equity
Offering, will contribute cash to the Partnership in exchange for
the Common Units purchased therein, as contemplated by the
underwriting agreement entered into in connection therewith among
the General Partner, the Partnership, OLLC and the underwriters
named therein;
(c) Pursuant
to the Private Unit Purchase Agreement, the investors in the Equity
Private Placement will contribute cash to the Partnership in
exchange for the Private Units;
(d) The
parties to the Four Corners Purchase and Sale Agreement will
consummate the transactions contemplated therein, which will
include the following:
(i) the
Partnership will use the proceeds from the offerings of the
Securities, the Public Equity Offering and the Equity Private
Placement (i) to pay a portion of the consideration under the
Four Corners Purchase and Sale Agreement and (ii) to pay
offering and transaction expenses incurred by the
Issuers;
(ii) the
Partnership will increase the capital account of the General
Partner by an amount equal to 2/98ths of the gross proceeds of the
Public Equity Offering and the Equity Private Placement and issue a
proportionate amount of General Partner Units (as defined in the
Partnership Agreement (as defined below)) to the General
Partner;
(iii) if required,
the Partnership will issue unregistered Class B Units to the
General Partner as payment of a portion of the consideration under
the Four Corners Purchase and Sale Agreement (the “
Sponsor Class B Units ”); and
(iv) WES, WFS
Group, WFS Company, the General Partner, the Partnership and OLLC
will enter into the Contribution, Conveyance and Assumption
Agreement (the “ Contribution Agreement ”), in
substantially the form attached as Exhibit A to the Four
Corners Purchase and Sale Agreement;
3
(e) The
General Partner will enter into and effectuate Amendment No. 3
to the Amended and Restated Agreement of Limited Partnership of the
Partnership, dated as of August 23, 2005 (as the same may be
amended or restated on or prior to each Delivery Date, the “
Partnership Agreement ”);
(f) The
Issuers will enter into the Indenture with the Trustee;
(g) The
Issuers will enter into the Registration Rights Agreement with the
Initial Purchasers; and
(h) The
Issuers will enter into a registration rights agreement (the
“ Private Equity Registration Rights Agreement
,” and with the Registration Rights Agreement, the “
Registration Rights Agreements ”) with the purchasers
in the Equity Private Placement.
The transactions
described in clauses (a) through (h) above are
referred to herein as the “ Transactions
.”
Each of Williams
Finance, MCFS, CTP, DPS, DGT and Four Corners LLC is referred to
herein, individually, as a “ Subsidiary ” and,
collectively, as the “ Subsidiaries
.”
The Partnership,
the General Partner, OLLC and the Subsidiaries are sometimes
referred to herein collectively as the “ Partnership
Entities .” The General Partner, the Partnership,
Williams Finance and OLLC are sometimes referred to herein
collectively as the “ Williams Parties .” The
Williams Parties, together with Williams, WES, WFS Group, WFS
Company, Williams Pipeline, Holdings and WE are sometimes referred
to herein collectively as the “ Williams Entities
.”
This is to confirm
the agreement (this “ Agreemen t”) concerning
the purchase of the Securities from the Issuers by the Initial
Purchasers.
1.
Representations and Warranties . The Williams Parties
represent, warrant and agree with each Initial Purchaser as set
forth below in this Section 1 .
(a) The
Disclosure Package did not, as of the Execution Time, contain an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The Final Memorandum will not, as of its date, on the
Closing Date and on any settlement date (and any amendment or
supplement thereto, at the date thereof, at the Closing Date and on
any settlement date will not) contain an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that the Williams Parties make no representation
or warranty as to the information contained in or omitted from the
Disclosure Package or the Final Memorandum, or any amendment or
supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Williams Parties by or on
behalf of the Initial Purchasers through the Representatives
specifically for inclusion therein, it being understood and agreed
that the only such information furnished by or on behalf of any
Initial Purchaser consists of the information described as such in
Section 8(b) hereof.
4
(b) None of
the Williams Parties or any person acting on their behalf has,
directly or indirectly, made offers or sales of any security, or
solicited offers to buy, any security under circumstances that
would require the registration of the Securities under the
Act.
(c) None of
the Williams Parties or any person acting on their behalf has:
(i) engaged in any form of general solicitation or general
advertising (within the meaning of Rule 502(c) under the Act) in
connection with any offer or sale of the Securities or
(ii) engaged in any directed selling efforts (within the
meaning of Regulation S under the Act) with respect to the
Securities; and each of the Williams Parties and each person acting
on their behalf has complied with the offering restrictions
requirement of Regulation S under the Act.
(d) The
Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Act.
(f) No
registration under the Act of the Securities is required for the
offer and sale of the Securities to the Initial Purchasers or for
the resales of the Securities by the Initial Purchasers, in each
case, in the manner contemplated herein and in the Disclosure
Package and the Final Memorandum.
(g) The
Partnership is not, and after giving effect to the offering and
sale of the Securities and the application of the net proceeds
thereof as described under the caption “ Use of
Proceeds ” in the Preliminary Memorandum and the Final
Memorandum will not be, an “ investment company
” as defined in the Investment Company Act.
(h) The
Partnership is subject to and in full compliance with the reporting
requirements of Section 13 or Section 15(d) of the Exchange
Act.
(i) The
Partnership has not paid or agreed to pay to any person any
compensation for soliciting another to purchase any Securities
(except as contemplated in this Agreement).
(j) The
Partnership has not taken, directly or indirectly, any action
designed to or that has constituted or that would reasonably be
expected to cause or result, under the Exchange Act or otherwise,
in the stabilization or manipulation of the price of any security
of the Partnership to facilitate the sale or resale of the
Securities.
(k) The
Partnership has been duly formed and is validly existing in good
standing as a limited partnership under the Delaware Revised
Uniform Limited Partnership Act (the “ Delaware LP Act
”), has full partnership power and authority necessary to own
or hold its properties and assets and to conduct the businesses in
which it is engaged, and is, or at the Closing Date will be, duly
registered or qualified to do business as a foreign limited
partnership in each jurisdiction listed opposite its name in
Annex B , such jurisdictions being the only jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to
so register or qualify could not reasonably be expected to
(i) have a material adverse effect on the condition (financial
or otherwise), results of operations, securityholders’
equity, properties, business or prospects of the Partnership
Entities,
5
taken as a
whole (a “ Material Adverse Effect ”), or
(ii) subject the limited partners of the Partnership to any
material liability or disability.
(l) Williams
Finance has been duly incorporated and is validly existing in good
standing as a corporation under the General Corporation Law of the
State of Delaware (the “ DGCL ”), has full
corporate power and authority necessary to own or hold its
properties and assets and to conduct the businesses in which it is
engaged, and is, or at the Closing Date will be, duly registered or
qualified to do business as a foreign corporation in each
jurisdiction listed opposite its name in Annex B , such
jurisdictions being the only jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification, except where the failure to so register or qualify
could not reasonably be expected to (i) have a Material
Adverse Effect or (ii) subject the limited partners of the
Partnership to any material liability or disability.
(m) Each of
the General Partner, OLLC, MCFS, CTP, DPS, DGT, WES, WFS Group, WFS
Company and Four Corners LLC has been duly formed and is validly
existing in good standing as a limited liability company under the
Delaware Limited Liability Company Act (the “ Delaware LLC
Act ”), has full limited liability company power and
authority necessary to own or hold its properties and to conduct
the businesses in which it is engaged, and is, or at the Closing
Date will be, duly registered or qualified to do business as a
foreign limited liability company in each jurisdiction listed
opposite its name in Annex B , such jurisdictions being the
only jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except
where the failure to so register or qualify could not reasonably be
expected to (i) have a Material Adverse Effect or
(ii) subject the limited partners of the Partnership to any
material liability or disability.
(n) The
statements in the Preliminary Memorandum and the Final Memorandum
under the headings “ Material Federal Income Tax
Considerations ,” insofar as they purport to describe
provisions of laws and documents referred to therein, and “
Description of Notes ,” insofar as they purport to
constitute a summary of the terms of the Securities, when such
Securities are issued and delivered against payment therefore as
provided herein and in the Indenture, fairly summarize the matters
therein described in all material respects.
(o) On the
Closing Date, after giving effect to the Transactions, the General
Partner will be the sole general partner of the Partnership with an
approximate 2.0% general partner interest in the Partnership; such
general partner interest will be duly authorized and validly issued
in accordance with the Partnership Agreement; and the General
Partner will own such general partner interest free and clear of
all liens, encumbrances, security interests, charges or claims
(collectively, “ Liens ”).
(p) As of the
respective dates of the Preliminary Memorandum and the Final
Memorandum, other than the Common Units to be offered by the
Partnership pursuant to the Underwriting Agreement, the Privately
Placed Units and the Sponsor Class B Units, the Partnership
has no limited partner interests issued and outstanding other than
the following:
(i) an aggregate
of 1,250,000 Common Units and 7,000,000 subordinated units
representing limited partner interests in the
Partnership
6
(“
Subordinated Units ”) held by affiliates of Williams
(the “ Sponsor Units ”) representing an
aggregate 37.4% limited partner interest in the
Partnership;
(ii) the Incentive
Distribution Rights (as defined in the Partnership Agreement) held
by the General Partner; and
(iii) 13,348,276
Common Units representing an aggregate 60.6% limited partner
interest in the Partnership issued to public unitholders (the
“ Existing Public Units ”).
All of such
Sponsor Units, Incentive Distribution Rights, Existing Public Units
and the limited partner interests represented thereby have been
duly authorized and validly issued in accordance with the
Partnership Agreement and are fully paid (to the extent required
under the Partnership Agreement) and non-assessable (except as such
non-assessability may be affected by Sections 17-303, 17-607
and 17-804 of the Delaware LP Act); and WES owns such WES Sponsor
Units, WE owns such WE Sponsor Units, Williams Pipeline owns such
Williams Pipeline Sponsor Units, Holdings owns such Holdings
Sponsor Units and the General Partner owns such Incentive
Distribution Rights, in each case, free and clear of all Liens
(except, with respect to the Sponsor Units and the Incentive
Distribution Rights, restrictions on transferability contained in
the Partnership Agreement or as described in the Preliminary
Memorandum or the Final Memorandum).
(q) The
Partnership is the sole member of OLLC with a 100% limited
liability company interest in OLLC; such limited liability company
interest has been duly authorized and validly issued in accordance
with the Amended and Restated Limited Liability Company Agreement
of OLLC (as the same may be amended and restated on or prior to the
Closing Date, the “ OLLC Agreement ”) and is
fully paid (to the extent required under the OLLC Agreement) and
non-assessable (except as such non-assessability may be affected by
Sections 18-607 and 18-804 of the Delaware LLC Act); and the
Partnership owns such limited liability company interest free and
clear of all Liens.
(r) The
Partnership is the sole stockholder of Williams Finance and owns
100% of the issued and outstanding shares of capital stock of
Williams Finance; such shares of capital stock have been duly
authorized and validly issued and are fully paid and
non-assessable; and the Partnership owns such shares of capital
stock free and clear of all Liens.
(s) On the
Closing Date, after giving effect to the Transactions, OLLC will
own a 100% limited liability company interest in Four Corners LLC;
such limited liability company interest will be duly authorized and
validly issued in accordance with the Four Corners LLC Agreement
and is fully paid (to the extent required under the Four Corners
LLC Agreement) and non-assessable (except as such non-assessibility
may be affected by Sections 18-607 and 18-804 of the Delaware
LLC Act) subject to the capital contribution provisions of the Four
Corners LLC Agreement; and OLLC will own such limited liability
company interest free and clear of all Liens.
(t) OLLC owns
a 100% limited liability company interest in each of MCFS and CTP;
such limited liability company interests have been duly authorized
and validly issued in
7
accordance with
the respective limited liability company agreements of each of MCFS
and CTP (as the same may be amended or restated on or prior to the
Closing Date, the “ Wholly Owned Subsidiary LLC
Agreements ”), and have been fully paid (to the extent
required under the Wholly Owned Subsidiary LLC Agreements) and
non-assessable (except as such non-assessability may be affected by
Sections 18-607 and 18-804 of the Delaware LLC Act); and OLLC
owns such limited liability company interests free and clear of all
Liens.
(u) OLLC owns
a 40% limited liability company interest in DPS; such limited
liability company interest has been duly authorized and validly
issued in accordance with the limited liability company agreement
of DPS (as such may be amended and restated on or prior to the
Closing Date, the “ DPS LLC Agreement ”) and is
fully paid (to the extent required under the DPS LLC Agreement) and
non-assessable (except as such non-assessability may be affected by
Sections 18-607 and 18-804 of the Delaware LLC Act) subject to
the capital contribution provisions of the DPS LLC Agreement; and
OLLC owns such limited liability company interest free and clear of
all Liens. DPS is the sole member of DGT with a 100% limited
liability company interest in DGT; such limited liability company
interest has been duly authorized and validly issued in accordance
with the limited liability company agreement of DGT (as the same
may be amended or restated on or prior to the Closing Date (the
“ DGT LLC Agreement ,” and together with the DPS
LLC Agreement, the Four Corners LLC Agreement and the Wholly Owned
Subsidiary LLC Agreements, the “ Subsidiary LLC
Agreements ”) and is fully paid to the extent required
under the DGT LLC Agreement) and non-assessable (except as such
non-assessability may be affected by Sections 18-607 and
18-804 of the Delaware LLC Act) subject to the capital contribution
provisions of the DGT LLC Agreement; and DPS owns such limited
liability company interest free and clear of all Liens.
(v) Other
than (i) the General Partner’s ownership of an
approximate 2.0% general partner interest in the Partnership, its
ownership of the Incentive Distribution Rights and, if issued
pursuant to the Four Corners Purchase and Sale Agreement,
Class B Units, (ii) the Partnership’s ownership of
a 100% limited liability company interest in OLLC and 100% of the
issued and outstanding shares of capital stock of Williams Finance,
(iii) OLLC’s ownership of a 100% limited liability
company interest in each of MCFS and CTP, (iv) OLLC’s
ownership of a 40% limited liability company interest in DPS,
(v) DPS’ 100% limited liability company interest in DGT,
and (vi) OLLC’s ownership of a 100% limited liability
company interest in Four Corners LLC, on the Closing Date, after
giving effect to the Transactions, none of the Partnership Entities
will own, directly or indirectly, any equity or long-term debt
securities of any corporation, partnership, limited liability
company, joint venture, association or other entity.
(w) WES owns
a 100% limited liability company interest in the General Partner;
such limited liability company interest has been duly authorized
and validly issued in accordance with the Amended and Restated
Limited Liability Agreement of the General Partner (as the same may
be amended or restated on or prior to the Closing Date, the “
GP LLC Agreement ”), and is fully paid (to the extent
required under the GP LLC Agreement) and non-assessable (except as
such non-assessability may be affected by Sections 18-607 and
18-804 of the Delaware LLC Act); and WES owns such limited
liability company interest free and clear of all Liens.
(x) Williams
directly or indirectly owns a 100% limited liability company
interest in each of WES, WFS Group and WFS Company; such limited
liability company interests have
8
been duly
authorized and validly issued in accordance with the respective
limited liability company agreements of WES, WFS Group and WFS
Company (as the same may be amended or restated on or prior to the
Closing Date, the “ Williams Subsidiary LLC Agreements
”) and are fully paid (to the extent required under the
Williams Subsidiary LLC Agreements) and non-assessable (except as
such non-assessability may be affected by Sections 18-607 and
18-804 of the Delaware LLC Act); and Williams owns such limited
liability company interests free and clear of all Liens.
(y) WE owns a
20% limited liability company interest in DPS; such limited
liability company interest has been duly authorized and validly
issued in accordance with the DPS LLC Agreement and is fully paid
(to the extent required under the DPS LLC Agreement) and
non-assessable (except as such non-assessability may be affected by
Sections 18-607 and 18-804 of the Delaware LLC Act) subject to
the capital contribution provisions of the DPS LLC Agreement; and
WE owns such limited liability company interest free and clear of
all Liens.
(z) Except as
described in the Disclosure Package and the Final Memorandum or as
provided in the credit agreement, dated May 1, 2006, among the
Partnership, certain subsidiaries of Williams and the lenders named
therein (the “ Credit Agreement ”), the amended
and restated loan agreement, dated August 7, 2006, between the
Partnership and Williams (the “ Revolving Credit
Agreement ”), the Private Unit Purchase Agreement, the
Private Equity Registration Rights Agreement or the Organizational
Documents (as defined below), there are no preemptive rights or
other rights to subscribe for or to purchase, nor any restriction
upon the voting or transfer of, (i) any limited partner
interests in the Partnership, (ii) any shares of capital stock
of Williams Finance or (iii) any limited liability company
interests in the General Partner, OLLC or, except as provided in
the DPS LLC Agreement, the DGT LLC Agreement and the Four Corners
LLC Agreement, any of the Subsidiaries, in each case pursuant to
the Partnership Agreement, the Williams Finance Bylaws, the OLLC
Agreement, the GP LLC Agreement or the Subsidiary LLC Agreements,
each as amended or restated on or prior to the Closing Date
(collectively, the “ Organizational Documents
”), or any other agreement or instrument to which any of such
entities is a party or by which any one of them may be bound.
Except as described in the Disclosure Package and Final Memorandum
or for restricted units granted under the General Partner’s
Long-Term Incentive Plan (the “ LTIP ”), there
are no outstanding options or warrants to purchase (A) any
Common Units or Subordinated Units or other interests in the
Partnership or (B) any interests in the General Partner, OLLC
or the Subsidiaries.
(aa) None of
the Partnership Entities has sold or issued any securities that
would be integrated with the offering of the Securities
contemplated by this Agreement pursuant to the Act or the
interpretations thereof by the Commission.
(bb) The
Partnership has all requisite power and authority to issue, sell
and deliver the Securities, in accordance with and upon the terms
and conditions set forth in this Agreement, the Partnership
Agreement, the Disclosure Package and the Final Memorandum. On the
Closing Date, all corporate, partnership and limited liability
company action, as the case may be, required to be taken by the
Williams Entities or any of their stockholders, members or partners
for the authorization, issuance, sale and delivery of the
Securities and the consummation of the transactions (including the
Transactions) contemplated by this Agreement, shall have been
validly taken.
9
(cc) This
Agreement has been duly and validly authorized, executed and
delivered by or on behalf of each of the Williams
Parties.
(dd) The
execution and delivery of, and the performance by the Issuers of
their respective obligations under, the Indenture has been duly
authorized by each of the Issuers and the Indenture, assuming due
authorization, execution and delivery thereof by the Trustee, when
executed and delivered by the Issuers, will constitute a valid and
binding obligation of the Issuers, enforceable against each of them
in accordance with its terms; provided that the
enforceability thereof may be limited by bankruptcy,
reorganization, insolvency, fraudulent transfer or conveyance,
moratorium or similar laws relating to or affecting the enforcement
of creditors’ rights generally from time to time in effect
and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law)
and except that the indemnity, contribution and exoneration
provisions contained therein may be limited by applicable laws and
public policy (the “ Enforceability Exceptions
”). The Securities have been duly authorized, and, when
executed by the Issuers and authenticated by the Trustee in the
manner provided in the Indenture and delivered to and paid for by
the Initial Purchasers in accordance with this Agreement, will
constitute valid and binding obligations of the Issuers, entitled
to the benefits of the Indenture and enforceable against each of
them in accordance with its terms; provided that the
enforceability of the Securities may be limited by the
Enforceability Exceptions. The Registration Rights Agreement has
been duly authorized by the Issuers and, assuming the due
authorization, execution and delivery thereof by the Initial
Purchasers, when executed and delivered by the Issuers, will
constitute a valid and binding obligation of the Issuers,
enforceable against each of them in accordance with its terms;
provided that the enforceability of the Registration Rights
Agreement may be limited by the Enforceability Exceptions; and
provided further that no representation is made with respect
to Section 8 thereof.
(ee) (i) The
Partnership Agreement has been duly authorized, executed and
delivered by the General Partner and is a valid and legally binding
agreement of the General Partner, enforceable against the General
Partner in accordance with its terms;
(ii) The OLLC
Agreement has been duly authorized, executed and delivered by or on
behalf of the Partnership and is a valid and legally binding
agreement of the Partnership, enforceable against the Partnership
in accordance with its terms;
(iii) The GP LLC
Agreement has been duly authorized, executed and delivered by WES,
and is a valid and legally binding agreement of WES, enforceable
against WES in accordance with its terms;
(iv) Each of the
MCFS LLC Agreement and the CTP LLC Agreement has been duly
authorized, executed and delivered by or on behalf of OLLC, and
each is a valid and legally binding agreement of OLLC, enforceable
against OLLC in accordance with its terms;
(v) The DPS LLC
Agreement has been duly authorized, executed and delivered by or on
behalf of each of OLLC and WE and, assuming due authorization,
execution and delivery by Duke Energy Field Services, LP, is a
valid and legally
10
binding
agreement of OLLC and WE, enforceable against each of them in
accordance with its terms;
(vi) The Four
Corners Purchase and Sale Agreement has been duly authorized,
executed and delivered by or on behalf of each of WES, WFS Group,
WFS Company, the General Partner, the Partnership and OLLC and is a
valid and legally binding agreement of each of them, enforceable
against each of them in accordance with its terms; and
(vii) The Private
Unit Purchase Agreement has been duly authorized, executed and
delivered by or on behalf of the Partnership and is a valid and
legally binding agreement of the Partnership, enforceable against
the Partnership in accordance with its terms;
provided
that , with respect to
each agreement described in this Section 1(ee) , the
enforceability thereof may be limited by the Enforceability
Exceptions.
(ff) On or
before the Closing Date:
(i) The
Contribution Agreement will have been duly authorized, executed and
delivered by or on behalf of each of WES, WFS Group, WFS Company,
the General Partner, the Partnership and OLLC and will be a valid
and legally binding agreement of each of them, enforceable against
each of them in accordance with its terms; and
(ii) The
Underwriting Agreement will have been duly authorized, executed and
delivered by or on behalf of each of the Partnership, the General
Partner and OLLC;
provided
that , with respect to
each agreement described in this Section 1(ff) , the
enforceability thereof may be limited by the Enforceability
Exceptions. The Four Corners Purchase and Sale Agreement and the
Contribution Agreement are herein collectively referred to as the
“ Operative Agreements .”
(gg) Except
for (i) such consents (as defined below) as may be required
under the blue sky laws of any jurisdiction in which the Securities
are offered and sold, (ii) in the case of the Registration
Rights Agreement, such as will be obtained under the Registration
Rights Agreement, the Act, the Exchange Act and the Trust Indenture
Act, (iii) such consents (as defined below) that have been, or
prior to the Closing Date will be, obtained, (iv) such
consents in connection with the transactions contemplated by the
Operative Agreements that, if not obtained, would not, individually
or in the aggregate, have a Material Adverse Effect or
(v) such consents in connection with the transactions
contemplated by the Operative Agreements that are (A) of a
routine or administrative nature, (B) are not customarily
obtained or made prior to the consummation of the transactions
contemplated by the Operative Agreements and (C) are expected
in the reasonable judgment of the General Partner to be obtained in
the ordinary course of business subsequent to the consummation of
the transactions contemplated by the Operative Agreements, no
consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having
jurisdiction over any of the Williams Parties or
11
any of their
properties or assets (“ consent ”) is required
for the execution, delivery and performance of this Agreement by
the Williams Parties and the consummation of the transactions
contemplated hereby (including the Transactions) in the manner
contemplated herein and in the Disclosure Package and the Final
Memorandum and the application of the proceeds from the sale of the
Securities as described under “ Use of Proceeds
” in the Preliminary Memorandum and the Final
Memorandum.
(hh) None of
the execution and delivery by the Williams Entities of the
Indenture, this Agreement, the Registration Rights Agreements or
the Operative Agreements to which any of the Williams Entities is a
party, the issuance and sale by the Issuers of the Securities
pursuant to this Agreement, or the consummation of the transactions
contemplated hereby or thereby (including the Transactions)
(i) conflicts or will conflict with or constitutes or will
constitute a violation of the agreement of limited partnership,
limited liability company agreement, certificate or articles of
incorporation or bylaws or other organizational documents of any of
the Williams Entities, (ii) conflicts or will conflict with or
constitutes or will constitute a breach or violation of, or a
default under (or an event which, with notice or lapse of time or
both, would constitute such an event), any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or
instrument to which any of the Williams Entities is a party or by
which any of them or any of their respective properties may be
bound or (iii) violates or will violate any statute, law or
regulation or any order, judgment, decree or injunction of any
court or governmental agency or body directed to any of the
Williams Entities or any of their properties in a proceeding to
which any of them or their property is a party, which conflicts,
breaches, violations or defaults, in the case of clauses
(ii) or (iii) , would, individually or in the aggregate,
have a Material Adverse Effect.
(ii) The
historical financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the
Disclosure Package and the Final Memorandum comply as to form in
all material respects with the requirements of Regulation S-X
under the Act and present fairly in all material respects the
financial position, results of operations and cash flows of the
entities purported to be shown thereby on the basis stated therein
at the respective dates or for the respective periods to which they
apply and have been prepared in accordance with accounting
principles generally accepted in the United States consistently
applied throughout the periods involved, except to the extent
disclosed therein. The summary historical and pro forma financial
and operating information set forth or incorporated by reference in
the Preliminary Memorandum and the Final Memorandum under the
caption “ Summary—Summary Historical and Pro Forma
Financial and Operating Data ” is accurately presented in
all material respects and prepared on a basis consistent with the
audited and unaudited historical consolidated financial statements
and pro forma financial statements, as applicable, from which it
has been derived.
(jj) The pro
forma financial statements included or incorporated by reference in
the Disclosure Package and the Final Memorandum comply as to form
in all material respects with the applicable requirements of
Regulation S-X under the Act; such pro forma financial
statements have been properly compiled on the bases described
therein; the assumptions used in the preparation of such pro forma
financial statements are, in the opinion of management of the
General Partner, reasonable; and the pro forma adjustments used in
such pro forma financial statements are appropriate to give effect
to the transactions and circumstances referred to
therein.
12
(kk) Except
as described in the Disclosure Package and the Final Memorandum,
there are no legal or governmental proceedings pending to which any
of the Williams Parties is a party or of which any of their
property or assets is the subject that could reasonably be expected
to have a Material Adverse Effect or could reasonably be expected
to have a material adverse effect on the performance of this
Agreement, the Indenture or the Registration Rights Agreements or
the consummation of the transactions contemplated hereby or
thereby; and to the knowledge of the Williams Parties, no such
proceedings are threatened by governmental authorities or by
others.
(ll) On the
Closing Date, after giving effect to the Transactions, each of the
Partnership Entities will have good and indefeasible title to all
real property and good title to all personal property, contemplated
as owned or to be owned by any of them in the Operative Agreements
or the Preliminary Memorandum and the Final Memorandum, in each
case free and clear of all liens, claims, security interests,
encumbrances and other defects, except (i) such as are
described in the Preliminary Memorandum and the Final Memorandum or
(ii) such as do not materially interfere with the use made in
the past and proposed to be made in the future of such property as
described in the Preliminary Memorandum and the Final Memorandum;
provided, that , with respect to title to pipeline
rights-of-way, the Williams Parties represent that (A) no
Williams Entity has received any actual notice or claim from any
owner of land upon which any pipeline that will be owned by any
Subsidiary as of the Closing Date as described in the Preliminary
Memorandum and the Final Memorandum is located that such Williams
Entity does not have sufficient title to enable it to use and
occupy the pipeline rights-of-way as they have been used and
occupied in the past and are proposed to be used and occupied in
the future as described in the Preliminary Memorandum and the Final
Memorandum and (B) any lack of title to the pipeline
rights-of-way that will have a material adverse effect on the
ability of any Subsidiary to use and occupy the pipeline
rights-of-way as they have been used and occupied in the past and
are proposed to be used and occupied in the future as described in
the Preliminary Memorandum and the Final Memorandum will be subject
to the indemnification provisions of Section 2.3(a)(i) of the
Omnibus Agreement, dated August 23, 2005, among WES, WE,
Williams Pipeline, Holdings, the General Partner, the Partnership,
OLLC and (for purposes of Articles V and VI thereof only) Williams.
All assets held under lease or license by the Partnership Entities
are held under valid, subsisting and enforceable leases or
licenses, with such exceptions as are not material and do not
materially interfere with the use made in the past and proposed to
be made in the future of such assets by the Partnership Entities
taken as a whole as described in the Preliminary Memorandum and the
Final Memorandum.
(mm) None of
the Williams Parties (i) is in violation of its certificate or
agreement of limited partnership, certificate of formation or
limited liability company agreement, certificate or articles of
incorporation or bylaws or other organizational documents;
(ii) is in breach or default in any material respect, and no
event has occurred which, with notice or lapse of time or both,
would constitute such a breach or default, in the due performance
or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject or
(iii) is in violation of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over its property or assets, except in the case of
clauses (ii) and (iii) as could not reasonably be
expected to have a Material Adverse Effect, or as could not
materially impair the ability of any of the Williams Parties
to
13
perform their
obligations under this Agreement, the Indenture or the Registration
Rights Agreement.
(nn) Ernst
& Young LLP, who has certified certain financial statements of
the Partnership, the General Partner, Four Corners LLC and DPS and
whose reports appear or are incorporated by reference in the
Preliminary Memorandum and the Final Memorandum, were an
independent registered public accounting firm with respect to the
Partnership and the General Partner during those periods covered by
the financial statements on which they reported contained in or are
incorporated by reference in the Disclosure Package and the Final
Memorandum for which they were required by the Act to be an
independent registered public accounting firm.
(oo) Each of
the Williams Parties has filed all applicable tax returns required
to be filed through the date hereof, subject to permitted
extensions, and has timely paid all taxes shown to be due thereon,
other than those (i) which, if not filed or paid, would not
have a Material Adverse Effect, or (ii) which are being
contested in good faith and for which adequate reserves have been
established in accordance with generally accepted accounting
principles.
(pp) Except
as described in the Disclosure Package and the Final Memorandum
(exclusive of any amendment or supplement thereto), no labor
disturbance by the employees of any of the Partnership Entities
(and to the extent they perform services on behalf of any of the
Partnership Entities, employees employed directly or indirectly by
any of the Williams Entities other than the Partnership Entities),
exists or, to the knowledge of the Williams Parties, is imminent or
threatened, which might be expected to have a Material Adverse
Effect.
(qq) Each of
the Partnership Entities carry, or are covered by, insurance from
insurers of recognized financial responsibility in such amounts and
covering such risks related to property damage and liability to
third parties as is reasonably adequate for the conduct of their
respective businesses and the value of their respective properties
and as is customary for companies engaged in similar businesses in
similar industries. All policies of insurance of each of the
Partnership Entities are in full force and effect on the date
hereof; each of the Partnership Entities are in compliance with the
terms of such policies in all material respects as of the date
hereof; and none of the Partnership Entities has received notice
from any insurer or agent of such insurer that substantial capital
improvements or other expenditures will have to be made in order to
continue such insurance.
(rr) Neither
OLLC nor any Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends or distributions to the
Partnership, from making any other distribution on such
Subsidiary’s equity interests, from repaying to the
Partnership any loans or advances to such Subsidiary from the
Partnership or from transferring any of such Subsidiary’s
property or assets to the Partnership or any other subsidiary of
the Partnership, except as described in or contemplated in the
Disclosure Package and the Final Memorandum (exclusive of any
amendment or supplement thereto) or as set forth in the Subsidiary
LLC Agreements and the OLLC LLC Agreement.
(ss) Each of
the Williams Parties has, or at the Closing Date will have, such
permits, consents, licenses, franchises, certificates and
authorizations of governmental or regulatory
14
authorities
(“ permits ”) as are necessary to own or lease
its properties and to conduct its business in the manner described
in the Disclosure Package and the Final Memorandum (exclusive of
any amendment or supplement thereto), subject to such
qualifications as may be set forth in the Disclosure Package and
the Final Memorandum (exclusive of any amendment or supplement
thereto) and (i) except for such permits that, if not
obtained, could not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect or (ii) such
permits that have been, or prior to the Closing Date will be,
obtained; except as described in the Disclosure Package and the
Final Memorandum (exclusive of any amendment or supplement
thereto), each of the Williams Parties has, or at the Closing Date
will have, fulfilled and performed all its material obligations
with respect to such permits that are or will be due to have been
fulfilled and performed by such date; and no event has occurred
that would prevent the permits from being renewed or reissued or
that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results or would result in any
impairment of the rights of the holder of any such permit, except
for such non-renewals, non-issues, revocations, terminations and
impairments that could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse
Effect.
(tt) Each of
the Partnership Entities (i) makes and keeps books and records
which, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of assets and (ii) maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in
accordance with management’s general or specific
authorizations, (B) transactions are recorded as necessary to
permit preparation of the Partnership’s financial statements
in conformity with accounting principles generally accepted in the
United States and to maintain accountability for its assets,
(C) access to the Partnership’s assets is permitted only
in accordance with management’s general or specific
authorization and (D) the recorded accountability for the
Partnership’s assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(uu) (i) The
Partnership has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), (ii) such disclosure controls and procedures
are designed to ensure that the information required to be
disclosed by the Partnership and its subsidiaries in the reports
they file or submit under the Exchange Act is accumulated and
communicated to management of the Partnership and its subsidiaries,
including their respective principal executive officers and
principal financial officers, as appropriate, to allow timely
decisions regarding required disclosure to be made and
(iii) such disclosure controls and procedures are effective in
all material respects to perform the functions for which they were
established.
(vv) Since
the date of the most recent balance sheet of the Partnership and
its consolidated subsidiaries audited by Ernst & Young LLP,
(i) the certifying officers of the General Partner have not
disclosed to the Partnership’s auditors and the audit
committee of the General Partner’s board of directors
(A) any significant deficiencies or material weaknesses in the
design or operation of internal control over financial reporting
which are reasonable likely to adversely affect the
Partnership’s ability to record, process, summarize and
report financial information, or (B) any fraud, whether or not
material, that involves management or other employees who have a
significant role in the Partnership’s internal control over
financial reporting, and (ii) since that date, there have been
no changes in the Partnership’s internal control
15
over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Partnership’s internal control over
financial reporting.
(ww) Except
as described in the Disclosure Package and the Final Memorandum
(exclusive of any amendment or supplement thereto), the Williams
Parties and Four Corners LLC (i) are in compliance with any
and all applicable federal, state and local laws and regulations
relating to the protection of health and human safety, the
environment or natural resources or imposing liability or standards
of conduct concerning any Hazardous Materials (as defined below)
(“ Environmental Laws ”), (ii) have
received and, as necessary, maintained all permits required of them
under applicable Environmental Laws to conduct their respective
businesses, (iii) are in compliance with all terms and
conditions of any such permits and (iv) do not have any
liability in connection with the release into the environment of
any Hazardous Material, except where such noncompliance with
Environmental Laws, failure to receive and maintain required
permits, failure to comply with the terms and conditions of such
permits or liability in connection with such releases could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. The term “ Hazardous
Materials ” means (A) any “ hazardous
substance ” as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
(“ CERCLA ”), (B) any “ hazardous
waste ” as defined in the Resource Conservation and
Recovery Act, as amended, (C) any petroleum or petroleum
product, (D) any polychlorinated biphenyl and (E) any
pollutant or contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance regulated under or within the meaning
of any other Environmental Law. None of the Williams Parties or
Four Corners LLC has been named as a “ potentially
responsible party ” under CERCLA or any other similar
Environmental Law, except with respect to any matters that,
individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect. Except as described in the
Disclosure Package and the Final Memorandum (exclusive of any
amendment or supplement thereto), (A) none of the Williams Parties
is a party to any proceeding under Environmental Laws in which a
governmental authority is also a party, other than such proceedings
in which it is reasonably believed that no monetary penalties of
$100,000 or more will be imposed, and (B) none of the Williams
Parties anticipates material capital expenditures relating to
Environmental Laws.
(xx) As of
the Closing Date, and after giving effect to the Transactions, each
Partnership Entity will be in compliance in all material respects
with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder (“ ERISA
”); no “ reportable event ” (as defined in
ERISA) has occurred with respect to any “ pension plan
” (as defined in ERISA) for which any Partnership Entity
(after giving effect to the Transactions) would have any liability,
excluding any reportable event for which a waiver could apply; no
Partnership Entity (after giving effect to the Transactions)
expects to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any “
pension plan ” or (ii) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the “
Code ”); and each “ pension plan ”
for which any Partnership Entity would have any liability that is
intended to be qualified under Section 401(a) of the Code has been
determined by the Internal Revenue Service to be so qualified and
nothing has occurred, whether by action or by failure to act, which
could reasonably be expected to cause the loss of such
qualification.
16
(yy) On the
Closing Date and after giving effect to the Transactions, the
subsidiaries listed on Annex A attached hereto are the only
“ significant subsidiaries ” of the Partnership
(as defined in Rule 405 under the Act).
(zz) None of
the Williams Parties, nor any director, officer, employee, or to
the knowledge of the Williams Parties, any agent or other person
associated with or acting on behalf of any of the Williams Parties,
has used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(aaa) The
Partnership is in compliance in all material respects with the
applicable requirements of the Sarbanes-Oxley Act of
2002.
Each certificate
signed by or on behalf of any of the Williams Parties and delivered
to the Representatives or counsel for the Initial Purchasers in
connection with the offering of the Securities shall be deemed to
be a representation and warranty by each such Williams Party to the
Initial Purchasers as to matters covered thereby.
The
Williams Parties (i) acknowledge that the Initial Purchasers
and, for purposes of the opinions to be delivered to each Initial
Purchaser pursuant hereto, counsel to the Issuers and counsel to
the Initial Purchasers will rely upon the accuracy and truth of the
foregoing representations and (ii) hereby consent to such
reliance.
2.
Purchase and Sale . Subject to the terms and conditions and
in reliance upon the representations and warranties herein set
forth, each of the Partnership and Williams Finance, jointly and
severally, agrees to sell to each Initial Purchaser, and each
Initial Purchaser agrees, severally and not jointly, to purchase
from the Partnership and Williams Finance, at a purchase price of
98.5% of the principal amount thereof, plus accrued interest, if
any, from December 13, 2006 to the Closing Date, the principal
amount of Securities set forth opposite such Initial
Purchaser’s name in Schedule I hereto.
3.
Delivery and Payment . Delivery of and payment for the
Securities shall be made at 9:00 A.M., Houston, Texas time, on
December 13, 2006, or at such time on such later date not more
than five Business D
|
