Representing Limited Partner
Interests
LEHMAN BROTHERS
INC.
CITIGROUP GLOBAL MARKETS INC.
As the Representatives of the several
Underwriters named in Schedule 1
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
c/o Citigroup
Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Williams Partners
L.P., a Delaware limited partnership (the “
Partnership ”), proposes to issue and sell to the
several Underwriters named in Schedule 1 hereto (the
“ Underwriters ”) 7,000,000 common units (the
“ Firm Units ”) representing limited partner
interests in the Partnership (the “ Common Units
”). Lehman Brothers Inc. and Citigroup Global Markets Inc.
shall act as representatives (the “ Representatives
”) of the several Underwriters.
In addition, the
Partnership proposes to grant to the Underwriters an option to
purchase up to an additional 1,050,000 Common Units on the terms
and for the purposes set forth in Section 2 (the “
Option Units ”). The Firm Units and the Option Units,
if purchased, are hereinafter collectively called the “
Units .” Capitalized terms used but not defined herein
shall have the same meanings given them in the Partnership
Agreement or the Prospectus (each as defined herein).
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 ”). 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;
(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) On the
date hereof, the General Partner, the Partnership, OLLC, Williams
Partners Finance Corporation, a Delaware corporation (“
Williams Finance”) , and the Initial Purchasers (as
defined in the Notes Purchase Agreement) have entered into a
purchase agreement (the “ Notes Purchase Agreement
”) relating to the offer and sale by the Partnership and
Williams Finance of $600 principal amount of 7.25% Senior Notes due
2017 (the “ Ten-Year Notes ”) in a private
placement pursuant to Rule 144A and Regulation S under
the Act, with such Ten-Year Notes to be issued under an indenture,
to be dated as of the First Delivery Date (the “
Indenture ”), with The Bank of New York, as trustee
(the “ Debt Private Placement ”).
On the First
Delivery Date, the following transactions will occur, unless
otherwise noted:
(a) Pursuant
to this Agreement, the Underwriters will pay cash to the
Partnership in exchange for the Firm Units;
(b) Pursuant
to the Notes Purchase Agreement, the Initial Purchasers will pay
cash to the Issuers (as defined in the Notes Purchase Agreement) in
exchange for the Ten-Year Notes;
(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 Privately Placed Units;
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(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 Firm
Units, the Debt Private Placement 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 Partnership and Williams
Finance;
(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 offering of the Firm Units pursuant to this Agreement 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;
(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
Partnership and Williams Finance will enter into the Indenture with
the Trustee;
(g) The
Partnership and Williams Finance will enter into the Registration
Rights Agreement with the Initial Purchasers; and
(h) The
Partnership 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 and OLLC
are sometimes referred to herein collectively as the “
Williams Parties .” The Williams
3
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 “ Agreement ”) concerning
the purchase of the Firm Units and the Option Units, if any, from
the Partnership by the Underwriters.
Section 1. Representations, Warranties and Agreements of
the Williams Parties . The Williams Parties jointly and
severally represent, warrant and agree that:
(a) A registration
statement on Form S-3 (File No. 333-137562) with respect to
the Units has (i) been prepared by the Partnership in
conformity with the requirements of the Securities Act of 1933, as
amended (the “ Securities Act ”), and the rules
and regulations (the “ Rules and Regulations ”)
of the Securities and Exchange Commission (the “
Commission ”) thereunder, (ii) been filed with
the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such registration
statement have been delivered by the Partnership to the
Representatives. As used in this Agreement,
(i) “
Applicable Time ” means 8:30 a.m. (New York City time)
on December 7, 2006, which the Underwriters have informed the
Partnership and its counsel is a time prior to the time of the
first sale of the Units;
(ii) “
Effective Date ” means any date as of which any part
of the Registration Statement became, or is deemed to have become,
effective under the Securities Act in accordance with the Rules and
Regulations;
(iii) “
Issuer Free Writing Prospectus ” means each
“free writing prospectus” (as defined in Rule 405
of the Rules and Regulations) prepared by or on behalf of the
Partnership or used or referred to by the Partnership in connection
with the offering of the Units;
(iv) “
Preliminary Prospectus ” means any preliminary
prospectus included in such registration statement or filed with
the Commission by the Partnership pursuant to Rule 424(b) of the
Rules and Regulations, including any preliminary prospectus
supplement thereto relating to the Units;
(v) “
Pricing Disclosure Package ” means, as of the
Applicable Time, the most recent Preliminary Prospectus, together
with (i) the number of Common Units and the public offering
price per Common Unit and disclosures directly relating thereto set
forth on the cover page of the Prospectus, (ii) the
information included on Exhibit D hereto and
(iii) each Issuer Free Writing Prospectus filed or used by the
Partnership on or before the Applicable Time, other than a road
show that is an Issuer Free Writing Prospectus under Rule 433
of the Rules and Regulations;
(vi) “
Prospectus ” means the final prospectus supplement
relating to the Units as filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations; and
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(vii) “
Registration Statement ” means, collectively, the
registration statement on Form S-3 (File No. 333-137562), as
amended as of the Effective Date, including any Preliminary
Prospectus or the Prospectus and all exhibits to such registration
statement.
Any reference
to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents incorporated by reference
therein pursuant to Form S-3 under the Securities Act as of the
date of such Preliminary Prospectus or the Prospectus, as the case
may be. Any reference to the “ most recent Preliminary
Prospectus ” shall be deemed to refer to the latest
Preliminary Prospectus included in the Registration Statement or
filed pursuant to Rule 424(b) of the Rules and Regulations prior to
or on the date hereof (including, for purposes hereof, any
documents incorporated by reference therein prior to or on the date
hereof). Any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any document filed under the Securities Exchange Act
of 1934, as amended (the “ Exchange Act ”),
after the date of such Preliminary Prospectus or the Prospectus, as
the case may be, and incorporated by reference in such Preliminary
Prospectus or the Prospectus pursuant to Item 12 of Form S-3
under the Securities Act, as of the date of such Preliminary
Prospectus or the Prospectus, as the case may be; and any reference
to any amendment to the Registration Statement shall be deemed to
include any annual report of the Partnership on Form 10-K filed
with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Date that is incorporated by
reference in the Registration Statement. The Commission has not
issued any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending the
effectiveness of the Registration Statement, and no proceeding or
examination for such purpose has been instituted or threatened by
the Commission.
(b) The
Partnership was not at the time of initial filing of the
Registration Statement and at the earliest time thereafter that the
Partnership or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) of the Rules and
Regulations) of the Units, is not on the date hereof and will not
be on the applicable Delivery Date (as defined in
Section 4 ) an “ineligible issuer” (as
defined in Rule 405). The Partnership has been since the time
of initial filing of the Registration Statement and on the date
hereof is eligible to use Form S-3 for the offering of the
Units.
(c) The
Registration Statement conformed and will conform in all material
respects on the Effective Date and on the applicable Delivery Date,
and any amendment to the Registration Statement filed after the
date hereof will conform in all material respects when filed, to
the requirements of the Securities Act and the Rules and
Regulations. The most recent Preliminary Prospectus conformed, and
the Prospectus will conform, in all material respects when filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations and on the applicable Delivery Date to the requirements
of the Securities Act and the Rules and Regulations. The documents
incorporated by reference in any Preliminary Prospectus or the
Prospectus conformed, and any further documents incorporated by
reference therein will conform, when filed with the Commission, in
all material respects to the requirements of the Exchange Act or
the Securities Act, as applicable, and the rules and regulations of
the Commission thereunder.
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(d) The
Registration Statement did not, as of the Effective Date, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Registration Statement in reliance upon and in
conformity with written information furnished to the Partnership
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 8(e) .
(e) The Prospectus
will not, as of its date and on the applicable Delivery Date,
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is
made as to information contained in or omitted from the Prospectus
in reliance upon and in conformity with written information
furnished to the Partnership through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(e) .
(f) The documents
incorporated by reference in any Preliminary Prospectus or the
Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
Commission, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not
misleading.
(g) The Pricing
Disclosure Package did not, as of the Applicable Time, contain an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that no representation or warranty is
made as to information contained in or omitted from the Pricing
Disclosure Package in reliance upon and in conformity with written
information furnished to the Partnership through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 8(e) .
(h) Each Issuer
Free Writing Prospectus (including, without limitation, any road
show that is a free writing prospectus under Rule 433 of the
Rules and Regulations), if any, when considered together with the
Pricing Disclosure Package as of the Applicable Time, did not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(i) Each Issuer
Free Writing Prospectus, if any, conformed or will conform in all
material respects to the requirements of the Securities Act and the
Rules and Regulations on the date of first use, and the Partnership
has complied with any filing requirements applicable to such Issuer
Free Writing Prospectus pursuant to the Rules and Regulations. The
Partnership has not made any offer relating to the Units that
would
6
constitute an
Issuer Free Writing Prospectus without the prior written consent of
the Representatives. The Partnership has retained in accordance
with the Rules and Regulations all Issuer Free Writing Prospectuses
that were not required to be filed pursuant to the Rules and
Regulations.
(j) 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 each Delivery Date will be, duly
registered or qualified to do business as a foreign limited
partnership in each jurisdiction listed opposite its name in
Annex I , 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, taken as a whole (a “ Material Adverse
Effect ”), or (ii) subject the limited partners of
the Partnership to any material liability or disability.
(k) 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 each Delivery
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 I , 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.
(l) On the First
Delivery 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 ”).
(m) As of the
respective dates of the most recent Preliminary Prospectus and the
Prospectus, other than the Units to be offered by the Partnership
under this Agreement, 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
7
(“
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 most recent
Preliminary Prospectus and the Prospectus).
(n) The Firm Units
and the Option Units, if any, to be issued and sold by the
Partnership to the Underwriters under this Agreement have been duly
authorized and, when issued and delivered against payment therefor
in accordance with this Agreement, will be validly issued, 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);
the Firm Units and the Option Units, if any, when issued and
delivered against payment therefor in accordance with this
Agreement, will conform in all material respects to the
descriptions thereof contained in the most recent Preliminary
Prospectus and the Prospectus; and other than the Sponsor Units,
the Incentive Distribution Rights and the Existing Public Units,
the Firm Units and the Option Units, if any, will be the only
limited partner interests of the Partnership issued and outstanding
at each Delivery Date other than (i) the Privately Placed
Units (including Common Units issued upon conversion of the
Class B Units issued in the Equity Private Placement),
(ii) the Sponsor Class B Units (including Common Units
issued upon conversion of the Class B Units issued upon
conversion thereof) and (iii) any Common Units issued after
the date of this Agreement to participants of the General
Partner’s Long-Term Incentive Plan (the “ LTIP
”) pursuant thereto.
(o) 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
each Delivery Date, the “ OLLC Agreement ”) and
is fully paid (to the extent required under the OLLC Agreement) and
non-assessable (except as such non-
8
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.
(p) On the First
Delivery 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.
(q) 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 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 each Delivery 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.
(r) 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 each
Delivery 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 provision 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 each Delivery 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 Section 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.
(s) 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
9
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 each
Delivery 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; and none of the entities mentioned in the preceding
clauses (i) through (vi) , other than DPS, Four
Corners LLC, OLLC, MCFS and CTP is a “significant
subsidiary” of the Partnership as such term is defined in
Rule 405 of the Rules and Regulations.
(t) 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 each Delivery 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.
(u) 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 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 each Delivery 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.
(v) 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.
(w) Except as
described in the most recent Preliminary Prospectus and the
Prospectus 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
10
rights to
subscribe for or to purchase, nor any restriction upon the voting
or transfer of, (i) any limited partner interests in the
Partnership or (ii) 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 OLLC Agreement, the GP LLC Agreement or
the Subsidiary LLC Agreements, each as amended or restated on or
prior to each Delivery 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 most recent
Preliminary Prospectus and the Prospectus or for restricted units
granted under 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.
(x) None of the
Partnership Entities has sold or issued any securities that would
be integrated with the offering of the Units contemplated by this
Agreement pursuant to the Securities Act, the Rules and Regulations
or the interpretations thereof by the Commission.
(y) The
Partnership has all requisite power and authority to issue, sell
and deliver the Firm Units and the Option Units, if any, in
accordance with and upon the terms and conditions set forth in this
Agreement, the Partnership Agreement, the Registration Statement,
the most recent Preliminary Prospectus and the Prospectus. On each
Delivery 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 Firm
Units and the Option Units, if any, and the consummation of the
transactions (including the Transactions) contemplated by this
Agreement, shall have been validly taken.
(z) This Agreement
has been duly and validly authorized, executed and delivered by or
on behalf of each of the Williams Parties.
(aa) (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;
11
(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 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;
(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; and
(viii) The Notes
Purchase Agreement has been duly authorized, executed and delivered
by or on behalf of the Partnership.
provided
that , with respect to
each agreement described in this Section 1(aa) , the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer or conveyance, reorganization, moratorium and
similar laws relating to or affecting creditors’ rights
generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity
or at law), and provided, further , that the indemnity,
contribution and exoneration provisions contained in any of such
agreements may be limited by applicable laws and public policy
(collectively, the “ Enforceability Exceptions
”).
(bb) On or
before the First Delivery 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
Indenture will have been duly authorized, executed and delivered by
or on behalf of the Partnership and Williams Finance and, assuming
due authorization, execution and delivery by the trustee named
therein, will be a valid and legally binding agreement of the
Partnership and Williams Finance,
12
enforceable
against the Partnership and Williams Finance in accordance with its
terms;
provided
that , with respect to
each agreement described in this Section 1(bb) , 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 .”
(cc) None of the
offering, issuance and sale by the Partnership of the Units and the
application of the net proceeds therefrom as described under
“Use of Proceeds” in the most recent Preliminary
Prospectus, the execution, delivery and performance of this
Agreement or the Operative Agreements by the Williams Entities that
are parties thereto, 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, (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 or (iv) will result
in the creation or imposition of any Lien upon any property or
assets of any of the Williams Entities, which conflicts, breaches,
violations, defaults or Liens, in the case of clauses (ii) ,
(iii) or (iv) , would, individually or in the
aggregate, have a Material Adverse Effect.
(dd) Except for
(i) the registration of the Units under the Securities Act,
(ii) such consents, approvals, authorizations, registrations
or qualifications as may be required under the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”),
and applicable state securities laws in connection with the
purchase and sale of the Units by the Underwriters, (iii) such
consents (as defined below) that have been, or prior to each
Delivery 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 the
any of the Williams Parties or any of their properties or assets
(“ consent ”) is required for the execution,
delivery and performance of this Agreement by
13
the Williams
Parties and the consummation of the transactions contemplated
hereby (including the Transactions) and the application of the
proceeds from the sale of the Units as described under “Use
of Proceeds” in the most recent Preliminary Prospectus and
the Prospectus.
(ee) Except as
described in the most recent Preliminary Prospectus, the Prospectus
and the Partnership Agreement, there are no contracts, agreements
or understandings between any of the Williams Parties and any
person granting such person the right to require the Partnership to
file a registration statement under the Securities Act with respect
to any equity securities of the Partnership Entities owned or to be
owned by such person or to require the Partnership to include such
equity securities in the Units registered pursuant to the
Registration Statement or in any equity securities being registered
pursuant to any other registration statement filed by any of the
Partnership Entities under the Securities Act.
(ff) None of the
Partnership Entities has sustained, since the date of the latest
audited financial statements included or incorporated by reference
in the most recent Preliminary Prospectus and the Prospectus, any
loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the most recent
Preliminary Prospectus and the Prospectus; and, since such date,
except as described in the most recent Preliminary Prospectus and
the Prospectus, there has not been any change in the capitalization
or long-term debt of any of the Partnership Entities or any adverse
change, or any development involving a prospective adverse change,
in or affecting the condition (financial or otherwise), results of
operations, securityholders’ equity, properties, management,
business or prospects of any of the Partnership Entities, in each
case except as could not reasonably be expected to have a Material
Adverse Effect.
(gg) The
historical financial statements (including the related notes and
supporting schedules) included or incorporated by reference in the
most recent Preliminary Prospectus and the Prospectus comply as to
form in all material respects with the requirements of
Regulation S-X under the Securities 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 in the most recent
Preliminary Prospectus and the Prospectus 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.
14
(hh) The pro forma
financial statements included or incorporated by reference in the
most recent Preliminary Prospectus and the Prospectus comply as to
form in all material respects with the applicable requirements of
Regulation S-X under the Securities 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.
At September 30, 2006, the Partnership would have had, on the
consolidated pro forma basis indicated in the most recent
Preliminary Prospectus and the Prospectus, a capitalization as set
forth therein.
(ii) Ernst &
Young LLP, who has certified certain financial statements of the
Partnership, the General Partner, Four Corners LLC and DPS, whose
reports appear in or are incorporated by reference in the most
recent Preliminary Prospectus and the Prospectus and who have
delivered the initial letter referred to in
Section 7(g) hereof, 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 most recent Preliminary Prospectus and the
Prospectus for which they were required by the Rules and
Regulations to be an independent registered public accounting
firm.
(jj) On each
Delivery 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 most recent Preliminary Prospectus and the Prospectus, in
each case free and clear of all liens, claims, security interests,
encumbrances and other defects, except (i) such as are
described in the most recent Preliminary Prospectus and the
Prospectus 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 most recent Preliminary
Prospectus and the Prospectus; 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 First Delivery Date as described
in the most recent Preliminary Prospectus and the Prospectus 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 most recent Preliminary
Prospectus and the Prospectus 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 most recent Preliminary Prospectus and the Prospectus 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
15
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 most recent Preliminary
Prospectus and the Prospectus.
(kk) 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.
(ll) Each of the
Partnership Entities owns or possesses adequate rights to use all
material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of
their respective businesses and none of the Partnership Entities
has any reason to believe that the conduct of their respective
businesses conflict or will conflict in any material respect with,
and have not received any notice of any claim of conflict with, any
such rights of other parties.
(mm) Except as
described in the most recent Preliminary Prospectus and the
Prospectus, 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 or the consummation of the transactions contemplated
hereby or that are required to be described in the most recent
Preliminary Prospectus and the Prospectus but are not described as
required; and to the knowledge of the Williams Parties, no such
proceedings are threatened by governmental authorities or by
others.
(nn) There are no
contracts or other documents that are required to be described in
the most recent Preliminary Prospectus and the Prospectus or filed
as exhibits to the Registration Statement by the Securities Act or
by the Rules and Regulations that have not been described in the
most recent Preliminary Prospectus and the Prospectus or filed as
exhibits to the Registration Statement; and the statements set
forth in the most recent Preliminary Prospectus under the captions
“Summary—The Offering,” “How We Make Cash
Distributions,” “Description of the Common Units”
and “The Partnership Agreement,” insofar as they
purport to constitute a summary of the terms of the Common Units
and the Subordinated Units, and under the captions “Tax
Considerations,” and
16
“Material
Tax Considerations” insofar as they purport to describe the
provisions of the laws and documents referred to therein, are fair
summaries in all material respects.
(oo) Except as
described in the most recent Preliminary Prospectus and the
Prospectus, 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.
(pp) Each of the
Williams Parties has filed all federal, state and local income and
franchise 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.
(qq) Since the
date as of which information is given in the most recent
Preliminary Prospectus and the Prospectus through the date hereof,
and except as disclosed in the most recent Preliminary Prospectus
and the Prospectus, none of the Partnership Entities have (i)
issued or granted any securities (other than the Privately Placed
Units, the Sponsor Class B Units and the Ten-Year Notes),
(ii) incurred any liability or obligation, direct or
contingent, other than liabilities and obligations which were
incurred in the ordinary course of business (other than the
Ten-Year Notes) or (iii) entered into any transaction not in
the ordinary course of business.
(rr) 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.
(ss) (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
17
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.
(tt) 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 over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Partnership’s internal
control over financial reporting.
(uu) Except as
described in the most recent Preliminary Prospectus and the
Prospectus, no relationship, direct or indirect, exists between or
among the Partnership Entities, on the one hand, and the directors,
officers, securityholders, customers or suppliers of the
Partnership Entities, on the other hand, that is required to be
described in the most recent Preliminary Prospectus and the
Prospectus which is not so described. No Partnership Entity has, in
violation of the Sarbanes-Oxley Act of 2002, directly or
indirectly, extended or maintained credit, or arranged for the
extension of credit, or renewed or amended any extension of credit,
in the form of a personal loan to or for any of its directors or
executive officers.
(vv) The
Partnership is in compliance in all material respects with the
applicable requirements of the Sarbanes-Oxley Act of
2002.
(ww) 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, (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 or (iv) has failed to obtain any
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property
or to the conduct of its business, except in the case of clauses
(ii) , (iii) and (iv) as could not reasonably be
expected to have a Material Adverse Effect.
(xx) 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
18
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.
(yy) Except as
described in the most recent Preliminary Prospectus, 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 most recent Preliminary
Prospectus and the Prospectus, (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.
(zz) As of each
Delivery 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
19
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.
(aaa) Each of the
Partnership Entities has, or at each Delivery Date will have, such
permits, consents, licenses, franchises, certificates and
authorizations of governmental or regulatory authorities (“
permits ”) as are necessary to own or lease its
properties and to conduct its business in the manner described in
the most recent Preliminary Prospectus and the Prospectus, subject
to such qualifications as may be set forth in the most recent
Preliminary Prospectus and the Prospectus 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 each Delivery Date will be, obtained; except as described in the
most recent Preliminary Prospectus and the Prospectus, each of the
Partnership Entities has, or at each Delivery 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.
(bbb) None of the
Partnership Entities are or, as of each Delivery Date after giving
effect to the Transactions and the application of the net proceeds
therefrom as described under the caption “Use of
Proceeds” in the most recent Preliminary Prospectus and the
Prospectus, will be, an “investment company” as defined
in the Investment Company Act of 1940, as amended.
(ccc) None of the
Williams Parties has distributed and, prior to the later to occur
of any Delivery Date and completion of the distribution of the
Units, will not distribute any offering material in connection with
the offering and sale of the Units other than any Preliminary
Prospectus, the Prospectus and any Issuer Free Writing Prospectus
to which the Representatives have consented in accordance with
Sections 1(i) or 5(a)(vi) .
(ddd) None of the
Williams Entities has taken, nor will it take, directly or
indirectly, any action designed to or that has constituted or that
could reasonably be expected to cause or result in the
stabilization or manipulation of the price of the Common Units to
facilitate the sale or resale of the Units.
(eee) Except for
this Agreement and any engagement letters with the Representatives,
there are no contracts, agreements or understandings between
the
20
Partnership and
any person that would give rise to a valid claim against the
Partnership or any Underwriter for a brokerage commission,
finder’s fee or other like payment in connection with the
offering and sale of the Units contemplated by this
Agreement.
(fff) The
statistical and market-related data included in the most recent
Preliminary Prospectus and the Prospectus are based on or derived
from sources that the Partnership Entities believe to be reliable
and accurate in all material respects.
Each certificate
signed by or on behalf of any of the Williams Parties and delivered
to the Underwriters or counsel for the Underwriters pursuant to
this Agreement shall be deemed to be a representation and warranty
by each such Williams Party to the Underwriters as to the matters
covered thereby.
Section 2. Purchase of the Units by the
Underwriters . On the basis of the representations and
warranties contained in and subject to the terms and conditions of
this Agreement, the Partnership agrees to sell the Firm Units to
the several Underwriters and each of the Underwriters, severally
and not jointly, agrees to purchase the number of Firm Units set
forth opposite that Underwriter’s name in
Schedule 1 hereto. The respective purchase obligations
of the Underwriters with respect to the Firm Units shall be rounded
among the Underwriters to avoid fractional Common Units as the
Representatives may determine.
In addition, the
Partnership grants to the Underwriters an option to purchase up to
1,050,000 Common Units, severally and not jointly. Such option (the
“ Option ”) is exercisable in the event that the
Underwriters sell more Common Units than the number of Firm Units
in the offering and as set forth in Section 4 hereof.
Each Underwriter agrees, severally and not jointly, to purchase the
number of Option Units (subject to such adjustments to eliminate
fractional Common Units as the Representatives may determine) that
bears the same proportion to the total number of Option Units to be
sold on such Delivery Date as the number of Firm Units set forth in
Schedule 1 hereto opposite the name of such Underwriter
bears to t
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