CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT BY AND AMONG WILLIAMS ENERGY SERVICES, LLC, WILLIAMS FIELD SERVICES COMPANY, LLC, WILLIAMS FIELD SERVICES GROUP, LLC, WILLIAMS PARTNERS GP LLC, WILLIAMS PARTNERS L.P. AND WILLIAMS PARTNERS OPERATING...
Exhibit
10.1
Execution Version
BY AND AMONG
XXXXXXXX ENERGY SERVICES, LLC,
XXXXXXXX FIELD SERVICES COMPANY, LLC,
XXXXXXXX FIELD SERVICES GROUP, LLC,
XXXXXXXX PARTNERS GP LLC,
XXXXXXXX PARTNERS L.P.
AND
XXXXXXXX PARTNERS OPERATING LLC
DATED AS OF DECEMBER 13, 2006
TABLE OF CONTENTS
| Page | ||||
ARTICLE I DEFINITIONS; RECORDATION |
2 | |||
1.1 Definitions |
2 | |||
ARTICLE II CONCURRENT TRANSACTIONS |
3 | |||
2.1 Distribution by WFSC of the Subject Interest to WFSG |
3 | |||
2.2 Distribution by WFSG of the Subject Interest to XXX |
3 | |||
2.3 Contribution by XXX of the Subject Interest to the General Partner |
4 | |||
2.4 Contribution by the General Partner of the Subject Interest to the Partnership |
4 | |||
2.5 Distribution of Cash Consideration |
4 | |||
2.6 Increase in Capital Account of the General Partner |
4 | |||
2.7 Distribution of Additional General Partner Units |
4 | |||
2.8 Contribution by the Partnership of the Subject Interest to the Operating Company |
4 | |||
ARTICLE III ASSUMPTION OF CERTAIN LIABILITIES |
5 | |||
3.1 Assumption of Subject Liabilities by WFSG |
5 | |||
3.2 Assumption of Subject Liabilities by XXX |
5 | |||
3.3 Assumption of Subject Liabilities by the General Partner |
5 | |||
3.4 Assumption of Subject Liabilities by the Partnership |
5 | |||
3.5 Assumption of Subject Liabilities by the Operating Company |
6 | |||
3.6 General Provisions Relating to Assumption of Liabilities |
6 | |||
ARTICLE IV FURTHER ASSURANCES |
6 | |||
4.1 Further Assurances |
6 | |||
4.2 Other Assurances |
7 | |||
ARTICLE V MISCELLANEOUS |
7 | |||
5.1 Order of Completion of Transactions |
7 | |||
5.2 Headings; References; Interpretation |
7 | |||
5.3 Successors and Assigns |
7 | |||
5.4 No Third Party Rights |
7 | |||
5.5 Counterparts |
8 | |||
5.6 Governing Law |
8 | |||
5.7 Assignment of Agreement |
8 | |||
5.8 Amendment or Modification |
8 | |||
5.9 Director and Officer Liability |
8 | |||
5.10 Severability |
8 | |||
5.11 Integration |
8 | |||
5.12 Effect of Amendment |
8 | |||
i
THIS CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT (this “Agreement”) dated as of
December 13, 2006, is made and entered into by and among Xxxxxxxx Energy Services, LLC, a Delaware
limited liability company (“XXX”), Xxxxxxxx Field Services Company, LLC, a Delaware limited
liability company (“WFSC”), Xxxxxxxx Field Services Group, LLC, a Delaware limited
liability company (“WFSG”), Xxxxxxxx Partners GP LLC, a Delaware limited liability company
(the “General Partner” and, together with XXX, WFSC and WFSG, the “Transferor
Parties”), Xxxxxxxx Partners L.P., a Delaware limited partnership (the “Partnership”),
and Xxxxxxxx Partners Operating LLC, a Delaware limited liability company (the “Operating
Company”). The above-named entities are sometimes referred to in this Agreement each as a
“Party” and collectively as the “Parties.” Certain capitalized terms used are
defined in Article I hereof.
RECITALS
WHEREAS, the Transferor Parties desire to contribute a 74.9% limited liability company
membership interest in Xxxxxxxx Four Corners LLC, a Delaware limited liability company (“Four
Corners”), to the Partnership pursuant to the terms of the Purchase Agreement (as defined
below) and this Agreement, and the Partnership desires to accept all of such interest in accordance
with the terms of such agreements;
WHEREAS, in order to accomplish the objectives and purposes in the preceding recital, and to
effect the intent of the Parties in connection with the consummation of the transactions
contemplated hereby, the following action has been taken prior to the date hereof:
| 1. | XXX, WFSG, WFSC, the General Partner, the Partnership and the Operating Company entered into that certain Purchase and Sale Agreement, dated November 16, 2006 (the “Purchase Agreement”), pursuant to which the Transferor Parties agreed to contribute a 74.9% limited liability company membership interest in Four Corners (the “Subject Interest”) to the Partnership. |
WHEREAS, concurrently with the consummation of the transactions contemplated hereby, each of
the following shall occur:
| 1. | WFSC shall distribute the Subject Interest to WFSG. | ||
| 2. | WFSG shall distribute the Subject Interest to XXX. | ||
| 3. | XXX shall contribute the Subject Interest to the General Partner as a contribution to the capital of the General Partner. | ||
| 4. | The General Partner shall contribute the Subject Interest to the Partnership as a contribution to the capital of the Partnership. | ||
| 5. | As consideration for the contribution of the Subject Interest by the General Partner to the Partnership, the Partnership shall (i) pay the Cash Consideration (as defined below) to the General Partner, (ii) increase the capital account of the General Partner |
| by the Additional GP Interest (as defined below) and (iii) issue the Additional General
Partner Units (as defined below) to the General Partner. |
|||
| 6. | The Partnership shall contribute the Subject Interest to the Operating Company as a contribution to the capital of the Operating Company. |
NOW THEREFORE, in consideration of their mutual undertakings and agreements set forth herein
and in the Purchase Agreement, the Parties undertake and agree as follows:
ARTICLE I
DEFINITIONS; RECORDATION
DEFINITIONS; RECORDATION
1.1 Definitions. The following capitalized terms have the meanings given below.
“Additional General Partner Units” has the meaning assigned to such term in the
Purchase Agreement.
“Additional GP Interest” has the meaning assigned to such term in the Purchase
Agreement.
“affiliate” means, with respect to a specified person, any other person controlling,
controlled by or under common control with that first person. As used in this definition, the term
“control” includes (i) with respect to any person having voting securities or the equivalent and
elected directors, managers or persons performing similar functions, the ownership of or power to
vote, directly or indirectly, voting securities or the equivalent representing 50% or more of the
power to vote in the election of directors, managers or persons performing similar functions, (ii)
ownership of 50% or more of the equity or equivalent interest in any person and (iii) the ability
to direct the business and affairs of any person by acting as a general partner, manager or
otherwise.
“Agreement” has the meaning assigned to such term in the first paragraph of this
Agreement.
“Buyer Financing Transactions” has the meaning assigned to such term in the Purchase
Agreement.
“Cash Consideration” has the meaning assigned to such term in the Purchase Agreement.
“Effective Date” means December 13, 2006.
“Four Corners” has the meaning assigned to such term in the recitals.
“General Partner” has the meaning assigned to such term in the first paragraph of this
Agreement.
“Laws” means any and all laws, statutes, ordinances, rules or regulations promulgated
by a governmental authority, orders of a governmental authority, judicial decisions, decisions of
arbitrators or determinations of any governmental authority or court.
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“Operating Company” has the meaning assigned to such term in the first paragraph of
this Agreement.
“Partnership” has the meaning assigned to such term in the first paragraph of this
Agreement.
“Partnership Agreement” means the Amended and Restated Agreement of Limited
Partnership, dated as of August 23, 2005, of the Partnership, as amended by Amendment No. 1
thereto, dated August 7, 2006, Amendment No. 2 thereto, dated August 23, 2006, and Amendment No. 3,
dated December 13, 2006.
“Party and Parties” have the meanings assigned to such terms in the first paragraph of
this Agreement.
“Prospectus Supplement” means the prospectus supplement dated December 6, 2006 (File
No. 333-137562) and filed by the Partnership with the Securities and Exchange Commission in
connection with the Buyer Financing Transactions.
“Purchase Agreement” has the meaning assigned to such term in the recitals.
“Subject Interest” has the meaning assigned to such term in the recitals.
“Subject Liabilities” means all obligations and liabilities relating to the Subject
Interest.
“Transferor Parties” has the meaning assigned to such term in the first paragraph of
this Agreement.
“XXX” has the meaning assigned to such term in the first paragraph of this Agreement.
“WFSC” has the meaning assigned to such term in the first paragraph of this Agreement.
“WFSG” has the meaning assigned to such term in the first paragraph of this Agreement.
ARTICLE II
CONCURRENT TRANSACTIONS
CONCURRENT TRANSACTIONS
2.1 Distribution by WFSC of the Subject Interest to WFSG. WFSC hereby grants, distributes,
transfers, assigns and conveys to WFSG, its successors and assigns, for its and their own use
forever, the Subject Interest and WFSG hereby accepts the distribution of the Subject Interest from
WFSC.
TO HAVE AND TO HOLD the Subject Interest unto WFSG, its successors and assigns, together with
all and singular the rights and appurtenances thereto in anywise belonging, subject, however, to
the terms and conditions stated in this Agreement, forever.
2.2 Distribution by WFSG of the Subject Interest to XXX. WFSG hereby grants, distributes,
transfers, assigns and conveys to XXX, its successors and assigns, for its and their
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own use
forever, the Subject Interest and XXX hereby accepts the distribution of the Subject Interest from
WFSG.
TO HAVE AND TO HOLD the Subject Interest unto XXX, its successors and assigns, together with
all and singular the rights and appurtenances thereto in anywise belonging, subject, however, to
the terms and conditions stated in this Agreement, forever.
2.3 Contribution by XXX of the Subject Interest to the General Partner. XXX hereby grants,
contributes, transfers, assigns and conveys to the General Partner, its successors and assigns, for
its and their own use forever, the Subject Interest and the General Partner hereby accepts the
Subject Interest from XXX, as a contribution by XXX to the capital of the General Partner.
TO HAVE AND TO HOLD the Subject Interest unto the General Partner, its successors and assigns,
together with all and singular the rights and appurtenances thereto in anywise belonging, subject,
however, to the terms and conditions stated in this Agreement, forever.
2.4 Contribution by the General Partner of the Subject Interest to the Partnership. The
General Partner hereby grants, contributes, transfers, assigns and conveys to the Partnership, its
successors and assigns, for its and their own use forever, the Subject Interest, and the
Partnership hereby accepts the Subject Interest from the General Partner, as a contribution by the
General Partner to the capital of the Partnership.
TO HAVE AND TO HOLD the Subject Interest unto the Partnership, its successors and assigns,
together with all and singular the rights and appurtenances thereto in anywise belonging, subject,
however, to the terms and conditions stated in this Agreement, forever.
2.5 Distribution of Cash Consideration. The Parties acknowledge that the Partnership has
distributed to the General Partner the Cash Consideration. The General Partner hereby acknowledges
receipt of the Cash Consideration.
2.6 Increase in Capital Account of the General Partner. The Parties acknowledge that the
capital account of the General Partner has been increased by an amount equal to the amount of the
Additional GP Interest.
2.7 Distribution of Additional General Partner Units. The Parties acknowledge that the
Partnership has issued the Additional General Partner Units to the General Partner. The General
Partner acknowledges the receipt of such Additional General Partner Units.
2.8 Contribution by the Partnership of the Subject Interest to the Operating Company. The
Partnership hereby grants, contributes, transfers, assigns and conveys to the Operating Company,
its successors and assigns, for its and their own use forever, the Subject Interest, and the
Operating Company hereby accepts the Subject Interest from the Partnership as a contribution by the
Partnership to the capital of the Operating Company.
TO HAVE AND TO HOLD the Subject Interest unto the Operating Company, its successors and
assigns, together with all and singular the rights and appurtenances thereto in
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anywise belonging,
subject, however, to the terms and conditions stated in this Agreement, forever.
ARTICLE III
ASSUMPTION OF CERTAIN LIABILITIES
ASSUMPTION OF CERTAIN LIABILITIES
3.1 Assumption of Subject Liabilities by WFSG. In connection with the distribution by WFSC of
the Subject Interest to WFSG, as set forth in Section 2.1 above, WFSG hereby assumes and
agrees to duly and timely pay, perform and discharge all of the Subject Liabilities, to the full
extent that WFSC has been heretofore or would have been in the future obligated to pay, perform and
discharge the Subject Liabilities were it not for such distribution and the execution and delivery
of this Agreement; provided, however, that said assumption and agreement to duly and timely pay,
perform and discharge the Subject Liabilities shall not (i) increase the obligation of WFSG with
respect to the Subject Liabilities beyond that of WFSC, (ii) waive any valid defense that was
available to WFSC with respect to the Subject Liabilities or (iii) enlarge any rights or remedies
of any third party under any of the Subject Liabilities.
3.2 Assumption of Subject Liabilities by XXX. In connection with the distribution by WFSG of
the Subject Interest to XXX, as set forth in Section 2.2 above, XXX hereby assumes and
agrees to duly and timely pay, perform and discharge all of the Subject Liabilities, to the full
extent that WFSG has been heretofore or would have been in the future obligated to pay, perform and
discharge the Subject Liabilities were it not for such distribution and the execution and delivery
of this Agreement; provided, however, that said assumption and agreement to duly and timely pay,
perform and discharge the Subject Liabilities shall not (i) increase the obligation of XXX with
respect to the Subject Liabilities beyond that of WFSG, (ii) waive any valid defense that was
available to WFSG with respect to the Subject Liabilities or (iii) enlarge any rights or remedies
of any third party under any of the Subject Liabilities.
3.3 Assumption of Subject Liabilities by the General Partner. In connection with the
contribution by XXX of the Subject Interest to the General Partner, as set forth in Section
2.3 above, the General Partner hereby assumes and agrees to duly and timely pay, perform and
discharge all of the Subject Liabilities, to the full extent that XXX has been heretofore or would
have been in the future obligated to pay, perform and discharge the
Subject Liabilities were it not for such contribution and the execution and delivery of this
Agreement; provided, however, that said assumption and agreement to duly and timely pay, perform
and discharge the Subject Liabilities shall not (i) increase the obligation of the General Partner
with respect to the Subject Liabilities beyond that of XXX, (ii) waive any valid defense that was
available to XXX with respect to the Subject Liabilities or (iii) enlarge any rights or remedies of
any third party under any of the Subject Liabilities.
3.4 Assumption of Subject Liabilities by the Partnership. In connection with the contribution
by the General Partner of the Subject Interest to the Partnership, as set forth in Section
2.4 above, the Partnership hereby assumes and agrees to duly and timely pay, perform and
discharge all of the Subject Liabilities, to the full extent that the General Partner has been
heretofore or would have been in the future obligated to pay, perform and discharge the Subject
Liabilities were it not for such contribution and the execution and delivery of this Agreement;
provided, however, that said assumption and agreement to duly and timely pay, perform and
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discharge
the Subject Liabilities shall not (i) increase the obligation of the Partnership with respect to
the Subject Liabilities beyond that of the General Partner, (ii) waive any valid defense that was
available to the General Partner with respect to the Subject Liabilities or (iii) enlarge any
rights or remedies of any third party under any of the Subject Liabilities.
3.5 Assumption of Subject Liabilities by the Operating Company. In connection with the
contribution by the Partnership of the Subject Interest to the Operating Company as set forth in
Section 2.8 above, the Operating Company hereby assumes and agrees to duly and timely pay,
perform and discharge all of the Subject Liabilities, to the full extent that the Partnership has
been heretofore or would have been in the future obligated to pay, perform and discharge the
Subject Liabilities were it not for such sale and the execution and delivery of this Agreement;
provided, however, that said assumption and agreement to duly and timely pay, perform and discharge
the Subject Liabilities shall not (i) increase the obligation of the Operating Company with respect
to the Subject Liabilities beyond that of the Partnership, (ii) waive any valid defense that was
available to the Partnership with respect to the Subject Liabilities or (iii) enlarge any rights or
remedies of any third party under any of the Subject Liabilities.
3.6 General Provisions Relating to Assumption of Liabilities. Notwithstanding anything to the
contrary contained in this Agreement including, without limitation, the terms and provisions of
this Article III, none of the Parties shall be deemed to have assumed, and the Subject Interest has
not and is not being distributed or contributed, as the case may be, subject to, any liens or
security interests securing consensual indebtedness covering such Subject Interest, and all such
liens and security interests shall be deemed to be excluded from the assumptions of liabilities
made under this Article III.
ARTICLE IV
FURTHER ASSURANCES
FURTHER ASSURANCES
4.1 Further Assurances. From time to time after the date hereof, and without any further consideration, the Parties
agree to execute, acknowledge and deliver all such additional deeds, assignments, bills of sale,
conveyances, instruments, notices, releases, acquittances and other documents, and will do all such
other acts and things, all in accordance with applicable Law, as may be necessary or appropriate
(a) more fully to assure that the applicable Parties own all of the properties, rights, titles,
interests, estates, remedies, powers and privileges granted by this Agreement, or which are
intended to be so granted, (b) more fully and effectively to vest in the applicable Parties and
their respective successors and assigns beneficial and record title to the interests contributed
and assigned by this Agreement or intended so to be and (c) to more fully and effectively carry out
the purposes and intent of this Agreement.
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4.2 Other Assurances. From time to time after the date hereof, and without any further
consideration, each of the Parties shall execute, acknowledge and deliver all such additional
instruments, notices and other documents, and will do all such other acts and things, all in
accordance with applicable Law, as may be necessary or appropriate to more fully and effectively
carry out the purposes and intent of this Agreement. It is the express intent of the Parties that
the Partnership or its subsidiaries own the Subject Interest that is identified in this Agreement
and in the Prospectus Supplement.
ARTICLE V
MISCELLANEOUS
MISCELLANEOUS
5.1 Order of Completion of Transactions. The transactions provided for in Article II and
Article III of this Agreement shall be completed on the Effective Date in the following order:
First, the transactions provided for in Article II shall be completed in the order set forth
therein; and
Second, the transactions provided for in Article III shall be completed in the order set forth
therein.
5.2 Headings; References; Interpretation. All Article and Section headings in this Agreement
are for convenience only and shall not be deemed to control or affect the meaning or construction
of any of the provisions hereof. The words “hereof,” “herein” and “hereunder” and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. All references herein to Articles and Sections shall,
unless the context requires a different construction, be deemed to be references to the Articles
and Sections of this Agreement, respectively. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all other genders, and the
singular shall include the plural and vice versa. The use herein of the word “including” following
any general statement, term or matter shall not be construed to limit such statement, term or
matter to the specific items or matters set forth immediately following such word or to similar
items or matters, whether or
not non-limiting language (such as “without limitation,” “but not limited to,” or words of
similar import) is used with reference thereto, but rather shall be deemed to refer to all other
items or matters that could reasonably fall within the broadest possible scope of such general
statement, term or matter.
5.3 Successors and Assigns. The Agreement shall be binding upon and inure to the benefit of
the Parties signatory hereto and their respective successors and assigns.
5.4 No Third Party Rights. Except as provided herein, nothing in this Agreement is intended
to or shall confer upon any person other than the Parties, and their respective successors and
permitted assigns, any rights, benefits, or remedies of any nature whatsoever under or by reason of
this Agreement and no person is or is intended to be a third party beneficiary of any of the
provisions of this Agreement. Notwithstanding anything in this Agreement to the contrary and
subject to the terms and provisions of the Partnership Agreement, the General Partner shall have
the right, by written notice to the Parties hereto, to assign its rights to receive the Cash
Consideration and the General Partner Units hereunder to any of its affiliates.
- 7 -
5.5 Counterparts. This Agreement may be executed in any number of counterparts, all of which
together shall constitute one agreement binding on the parties hereto.
5.6 Governing Law. This Agreement shall be governed by, and construed in accordance with, the
Laws of the State of Texas applicable to contracts made and to be performed wholly within such
state without giving effect to conflict of law principles thereof, except to the extent that it is
mandatory that the Law of some other jurisdiction, wherein the interests are located, shall apply.
5.7 Assignment of Agreement. Neither this Agreement nor any of the rights, interests, or
obligations hereunder may be assigned by any Party without the prior written consent of each of the
Parties.
5.8 Amendment or Modification. This Agreement may be amended or modified from time to time
only by the written agreement of all the Parties hereto and affected thereby.
5.9 Director and Officer Liability. Except to the extent that they are a party hereto, the
directors, managers, officers, partners and securityholders of the Parties and their respective
affiliates shall not have any
personal liability or obligation arising under this Agreement (including any claims that
another party may assert).
5.10 Severability. If any term or other provision of this Agreement is invalid, illegal, or
incapable of being enforced under applicable Law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated herein are not affected in any manner
adverse to any Party. Upon such determination that any term or other provision of this Agreement
is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the Parties as closely as possible in
a mutually acceptable manner in order that the transactions contemplated herein are consummated as
originally contemplated to the fullest extent possible.
5.11 Integration. This Agreement and the instruments referenced herein supersede any and all
previous understandings or agreements among the Parties, whether oral or written, with respect to
their subject matter. This Agreement and such instruments contain the entire understanding of the
Parties with respect to the subject matter hereof and thereof. No understanding, representation,
promise or agreement, whether oral or written, is intended to be or shall be included in or form
part of this Agreement or any such instrument unless it is contained in a written amendment hereto
or thereto and executed by the Parties hereto or thereto after the date of this Agreement or such
instrument.
5.12 Effect of Amendment. The Parties ratify and confirm that except as otherwise expressly
provided herein, in the event this Agreement conflicts in any way with any instrument of conveyance
covering the Subject Interest, the terms and provisions of this Agreement shall control.
[The Remainder of this Page is Intentionally Blank]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date
first above written.
| XXXXXXXX ENERGY SERVICES, LLC |
||||
| By: | /s/ Xxxxxx X. Sailor | |||
| Xxxxxx X. Sailor | ||||
| Treasurer | ||||
| XXXXXXXX FIELD SERVICES COMPANY, LLC |
||||
| By: | /s/ Xxxxxx X. Sailor | |||
| Xxxxxx X. Sailor | ||||
| Assistant Treasurer | ||||
| XXXXXXXX FIELD SERVICES GROUP, LLC |
||||
| By: | /s/ Xxxxxx X. Sailor | |||
| Xxxxxx X. Sailor | ||||
| Assistant Treasurer | ||||
| XXXXXXXX PARTNERS GP LLC |
||||
| By: | /s/ Xxxxxx X. Sailor | |||
| Xxxxxx X. Sailor | ||||
| Treasurer | ||||
| XXXXXXXX PARTNERS L.P. | ||||
| By: | XXXXXXXX PARTNERS GP LLC, its General Partner | |||
| By: | /s/ Xxxxxx X. Sailor | |||
| Xxxxxx X. Sailor | ||||
| Treasurer | ||||
Signature Page to Contribution Agreement
| XXXXXXXX PARTNERS OPERATING LLC | ||||
| By: | XXXXXXXX PARTNERS L.P., its managing member | |||
| By: | XXXXXXXX PARTNERS GP LLC, its General Partner | |||
| By: | /s/ Xxxxxx X. Sailor | |||
| Xxxxxx X. Sailor | ||||
| Treasurer | ||||
Signature Page to Contribution Agreement
