EXHIBIT 10.1
Execution Version
SPECIFIC TERMS IN THIS EXHIBIT HAVE BEEN REDACTED BECAUSE THEY ARE BOTH NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM IF PUBLICLY DISCLOSED. THE LOCATION OF REDACTED MATERIAL IS MARKED AT THE APPROPRIATE PLACE WITH BRACKETS AND ASTERISKS ([***]).
THIRD AMENDMENT TO GAS GATHERING AGREEMENT
This Third Amendment to Gas Gathering Agreement (“Third Amendment”) is effective as of January 1, 2026 (the “Amendment Date”), by and between DELAWARE BASIN MIDSTREAM LLC f/k/a DELAWARE BASIN MIDSTREAM, LLC (“DBM”) and ANADARKO E&P ONSHORE LLC (“AEP”). DBM and AEP are referred to in this Third Amendment individually as a “Party” and collectively as the “Parties.” Capitalized terms used but not otherwise defined in this Third Amendment have the meanings ascribed to such terms in the Agreement (as defined below).
WHEREAS, DBM and AEP are parties to that certain Gas Gathering Agreement (DBM #21175), dated effective as of January 1, 2018 (as amended, the “Agreement”); and
WHEREAS, the Parties desire to amend the Agreement as provided for and subject to the terms and conditions herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as of the Amendment Date as follows:
AGREEMENT
1. Amendment to Section 1.1 of the Agreement. Section 1.1 of the Agreement is hereby amended by deleting the defined terms “AEP Production Forecast”, “Btu Content”, and “Electricity Cost Recovery Passthrough” in their entirety.
2. Amendment to Section 1.1 of the Agreement. Section 1.1 of the Agreement is hereby amended by adding the following definitions in the appropriate alphabetical order:
““AEP Delivered Volumes” has the meaning set forth in Section 6.6.
“AEP Operated Production Forecast” has the meaning set forth in Section 2.10.
“Allocation Statement” has the meaning set forth in Section 3.9.
“Banked Volume” has the meaning set forth in Section 6.6.
“Btu Content” means the number of MMBtus contained in the volume of Gas delivered hereunder and shall be determined by multiplying the volume of Gas, measured in Mcf, by its corresponding Heating Value (MMBtu/Mcf).
“Buyback Delivery Point” means those delivery point(s) where DBM delivers Buyback Gas to AEP and which are associated with one or more Point of Receipt location(s) and/or well site(s).
“Buyback Gas” means Gas delivered by DBM to AEP for purposes of field use including but not limited to injection into one or more of AEP’s Wells to help stimulate Gas production from such Wells and/or field equipment fuel to assist in the production of Gas it delivers to DBM.
“Calendar Year” means any twelve (12) consecutive Month period starting on January 1st and ending on December 31st.
“Deficiency Fee” has the meaning set forth in Section 6.1(e).
“Deficit Volume” has the meaning set forth in Section 6.6.
“JOA” has the meaning set forth in Section 2.1.
“Minimum Volume Commitment” means, with respect to each time period set forth below, the minimum volume commitment set forth in the table below for such time period, as may be adjusted pursuant to the express terms of this Agreement:
| | | | | |
Period of Time | Minimum Volume Commitment (Mcf/d) |
| January 1, 2026 – December 31, 2026 | [***] |
| January 1, 2027 – December 31, 2027 | [***] |
“Monthly Nomination Forecast” has the meaning set forth in Section 2.10.
“Third Party” means a Person or Persons other than (i) AEP and any of its Affiliates and (ii) DBM and any of its Affiliates.
“Transfer” has the meaning set forth in Section 2.1.
“Transferred Interests” has the meaning set forth in Section 2.1.”
3. Amendment to Section 2.1 of the Agreement. Section 2.1 of the Agreement is hereby amended by adding the following paragraph at the end of Section 2.1:
[*** *** *** ***]
4. Amendment to Section 2.10 of the Agreement. Section 2.10 of the Agreement is hereby deleted in its entirety and replaced with the following:
“Section 2.10 AEP Forecasts. Within the first five (5) Days of each Calendar Year during the Term AEP shall provide DBM a production forecast of the total Gas from AEP-operated Wells expected to be delivered hereunder by Month for the remainder of the Primary Term (the “AEP Operated Production Forecast”). Additionally, AEP or its Affiliate shall, on or before the 20th Day of the Month prior to the Month of flow (or immediately following Business Day if such Day is not a Business Day) provide DBM a Monthly forecast for the upcoming two Months including (a) the forecasted total AEP-operated production for Gas deliveries into the System and (b) the forecasted working interest allocation for such total AEP-operated production attributable to each of (i) the sum of (A) AEP’s and AEP Affiliates’ owned Gas, plus (B) any Third Party Gas not being taken-in-kind by the owner thereof, and (ii) Gas taken-in-kind by each Third Party non-operator working interest holder in the applicable AEP-operated Well(s) (the “Monthly Nomination Forecast”). Each of the AEP Operated Production Forecast and the Monthly Nomination Forecast shall be AEP’s good faith estimate of future production and based on AEP’s then current engineering, planning, and budgetary data.”
5. Amendment to Section 3.5 of the Agreement. Section 3.5 of the Agreement is hereby deleted in its entirety and replaced with the following:
“Section 3.5 Discontinuance. Beginning December 31, 2027, if in DBM’s sole judgment made in good faith, it is no longer economical for DBM to gather and compress Gas from any Point(s) of Receipt, DBM may discontinue the taking of such Gas upon giving at least sixty (60) Days’ prior written notice to AEP. Any such Point(s) of Receipt shall be released from this Agreement and the Transportation Interests insofar only as Gas that may be produced to such Point(s) of Receipt shall automatically revert back to AEP. Further, if, in DBM’s sole judgment made in good faith, DBM deems the continued operation of all or part of the System to be uneconomical, DBM may discontinue operation of all or part of the System, upon giving at least sixty (60) Days’ prior written notice to AEP. Before discontinuing service to any Point(s) of Receipt pursuant to this Section 3.5, the Parties shall endeavor to identify mutually agreeable terms that would make the service to such Point(s) of Receipt reasonably economical for DBM. In connection with the release of Transportation Interests pursuant to this Section 3.5, DBM and AEP shall execute and deliver any additional documents and instruments and perform any additional acts that may become reasonably necessary or appropriate to effectuate the reversion of Transportation Interests with respect thereto.”
6. New Section 3.7(e) of the Agreement. The Agreement is hereby amended to include a new Section 3.7(e) as follows:
“(e) DBM shall endeavor in good faith to notify (which notice shall be given in writing (email being acceptable)) AEP by the 15th Day of the Month prior to the first Month of flow of any new AEP-operated (i) Points of Receipt and (ii) Buyback Delivery Points anticipated to be placed into service during the following two Months.”
7. New Section 3.8 of the Agreement. The Agreement is hereby amended to include a new Section 3.8 as follows:
“Section 3.8 Actual Volume Data. DBM shall use commercially reasonable efforts to provide, on or before the 10th Day following the Month of flow (or the next Business Day, if such Day is not a Business Day), AEP with a statement setting forth the actual total volume received by DBM at each Point of Receipt and, as available, delivered by DBM to each Buyback Delivery Point (in Mcf and MMBtu) during such prior Month of flow; provided, however, that if DBM does not receive the AEP Operational Data and/or the AEP Measurement Data for such Month of flow from AEP within the applicable timeframe(s) set forth in Section 7.10, DBM shall use commercially reasonable efforts to provide such total volume statement as soon as practicable following the 10th Day following the Month of flow (or the next Business Day, if such Day is not a Business Day).”
8. New Section 3.9 of the Agreement. The Agreement is hereby amended to include a new Section 3.9 as follows:
“Section 3.9 Allocation Statement. Not later than the 20th Day of the Month prior to the Month of flow (or the next Business Day, if such Day is not a Business Day), AEP shall provide (or cause to be provided) to DBM a statement (in a format reasonably acceptable to DBM) setting forth (for such upcoming Month of flow):
(i) with respect to each Point of Receipt, (a) the percentage share of the total Gas to be delivered to DBM at such Point of Receipt during such Month that is Dedicated Gas, and (b) the percentage share of the total Gas to be delivered to DBM at such Point of Receipt during such Month that is to be taken-in-kind by each applicable Third Party owner and to be delivered by (or on behalf of) such Third Party owner during such Month, with the sum of (a) and (b) being 100% of the total Gas to be delivered to DBM at each Point of Receipt during such Month; and
(ii) with respect to each Buyback Delivery Point corresponding to such Points of Receipt, the percentage share of the total Buyback Gas to be delivered at each such Buyback Delivery Point during such Month for each of the applicable parties listed in (a) and (b) in clause (i) above ((i) and (ii) collectively, an “Allocation Statement”).
AEP may organize and group Points of Receipt and Buyback Delivery Points in an Allocation Statement, but, in any case, shall provide the information required in items (i) and (ii) above for all Points of Receipt and Buyback Delivery Points (as applicable) within such grouped Points of Receipt and Buyback Delivery Points (as applicable). Dedicated Gas delivered hereunder shall be deemed to be based on the percentage, as set forth in such Allocation Statement, of the total Gas that is delivered to each such Point of Receipt. AEP’s Buyback Gas received at each Buyback Delivery Point (the settlement of which may be described under a separate written agreement between AEP and DBM) shall be deemed to be based on the percentage, as set forth in the Allocation Statement, of the total Buyback Gas delivered at such Buyback Delivery Point. If an Allocation Statement is not received by DBM by the 20th Day of the Month prior to a Month of flow (or the next Business Day, if such Day is not a Business Day), the most recent Allocation Statement provided to DBM will serve as the Allocation Statement for such upcoming Month of flow. AEP agrees that DBM may rely on each such Allocation Statement. Notwithstanding the foregoing, if in a Month, DBM gives written notice of a curtailment of Gas at any such Point of Receipt (which notice may be organized and grouped by Points of Receipt) during such Month and such curtailment is disproportionate as to the owners of the Gas delivering to such Point of Receipt due to: (x) different service levels (under the applicable agreements with DBM), including sufficient information in such notice for the applicable operator to update its Allocation Statement based on the affected volumes and their corresponding service levels; and/or (y) a failure of any downstream market to receive such owner’s Gas for any reason, then within fifteen (15) Days following the end of such Month, AEP (if it is the operator of the wells behind such Point of Receipt) shall provide (or cause the operator to provide, if AEP is not the operator) an updated Allocation Statement for such Point of Receipt for such Month as necessary to account for the disproportionate impact of the curtailed volumes. SUBJECT TO SECTION 12.3, AEP SHALL RELEASE, INDEMNIFY, DEFEND, AND HOLD HARMLESS THE DBM INDEMNITEES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, LIENS, DEMANDS AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER TO THE EXTENT CAUSED BY OR RESULTING FROM (I) ANY INCORRECT ALLOCATION STATEMENT AND ANY INCORRECT OR OMITTED PAYMENT OR REDELIVERY IN RELIANCE UPON THE ALLOCATION STATEMENT PROVIDED TO DBM, OR (II) ANY FAILURE OF AEP TO TIMELY PROVIDE (OR CAUSE TO BE PROVIDED) TO DBM SUCH ALLOCATION STATEMENT.”
9. Amendment to Section 6.1(a)(ii) of the Agreement. The table in Section 6.1(a)(ii) of the Agreement is hereby deleted in its entirety and replaced with the following table:
| | | | | | | | |
| Period of Time | HP Rich Gathering Fee | LP Rich Gathering Fee |
| 2018-2025 | $[***] | Cost of service as determined by DBM each Calendar Year pursuant to Section 6.3 below. |
| January 1, 2026 – December 31, 2027 | $[***] | Fixed rate equal to $[***]. |
| January 1, 2028 – End of Term | $[***] | Fixed rate equal to $[***]. |
10. New Section 6.1(e) of the Agreement. The Agreement is hereby amended to include a new Section 6.1(e) as follows:
“(e) Deficiency Fee: DBM will charge AEP a fee equal to $[***] (per Mcf) for each Mcf of the Deficit Volumes (if any) for each applicable Calendar Year (the “Deficiency Fee”). If and to the extent applicable, the Deficiency Fee shall be included in the first invoice delivered under Section 8.1 following the conclusion of the applicable Calendar Year for which a Deficiency Fee is due.”
11. Amendment to Section 6.3 of the Agreement. Section 6.3 of the Agreement is hereby amended by adding the following at the end thereof:
“The Parties acknowledge and agree that although the LP Rich Gathering Fee is being revised from a cost of service rate (under this Section 6.3) to a fixed rate (as described in the table in Section 6.1(a)(ii)) effective as of January 1, 2026, (i) the IRR Calculation used in setting the LP Rich Gathering Fee for periods prior to January 1, 2026 is nevertheless based on Free Cash Flows from January 1, 2008 through December 31, 2027 (including estimates thereof) and (ii) there will be no Annual Rate Redeterminations from and after December 31, 2025.”
12. Deletion of Section 6.4 of the Agreement. Section 6.4 of the Agreement is hereby deleted in its entirety and replaced with the following:
“Section 6.4 Intentionally Omitted.”
13. New Section 6.6 of the Agreement. The Agreement is hereby amended to include a new Section 6.6 as follows:
“Section 6.6 AEP’s Obligations. From and after January 1, 2026 through December 31, 2027, AEP agrees to deliver, or cause to be delivered, hereunder to DBM at the Points of Receipt each Day a volume of Dedicated Gas at least equal to the Minimum Volume Commitment applicable to such Day. If, at the end of any Calendar Year during the period in the immediately preceding sentence, the aggregate volume of Dedicated Gas AEP has delivered, or cause to be delivered,
hereunder to DBM (and DBM has accepted and received) at the Points of Receipt during such Calendar Year (the “AEP Delivered Volumes”) is less than the product of: (I) the Minimum Volume Commitment for such Calendar Year, multiplied by (II) the number of Days in such Calendar Year (such deficiency, a “Deficit Volume”), AEP will pay to DBM the Deficiency Fee as set out in Section 6.1(e). For the avoidance of doubt, no credit towards any Minimum Volume Commitment will be given for volumes attributable to other Third Party owners of Gas that are received at the Points of Receipt pursuant to a separate written agreement between DBM and such Third Party owner. If, at the end of any Calendar Year, the AEP Delivered Volumes for such Calendar Year are greater than the Minimum Volume Commitment aggregated over such Calendar Year, DBM will credit an amount of Gas equal to 100% of the amount of the actual AEP Delivered Volumes for such Calendar Year which is above such aggregated Minimum Volume Commitment for such Calendar Year (the “Banked Volume”) toward the Minimum Volume Commitments during the remainder of the Minimum Volume Commitment period, for purposes of determining the applicable Deficiency Fee.”
14. Amendment to Section 7.2 of the Agreement. Section 7.2 of the Agreement is hereby deleted in its entirety and replaced with the following:
“Section 7.2 Meter Testing. DBM will inspect, sample, and test the measurement equipment in service at each Point of Receipt in accordance with the below table (based on Point of Receipt average Gas throughput). AEP shall have the right to request that DBM test (at AEP’s sole cost and expense) the measurement equipment between the regularly scheduled tests per the below table.
| | | | | |
Average Monthly Gas Throughput (Mcf/Day) | Meter Testing Frequency |
Less than 1,000 | Annually |
1,000-5,000 | Semi-Annually |
Greater than 5,000 | Monthly |
”
15. Amendment to Section 7.4 of the Agreement. The reference to “quantity” in the second to last sentence of Section 7.4 of the Agreement is hereby deleted in its entirety and replaced with a reference to “volume”.
16. Amendments to Section 7.6 of the Agreement.
a. The reference to “quantity” in the first sentence of Section 7.6 of the Agreement (before subpart (a) thereof) is hereby deleted in its entirety and replaced with a reference to “volume”.
b. Section 7.6(f) of the Agreement is hereby deleted in its entirety and replaced with the following:
“DBM shall determine the Gas stream composition, specific gravity, and gross Heating Values based on any of the following: spot samples, composite samples, on-line Gas chromatograph analysis or portable Gas chromatograph analysis. The component analysis of the Gas shall be performed by Gas chromatography in accordance with Gas Processor’s Association Standards 2261 or 2119 and 2172 (latest revisions). Gas samples shall be obtained in accordance with the procedures set forth in the Gas Processor’s Association Standard 2166, Obtaining Natural Gas Samples for Analysis by Gas Chromatography (latest revision), and American Petroleum Institute – Manual of Petroleum Measurement Standards, Chapter 14.1, Section 1 (latest revision). Samples will be taken only while there is active flow and in accordance with the table below (based on Point of Receipt average Gas throughput), but may be taken more often if deemed necessary by DBM:
| | | | | |
Average Monthly Gas Throughput (Mcf/Day) | Gas Sample Frequency |
Less than 1,000 | Annually |
1,000 – 5,000 | Semi-Annually |
Greater than 5,000 | Monthly |
Further (i) AEP may reasonably request DBM take additional sampling beyond the frequency in the above table, (ii) DBM shall conduct such sampling within a reasonable timeframe following receipt of such AEP additional sampling request, and (iii) DBM shall promptly provide AEP the results of such sampling, provided that AEP shall be responsible for the costs of collecting and testing any additional samples taken at its request.”
17. Amendment to Section 8.1 of the Agreement. The two references to “quantity” in the first sentence of Section 8.1 of the Agreement are hereby deleted in their entirety and replaced with references to “volume”.
18. Amendment to Section 9.1 of the Agreement. Section 9.1 of the Agreement is hereby deleted in its entirety and replaced with the following:
“Section 9.1 Term. This Agreement shall become effective as of the Effective Date, and shall remain in full force and effect for a primary term through December 31, 2035 (the “Primary Term”). The Primary Term shall be automatically extended to match any extension to the GPC Term if and only to the extent the GPC Term is extended (as effected in accordance with the terms and conditions of the GPC) to a date beyond the end of the then-current Primary Term. Following the expiration of
the Primary Term (as extended to match the GPC Term, if applicable), this Agreement shall continue from year to year thereafter (each an “Annual Renewal”), unless terminated by either Party at the expiration of the Primary Term (as extended to match the GPC Term, if applicable), or any Annual Renewal thereafter, by providing not less than three hundred sixty five (365) days’ prior written notice to the other Party. The Primary Term (as extended to match the GPC Term, if applicable) and all Annual Renewals are, together, the “Term”. Termination or expiration of this Agreement shall not relieve either Party from any obligations previously accrued hereunder. Notwithstanding the foregoing and for the avoidance of doubt, the Parties acknowledge and agree that any expiration, termination, or suspension of the GPC Term (in each case, as effected in accordance with the terms of the GPC) shall not affect (i.e. shall not shorten or truncate) the Primary Term (as extended to match the GPC Term) or any Annual Renewal.”
19. Amendment to Exhibit “A” of the Agreement. Exhibit “A” to the Agreement is hereby deleted in its entirety and replaced with the Exhibit “A” attached as Annex I hereto.
20. Amendment to Exhibit “B” of the Agreement. Exhibit “B” to the Agreement is hereby deleted in its entirety and replaced with the Exhibit “B” attached as Annex II hereto.
21. Amendment to Exhibit “C” of the Agreement. Exhibit “C” to the Agreement is hereby deleted in its entirety and replaced with the Exhibit “C” attached as Annex III hereto.
22. Amendment to Exhibit “D” of the Agreement. Exhibit “D” to the Agreement is hereby deleted in its entirety and replaced with the Exhibit “D” attached as Annex IV hereto.
23. Ratification. Except as specifically provided in this Third Amendment, all terms and provisions of the Agreement and the Parties’ rights and obligations thereunder shall remain unchanged and in full force and effect as originally written or previously amended in accordance with the terms of the Agreement, and the Agreement, as modified by this Third Amendment, is hereby ratified, acknowledged and reaffirmed by the Parties. From and after the Amendment Date, each reference in the Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or any other word or words of similar import shall mean and be a reference to the Agreement as amended hereby.
24. Application of Certain Provisions. The provisions of Sections 10.1, 13.2, 15.2, 15.7, 15.8, 15.9, 15.10, 15.11, 15.12, 15.13, 15.14 and 15.15 of the Agreement, as well as any defined terms necessary to give meaning to such provisions, in each case shall apply mutatis mutandis to this Third Amendment.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have executed this Third Amendment to be effective for all purposes as of the Amendment Date.
| | | | | | | | |
DELAWARE BASIN MIDSTREAM LLC | | ANADARKO E&P ONSHORE LLC By: Anadarko Energy Services Company, as agent |
By: /s/ Oscar Brown | | By: /s/ Terry Morrison |
Name: Oscar Brown | | Name: Terry Morrison |
Title: President and CEO | | Title: Senior Vice President |
Signature Page to Third Amendment to Gas Gathering Agreement
ANNEX I
EXHIBIT “A”
GAS GATHERING AGREEMENT
DATED JANUARY 1, 2018
BY AND BETWEEN
DELAWARE BASIN MIDSTREAM LLC
AND
ANADARKO E&P ONSHORE LLC
Exhibit A-1
Lean Existing Point(s) of Receipt
[***]
Exhibit A-1
Rich Existing Point(s) of Receipt
[***]
ANNEX I
EXHIBIT A-2
Rich Future Point(s) of Receipt
[***]
ANNEX II
EXHIBIT “B”
GAS GATHERING AGREEMENT
DATED JANUARY 1, 2018
BY AND BETWEEN
DELAWARE BASIN MIDSTREAM LLC
AND
ANADARKO E&P ONSHORE LLC
DBM’s Point(s) Of Delivery
[***]
ANNEX III
EXHIBIT “C”
GAS GATHERING AGREEMENT
DATED JANUARY 1, 2018
BY AND BETWEEN
DELAWARE BASIN MIDSTREAM LLC
AND
ANADARKO E&P ONSHORE LLC
GAS NOMINATIONS AND BALANCING
Daily Nominations. AEP shall nominate by 10:30 a.m. prevailing Central (US) time five (5) Business Days prior to each Month, through DBM’s written nomination form and in accordance with DBM’s nomination procedures, the aggregate quantity of Gas per Day (in Mcf and MMBtu) (“Daily Nominated Quantity”) that AEP will (i) deliver to DBM at the Points of Receipt and (ii) receive from DBM at each Point of Delivery (or pipeline interconnect, if available) for that Month.
DBM, in its reasonable discretion, may accept nominations at such later time as operating conditions permit, and may waive any nomination requirement. Intra-Day or Intra-month nominations will be made consistent with and in accordance with DBM’s nomination procedures. The quantities of Gas to be gathered shall be as agreed to by the Parties (the “Confirmed Nominations”). DBM shall have no obligation to gather AEP’s Gas on any Day for which AEP does not have a Confirmed Nomination. AEP shall use commercially reasonable efforts to deliver Gas to the Points of Receipt at a reasonably uniform daily rate of flow.
Right to Balance. The Parties agree that during the Term DBM shall have the right to operate its System and to accept and deliver Gas hereunder in such a manner as to maintain balance between receipts and deliveries of Gas subject to this Agreement as closely as possible. DBM will have the right and option (i) to refuse to accept AEP’s Gas in excess of its Confirmed Nominations at a Point of Delivery, and (ii) to refuse to accept Gas delivery nominations at a Point of Delivery, if such nominations exceed the volume of AEP’s Gas available at such Points of Delivery.
ANNEX IV
EXHIBIT “D”
GAS GATHERING AGREEMENT
DATED JANUARY 1, 2018
BY AND BETWEEN
DELAWARE BASIN MIDSTREAM LLC
AND
ANADARKO E&P ONSHORE LLC
CURTAILMENT AND RELEASE PROCEDURES
From and after the Effective Date, DBM will provide Firm Service in the System for delivered Gas. DBM shall endeavor to regulate the flow of Gas in the quantities and at the times desired by DBM to prudently operate downstream facilities and/or to meet the fluctuating conditions of DBM’s markets. DBM may curtail service, in whole or in part, on all or any portion or portions of the System, at any time (i) for reasons of Force Majeure incurred by DBM, (ii) when, in DBM’s reasonable judgment, capacity obligations, capacity limitations, or operating conditions so require, (iii) following reasonable notice to AEP, when it is desirable or necessary to make modifications, repairs or operating changes to the System, (iv) due to AEP’s material breach of this Agreement, or (v) for any other reason expressly permitted herein (including, for example, AEP’s delivery of Non-Conforming Gas). In each case, DBM shall use reasonable efforts to identify and curtail only those producers whose Gas is delivered through the particular Point(s) of Receipt or portion(s) of the System, which are subject to curtailment. If DBM restricts the flow of AEP’s Gas delivered to the Points of Receipt for any reason, then, subject to DBM’s operational and capacity needs, DBM will endeavor to (y) curtail the gathering and treating of Gas which is entitled to Interruptible Service before curtailing the gathering and treating of Gas which is entitled to Dedication Service or Firm Service; and (z) curtail the gathering and treating of Gas which is entitled to Dedication Service before curtailing the gathering and treating of Gas which is entitled to Firm Service.
(a) DBM may, with no liability to AEP, interrupt gathering services as necessary to test, alter, modify, enlarge, or repair any facility or property comprising a part of, appurtenant to, or otherwise relating to the operation of the System. Except in cases of unforeseen emergency, DBM shall give advance notice to AEP of its intention to interrupt services, stating the anticipated timing, duration and magnitude of each interruption in such notice.
(b) Notwithstanding anything contained in this Agreement to the contrary, upon commercial operation of any Point(s) of Receipt, if DBM fails to take the full quantities of AEP’s Gas at such Point(s) of Receipt (excluding (i) those instances when (A) DBM rejects AEP’s Gas because it fails to meet the quality specifications set forth in Section 5.1, (B) AEP fails to deliver Gas at a pressure sufficient to enter DBM’s System, and (ii)
AEP’s material breach of this Agreement), the amount of Gas not received by DBM at such Point(s) of Receipt shall be temporarily released from this Agreement, and AEP shall have the right to dispose of such Gas in any manner it desires, provided that such release shall terminate, and all of AEP’s Gas will again be subject to this Agreement, at such time as DBM is able to receive such Gas on a consistent basis at such Point(s) of Receipt.
(c) If (i) DBM suspends, curtails, is unable or fails to take receipt of any volume of AEP’s Dedicated Gas at any Point(s) of Receipt due solely to a Force Majeure event declared by DBM (excluding Midstream FMs) not caused in part or in whole by AEP, (ii) such suspension, curtailment, or failure continues with respect to the same Force Majeure event declared by DBM for more than one hundred eighty (180) Days within a year; and (iii) no event has occurred or condition exists that constitutes a material breach or violation of, or a failure to comply with, this Agreement on the part of AEP which remains uncured, then AEP, at its option, may request permanent release of the affected Gas from the Dedication and the Transportation Interests insofar only with respect to such affected Gas by delivering written notice thereof to DBM (which shall be granted within five (5) business Days after DBM’s receipt of such notice). In connection with the release of Transportation Interests pursuant to this Exhibit “D”, DBM and AEP shall execute and deliver any additional documents and instruments and perform any additional acts that may become reasonably necessary or appropriate to effectuate the reversion of Transportation Interests with respect thereto. The then-current Minimum Volume Commitment shall be automatically and proportionally reduced contemporaneous with a permanent release of affected volumes pursuant to this item (c), and DBM shall determine the amount of reduction in a commercially reasonable manner based on historic production and production forecasts.
(d) AEP agrees that the Gas received by DBM under this Agreement will constitute part of the supply of Gas from all sources in DBM’s System, and DBM has the right to commingle the Gas delivered by AEP pursuant to this Agreement with other Gas, to deliver molecules different from those received from AEP and, subject to DBM’s obligations hereunder, to handle the molecules received from AEP and others in any manner.
(e) Notwithstanding anything in this Agreement to the contrary, AEP agrees that the reduction of the Minimum Volume Commitment (set forth in item (c) above on this Exhibit “D”), the temporary releases (set forth in item (b) above on this Exhibit “D”), and the permanent releases (set forth in item (c) above on this Exhibit “D”) shall be the sole and exclusive remedies available to AEP for DBM’s failure(s) for any reason to receive AEP’s Gas at a Point(s) of Receipt.
EXHIBIT 10.2
Execution Version
UNIT REDEMPTION AGREEMENT
This UNIT REDEMPTION AGREEMENT (this “Agreement”), dated as of January 16, 2026, is entered into by and among Western Gas Resources, Inc., a Delaware corporation (“WGR”), Anadarko E&P Onshore LLC, a Delaware limited liability company (“AE&P”), Western Midstream Partners, LP, a Delaware limited partnership (“WES”), and Delaware Basin Midstream LLC, a Delaware limited liability company (“DBM”). WGR, AE&P, WES and DBM are each referred to herein as a “Party” and collectively as the “Parties”. WGR and AE&P are referred to herein collectively as the “OXY Parties” and individually as an “OXY Party”. WES and DBM are referred to herein collectively as the “WES Parties” and individually as a “WES Party”. Capitalized terms used but not otherwise defined herein have the meaning set forth in that certain Second Amended and Restated Agreement of Limited Partnership of Western Midstream Partners, LP, dated as of December 31, 2019 (the “Partnership Agreement”).
RECITALS
WHEREAS, Occidental Petroleum Corporation, a Delaware corporation, owns, indirectly, 100% of the issued and outstanding common stock of Anadarko Petroleum Corporation, a Delaware corporation, which owns, directly or indirectly, 100% of the issued and outstanding common stock of WGR and 100% of the issued and outstanding membership interests in AE&P;
WHEREAS, WGR owns 156,219,520 common units representing limited partner interests in WES (“Common Units”);
WHEREAS, WES owns, indirectly, 100% of the issued and outstanding membership interests in DBM;
WHEREAS, AE&P owns working interests in, and operates, certain oil and natural gas wells located in Loving, Winkler, Ward, Reeves and Culberson Counties located in the Delaware Basin in the State of Texas;
WHEREAS, DBM owns and operates a natural gas gathering system and natural gas processing facilities located in the Delaware Basin in the State of Texas;
WHEREAS, DBM and AE&P are parties to that certain Gas Gathering Agreement, dated effective as of January 1, 2018, as amended (the “Gas Gathering Agreement”);
WHEREAS, DBM and AE&P are parties to that certain Gas Processing Contract, dated effective as of January 1, 2018, as amended (the “Gas Processing Contract”);
WHEREAS, AE&P and Permian Delaware Enterprises Holdings LLC, a wholly owned subsidiary of ConocoPhillips (“PDEH”), are parties to one or more joint operating agreements with respect to certain natural gas wells operated by AE&P in the Delaware Basin;
WHEREAS, DBM and AE&P now desire to amend, concurrently with the execution of this Agreement, each of the Gas Gathering Agreement and the Gas Processing Contract and enter into (i) the Third Amendment to the Gas Gathering Agreement (the “GGA Amendment”), and (ii) the Eleventh Amendment to the Gas Processing Contract (the “GPC Amendment”, and together with
the GGA Amendment, the “AE&P Midstream Agreements”) to, among other things, (a) in the case of the GGA Amendment, provide DBM with a minimum volume commitment of dedicated gas from AE&P, reduce the gathering fee charged by DBM to AE&P, and provide for a fixed-fee (instead of cost-of-service) rate structure, and (b) in the case of the GPC Amendment, add provisions related to DBM entering into a separate Gas Gathering, Processing and Treating Agreement directly with PDEH (the “PDEH Midstream Agreement”);
WHEREAS, the Parties have agreed that, in connection with the entry into the AE&P Midstream Agreements and the PDEH Midstream Agreement, WGR will transfer and surrender an aggregate of 15,307,402 Common Units, with an agreed upon value of $610.0 million as of the date of this Agreement (the “Subject Units”), to WES for redemption and cancellation at the Closing on the terms set forth in this Agreement;
WHEREAS, each of the Board of Directors of WGR and the sole member of AE&P, by unanimous written consent, (i) determined that this Agreement and the transactions contemplated hereby are in the best interests of WGR and AE&P, as applicable; and (ii) approved this Agreement and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; and
WHEREAS, the special committee (the “Special Committee”) of the Board of Directors (the “WES GP Board”) of Western Midstream Holdings, LLC, a Delaware limited liability company and the general partner of WES (the “General Partner”), has by unanimous vote (i) determined that this Agreement and the transactions contemplated hereby are in the best interests of WES and DBM; and (ii) approved this Agreement and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, with such approval constituting “Special Approval” as such term is defined in the Partnership Agreement.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements set forth in this Agreement, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions. As used in this Agreement, the following terms shall have the respective meanings set forth below:
“AE&P” has the meaning set forth in the preamble.
“AE&P Midstream Agreements” has the meaning set forth in the recitals.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, Controls, is Controlled by or is under common Control with, such specified Person through one or more intermediaries or otherwise; provided, however, that (a) with respect to the General Partner, the term “Affiliate” shall not include any Group Member, and (b) with respect to WGR, the term “Affiliate” shall not include the General Partner or any member of the Partnership Group.
“Agreement” has the meaning set forth in the preamble.
“Business Day” means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America or the State of Texas shall not be regarded as a Business Day.
“Closing” means the closing of the transactions contemplated by this Agreement.
“Closing Date” has the meaning set forth in Section 2.04.
“Code” means the Internal Revenue Code of 1986, as amended.
“Common Units” has the meaning set forth in the recitals.
“Control” means, where used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” have correlative meanings.
“DBM” has the meaning set forth in the preamble.
“Enforceability Exceptions” has the meaning set forth in Section 3.03.
“Gas Gathering Agreement” has the meaning set forth in the recitals.
“Gas Processing Contract” has the meaning set forth in the recitals.
“General Partner” has the meaning set forth in the recitals.
“GGA Amendment” has the meaning set forth in the recitals.
“Governmental Authority” means any federal, state, local, foreign, multi-national, supra-national, national, regional or other governmental agency, authority, administrative agency, regulatory body, commission, board, bureau, agency, officer, official, instrumentality, court or arbitral tribunal having governmental or quasi-governmental powers or any other instrumentality or political subdivision thereof; provided, however, that such term shall not include any entity or organization that is engaged in industrial or commercial operations and is wholly or partly owned by any government, to the extent that such entity or organization is acting in a commercial capacity.
“GPC Amendment” has the meaning set forth in the recitals.
“Group Member” has the meaning assigned to such term in the Partnership Agreement.
“Group Member Agreement” has the meaning assigned to such term in the Partnership Agreement.
“Intended Tax Treatment” has the meaning set forth in Section 5.02.
“Laws” has the meaning set forth in Section 3.04(c).
“Liens” means any security interest, lien, deed of trust, mortgage, pledge, charge, claim, restriction on transfer, easement, encumbrance or other similar interest or adverse right.
“Midstream Agreements” means the AE&P Midstream Agreements and the PDEH Midstream Agreement, collectively.
“OXY Parties” or “Oxy Party” each has the meaning set forth in the preamble.
“Parties” has the meaning set forth in the preamble.
“Partnership Agreement” has the meaning set forth in the preamble.
“Partnership Group” has the meaning assigned to such term in the Partnership Agreement.
“PDEH” has the meaning set forth in the recitals.
“PDEH Midstream Agreement” has the meaning set forth in the recitals.
“Person” means an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, Governmental Authority or other entity.
“Special Committee” has the meaning set forth in the recitals.
“Subject Units” has the meaning set forth in the recitals.
“Tax” or “Taxes” means any federal, state, local or foreign income tax, ad valorem tax, excise tax, sales tax, use tax, franchise tax, real or personal property tax, transfer tax, gross receipts tax or other tax, assessment, duty, fee, levy or other governmental charge, together with and including, any and all interest, fines, penalties, assessments, and additions to Tax resulting from, relating to, or incurred in connection with any of those or any contest or dispute thereof.
“Transfer Agent” means Computershare Limited.
“WES” has the meaning set forth in the preamble.
“WES GP Board” has the meaning set forth in the recitals.
“WES Parties” or “WES Party” each has the meaning set forth in the preamble.
“WGR” has the meaning set forth in the preamble.
Section 1.02. Construction and Interpretation. Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (b) references to Articles and Sections refer to Articles and Sections of this Agreement; (c) the terms “include,” “includes,” “including” or words of like import shall be deemed to be followed by the words “without limitation”; (d) the terms “hereof,” “herein” or “hereunder” refer to this Agreement as a whole and not to any particular provision of this Agreement; and (e) except as otherwise
specifically provided in this Agreement, any agreement, instrument or statute defined or referred to herein means such agreement, instrument or statute as from time to time amended, supplemented or modified, including (A) in the case of agreements or instruments, by waiver or consent, and, in the case of statutes, by succession of comparable successor statues, and (B) all attachments thereto and instruments incorporated therein. The headings contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement.
ARTICLE II
TRANSACTION
Section 2.01. Execution Deliveries by the OXY Parties to the WES Parties. Simultaneously with the execution of this Agreement, the OXY Parties shall deliver, or caused to be delivered, to the WES Parties a counterpart to each of the GGA Amendment and the GPC Amendment, in each case duly executed by AE&P.
Section 2.02. Execution Deliveries by the WES Parties to the OXY Parties. Simultaneously with the execution of this Agreement, the WES Parties shall deliver, or cause to be delivered, to the OXY Parties (a) a counterpart to each of the GGA Amendment and the GPC Amendment, in each case duly executed by DBM, and (b) a certificate certifying that DBM has entered into the PDEH Midstream Agreement, signed by a duly authorized officer of DBM.
Section 2.03. Transfer and Surrender of Subject Units to WES as consideration for DBM Entering Into the Midstream Agreements. As consideration for DBM entering into the Midstream Agreements, at the Closing, WGR agrees to transfer and surrender the Subject Units to WES for redemption, and WES agrees to redeem and cancel the Subject Units, subject to the terms and conditions of this Agreement.
Section 2.04. Closing. The Closing shall occur on February 3, 2026 or such other date to which the Parties agree (such date, the “Closing Date”). At the Closing, (a) WGR shall transfer and surrender the Subject Units to WES for redemption; and (b) WES shall redeem and cancel the Subject Units.
Section 2.05. Closing Deliveries by the OXY Parties to the WES Parties. At Closing, the OXY Parties shall deliver, or cause to be delivered, to the WES Parties:
(a) the Subject Units, by executing an instruction letter to the Transfer Agent regarding the transfer of the Subject Units from WGR to WES; and
(b) each other certificate, document or instrument specified in this Agreement or as may be reasonably requested by the WES Parties to carry out the intent and purposes of this Agreement.
Section 2.06. Closing Deliveries by the WES Parties to the OXY Parties. At Closing, the WES Parties shall deliver, or cause to be delivered, to the OXY Parties:
(a) a duly executed copy of an instruction letter to the Transfer Agent regarding the transfer of the Subject Units from WGR to WES; and
(b) each other certificate, document or instrument specified in this Agreement or as may be reasonably requested by the OXY Parties to carry out the intent and purposes of this Agreement.
Section 2.07. Conditions to Closing of the OXY Parties. The OXY Parties’ obligation to consummate the transactions contemplated by this Agreement at the Closing is subject to the fulfillment or (to the extent permitted by applicable Laws) written waiver by the WES Parties, on or prior to the Closing Date, of each of the following conditions:
(a) Representations and Warranties Correct. The representations and warranties made by the WES Parties in ARTICLE IV hereof shall be true and correct in all material respects when made and as of the Closing. The OXY Parties shall have received from the WES Parties a certificate to the effect set forth in the preceding sentence, signed by a duly authorized officer of each WES Party.
(b) Legality. There shall not be in force any order, judgment or injunction by or with any Governmental Authority enjoining or prohibiting the consummation of the transactions contemplated by this Agreement, including the transfer, surrender and cancellation of the Subject Units hereunder, and no such order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, shall have been instituted or threatened in writing seeking to impose any such restraint upon, or prohibition of, the consummation of the transactions contemplated by this Agreement, including the transfer, surrender and cancelation of the Subject Units hereunder.
Section 2.08. Conditions to Closing of the WES Parties. The WES Parties’ obligation to consummate the transactions contemplated by this Agreement at the Closing is subject to the fulfillment or (to the extent permitted by applicable Laws) written waiver by the WES Parties, on or prior to the Closing Date, of each of the following conditions:
(a) Representations and Warranties Correct. The representations and warranties made by the OXY Parties in ARTICLE III hereof shall be true and correct in all material respects when made and as of the Closing. The WES Parties shall have received from the OXY Parties a certificate to the effect set forth in the preceding sentence, signed by a duly authorized officer of each OXY Party.
(b) Legality. There shall not be in force any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any Governmental Authority, statute, rule or regulation enjoining or prohibiting the consummation of the transactions contemplated by this Agreement, including the transfer, surrender and cancellation of the Subject Units hereunder, and no such order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, shall have been instituted or threatened in writing seeking to impose any such restraint upon, or prohibition of, the consummation of the transactions contemplated by this Agreement, including the transfer, surrender and cancelation of the Subject Units hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE OXY PARTIES
The OXY Parties, severally and not jointly, hereby represent and warrant to the WES Parties that (other than the representation and warranty set forth in Section 3.01, which shall be made solely by WGR):
Section 3.01. Subject Units. As of the date hereof and immediately prior to the Closing, WGR is the record and beneficial owner of the Subject Units, which are held by WGR free and clear of all Liens except for restrictions on transfer provided for in the Partnership Agreement and pursuant to applicable securities Laws. Neither WGR nor any of its Affiliates, nor any Person on behalf of WGR or any of its Affiliates, has taken, directly or indirectly, any action designed to cause or that would result in, or that constitutes or that might reasonably be expected to constitute, the stabilization or manipulation of the market price of the Common Units.
Section 3.02. Organization and Existence. WGR is a corporation, duly incorporated, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in each jurisdiction where the nature of its business or the ownership of its properties requires it to be qualified, except to the extent that the failure to be so qualified would not be reasonably likely to have, individually or in the aggregate, a material adverse effect on WGR and would not prevent, materially delay or materially impede the performance by WGR of its obligations under this Agreement. AE&P is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in each jurisdiction where the nature of its business or the ownership of its properties requires it to be qualified, except to the extent that the failure to be so qualified would not be reasonably likely to have, individually or in the aggregate, a material adverse effect on AE&P and would not prevent, materially delay or materially impede the performance by AE&P of its obligations under this Agreement. Each of WGR and AE&P has the requisite power and authority to carry on its business as it is now being conducted and to own all of its properties and assets, except as would not be reasonably likely to have, individually or in the aggregate, a material adverse effect on WGR or AE&P, as applicable, and would not prevent, materially delay or materially impede the performance by WGR or AE&P of its obligations under this Agreement.
Section 3.03. Power and Authority. Each of the OXY Parties has the power and authority to enter into this Agreement and each agreement and instrument to be executed and delivered by it pursuant hereto and to perform all of its obligations and consummate the transactions contemplated hereby and thereby. Each of the Oxy Parties has taken all necessary and appropriate actions to authorize, execute and deliver this Agreement and each agreement and instrument to be executed and delivered by it pursuant hereto and to consummate the transactions contemplated hereby and thereby. This Agreement has been, and each agreement and instrument to be executed and delivered by any Oxy Party pursuant hereto will be when so executed and delivered, duly and validly executed and delivered by each OXY Party thereto and this Agreement is, and each agreement and instrument to be executed and delivered by any OXY Party pursuant hereto will be when so executed and delivered, a valid and binding obligation of such OXY Party enforceable in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity (collectively, the “Enforceability Exceptions”).
Section 3.04. No Violations. The execution and delivery of this Agreement or any other agreement or instrument to be executed and delivered pursuant hereto by either OXY Party does not, or when executed will not, and the consummation of the transactions contemplated hereby or thereby and the performance by either OXY Party of the obligations that it is obligated to perform hereunder or thereunder do not:
(a) conflict with or result in a breach of any of the provisions of the governing documents of either OXY Party;
(b) create any Lien on any Subject Units under any indenture, mortgage, lien, agreement, contract, commitment or instrument to which either OXY Party is a party or its properties and assets are bound;
(c) conflict with any municipal, state or federal ordinance, law (including common law), rule, regulation, judgment, order, writ, injunction, or decree (collectively, “Laws”) applicable to either OXY Party; or
(d) conflict with, result in a breach of, constitute a default under (whether with notice or the lapse of time or both) or accelerate or permit the acceleration of the performance required by, or require any consent, authorization or approval under, any indenture, mortgage, lien or agreement, contract, commitment or instrument to which either OXY Party is a party or otherwise bound or to which either OXY Party’s properties and assets are subject;
except, in the case of clauses (b), (c) and (d), as would not be reasonably likely to have, individually or in the aggregate, a material adverse effect on the OXY Parties and would not prevent, materially delay or materially impede the performance by either OXY Party of its obligations under this Agreement.
Section 3.05. No Brokers. No action has been taken by or on behalf of the OXY Parties that would give rise to any valid claim against the WES Parties or their Affiliates for a brokerage commission, finder’s fee or other like payment with respect to the matters contemplated hereby.
Section 3.06. Disclaimer of Warranties. Except as expressly set forth in this ARTICLE III or in any agreement or instrument to be executed by either of the OXY Parties in connection with the transactions contemplated hereby, the OXY Parties make no representations or warranties whatsoever and disclaim all liability and responsibility for any other representation, warranty, statement or information made or communicated (orally or in writing), including, without limitation, any opinion, information or advice that may have been provided by any officer, shareholder, member, partner, director, employee, agent or consultant of either OXY Party or any of its Affiliates.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE WES PARTIES
The WES Parties, severally and not jointly, hereby represent and warrant to the OXY Parties that:
Section 4.01. Organization and Existence. WES is a limited partnership, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in each
jurisdiction where the nature of its business or the ownership of its properties requires it to be qualified, except to the extent that the failure to be so qualified would not be reasonably likely to have, individually or in the aggregate, a material adverse effect and would not prevent, materially delay or materially impede the performance by WES of its obligations under this Agreement. DBM is a limited liability company, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in each jurisdiction where the nature of its business or the ownership of its properties requires it to be qualified, except to the extent that the failure to be so qualified would not be reasonably likely to have, individually or in the aggregate, a material adverse effect and would not prevent, materially delay or materially impede the performance by DBM of its obligations under this Agreement. Each WES Party has the requisite power and authority to carry on its business as it is now being conducted and to own all of its properties and assets, except as would not be reasonably likely to have, individually or in the aggregate, a material adverse effect and would not prevent, materially delay or materially impede the performance by either WES Party of its obligations under this Agreement.
Section 4.02. Power and Authority. Each of the WES Parties has the limited partnership or limited liability company, as applicable, power and authority to enter into this Agreement and each agreement and instrument to be executed and delivered by it pursuant hereto, and to perform all of its obligations and consummate the transactions contemplated hereby and thereby. Each of the WES Parties has taken all necessary and appropriate limited partnership or limited liability company, as applicable, action to authorize, execute and deliver this Agreement and each agreement and instrument to be executed and delivered by it pursuant hereto and to consummate the transactions contemplated hereby and thereby. This Agreement has been, and each agreement and instrument to be executed and delivered by either of the WES Parties pursuant hereto will be when so executed and delivered, duly and validly executed and delivered by such WES Party and this Agreement is, and each agreement and instrument to be executed and delivered by either WES Party pursuant hereto will be when so executed and delivered, a valid and binding obligation of such WES Party enforceable in accordance with its terms, except as such enforcement may be limited by the Enforceability Exceptions.
Section 4.03. No Violations. The execution and delivery of this Agreement or any other agreement or instrument to be executed and delivered pursuant hereto by either WES Party does not, or when executed will not, and the consummation of the transactions contemplated hereby or thereby and the performance by either WES Party of the obligations that it is obligated to perform hereunder or thereunder do not, and at the Closing will not:
(a) conflict with or result in a breach of any of the provisions of the Partnership Agreement or any other Group Member Agreement of the Partnership Group;
(b) create any Lien on any property or assets of any Group Member under any indenture, mortgage, lien, agreement, contract, commitment or instrument to which any Group Member is a party or their respective properties and assets are bound;
(c) conflict with any Laws applicable to any Group Member; or
(d) conflict with, result in a breach of, constitute a default under (whether with notice or the lapse of time or both) or accelerate or permit the acceleration of the performance
required by, or require any consent, authorization or approval under, any indenture, mortgage, lien or agreement, contract, commitment or instrument to which any Group Member is a party or otherwise bound or to which any of their respective properties and assets are subject;
except, in the case of clauses (b), (c) and (d), as would not be reasonably likely to have, individually or in the aggregate, a material adverse effect on the Partnership Group, taken as a whole, and would not prevent, materially delay or materially impede the performance by either of the WES Parties of its obligations under this Agreement.
Section 4.04. No Brokers. No action has been taken by or on behalf of the WES Parties or the Special Committee that would give rise to any valid claim against the OXY Parties or their Affiliates for a brokerage commission, finder’s fee or other like payment with respect to the matters contemplated hereby.
Section 4.05. Disclaimer of Warranties. Except as expressly set forth in this ARTICLE IV or in any agreement or instrument to be executed by either of the WES Parties in connection with the transactions contemplated hereby, the WES Parties make no representations or warranties whatsoever and disclaim all liability and responsibility for any other representation, warranty, statement or information made or communicated (orally or in writing), including, without limitation, any opinion, information or advice that may have been provided by any officer, shareholder, member, partner, director, employee, agent or consultant of either WES Party or any of its Affiliates.
ARTICLE V
COVENANTS
Section 5.01. Further Assurances. In case at any time after the Closing any further action is necessary to carry out the transactions contemplated hereby or the purposes of this Agreement, each of the Parties will take such further action as the other Party may reasonably request, all at the sole cost and expense of the requesting Party.
Section 5.02. Tax Treatment. The Parties intend that WGR’s transfer and surrender of the Subject Units to WES for redemption and cancellation in exchange for the consideration described in Section 2.03 will be treated for U.S. federal income tax purposes as a deemed distribution by WES to WGR of an amount of cash equal to the fair market value of the Subject Units transferred and surrendered at the Closing pursuant to Section 731 of the Code and Treasury Regulations Section 1.731-1(a) (the “Intended Tax Treatment”). Each Party shall, and shall cause its controlled Affiliates to, file all Tax returns and other reports consistent with the Intended Tax Treatment, unless required by Law to do otherwise.
ARTICLE VI
MISCELLANEOUS
Section 6.01. Binding Effect; Assignment. This Agreement shall be binding upon and shall inure to the benefit of the respective Parties and their permitted successors and assigns. No Party may assign or delegate its rights or obligations under this Agreement without the prior written consent of the other Parties, which consent may be withheld for any reason. Any purported assignment in violation of the foregoing shall be null and void.
Section 6.02. Entire Understanding; Headings and Amendments.
(a) This Agreement and all documents to be executed and delivered pursuant hereto constitute the entire understanding between the Parties with respect to the transactions contemplated hereby, and supersede all previous agreements of any sort with respect thereto. Article headings are included only for purposes of convenience and shall not be construed as a part of this Agreement or in any way affecting the meaning of the provisions of this Agreement or its interpretation.
(b) This Agreement may not be amended or modified orally and no amendment or modification shall be valid unless in writing and signed by the Parties; provided, however, no such amendment or modification shall be effective unless and until it has been approved by the Special Committee.
Section 6.03. Rights of Third Parties. This Agreement shall not be construed to create any express or implied rights in any persons other than the Parties.
Section 6.04. Notices. All notices shall be in writing and shall be delivered or sent by first-class mail, postage prepaid, overnight courier or by means of electronic transmission. Any notice sent shall be addressed as follows:
(a) If to WGR or AE&P:
Occidental Petroleum Corporation
5 Greenway Plaza, Suite 110
Houston, Texas 77046
Attention: Secretary of Western Gas Resources, Inc.
With a copy (which shall not constitute notice) to:
Latham & Watkins LLP
811 Main Street, Suite 3700
Houston, Texas 77002
Attention: John M. Greer
Email: [email protected] (b) If to WES or DBM:
Western Midstream Partners, LP
9950 Woodloch Forest Drive
The Woodlands, TX 77380
Attention: General Counsel
With copies (which shall not constitute notice) to:
Western Midstream Partners, LP
9950 Woodloch Forest Drive
The Woodlands, TX 77380
Attention: Chairman, Special Committee
Section 6.05. Choice of Law; Submission to Jurisdiction. This Agreement, and any claim or dispute arising hereunder or relating hereto, shall be subject to and governed by the laws of the State of Delaware, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. EACH OF THE PARTIES AGREES THAT THIS AGREEMENT INVOLVES AT LEAST U.S. $100,000.00 AND THAT THIS AGREEMENT HAS BEEN ENTERED INTO IN EXPRESS RELIANCE UPON 6 Del. C. § 2708. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY AGREES (i) TO BE SUBJECT TO THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND OF THE FEDERAL COURTS SITTING IN THE STATE OF DELAWARE, AND (ii) TO THE EXTENT SUCH PARTY IS NOT OTHERWISE SUBJECT TO SERVICE OF PROCESS IN THE STATE OF DELAWARE, TO APPOINT AND MAINTAIN AN AGENT IN THE STATE OF DELAWARE AS SUCH PARTY’S AGENT FOR ACCEPTANCE OF LEGAL PROCESS AND TO NOTIFY THE OTHER PARTY OF THE NAME AND ADDRESS OF SUCH AGENT. EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
Section 6.06. Time of the Essence. Time is of the essence in the performance of this Agreement in all respects. If the date specified herein for giving any notice or taking any action is not a Business Day (or if the period during which any notice is required to be given or any action taken expires on a date which is not a Business Day), then the date for giving such notice or taking such action (and the expiration date of such period during which notice is required to be given or action taken) shall be the next day that is a Business Day.
Section 6.07. Damage Limitations. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, NO PARTY HERETO SHALL BE ENTITLED TO RECOVER FROM ANY OTHER PARTY HERETO ANY AMOUNT IN RESPECT OF EXEMPLARY, PUNITIVE, REMOTE OR SPECULATIVE DAMAGES, EXCEPT, IN EACH CASE, TO THE EXTENT SUCH DAMAGES ARE FINALLY AND JUDICIALLY DETERMINED AND PAID TO AN UNAFFILIATED THIRD PARTY. THE FOREGOING LIMITATIONS ON LIABILITY SHALL APPLY EVEN IN THE EVENT OF THE SOLE, JOINT, AND/OR CONCURRENT, ACTIVE OR PASSIVE NEGLIGENCE, STRICT LIABILITY OR FAULT OF THE PARTY WHOSE LIABILITY IS LIMITED (EXCLUDING GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT).
Section 6.08. Waiver and Severability.
(a) No waiver, either express or implied, by any Party hereto of any term or condition of this Agreement or right to enforcement thereof shall be effective, unless such waiver is in writing and signed by each Party. Any such waiver shall constitute a waiver only with respect to
the specific matter described in such writing and shall in no way adversely affect the rights of the Party granting such waiver in any other respect or at any other time. The failure of any Party to exercise any rights or privileges under this Agreement shall not be construed as a waiver of any such rights or privileges under this Agreement. The rights and remedies provided in this Agreement are cumulative and, except as otherwise expressly provided in this Agreement, none is exclusive of any other or of any rights or remedies that any Party may hereunder or otherwise have at law or in equity.
(b) Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.
Section 6.09. Costs and Expenses. Except as otherwise specifically provided in this Agreement, each Party will bear its own costs and expenses in connection with this Agreement and the transactions contemplated hereby.
Section 6.10. Counterpart Execution. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first written above.
| | | | | | | | |
| WESTERN GAS RESOURCES, INC. |
| |
| By: | /s/ Jennifer L. Buchanan |
| Name: | Jennifer L. Buchanan |
| Title: | Vice President |
| | | | | | | | |
| ANADARKO E&P ONSHORE LLC |
| |
| By: | /s/ Jennifer L. Buchanan |
| Name: | Jennifer L. Buchanan |
| Title: | Vice President |
| | | | | | | | |
| WESTERN MIDSTREAM PARTNERS, LP |
| By: Western Midstream Holdings, LLC, its general partner |
| | |
| By: | /s/ Oscar Brown |
| Name: | Oscar Brown |
| Title: | President and Chief Executive Officer |
| | | | | | | | |
| DELAWARE BASIN MIDSTREAM LLC |
| | |
| By: | /s/ Oscar Brown |
| Name: | Oscar Brown |
| Title: | President and Chief Executive Officer |
WESTERN MIDSTREAM ANNOUNCES DELAWARE BASIN NATURAL-GAS CONTRACT AMENDMENTS IN EXCHANGE FOR COMMON UNITS
AND ANNOUNCES INTERVIEW WITH CEO, OSCAR BROWN, AND CFO, KRISTEN SHULTS, DISCUSSING THESE TRANSACTIONS
HOUSTON—(PR NEWSWIRE)—January 20, 2026 – Western Midstream Partners, LP (NYSE: WES) (“WES”) announced today that it has renegotiated natural-gas gathering and processing contracts in the Delaware Basin with a subsidiary of Occidental Petroleum Corporation (“Occidental”), replacing the legacy cost-of-service structure of the gathering contract with a simplified, fixed-fee structure, which will continue to be supported by an acreage dedication. Additionally, WES entered into new agreements with ConocoPhillips to deliver natural-gas volumes to WES under a new dedication arrangement for existing volumes on WES’s system. The ConocoPhillips agreement together with the Occidental amendments reset Delaware Basin natural-gas fees, in exchange for WES common units from Occidental, enhancing drilling economics and encouraging the development of acreage supported by WES’s natural-gas, crude-oil, and produced-water systems. The Occidental amendments and unit exchange were reviewed and approved by WES’s Special Committee, consisting entirely of independent members of the Board of Directors of WES’s general partner, as well as, and based upon the recommendation of the Special Committee, by the full Board of Directors.
TRANSACTION HIGHLIGHTS
•WES and Occidental have amended their existing Delaware Basin natural-gas gathering contract, previously the most significant cost-of-service agreement between the parties, effectuating an earlier transition to a fixed-fee structure than previously provided for under that agreement, aligning interests and further positioning WES as a standalone midstream enterprise.
•Following this amendment, approximately 9-percent of WES’s total revenue will remain subject to cost-of-service rates, with approximately 1-percent of total revenue subject to cost-of-service rates expiring in the late 2020s. The remaining cost-of-service rate provisions extend into the mid-to-late 2030s and include provisions to convert to fixed-fee structures at that time. All
significant fixed-fee contracts with Occidental, including the contracts being amended, are effective through the mid-to-late 2030s.
•The amended Delaware Basin natural-gas gathering contract with Occidental provides volumetric protection via substantial minimum volume commitments (“MVCs”) through the original cost-of-service term, and from that point forward, the existing acreage dedication and fixed-fee structure continues through the duration of the contract. Additionally, the Delaware Basin natural-gas processing contract continues to provide volumetric protection via MVCs through 2035. The amendment to the Occidental Delaware Basin natural-gas gathering agreement includes a fixed-fee structure that will further enhance the economics and attractiveness of these top-tier properties in Occidental’s portfolio.
•Additionally, WES has entered into a new natural-gas gathering and processing agreement with ConocoPhillips related to a portion of ConocoPhillips’ Delaware Basin natural-gas production, further diversifying WES’s revenues by reducing total related-party revenue by more than 10-percent. The contract with ConocoPhillips is also fixed-fee, includes an acreage dedication, and has a tenor through the early 2030s.
•In consideration for these transactions, Occidental will transfer to WES 15.3 million WES common units currently owned by Occidental, representing approximately $610 million of limited partnership interests. This transfer was structured on terms intended to represent a value-neutral exchange for the economic concessions reflected in the agreements and corresponding decrease in WES’s operating cash flow over time. As a result of the redemption and cancellation of common units, Occidental’s ownership of WES will decrease from approximately 42-percent to approximately 40-percent(2).
•Over the remaining term of the amended Occidental Delaware Basin natural-gas gathering agreement, WES expects that the cumulative reduction in operating cash flows from these transactions will largely be offset by the cumulative distribution savings in financing cash flows as the result of the common unit redemption.
•The value of the common units transferred will be added to the existing contract liability associated with the Occidental Delaware Basin natural-gas gathering agreement of approximately $560 million. The aggregate contract liability balance will be recognized to revenue, averaging approximately $165 million a year through 2032, the original term of the
agreement. Of the $165 million, approximately $90 million relates to the reset of Delaware Basin natural-gas gathering fees executed in exchange for common units, while $75 million relates to previously established fixed-fee provisions under the Occidental Delaware Basin natural-gas gathering agreement.
•Based upon our most recent forecasts and including recognition of revenue associated with the contract liability, the conversion to a fixed-fee structure is not expected to reduce Adjusted EBITDA(1) through 2027; after that time and until 2032, the conversion will have a minimal impact to Adjusted EBITDA.
•Beginning in 2026, operating cash flows will reflect only the new fixed-fee rates, but revenues and Adjusted EBITDA(1) will also include the recognition of revenue associated with the contract liability through 2032. Beginning in 2033, both Adjusted EBITDA(1) and operating cash flows associated with the natural-gas gathering contracts will include only the fixed-fee rates.
•Beginning in 2026 and thereafter, ongoing distribution savings from the common unit redemption, together with cost reduction initiatives which were launched in 2025 and are partially reflected in WES’s 2025 results, are expected to fully offset the reduction in Free Cash Flow(1) after distributions resulting from these transactions and the transition to a fixed-fee structure.
•Taking into account WES’s acquisition of Aris Water Solutions, and anticipated 2026 growth-oriented capital program of approximately $1.1 billion, WES still expects to maintain net leverage at or near 3.0x Adjusted EBITDA(1) in 2026.
•The new contract terms with Occidental will be effective as of January 1, 2026, the new contract terms with ConocoPhillips will be effective as of February 1, 2026, and the common units will be redeemed on February 3, 2026.
MANAGEMENT COMMENTARY
Oscar K. Brown, President and Chief Executive Officer of WES commented, “These changes represent a significant step in WES’s continuing evolution after becoming a standalone midstream enterprise. The cost-of-service model was instrumental in safeguarding cash flows during our substantial investment in building WES’s Delaware Basin gathering system. As the basin has matured, transitioning to a simplified, fixed-fee structure is both logical and timely. This evolution strengthens alignment with
our largest producer, further diversifies our customer base, enhances transparency, and reinforces our ability to deliver enduring value for our stakeholders.”
“The revised natural-gas gathering terms in exchange for common units is a highly strategic transaction for WES, realigning our equity capital structure to accommodate changes that we believe provide long-term strategic benefits to WES. Additionally, redeeming the units received from Occidental enhances Adjusted EBITDA per unit, creating value for all unitholders, while still maintaining the public float. Even as we undertake a robust capital program in 2026 and integrate Aris, we expect to maintain net leverage at or near 3.0x, demonstrating our commitment to disciplined capital allocation and financial flexibility.”
“As the gathering contract amendment addresses our most material cost-of-service rate structure, we believe it provides investors with greater clarity and confidence in WES’s long-term earnings potential. Our diversified asset base and strong balance sheet positions us to continue capturing new growth opportunities and delivering sustainable, industry-leading returns for our stakeholders.”
FIRESIDE CHAT
Concurrent with this release, WES has made available on its website a fireside chat with Mr. Brown and Kristen Shults, Senior Vice President and Chief Financial Officer, discussing these transactions.
ABOUT WESTERN MIDSTREAM
Western Midstream Partners, LP (“WES”) is a master limited partnership formed to develop, acquire, own, and operate midstream assets. With midstream assets located in Texas, New Mexico, Colorado, Utah, and Wyoming, WES is engaged in the business of gathering, compressing, treating, processing, and transporting natural gas; gathering, stabilizing, and transporting condensate, natural-gas liquids, and crude oil; and gathering, transporting, recycling, treating, and disposing of produced water for its customers. In its capacity as a natural-gas processor, WES also buys and sells residue, natural-gas liquids, and condensate on behalf of itself and its customers under certain gas processing contracts. A substantial majority of WES’s cash flows are protected from direct exposure to commodity price volatility through fee-based contracts.
For more information about WES, please visit www.westernmidstream.com.
FORWARD-LOOKING STATEMENTS AND CAUTIONARY STATEMENTS
This news release contains forward-looking statements. WES’s management believes that its expectations are based on reasonable assumptions. No assurance, however, can be given that such expectations will prove correct. A number of factors could cause actual results to differ materially from the projections, anticipated results, or other expectations expressed in this news release. These factors include our ability to meet financial guidance or distribution expectations; our ability to safely and efficiently operate WES’s assets; the supply of, demand for, and price of oil, natural gas, NGLs, and related products or services; our ability to meet projected in-service dates for capital-growth projects; construction costs or capital expenditures exceeding estimated or budgeted costs or expenditures; and the other factors described in the “Risk Factors” section of WES’s most-recent Form 10-K and Form 10-Q filed with the Securities and Exchange Commission and other public filings and press releases. WES undertakes no obligation to publicly update or revise any forward-looking statements.
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(1)This release discusses forward-looking non-GAAP measures such as Adjusted EBITDA and Free Cash Flow. A reconciliation of Adjusted EBITDA to net cash provided by operating activities and net income (loss), and a reconciliation of Free Cash Flow to net cash provided by operating activities, is not provided because the items necessary to estimate such amounts are not reasonably estimable at this time. These items, net of tax, may include, but are not limited to, impairments of assets and other charges, divestiture costs, acquisition costs, or changes in accounting principles. All of these items could significantly impact such financial measures. At this time, WES is not able to estimate the aggregate impact, if any, of these items on future period reported earnings. Accordingly, WES is not able to provide a corresponding forward-looking GAAP equivalent for the Adjusted EBITDA or Free Cash Flow measures described herein.
(2)As of January 15, 2026, there were 417,219,582 WES common and GP units outstanding of which Occidental owned 174,742,219, including 165,681,578 WES common units and 9,060,641 GP units, for total ownership of 42%. After the unit redemption described above, Occidental will own 150,374,175 WES common units and 9,060,641 WES GP units, resulting in total WES ownership of 40%.
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Source: Western Midstream Partners, LP
WESTERN MIDSTREAM CONTACTS
Daniel Jenkins
Director, Investor Relations
866-512-3523
Rhianna Disch
Manager, Investor Relations
866-512-3523
