Exhibit 1.1
EXECUTION COPY
ONEOK PARTNERS, L.P.
Underwriting Agreement
September 20, 2006
Citigroup Global Markets Inc.
SunTrust Capital Markets, Inc.
As Representatives of the Underwriters named in Schedule II
hereto
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
ONEOK Partners, L.P., a limited partnership organized under the laws of the state of Delaware (the “Partnership”), proposes to issue and sell to
the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as representatives, the principal amount of its senior notes identified in Schedule I hereto (the
“Notes”). The Partnership’s obligations under the Notes and the Indenture (as defined herein) will be fully and unconditionally guaranteed (the “Guarantee”), on a senior unsecured basis, by ONEOK Partners Intermediate
Limited Partnership, a limited partnership organized under the laws of the state of Delaware (the “Guarantor” and together with the Partnership, the “Issuers”). The Notes and the Guarantee are referred to herein as the
“Securities.” The Securities will be issued under an indenture, dated and effective as of the Closing Date (as defined herein) (the “Base Indenture”), among the Partnership and Wells Fargo Bank, N.A., as trustee (the
“Trustee”), as amended and supplemented by (i) the First Supplemental Indenture thereto (the “First Supplemental Indenture”) among the Issuers and the Trustee to be dated and effective as of the Closing Date, (ii) the
Second Supplemental Indenture thereto among the Issuers and the Trustee to be dated and effective as of the Closing Date (the “Second Supplemental Indenture”) and (iii) the Third Supplemental Indenture thereto among the Issuers and
the Trustee to be dated and effective as of the Closing Date (the “Third Supplemental Indenture”) (the Base Indenture, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture and the Third
Supplemental Indenture, the “Indenture”). Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective Date or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 20 hereof.
This is to confirm the agreement (this “Agreement”) concerning the purchase of the Securities
from the Issuers by the Underwriters.
1.
Representations and Warranties
. The Issuers represent and warrant to, and agree with, each
Underwriter as set forth below in this Section 1.
(a) The Partnership meets the requirements for use of Form S-3 under the Act and
has prepared and filed with the Commission an “automatic shelf registration statement” (as defined in Rule 405
)
(the file number of which is set forth in Schedule I hereto), on Form S-3, including a related Base Prospectus, for
registration under the Act of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing. The Partnership filed with the Commission, as part
of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses relating to the Securities, each of which has previously been furnished to you. The Partnership will next file with the Commission one of
the following: (1) a Final Prospectus in accordance with Rules 430B and 424(b) or (2) a Final Prospectus in accordance with Rules 415 and 424(b). The Partnership has included in such Registration Statement, as amended at the Effective
Date, all information (other than information permitted to be excluded therefrom pursuant to Rule 430B (“Rule 430B Information”)) required by the Act and the rules thereunder to be included in such Registration Statement. As filed, the
Final Prospectus shall contain all applicable Rule 430B Information, together with all other such information required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the
Base Prospectus and any Preliminary Prospectus) as the Partnership has advised you, prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with
Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; on each Effective Date
and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
on the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing with the Commission pursuant
to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however
, that the Issuers make no representations or warranties as to (i) the exhibit to the Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the
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Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Partnership by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final
Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriters consists of the information described as such in Section 8(b) hereof.
(c) (i) The Disclosure Package did not, as of the Execution Time, contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to information contained in or omitted from the Disclosure Package (or any amendments
or supplement thereto), in reliance upon and in conformity with information furnished in writing to the Partnership by any Underwriter through the Representatives specifically for inclusion therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(d)
(i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Issuers or any person acting on their behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer
relating to the Securities in reliance on the exemption in Rule 163, and (iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)), the Partnership was or is (as the case may be) a
Well-Known Seasoned Issuer. The Partnership agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the Issuers or another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Partnership was not and is not an “ineligible
issuer” (as defined in Rule 405).
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant to
Section 5(b) hereof does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof
that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Partnership by any
Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b)
hereof.
(g) The Partnership has been duly formed and is validly existing under the Delaware Revised Uniform Limited Partnership Act (the
“DRULPA”) and each of its
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“significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X except determined as of June 30,
2006) (the “Subsidiaries”) has been duly formed, is validly existing as a corporation, limited liability company or limited partnership, as the case may be, and is in good standing under the laws of the jurisdiction in which it is formed.
The Partnership has all the requisite partnership power and authority and each of its Subsidiaries has full corporate, limited liability or partnership power, as the case may be, and authority to own or lease, as the case may be, and to operate its
properties and conduct its business in all material respects as described in the Disclosure Package and the Final Prospectus, and is duly qualified or registered to do business as a foreign entity and is in good standing under the laws of each
jurisdiction which requires such qualification or registration, except where the failure to be so qualified or registered or in good standing would not reasonably be expected to (i) have a material adverse effect on the condition (financial or
otherwise), earnings, cash flow, business affairs or business prospects of the Partnership and its subsidiaries, considered as one enterprise (a “Material Adverse Effect”), or (ii) subject the limited partners of the Partnership to
any material liability or disability.
(h) All the outstanding equity interests of each Subsidiary have been duly and validly authorized
and issued in accordance with such Subsidiary’s governing documents and are fully paid (in the case of any Subsidiary that is a limited liability company, to the extent required by such Subsidiary’s limited liability company agreement, and
in the case of any Subsidiary that is a limited partnership, to the extent required by such Subsidiary’s agreement of limited partnership) and nonassessable (in the case of any Subsidiary that is a limited liability company, except as such
nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Revised Limited Liability Company Act, and in the case of any Subsidiary that is a limited partnership, except as such nonassessability may be affected by Sections
17-303, 17-607 and 17-804 of the DRULPA and matters included such Subsidiary’s agreement of limited partnership), and all outstanding equity interests of the Subsidiaries are owned by the Partnership either directly or through wholly owned
Subsidiaries free and clear of any perfected security interest or any other security interests, claims or liens (“Liens”), except for any such Liens on the outstanding equity interests of the Subsidiaries that are described in the
Disclosure Package and the Final Prospectus.
(i) There is no contract or other document of a character required to be described in the
Registration Statement or Base Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required (and the Preliminary Prospectus contains in all material respects the same description of the
foregoing matters as will be contained in the Base Prospectus); and the statements in the Preliminary Prospectus and the Final Prospectus under the heading “Material United States Federal Income Tax Considerations”, insofar as such
statements summarize legal matters, agreements, documents or proceedings discussed therein, fairly summarize such legal matters, agreements, documents or proceedings in all material respects.
(j) This Agreement has been duly authorized, executed and delivered by or on behalf of each of the Issuers.
(k) The Partnership is the sole limited partner of the Guarantor with a 99.99% limited partner interest in the Guarantor (subject to the provisions of
the Intermediate Partnership Agreement), and ONEOK ILP GP, L.L.C, a limited liability company organized under the laws
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of the state of Delaware and wholly owned subsidiary of the Partnership (the “ILP GP”), is the sole general
partner of the Guarantor with a 0.01% general partner interest in the Guarantor; such partner interests are duly authorized by the Intermediate Partnership Agreement, and the limited partner interest is duly issued, fully paid (to the extent
required under the Intermediate Partnership Agreement) and non-assessable (except as described in the Intermediate Partnership Agreement and except as set forth in Sections 17-303, 17-607 and 17-804 of the DRULPA); as of the Closing Date, the
Partnership will own, directly or indirectly, such limited partner interest in the Guarantor and the member interests in the ILP GP free and clear of any Liens, except for any such Liens on such interests that are described in the Disclosure Package
and the Final Prospectus.
(l) As of August 1, 2006, the limited partners of the Partnership held limited partner interests in the
Partnership aggregating a 98.0% Partnership Interest (as defined in the Partnership Agreement) (subject to the provisions of the Partnership Agreement), such limited partner interests being represented by a total of 46,397,214 outstanding Common
Units and 36,494,126 outstanding Class B Units (collectively, the “Limited Partner Units”); as of the Closing Date, the Limited Partner Units and the limited partner interests represented thereby were authorized by the Partnership
Agreement and are validly issued, fully paid (to the extent required under the Partnership Agreement) and non-assessable (except as described in the Partnership Agreement and except as set forth in Sections 17-303, 17-607 and 17-804 of the DRULPA).
(m) The Notes have been duly authorized for issuance and sale to the Underwriters and, when issued, executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will have been duly executed and delivered by or on behalf of the Partnership and will constitute valid and
binding obligations of the Partnership, enforceable in accordance with their terms and the terms of the Indenture and will be entitled to the benefits provided by the Indenture;
provided that
the enforceability thereof may be limited by
bankruptcy, reorganization, insolvency, fraudulent transfer or conveyance, moratorium or similar laws relating to or affecting the enforcement of creditors’ rights generally from time to time in effect and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at law) (the “Enforceability Exceptions”); and the statements in “Description of the Notes” in the Preliminary Prospectus used most recently
prior to the Execution Time and the Final Prospectus and “Description of the Debt Securities” in the Base Prospectus, insofar as they purport to constitute a summary of the terms of the Securities and the Indenture, when such Securities
are issued, executed, authenticated and delivered against payment therefore as provided herein and in the Indenture, fairly summarize the matters described therein in all material respects.
(n) The Indenture has been duly authorized by or on behalf of the Issuers, and, when validly executed and delivered by or on behalf the Issuers, and
assuming due authorization, execution and delivery thereof by the Trustee, will constitute a valid and binding agreement of each of the Issuers, enforceable in accordance with its terms;
provided that
the enforceability of the Indenture may
be limited by the Enforceability Exceptions.
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(o) The Guarantee has been duly authorized by or on behalf of the Guarantor and, when the Indenture is
validly executed and delivered by or on behalf of the Issuers and the Notes are duly executed by or on behalf of the Partnership and authenticated by the Trustee in accordance with the Indenture and delivered to and paid for by the Underwriters, and
assuming due authorization, execution and delivery of the Indenture by the Trustee, will constitute a valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms and entitled to the benefits provided
by the Indenture;
provided that
the enforceability of the Guarantee may be limited by the Enforceability Exceptions.
(p) Neither
the Partnership nor any of its Subsidiaries is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, neither will be an
“investment company” as defined in the Investment Company Act of 1940, as amended.
(q) No consent, approval, authorization,
filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein except (i) such as have been obtained under the Act and the Trust Indenture Act, and (ii) such as may be
required under the blue sky laws of any jurisdiction or the by-laws and rules of the National Association of Securities Dealers, Inc. (the “NASD”) in connection with the purchase and distribution by the Underwriters of the Securities in
the manner contemplated herein and in the Disclosure Package and the Final Prospectus or (iii) such that the failure to obtain would not reasonably be expected to result in a Material Adverse Effect.
(r) Neither the issuance and sale of the Securities nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Partnership or any of its Subsidiaries pursuant to (i) the provisions of the Partnership
Agreement or other governing documents of the Partnership or any of the governing documents of any of its Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the Partnership or any of its Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Partnership or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Partnership or any of its Subsidiaries or any of its
or their properties, which conflicts, breaches, violations or defaults, in the case of clauses (ii) or (iii), would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(s) No holders of debt securities of the Partnership have rights to the registration of such securities under the Preliminary Prospectus, the Final
Prospectus and the Registration Statement.
(t) The historical consolidated financial statements and schedules of the Partnership and its
consolidated subsidiaries included or incorporated by reference in the Preliminary Prospectus, the Final Prospectus and the Registration Statement present fairly in all material respects the consolidated financial condition, results of operations
and cash flows of the Partnership as of the dates and for the periods indicated, comply as to form in all material
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respects with the applicable accounting requirements of the Act and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein).
(u)
Other than as set forth in the Preliminary Prospectus, the Final Prospectus and the Registration Statement, no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Partnership or
any of its Subsidiaries or its or their property is pending or, to the Partnership’s knowledge, threatened that (i) would reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of
any of the transactions contemplated hereby or (ii) would reasonably be expected to have a Material Adverse Effect.
(v) Each of the
Partnership and each of its Subsidiaries owns or leases all such properties as are necessary to the conduct of its operations as presently conducted except where the failure to do so does not materially interfere with the ownership, operation or
benefits of operation of such businesses or materially increase the cost of operation or ownership of such businesses,
provided that
(a) with respect to the gas transmission and gathering pipelines of the Subsidiaries that own such
pipelines and right-of-way interests related thereto (the “Pipeline Properties”), the foregoing shall only constitute a representation that, (i) such Subsidiaries have sufficient title to enable them to use such Pipeline Properties in
their businesses as they have been used in the past and as are proposed to be used in the future and will not materially increase the cost of such use, and (b) with respect to any real property, buildings and equipment held under lease by the
Subsidiaries, such real property, buildings and equipment are held by the Subsidiaries under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such
real property, buildings and equipment for such Subsidiary.
(w) Neither the Partnership nor any Subsidiary is in violation or default of
(i) any provisions of the Partnership Agreement or other governing documents of the Partnership or the governing documents of such Subsidiary, as the case may be, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Partnership or such Subsidiary or any of its properties, as applicable, except in the case of clauses (ii) and
(iii) as would not reasonably be expected to have a Material Adverse Effect or as could not materially impair the ability of the Issuers to perform their respective obligations under this Agreement or the Indenture.
(x) KPMG LLP, who has certified certain financial statements of the Partnership and its consolidated subsidiaries and delivered its report with respect
to the audited consolidated financial statements and schedules incorporated by reference in the Final Prospectus, is an independent registered public accounting firm with respect to the Partnership as required by the Act and the Public Company
Accounting Oversight Board (United States) and its applicable published rules and regulations.
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(y) There are no transfer taxes or other similar fees or charges under Federal law or the laws of any
state, or any political subdivision thereof, required to be paid by the Issuers in connection with the execution and delivery of this Agreement or the issuance and sale by the Issuers of the Securities.
(z) The Partnership has filed all foreign, federal, state and local tax returns that are required to be filed or has requested extensions thereof and has
paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for (i) those failures to file or pay that would not reasonably be expected
to have a Material Adverse Effect, (ii) any such tax payment, assessment, fine or penalty that is currently being contested in good faith, or (iii) those failures to file or pay set forth in or contemplated in the Disclosure Package and
the Final Prospectus.
(aa) No labor problem or dispute with the employees of the Partnership or any of its Subsidiaries exists or, to the
Partnership’s knowledge, is threatened or imminent, that would reasonably be expected to have a Material Adverse Effect.
(bb) The
Partnership and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Partnership or any of the Subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; the Partnership and the Subsidiaries are in compliance with the
terms of such policies and instruments in all material respects; and there are no claims by the Partnership or any of the Subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a
reservation of rights clause; neither the Partnership nor any such Subsidiary has been refused any insurance coverage sought or applied for; and neither the Partnership nor any such Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Material Adverse
Effect.
(cc) No Subsidiary is currently prohibited, directly or indirectly, from paying any dividends or distributions to the Partnership,
from repaying to the Partnership any loans or advances to such Subsidiary from the Partnership or from transferring any of such Subsidiary’s property or assets to the Partnership or any other Subsidiary of the Partnership, except as set forth
in Section 7.5 of the Partnership’s five-year $750 million amended and restated revolving credit agreement dated as of March 30, 2006 and in Section 7.5 of the Partnership’s $1.1 billion 364-day credit agreement dated as of
April 6, 2006 and except for such prohibitions mandated by the laws of each such Subsidiary’s state of formation and the terms of any such Subsidiaries’ governing instruments.
(dd) The Partnership and its Subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state
or foreign regulatory authorities necessary to conduct their respective businesses, except for such licenses, certificates, permits and other authorizations that, if not obtained, would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, and neither the Partnership nor any
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such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus.
(ee) The Partnership and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the date of the most recent audited balance sheet of the Partnership and its
consolidated subsidiaries audited by KPMG LLP and reviewed by the board of directors of the general partner of the Partnership, (i) the Partnership has not been advised of (A) any significant deficiencies in the design or operations of
internal control over financial reporting that could adversely affect the ability of the Partnership and each of its subsidiaries to record, process, summarize and report financial data, or any material weaknesses in internal control over financial
reporting and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the internal control over financial reporting of the Partnership and each of its subsidiaries, and (ii) there
have been no changes in internal control over financial reporting, including any corrective actions with regard to significant deficiencies and material weaknesses, that has materially affected, or is reasonably likely to affect, the
Partnership’s internal control over financial reporting.
(ff) The Partnership and its subsidiaries maintain “disclosure controls
and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act).
(gg) The Partnership has not taken, directly or
indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Partnership to facilitate
the sale or resale of the Securities.
(hh) The Partnership and its Subsidiaries (i) are in compliance with any and all applicable
federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received and
are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability under any
Environmental Law, except where such non-compliance with Environmental Laws, failure to receive or comply with required permits, licenses or other approvals, or liability would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, and except as set forth in or contemplated in the Disclosure Package and the Final Prospectus. Except as set forth in the Disclosure Package and the Final Prospectus, neither the Partnership nor any of the Subsidiaries has
been named as a “potentially responsible party” under the
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Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, except (y) with respect
to any matters that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect or (z) as set forth in or contemplated in the Disclosure Package and the Final Prospectus.
(ii) In the ordinary course of its business, the Partnership periodically reviews the effect of Environmental Laws on the business, operations and
properties of the Partnership and the Subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, the Partnership has reasonably
concluded that such associated costs and liabilities would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(jj) The Partnership is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including
Section 402 thereof related to loans to officers and directors and Sections 302 and 906 related to certifications.
(kk) Neither the
Partnership nor any of its Subsidiaries nor, to the Partnership’s knowledge, any director, officer, agent, or employee of the Partnership or any of its Subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the FCPA, and the Partnership and its Subsidiaries have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(ll) The operations of the Partnership and its Subsidiaries are and have been conducted in compliance in all material respects with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the money laundering statutes of all applicable jurisdictions (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Partnership or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the
Partnership’s knowledge, threatened.
(mm) Neither the Partnership nor any of its Subsidiaries nor, to the Partnership’s
knowledge, any director, officer, agent, or employee of the Partnership or any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”);
and the Partnership will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by OFAC.
(nn) Except as disclosed in the Disclosure Package
and the Final Prospectus, the Partnership (i) does not have any material lending or other relationship with any bank or lending affiliate of Citigroup Global Markets Holdings Inc. and (ii) does not intend to use any of the proceeds from
the sale of the Securities hereunder to repay any outstanding debt owed to any affiliate of Citigroup Global Markets Holdings Inc.
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(oo) None of the following events has occurred or exists: (i) a failure to fulfill the obligations,
if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations and published interpretations thereunder with respect to a
Plan, determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or
any other federal or state governmental agency or any foreign regulatory agency with respect to the employment or compensation of employees by any of the Partnership or any of its Subsidiaries that would reasonably be expected to have a Material
Adverse Effect; (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Partnership or any of its Subsidiaries that would
reasonably be expected to have a Material Adverse Effect. None of the following events has occurred or is reasonably likely to occur: (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the
current fiscal year of the Partnership and its Subsidiaries compared to the amount of such contributions made in the most recently completed fiscal year of the Partnership and its Subsidiaries; (ii) a material increase in the “accumulated
post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Partnership and its Subsidiaries compared to the amount of such obligations in the most recently completed fiscal year of the
Partnership and its Subsidiaries; (iii) any event or condition giving rise to a liability under Title IV of ERISA that would reasonably be expected to have a Material Adverse Effect; or (iv) the filing of a claim by one or more employees
or former employees of the Partnership or any of its Subsidiaries related to their employment that would reasonably be expected to have a Material Adverse Effect. For purposes of this paragraph, the term “Plan” means a plan (within the
meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Partnership or any of its Subsidiaries may have any liability.
(pp) The Subsidiaries listed on Annex A attached hereto are the only “significant subsidiaries” of the Partnership (as defined by Rule 1-02 of Regulation S-X, except determined as of June 30, 2006).
(qq) The Partnership and its Subsidiaries own, possess, license or have other rights to use, on reasonable terms, all material patents,
patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, the “Intellectual
Property”) necessary for the conduct of the Partnership’s business as now conducted or as proposed in the Final Prospectus to be conducted, except for failures of ownership or use that would not reasonably be expected to have a Material
Adverse Effect. Additionally, (a) to the Partnership’s knowledge, there are no rights of third parties to any such Intellectual Property; (b) to the Partnership’s knowledge, there is no material infringement by third parties of
any such Intellectual Property; (c) there is no pending or, to the Partnership’s knowledge, threatened action, suit, proceeding or claim by others challenging the Partnership’s rights in or to any such Intellectual Property; and
(d) to the Partnership’s knowledge, there is no pending or threatened action, suit, proceeding or claim by others that the Partnership infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary
rights of others.
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Any certificate signed by or on behalf of the Partnership and delivered to the Representatives or counsel
for the Underwriters in connection with the offering of the Securities and pursuant to the terms of this Agreement shall be deemed a representation and warranty by the Partnership, as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale
. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Issuers
agree to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Issuers, at the purchase price set forth in Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter’s name in Schedule II hereto.
3.
Delivery and Payment
. Delivery of and payment for the Securities shall be made on
the date and at the time specified in Schedule I hereto or at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between
the Representatives and the Partnership or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Partnership by wire transfer payable in
same-day funds to an account specified by the Partnership. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
4.
Offering by Underwriters
. The several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus.
5.
Agreements
. The Issuers agree with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Partnership will not file any amendment of the Registration Statement
or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Partnership has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which
you reasonably object, unless, in the judgment of counsel to the Partnership, such filing is required by applicable law. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or
filing of the Final Prospectus is otherwise required under Rule 424(b), the Partnership will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Partnership will promptly advise the Representatives (i) when the
Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall
have been filed or become
12
effective, (iii) of any request by the Commission or its staff for any amendment of the Registration
Statement or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use
or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Partnership will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement
and, upon such issuance, occurrence or notice of objection, to promptly use its best efforts to obtain the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration
Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) To prepare a final term sheet, containing solely a description of final terms of the Securities and the offering thereof, in a form
approved by the Representatives and attached as Schedule IV hereto and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the
Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading, the Partnership will
(i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply
any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus
relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to
amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final
Prospectus, the Partnership promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of Section 5(a), an amendment or supplement or new registration
statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order
to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
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(e) As soon as practicable, the Partnership will make generally available, via the
Commission’s Electronic Data Gathering, Analysis and Retrieval (EDGAR) System, to its security holders and to the Representatives an earnings statement or statements of the Partnership and its subsidiaries (which need not be audited) which will
satisfy the provisions of Section 11(a) of the Act, including, at the option of the Partnership, Rule 158.
(f) The
Partnership will furnish or otherwise make available to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many
copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Partnership will pay the expenses of printing or other production of
all documents relating to the offering (other than internal sales memoranda prepared by any of the Underwriters).
(g) The
Partnership will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as reasonably required
for the distribution of the Securities and will pay any fee of the NASD in connection with its review of the offering;
provided that
in no event shall the Issuers be obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Partnership agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each
Underwriter, severally and not jointly, agrees with the Partnership that, unless it has or shall have obtained, as the case may be, the prior written consent of the Partnership, it has not made and will not make any offer relating to the Securities
that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Partnership with the Commission or retained by the Partnership under Rule 433, other than a Free Writing
Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto;
provided that
the prior written consent of the parties hereto shall be deemed to have been given in respect of
the Free Writing Prospectuses included in Schedule III hereto. Any such Free Writing Prospectus consented to by the Representatives or the Partnership is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Partnership
agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as applicable and as the case may be, with the
requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
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(i) The Partnership will not, without the prior written consent of Citigroup Global
Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Partnership or any affiliate of the Partnership or any person in privity with the Partnership or any affiliate of the Partnership), directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange
Act, any debt securities issued or guaranteed by the Partnership (other than the Securities) or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto.
6.
Conditions to the Obligations of the Underwriters
. The obligations of the Underwriters to purchase the Securities shall be subject to the
accuracy of the representations and warranties on the part of the Issuers contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Partnership made in any certificates pursuant to the provisions
hereof, to the performance by the Issuers of its obligations hereunder and to the following additional conditions:
(a) The
Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the
Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or
any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Partnership shall have requested and caused Andrews Kurth LLP, counsel for the Partnership, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in substantially the form
of Exhibit A hereto.
(c) The Partnership shall have requested and caused Gable & Gotwals, counsel for the
Partnership, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, in substantially the form of Exhibit B hereto.
(d) The Representatives shall have received from Shearman & Sterling LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably require, and the Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
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(e) The Partnership shall have furnished to the Representatives a certificate of the
Partnership, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the general partner of the Partnership, dated the Closing Date, to the effect that the signers of such certificate have reviewed
the Registration Statement, the Final Prospectus, the Disclosure Package and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Issuers in Section 1 of this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Issuers have
complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the
Partnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus.
(f) The Partnership shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the
Closing Date, “comfort letters” (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus used most recently prior to the Execution Time and the Final
Prospectus.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment thereto), there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph
(f) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the business, properties, earnings, results of operations or financial condition of the Partnership and its
subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is,
in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Disclosure Package and the
Final Prospectus.
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(h) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)) or any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the
Closing Date, the Partnership shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may
be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling, LLP, counsel for the
Underwriters, at 599 Lexington Avenue, New York, NY 10022, on the Closing Date.
7.
Reimbursement of Underwriters’ Expenses
. If
the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10(i) hereof or
because of any refusal, inability or failure on the part of the Issuers to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Partnership will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all reasonable out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8.
Indemnification and Contribution
. (a) The Issuers agree, jointly and severally, to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other U.S. Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Base Prospectus, any Preliminary Prospectus or any other
preliminary prospectus supplement relating to the Securities, the Final Prospectus or any Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
17
investigating or defending any such loss, claim, damage, liability or action;
provided, however
, that the Issuers
will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Partnership by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Issuers
may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Issuers, each of the
respective directors and officers of the general partner of the Partnership and the ILP GP and each person who controls the Issuers within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the
Issuers to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Partnership by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Issuers acknowledge that (i) the statements set forth in the last paragraph of the cover page
regarding delivery of the Securities, and (ii) the following information under the heading “Underwriting”: (A) the list of Underwriters and the principal amount of Securities to be purchased by each Underwriter, (B) the
second, third and fourth sentences of the third paragraph related to discounts, concessions and reallowances, (C) the second sentence of the fifth paragraph related to the Underwriters’ market making activities and (D) the sixth,
seventh and eighth paragraphs related to over-allotment, stabilization, syndicate covering transactions and penalty bids in the Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of
the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus, or in any amendment thereof or supplement thereto.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and only to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below);
provided, however
, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest,
18
(ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle, compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, but is otherwise applicable in accordance with its terms, the Issuers and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) (collectively “Losses”) to which the Issuers and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits
received by the Issuers on the one hand and by the Underwriters on the other from the offering of the Securities;
provided, however
, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating
to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Issuers and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Partnership, on the one hand, and
of the Underwriters, on the other, in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. Benefits received by the Issuers shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the
Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information
provided by the Partnership, on the one hand, or the Underwriters, on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Issuers and
the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee
19
and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls
the Issuers within the meaning of either the Act or the Exchange Act and each officer and director of the general partner of the Partnership and the ILP GP shall have the same rights to contribution as the Issuers, subject in each case to the
applicable terms and conditions of this paragraph (d).
9.
Default by an Underwriter
. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however
, that in the event that the aggregate principal amount
of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or
the Partnership. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Issuers
and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10.
Termination
. This Agreement shall be subject
to termination in the absolute discretion of the Representatives, by notice given to the Partnership prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading in the Partnership’s common units shall
have been suspended by the Commission or the New York Stock Exchange or (ii) trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such exchange,
(iii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or
war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by
any Preliminary Prospectus or the Final Prospectus (exclusive of any supplement thereto).
11.
Representations and Indemnities to
Survive
. The respective agreements, representations, warranties, indemnities and other statements of the Issuers or the respective officers of the general partner of the Partnership or the ILP GP and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Issuers or any of the indemnified persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 and the last sentence of Section 9 hereof shall survive the termination or cancellation of this Agreement.
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12.
Notices
. All communications hereunder will be in writing and effective only on receipt, and,
if sent to the Representatives, will be mailed, delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax no.: (212) 816-7912) and confirmed to the General Counsel, Citigroup Global Markets Inc., at 388 Greenwich Street,
New York, New York, 10013, Attention: General Counsel; or, if sent to the Partnership, will be mailed, delivered or telefaxed to ONEOK Partners, L.P., Attn: General Counsel, 100 W. 5
th
Street, Tulsa, Oklahoma 74103; fax no.: (918) 588-7971.
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the indemnified persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14.
No Fiduciary Duty
. The Partnership hereby acknowledges that (a) the
purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Partnership, on the one hand, and the Underwriters and any affiliate through which it may be acting, on the other, (b) the
Underwriters are each acting as principal and not as an agent or fiduciary of the Partnership and (c) the Partnership’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is as
independent contractors and not in any other capacity. Furthermore, the Partnership agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is
currently advising the Partnership on related or other matters). The Partnership agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the
Partnership, in connection with such transaction or the process leading thereto.
15.
Integration
. This Agreement supersedes all
prior agreements and understandings (whether written or oral) between the Partnership and the Underwriters, or any of them, with respect to the subject matter hereof.
16.
Applicable Law
. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
17.
Waiver of Jury Trial
. The parties hereto each hereby irrevocably waives, to the fullest extent permitted by applicable law, any
and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
18.
Counterparts
. This Agreement may be signed in one or more counterparts, each of which, when executed and delivered, shall constitute an original and all of which together shall constitute one and the same agreement.
19.
Headings
. The section headings used herein are for convenience only and shall not affect the construction hereof.
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20.
Definitions
. The terms which follow, when used in this Agreement, shall have the meanings
indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a)
above contained in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than
a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean, (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to
the Execution Time, (iii) the Issuer Free Writing Prospectuses identified in Schedule III hereto and (iv) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the
Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement, and any
post-effective amendment or amendments thereto became or become effective.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“FCPA” shall mean the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Base Prospectus.
“Free Writing Prospectus” shall mean a free writing
prospectus, as defined in Rule 405.
“Intermediate Partnership Agreement” shall mean the Second Amended and
Restated Agreement of Limited Partnership of the Guarantor, as amended at the Execution Time.
“Issuer Free Writing
Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
22
“Partnership Agreement” shall mean the Third Amended and Restated Agreement of
Limited Partnership of the Partnership.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement
to the Base Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements and any prospectus supplement relating to the Securities that
is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended.
“Rule 158”, “Rule 163”,
“Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B”, “Rule 433”, “Rule 436”, “Rule 456” and “Rule 457” refer to such rules under
the Act.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Well-Known Seasoned Issuer” shall mean a well-known
seasoned issuer, as defined in Rule 405.
23
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us
the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall represent a binding agreement among the Issuers and the several Underwriters.
|
|
|
|
|
Very truly yours,
|
|
|
|
ONEOK Partners, L.P.
|
|
|
|
|
By:
|
|
ONEOK Partners GP, L.L.C., its general partner
|
|
|
|
|
By:
|
|
/s/ Jim Kneale
|
|
Name:
|
|
Jim Kneale
|
|
Title:
|
|
Executive Vice President – Finance and
Administration and Chief Financial Officer
|
|
|
|
ONEOK Partners Intermediate Limited Partnership
|
|
|
|
|
By:
|
|
ONEOK ILP GP, L.L.C., its general partner
|
|
|
|
|
By:
|
|
/s/ Jim Kneale
|
|
Name:
|
|
Jim Kneale
|
|
Title:
|
|
Executive Vice President- Finance and
Administration and
Chief Financial Officer
|
24
The foregoing Agreement is
hereby confirmed and accepted
as of the date first written above
Citigroup Global Markets Inc.
SunTrust Capital Markets, Inc.
|
|
|
|
|
By:
|
|
Citigroup Global Markets Inc.
|
|
|
|
|
By:
|
|
/s/ Brian Bednarski
|
|
Name:
|
|
Brian Bednarski
|
|
Title:
|
|
Director
|
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
25
SCHEDULE I
Registration Statement No. 333-137419
Representatives: Citigroup Global Markets Inc.
and SunTrust Capital Markets, Inc.
Title, Principal Amount and Purchase Price of Securities:
|
|
|
|
|
|
|
|
|
Title:
|
|
5.90% Senior
Notes due 2012
|
|
6.15% Senior
Notes due 2016
|
|
6.65% Senior
Notes due 2036
|
|
|
|
|
|
|
Principal amount:
|
|
$350,000,000
|
|
$450,000,000
|
|
$600,000,000
|
|
|
|
|
|
|
Purchase price (include accrued interest or amortization, if any):
|
|
$347,830,000
|
|
$447,034,500
|
|
$592,188,000
|
Closing Date, Time and Location: September 25, 2006 at 10:00 a.m. at Shearman & Sterling LLP, 599
Lexington Avenue, New York, NY 10022
Type of Offering: Non-delayed
Date referred to in Section 5(i) after which the Partnership may offer or sell debt securities issued or guaranteed by the Partnership without the consent of Citigroup Global Markets Inc.: October 20, 2006.
SCHEDULE II
|
|
|
|
|
|
|
|
|
|
|
|
Underwriters
|
|
|
|
Principal Amount
of Securities to
be
Purchased
|
|
|
|
|
|
|
5.90% Senior
Notes due 2012
|
|
|
6.15% Senior
Notes Due 2016
|
|
|
6.65% Senior
Notes Due 2036
|
|
|
|
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
87,500,000
|
|
$
|
112,500,000
|
|
$
|
150,000,000
|
|
|
|
|
|
|
SunTrust Capital Markets, Inc.
|
|
|
87,500,000
|
|
|
112,500,000
|
|
|
150,000,000
|
|
|
|
|
|
|
Barclays Capital Inc.
|
|
|
33,250,000
|
|
|
42,750,000
|
|
|
57,000,000
|
|
|
|
|
|
|
BMO Capital Markets Corp.
|
|
|
33,250,000
|
|
|
42,750,000
|
|
|
57,000,000
|
|
|
|
|
|
|
Comerica Securities, Inc.
|
|
|
5,250,000
|
|
|
6,750,000
|
|
|
9,000,000
|
|
|
|
|
|
|
Greenwich Capital Markets, Inc.
|
|
|
10,500,000
|
|
|
13,500,000
|
|
|
18,000,000
|
|
|
|
|
|
|
Piper Jaffray & Co.
|
|
|
5,250,000
|
|
|
6,750,000
|
|
|
9,000,000
|
|
|
|
|
|
|
RBC Capital Markets Corporation
|
|
|
10,500,000
|
|
|
13,500,000
|
|
|
18,000,000
|
|
|
|
|
|
|
UBS Securities LLC
|
|
|
33,250,000
|
|
|
42,750,000
|
|
|
57,000,000
|
|
|
|
|
|
|
Wachovia Capital Markets, LLC
|
|
|
33,250,000
|
|
|
42,750,000
|
|
|
57,000,000
|
|
|
|
|
|
|
Wells Fargo Securities, LLC
|
|
|
10,500,000
|
|
|
13,500,000
|
|
|
18,000,000
|
|
Total
|
|
$
|
350,000,000
|
|
$
|
450,000,000
|
|
$
|
600,000,000
|
|
|
|
|
|
|
|
|
|
|
|
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
|
1)
|
The final term sheet prepared and filed pursuant to Section 5(b) of the Agreement in the form of Schedule IV to the Agreement.
|
SCHEDULE IV
Filed Pursuant to Rule 433
Registration No. 333-137419; 333-137419-01
September 20, 2006
ONEOK PARTNERS,
L.P.
PRICING TERM SHEETS
5.90% Senior Notes due 2012
|
|
|
|
|
|
|
Issuer:
|
|
|
|
ONEOK Partners, L.P.
|
|
|
|
|
|
Security:
|
|
|
|
5.90% Senior Notes due 2012
|
|
|
|
|
|
Aggregate Principal Amount:
|
|
|
|
$350,000,000
|
|
|
|
|
|
Maturity Date:
|
|
|
|
April 1, 2012
|
|
|
|
|
|
Coupon:
|
|
|
|
5.90%
|
|
|
|
|
|
Interest Payment Dates:
|
|
|
|
April 1 and October 1, commencing April 1, 2007
|
|
|
|
|
|
Price to Public:
|
|
|
|
99.980%
|
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
|
|
+ 123 bp
|
|
|
|
|
|
Benchmark Treasury:
|
|
|
|
4.625% due August 15, 2011
|
|
|
|
|
|
Benchmark Treasury Yield:
|
|
|
|
4.674%
|
|
|
|
|
|
Make-Whole Call:
|
|
|
|
T+20 bp
|
|
|
|
|
|
Guarantee:
|
|
|
|
Fully and unconditionally guaranteed on a senior unsecured basis by ONEOK Partners Intermediate Limited Partnership
|
|
|
|
|
|
Trade Date:
|
|
|
|
September 20, 2006
|
|
|
|
|
|
Settlement Date:
|
|
|
|
September 25, 2006
|
|
|
|
|
|
CUSIP:
|
|
|
|
68268N AA 1
|
|
|
|
|
|
Ratings:
|
|
|
|
Baa2 by Moody’s Investors Service, Inc.
BBB by
Standard & Poor’s Ratings Services
BBB by Fitch, Inc.
|
|
|
|
|
|
Joint Book-Running Managers:
|
|
|
|
Citigroup Global Markets Inc.
SunTrust Capital Markets,
Inc.
|
|
|
|
|
|
Co-Managers:
|
|
|
|
Barclays Capital Inc.
BMO Capital Markets Corp.
Comerica Securities, Inc.
Greenwich Capital Markets,
Inc.
Piper Jaffray & Co.
RBC Capital Markets Corporation
UBS Securities LLC
Wachovia Capital Markets, LLC
Wells Fargo Securities, LLC
|
6.15% Senior Notes due 2016
|
|
|
|
|
|
|
Issuer:
|
|
|
|
ONEOK Partners, L.P.
|
|
|
|
|
|
Security:
|
|
|
|
6.15% Senior Notes due 2016
|
|
|
|
|
|
Aggregate Principal Amount:
|
|
|
|
$450,000,000
|
|
|
|
|
|
Maturity Date:
|
|
|
|
October 1, 2016
|
|
|
|
|
|
Coupon:
|
|
|
|
6.15%
|
|
|
|
|
|
Interest Payment Dates:
|
|
|
|
April 1 and October 1, commencing April 1, 2007
|
|
|
|
|
|
Price to Public:
|
|
|
|
99.991%
|
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
|
|
+ 143 bp
|
|
|
|
|
|
Benchmark Treasury:
|
|
|
|
4.875% due August 15, 2016
|
|
|
|
|
|
Benchmark Treasury Yield:
|
|
|
|
4.721%
|
|
|
|
|
|
Make-Whole Call:
|
|
|
|
T+25 bp
|
|
|
|
|
|
Guarantee:
|
|
|
|
Fully and unconditionally guaranteed on a senior unsecured basis by ONEOK Partners Intermediate Limited Partnership
|
|
|
|
|
|
Trade Date:
|
|
|
|
September 20, 2006
|
|
|
|
|
|
Settlement Date:
|
|
|
|
September 25, 2006
|
|
|
|
|
|
CUSIP:
|
|
|
|
68268N AB 9
|
|
|
|
|
|
Ratings:
|
|
|
|
Baa2 by Moody’s Investors Service, Inc.
BBB by
Standard & Poor’s Ratings Services
BBB by Fitch, Inc.
|
|
|
|
|
|
Joint Book-Running Managers:
|
|
|
|
Citigroup Global Markets Inc.
SunTrust Capital Markets,
Inc.
|
|
|
|
|
|
Co-Managers:
|
|
|
|
Barclays Capital Inc.
BMO Capital Markets Corp.
Comerica Securities, Inc.
Greenwich Capital Markets,
Inc.
Piper Jaffray & Co.
RBC Capital Markets Corporation
UBS Securities LLC
Wachovia Capital Markets, LLC
Wells Fargo Securities, LLC
|
|
|
|
6.65% Senior Notes due 2036
|
|
|
|
|
|
Issuer:
|
|
|
|
ONEOK Partners, L.P.
|
|
|
|
|
|
Security:
|
|
|
|
6.65% Senior Notes due 2036
|
|
|
|
|
|
Aggregate Principal Amount:
|
|
|
|
$600,000,000
|
|
|
|
|
|
Maturity Date:
|
|
|
|
October 1, 2036
|
|
|
|
|
|
Coupon:
|
|
|
|
6.65%
|
|
|
|
|
|
Interest Payment Dates:
|
|
|
|
April 1 and October 1, commencing April 1, 2007
|
|
|
|
|
|
Price to Public:
|
|
|
|
99.573%
|
2
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
+ 183 bp
|
|
|
|
|
Benchmark Treasury:
|
|
4.500% due February 15, 2036
|
|
|
|
|
Benchmark Treasury Yield:
|
|
4.853%
|
|
|
|
|
Make-Whole Call:
|
|
T+30 bp
|
|
|
|
|
Guarantee:
|
|
Fully and unconditionally guaranteed on a senior unsecured
basis by ONEOK Partners Intermediate Limited Partnership
|
|
|
|
|
Trade Date:
|
|
September 20, 2006
|
|
|
|
|
Settlement Date:
|
|
September 25, 2006
|
|
|
|
|
CUSIP:
|
|
68268N AC 7
|
|
|
|
|
Ratings:
|
|
Baa2 by Moody’s Investors Service, Inc.
BBB by
Standard & Poor’s Ratings Services
BBB by Fitch, Inc.
|
|
|
|
|
Joint Book-Running Managers:
|
|
Citigroup Global Markets Inc.
SunTrust Capital Markets,
Inc.
|
|
|
|
|
Co-Managers:
|
|
Barclays Capital Inc.
BMO Capital Markets Corp.
Comerica Securities, Inc.
Greenwich Capital Markets,
Inc.
Piper Jaffray & Co.
RBC Capital Markets Corporation
UBS Securities LLC
Wachovia Capital Markets, LLC
Wells Fargo Securities, LLC
|
|
|
|
|
Aggregate Net Proceeds to Issuer, after underwriting discounts
|
|
$1,387,052,500
|
Note: A securities rating is not a recommendation to buy, sell or hold securities. It may be subject to revision
or withdrawal at any time, and each rating should be evaluated independently of any other rating.
The issuer has filed a registration statement (including
a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information
about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at
www.sec.gov
. Alternatively, the
issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Citigroup Global Markets Inc. toll free at 1-877-858-5407 or SunTrust Capital Markets, Inc. toll free at
1-800-685-4786.
3
ANNEX A
ONEOK Hydrocarbon, L.P.
ONEOK Hydrocarbon, L.L.C.
ONEOK Hydrocarbon Holdings, L.L.C.
ONEOK Field Services Company, L.L.C.
ONEOK Partners Intermediate Limited Partnership
ONEOK Midstream Gas Supply, L.L.C.
Exhibit A
Opinion of Andrews Kurth LLP
September [__], 2006
To each of the Underwriters named
in the Underwriting Agreement referenced herein
c/o Citigroup Global Markets Inc.
388/390 Greenwich Street
New York, NY 10013
|
|
Re:
|
[
]% Senior Notes due 2012, [
]% Senior Notes due 2016 and
|
[
]% Senior Notes due 2036, issued by ONEOK Partners, L.P.
Ladies and Gentlemen:
We
have acted as special counsel to ONEOK Partners, L.P., a Delaware limited partnership (the “
Issuer
”), in connection with the Underwriting Agreement dated September [
], 2006 (the “
Underwriting
Agreement
”) among (i) the Issuer, (ii) ONEOK Partners Intermediate Limited Partnership, a Delaware limited partnership, as guarantor of the Securities (as defined below) (the “
Guarantor
”), and (iii) Citigroup
Global Markets, Inc. and SunTrust Robinson Humphrey, as representatives of the several underwriters named therein (the “
Underwriters
”), relating to the sale by the Issuer to the Underwriters of
$[
] aggregate principal amount of the Issuer’s [
]% Senior Notes due 2012 (the “
2012 Notes
”),
$[
] aggregate principal amount of the Issuer’s [
]% Senior Notes due 2016 (the “
2016 Notes
”) and
$[
] aggregate principal amount of the Issuer’s [
]% Senior Notes due 2036 (the “
2036 Notes
,” and collectively with the
2012 Notes and the 2016 Notes, the “
Securities
”). The Issuer and the Guarantor are referred to collectively herein as the “
Obligors
.”
The 2012 Notes are being issued under an Indenture, dated as of September [
], 2006 (the “
Base Indenture
”), among the Issuer and Wells Fargo Bank, N.A., as trustee (the
“
Trustee
”), as amended and supplemented by the First Supplemental Indenture thereto, dated as of September [
], 2006 (the “
First Supplemental Indenture
”), among the Issuer, the
Guarantor and the Trustee. The 2016 Notes are being issued under the Base Indenture, as amended and supplemented by the Second Supplemental Indenture thereto, dated as of September [
], 2006 (the “
Second
Supplemental Indenture
”), among the Issuer, the Guarantor and the Trustee. The 2036 Notes are being issued under the Base Indenture, as amended and supplemented by the Third Supplemental Indenture thereto, dated as of September
[
], 2006 (the “
Third Supplemental Indenture
”), among the Issuer, the Guarantor and the Trustee. The Base Indenture, as amended and supplemented by the First Supplemental Indenture, the Second
Supplemental Indenture and the Third Supplemental Indenture, is referenced herein as the “
Indenture
.”
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 2
We are furnishing this opinion letter to you
pursuant to Section [6(b)] of the Underwriting Agreement.
In rendering the opinions set forth herein, we have examined and relied on
originals or copies, certified or otherwise identified to our satisfaction, of the following:
(a) the Registration Statement on Form S-3
(File No. 333-[
]) relating to securities to be issued by the Issuer and the Guarantor from time to time, including the Securities, filed by the Issuer under the
Securities Act of 1933, as amended (the “
Securities Act
”), with the Securities and Exchange Commission (the “
SEC
”) on September [
], 2006, including the base prospectus included in such
registration statement (the “
Base Prospectus
”) and the other information set forth in the Incorporated Documents (as defined below) and incorporated by reference in such registration statement and therefore deemed to be a part
thereof (such registration statement, as so amended at the time it became effective and including the Base Prospectus and such other information incorporated by reference in such registration statement, being referred to herein as the
“
Registration Statement
”);
(b) the preliminary prospectus supplement dated September [__], 2006, relating to the
Securities in the form filed with the SEC pursuant to Rule 424(b) of the General Rules and Regulations under the Securities Act (the “
Rules and Regulations
”) (such preliminary prospectus supplement, together with the Base
Prospectus, being referred to herein as the “
Preliminary Prospectus
”);
(c) the prospectus supplement dated September
[__], 2006, relating to the Securities in the form filed with the SEC pursuant to Rule 424(b) of the Rules and Regulations (such prospectus supplement, together with the Base Prospectus, being referred to herein as the
“
Prospectus
”);
(d) the term sheets relating to the Securities filed with the SEC as free writing prospectuses pursuant to
Rules 164 and 433 of the Rules and Regulations on September [__], 2006 (such term sheets, together with the Preliminary Prospectus, being referred to herein as the “
Disclosure Package
”);
(e) each of the Issuer’s reports that have been filed with the SEC and are incorporated by reference in the Registration Statement (the
“
Incorporated Documents
”);
(f) the Indenture;
(g) the forms of the Securities;
(h)
(i) the global note[s] executed by the Issuer pursuant to the Indenture, in the aggregate principal amount of $[
], representing the 2012 Notes purchased and sold
pursuant to the Underwriting Agreement, (ii) the global note[s] executed by the Issuer pursuant to the Indenture, in the aggregate principal amount of $[
],
representing the 2016 Notes purchased and sold pursuant to the Underwriting Agreement and (iii) the global note[s]
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 3
executed by the Issuer pursuant to
the Indenture, in the aggregate principal amount of $[
], representing the 2036 Notes purchased and sold pursuant to the Underwriting Agreement;
(i) the Underwriting Agreement;
(j) the
Certificate of Formation of ONEOK Partners GP, L.L.C., the general partner of the Issuer (the “
General Partner
”), as amended, certified by the Secretary of State of the State of Delaware as in effect on September
[
], 2006, and certified by the [Assistant] Secretary of the General Partner as in effect on each of the dates of the adoption of the resolutions specified in paragraph [(n)] below, the date of the Underwriting
Agreement and the date hereof (the “
GP Certificate
”);
(k) the Second Amended and Restated Limited Liability Company
Agreement of the General Partner, certified by the [Assistant] Secretary of the General Partner as in effect on each of the dates of the adoption of the resolutions specified in paragraph [(n)] below, the date of the Underwriting Agreement and the
date hereof (the “
GP LLC Agreement
”);
(l) the Certificate of Limited Partnership of the Issuer, as amended, certified by
the Secretary of State of the State of Delaware as in effect on September [
], 2006, and certified by the [Assistant] Secretary of the General Partner, on behalf of the Issuer, as in effect on each of the dates of the
adoption of the resolutions specified in paragraph [(n)] below, the date of the Underwriting Agreement and the date hereof (the “
Issuer Certificate
”);
(m) the Third Amended and Restated Agreement of Limited Partnership of the Issuer dated as of [
] [
],
[
], certified by the [Assistant] Secretary of the General Partner, on behalf of the Issuer, as in effect on each of the dates of the adoption of the resolutions specified
in paragraph [(n)] below, the date of the Underwriting Agreement and the date hereof (the “
Issuer LP Agreement
”);
(n)
resolutions of the Board of Directors of the General Partner (the “
Board of Directors
”), dated [August] [
], 2006, and resolutions of the Pricing Committee of the Board of Directors, dated September
[
], 2006, certified by the [Assistant] Secretary of the General Partner;
(o) the Certificate of Formation
of ONEOK ILP GP, L.L.C., the general partner of the Guarantor (the “
ILP GP
”), [as amended], certified by the Secretary of State of the State of Delaware as in effect on September [
], 2006, and
certified by the [Assistant] Secretary of the ILP GP as in effect on each of the dates of the adoption of the resolutions specified in paragraph [(s)] below, the date of the Underwriting Agreement and the date hereof (the “
ILP GP
Certificate
”);
(p) the Limited Liability Company Agreement of the ILP GP, [as amended], certified by the [Assistant] Secretary of
the ILP as in effect on each of the dates of the adoption of the resolutions specified in paragraph [(s)] below, the date of the Underwriting Agreement and the date hereof (the “
ILP GP LLC Agreement
”);
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 4
(q) the Certificate
of Limited Partnership of the Guarantor, as amended, certified by the Secretary of State of the State of Delaware as in effect on September [__], 2006, and certified by the [Assistant] Secretary of the ILP GP, on behalf of the Guarantor, as in
effect on each of the dates of the adoption of the resolutions specified in paragraph [(s)] below, the date of the Underwriting Agreement and the date hereof (the “
Guarantor Certificate
”);
(r) the Second Amended and Restated Agreement of Limited Partnership of the Guarantor dated as of
[
] [
], [
], as amended by Amendment No. 1 thereto dated
as of [
] [
], [
], certified by the [Assistant] Secretary of
the ILP GP, on behalf of the Guarantor, as in effect on each of the dates of the adoption of the resolutions specified in paragraph [(s)] below, the date of the Underwriting Agreement and the date hereof (the “
Guarantor LP
Agreement
”);
(s) resolutions of the [Board of Directors] of the ILP GP, dated [September] [__], 2006, certified by the
[Assistant] Secretary of the ILP GP;
(t) certificates from the Secretary of State of the State of Delaware dated September [__], 2006 as
to the good standing and legal existence under the laws of the State of Delaware of the General Partner, the Issuer, the ILP GP and the Guarantor; and
(u) a certificate dated the date hereof (the “
Opinion Support Certificate
”), executed by an officer of the General Partner, a copy of which is attached hereto as
Exhibit A
.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the General Partner, the ILP GP and
the Obligors and such agreements, certificates of public officials, certificates of officers or other representatives of the General Partner, the ILP GP, the Obligors and others, and such other documents, certificates and records, as we have deemed
necessary or appropriate as a basis for the opinions set forth herein. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals,
and the conformity to authentic original documents of all documents submitted to us as certified or photostatic copies. As to any facts material to the opinions and statements expressed herein that we did not independently establish or verify, we
have relied, to the extent we deem appropriate, upon (i) oral or written statements and representations of officers and other representatives of the General Partner, the ILP GP and the Obligors (including without limitation the facts certified
in the Opinion Support Certificate) and (ii) statements and certifications of public officials and others.
As used herein the
following terms have the respective meanings set forth below:
“
Obligor Organizational Documents
” means, collectively, the
following instruments, each in the form reviewed by us, as indicated above: (i) the GP Certificate, (ii) the GP LLC Agreement, (iii) the Issuer Certificate, (iv) the Issuer LP Agreement, (v) the ILP GP Certificate, (vi) the
ILP GP LLC Agreement, (vii) the Guarantor Certificate and (viii) the Guarantor LP Agreement.
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 5
“
Person
” means a natural person or a legal entity organized under the laws of any jurisdiction.
“
Transaction Documents
” means collectively, the Underwriting Agreement, the Indenture and the Securities.
Based
upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:
1. Each of the General Partner, the ILP GP, ONEOK Hydrocarbon, L.L.C. and ONEOK Hydrocarbon Holdings, L.L.C. is validly existing as a limited liability company and in good standing under the laws of the State of Delaware. Each of the
Obligors and ONEOK Hydrocarbon, L.P. is validly existing as a limited partnership and in good standing under the laws of the State of Delaware.
2. Each of the General Partner and the ILP GP has the limited liability company power and authority under the laws of the State of Delaware to execute and deliver, on behalf of the Issuer and the Guarantor, respectively, the Transaction
Documents. Each of the Obligors has the limited partnership power and authority under the laws of the State of Delaware to (i) incur and perform all of its obligations under the Transaction Documents and (ii) carry on its business and own
its properties as described in the Registration Statement and the Prospectus.
3. Each of the Underwriting Agreement, the Securities and
the Indenture has been duly authorized, executed and delivered by the General Partner, on behalf of the Issuer, and by the ILP GP, on behalf of the Guarantor.
4. None of (i) the execution and delivery of, or the incurrence or performance by the Obligors of their respective obligations under, each of the Transaction Documents, each in accordance with its terms,
(ii) the offering, issuance, sale and delivery of the Securities pursuant to the Underwriting Agreement or (iii) the issuance of the guaranties of the Securities by the Guarantor (A) constituted, constitutes or will constitute a
violation of the Obligor Organizational Documents or (B) resulted, results or will result in any violation of (i) applicable laws of the State of New York, (ii) applicable laws of the United States of America, (iii) the Delaware
Revised Uniform Limited Partnership Act, as amended (the “
DRULPA
”), (iv) the Delaware Limited Liability Company Act, as amended (the “
DLLCA
”) or (v) Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
5. No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required
to authorize, or is required for the execution and delivery by the General Partner, on behalf of the Issuer, and the ILP GP, on behalf of the Guarantor of, the Transaction Documents or the incurrence or performance of the obligations of the Obligors
thereunder, or the enforceability of any of such Transaction Documents against either of the Obligors that is a party thereto. As used in this paragraph, “
Governmental Approval
” means any
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 6
consent, approval, license,
authorization or validation of, or filing, recording or registration with, any executive, legislative, judicial, administrative or regulatory body of the State of New York, the State of Delaware or the United States of America, pursuant to
(i) applicable laws of the State of New York, (ii) applicable laws of the United States of America or (iii) the DRULPA or the DLLCA.
6. The statements under the caption “Description of the Debt Securities” in the Base Prospectus and under the caption “Description of the Notes” in the Preliminary Prospectus and the Prospectus, insofar as such
statements purport to summarize certain provisions of documents referred to therein and reviewed by us as described above, fairly summarize such provisions in all material respects, subject to the qualifications and assumptions stated therein.
7. The statements in the Preliminary Prospectus and the Prospectus under the caption “Material Tax Considerations,” insofar as
they refer to statements of law or legal conclusions, fairly summarize the matters referred to therein in all material respects, subject to the qualifications and assumptions stated therein.
8. The Indenture constitutes a valid and binding obligation of each of the Obligors, enforceable against each of them in accordance with its terms, under
applicable laws of the State of New York.
9. When authenticated by the Trustee in the manner provided in the Indenture and delivered to
and paid for by the Underwriters in accordance with the Underwriting Agreement, the Securities will constitute valid and binding obligations of the Issuer, entitled to the benefits of the Indenture and enforceable against the Issuer in accordance
with their terms, under applicable laws of the State of New York.
10. When the Securities have been authenticated by the Trustee in the
manner provided in the Indenture and delivered to and paid for by the Underwriters in accordance with the Underwriting Agreement, the guarantee of the Securities included in the Indenture will constitute a valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with the terms of the Indenture, under applicable laws of the State of New York.
11. Neither of the Obligors is an “
investment company
” within the meaning of said term as used in the Investment Company Act of 1940, as amended.
In addition, we have participated in conferences with officers of the General Partner and the ILP GP and other representatives of the Obligors, the
independent registered public accounting firm for the Obligors, your counsel and your representatives at which the contents of the Registration Statement, the Disclosure Package and the Prospectus (including the Incorporated Documents) and related
matters were discussed and, although we have not independently verified and are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements contained or incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus (except as and to the
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 7
extent set forth in paragraphs 6
and 7 above), on the basis of the foregoing (relying with respect to factual matters to the extent we deem appropriate upon statements by officers of the General Partner and the ILP GP and other representatives of the Obligors), (a) we confirm
to you that, in our opinion, each of the Registration Statement, as of its effective date, the Preliminary Prospectus, as of its date, and the Prospectus, as of its date, appeared on its face to be appropriately responsive in all material respects
to the requirements of the Securities Act and the Rules and Regulations (except that we express no statement or belief as to Regulation S-T), (b) we have not become aware of any documents that are required to be filed as exhibits to the
Registration Statement and are not so filed or of any documents that are required to be summarized in the Preliminary Prospectus or the Prospectus, and are not so summarized and (c) furthermore, no facts have come to our attention that have led
us to believe that (i) the Registration Statement, at the time it became effective and as of September 20, 2006, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Disclosure Package (including the Incorporated Documents), as of [
:
] [a.m. / p.m] on September
[
], 2006 (which you have informed us is a time prior to the time of the first sale of the Securities by any Underwriter), contained an untrue statement of a material fact or omitted to state any material fact necessary
to make the statements therein, in light of the circumstances under which they were made, not misleading, or (iii) the Prospectus (including the Incorporated Documents), as of its date and as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, it being understood that we express no opinion, statement
or belief in this letter with respect to (i) the historical financial statements and related schedules, including the notes and schedules thereto and the auditor’s report thereon, included or incorporated or deemed incorporated in the
Registration Statement, the Disclosure Package or the Prospectus, (ii) any other financial or accounting data, included or incorporated or deemed incorporated by reference in, or excluded from, the Registration Statement, the Disclosure Package
or the Prospectus, (iii) the Form T-1 included as an exhibit to the Registration Statement and (iv) representations and warranties and other statements of fact included in the exhibits to the Registration Statement or the Incorporated
Documents.
Furthermore, we advise you that (i) the Indenture has been qualified under the Trust Indenture Act of 1939, as amended and
(ii) the Registration Statement became effective upon filing under Rule 462(e) under the Securities Act. In addition, we have been orally advised by the SEC that no stop order suspending the effectiveness of the Registration Statement has been
issued. To our knowledge based solely upon such oral communication with the SEC, no proceedings for that purpose have been instituted or are pending or threatened by the SEC.
We express no opinion as to the laws of any jurisdiction other than (i) applicable laws of the State of New York, (ii) applicable laws of the
United States of America, (iii) certain other specified laws of the United States of America to the extent referred to specifically herein and (iv) the DRULPA and the DLLCA. References herein to “applicable laws” mean those laws,
rules and regulations that, in our experience, are normally applicable to transactions of the type contemplated by the Transaction Documents, without our having made any special investigation
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 8
as to the applicability of any
specific law, rule or regulation, and that are not the subject of a specific opinion herein referring expressly to a particular law or laws;
provided however
, that such references (including without limitation those appearing in paragraphs 4
and 5 above) do not include any municipal or other local laws, rules or regulations, or any antifraud, environmental, labor, securities, tax, insurance or antitrust, laws, rules or regulations.
Our opinions expressed herein are subject to the following additional assumptions and qualifications:
(i) The opinions set forth in paragraph 1 above as to the valid existence and good standing of the entities mentioned in such paragraph are based solely
upon our review of certificates and other communications from the appropriate public officials.
(ii) The opinion set forth in paragraph 7
above with respect to United States federal income tax consequences is based upon our interpretations of current United States federal income tax law, including court authority and existing final and temporary U.S. Treasury regulations, which are
subject to change both prospectively and retroactively, and upon the assumptions and qualifications discussed herein. We note that such opinion represents merely our best legal judgment on the matters presented and that others may disagree with our
conclusion. Such opinion is not binding upon the Internal Revenue Service or courts, and there is no guarantee that the Internal Revenue Service will not successfully challenge our conclusions. No assurance can be given that future legislative,
judicial or administrative changes, on either a prospective or retroactive basis, would not adversely affect the accuracy of our conclusions.
(iii)
Treasury Circular 230 Disclosure
. This disclosure is provided to comply with Treasury Circular 230. The opinion set forth in paragraph 7 of this letter is not intended or written to be used, and cannot be used, by any person
for the purpose of avoiding tax penalties that may be imposed on the person. Such opinion was written to support the promoting, marketing or recommending of the transactions or matters addressed by this written advice, and the taxpayer should seek
advice based on the taxpayer’s particular circumstances from an independent tax advisor. No limitation has been imposed by our firm on disclosure of the tax treatment or tax structure of the transaction.
(iv) Our opinions in paragraphs 8, 9 and 10 above may be:
(1) limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer or other similar laws relating to or affecting the rights of creditors generally; and
(2) subject to the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law),
including, without limitation, the possible unavailability of specific performance, injunctive relief or any other equitable remedy and concepts of materiality, reasonableness, good faith and fair dealing.
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 9
(v) Our opinions in
paragraphs 8, 9 and 10 above, insofar as they pertain to the choice of law provisions of the instruments referred to in such paragraphs, are rendered solely in reliance upon New York General Obligations Law Section 5-1401, and are expressly
conditioned upon the assumption that the legality, validity, binding effect and enforceability of said provisions will be determined by a court of the State of New York or a United States federal court sitting in New York and applying New York
choice of law rules, including said Section 5-1401. We express no opinion as to any such provision if such legality, validity, binding effect or enforceability is determined by any other court, and we call your attention to the decision of the
United States District Court for the Southern District of New York in
Lehman Brothers Commercial Corp. v. Minmetals Int’l Non-Ferrous Metals Trading Co.
, 179 F. Supp. 2d 119 (S.D.N.Y. 2000), which, among other things, contains dicta
relating to possible constitutional limitations upon said Section 5-1401. We express no opinion as to any such constitutional limitations upon said Section 5-1401 or their effect, if any, upon any opinion herein expressed.
(vi) We express no opinion as to the validity, effect or enforceability of any provisions:
(1) providing that the assertion or employment of any right or remedy shall not prevent the concurrent assertion or employment of any
other right or remedy, or that each and every remedy shall be cumulative and in addition to every other remedy or that any delay or omission to exercise any right or remedy shall not impair any other right or remedy or constitute a waiver thereof;
(2) relating to severability or separability;
(3) purporting to limit the liability of, or to exculpate, any Person, including without limitation any provision that purports to waive
liability for violation of securities laws;
(4) that constitute an agreement to agree in the future on any matter;
(5) purporting to establish any obligation of any party as absolute or unconditional regardless of the occurrence or
non-occurrence or existence or non-existence of any event or other state of facts;
(6) purporting to obligate any party to
conform to a standard that may not be objectively determinable or employing items that are vague or have no commonly accepted meaning in the context in which used;
(7) relating to consent to jurisdiction insofar as such provisions purport to confer subject matter jurisdiction upon any court that does
not have such jurisdiction, whether in respect of bringing suit, enforcement of judgments or otherwise; or
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 10
(8) purporting to waive rights to trial by jury or rights to object to jurisdiction based on inconvenient forum.
(vii) In making
our examination of executed documents, we have assumed (except to the extent that we expressly opine above) (1) the valid existence and good standing of each of the parties thereto, (2) that such parties had the power and authority,
corporate, partnership, limited liability company or other, to enter into and to incur and perform all their obligations thereunder, (3) the due authorization by all requisite action, corporate, partnership, limited liability company or other,
and the due execution and delivery by such parties of such documents and (4) to the extent such documents purport to constitute agreements, that each of such documents constitutes the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms. In this paragraph (vii), all references to parties to documents shall be deemed to mean and include each of such parties, and each other person (if any) directly or indirectly acting on
its behalf.
(viii) Except to the extent that we expressly opine above, we have assumed that the execution and delivery of the Transaction
Documents, and the incurrence and performance of the obligations thereunder of the parties thereto do not and will not contravene, breach, violate or constitute a default under (with the giving of notice, the passage of time or otherwise)
(a) the certificate or articles of incorporation, certificate of formation, charter, bylaws, limited liability company agreement, limited partnership agreement or similar organic document of any such party, (b) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument, (c) any statute, law, rule, or regulation, (d) any judicial or administrative order or decree of any governmental authority, or (e) any consent, approval,
license, authorization or validation of, or filing, recording or registration with, any governmental authority, in each case, to which any party to the Transaction Documents or any of its subsidiaries or any of their respective properties may be
subject, or by which any of them may be bound or affected. Further, we have assumed the compliance by each such party, other than the Obligors, with all laws, rules and regulations applicable to it, as well as the compliance by each of the Obligors,
and each other person (if any) directly or indirectly acting on its behalf, with all laws, rules and regulations that may be applicable to it by virtue of the particular nature of the business conducted by it or any goods or services produced or
rendered by it or property owned, operated or leased by it, or any other facts pertaining specifically to it. In this paragraph (viii), all references to parties to the Transaction Documents, other than the first such reference, shall be deemed to
mean and include each of such parties, and each other person (if any) directly or indirectly acting on its behalf.
(ix) Without limiting
the generality of our qualification in clause (1) of paragraph (iv) above, we express no opinion as to the applicability or effect of any preference, fraudulent transfer or conveyance, or similar law (including, without limitation,
Section 548 of Title 11 of the United States Code or Article 10 of the New York Debtor Creditor Law) on the Transaction Documents or any transactions contemplated thereby or any opinion expressed herein.
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 11
(x) We express no
opinion as to the effect of the laws of any jurisdiction in which any holder of any Security is located (other than the State of New York) that limit the interest, fees or other charges such holder may impose for the loan or use of money or other
credit.
(xi) Except to the extent that we expressly opine above, we have assumed that no authorization, consent or other approval of,
notice to or registration, recording or filing with any court, governmental authority or regulatory body (other than routine informational filings, filings under the Securities Act and filings under the Securities Exchange Act of 1934, as amended)
is required to authorize, or is required in connection with the transactions contemplated by the Transaction Documents, the execution or delivery of thereof by or on behalf of any party thereto or the incurrence or performance by any of the parties
thereto of its obligations thereunder.
(xii) We have assumed that at all times there will be a single trustee appointed and acting for the
holders of all series of Debt Securities (as defined in the Base Indenture) from time to time issued and outstanding under the Base Indenture.
(xiii) With respect to our opinions expressed above as they relate to provisions of the Base Indenture relating to debt securities denominated in a currency other than U.S. dollars, we note that (i) a New York statute provides that a
judgment rendered by a court of the State of New York in respect of an obligation denominated in any such other currency would be rendered in such other currency and would be converted into Dollars at the rate of exchange prevailing on the date of
entry of the judgment, and (ii) a judgment rendered by a federal court sitting in the State of New York in respect of an obligation denominated in any such other currency may be expressed in Dollars, but we express no opinion as to the rate of
exchange such federal court would apply.
(xiv) We express no opinion as to Section 13.15 of the Indenture or any other provision of
any Transaction Document providing for indemnity or reimbursement by any party against any loss in obtaining the currency due to such party under any of the Transaction Documents from a court judgment in another currency.
(xv) We express no opinion as to Sections 4.06 or 7.06 of the Indenture.
(xvi) We point out that the submissions to the jurisdiction of the United States District Court for the Southern District of New York and the waivers of objection to venue contained in the Indenture cannot supersede a
federal court’s discretion in determining whether to transfer an action to another court.
(xvii) We point out that the agent for
service of process appointed pursuant to the Indenture, in its discretion, may fail to agree, or terminate its agreement, to serve as agent for service of process for the Obligors, in which event service of process upon such party would not be valid
and effective for the purposes described in the Indenture.
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 12
(xviii) We advise
you that certain of the guaranty and surety waivers contained in the Indenture may be unenforceable in whole or in part.
This opinion is
being furnished only to you in connection with the sale of the Securities under the Underwriting Agreement occurring today and is solely for your benefit and is not to be used, circulated, quoted or otherwise referred to for any other purpose or
relied upon by any other Person, including any purchaser of any Security from you and any subsequent purchaser of any Security, without our express written permission. The opinions expressed herein are as of the date hereof only and are based on
laws, orders, contract terms and provisions, and facts as of such date, and we disclaim any obligation to update this opinion letter after such date or to advise you of changes of facts stated or assumed herein or any subsequent changes in law.
Very truly yours,
Exhibit B
Opinion of Gable & Gotwals
September [
], 2006
To each of the Underwriters named
in the Underwriting Agreement referenced
herein
c/o Citigroup Global Markets Inc.
388/390 Greenwich
Street
New York, NY 10013
|
|
Re:
|
[
]% Senior Notes due 2012, [
]% Senior Notes due 2016 and
|
[
]% Senior Notes due 2036, issued by ONEOK Partners, L.P.
Ladies and Gentlemen:
We
have acted as special counsel to ONEOK Partners, L.P., a Delaware limited partnership (the “
Issuer
”), in connection with the Underwriting Agreement dated September [__], 2006 (the “
Underwriting Agreement
”) among
(i) the Issuer, (ii) ONEOK Partners Intermediate Limited Partnership, a Delaware limited partnership, as guarantor of the Securities (as defined below) (the “
Guarantor
”), and (iii) Citigroup Global Markets, Inc. and
SunTrust Robinson Humphrey, as representatives of the several underwriters named therein (the “
Underwriters
”), relating to the sale by the Issuer to the Underwriters of
$[
] aggregate principal amount of the Issuer’s [
]% Senior Notes due 2012 (the “
2012 Notes
”),
$[
] aggregate principal amount of the Issuer’s [
]% Senior Notes due 2016 (the “
2016 Notes
”) and
$[
] aggregate principal amount of the Issuer’s [
]% Senior Notes due 2036 (the “
2036 Notes
,” and collectively with the
2012 Notes and the 2016 Notes, the “
Securities
”). The Issuer and the Guarantor are referred to collectively herein as the “
Obligors
.”
The 2012 Notes are being issued under an Indenture, dated as of September [__], 2006 (the “
Base Indenture
”), among the Issuer and Wells Fargo Bank, N.A., as trustee (the “
Trustee
”),
as amended and supplemented by the First Supplemental Indenture thereto, dated as of September [
], 2006 (the “
First Supplemental Indenture
”), among the Issuer, the Guarantor and the Trustee. The 2016
Notes are being issued under the Base Indenture, as amended and supplemented by the Second Supplemental Indenture thereto, dated as of September [
], 2006 (the “
Second Supplemental Indenture
”), among
the Issuer, the Guarantor and the Trustee. The 2036 Notes are being issued under the Base Indenture, as amended and supplemented by the Third Supplemental Indenture thereto, dated as of September [
], 2006 (the
“
Third Supplemental Indenture
”), among the Issuer, the Guarantor and the Trustee. The Base Indenture, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental
Indenture, is referenced herein as the “
Indenture
.”
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 2
We are furnishing
this opinion letter to you pursuant to Section [6(b)] of the Underwriting Agreement.
In rendering the opinions set forth herein, we have
examined and relied on originals or copies, certified or otherwise identified to our satisfaction, of the following:
(a) the preliminary
prospectus supplement dated September [__], 2006, relating to the Securities in the form filed with the SEC pursuant to Rule 424(b) of the General Rules and Regulations under the Securities Act (the “
Rules and Regulations
”) (such
preliminary prospectus supplement, together with the base prospectus supplemented thereby, being referred to herein as the “
Preliminary Prospectus
”);
(b) the prospectus supplement dated September [__], 2006, relating to the Securities in the form filed with the SEC pursuant to Rule 424(b) of the Rules and Regulations (such prospectus supplement, together with the
base prospectus supplemented thereby, being referred to herein as the “
Prospectus
”); and
(c) a certificate dated the date
hereof (the “
Opinion Support Certificate
”), executed by an officer of ONEOK Partners GP, L.L.C., the general partner of the Issuer (the “
General Partner
”), a copy of which is attached hereto as
Exhibit A
;
(d) each of the Transaction Documents (as defined below);
(e) each of the Applicable Agreements (as defined below); and
(f) each of the Applicable Orders (as
defined below).
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the
General Partner, ONEOK ILP GP, L.L.C., the general partner of the Guarantor (the “
ILP GP
”), and the Obligors and such agreements, certificates of public officials, certificates of officers or other representatives of the General
Partner, the ILP GP, the Obligors and others, and such other documents, certificates and records, as we have deemed necessary or appropriate as a basis for the opinions set forth herein. In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to authentic original documents of all documents submitted to us as certified or photostatic copies. As to any
facts material to the opinions and statements expressed herein that we did not independently establish or verify, we have relied, to the extent we deem appropriate, upon (i) oral or written statements and representations of officers and other
representatives of the General Partner, the ILP GP and the Obligors (including without limitation the facts certified in the Opinion Support Certificates) and (ii) statements and certifications of public officials and others.
As used herein the following terms have the respective meanings set forth below:
“
Applicable Agreements
” means those agreements and other instruments identified on Schedule 1 to the Opinion Support Certificate, which
have been certified by officers of the
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 3
General Partner as being every
indenture, mortgage, deed of trust, loan, credit agreement, and financing lease that is material in relation to the business, operations, affairs, financial condition, assets, or properties of the Issuer and its subsidiaries, considered as a single
enterprise by which the Issuer or any of its subsidiaries is bound or by which the Issuer or any of its subsidiaries or any of their respective properties may be bound or affected.
“
Applicable Orders
” means those orders or decrees of governmental authorities identified on Schedule 2 to the Opinion Support
Certificate, which have been certified by officers of the General Partner as being every order or decree of any governmental authority by which the Issuer or any of its subsidiaries or any of their respective properties is bound, that is material in
relation to the business, operations, affairs, financial condition, assets, or properties of the Issuer and its subsidiaries, considered as a single enterprise, other than those orders or decrees issued in the ordinary course of the Issuer’s or
its subsidiaries’ business relating to the operation of their businesses or assets and not relating to the issuance of securities by the Issuer or any of its subsidiaries.
“
Transaction Documents
” means collectively, the Underwriting Agreement, the Indenture and the Securities.
Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:
1. ONEOK Field Services Company, L.L.C. and ONEOK Midstream Gas Supply, L.L.C. are each validly existing as a limited liability company and
in good standing under the laws of the State of Oklahoma.
2. None of (i) the execution and delivery of, or the incurrence or
performance by the Obligors of their respective obligations under, each of the Transaction Documents, each in accordance with its terms, (ii) the offering, issuance, sale and delivery of the Securities pursuant to the Underwriting Agreement or
(iii) the issuance of the guaranties of the Securities by the Guarantor (A) constituted, constitutes or will constitute a breach or violation of, or a default (or an event which, with notice or lapse of time or both, would constitute such
a default), under any Applicable Agreement, (B) resulted, results or will result in the creation of any security interest in, or lien upon, any of the property or assets of either Obligor pursuant to any Applicable Agreement or
(C) resulted, results or will result in the contravention of any Applicable Order.
3. No Governmental Approval, which has not been
obtained or taken and is not in full force and effect, is required to authorize, or is required for the execution and delivery by the General Partner, on behalf of the Issuer, and the ILP GP, on behalf of the Guarantor of, the Transaction Documents
or the incurrence or performance of the obligations of the Obligors thereunder, or the enforceability of any such Transaction Documents against either of the Obligors that is a party thereto. As used in this paragraph, “Governmental
Approval” means any consent, approval, license, authorization or validation of, or filing, recording or registration with, any executive, legislative, judicial, administrative or regulatory body of the State of Oklahoma, pursuant to applicable
laws of the State of Oklahoma.
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [
], 2006
Page 4
Our opinions
expressed herein are subject to the following qualifications:
(i) In rendering the opinions set forth above regarding Applicable
Agreements, we do not express any opinion as to whether the execution or delivery of the Transaction Documents, or the incurrence or performance by either of the Obligors of its obligations thereunder will constitute a violation of, or a default
under or as a result of, any covenant, restriction or provision with respect to any financial ratio or test or any aspect of the financial condition or results of operation of either of the Obligors.
(ii) We are members of the bar of the State of Oklahoma and we express no opinion with regard to any matter which may be governed by the law of any
jurisdiction other than the State of Oklahoma.
(iii) Except as specifically noted in this opinion, we have not (i) made any
independent review or special investigation concerning any agreements, instruments, encumbrances, orders, judgments, or decrees by which the Obligors may be specifically bound, or (except with respect to the general application of the laws of the
State of Oklahoma) any laws, rules or other regulations by which the Obligors may be bound; (ii) made any independent investigation as to the existence of any litigation, tax claims, actions, suits, investigations or disputes, if any, pending
or threatened against any of the Obligors; or (iii) made any other independent investigation of factual matters.
(iv) References
herein to “applicable laws” mean those laws, rules and regulations that, in our experience, are normally applicable to transactions of the type contemplated by the Transaction Documents, without our having made any special investigation as
to the applicability of any specific law, rule or regulation; provided however, that such references do not include any municipal or other local laws, rules or regulations, or any antifraud, environmental, labor, securities, tax, insurance or
antitrust, laws, rules or regulations.
(v) Our opinions in paragraph 1 are based solely on certificates of the Secretary of State of
Oklahoma, each dated as of a recent date, as to the existence and good standing of ONEOK Field Services Company, L.L.C. and ONEOK Midstream Gas Supply, L.L.C.
This opinion is being furnished only to you in connection with the sale of the Securities under the Underwriting Agreement occurring today and is solely for your benefit and is not to be used, circulated, quoted or
otherwise referred to for any other purpose or relied upon by any other Person, including any purchaser of any Security from you and any subsequent purchaser of any Security, without our express written permission. The opinions expressed herein are
as of the date hereof only and are based on laws, orders, contract terms and provisions, and facts as of such date, and we disclaim any obligation to update this opinion letter after such date or to advise you of changes of facts stated or assumed
herein or any subsequent changes in law.
Very truly yours,
Exhibit 4.1
Execution Copy
ONEOK PARTNERS, L.P.
as Issuer,
and
WELLS FARGO
BANK, N.A.,
as Trustee
INDENTURE
Dated as of September 25, 2006
Senior Debt Securities
CROSS-REFERENCE TABLE
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|
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TIA Section
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Indenture Section
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310 (a)
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7.10
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(b)
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7.10
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(c)
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N.A.
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311 (a)
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7.11
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(b)
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7.11
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(c)
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N.A.
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312 (a)
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5.01
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(b)
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5.02
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(c)
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5.02
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313 (a)
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5.03
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(b)
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5.03
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(c)
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5.03 & 12.03
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(d)
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5.03
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314 (a)
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4.05
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(b)
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|
N.A.
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(c)(1)
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12.05
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(c)(2)
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12.05
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(c)(3)
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N.A.
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(d)
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N.A.
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(e)
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12.05
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(f)
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N.A.
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315 (a)
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7.01
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(b)
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6.07 & 13.03
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(c)
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7.01
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(d)
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7.01
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(e)
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6.08
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316 (a) (last sentence)
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1.01
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(a)(1)(A)
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6.06
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(a)(1)(B)
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6.06
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(a)(2)
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9.01(e)
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(b)
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6.04
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(c)
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5.04
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317 (a)(1)
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6.02
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(a)(2)
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6.02
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(b)
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4.04
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318 (a)
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12.07
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N.A. means Not Applicable
NOTE: This Cross-Reference table shall not, for any purpose, be deemed part of this Indenture.
i
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.01.
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Definitions
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1
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Section 1.02.
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Other Definitions
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9
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Section 1.03.
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Incorporation by Reference of Trust Indenture Act
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9
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Section 1.04.
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Rules of Construction
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9
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ARTICLE II
DEBT SECURITIES
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Section 2.01.
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Forms Generally
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10
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Section 2.02.
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Form of Trustee’s Certificate of Authentication
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10
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Section 2.03.
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Principal Amount; Issuable in Series
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10
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Section 2.04.
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Execution of Debt Securities
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13
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Section 2.05.
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Authentication and Delivery of Debt Securities
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13
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Section 2.06.
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Denomination of Debt Securities
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14
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Section 2.07.
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Registration of Transfer and Exchange
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14
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Section 2.08.
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Temporary Debt Securities
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16
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Section 2.09.
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Mutilated, Destroyed, Lost or Stolen Debt Securities
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16
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Section 2.10.
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Cancellation of Surrendered Debt Securities
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17
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Section 2.11.
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Provisions of the Indenture and Debt Securities for the Sole Benefit of the Parties and the Holders
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17
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Section 2.12.
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Payment of Interest; Interest Rights Preserved
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17
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Section 2.13.
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Securities Denominated in Dollars
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18
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Section 2.14.
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Wire Transfers
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18
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Section 2.15.
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Securities Issuable in the Form of a Global Security
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18
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Section 2.16.
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Medium Term Securities
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21
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Section 2.17.
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Defaulted Interest
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21
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Section 2.18.
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CUSIP Numbers
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22
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ARTICLE III
REDEMPTION OF DEBT SECURITIES
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Section 3.01.
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Applicability of Article
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22
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Section 3.02.
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Notice of Redemption; Selection of Debt Securities
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22
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Section 3.03.
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Payment of Debt Securities Called for Redemption
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24
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Section 3.04.
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Mandatory and Optional Sinking Funds
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24
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Section 3.05.
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Redemption of Debt Securities for Sinking Fund
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25
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ii
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ARTICLE IV
COVENANTS
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Section 4.01.
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Payment of Principal of, and Premium, If Any, and Interest on, Debt Securities
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26
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Section 4.02.
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Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt Securities
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26
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Section 4.03.
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Appointment to Fill a Vacancy in the Office of Trustee
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27
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Section 4.04.
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Duties of Paying Agents, etc.
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27
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Section 4.05.
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Compliance Certificate
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28
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Section 4.06.
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Payment of Additional Amounts
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28
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Section 4.07.
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SEC Reports; Financial Statements
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30
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Section 4.08.
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Existence
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30
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Section 4.09.
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Waiver of Certain Covenants
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31
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Section 4.10.
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Limitations on Liens
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31
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Section 4.11.
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Limitations on Sale-Leaseback Transactions
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33
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ARTICLE V
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HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE
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Section 5.01.
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Partnership to Furnish Trustee Information as to Names and Addresses of Holders; Preservation of Information
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33
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Section 5.02.
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|
Communications to Holders
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34
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Section 5.03.
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Reports by Trustee
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34
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Section 5.04.
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Record Dates for Action by Holders
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34
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ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
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Section 6.01.
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Events of Default
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34
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Section 6.02.
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|
Collection of Debt by Trustee, etc.
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37
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Section 6.03.
|
|
Application of Moneys Collected by Trustee
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38
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Section 6.04.
|
|
Limitation on Suits by Holders
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39
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Section 6.05.
|
|
Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default
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39
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Section 6.06.
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Rights of Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to Waive Default
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39
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Section 6.07.
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Trustee to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain Circumstances
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40
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Section 6.08.
|
|
Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against the Trustee
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40
|
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ARTICLE VII
CONCERNING THE TRUSTEE
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Section 7.01.
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Certain Duties and Responsibilities
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41
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Section 7.02.
|
|
Certain Rights of Trustee
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42
|
iii
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|
|
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|
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Section 7.03.
|
|
Trustee Not Liable for Recitals in Indenture or in Debt Securities
|
|
43
|
|
Section 7.04.
|
|
Trustee, Paying Agent or Registrar May Own Debt Securities
|
|
43
|
|
Section 7.05.
|
|
Moneys Received by Trustee to Be Held in Trust
|
|
43
|
|
Section 7.06.
|
|
Compensation and Reimbursement
|
|
43
|
|
Section 7.07.
|
|
Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed
|
|
44
|
|
Section 7.08.
|
|
Separate Trustee; Replacement of Trustee
|
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44
|
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Section 7.09.
|
|
Successor Trustee by Merger
|
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46
|
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Section 7.10.
|
|
Eligibility; Disqualification
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|
46
|
|
Section 7.11.
|
|
Preferential Collection of Claims Against Partnership
|
|
46
|
|
Section 7.12.
|
|
Compliance with Tax Laws
|
|
46
|
|
Section 7.13.
|
|
Administration of Trust
|
|
46
|
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|
|
ARTICLE VIII
CONCERNING THE HOLDERS
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|
|
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Section 8.01.
|
|
Evidence of Action by Holders
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47
|
|
Section 8.02.
|
|
Proof of Execution of Instruments and of Holding of Debt Securities
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|
47
|
|
Section 8.03.
|
|
Who May Be Deemed Owner of Debt Securities
|
|
47
|
|
Section 8.04.
|
|
Instruments Executed by Holders Bind Future Holders
|
|
47
|
|
|
|
ARTICLE IX
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
Section 9.01.
|
|
Purposes for Which Supplemental Indenture May Be Entered into Without Consent of Holders
|
|
48
|
|
Section 9.02.
|
|
Modification of Indenture with Consent of Holders of Debt Securities
|
|
50
|
|
Section 9.03.
|
|
Effect of Supplemental Indentures
|
|
51
|
|
Section 9.04.
|
|
Debt Securities May Bear Notation of Changes by Supplemental Indentures
|
|
51
|
|
|
|
ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
|
|
|
|
|
|
Section 10.01.
|
|
Consolidations and Mergers of the Partnership or any Guarantor
|
|
51
|
|
Section 10.02.
|
|
Rights and Duties of Successor Partnership and Successor Guarantor
|
|
52
|
|
|
|
ARTICLE XI
SATISFACTION AND DISCHARGE OF
INDENTURE; DEFEASANCE; UNCLAIMED
MONEYS
|
|
|
|
|
|
Section 11.01.
|
|
Applicability of Article
|
|
53
|
|
Section 11.02.
|
|
Satisfaction and Discharge of Indenture; Defeasance
|
|
53
|
|
Section 11.03.
|
|
Conditions of Defeasance
|
|
54
|
|
Section 11.04.
|
|
Application of Trust Money
|
|
55
|
|
Section 11.05.
|
|
Repayment to Partnership
|
|
55
|
|
Section 11.06.
|
|
Indemnity for U.S. Government Obligations
|
|
55
|
|
Section 11.07.
|
|
Reinstatement
|
|
55
|
iv
|
|
|
|
|
|
|
|
|
ARTICLE XII
GUARANTEE OF DEBT SECURITIES
|
|
|
|
|
|
Section 12.01.
|
|
Unconditional Guarantee
|
|
56
|
|
Section 12.02.
|
|
Limitation on Guarantor Liability
|
|
58
|
|
Section 12.03.
|
|
Execution and Delivery of Notation of Guarantee
|
|
58
|
|
Section 12.04.
|
|
Release of Guarantee
|
|
59
|
|
|
|
ARTICLE XIII
MISCELLANEOUS PROVISIONS
|
|
|
|
|
|
Section 13.01.
|
|
Successors and Assigns of Partnership Bound by Indenture
|
|
59
|
|
Section 13.02.
|
|
Acts of Board, Committee or Officer of Successor Partnership Valid
|
|
59
|
|
Section 13.03.
|
|
Required Notices or Demands
|
|
59
|
|
Section 13.04.
|
|
Indenture and Debt Securities to Be Construed in Accordance with the Laws of the State of New York
|
|
61
|
|
Section 13.05.
|
|
Officers’ Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the Partnership
|
|
61
|
|
Section 13.06.
|
|
Payments Due on Legal Holidays
|
|
61
|
|
Section 13.07.
|
|
Provisions Required by TIA to Control
|
|
62
|
|
Section 13.08.
|
|
Computation of Interest on Debt Securities
|
|
62
|
|
Section 13.09.
|
|
Rules by Trustee, Paying Agent and Registrar
|
|
62
|
|
Section 13.10.
|
|
Non-Recourse to the General Partner; No Personal Liability of Directors, Officers, Employees or Partners
|
|
62
|
|
Section 13.11.
|
|
Severability
|
|
62
|
|
Section 13.12.
|
|
Effect of Headings
|
|
62
|
|
Section 13.13.
|
|
Indenture May Be Executed in Counterparts
|
|
62
|
|
Section 13.14.
|
|
Consent to Jurisdiction and Service of Process
|
|
62
|
|
Section 13.15.
|
|
Judgment Currency
|
|
63
|
v
THIS INDENTURE dated as of September 25, 2006 is among ONEOK Partners, L.P., a Delaware limited
partnership (the “Partnership”), and Wells Fargo Bank, N.A., a national bank with trust powers, as trustee (the “Trustee”).
RECITALS OF THE PARTNERSHIP
The Partnership has duly authorized the execution and delivery of this Indenture to provide
for the issuance from time to time of the Partnership’s debentures, notes, bonds or other evidences of indebtedness to be issued in one or more series unlimited as to principal amount (herein called “Debt Securities”), as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement of the Partnership, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the Debt Securities are authenticated, issued and delivered, and in consideration of the premises, and of the purchase and acceptance of the Debt Securities
by the holders thereof, the Partnership and the Trustee covenant and agree with each other, for the benefit of the respective Holders from time to time of the Debt Securities or any series thereof, as follows:
ARTICLE I
DEFINITIONS AND
INCORPORATION BY REFERENCE
Section 1.01.
Definitions
.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition, “control,” when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent” means any Registrar or Paying Agent.
“Attributable Indebtedness” means with respect to a Sale-Leaseback Transaction involving any Property, as of the time of determination, the least of (i) the fair market value of such Property (as
determined in good faith by the Board of Directors); (ii) the present value of the total Net Amount of Rent required to be paid under the lease involved in such Sale-Leaseback Transaction during the remaining term thereof (including any renewal
term exercisable at the lessee’s option or period for which the lease has been extended), discounted at the rate of interest set forth or implicit in the terms of such lease, compounded semiannually; and (iii) if the obligation with
respect to such Sale-Leaseback Transaction constitutes an obligation that is required to be classified and accounted for as a Capital Lease Obligation for financial reporting purposes in accordance with GAAP, the amount equal to the capitalized
amount of such obligation required to be paid by the lessee as determined in accordance with GAAP and included in the financial statements of the lessee.
“Bankruptcy Law” means Title 11, United States Code, as amended, or any similar federal or
state law for the relief of debtors.
“Board of Directors” means the board of directors of the General Partner or, if the General
Partner does not have a board of directors, then the group or person serving in the same or similar decision making capacity.
“Business Day” means any day other than a Legal Holiday.
“Capital Interests” of any Person means any and all
shares, interests, participations, rights or other equivalents (however designated) of capital stock of such Person, including, without limitation, with respect to partnerships, partnership interests (whether general or limited), and with respect to
limited liability companies, member interests and any other interest or participation that confers on the holder thereof the right to receive a share of the profits and losses of, or distributions of assets of, such Person.
“Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized on a balance sheet in accordance with GAAP.
“Consolidated Net Tangible
Assets” means, at any date of determination, the aggregate amount of total assets included in the most recent quarterly or annual balance sheet of the Partnership and its consolidated Subsidiaries prepared in accordance with GAAP less
applicable reserves reflected in such balance sheet, after deducting the following amounts: (i) all current liabilities reflected in such balance sheet, provided, however, that there shall not be deducted billings recorded as revenues deferred
pending the outcome of rate proceedings (less applicable income taxes thereon), if and to the extent the obligation to refund the same shall not have been finally determined; (ii) appropriate allowance for minority interests in Capital
Interests of Subsidiaries; and (iii) all goodwill, trade names, trademarks, patents, unamortized debt discount and expenses and other like intangibles reflected in such balance sheet.
“Custodian” means any receiver, trustee, assignee, liquidator, sequester or similar official under any Bankruptcy Law.
“Debt” means obligations for money borrowed, evidenced by notes, bonds, debentures or other similar evidences of borrowed money.
“Debt Security” or “Debt Securities” has the meaning stated in the first recital of this Indenture and more particularly means any
debt security or debt securities, as the case may be, of any series authenticated and delivered under this Indenture.
“Default”
means any event, act or condition that is, or after notice or the passage of time or both would be, an Event of Default.
“Depositary” means, unless otherwise specified by the Partnership pursuant to either Section 2.03 or Section 2.15, with respect to Debt Securities of any series issuable or issued in whole or in part in the form of one
or more Global Securities, The Depository Trust Company, New York, New York, or any successor thereto registered as a clearing agency under the Exchange Act or other applicable statute or regulations.
2
“Dollar” or “$” means such currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
“ERISA” means the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations thereunder.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and any successor statute.
“Floating Rate Security” means a Debt Security that provides for
the payment of interest at a variable rate determined periodically by reference to an interest rate index specified pursuant to Section 2.03.
“Funded Debt” means all Debt maturing one year or more from the date of the incurrence, creation, assumption or guarantee thereof, all Debt directly or indirectly renewable or extendable, at the option of the debtor, by its terms
or by the terms of any instrument or agreement relating thereto, to a date one year or more from the date of the incurrence, creation, assumption or guarantee thereof, and all Debt under a revolving credit or similar agreement obligating the lender
or lenders to extend credit over a period of one year or more.
“GAAP” means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants, the statements and pronouncements of the Financial Accounting Standards Board and such other statements by such other
entities as have been approved by a significant segment of the accounting profession in the United States of America, which are applicable at the date of determination.
“General Partner” means ONEOK Partners GP, L.L.C., a Delaware limited liability company, and any successor thereto.
“Global Security” means with respect to any series of Debt Securities issued hereunder, a Debt Security which is executed by the Partnership and authenticated and delivered by the Trustee to the Depositary
or pursuant to the Depositary’s instruction, all in accordance with this Indenture and any indentures supplemental hereto, or resolution of the Board of Directors and set forth in an Officers’ Certificate, which shall be registered in the
name of the Depositary or its nominee and which shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all the Outstanding Debt Securities of such series or any portion thereof, in either case having the
same terms, including, without limitation, the same original issue date, date or dates on which principal is due and interest rate or method of determining interest.
“Government Contract Lien” means any Lien in favor of the United States of America or any state, territory, county, city, municipality or other possession thereof (or the District of Columbia), or any
department, agency, instrumentality or political subdivision thereof (or the District of Columbia) to secure partial, progress, advance or other payments pursuant to any
3
contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase
price or the cost of constructing, developing or improving the property subject to such Liens.
“guarantee” means a guarantee
(other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, letters of credit and reimbursement agreements in respect thereof or pledging
assets to secure), of all or any part of any Debt.
“Guarantor” means (i) each Subsidiary of the Partnership that becomes a
guarantor of any series of the Debt Securities pursuant to Article XII and (ii) any Subsidiary of the Partnership that is a successor to any Subsidiary of the Partnership referred to in clause (i). The term “Guarantor” shall not
include any Subsidiary of the Partnership that shall have been released from its obligations pursuant to Section 12.04 hereof.
“Holder,” “Holder of Debt Securities” or other similar terms means, a Person in whose name a Debt Security is registered in the Debt Security Register.
“Indenture” means this instrument as originally executed, or, if amended or supplemented as herein provided, as so amended or supplemented and
shall include the form and terms of particular series of Debt Securities as contemplated hereunder, whether or not a supplemental indenture is entered into with respect thereto.
“Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a Place of Payment are
authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a Place of Payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for
the intervening period.
“Lien” means any lien, mortgage, pledge, encumbrance, charge or security interest securing Debt;
provided, however, that the following types of transactions will not be considered for purposes of this definition to result in a Lien: (i) any acquisition by the Partnership or any Restricted Subsidiary of any property or assets subject to any
reservation or exception under the terms of which any vendor, lessor or assignor creates, reserves or excepts or has created, reserved or excepted an interest in oil, gas or any other mineral in place or the proceeds thereof, (ii) any
conveyance or assignment whereby the Partnership or any Restricted Subsidiary conveys or assigns to any Person or Persons an interest in oil, gas or any other mineral in place or the proceeds thereof, (iii) any Lien upon any property or assets
either owned or leased by the Partnership or any Restricted Subsidiary or in which the Partnership or any Restricted Subsidiary owns an interest that secures for the benefit of the Person or Persons paying the expenses of developing or conducting
operations for the recovery, storage, transportation or sale of the mineral resources of such property or assets (or property or assets with which it is unitized) the payment to such Person or Persons of the Partnership’s or the Restricted
Subsidiary’s proportionate part of such development or operating expenses or (iv) any hedging arrangements entered into in the ordinary course of business, including any obligation to deliver any mineral, commodity or asset in connection
therewith.
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“Net Amount of Rent” means, as to any lease for any period, the aggregate amount of rent
payable by the lessee with respect to such period after excluding amounts, whether or not designated as rent or additional rent, required to be paid on account of or contingent upon maintenance and repairs, insurance, taxes, assessments, water rates
and similar charges. In the case of any lease that is terminable by the lessee upon the payment of a penalty, such net amount shall be the lesser of (i) the net amount determined assuming termination of the lease on the first date such lease
may be terminated (in which case such net amount shall also include the amount of such penalty, but no rent shall be considered as payable under such lease subsequent to the first date upon which it may be so terminated) and (ii) such net
amount assuming no such termination.
“Non-Recourse Debt” means, at any time, Debt incurred after the date of the Indenture by
the Partnership or a Restricted Subsidiary in connection with the acquisition of property or assets by the Partnership or a Restricted Subsidiary or the financing of the construction of or improvements on property, whenever acquired, provided that,
under the terms of such Debt and pursuant to applicable law, the recourse at such time and thereafter of the lenders with respect to such Debt is limited to the property or assets so acquired, or such construction or improvements, including Debt as
to which a performance or completion guarantee or similar undertaking was initially applicable to such Debt or the related property or assets if such guarantee or similar undertaking has been satisfied and is no longer in effect.
“obligor” on any series of Debt Securities means the Partnership, each Guarantor, if any, with respect to such series of Debt Securities and
any successor obligor with respect to such series of Debt Securities.
“Officer” means, with respect to any Person, the Chairman
of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such
Person;
provided, however
, that an Officer with respect to a partnership shall mean an Officer of its general partner or general partners.
“Officers’ Certificate” means a certificate signed on behalf of the Partnership by two Officers of the General Partner, one of whom must be the principal executive officer, the principal financial officer, the treasurer or
the principal accounting officer of the General Partner, that meets the requirements of Section 13.05.
“Opinion of Counsel”
means a written opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 13.05 hereof. The counsel may be an employee of or counsel to the Partnership or any Guarantor.
“Original Issue Discount Debt Security” means any Debt Security which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
“Outstanding,” when used
with respect to any series of Debt Securities, means, as of the date of determination, all Debt Securities of that series theretofore authenticated and delivered under this Indenture, except: (a) Debt Securities of that series theretofore
canceled by the Trustee
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or delivered to the Trustee for cancellation; (b) Debt Securities of that series for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Partnership) in trust or set aside and segregated in trust by the Partnership (if the Partnership shall act as its own Paying Agent)
for the Holders of such Debt Securities;
provided
that, if such Debt Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(c) Debt Securities of that series which have been paid pursuant to Section 2.09 or in exchange for or in lieu of which other Debt Securities have been authenticated and delivered pursuant to this Indenture, other than any such Debt
Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Debt Securities are held by a bona fide purchaser in whose hands such Debt Securities are valid obligations of the Partnership;
provided, however
, that in determining whether the Holders of the requisite principal amount of the Outstanding Debt Securities of any series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Debt
Securities owned by the Partnership or any other obligor upon the Debt Securities or any Affiliate of the Partnership or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Debt Securities which an officer of the Trustee actually knows to be so owned shall be so disregarded. Debt Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Debt Securities and that the pledgee is not the Partnership or
any other obligor upon the Debt Securities or an Affiliate of the Partnership or of such other obligor. In determining whether the Holders of the requisite principal amount of Outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Debt Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
“Partnership” means the Person named as the “Partnership” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter
“Partnership” shall mean such successor Person.
“Partnership Order” means a written request or order signed in the
name of the Partnership by an Officer of the General Partner, and delivered to the Trustee, or if the Partnership shall change its form of entity to other than a limited partnership or its management structure, by Persons or officers, members,
agents and the like positions comparable to those of the foregoing nature, as applicable.
“Paying Agent” means any Person
authorized by the Partnership to pay the principal of or any premium or interest on a series of Debt Securities on behalf of the Partnership.
“Person” means any individual, corporation, partnership, limited partnership, joint venture, limited liability company, incorporated or unincorporated association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity of any kind.
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“Principal Property” means any property located in the United States, except any such property
that in the opinion of the Board of Directors is not of material importance to the total business conducted by the Partnership and its consolidated Subsidiaries.
“Property” means any right or interest of the Partnership or any of its Subsidiaries in and to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
“Redemption Date,” when used with respect to any Debt Security to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
“Restricted Subsidiary” means any Subsidiary that owns or leases a Principal Property.
“Sale-Leaseback Transaction” means any arrangement with any Person pursuant to which the Partnership or any of its Subsidiaries leases any
Principal Property that has been or is to be sold or transferred by the Partnership or its Subsidiaries to such Person, other than (i) any such transaction involving a lease for a term of not more than three years or classified as an operating
lease under GAAP, (ii) any such transaction between the Partnership and any of its Subsidiaries or between any Subsidiaries of the Partnership, and (iii) any such transaction executed by the time of, or within 12 months after the latest
of, the acquisition, the completion of construction, development or improvement, or the commencement of commercial operation of the Partnership’s Principal Property subject to such leasing transaction.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and any successor statute.
“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control of the issuer unless such contingency has occurred).
“Subsidiary” of any Person means (i) any Person of which at the time of such determination more than 50% of the total voting power of
Capital Interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof (or other Persons constituting an equivalent governing body) is owned or controlled, directly or
indirectly, by such Person or one or more of the Subsidiaries of such Person (or a combination thereof), (ii) in the case of a partnership, any Person of which at the time of such determination more than 50% of the partners’ Capital
Interests (considering all partners’ Capital Interests as a single class) is owned or controlled, directly or indirectly, by such Person or one or more Subsidiaries of such Person, or (iii) any other Person with respect to which such
Person or one or more of the Subsidiaries of that Person (or a combination thereof) has the power to control, by contract or otherwise, the board of directors, managers or trustees thereof or equivalent governing body or otherwise controls such
entity. Unless otherwise provided, references in this Indenture to a Subsidiary are to a Subsidiary of the Partnership.
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“Taxes” means any tax, duty, levy, impost, assessment or other governmental charge of whatever
nature imposed or levied by or on behalf of the Government of Canada or of any province or territory thereof or by an authority or agency therein or thereof having the power to tax, including any interest, penalties or other charges in respect
thereof.
“TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§77aaa-77bbbb), as in effect on the date
of this Indenture as originally executed and, to the extent required by law, as amended.
“Trustee” initially means Wells Fargo
Bank, N.A., a national bank with trust powers, and any other Person or Persons appointed as such from time to time pursuant to Section 7.08, and, subject to the provisions of Article VII, includes its or their successors and assigns. If at
any time there is more than one such Person, “Trustee” as used with respect to the Debt Securities of any series shall mean the Trustee with respect to the Debt Securities of that series.
“Trust Officer” means any officer or assistant officer of the Trustee assigned by the Trustee to administer its corporate trust matters.
“U.S. Dollar Equivalent” means, with respect to any monetary amount in a currency other than the U.S. dollar, at or as of any
time for the determination thereof, the amount of U.S. dollars obtained by converting such foreign currency involved in such computation into U.S. dollars at the spot rate for the purchase of U.S. dollars with the applicable foreign currency as
quoted by Reuters (or, if Reuters ceases to provide such spot quotations, by any other reputable service as is providing such spot quotations, as selected by the Partnership) at approximately 11:00 a.m. (New York City time) on the date not more
than two Business Days prior to such determination.
“U.S. Government Obligations” means direct obligations of the United States
of America, obligations on which the payment of principal and interest is fully guaranteed by the United States of America or obligations or guarantees for the payment of which the full faith and credit of the United States of America is pledged.
“Yield to Maturity” means the yield to maturity, calculated at the time of issuance of a series of Debt Securities, or, if
applicable, at the most recent redetermination of interest on such series and calculated in accordance with accepted financial practice.
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Section 1.02.
Other Definitions
.
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Term
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Defined in Section
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“Additional Amounts”
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Section 4.06
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“Authorized Agent”
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Section 13.14
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“Debt Security Register”
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Section 2.07
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“Defaulted Interest”
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Section 2.17
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“Event of Default”
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Section 6.01
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“Guarantee”
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Section 12.01
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“Indenture Obligations”
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Section 12.01
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“Judgment Currency”
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Section 13.15
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“Place of Payment”
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Section 2.03
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“Registrar”
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Section 2.07
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“Restricted Security”
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Section 4.10
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“Successor Guarantor”
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Section 10.01
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“Successor Partnership”
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Section 10.01
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Section 1.03.
Incorporation by Reference of Trust Indenture Act
. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture.
All terms
used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
Section 1.04.
Rules of Construction
. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) words in the singular
include the plural, and in the plural include the singular;
(d) provisions apply to successive events and transactions; and
(e) the principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a
balance sheet of the issuer dated such date prepared in accordance with GAAP.
Whenever the covenants or default provisions or definitions
in this Indenture refer to an amount in U.S. dollars, that amount will be deemed to refer to the U.S. Dollar Equivalent of the amount of any obligation denominated in any other currency or currencies, including composite currencies. The
U.S. Dollar Equivalent of Canadian dollars or any other determination of U.S. Dollar Equivalent for any purpose under this Indenture will be determined as of a date of determination as described in the definition of “U.S. Dollar
Equivalent” in Section 1.01 hereof, and, in any case, no subsequent change in the U.S. Dollar Equivalent after the applicable date of determination will cause such determination to be modified.
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ARTICLE II
DEBT SECURITIES
Section 2.01.
Forms Generally
. The Debt Securities of each
series shall be in substantially the form established without the approval of any Holder by or pursuant to a resolution of the Board of Directors or in one or more indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Partnership may deem appropriate
(and, if not contained in a supplemental indenture entered into in accordance with Article IX, as are not prohibited by the provisions of this Indenture) or as may be required or appropriate to comply with any law or with any rules made
pursuant thereto or with any rules of any securities exchange on which such series of Debt Securities may be listed, or to conform to general usage, or as may, consistently herewith, be determined by the officers executing such Debt Securities as
evidenced by their execution of the Debt Securities.
The definitive Debt Securities of each series may be printed, lithographed, engraved
or otherwise produced in any manner, all as determined by the officers executing such Debt Securities, as evidenced by their execution of such Debt Securities.
Section 2.02.
Form of Trustee’s Certificate of Authentication
. The Trustee’s certificate of authentication on all Debt Securities authenticated by the Trustee shall be in substantially the
following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to in the within-mentioned Indenture.
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WELLS FARGO BANK, N.A.,
as Trustee
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By:
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Authorized Signatory
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Section 2.03.
Principal Amount; Issuable in Series
. The aggregate principal
amount of Debt Securities which may be issued, executed, authenticated, delivered and outstanding under this Indenture is unlimited.
The
Debt Securities may be issued in one or more series in fully registered form. There shall be established, without the approval of any Holders, in or pursuant to a resolution of the Board of Directors and set forth in an Officers’ Certificate,
or established in one or more indentures supplemental hereto, prior to the issuance of Debt Securities of any series any or all of the following:
(a) the title of the Debt Securities of the series (which shall distinguish the Debt Securities of the series from all other Debt Securities);
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(b) any limit upon the aggregate principal amount of the Debt Securities of the series which may be
authenticated and delivered under this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt Securities of the series pursuant to this Article II);
(c) the date or dates on which the principal and premium, if any, of the Debt Securities of the series are payable;
(d) the rate or rates (which may be fixed or variable) at which the Debt Securities of the series shall bear interest, if any, or the method of
determining such rate or rates, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable, or the method by which such date will be determined, the record dates for the determination
of Holders thereof to whom such interest is payable and the basis upon which interest will be calculated if other than that of a 360-day year of twelve thirty-day months;
(e) the place or places, if any, in addition to or instead of the corporate trust office of the Trustee, where the principal of, and premium, if any, and interest on, Debt Securities of the series shall be payable
(“Place of Payment”);
(f) the price or prices at which, the period or periods within which and the terms and conditions upon
which Debt Securities of the series may be redeemed, in whole or in part, at the option of the Partnership or otherwise;
(g) the
obligation, if any, of the Partnership to redeem, purchase or repay Debt Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, and the price or prices at which and the period or periods
within which and the terms and conditions upon which Debt Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligations;
(h) the terms, if any, upon which the Debt Securities of the series may be convertible into or exchanged for Capital Interests (which may be represented
by depositary shares), other Debt Securities or warrants for Capital Interests, Debt Securities or other securities of any kind of the Partnership or any other obligor and the terms and conditions upon which such conversion or exchange shall be
effected, including the initial conversion or exchange price or rate, the conversion or exchange period and any other provision in addition to or in lieu of those described herein;
(i) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Debt Securities of the series shall be issuable;
(j) if the amount of principal of or any premium or interest on Debt Securities of the series may be determined with reference to an index
or pursuant to a formula, the manner in which such amounts will be determined;
(k) if the principal amount payable at the Stated Maturity
of Debt Securities of the series will not be determinable as of any one or more dates prior to such Stated Maturity, the amount which will be deemed to be such principal amount as of any such date for any purpose, including the principal amount
thereof which will be due and payable upon any maturity other than the Stated Maturity or which will be deemed to be Outstanding as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined);
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(l) any changes or additions to Article XI, including the addition of covenants that may be subject
to the covenant defeasance option pursuant to Section 11.02(b);
(m) if other than the full principal amount thereof, the portion of
the principal amount of Debt Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01 or provable in bankruptcy pursuant to Section 6.02;
(n) the terms, if any, of the transfer, mortgage, pledge or assignment as security for the Debt Securities of the series of any properties, assets,
moneys, proceeds, securities or other collateral, including whether certain provisions of the TIA are applicable and any corresponding changes to provisions of this Indenture as currently in effect;
(o) any addition to, deletion or change in the Events of Default with respect to the Debt Securities of the series and any change in the right of the
Trustee or the Holders to declare the principal of, and premium and interest on, such Debt Securities due and payable;
(p) if the Debt
Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities, the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual
Debt Securities in definitive registered form; and the Depositary for such Global Security or Securities and the form of any legend or legends to be borne by any such Global Security or Securities in addition to or in lieu of the legend referred to
in Section 2.15(a);
(q) any trustees, authenticating or Paying Agents, transfer agents or registrars;
(r) the applicability of, and any addition to or change in the covenants and definitions currently set forth in this Indenture or in the terms currently
set forth in Article X, including conditioning any merger, conveyance, transfer or lease permitted by Article X upon the satisfaction of any debt coverage standard by the Partnership and Successor Partnership (as defined in
Article X);
(s) with regard to any Debt Securities of the series that do not bear interest, the dates for certain required reports to
the Trustee;
(t) whether the Debt Securities of the series will be guaranteed pursuant to the Guarantee set forth in Article XII, any
modifications to the terms of Article XII applicable to the Debt Securities of such series and the applicability of any other guarantees; and
(u) any other terms of the Debt Securities of the series (which terms are not prohibited by the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such resolution of the Board of Directors and as set forth in such Officers’
Certificate or in any such indenture supplemental hereto.
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Section 2.04.
Execution of Debt Securities
. The Debt Securities shall be signed on behalf of
the Partnership by one authorized Officer of the General Partner. Such signatures upon the Debt Securities may be the manual or facsimile signatures of the present or any future such authorized Officer and may be imprinted or otherwise reproduced on
the Debt Securities. No seal of any party shall be required in connection with the execution or delivery of any Debt Securities.
Only such
Debt Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, signed manually by the Trustee, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Debt Security executed by the Partnership shall be conclusive evidence that the Debt Security so authenticated has been duly authenticated and delivered hereunder.
In case any Officer who shall have signed any of the Debt Securities shall cease to hold that office before the Debt Securities so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Partnership, such Debt Securities nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Debt Securities had not ceased to hold such
office; and any Debt Security may be signed on behalf of the Partnership by such Persons as, at the actual date of the execution of such Debt Security, shall be the proper Officers of the General Partner, although at the date of such Debt Security
or of the execution of this Indenture any such Person did not hold such office.
Section 2.05.
Authentication and Delivery of Debt
Securities
. At any time and from time to time after the execution and delivery of this Indenture, the Partnership may deliver Debt Securities of any series executed by the Partnership to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debt Securities upon a Partnership Order. In authenticating such Debt Securities, and accepting the additional responsibilities under this Indenture in relation to such Debt Securities, the Trustee shall be
entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon:
(a) a copy of any resolution or
resolutions of the Board of Directors, certified by the Secretary or Assistant Secretary of the General Partner, authorizing the terms of issuance of any series of Debt Securities;
(b) an executed supplemental indenture, if any;
(c) an Officers’ Certificate; and
(d) an Opinion of Counsel prepared in accordance with Section 13.05 which shall also
state:
(i) that the form of such Debt Securities has been established by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted by Section 2.01 in conformity with the provisions of this Indenture;
(ii) that the terms of such Debt Securities have been established by or pursuant to a resolution of the Board of Directors or by a supplemental indenture as permitted by Section 2.03 in conformity with the provisions of this Indenture;
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(iii) that such Debt Securities, when authenticated and delivered by the Trustee and
issued by the Partnership in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Partnership, enforceable in accordance with their terms except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and rights of acceleration and the availability of equitable remedies may be limited by equitable
principles of general applicability; and
(iv) that authentication and delivery of such Debt Securities and the execution
and delivery of any supplemental indenture will not violate the terms of this Indenture.
The Trustee shall have the right to decline to
authenticate and deliver any Debt Securities under this Section 2.05 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees,
executive committee or a trust committee of directors, trustees or vice presidents (or any combination thereof) shall determine that such action would expose the Trustee to personal liability to existing Holders.
The Trustee may appoint an authenticating agent reasonably acceptable to the Partnership to authenticate Debt Securities of any series. Unless limited by
the terms of such appointment, an authenticating agent may authenticate Debt Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as any Registrar, Paying Agent or agent for service of notices and demands.
Unless otherwise provided in the form of
Debt Security for any series, each Debt Security shall be dated the date of its authentication.
Section 2.06.
Denomination of Debt
Securities
. Unless otherwise provided in the form of Debt Security for any series, the Debt Securities of each series shall be issuable only as fully registered Debt Securities in such Dollar denominations as shall be specified or contemplated
by Section 2.03. In the absence of any such specification with respect to the Debt Securities of any series, the Debt Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 2.07.
Registration of Transfer and Exchange
.
(a) The Partnership shall keep or cause to be kept a register for each series of Debt Securities issued hereunder (hereinafter collectively referred to as the “Debt Security Register”), in which, subject to
such reasonable regulations as it may prescribe, the Partnership shall provide for the registration of all Debt Securities and the transfer of Debt Securities as in this Article II provided. At all reasonable times the Debt Security Register
shall be open for inspection by the Trustee. Subject to Section 2.15, upon due presentment for registration of transfer of any Debt Security at any office or agency to be maintained by the Partnership in accordance with the provisions of
Section 4.02, the Partnership shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Debt Security or Debt Securities of authorized denominations for a like aggregate principal amount. In
no event may Debt Securities be issued as, or exchanged for, bearer securities.
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Unless and until otherwise determined by the Partnership by a Partnership Order, the Debt Security
Register shall be kept at the principal corporate trust office of the Trustee and, for this purpose, the Trustee shall be designated “Registrar.”
Debt Securities of any series (other than a Global Security, except as set forth below) may be exchanged for a like aggregate principal amount of Debt Securities of the same series of other authorized denominations.
Subject to Section 2.15, Debt Securities to be exchanged shall be surrendered at the office or agency to be maintained by the Partnership as provided in Section 4.02, and the Partnership shall execute and the Trustee shall authenticate and
deliver in exchange therefor the Debt Security or Debt Securities which the Holder making the exchange shall be entitled to receive.
(b)
All Debt Securities presented or surrendered for registration of transfer, exchange or payment shall (if so required by the Partnership, the Trustee or the Registrar) be duly endorsed or accompanied by a written instrument or instruments of
transfer, in form satisfactory to the Partnership, the Trustee and the Registrar, duly executed by the Holder or his attorney duly authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt Securities shall be the valid obligations of the Partnership, evidencing the same debt, and entitled to the same benefits under this Indenture as the
Debt Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of transfer of
Debt Securities (except as provided by Section 2.09), but the Partnership may require payment of a sum sufficient to cover any tax, fee, assessment or other governmental charge that may be imposed in relation thereto, other than those expressly
provided in this Indenture to be made at the Partnership’s own expense or without expense or charge to the Holders.
The Partnership
shall not be required (i) to issue, register the transfer of or exchange any Debt Securities for a period of 15 days preceding any mailing of notice of redemption of Debt Securities of such series or (ii) to register the transfer of or
exchange any Debt Securities selected, called or being called for redemption.
Prior to the due presentation for registration of transfer
of any Debt Security, the Partnership, each Guarantor (if any), the Trustee, any Paying Agent or any Registrar may deem and treat the Person in whose name a Debt Security is registered as the absolute owner of such Debt Security for the purpose of
receiving payment of or on account of the principal of, and premium, if any, and (subject to Section 2.12) interest on, such Debt Security and for all other purposes whatsoever, whether or not such Debt Security is overdue, and none of the
Partnership, any Guarantor, the Trustee, any Paying Agent or any Registrar shall be affected by notice to the contrary.
None of the
Partnership, any Guarantor, the Trustee, any agent of the Trustee, any Paying Agent or any Registrar will have any responsibility or liability for any aspect of the records relating to, or payments made on account of, beneficial ownership interests
of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
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Section 2.08.
Temporary Debt Securities
. Pending the preparation of definitive Debt
Securities of any series, the Partnership may execute and the Trustee shall authenticate and deliver temporary Debt Securities of any authorized denomination, and substantially in the form of the definitive Debt Securities in lieu of which they are
issued, in registered form with such omissions, insertions and variations as may be appropriate for temporary Debt Securities, all as may be determined by the Partnership with the concurrence of the Trustee. Temporary Debt Securities may contain
such reference to any provisions of this Indenture as may be appropriate. Every temporary Debt Security shall be executed by the Partnership and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Debt Securities.
If temporary Debt Securities of any series are issued, the Partnership will cause
definitive Debt Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Debt Securities of such series, the temporary Debt Securities of such series shall be exchangeable for definitive Debt
Securities of such series upon surrender of the temporary Debt Securities of such series at the office or agency of the Partnership at a Place of Payment for such series, without charge to the Holder thereof, except as provided in Section 2.07
in connection with a transfer. Upon surrender for cancellation of any one or more temporary Debt Securities of any series, the Partnership shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of
definitive Debt Securities of the same series of authorized denominations and of like tenor. Until so exchanged, temporary Debt Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Debt
Securities of such series.
Upon any exchange of a portion of a temporary Global Security for a definitive Global Security or for the
individual Debt Securities represented thereby pursuant to Section 2.07 or this Section 2.08, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of the principal amount evidenced thereby, whereupon the
principal amount of such temporary Global Security shall be reduced for all purposes by the amount to be exchanged and endorsed.
Section 2.09.
Mutilated, Destroyed, Lost or Stolen Debt Securities
. If (a) any mutilated Debt Security is surrendered to the Trustee at its corporate trust office or (b) the Partnership and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security, and there is delivered to the Partnership and the Trustee such security or indemnity as may be required by them to save each of them and any Paying Agent harmless, and
neither the Partnership nor the Trustee receives notice that such Debt Security has been acquired by a bona fide purchaser, then the Partnership shall execute and, upon a Partnership Order, the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Debt Security, a new Debt Security of the same series of like tenor, form, terms and principal amount, bearing a number not contemporaneously Outstanding. Upon the issuance of any
substituted Debt Security, the Partnership may require the payment of a sum sufficient to cover any tax, fee, assessment or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any
Debt Security which has
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matured or is about to mature or which has been called for redemption shall become mutilated or be destroyed, lost or
stolen, the Partnership may, instead of issuing a substituted Debt Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Debt Security) if the applicant for such payment shall furnish the
Partnership and the Trustee with such security or indemnity as either may require to save it harmless from all risk, however remote, and, in case of destruction, loss or theft, evidence to the satisfaction of the Partnership and the Trustee of the
destruction, loss or theft of such Debt Security and of the ownership thereof.
Every substituted Debt Security of any series issued
pursuant to the provisions of this Section 2.09 by virtue of the fact that any Debt Security is destroyed, lost or stolen shall constitute an original contractual obligation of the Partnership, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Debt Securities of that series duly issued hereunder. All Debt Securities shall be held and owned
upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Debt Securities, and shall preclude any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.10.
Cancellation of Surrendered Debt Securities
. All Debt Securities surrendered for payment, redemption, registration of transfer
or exchange shall, if surrendered to the Partnership or any Paying Agent or a Registrar, be delivered to the Trustee for cancellation by it, or if surrendered to the Trustee, shall be canceled by it, and no Debt Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this Indenture. All canceled Debt Securities held by the Trustee shall be destroyed (subject to the record retention requirements of the Exchange Act) and certification of their
destruction delivered to the Partnership, unless otherwise directed. On request of the Partnership, the Trustee shall deliver to the Partnership canceled Debt Securities held by the Trustee. If the Partnership shall acquire any of the Debt
Securities, however, such acquisition shall not operate as a redemption or satisfaction of the Debt represented thereby unless and until the same are delivered or surrendered to the Trustee for cancellation. The Partnership may not issue new Debt
Securities to replace Debt Securities it has redeemed, paid or delivered to the Trustee for cancellation.
Section 2.11.
Provisions
of the Indenture and Debt Securities for the Sole Benefit of the Parties and the Holders
. Nothing in this Indenture or in the Debt Securities, expressed or implied, shall give or be construed to give to any Person, other than the parties hereto,
the Holders or any Registrar or Paying Agent, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained; all its covenants, conditions and provisions being for
the sole benefit of the parties hereto, the Holders and any Registrar and Paying Agents.
Section 2.12.
Payment of Interest;
Interest Rights Preserved
.
(a) Interest on any Debt Security that is payable and is punctually paid or duly provided for on any
interest payment date shall be paid to the Person in whose name such Debt Security is registered at the close of business on the regular record date for such interest
17
notwithstanding the cancellation of such Debt Security upon any transfer or exchange subsequent to the regular record
date. Payment of interest on Debt Securities shall be made at the corporate trust office of the Trustee (except as otherwise specified pursuant to Section 2.03), or at the option of the Partnership, by check mailed to the address of the Person
entitled thereto as such address shall appear in the Debt Security Register or, if provided pursuant to Section 2.03 and in accordance with arrangements satisfactory to the Trustee, at the option of the Holder by wire transfer to an account
designated by the Holder.
(b) Subject to the foregoing provisions of this Section 2.12 and Section 2.17, each Debt Security of a
particular series delivered under this Indenture upon registration of transfer of, in exchange for or in lieu of any other Debt Security of the same series shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by
such other Debt Security.
Section 2.13.
Securities Denominated in Dollars
. Except as otherwise specified pursuant to
Section 2.03 for Debt Securities of any series, payment of the principal of, and premium, if any, and interest on, Debt Securities of such series will be made in Dollars.
Section 2.14.
Wire Transfers
. Notwithstanding any other provision to the contrary in this Indenture, the Partnership may make any payment of
moneys required to be deposited with the Trustee on account of principal of, or premium, if any, or interest on, the Debt Securities (whether pursuant to optional or mandatory redemption payments, interest payments or otherwise) by wire transfer in
immediately available funds to an account designated by the Trustee before 11:00 a.m., New York City time, on the date such moneys are to be paid to the Holders of the Debt Securities in accordance with the terms hereof.
Section 2.15.
Securities Issuable in the Form of a Global Security
.
(a) If the Partnership shall establish pursuant to Section 2.01and Section 2.03 that the Debt Securities of a particular series are to be issued
in whole or in part in the form of one or more Global Securities, then the Partnership shall execute and the Trustee or its agent shall, in accordance with Section 2.05, authenticate and deliver, such Global Security or Securities, which
(i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, the Outstanding Debt Securities of such series to be represented by such Global Security or Securities, or such portion thereof as the
Partnership shall specify in an Officers’ Certificate, (ii) shall be registered in the name of the Depositary for such Global Security or Securities or its nominee, (iii) shall be delivered by the Trustee or its agent to the
Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE PARTNERSHIP OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF
DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.”
or such other legend as may then be required by the Depositary for such Global Security or Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of Section 2.07 to the contrary, and subject to the provisions of paragraph
(c) below, unless the terms of a Global Security expressly permit such Global Security to be exchanged in whole or in part for definitive Debt Securities in registered form, a Global Security may be transferred, in whole but not in part and in
the manner provided in Section 2.07, only by the Depositary to a nominee of the Depositary for such Global Security, or by a nominee of the Depositary to the Depositary or another nominee of the Depositary, or by the Depositary or a nominee of
the Depositary to a successor Depositary for such Global Security selected or approved by the Partnership, or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security or Securities notifies the Partnership that it is unwilling or unable to continue as Depositary for such Global Security or Securities, or if at any
time the Depositary for the Debt Securities for such series shall no longer be eligible or in good standing under the Exchange Act or other applicable statute, rule or regulation, the Partnership shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global Security or Securities is not appointed by the Partnership within 90 days after the Partnership receives such notice or becomes aware of such ineligibility, the
Partnership shall execute, and the Trustee or its agent, upon receipt of a Partnership Order for the authentication and delivery of such individual Debt Securities of such series in exchange for such Global Security, will authenticate and deliver,
individual Debt Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Global Security in exchange for such Global Security or Securities.
(ii) The Partnership may at any time and in its sole discretion determine that the Debt Securities of any series or portion thereof issued
or issuable in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Partnership will execute, and the Trustee, upon receipt of a Partnership Order for the authentication
and delivery of individual Debt Securities of such series in exchange in whole or in part for such Global Security, will authenticate and deliver individual Debt Securities of such series of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such series or portion thereof in exchange for such Global Security or Securities.
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(iii) If specified by the Partnership pursuant to Section 2.01 and Section 2.03
with respect to Debt Securities issued or issuable in the form of a Global Security, the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for individual Debt Securities of such series of like
tenor and terms in definitive form on such terms as are acceptable to the Partnership, the Trustee and such Depositary. Thereupon the Partnership shall execute, and the Trustee or its agent upon receipt of a Partnership Order for the authentication
and delivery of definitive Debt Securities of such series shall authenticate and deliver, without service charge, (A) to each Person specified by such Depositary, a new Debt Security or Securities of the same series of like tenor and terms and
of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security, and (B) to such Depositary, a new Global Security of like tenor
and terms and in an authorized denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Debt Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three paragraphs, the Partnership will execute and the Trustee or its agent will
authenticate and deliver individual Debt Securities. Upon the exchange of the entire principal amount of a Global Security for individual Debt Securities, such Global Security shall be canceled by the Trustee or its agent. Except as provided in the
preceding paragraph, Debt Securities issued in exchange for a Global Security pursuant to this Section 2.15 shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or the Registrar. The Trustee or the Registrar shall deliver such Debt Securities to the Persons in whose names such Debt Securities are so registered.
(v) Payments in respect of the principal of and interest on any Debt Securities registered in the name of the Depositary or
its nominee will be payable to the Depositary or such nominee in its capacity as the registered owner of such Global Security. The Partnership and the Trustee may treat the Person in whose name the Debt Securities, including the Global Security, are
registered as the owner thereof for the purpose of receiving such payments and for any and all other purposes whatsoever. None of the Partnership, the Trustee, any Registrar, the Paying Agent or any agent of the Partnership or the Trustee will have
any responsibility or liability for any aspect of the records relating to or payments made on account of the beneficial ownership interests of the Global Security by the Depositary or its nominee or any of the Depositary’s direct or indirect
participants, or for maintaining, supervising or reviewing any records of the Depositary, its nominee or any of its direct or indirect participants relating to the beneficial ownership interests of the Global Security, the payments to the beneficial
owners of the Global Security of amounts paid to the Depositary or its nominee, or any other matter relating to the actions and practices of the Depositary, its nominee or any of its direct or indirect participants. None of the Partnership, the
Trustee or any such agent will be liable for any delay by the Depositary, its nominee, or any of its direct or indirect participants in identifying the beneficial owners of the Debt Securities, and the Partnership and the Trustee may conclusively
rely on, and will be protected in relying on, instructions from the Depositary or its nominee for all purposes (including with respect to the registration and delivery, and the respective principal amounts, of the Debt Securities to be issued).
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Section 2.16.
Medium Term Securities
. Notwithstanding any contrary provision herein, if all
Debt Securities of a series are not to be originally issued at one time, it shall not be necessary for the Partnership to deliver to the Trustee an Officers’ Certificate, resolutions of the Board of Directors, a supplemental indenture, an
Opinion of Counsel or a written order or any other document otherwise required pursuant to Section 2.01, Section 2.03, Section 2.05 or Section 13.05 at or prior to the time of authentication of each Debt Security of such series
if such documents are delivered to the Trustee or its agent at or prior to the authentication upon original issuance of the first such Debt Security of such series to be issued;
provided,
that any subsequent request by the Partnership to the
Trustee to authenticate Debt Securities of such series upon original issuance shall constitute a representation and warranty by the Partnership that, as of the date of such request, the statements made in the Officers’ Certificate delivered
pursuant to Section 2.05 or Section 13.05 shall be true and correct as if made on such date.
A Partnership Order delivered by
the Partnership to the Trustee in the circumstances set forth in the preceding paragraph may provide that Debt Securities that are the subject thereof will be authenticated and delivered by the Trustee or its agent on original issue from time to
time upon the telephonic or written order of Persons designated in such written order (any such telephonic instructions to be promptly confirmed in writing by such Person) and that such Persons are authorized to determine, consistent with the
Officers’ Certificate, supplemental indenture or resolution of the Board of Directors relating to such written order, such terms and conditions of such Debt Securities as are specified in such Officers’ Certificate, supplemental indenture
or such resolution.
Section 2.17.
Defaulted Interest
. Any interest on any Debt Security of a particular series which is
payable, but is not punctually paid or duly provided for on the dates and in the manner provided in the Debt Securities of such series and in this Indenture (herein called “Defaulted Interest”) shall forthwith cease to be payable to the
Holder thereof on the relevant record date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Partnership, at its election in each case, as provided in clause (a) or (b) below:
(a) The Partnership may elect to make payment of any Defaulted Interest to the Persons in whose names the Debt Securities of such series are registered at
the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Partnership shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each such Debt Security of such series and the date of the proposed payment, and at the same time the Partnership shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest, which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Partnership of such special record date and, in the name and at the expense
21
of the Partnership, shall cause notice of the proposed payment of such Defaulted Interest and the special record date
therefor to be mailed, first class postage pre-paid, to each Holder thereof at its address as it appears in the Debt Security Register, not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Debt Securities of such series are registered at the close of business on such special record date.
(b) The Partnership may make payment of any Defaulted Interest on the Debt Securities of such series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Debt Securities of such series may be listed, and upon such notice as may be required by such exchange if, after notice given by the Partnership to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Section 2.18.
CUSIP
Numbers
. The Partnership in issuing the Debt Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may state that no representation is made as to the accuracy of such numbers either as printed on the Debt Securities or as contained in any notice of a redemption, that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and that any such redemption shall not be affected by any defect in or omission of such numbers. The Partnership will promptly notify the Trustee in writing of any change in the
“CUSIP” numbers.
ARTICLE III
REDEMPTION OF DEBT SECURITIES
Section 3.01.
Applicability of Article
. The
provisions of this Article shall be applicable to the Debt Securities of any series which are redeemable before their Stated Maturity except as otherwise specified as contemplated by Section 2.03 for Debt Securities of such series.
Section 3.02.
Notice of Redemption; Selection of Debt Securities
. In case the Partnership shall desire to exercise the right to redeem all
or, as the case may be, any part of the Debt Securities of any series in accordance with their terms, pursuant to a resolution of the Board of Directors or a supplemental indenture, the Partnership shall fix a date for redemption and shall give
notice of such redemption at least 30 and not more than 60 days prior to the date fixed for redemption to the Holders of Debt Securities of such series to be redeemed as a whole or in part, in the manner provided in Section 13.03. The notice if
given in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives such notice. In any case, failure to give such notice or any defect in the notice to the Holder of any Debt Security of a
series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Debt Security of such series.
Each such notice of redemption shall specify the date fixed for redemption, the redemption price at which Debt Securities of such series are to be redeemed (or the method of calculating such redemption price), the
Place or Places of Payment that payment will be made upon presentation and surrender of such Debt Securities, that any interest accrued to the date
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fixed for redemption will be paid as specified in said notice, that the redemption is for a sinking fund payment (if
applicable), that, unless otherwise specified in such notice, if the Partnership defaults in making such redemption payment, the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, that on and after said date
any interest thereon or on the portions thereof to be redeemed will cease to accrue, that, in the case of Original Issue Discount Securities original issue discount accrued after the date fixed for redemption will cease to accrue, the terms pursuant
to which the Debt Securities of that series are being redeemed and that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Debt Securities of that series. If less than all
the Debt Securities of a series are to be redeemed, the notice of redemption shall specify the certificate numbers of the Debt Securities of that series to be redeemed. In case any Debt Security of a series is to be redeemed in part only, the notice
of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Debt Security, a new Debt Security or Debt Securities of that series in
principal amount equal to the unredeemed portion thereof, will be issued.
At least 30 days but not more than 60 days before the Redemption
Date (unless the Trustee consents to a shorter period), the Partnership shall give written notice to the Trustee of the Redemption Date, the principal amount of Debt Securities to be redeemed and the series and terms of the Debt Securities pursuant
to which such redemption will occur. Such notice shall be accompanied by an Officers’ Certificate and an Opinion of Counsel from the Partnership to the effect that such redemption will comply with the conditions herein. If fewer than all the
Debt Securities of a series are to be redeemed, the record date relating to such redemption shall be selected by the Partnership and given in writing to the Trustee, which record date shall be not less than 15 days after the date of notice to the
Trustee.
By 11:00 a.m., New York City time, on the Redemption Date for any Debt Securities, the Partnership shall deposit with the Trustee
or with a Paying Agent (or, if the Partnership is acting as its own Paying Agent, segregate and hold in trust) an amount of money in Dollars (except as provided pursuant to Section 2.03) sufficient to pay the redemption price of such Debt
Securities or any portions thereof that are to be redeemed on that date, together with any interest accrued to the Redemption Date.
If
less than all the Debt Securities of a series are to be redeemed, the Trustee shall select, on a pro rata basis, by lot or by such other method as in its sole discretion it shall deem appropriate and fair, the Debt Securities of that series or
portions thereof (in multiples of $1,000) to be redeemed. In any case where more than one Debt Security of such series is registered in the same name, the Trustee in its discretion may treat the aggregate principal amount so registered as if it were
represented by one Debt Security of such series. The Trustee shall promptly notify the Partnership in writing of the Debt Securities selected for redemption and, in the case of any Debt Securities selected for partial redemption, the principal
amount thereof to be redeemed. If any Debt Security called for redemption shall not be so paid upon surrender thereof on such Redemption Date, the principal, premium, if any, and interest shall bear interest until paid from the Redemption Date at
the rate borne by the Debt Securities of that series. Provisions of this Indenture that apply to Debt Securities called for redemption also apply to portions of Debt Securities called for redemption.
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Section 3.03.
Payment of Debt Securities Called for Redemption
. If notice of redemption has
been given as provided in Section 3.02, the Debt Securities or portions of Debt Securities of the series with respect to which such notice has been given shall become due and payable on the date and at the Place or Places of Payment stated in
such notice at the applicable redemption price, together with any interest accrued to the date fixed for redemption, and on and after said date (unless the Partnership shall default in the payment of such Debt Securities at the applicable redemption
price, together with any interest accrued to said date) any interest on the Debt Securities or portions of Debt Securities of any series so called for redemption shall cease to accrue, and any original issue discount in the case of Original Issue
Discount Securities shall cease to accrue. On presentation and surrender of such Debt Securities at the Place or Places of Payment specified in said notice, the Debt Securities or the specified portions thereof shall be paid and redeemed by the
Partnership at the applicable redemption price, together with any interest accrued thereon to the date fixed for redemption.
Any Debt
Security that is to be redeemed only in part shall be surrendered at the corporate trust office or such other office or agency of the Partnership as is specified pursuant to Section 2.03 with, if the Partnership, the Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Partnership, the Registrar and the Trustee, duly executed by the Holder thereof or his attorney duly authorized in writing, and the Partnership shall
execute, and the Trustee shall authenticate and deliver to the Holder of such Debt Security without service charge a new Debt Security or Debt Securities of the same series, of like tenor and form, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Debt Security so surrendered; except that if a Global Security is so surrendered, the Partnership shall execute, and the Trustee shall
authenticate and deliver to the Depositary for such Global Security, without service charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered. In the
case of a Debt Security providing appropriate space for such notation, at the option of the Holder thereof, the Trustee, in lieu of delivering a new Debt Security or Debt Securities as aforesaid, may make a notation on such Debt Security of the
payment of the redeemed portion thereof.
Section 3.04.
Mandatory and Optional Sinking Funds
. The minimum amount of any sinking
fund payment provided for by the terms of Debt Securities of any series, a resolution of the Board of Directors or a supplemental indenture is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such
minimum amount provided for by the terms of Debt Securities of any series, a resolution of the Board of Directors or a supplemental indenture is herein referred to as an “optional sinking fund payment.”
In lieu of making all or any part of any mandatory sinking fund payment with respect to any Debt Securities of a series in cash, the Partnership may at
its option (a) deliver to the Trustee Debt Securities of that series theretofore purchased or otherwise acquired by the Partnership or (b) receive credit for the principal amount of Debt Securities of that series which have been redeemed
either at the election of the Partnership pursuant to the terms of such Debt Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Debt Securities, resolution or supplemental indenture;
provided
that such Debt Securities have not been previously so credited. Such Debt Securities shall be received and credited for
24
such purpose by the Trustee at the redemption price specified in such Debt Securities, resolution or supplemental
indenture for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 3.05.
Redemption of Debt Securities for Sinking Fund
. Not less than 60 days prior to each sinking fund payment date for any series of Debt Securities, the Partnership will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, any resolution or supplemental indenture, the portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and crediting Debt Securities of that series pursuant to this Section 3.05 (which Debt Securities, if not previously redeemed, will accompany such certificate) and whether the
Partnership intends to exercise its right to make any permitted optional sinking fund payment with respect to such series. Such certificate shall also state that no Event of Default has occurred and is continuing with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Partnership shall be obligated to make the cash payment or payments therein referred to, if any, by 11 a.m., New York City time, on the next succeeding sinking fund payment date. Failure of
the Partnership to deliver such certificate (or to deliver the Debt Securities specified in this paragraph) shall not constitute a Default, but such failure shall require that the sinking fund payment due on the next succeeding sinking fund payment
date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Debt Securities subject to a mandatory sinking fund payment without the option to deliver or credit Debt Securities as provided in
this Section 3.05 and without the right to make any optional sinking fund payment, if any, with respect to such series.
Any sinking
fund payment (mandatory or optional) made in cash plus any unused balance of any preceding sinking fund payments made in cash which shall equal or exceed $100,000 (or a lesser sum if the Partnership shall so request) with respect to the Debt
Securities of any particular series shall be applied by the Trustee on the sinking fund payment date on which such payment is made (or, if such payment is made before a sinking fund payment date, on the sinking fund payment date following the date
of such payment) to the redemption of such Debt Securities at the redemption price specified in such Debt Securities, resolution or supplemental indenture for operation of the sinking fund together with any accrued interest to the date fixed for
redemption. Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Debt Securities shall be added to the next cash sinking fund payment received by the Trustee for such series and, together with such payment, shall
be applied in accordance with the provisions of this Section 3.05. Any and all sinking fund moneys with respect to the Debt Securities of any particular series held by the Trustee on the last sinking fund payment date with respect to Debt
Securities of such series and not held for the payment or redemption of particular Debt Securities shall be applied by the Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal
of the Debt Securities of that series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of Section 3.02, and the Partnership shall cause notice of the redemption thereof to be given in the manner provided in Section 3.02 except that the notice of
redemption shall also state that the Debt Securities are being redeemed by operation of the sinking fund. Such notice having been duly given, the redemption of such Debt Securities shall be made upon the terms and in the manner stated in
Section 3.03.
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The Trustee shall not redeem any Debt Securities of a series with sinking fund moneys or mail any notice
of redemption of such Debt Securities by operation of the sinking fund for such series during the continuance of a Default in payment of interest on such Debt Securities or of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph) with respect to such Debt Securities, except that if the notice of redemption of any such Debt Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee shall redeem such Debt
Securities if cash sufficient for that purpose shall be deposited with the Trustee for that purpose in accordance with the terms of this Article III. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such
Default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such Default or Event of Default, be held as security for the payment of such Debt Securities;
provided, however
,
that in case such Default or Event of Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date for such Debt Securities on which such moneys may be applied pursuant to
the provisions of this Section 3.05.
ARTICLE IV
COVENANTS
Section 4.01.
Payment of Principal of, and Premium,
If Any, and Interest on, Debt Securities
. The Partnership, for the benefit of each series of Debt Securities, will duly and punctually pay or cause to be paid the principal of, and premium, if any, and interest on, each of the Debt Securities at
the place, at the respective times and in the manner provided herein or in the Debt Securities. Each installment of interest on the Debt Securities may at the Partnership’s option be paid by mailing checks for such interest payable to the
Person entitled thereto pursuant to Section 2.07(a) to the address of such Person as it appears on the Debt Security Register.
Principal, premium and interest of Debt Securities of any series shall be considered paid on the date due if, by 11:00 a.m., New York City time, on such date the Trustee or any Paying Agent holds in accordance with this Indenture money
sufficient to pay all principal, premium and interest then due.
The Partnership shall pay interest on overdue principal or premium, if
any, at the rate specified therefor in the Debt Securities, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful.
Section 4.02.
Maintenance of Offices or Agencies for Registration of Transfer, Exchange and Payment of Debt Securities
. For the benefit of each series of Debt Securities, the Partnership will maintain an
office or agency where Debt Securities of such series may be presented or surrendered for payment, and it shall also maintain (in or outside such Place of Payment) an office or agency where Debt Securities of such series may be surrendered for
transfer or exchange and where notices and demands to or upon the Partnership in respect of the Debt Securities of such series and this Indenture may be served. The Partnership will give prompt written notice to the Trustee of the location, and any
change in the location, of such
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office or agency. If at any time the Partnership shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the office of the Trustee where its corporate trust business is principally administered in the United States of America,
and the Partnership hereby appoints the Trustee as its agent to receive all presentations, surrenders, notices and demands.
The
Partnership may also from time to time designate different or additional offices or agencies to be maintained for such purposes (in or outside of such Place of Payment) and may from time to time rescind any such designation. The Partnership hereby
designates the office of the Trustee at N9303-110 MAC, Sixth & Marquette, Minneapolis, MN 55479 as its initial office or agency for such purpose. The Partnership will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of any such different or additional office or agency.
Section 4.03.
Appointment to Fill a Vacancy in the Office of Trustee
. The Partnership, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 7.08, a Trustee
so that there shall at all times be a Trustee hereunder with respect to each series of Debt Securities.
Section 4.04.
Duties of
Paying Agents, etc.
(a) The Partnership shall cause each Paying Agent, if any, other than the Trustee, to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 4.04, that:
(i) it will hold all sums held by it as such agent for the payment of the principal of, and premium, if any, or interest on, the Debt Securities of any series (whether such sums have been paid to it by the Partnership
or by any other obligor on the Debt Securities of such series) in trust for the benefit of the Holders of the Debt Securities of such series;
(ii) it will give the Trustee notice of any failure by the Partnership (or by any other obligor on the Debt Securities of such series) to make any payment of the principal of, and premium, if any, or interest on, the
Debt Securities of such series when the same shall be due and payable; and
(iii) it will at any time during the continuance
of an Event of Default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held by it as such agent.
(b) If
the Partnership shall act as its own Paying Agent, it will, on or before each due date of the principal of, and premium, if any, or interest on, the Debt Securities of any series, set aside, segregate and hold in trust for the benefit of the Holders
of the Debt Securities of such series a sum sufficient to pay such principal, premium, if any, or interest so becoming due. The Partnership will promptly notify the Trustee of any failure by the Partnership to take such action or the failure by any
other obligor on such Debt Securities to make any payment of the principal of, and premium, if any, or interest on, such Debt Securities when the same shall be due and payable.
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(c) Anything in this Section 4.04 to the contrary notwithstanding, the Partnership may, at any time,
for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it or any Paying Agent, as required by this Section 4.04, such sums to be
held by the Trustee upon the same trusts as those upon which such sums were held by the Partnership or such Paying Agent.
(d) Whenever the
Partnership shall have one or more Paying Agents with respect to any series of Debt Securities, it will, prior to each due date of the principal of, and premium, if any, or interest on, any Debt Securities of such series, deposit with any such
Paying Agent a sum sufficient to pay the principal, premium or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless any such Paying Agent is the Trustee) the Partnership will promptly
notify the Trustee of its action or failure so to act.
Anything in this Section 4.04 to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section 4.04 is subject to the provisions of Section 11.05.
Section 4.05.
Compliance Certificate
.
(a) The Partnership shall, so long as any Debt Securities are outstanding, deliver to the Trustee, within
150 days after the end of each fiscal year of the Partnership, commencing with its fiscal year ending after the date hereof, an Officers’ Certificate as to such officers’ knowledge of the compliance by the Partnership with all conditions
and covenants under this Indenture. For purposes of this Section 4.05(a), such compliance shall be determined without regard to any grace period or notice requirement under this Indenture.
(b) The Partnership shall, so long as any of the Debt Securities are outstanding, deliver to the Trustee within 30 days after the occurrence of any
Default or Event of Default under this Indenture, an Officers’ Certificate specifying such Default or Event of Default, the status thereof and what action the Partnership and any Guarantor is taking or proposes to take with respect thereto.
Section 4.06.
Payment of Additional Amounts
. Unless otherwise required by Canadian law, neither the Partnership nor any
Guarantor will deduct or withhold from payments made with respect to the Debt Securities or any Guarantee on account of any present or future Taxes. In the event that either the Partnership or a Guarantor is required to withhold or deduct on account
of any Taxes due from any payment made under or with respect to the Debt Securities or a Guarantee, as the case may be, the Partnership or such Guarantor, as the case may be, will pay such additional amounts (“Additional Amounts”) as may
be necessary so that the net amount received by each Holder of Debt Securities will equal the amount that the Holder would have received if the Taxes had not been required to be withheld or deducted;
provided
,
however
, that no
Additional Amounts will be payable with respect to a payment made to a Holder (A) who, insofar as Canadian Taxes are relevant, does not deal at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Partnership or such
Guarantor or (B) to the extent: (i) that any Taxes would not have been so imposed but for the existence of any present or former
28
connection between the Holder and Canada or any province or territory of Canada, other than the mere receipt of the
payment, the acquisition, ownership or disposition of such Debt Securities or the exercise or enforcement of rights under the Debt Securities, any Guarantee or this Indenture; (ii) of any estate, inheritance, gift, sales, transfer or personal
property Taxes imposed with respect to the Debt Securities, except as described below or as otherwise provided in this Indenture; (iii) that any such Taxes would not have been imposed but for the presentation of the Debt Securities, where
presentation is required, for payment on a date more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or
Holder thereof would have been entitled to Additional Amounts had the Debt Securities been presented for payment on any date during such 30-day period; or (iv) that the Holder would not be liable or subject to such withholding or deduction of
Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if: (a) the making of the declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice
of the relevant taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes; and (b) at least 60 days prior to the first payment with respect to which the Partnership or any Guarantor shall apply this clause
(iv), the Partnership or such Guarantor shall have notified all Holders of the Debt Securities in writing that they shall be required to provide this declaration or claim. The Partnership and any Guarantor shall also: (i) withhold or deduct
such Taxes as required; (ii) remit the full amount of Taxes deducted or withheld to the relevant taxing authority in accordance with all applicable laws; (iii) use reasonable efforts to obtain from each relevant taxing authority imposing
the Taxes certified copies of tax receipts evidencing the payment of any Taxes deducted or withheld; and (iv) upon request, make available to the Holders of the Debt Securities, within 60 days after the date the payment of any Taxes deducted or
withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Partnership or such Guarantor and, notwithstanding the Partnership’s or such Guarantor’s efforts to obtain the receipts, if the
same are not obtainable, other evidence of such payments.
In addition, the Partnership or any Guarantor will pay any stamp, issue,
registration, documentary or other similar taxes and duties, including interest, penalties and additional amounts with respect thereto, payable in Canada or any political subdivision or taxing authority thereof with respect to the creation, issue,
offering, enforcement, redemption or retirement of the Debt Securities or any Guarantee.
At least 30 days prior to each date on which any
payment under or with respect to the Debt Securities is due and payable, if the Partnership or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Partnership (or in respect of any Guarantee, the relevant
Guarantor) shall deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and such other information as is necessary to enable the Trustee to pay such Additional
Amounts to the Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal of, premium, if any, or interest or any other amount payable on or with respect to any of the Debt Securities, such
mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 4.06 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the
provisions of this Section 4.06, and express mention of the payment of Additional Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if
applicable).
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The obligations of the Partnership and any Guarantor under this Section 4.06 shall survive the
termination of this Indenture and the payment of all amounts under or with respect to this Indenture and the Debt Securities.
The
preceding provisions of this Section 4.06 shall apply only at and during such time as either the Partnership or any Guarantor is organized under the laws of Canada or a province thereof.
Section 4.07.
SEC Reports; Financial Statements
.
(a) The Partnership shall, so long as any of the Debt Securities are Outstanding:
(i) file
with the Trustee, within 30 days after it files the same with the SEC, copies of the annual reports and of the information, documents and other reports which the Partnership may be required to file with the SEC pursuant to the Exchange Act; or if
the Partnership is not required to file information with the SEC pursuant to the Exchange Act, file with the Trustee and the SEC in accordance with rules and regulations prescribed from time to time by the SEC any supplementary and periodic
information, documents and reports which may be required pursuant to the Exchange Act, in respect of a security listed and registered on a national securities exchange as may be prescribed in such rules and regulations;
provided
that all such
filings shall be deemed made with the Trustee to the extent such information, documents and other reports are readily available through EDGAR or any successor thereto, as of the date on which such filing is required to be made with the Trustee; and
(ii) transmit within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and reports required to be filed by the Partnership pursuant to paragraph (i) of this Section as may be required by rules and regulations prescribed
from time to time by the SEC.
(b) The Partnership and each Guarantor (if any) shall also comply with the provisions of TIA
Section 314(a).
(c) The Partnership shall provide the Trustee with a sufficient number of copies of all reports and other documents
and information that the Trustee may be required to deliver to Holders under this Section. Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or determinable from information contained therein, including the Partnership’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates).
Section 4.08.
Existence
. Subject to Article X, the Partnership will do or cause
to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises;
provided, however,
that the Partnership shall not be required to preserve any such right or franchise
if it shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Partnership.
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Section 4.09.
Waiver of Certain Covenants
. The Partnership may, with respect to the Debt
Securities of any series, omit in any particular instance to comply with any covenant set forth in this Article IV (except Section 4.01 through Section 4.06) or made applicable to such Debt Securities pursuant to Section 2.03,
if, before or after the time for such compliance, the Holders of at least a majority in principal amount of the Outstanding Debt Securities of each series affected, waive such compliance in such instance with such covenant, but no such waiver shall
extend to or affect such covenant except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Partnership and any Guarantor and the duties of the Trustee in respect of any such covenant shall
remain in full force and effect.
Section 4.10.
Limitations on Liens
. The Partnership covenants and agrees that it will not,
and will not permit any Restricted Subsidiary to, create, incur, issue or assume any Debt secured by any Lien on any Principal Property, or on Capital Interests or Debt of any Restricted Subsidiary (“Restricted Securities”), without making
effective provision for the Outstanding Debt Securities (except as otherwise specified pursuant to Section 2.03 for the Debt Securities of any series) to be secured by the Lien equally and ratably with (or prior to) any and all Debt and
obligations secured or to be secured thereby for so long as such Debt is so secured, except that the foregoing restriction will not apply to:
(a) any Lien existing on the date of the first issuance of Debt Securities under the Indenture;
(b) any Lien on any Principal
Property or Restricted Securities of any Person existing at the time such Person is merged or consolidated with or into the Partnership or a Restricted Subsidiary, or such Person becomes a Restricted Subsidiary;
(c) any Lien on any Principal Property existing at the time of acquisition of such Principal Property by the Partnership or a Restricted Subsidiary,
whether or not assumed by the Partnership or such Restricted Subsidiary, provided that no such Lien may extend to any other Principal Property of the Partnership or any Restricted Subsidiary;
(d) any Lien on any Principal Property (including any improvements on an existing Principal Property) of the Partnership or any Restricted Subsidiary,
and any Lien on the Capital Interests of a Restricted Subsidiary that was formed or is held for the purpose of acquiring and holding such Principal Property, in each case to secure all or any part of the cost of acquisition, development, operation,
construction, alteration, repair or improvement of all or any part of such Principal Property (or to secure Debt incurred by the Partnership or a Restricted Subsidiary for the purpose of financing all or any part of such cost);
provided
that
such Lien is created prior to, at the time of, or within 12 months after the latest of, the acquisition, completion of construction or improvement, or commencement of commercial operation of such Principal Property and
provided, further
, that
no such Lien (unless otherwise permitted) may extend to any other Principal Property of the Partnership or any Restricted Subsidiary, other than any theretofore unimproved real property on which the Principal Property is so constructed or developed
or the improvement is located;
31
(e) any Lien on any Principal Property or Restricted Securities to secure Debt owing to the Partnership
or to another Restricted Subsidiary;
(f) any Lien in favor of governmental bodies to secure advances or other payments pursuant to any
contract or statute or to secure Debt incurred to finance the purchase price or cost of constructing or improving the property subject to such Lien;
(g) any Lien created in connection with a project financed with, and created to secure, Non-Recourse Debt;
(h) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other similar Liens arising in the ordinary course of business which are not delinquent or remain payable without penalty or
which are being contested in good faith and by appropriate proceedings;
(i) Liens (other than Liens imposed by ERISA) on the property of
the Partnership or any of its Restricted Subsidiaries incurred, or pledges or deposits required, in connection with workmen’s compensation, unemployment insurance and other social security legislation;
(j) Liens securing taxes that remain payable without penalty or which are being contested in good faith by appropriate proceedings where collection
thereof is stayed; provided that the Partnership or any Restricted Subsidiary has set aside on its books reserves with respect to such taxes (segregated to the extent required by GAAP) deemed by it to be adequate.
(k) any right that any municipal or governmental body or agency may have by virtue of any franchise, license or contract to purchase or designate a
purchaser of, or order the sale of, any property of the Partnership or any Restricted Subsidiary upon payment of reasonable compensation therefor or to terminate any franchise, license or other rights or to regulate the property and business of the
Partnership or any Restricted Subsidiary;
(l) any Liens, neither assumed by the Partnership or any Restricted Subsidiary nor on which it
customarily pays interest, existing upon real estate, or rights in or relating to real estate acquired by the Partnership or any Restricted Subsidiary for sub-station, measuring station, regulating station, gas purification station, compressor
station, transmission line, distribution line or right-of-way purposes;
(m) easements or reservations in any property of the Partnership
or any Restricted Subsidiary for the purpose of roads, pipe lines, hydrocarbon transmission and distribution lines, electric light and power transmission and distribution lines, water mains and other like purposes, and zoning ordinances, regulations
and restrictions which do not impair the use of such property in the operation of the business of the Partnership or any Restricted Subsidiary;
(n) any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any Lien referred to in the foregoing clauses (a) through (m), provided that the Debt
secured thereby may not exceed the principal amount of Debt so secured at the time of such renewal or refunding, and that such renewal or refunding Lien must be limited to all or any part of the same property and improvements thereon, Capital
Interests or Debt that secured the Lien renewed or refunded; or
32
(o) any Lien not permitted above securing Debt that, together with the aggregate outstanding principal
amount of other secured Debt that would otherwise be subject to the foregoing restrictions (excluding Debt secured by Liens permitted under the foregoing exceptions) and the Attributable Indebtedness in respect of all Sale-Leaseback Transactions
(not including Attributable Indebtedness in respect of any such Sale-Leaseback Transactions described in clause (iii) or (iv) of Section 4.11) would not then exceed 15% of Consolidated Net Tangible Assets.
Section 4.11.
Limitations on Sale-Leaseback Transactions
. The Partnership covenants and agrees that it will not, and will not permit any
Restricted Subsidiary to, enter into any Sale-Leaseback Transaction unless (i) the Partnership or a Restricted Subsidiary would be entitled, without securing the Outstanding Debt Securities, to incur Debt secured by a Lien on the Principal
Property that is the subject of such Sale-Leaseback Transaction; (ii) the Attributable Indebtedness associated therewith would be in an amount permitted under clause (o) of Section 4.10 hereof; (iii) the proceeds received in
respect of the Principal Property so sold and leased back at the time of entering into such Sale-Leaseback Transaction are used for the business and operations of the Partnership or any Subsidiary; or (iv) within 12 months after the sale or
transfer, an amount equal to the proceeds received in respect of the Principal Property so sold and leased back at the time of entering into such Sale-Leaseback Transaction is applied to the prepayment (other than mandatory prepayment) of any
Outstanding Debt Securities or Funded Debt of the Partnership or a Restricted Subsidiary (other than Funded Debt that is held by the Partnership or any Restricted Subsidiary or Funded Debt of the Partnership that is subordinate in right of payment
to any Outstanding Debt Securities).
ARTICLE V
HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE
Section 5.01.
Partnership to Furnish
Trustee Information as to Names and Addresses of Holders; Preservation of Information
. The Partnership covenants and agrees that it will furnish or cause to be furnished to the Trustee with respect to the Debt Securities of each series:
(a) not more than 10 days after each record date with respect to the payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of such record date, and
(b) at such other times as the Trustee may
request in writing, within 30 days after the receipt by the Partnership of any such request, a list of similar form and contents as of a date not more than 15 days prior to the time such list is furnished;
provided, however
, that so long as the Trustee shall be the Registrar, such lists shall not be required to be furnished.
The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the
Holders (i) contained in the most recent list furnished to it as provided in this Section 5.01 or (ii) received by it in the capacity of Paying Agent or Registrar (if so acting) hereunder.
33
The Trustee may destroy any list furnished to it as provided in this Section 5.01 upon receipt of a
new list so furnished.
Section 5.02.
Communications to Holders
. Holders may communicate pursuant to Section 312(b) of the
TIA with other Holders with respect to their rights under this Indenture or the Debt Securities. The Partnership, the Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the TIA.
Section 5.03.
Reports by Trustee
. Within 60 days after each May 15 (beginning with the first May 15 following the first issuance of
the first series of Debt Securities hereunder) the Trustee shall mail to Holders a brief report dated as of such May 15 that complies with TIA Section 313(a);
provided, however
, that if no event described in TIA Section 313(a)
has occurred within the twelve months preceding the reporting date, no report need be transmitted. The Trustee also shall comply with TIA Section 313(b). Reports pursuant to this Section 5.03 shall be transmitted by mail (a) to all
Holders, as the names and addresses of such Holders appear in the Debt Security Register, and (b) except in the cases of reports under Section 313(b)(2) of the TIA, to each Holder of a Debt Security of any series whose name and address
appear in the information preserved at the time by the Trustee in accordance with Section 5.01.
A copy of each report at the time of
its mailing to Holders shall be filed by the Trustee with the Partnership, the SEC and each stock exchange (if any) on which the Debt Securities of any series are listed. The Partnership agrees to notify promptly the Trustee whenever the Debt
Securities of any series become listed on any stock exchange and of any delisting thereof.
Section 5.04.
Record Dates for Action
by Holders
. If the Partnership shall solicit from the Holders of Debt Securities of any series any action (including the making of any demand or request, the giving of any direction, notice, consent or waiver or the taking of any other action),
the Partnership may, at its option, fix in advance a record date for the determination of Holders of Debt Securities entitled to take such action, but the Partnership shall have no obligation to do so. Any such record date shall be fixed at the
Partnership’s discretion. If such a record date is fixed, such action may be sought or given before or after the record date, but only the Holders of Debt Securities of record at the close of business on such record date shall be deemed to be
Holders of Debt Securities for the purpose of determining whether Holders of the requisite proportion of Debt Securities of such series Outstanding have authorized or agreed or consented to such action, and for that purpose the Debt Securities of
such series Outstanding shall be computed as of such record date.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section 6.01.
Events of Default
. If any one or more of the following shall have occurred and be continuing with respect to Debt Securities of any series (each of the following, an “Event of
Default”):
(a) default in the payment of any installment of interest upon any Debt Securities of that series as and when the same
shall become due and payable, and continuance of such default for a period of 30 days; or
34
(b) default in the payment of the principal of or premium, if any, on any Debt Securities of that series
as and when the same shall become due and payable, whether at Stated Maturity, upon redemption, by declaration, upon required repurchase or otherwise; or
(c) default in the payment of any sinking fund payment with respect to any Debt Securities of that series as and when the same shall become due and payable; or
(d) failure on the part of the Partnership or any Guarantor duly to observe or perform any other of the covenants or agreements on the part of the
Partnership or such Guarantor with respect to the Debt Securities of that series set forth in this Indenture with respect to such series or in any supplemental indenture with respect to such series, or, in the absence of an applicable supplemental
indenture, in any resolution of the Board of Directors authorizing the issuance of that series of Debt Securities (other than a covenant a default in the performance of which is elsewhere in this Section specifically dealt with), continuing for a
period of 90 days after the date on which written notice specifying such failure and requiring the Partnership and such Guarantor to remedy the same shall have been given, by registered or certified mail, to the Partnership and such Guarantor by the
Trustee, or to the Partnership, such Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount of the Debt Securities of that series at the time Outstanding; or
(e) the Partnership or any Guarantor, pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii)
consents to the appointment of a Custodian of it or for all or substantially all of its property; or
(iv) makes a general
assignment for the benefit of its creditors;
(f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(i) is for relief against the Partnership or any Guarantor as debtor in an involuntary case;
(ii) appoints a Custodian of the Partnership or any Guarantor or a Custodian for all or substantially all of the property of the
Partnership or any Guarantor; or
(iii) orders the liquidation of the Partnership or any Guarantor;
and the order or decree remains unstayed and in effect for 90 days;
(g) any default by the Partnership or any of its Subsidiaries in the payment, at the final maturity date and after the expiration of any applicable grace period, of principal of, premium, if any, or interest on indebtedness for money
borrowed in the principal amount then
35
outstanding of $100,000,000 or more, or acceleration of any indebtedness for borrowed money of such amount, such that the
indebtedness becomes due and payable prior to its maturity date and such acceleration is not rescinded within 60 days after notice thereof has been given to the Partnership by the Trustee or to the Partnership and the Trustee by the Holders of at
least 25% in aggregate principal amount of Outstanding Debt Securities of such series; provided that, if, prior to the entry of judgment in favor of the Trustee for payment of the Debt Securities of such series, the default under such indenture or
instrument has been remedied or cured by the Partnership or such Subsidiary, or waived by the holders of such indebtedness, then the Event of Default under the Indenture will be deemed likewise to have been remedied, cured or waived;
(h) except as permitted by this Indenture, any Guarantee ceases to be in full force and effect or is declared null and void in a judicial proceeding or
any Guarantor denies or disaffirms its obligations under this Indenture or its Guarantee; or
(i) any other Event of Default provided in
any supplemental indenture or, in the absence of an applicable supplemental indenture, in a resolution of the Board of Directors with respect to Debt Securities of that series;
then and in each and every case that an Event of Default described in clause (a), (b), (c), (d), (g), (h) or (i) with respect to Debt Securities of that series at the time Outstanding occurs and is
continuing, unless the principal of, premium, if any, and interest on all the Debt Securities of that series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Debt
Securities of that series then Outstanding, by notice in writing to the Partnership (and to the Trustee if given by Holders), may declare the principal of (or, if the Debt Securities of that series are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms of that series), premium, if any, and interest on all the Debt Securities of that series to be due and payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the Debt Securities of that series contained to the contrary notwithstanding. If an Event of Default described in clause (e) or (f) occurs, then and in each and every
such case, unless the principal of and interest on all the Debt Securities shall have already become due and payable, the principal of (or, if any Debt Securities are Original Issue Discount Debt Securities, such portion of the principal amount as
may be specified in the terms thereof), premium, if any, and interest on all the Debt Securities then Outstanding hereunder shall
ipso facto
become and be immediately due and payable without any declaration or other act on the part of the
Trustee or any Holders, anything in this Indenture or in the Debt Securities contained to the contrary notwithstanding.
The Holders of a
majority in aggregate principal amount of the Debt Securities of a particular series by written notice to the Trustee may waive all past Defaults (except with respect to the nonpayment of principal, premium, if any, or interest) and rescind an
acceleration and its consequences, in each case with respect to the Debt Securities of such series, if the rescission would not conflict with any judgment or decree of a court of competent jurisdiction already rendered and if all existing Events of
Default with respect to the Debt Securities of such series have been cured or waived except nonpayment of principal, premium, if any, or interest that has become due solely because of acceleration. Upon any such rescission, the parties hereto shall
be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the parties hereto shall continue as though no such proceeding had been taken.
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Section 6.02.
Collection of Debt by Trustee, etc
. If an Event of Default occurs and is
continuing, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid or enforce the performance of
any provision of the Debt Securities of the affected series or this Indenture, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Partnership or any other
obligor upon the Debt Securities of such series (and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Partnership or any other obligor upon the Debt Securities of such series, wherever
situated).
In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Partnership or any other obligor
upon the Debt Securities of any series under any Bankruptcy Law, or in case a Custodian shall have been appointed for its property, or in case of any other similar judicial proceedings relative to the Partnership or any other obligor upon the Debt
Securities of any series, its creditors or its property, the Trustee, irrespective of whether the principal of Debt Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.02, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of
principal, premium, if any, and interest (or, if the Debt Securities of such series are Original Issue Discount Debt Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the
Debt Securities of such series, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee, its agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or bad faith) and of the Holders thereof allowed in any such judicial proceedings relative to the
Partnership, or any other obligor upon the Debt Securities of such series, its creditors or its property, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with
respect to the claims of such Holders and of the Trustee on their behalf, and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of such Holders to make payments to the Trustee, and, in the event that the
Trustee shall consent to the making of payments directly to such Holders, to pay to the Trustee such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other reasonable expenses
and liabilities incurred, and all advances made, by the Trustee except as a result of its negligence or bad faith.
All rights of action
and of asserting claims under this Indenture, or under any of the Debt Securities of any series, may be enforced by the Trustee without the possession of any such Debt Securities, or the production thereof in any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment (except for any amounts payable to the Trustee pursuant to Section 7.06) shall
be for the ratable benefit of the Holders of all the Debt Securities in respect of which such action was taken.
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In case of an Event of Default hereunder, the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 6.03.
Application of Moneys Collected by Trustee
. Any moneys or other property collected by the Trustee pursuant to
Section 6.02 with respect to Debt Securities of any series shall be applied, in the following order, at the date or dates fixed by the Trustee for the distribution of such moneys or other property, upon presentation of the several Debt
Securities of such series in respect of which moneys or other property have been collected, and the notation thereon of the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all money due the Trustee pursuant to Section 7.06;
SECOND: In case the principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall not have become due, to the
payment of interest on the Debt Securities of such series in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest
at the rate or Yield to Maturity (in the case of Original Issue Discount Debt Securities) borne by the Debt Securities of such series, such payments to be made ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Debt Securities in respect of which such moneys have been collected shall have become due,
by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon the Debt Securities of such series for principal and premium, if any, and interest, with interest on the overdue principal and premium, if any, and (to the
extent that such interest has been collected by the Trustee) upon overdue installments of interest at the rate or Yield to Maturity (in the case of Original Issue Discount Debt Securities) borne by the Debt Securities of such series; and, in case
such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Debt Securities of such series, then to the payment of such principal and premium, if any, and interest, without preference or priority of principal and
premium, if any, over interest, or of interest over principal and premium, if any, or of any installment of interest over any other installment of interest, or of any Debt Security of such series over any Debt Security of such series, ratably to the
aggregate of such principal and premium, if any, and interest; and
FOURTH: The remainder, if any, shall be paid to the Partnership, its
successors or assigns, or to whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.03. At least 15 days before such record date, the Partnership shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
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Section 6.04.
Limitation on Suits by Holders
. No Holder of any Debt Security of any series
shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise, upon or under or with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of an Event of Default with respect to Debt Securities of that same series and of the continuance thereof and unless
the Holders of not less than 25% in aggregate principal amount of the Outstanding Debt Securities of that series shall have made written request upon the Trustee to institute such action or proceedings in respect of such Event of Default in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity or security as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity or security shall have failed to institute any such action or proceedings and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 6.06; it
being understood and intended, and being expressly covenanted by the Holder of every Debt Security with every other Holder and the Trustee, that no one or more Holders shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any Holders, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all such Holders. For the protection and enforcement of the provisions of this Section 6.04, each and every Holder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Notwithstanding any other provision in this Indenture, however, the right of any Holder of any Debt Security to
receive payment of the principal of, and premium, if any, and (subject to Section 2.12) interest on, such Debt Security, on or after the respective due dates expressed in such Debt Security, and to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.05.
Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default
. All powers and remedies given by this Article VI to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and to
the extent permitted by law, no delay or omission of the Trustee or of any Holder to exercise any right or power accruing upon any Default occurring and continuing as aforesaid, shall impair any such right or power, or shall be construed to be a
waiver of any such Default or an acquiescence therein; and, subject to the provisions of Section 6.04, to the extent permitted by law, every power and remedy given by this Article VI or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
Section 6.06.
Rights of
Holders of Majority in Principal Amount of Debt Securities to Direct Trustee and to Waive Default
. The Holders of a majority in aggregate principal amount of the Debt Securities of any series at the time Outstanding shall have the right to
direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any right, trust or power conferred on the Trustee, with respect to the Debt Securities
39
of such series;
provided, however
, that such direction shall not be otherwise than in accordance with law and the
provisions of this Indenture, and that subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee being advised by counsel shall determine that the action so directed may
not lawfully be taken, or if the Trustee shall by a responsible officer or officers determine that the action so directed would involve it in personal liability or would be unduly prejudicial to Holders of Debt Securities of such series not taking
part in such direction; and
provided, further
, that nothing in this Indenture contained shall impair the right of the Trustee to take any action deemed proper by the Trustee and which is not inconsistent with such direction by such Holders.
Prior to the acceleration of the maturity of the Debt Securities of any series, as provided in Section 6.01, the Holders of a majority in aggregate principal amount of the Debt Securities of that series at the time Outstanding may on behalf of
the Holders of all the Debt Securities of that series waive any past Default or Event of Default and its consequences for that series, except a Default in the payment of the principal of, and premium, if any, or interest on, any of the Debt
Securities and a Default in respect of a provision that under Section 9.02 cannot be amended without the consent of each Holder affected thereby. In case of any such waiver, such Default shall cease to exist, any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this Indenture, and the Partnership, the Trustee and the Holders of the Debt Securities of that series shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.07.
Trustee
to Give Notice of Defaults Known to It, but May Withhold Such Notice in Certain Circumstances
. The Trustee shall, within 90 days after the occurrence of a Default, or if later, within 30 days after the Trustee obtains actual knowledge of the
Default, with respect to a series of Debt Securities give to the Holders thereof, in the manner provided in Section 13.03, notice of all Defaults with respect to such series known to the Trustee, unless such Defaults shall have been cured or
waived before the giving of such notice;
provided
that, except in the case of Default in the payment of the principal of, or premium, if any, or interest on, any of the Debt Securities of such series or in the making of any sinking fund
payment with respect to the Debt Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a committee of directors or responsible officers of the
Trustee in good faith determine that the withholding of such notice is in the interests of the Holders thereof.
Section 6.08.
Requirement of an Undertaking to Pay Costs in Certain Suits under the Indenture or Against the Trustee
. All parties to this Indenture agree, and each Holder of any Debt Security by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit in the manner and to the extent provided in the TIA, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.08 shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than 25 percent in principal amount of the Outstanding Debt Securities of that series or to any suit instituted by any Holder for the enforcement of the payment of the principal of,
or premium, if any, or interest on, any Debt Security on or after the due date for such payment expressed in such Debt Security.
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ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01.
Certain Duties and Responsibilities
. The
Trustee, prior to the occurrence of an Event of Default and after the curing or waiving of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case
an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, negligent failure to act, bad faith or willful misconduct, except that:
(a) this
paragraph shall not be construed to limit the effect of the first paragraph of this Section 7.01;
(b) prior to the occurrence of an
Event of Default with respect to the Debt Securities of a series and after the curing or waiving of all Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to Debt Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations with respect to such series as are specifically set forth in this Indenture, and no implied covenants or obligations with
respect to such series shall be read into this Indenture against the Trustee;
(ii) in the absence of bad faith on the part
of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture; but the Trustee shall examine the evidence furnished to it pursuant to Section 4.05 and Section 4.06 to determine whether or not such evidence conforms to the requirement of this Indenture;
(iii) the Trustee shall not be liable for an error of judgment made in good faith by a responsible officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iv) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it with respect to Debt Securities of any series in good faith in accordance with the direction of the Holders of not less than a majority in aggregate principal amount
41
of the Outstanding Debt Securities of that series relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to Debt Securities of such series.
None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any personal financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
Regardless of whether expressly so provided herein, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 7.02.
Certain
Rights of Trustee
. Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document (whether in its original or facsimile form) believed by it
to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the
Partnership mentioned herein shall be sufficiently evidenced by a Partnership Order (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the General Partner;
(c) the Trustee may consult with counsel, and the
advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders of Debt Securities of any series pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(f) prior to
the occurrence of an Event of Default and after the curing of all Events of Default which may have occurred, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, approval or other paper or document, unless requested
42
in writing to do so by the Holders of a majority in aggregate principal amount of the then Outstanding Debt Securities of
a series affected by such matter;
provided, however
, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is not, in the opinion of
the Trustee, reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such costs, expenses or liabilities as a condition to so proceeding, and the
reasonable expense of every such investigation shall be paid by the Partnership or, if paid by the Trustee, shall be repaid by the Partnership upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care hereunder; and
(h) if any property other than cash shall at
any time be subject to a lien in favor of the Holders, the Trustee, if and to the extent authorized by a receivership or bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such property to such lien, shall be
entitled to make advances for the purpose of preserving such property or of discharging tax liens or other prior liens or encumbrances thereon.
Section 7.03.
Trustee Not Liable for Recitals in Indenture or in Debt Securities
. The recitals contained herein and in the Debt Securities (except the Trustee’s certificate of authentication) shall be taken as the
statements of the Partnership, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Debt Securities of any series, except that
the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Debt Securities and perform its obligations hereunder, and that the statements made by it or to be made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Partnership are true and accurate. The Trustee shall not be accountable for the use or application by the Partnership of any of the Debt Securities or of the proceeds thereof.
Section 7.04.
Trustee, Paying Agent or Registrar May Own Debt Securities
. The Trustee or any Paying Agent or Registrar, in its individual or
any other capacity, may become the owner or pledgee of Debt Securities and, subject to the provisions of the TIA relating to conflicts of interest and preferential claims, may otherwise deal with the Partnership with the same rights it would have if
it were not Trustee, Paying Agent or Registrar.
Section 7.05.
Moneys Received by Trustee to Be Held in Trust
. Subject to the
provisions of Section 11.05, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any moneys received by it hereunder. So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to
time to the Partnership upon a Partnership Order.
Section 7.06.
Compensation and Reimbursement
. The Partnership and each
Guarantor (if any) jointly and severally covenant and agree to pay to the Trustee from time to time, and the
43
Trustee shall be entitled to, reasonable compensation for all services rendered by it hereunder (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an express trust), and, except as otherwise expressly provided herein, the Partnership or any Guarantor will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents, attorneys and counsel
and of all Persons not regularly in its employ), including without limitation, Section 6.02, except any such expense, disbursement or advances as may arise from its negligence, willful misconduct or bad faith. The Partnership and each Guarantor
(if any) also jointly and severally covenant to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence, willful misconduct or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim of liability in connection with the exercise or performance of any of its powers or
duties hereunder. The obligations of the Partnership and each Guarantor (if any) under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute
additional Debt hereunder and shall survive the satisfaction and discharge of this Indenture. The Partnership, each Guarantor (if any) and the Holders agree that such additional Debt shall be secured by a lien prior to that of the Debt Securities
upon all property and funds held or collected by the Trustee, as such, except funds held in trust for the payment of principal of, and premium, if any, or interest on, particular Debt Securities.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of administration under any bankruptcy, insolvency, reorganization or other similar law.
Section 7.07.
Right of Trustee to Rely on an Officers’ Certificate Where No Other Evidence Specifically Prescribed
. Except as otherwise provided in Section 7.01, whenever in the administration of
the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Trustee. Such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08.
Separate Trustee; Replacement of Trustee
. The Partnership may, but need not, appoint a separate Trustee for any one or more
series of Debt Securities. The Trustee may resign with respect to one or more or all series of Debt Securities at any time by giving notice to the Partnership and each Guarantor with respect to such series. The Holders of a majority in principal
amount of the Debt Securities of a particular series may remove the Trustee for such series and only such series by so notifying the Trustee and may appoint a successor Trustee. The Partnership shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
44
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a Custodian takes charge of the Trustee or its property; or
(d) the Trustee otherwise becomes incapable of acting in such capacity.
If the Trustee resigns, is removed by the
Partnership or by the Holders of a majority in principal amount of the Debt Securities of a particular series and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of Trustee for any reason
(the Trustee in such event being referred to herein as the retiring Trustee), the Partnership shall promptly appoint a successor Trustee. No resignation or removal of the Trustee and no appointment of a successor Trustee shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of this Section 7.08.
A
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Partnership and each Guarantor (if any). Thereupon the resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders of Debt Securities of each applicable series. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.06.
If a
successor Trustee does not take office within 60 days after the retiring Trustee gives notice of resignation or is removed, the retiring Trustee or the Holders of 25% in principal amount of the Debt Securities of any applicable series may petition
any court of competent jurisdiction for the appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee
fails to comply with Section 7.10, any Holder of Debt Securities of any applicable series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee for the Debt Securities of such
series.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08, the obligations of the Partnership and each
Guarantor (if any) under Section 7.06 shall continue for the benefit of the retiring Trustee.
In the case of the appointment
hereunder of a separate or successor trustee with respect to the Debt Securities of one or more series, the Partnership, each Guarantor with respect to the Debt Securities of any applicable series (if any), any retiring Trustee and each successor or
separate Trustee with respect to the Debt Securities of any applicable series shall execute and deliver an indenture supplemental hereto (i) which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of any retiring Trustee with respect to the Debt Securities of any series as to which any such retiring Trustee is not retiring shall continue to be vested in such retiring Trustee and (ii) that shall add to or
change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the
45
same trust and that each such separate, retiring or successor Trustee shall be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other such Trustee.
Section 7.09.
Successor Trustee by
Merger
. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation or
banking association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture, any of the Debt Securities shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debt Securities so authenticated; and in case at that time any of the Debt Securities shall not have been authenticated, any successor to the Trustee may authenticate such Debt Securities
either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force afforded anywhere in the Debt Securities or in this Indenture to a certificate of the
Trustee.
Section 7.10.
Eligibility; Disqualification
. The Trustee shall at all times satisfy the requirements of
Section 310(a) of the TIA. The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. No obligor upon the Debt Securities of a particular series or Person
directly or indirectly controlling, controlled by or under common control with such obligor shall serve as Trustee upon the Debt Securities of such series. The Trustee shall comply with Section 310(b) of the TIA;
provided, however
, that
there shall be excluded from the operation of Section 310(b)(1) of the TIA this Indenture or any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Partnership or any
Guarantor are outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the TIA are met.
Section 7.11.
Preferential Collection of Claims Against Partnership
. The Trustee shall comply with Section 311(a) of the TIA, excluding any creditor relationship listed in Section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the TIA to the extent indicated therein.
Section 7.12.
Compliance with Tax Laws
. The Trustee hereby agrees to comply with all U.S. Federal income tax information reporting and withholding requirements applicable to it with respect to payments of premium (if any) and interest on the Debt
Securities, whether acting as Trustee, Registrar, Paying Agent or otherwise with respect to the Debt Securities.
Section 7.13.
Administration of Trust
. The Trustee shall administer the trust of the Indenture and shall perform a substantial part of its obligations relating to each series of Debt Securities and this Indenture at its corporate trust office in the City
of New York.
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ARTICLE VIII
CONCERNING THE HOLDERS
Section 8.01.
Evidence of Action by Holders
. Whenever in
this Indenture it is provided that the Holders of a specified percentage in aggregate principal amount of the Debt Securities of any or all series may take action (including the making of any demand or request, the giving of any direction, notice,
consent or waiver or the taking of any other action), the fact that at the time of taking any such action the Holders of such specified percentage have joined therein may be evidenced by any instrument or any number of instruments of similar tenor
executed by Holders in Person or by agent or proxy appointed in writing, by the record of the Holders voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Section 5.02 or by a combination
of such instrument or instruments and any such record of such a meeting of Holders.
Section 8.02.
Proof of Execution of
Instruments and of Holding of Debt Securities
. Subject to the provisions of Section 7.01, Section 7.02 and Section 13.09, proof of the execution of any instrument by a Holder or his agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The ownership of Debt Securities of any series shall be proved by the Debt Security Register or by a
certificate of the Registrar for such series. The Trustee may require such additional proof of any matter referred to in this Section 8.02 as it shall deem necessary.
Section 8.03.
Who May Be Deemed Owner of Debt Securities
. Prior to due presentment for registration of transfer of any Debt Security, the
Partnership, the Trustee, any Paying Agent and any Registrar may deem and treat the Person in whose name any Debt Security shall be registered upon the books of the Partnership as the absolute owner of such Debt Security (whether or not such Debt
Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and premium, if any, and (subject to Section 2.12) interest on such Debt
Security and for all other purposes, and neither the Partnership nor the Trustee nor any Paying Agent nor any Registrar shall be affected by any notice to the contrary; and all such payments so made to any such Holder for the time being, or upon his
order, shall be valid and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Debt Security.
None of the Partnership, the Trustee, any agent of the Trustee, any Paying Agent or any Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 8.04.
Instruments Executed by Holders Bind Future Holders
. At any time prior to (but not after) the Trustee receiving evidence, as provided in Section 8.01, of any action taken by the Holders
of the percentage in aggregate principal amount of the Debt Securities of any series specified in this Indenture and subject to the following paragraph, any Holder of a Debt Security which is shown by the evidence to have consented to such action
may, by filing written notice with the Trustee at its corporate trust office and upon proof of holding as provided in
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Section 8.02, revoke such action so far as concerns such Debt Security. Except as aforesaid any such action taken by
the Holder of any Debt Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Debt Security and of any Debt Security issued upon transfer thereof or in exchange or substitution therefor, irrespective
of whether or not any notation in regard thereto is made upon such Debt Security or such other Debt Securities. Any action taken by the Holders of the percentage in aggregate principal amount of the Debt Securities of any series specified in this
Indenture in connection with such action shall be conclusively binding upon the Partnership, the Trustee and the Holders of all the Debt Securities of such series.
The Partnership may, but shall not be obligated to, fix a record date for the purpose of determining the Holders of Debt Securities entitled to give their consent or take any other action required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders of Debt Securities at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders of Debt Securities after such record date. No such consent shall be valid or effective
for more than 120 days after such record date unless the consent of the Holders of the percentage in aggregate principal amount of the Debt Securities of such series specified in this Indenture shall have been received within such 120-day period.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01.
Purposes for Which Supplemental Indenture May Be Entered into Without
Consent of Holders
. The Partnership, when authorized by resolutions of the Board of Directors, each Guarantor (if any) and the Trustee may from time to time and at any time, without the consent of Holders, enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the TIA as in force at the date of the execution thereof) for one or more of the following purposes:
(a) to evidence the succession pursuant to Article X of another Person to the Partnership or any Guarantor, or successive successions, and the assumption by the Successor Partnership or any Successor Guarantor
(in each case, as defined in Section 10.01) of the covenants, agreements and obligations of the Partnership or any Guarantor, respectively, in this Indenture and in the Debt Securities;
(b) to surrender any right or power herein conferred upon the Partnership or any Guarantor, to add to the covenants of the Partnership or any Guarantor
such further covenants, restrictions, conditions or provisions for the protection of the Holders of all or any series of Debt Securities (and if such covenants are to be for the benefit of less than all series of Debt Securities, stating that such
covenants are expressly being included solely for the benefit of such series) as the Board of Directors shall consider to be for the protection of the Holders of such Debt Securities, and to make the occurrence, or the occurrence and continuance, of
a Default in any of such additional covenants, restrictions, conditions or provisions a Default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this
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Indenture;
provided
that, in respect of any such additional covenant, restriction, condition or provision, such
supplemental indenture may provide for a particular period of grace after Default (which period may be shorter or longer than that allowed in the case of other Defaults) or may provide for an immediate enforcement upon such Default or may limit the
remedies available to the Trustee upon such Default or may limit the right of the Holders of a majority in aggregate principal amount of any or all series of Debt Securities to waive such default;
(c) to cure any ambiguity or omission or to correct or supplement any provision contained herein, in any supplemental indenture or in any Debt Securities
of any series that may be defective or inconsistent with any other provision contained herein, in any supplemental indenture or in the Debt Securities of such series;
(d) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or to make such other provisions in regard to matters or questions arising under this Indenture, as shall not adversely affect
the interests of any Holders of Debt Securities of any series;
(e) to modify or amend this Indenture in such a manner as to permit the
qualification of this Indenture or any indenture supplemental hereto under the TIA as then in effect, except that nothing herein contained shall permit or authorize the inclusion in any indenture supplemental hereto of the provisions referred to in
Section 316(a)(2) of the TIA;
(f) to add to or change any of the provisions of this Indenture to change or eliminate any restrictions
on the payment of principal of, or premium, if any, on, Debt Securities;
provided
that any such action shall not adversely affect the interests of the Holders of Debt Securities of any series in any material respect or permit or facilitate
the issuance of Debt Securities of any series in uncertificated form;
(g) to secure any or all of the Debt Securities;
(h) to make any change that does not adversely affect the rights of any Holder;
(i) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Debt Securities;
provided, however
,
that any such addition, change or elimination not otherwise permitted under this Section 9.01 shall neither apply to any Debt Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of
such provision nor modify the rights of the Holder of any such Debt Security with respect to such provision or shall become effective only when there is no such Debt Security Outstanding;
(j) to evidence and provide for the acceptance of appointment hereunder by a successor or separate Trustee with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee;
(k) to establish the form or terms of Debt Securities of any series as permitted by Section 2.01 and Section 2.03; and
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(l) to reflect the release of any Guarantor of its obligations under the Guarantee, in the manner
provided by this Indenture.
The Trustee is hereby authorized to join with the Partnership and each Guarantor (if any) in the execution of
any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not
be obligated to enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed by the Partnership, each Guarantor (if any) and the Trustee without the consent of the Holders of any of the Debt
Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02.
Modification of
Indenture with Consent of Holders of Debt Securities
. Without notice to any Holder but with the consent (evidenced as provided in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Outstanding Debt
Securities of each series affected by such supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for any such series of Debt Securities), the Partnership, when authorized by resolutions of the Board
of Directors, each Guarantor (if any) and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the TIA as in force at the date of execution thereof) for
the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Debt Securities of such series;
provided
that, no such supplemental indenture, without the consent of the Holders of each Debt Security so affected, shall: reduce the percentage in principal amount of Debt Securities of any series whose Holders must consent to an amendment;
reduce the rate of or extend the time for payment of interest on any Debt Security; reduce the principal of or extend the Stated Maturity of any Debt Security; reduce the premium payable upon the redemption of any Debt Security or change the time at
which any Debt Security may or shall be redeemed in accordance with Article III; make any Debt Security payable in currency other than the Dollar; impair the right of any Holder to receive payment of premium, if any, principal of and interest
on such Holder’s Debt Securities on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Debt Securities; release any security that may have been granted in respect of
the Debt Securities; or make any change in Section 6.06 or this Section 9.02.
A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which has been expressly included solely for the benefit of one or more particular series of Debt Securities or which modifies the rights of the Holders of Debt Securities of such series
with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Debt Securities of any other series.
Upon the request of the Partnership, accompanied by a copy of resolutions of the Board of Directors authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the
consent of Holders as aforesaid, the Trustee shall join with
50
the Partnership and each Guarantor (if any) in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion but shall not be obligated to enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the substance thereof.
After an amendment under this Section 9.02
becomes effective, the Partnership shall mail to Holders of Debt Securities of each series affected thereby a notice briefly describing such amendment. The failure to give such notice to all such Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section 9.02.
Section 9.03.
Effect of Supplemental Indentures
. Upon the
execution of any supplemental indenture pursuant to the provisions of this Article IX, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Partnership, each Guarantor (if any) and the Holders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Section 7.01and Section 7.02, may receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such supplemental indenture
complies with the provisions of this Article IX.
Section 9.04.
Debt Securities May Bear Notation of Changes by Supplemental
Indentures
. Debt Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article IX may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. New Debt Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the Partnership, authenticated by the Trustee and delivered in exchange for the Debt Securities of such series then Outstanding. Failure to make the appropriate notation or
to issue a new Debt Security of such series shall not affect the validity of such amendment.
ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 10.01.
Consolidations and Mergers of the Partnership or any Guarantor
. Neither the Partnership nor any Guarantor shall consolidate or amalgamate with or merge with or into any Person, or sell,
convey, transfer, lease or otherwise dispose of all or substantially all its assets to any Person, whether in a single transaction or a series of related transactions, (1) except in accordance with the provisions of the partnership agreement,
certificate or articles of incorporation, bylaws or other applicable organizational documents thereof, and (2) unless: (a)
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either (i) the Partnership or such Guarantor (as the case may be) shall be the continuing Person in the case of a
merger or (ii) the resulting, surviving or transferee Person if other than the Partnership or such Guarantor (respectively, the “Successor Partnership” and the “Successor Guarantor”), shall be a partnership, limited
liability company or corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia, or Canada or any province thereof, and the Successor Partnership or Successor Guarantor (as the
case may be) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Partnership or such Guarantor (as applicable) under this Indenture and
the Debt Securities or the applicable Guarantee according to their tenor; (b) immediately after giving effect to such transaction (and treating any Debt which becomes an obligation of the Successor Partnership or the Successor Guarantor (as the
case may be) or any Subsidiary thereof as a result of such transaction as having been incurred by the Successor Partnership or the Successor Guarantor (as applicable) or such Subsidiary at the time of such transaction), no Default or Event of
Default would occur or be continuing; and (c) the Partnership shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger or disposition and such
supplemental indenture (if any) comply with this Indenture.
Section 10.02.
Rights and Duties of Successor Partnership and
Successor Guarantor
. In case of any consolidation, amalgamation or merger where the Partnership or any Guarantor is not the continuing Person, or disposition of all or substantially all of the assets of the Partnership or any Guarantor in
accordance with Section 10.01, the Successor Partnership or Successor Guarantor (as the case may be) shall succeed to and be substituted for the Partnership or such Guarantor (as applicable) with the same effect as if it had been named herein
as the respective party to this Indenture, and the predecessor entity shall be released from all liabilities and obligations under this Indenture, the Debt Securities and any Guarantee, except that no such release will occur in the case of a lease
of all or substantially all of its assets.
The Successor Partnership thereupon may cause to be signed, and may issue either in its own
name or in the name of the Partnership, any or all the Debt Securities issuable hereunder which theretofore shall not have been signed by the Partnership and delivered to the Trustee; and, upon the order of the Successor Partnership, instead of the
Partnership, and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Debt Securities which previously shall have been signed and delivered by the Officers of the
General Partner to the Trustee for authentication, and any Debt Securities which the Successor Partnership thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Debt Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Debt Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all such Debt Securities had been issued at the date of the execution hereof.
In case of any such consolidation, amalgamation, merger, sale or disposition such changes in phraseology and form (but not in substance)
may be made in the Debt Securities thereafter to be issued as may be appropriate.
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ARTICLE XI
SATISFACTION AND DISCHARGE OF
INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
Section 11.01.
Applicability of Article
. The provisions of this Article XI relating to defeasance of Debt
Securities shall be applicable to each series of Debt Securities except as otherwise specified pursuant to Section 2.03 for Debt Securities of such series.
Section 11.02.
Satisfaction and Discharge of Indenture; Defeasance
.
(a) If at any time the
Partnership shall have delivered to the Trustee for cancellation all Debt Securities of any series theretofore authenticated and delivered (other than any Debt Securities of such series which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.09 and Debt Securities for whose payment money has theretofore been deposited in trust and thereafter repaid to the Partnership as provided in Section 11.05) or all Debt Securities of
such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the Partnership or any Guarantor shall deposit with the Trustee as trust funds the entire amount in cash sufficient to pay at maturity or upon redemption all Debt Securities of
such series not theretofore delivered to the Trustee for cancellation, including principal and premium, if any, and interest due or to become due on such date of Stated Maturity or redemption date, as the case may be, and if in either case the
Partnership or any Guarantor shall also pay or cause to be paid all other sums payable hereunder by the Partnership and/or the Guarantors (if any), then this Indenture shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of such Debt Securities herein expressly provided for) with respect to the Debt Securities of such series, and the Trustee, on demand of the Partnership accompanied by an Officers’ Certificate and an Opinion
of Counsel and at the cost and expense of the Partnership, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture.
(b) Subject to Section 11.02(c), Section 11.03 and Section 11.07, the Partnership at any time may terminate, with respect to Debt Securities of a particular series, (i) all of the obligations of
the Partnership and each Guarantor (if any) under the Debt Securities of such series and this Indenture with respect to the Debt Securities of such series (“legal defeasance option”) or (ii) the operation of
(x) Section 4.07, Section 4.08, Section 4.09, Section 4.10 and Section 4.11 and Article X and any covenant made applicable to such Debt Securities pursuant to Section 2.03 and (y) Section 6.01(d),
(g), (h) and (i) (“covenant defeasance option”). The Partnership may exercise its legal defeasance option notwithstanding its prior exercise of its covenant defeasance option.
If the Partnership exercises its legal defeasance option, payment of the Debt Securities of the defeased series may not be accelerated because of an
Event of Default. If the Partnership exercises its covenant defeasance option, payment of the Debt Securities of the defeased series may not be accelerated because of an Event of Default specified in Section 6.01(d), (g), (h) or
(i) (except to the extent covenants or agreements referenced in such Sections remain applicable).
53
Upon satisfaction of the conditions set forth herein and upon request of the Partnership, the Trustee
shall acknowledge in writing the discharge of those obligations that the Partnership terminates.
(c) Notwithstanding clauses (a) and
(b) above, the Partnership’s obligations in Section 2.07, Section 2.09, Section 4.01, Section 4.02, Section 4.03, Section 4.04, Section 4.05, Section 4.06, Section 5.01, Section 7.06,
Section 11.05, Section 11.06 and Section 11.07 shall survive until the Debt Securities of the defeased series have been paid in full. Thereafter, the Partnership’s obligations in Section 7.06, Section 11.05 and
Section 11.06 shall survive.
Section 11.03.
Conditions of Defeasance
. The Partnership may exercise its legal defeasance
option or its covenant defeasance option with respect to Debt Securities of a particular series only if:
(a) the Partnership or any
Guarantor irrevocably deposits in trust with the Trustee money or U.S. Government Obligations for the payment of principal of, and premium, if any, and interest on, the Debt Securities of such series to Stated Maturity or redemption, as the case may
be;
(b) the Partnership delivers to the Trustee a certificate from a nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when due and without reinvestment on the deposited U.S. Government Obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be
sufficient to pay the principal, premium and interest when due on all the Debt Securities of such series to Stated Maturity or redemption, as the case may be;
(c) 91 days pass after the deposit is made and during the 91-day period no Default specified in Section 6.01(e) or (f) with respect to the Partnership or any Guarantor occurs which is continuing at the end
of the period;
(d) no Default has occurred and is continuing on the date of such deposit and after giving effect thereto;
(e) the deposit does not constitute a default under any other agreement binding on the Partnership or any Guarantor;
(f) the Partnership delivers to the Trustee an Opinion of Counsel to the effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company Act of 1940;
(g) in the event of an exercise of the legal
defeasance option, the Partnership shall have delivered to the Trustee an Opinion of Counsel stating that the Partnership has received from the Internal Revenue Service a ruling, or since the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case of the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred;
54
(h) in the event of an exercise of the covenant defeasance option, the Partnership shall have delivered
to the Trustee an Opinion of Counsel to the effect that the Holders of Debt Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred; and
(i) the Partnership delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance and discharge of the Debt Securities of such series as
contemplated by this Article XI have been complied with.
Before or after a deposit, the Partnership may make arrangements
satisfactory to the Trustee for the redemption of Debt Securities of such series at a future date in accordance with Article III.
Section 11.04.
Application of Trust Money
. The Trustee shall hold in trust money or U.S. Government Obligations deposited with it pursuant to this Article XI. It shall apply the deposited money and the money from U.S.
Government Obligations through any Paying Agent and in accordance with this Indenture to the payment of principal of, and premium, if any, and interest on, the Debt Securities of the defeased series.
Section 11.05.
Repayment to Partnership
. The Trustee and any Paying Agent shall promptly turn over to the Partnership upon request any excess
money or securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any Paying Agent shall pay
to the Partnership upon request any money held by them for the payment of principal, premium or interest that remains unclaimed for two years, and, thereafter, Holders entitled to such money must look to the Partnership for payment as general
creditors.
Section 11.06.
Indemnity for U.S. Government Obligations
. The Partnership and each Guarantor (if any), jointly and
severally, shall pay and shall indemnify the Trustee and the Holders against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government
Obligations.
Section 11.07.
Reinstatement
. If the Trustee or any Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with this Article XI by reason of any legal proceeding or by reason of any order or judgment of any court or government authority enjoining, restraining or otherwise prohibiting such application, the Partnership’s
and each Guarantor’s obligations under this Indenture and the Debt Securities of the defeased series (or the Guarantees related thereto) shall be revived and reinstated as though no deposit had occurred pursuant to this Article XI until
such time as the Trustee or any Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with this Article XI.
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ARTICLE XII
GUARANTEE OF DEBT SECURITIES
Section 12.01.
Unconditional Guarantee
.
(a) For value received, each of the Guarantors hereby fully, irrevocably, unconditionally and absolutely guarantees to the Holders of Debt Securities
of each series to which this Article XII has been made applicable as provided in Section 2.03(t) and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on such Debt Securities, and all other
amounts due and payable under this Indenture and such Debt Securities by the Partnership to the Trustee or such Holders (including, without limitation, all costs and expenses (including reasonable legal fees and disbursements) incurred by the
Trustee or such Holders in connection with the enforcement of this Indenture and the Guarantee) (collectively, the “Indenture Obligations”), when and as such amounts shall become due and payable, whether at the Stated Maturity, upon
redemption or by declaration of acceleration or otherwise, according to the terms of such Debt Securities and this Indenture. The guarantees by the Guarantors set forth in this Article XII are referred to herein as the “Guarantee.”
Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the Indenture Obligations and would be owed by the Partnership to the Trustee or such Holders under this Indenture
and such Debt Securities but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Partnership.
(b) Failing payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each Guarantor will be obligated (to the fullest
extent permitted by applicable law) to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). The Guarantee hereunder is intended to be a general,
unsecured, senior obligation of each Guarantor and will rank
pari passu
in right of payment with all unsecured indebtedness of such Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of such
Guarantor. Each Guarantor hereby agrees that, to the fullest extent permitted by applicable law, its obligations hereunder shall be full, irrevocable, unconditional and absolute, irrespective of the validity, regularity or enforceability of such
Debt Securities, the Guarantee or this Indenture, the absence of any action to enforce the same, any waiver or consent by any such Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Partnership, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor. Each Guarantor hereby agrees that in the event of a default in payment of any Indenture Obligations,
whether at the Stated Maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of such Holders or, subject to Section 6.04 hereof, by such Holders, on the terms and
conditions set forth in this Indenture, directly against such Guarantor to enforce the Guarantee without first proceeding against the Partnership.
(c) To the fullest extent permitted by applicable law, the obligations of each Guarantor under this Article XII shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged,
released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release,
56
waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of
the Partnership or any Guarantor contained in any of such Debt Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Partnership, any Guarantor or any of their estates in bankruptcy, or
any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the
Trustee or any such Holder of any rights or remedies under any of such Debt Securities or this Indenture or their delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any
property as security for any of such Debt Securities, including all or any part of the rights of the Partnership or any Guarantor under this Indenture, (v) the extension of the time for payment by the Partnership or any Guarantor of any
payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of such Debt Securities or this Indenture or of the time for performance by the Partnership or any Guarantor of any other obligations under or
arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any Guarantor set forth
in this Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment, rehabilitation or relief of, or other similar proceeding affecting, the Partnership or any Guarantor or any of their respective assets, or the disaffirmance of any of
such Debt Securities, the Guarantee or this Indenture in any such proceeding, (viii) the release or discharge of the Partnership or any Guarantor from the performance or observance of any agreement, covenant, term or condition contained in any
of such instruments by operation of law, (ix) the unenforceability of any of such Debt Securities, the Guarantee or this Indenture, (x) any change in the name, business, capital structure, corporate existence, or ownership of the
Partnership or any Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or any Guarantor.
(d) To the fullest extent permitted by applicable law, each Guarantor hereby (i) waives diligence, presentment, demand of payment, notice of
acceptance, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or such Guarantor, and all demands and notices whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing
the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to them and (iii) covenants that its Guarantee will
not be discharged except by complete performance of the Guarantee. To the fullest extent permitted by applicable law, each Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any Person to any Guarantee
is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of any Guarantor, such Guarantee shall, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
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(e) Each Guarantor shall be subrogated to all rights of the Holders and the Trustee against the
Partnership in respect of any amounts paid by such Guarantor pursuant to the provisions of this Indenture;
provided
,
however
, that such Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based
upon, such right of subrogation with respect to any of such Debt Securities until all of such Debt Securities and the Guarantee shall have been indefeasibly paid in full or discharged.
(f) No partner, director, officer, employee or equity holder, as such, of a Guarantor shall have any liability for any obligations of the Guarantor under
this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation.
(g) To the fullest extent
permitted by applicable law, no failure to exercise and no delay in exercising, on the part of the Trustee or the Holders, any right, power, privilege or remedy under this Article XII and the Guarantee shall operate as a waiver thereof, nor
shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are
cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Article XII shall limit the right of the Trustee or the Holders to take any action to accelerate the maturity of such Debt Securities
pursuant to Article VI or to pursue any rights or remedies hereunder or under applicable law.
Section 12.02.
Limitation on
Guarantor Liability
.
Each Guarantor, and, by its acceptance of Debt Securities, each Holder, hereby confirms that it is the intention
of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state
law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that will, after
giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article XII, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent transfer or conveyance.
Section 12.03.
Execution and Delivery of Notation of Guarantee
. To further evidence the Guarantee, each Guarantor hereby agrees that a
notation of such Guarantee may be endorsed on each Debt Security of a series to which this Article XII has been made applicable authenticated and delivered by the Trustee and executed by either manual or facsimile signature of an officer of
such Guarantor.
Each Guarantor hereby agrees that its Guarantee of Debt Securities of a series to which this Article XII has been
made applicable shall remain in full force and effect notwithstanding any failure to endorse on any such Debt Security a notation relating to the Guarantee thereof.
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If an officer of any Guarantor whose signature is on this Indenture or a Debt Security no longer holds
that office at the time the Trustee authenticates such Debt Security or at any time thereafter, such Guarantor’s Guarantee of such Debt Security shall be valid nevertheless.
The delivery by the Trustee of any Debt Security of a series to which this Article XII has been made applicable, after the authentication thereof
under this Indenture, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of each Guarantor.
Section 12.04.
Release of Guarantee
.
(a) Notwithstanding anything to the contrary in this Article XII, if any
Guarantor shall cease to be either (i) a Subsidiary of the Partnership or (ii) an obligor on any Funded Debt other than the Debt Securities, then if no Default or Event of Default shall have occurred and be continuing, such Guarantor, upon
giving notice to the Trustee to the foregoing effect, shall be deemed to be released from all of its obligations under this Indenture, and the Guarantee shall be of no further force or effect with respect to such Guarantor. Following the receipt by
the Trustee of any such notice, the Partnership shall cause this Indenture to be amended as provided in Section 9.01(l) hereof;
provided
,
however
, that the failure to so amend this Indenture shall not affect the validity of the
termination of the Guarantee with respect to such Guarantor.
(b) In addition, upon the exercise of the legal defeasance option or the
satisfaction and discharge of this Indenture as provided in Section 11.02 hereof, each of the Guarantors shall be deemed to be released from all its obligations under this Indenture and the Guarantee shall be of no further force or effect.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01.
Successors and Assigns of Partnership Bound by Indenture
. All
the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Partnership, each Guarantor (if any) or the Trustee shall bind their respective successors and assigns, whether so expressed or not.
Section 13.02.
Acts of Board, Committee or Officer of Successor Partnership Valid
. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board, committee or officer of the General Partner shall and may be done and performed with like force and effect by the like board, committee or officer of any Successor Partnership.
Section 13.03.
Required Notices or Demands
. Any notice or communication by the Partnership, any Guarantor or the Trustee to
the others is duly given if in writing (in the English language) and delivered in Person or mailed by registered or certified mail (return receipt requested), telecopier or overnight air courier, to the other’s address:
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If to the Partnership:
ONEOK Partners, L.P.
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c/o
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ONEOK Partners GP, L.L.C.
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100 West Fifth Street, Suite
1831
Tulsa, Oklahoma 74103-4298
Telecopier No.: (918) 588-7000
Attention: Chief Financial Officer
If to a Guarantor:
to the Guarantor’s
address and/or telecopier number set forth in the indenture supplemental hereto in which such Guarantor is named as a Guarantor.
If to the
Trustee:
Wells Fargo Bank, N.A.
Corporate Trust & Escrow Services
N9303-110 MAC
Sixth & Marquette
Minneapolis, MN
55479
Telecopier No.: (612) 667-2160
Attention: Steven R. Gubrud
The Partnership, any Guarantor and the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; on the first Business Day on or after being sent, if telecopied and the sender receives
confirmation of successful transmission; and upon delivery, if sent by e-mail or overnight air courier.
Any notice required or permitted
to a Holder by the Partnership, any Guarantor or the Trustee pursuant to the provisions of this Indenture shall be deemed to be properly mailed by being deposited postage prepaid in a post office letter box in the United States of America addressed
to such Holder at the address of such Holder as shown on the Debt Security Register. Any report pursuant to Section 313 of the TIA shall be transmitted in compliance with subsection (c) therein.
Notwithstanding the foregoing, any notice to Holders of Floating Rate Securities regarding the determination of a periodic rate of interest, if such
notice is required pursuant to Section 2.03, shall be sufficiently given if given in the manner specified pursuant to Section 2.03.
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In the event of suspension of regular mail service or by reason of any other cause it shall be
impracticable to give notice by mail, then such notification as shall be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder.
Failure to mail a notice or communication to a Holder or any defect in it or any defect in any notice by publication as to a Holder shall not affect the
sufficiency of such notice with respect to other Holders. If a notice or communication is mailed or published in the manner provided above, it is conclusively presumed duly given.
Section 13.04.
Indenture and Debt Securities to Be Construed in Accordance with the Laws of the State of New York
. THIS INDENTURE AND EACH
DEBT SECURITY SHALL BE DEEMED TO BE NEW YORK CONTRACTS, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE.
Section 13.05.
Officers’ Certificate and Opinion of Counsel to Be Furnished upon Application or Demand by the Partnership
. Upon any application or demand by the Partnership or any Guarantor to the
Trustee to take any action under any of the provisions of this Indenture, the Partnership shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action
have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such
document is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (a) a statement that the Person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with and (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.06.
Payments Due on Legal Holidays
. In any case where the date of maturity of interest on or principal of and premium, if any, on
the Debt Securities of a series or the date fixed for redemption or repayment of any Debt Security or the making of any sinking fund payment shall not be a Business Day at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund payment need not be made on such date at such Place of Payment, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect
as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date. If a record date is not a Business Day, the record date shall not be affected.
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Section 13.07.
Provisions Required by TIA to Control
. If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of Sections 310 to 318, inclusive, of the TIA, such required provision shall control.
Section 13.08.
Computation of Interest on Debt Securities
. Interest, if any, on the Debt Securities shall be computed on the
basis of a 360-day year of twelve 30-day months, except as may otherwise be provided pursuant to Section 2.03.
Section 13.09.
Rules by Trustee, Paying Agent and Registrar
. The Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar and any Paying Agent may make reasonable rules for their functions.
Section 13.10.
Non-Recourse to the General Partner; No Personal Liability of Directors, Officers, Employees or Partners
. Obligations of the
Partnership (or any Guarantor) under this Indenture and the Debt Securities issued hereunder are non-recourse to the General Partner (or the general partners or other holders of equity interests of any Guarantor), and their respective Affiliates
(other than the Partnership and any Guarantor), and payable only out of cash flow and assets of the Partnership and any Guarantor. The Trustee, and each Holder of a Debt Security by its acceptance thereof, will be deemed to have agreed in this
Indenture that (1) none of the General Partner or the general partners or other holders of equity interests of any Guarantor (nor any of their respective Affiliates other than the Partnership and any Guarantor) shall be liable for any of the
obligations of the Partnership or any Guarantor under this Indenture or any Debt Securities, and (2) no director, officer, employee, stockholder or unitholder, as such, of the Partnership, any Guarantor, the Trustee, the General Partner or any
Affiliate of any of the foregoing entities and no member of the Board of Directors shall have any personal liability in respect of the obligations of the Partnership or any Guarantor under this Indenture or any Debt Securities by reason of his, her
or its status.
Section 13.11.
Severability
. In case any provision in this Indenture or the Debt Securities shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.12.
Effect of Headings
. The article and section headings herein and in the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 13.13.
Indenture May Be Executed in Counterparts
. This Indenture may be executed in any number of counterparts, each of which shall
be an original; but such counterparts shall together constitute but one and the same instrument.
Section 13.14.
Consent to
Jurisdiction and Service of Process
. If at any time either the Partnership or any Guarantor is not organized under the laws the United States (including the States thereof and the District of Columbia), as soon as practicable it shall appoint CT
Corporation or any other agent acceptable to the Trustee (the “Authorized Agent”) upon whom process may be served in any action, suit or proceeding arising out of or based on this Indenture, the Debt Securities or any Guarantee that may be
instituted in the Supreme Court of the State of New York or the United States District Court for the Southern District of New York, in either
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case in the Borough of Manhattan, The City of New York, by the Trustee or the Holder of any Debt Security, and to the
fullest extent permitted by applicable law, each of the Partnership and such Guarantor hereby waives any objection which it may now or hereafter have to the laying of venue of any such proceeding and expressly and irrevocably accepts and submits,
for the benefit of the Trustee and the Holders from time to time of the Debt Securities, to the nonexclusive jurisdiction of any such court in respect of any such action, suit or proceeding, for itself and with respect to its properties, revenues
and assets. Once made, such appointment shall be irrevocable unless and until the Partnership or such Guarantor has appointed a successor Authorized Agent for such purpose, and such successor’s acceptance of such appointment shall have
occurred. Each of the Partnership and such Guarantor agrees to take any and all actions, including the filing of any and all documents and instruments, that may be necessary so that once made such appointment shall continue in full force and effect
as aforesaid. Service of process upon the Authorized Agent with respect to any such action shall be deemed, in every respect, effective service of process upon the Partnership or such Guarantor, as the case may be.
Section 13.15.
Judgment Currency
. Each of the Partnership and any Guarantor agrees to indemnify each of the Trustee and the Holders against
any loss incurred by it as a result of any judgment or order being given or made with respect to the Debt Securities, any Guarantee or this Indenture and expressed and paid in a currency (the “Judgment Currency”) other than U.S. dollars
and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the Judgment Currency for the purpose of such judgment or order and (ii) the spot rate of exchange in The City of New
York at which the Trustee or such Holder on the date of payment of such judgment or order is able to purchase U.S. dollars with the amount of the Judgment Currency actually received by the Trustee or such Holder. The foregoing indemnity shall
constitute a separate and independent obligation of each of the Partnership and any Guarantor and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “spot rate of exchange” shall
include any premium and cost of exchange payable in connection with the purchase of, or conversion into, U.S. dollars.
(The remainder of
this page is intentionally blank.)
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day
and year first above written.
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ONEOK PARTNERS, L.P.
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By:
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/s/ Jim Kneale
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Name:
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Jim Kneale
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Title:
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Executive Vice President - Finance and Administration and Chief Financial Officer
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WELLS FARGO BANK, N.A., as Trustee
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By:
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/s/ Steven Gubrud
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Name:
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Steven Gubrud
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Title:
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Vice President
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Senior Indenture Signature Page
Exhibit 99.1
DESCRIPTION OF THE NOTES
The following description of the particular terms of the notes supplements the
general description of the debt securities included in the accompanying base prospectus. You should review this description together with the description of the debt securities included in the accompanying base prospectus. To the extent this
description is inconsistent with the description in the accompanying base prospectus, this description will control and replace the inconsistent description in the accompanying base prospectus.
We will issue the notes under a senior indenture to be dated as of the closing date of this offering (as amended and supplemented from time to time,
including supplements setting forth the terms of the notes), between us, ONEOK Partners Intermediate Limited Partnership, as guarantor, and Wells Fargo Bank, N.A., as trustee. The terms of the notes include those stated in the indenture and those
made part of the indenture by reference to the Trust Indenture Act of 1939, as amended. We have summarized some of the material provisions of the notes and the indenture below. The following summary supplements the description of the debt securities
contained in the accompanying base prospectus, and we encourage you to read that description for additional material provisions that may be important to you. We also urge you to read the indenture because it, and not this description, defines your
rights as a holder of the notes. The following description of the notes and the description of the debt securities contained in the accompanying base prospectus are not complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the indenture. You may request a copy of the indenture from us as set forth under “Where You Can Find More Information” below. Capitalized terms defined in the accompanying base prospectus and the indenture have
the same meanings when used in this prospectus supplement.
General Description of the Notes
The notes will be:
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•
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our senior unsecured indebtedness, ranking equally in right of payment with all of our existing and future unsecured senior indebtedness;
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•
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non-recourse to our general partner;
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•
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unconditionally guaranteed by our subsidiary ONEOK Partners Intermediate Limited Partnership;
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•
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senior to all of our future subordinated debt;
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•
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effectively junior to all of our future secured debt to the extent of the collateral securing such debt; and
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•
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effectively junior to all of the existing and future debt and other liabilities of our non-guarantor subsidiaries.
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Upon the sale of the notes, our non-guarantor subsidiaries will have outstanding approximately $154.5 million of unsecured debt, which will rank
effectively senior to the notes.
The notes will not be guaranteed by any of our subsidiaries or affiliates or any other party, other than
ONEOK Partners Intermediate Limited Partnership. The indenture does not limit the aggregate principal amount of debt securities that may be issued thereunder and provides that debt securities may be issued thereunder from time to time in one or more
additional series. Except to the extent described in the accompanying base prospectus, the indenture does not limit our ability or the ability of our subsidiaries to incur additional indebtedness.
Further Issuances
We may, from time to time, without notice to or the consent of the holders of the notes, increase the principal amount under the indenture of any of the series of notes offered hereby and issue such increased
principal amount (or any portion thereof), in which case any additional notes so issued will have the same form and terms (other than the date of issuance, initial interest payment date and, under certain circumstances, the date from which interest
thereon will begin to accrue), and will carry the same right to receive accrued and unpaid interest, as the notes of that series previously issued, and such additional notes will form a single series with such notes, provided that no additional
notes may be issued at a price that would cause them to have “original issue discount” for United States federal income tax purposes.
Principal, Maturity and Interest
We will issue the notes in an initial aggregate principal amount of $1,400,000,000. We
will issue the notes in denominations of $1,000 and whole multiples of $1,000.
Interest on the notes will accrue from September 25,
2006. Interest on the notes will be payable semi-annually in arrears on April 1 and October 1 of each year, commencing on April 1, 2007. We will make each interest payment to the holders of record at the close of business on the
immediately preceding March 15 and September 15, as the case may be. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. Interest will be payable on overdue interest to the extent permitted by law
at the same rate as interest is payable on principal.
2012 Notes
. The 2012 notes will mature on April 1, 2012. Interest on the
2012 notes will accrue at the annual rate of 5.90%.
2016 Notes
. The 2016 notes will mature on October 1, 2016. Interest on the
2016 notes will accrue at the annual rate of 6.15%.
2036 Notes
. The 2036 notes will mature on October 1, 2036. Interest on the
2036 notes will accrue at the annual rate of 6.65%.
If any interest payment date, maturity date or redemption date falls on a day that is
not a business day, the payment will be made on the next business day with the same force and effect as if made on the relevant interest payment date, maturity date or redemption date. Unless we default on a payment, no interest will accrue for the
period from and after the applicable maturity date or redemption date.
Methods of Receiving Payments on the Notes
All payments in respect of all notes represented by a global note will be made by wire transfer of immediately available funds to the account specified by
the holder of the global note to the paying agent with respect to the notes, who will initially be the trustee. With respect to any notes in certificated form, however, we may choose to make payment in New York, New York at the office of the trustee
(or other paying agent) or by mailing a check to the holder’s registered address.
Optional Redemption
The notes will be redeemable, in whole or in part, at our option exercisable at any time or from time to time upon not less than 30 and not more than 60
days’ notice as provided in the indenture, on any date prior to their maturity at a redemption price equal to:
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the principal amount of such notes; plus
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accrued and unpaid interest thereon to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date
that is on or prior to the redemption date); plus
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•
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a make-whole premium described below, if any.
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The
redemption price will never be less than 100% of the principal amount of the relevant notes plus accrued and unpaid interest thereon, if any, to the redemption date.
The amount of the make-whole premium with respect to any note to be redeemed will be equal to the excess, if any, of:
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(1)
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the sum of the present values, calculated as of the redemption date, of:
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each interest payment that, but for such redemption, would have been payable on the note or portion thereof being redeemed on each interest payment date occurring after the
redemption date (excluding any accrued interest for the period prior to the redemption date); and
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the principal amount that, but for such redemption, would have been payable at the final maturity of the note being redeemed; over
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(2)
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the principal amount of the note being redeemed.
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The
present values of interest and principal payments referred to in clause (1) above will be determined in accordance with generally accepted principles of financial analysis. These present values will be calculated by discounting the amount of
each payment of interest or principal from the date that each such payment would have been payable, but for the redemption, to the redemption date at a discount rate equal to the comparable treasury yield (as defined below) plus 20, 25 and 30 basis
points with respect to the 2012, 2016 and 2036 notes, respectively. The make-whole premium will be calculated by an independent investment banking institution of national standing appointed by us. If we fail to appoint an independent investment
banker not less than 30 days prior to the redemption date, or if the independent investment banker we appoint is unwilling or unable to make the calculation, the calculation will be made by Citigroup Global Markets Inc. If Citigroup Global Markets
Inc. is unwilling or unable to make the calculation, we will appoint an independent investment banking institution of national standing to make the calculation.
For purposes of determining the make-whole premium, “comparable treasury yield” means a rate of interest per annum equal to the weekly average yield to maturity of United States Treasury Securities that have
a constant maturity that corresponds to the remaining term to maturity of the notes, calculated to the nearest 1/12th of a year. The comparable treasury yield will be determined as of the third business day immediately preceding the applicable
redemption date.
The weekly average yields of United States Treasury Securities will be determined by reference to the most recent
statistical release published by the Federal Reserve Bank of New York and designated “H.15(519) Selected Interest Rates” or any successor release. If the H.15 statistical release sets forth a weekly average yield for United States Treasury
Securities having a constant maturity that is the same as the remaining term calculated as set forth above, then the comparable treasury yield will be equal to such weekly average yield. In all other cases, the comparable treasury yield will be
calculated by interpolation on a straight-line basis, between the weekly average yields on the United States Treasury Securities that have a constant maturity closest to and greater than the remaining term and the United States Treasury Securities
that have a constant maturity closest to and less than the remaining term (in each case as set forth in the H.15 statistical release or any successor release). Any weekly average yields calculated by interpolation will be rounded to the nearest
1/100th of 1%, with any figure of 1/200th of 1% or above being rounded upward. If weekly average yields for United States Treasury Securities are not available in the H.15 statistical release or otherwise, then the comparable treasury yield will be
calculated by interpolation of comparable rates selected by an independent investment banking institution of national standing selected in the manner described in the second preceding paragraph.
In the case of any partial redemption, selection of the notes for redemption will be made by the trustee in compliance with the requirements of the
principal national securities exchange, if any, on which the notes are listed, or if the notes are not so listed, on a pro rata basis, by lot or by such other method as the trustee considers
fair and appropriate. Notes will only be redeemed in multiples of $1,000 in original principal amount. If any note is to be redeemed in part only, the notice
of redemption will state the portion of the principal amount to be redeemed. A new note in principal amount equal to the unredeemed portion of the original note will be issued upon the cancellation of the original note.
Sinking Fund
We are not required to make mandatory
redemption or sinking fund payments with respect to the notes.
Guarantee
ONEOK Partners Intermediate Limited Partnership will unconditionally guarantee the payment of the notes on a senior unsecured basis. Notwithstanding the
preceding sentence, ONEOK Partners Intermediate Limited Partnership will be released from its obligations under the indenture, and its guarantee will no longer be in effect, if ONEOK Partners Intermediate Limited Partnership is no longer our
subsidiary, so long as no default or event of default under the indenture has occurred or is continuing. In such event, ONEOK Partners Intermediate Limited Partnership will give the trustee notice, and we will execute and deliver a supplemental
indenture reflecting the release of the guarantee. ONEOK Partners Intermediate Limited Partnership will also be released from its obligations under the indenture, and its guarantee will no longer be in effect, if either a legal defeasance or
satisfaction and discharge of the indenture occur.
ONEOK Partners Intermediate Limited Partnership’s guarantee will be a senior
unsecured obligation of ONEOK Partners Intermediate Limited Partnership and will rank equally in right of payment with its guarantee of our $750 million revolving credit agreement and our two outstanding series of senior notes, together with any of
its other existing and future Debt (as defined below) that is not expressly subordinated to its guarantee. ONEOK Partners Intermediate Limited Partnership is a holding company through which we own our interests in our operating subsidiaries. ONEOK
Partners Intermediate Limited Partnership’s guarantee will be effectively subordinated to all indebtedness of Northern Border Pipeline Company and our other operating subsidiaries.
ONEOK Partners Intermediate Limited Partnership’s guarantee of the notes will be limited to the maximum amount as will, after giving effect to all
of its other contingent and fixed liabilities, result in the obligations of ONEOK Partners Intermediate Limited Partnership under its guarantee not constituting a fraudulent conveyance or transfer.
As used in the preceding description of ONEOK Partners Intermediate Limited Partnership’s guarantee, the term “Debt” has the following
meaning:
“
Debt
” means obligations for money borrowed, evidenced by notes, bonds, debentures or other similar evidences of
borrowed money.
Paying Agent and Registrar for the Notes
The trustee will initially act as paying agent and registrar. We may change the paying agent or registrar without prior notice to you, and we or any of our subsidiaries may act as paying agent or registrar. However,
we will at all times maintain an office or agency in The City of New York where the notes may be presented for payment and where we will be required to make such payment in the event of such presentation.
Concerning the Trustee
Wells Fargo Bank, N.A. will
act as indenture trustee, authenticating agent, security registrar and paying agent with respect to the notes.
Governing Law
The indenture, the notes and the guarantee of the notes will be governed by and construed in accordance with the laws of the State of New York.
DESCRIPTION OF THE DEBT SECURITIES
The following description sets forth the general terms and provisions
that apply to the debt securities. Each prospectus supplement will state the particular terms that will apply to the debt securities included in the supplement. The debt securities will be either senior debt securities or subordinated debt
securities issued by ONEOK Partners, L.P. If we offer senior debt securities, we will issue them under a senior indenture. If we offer subordinated debt securities, we will issue them under a subordinated indenture containing subordination
provisions. The debt securities will be governed by the provisions of the applicable indenture and those made part of such indenture by reference to the Trust Indenture Act of 1939, as amended. We urge you to read the indentures filed as exhibits to
the registration statement of which this prospectus is a part, because those indentures, and not this description, govern your rights as a holder of debt securities. For purposes of this “Description of the Debt Securities,” when we refer
to “us,” “we,” “our,” “ours,” or “ONEOK Partners,” we are describing ourselves, ONEOK Partners, L.P. only, and not any of our subsidiaries. References in this prospectus to an “indenture”
refer to each of the senior indenture and the subordinated indenture.
General
The Debt Securities
Any series of debt securities that we issue:
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will be our general obligations; and
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may be subordinated to our senior indebtedness.
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Neither
indenture limits the aggregate principal amount of debt securities that we may issue under that indenture. We may issue debt securities under each indenture from time to time in separate series, up to the aggregate amount authorized for each such
series.
We will prepare a prospectus supplement and either an indenture supplement or a resolution of the board of directors of our
general partner and accompanying officers’ certificate relating to any series of debt securities that we offer, which will include specific terms relating to some or all of the following:
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the title of the debt securities of such series (which shall distinguish the debt securities of the series from all other debt securities);
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any limit upon the aggregate principal amount of the debt securities of such series that may be authenticated and delivered under the indenture;
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the date or dates on which the principal and premium, if any, of the debt securities of such series are payable;
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the rate or rates (which may be fixed or variable) at which the debt securities of the series shall bear interest, if any, or the method of determining such rate or rates, the date
or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable, or the method by which such date will be determined, the record dates for the determination of holders thereof to whom such interest
is payable and the basis upon which interest will be calculated if other than that of a 360-day year of twelve thirty-day months;
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the place or places, if any, in addition to or instead of the corporate trust office of the trustee, where the principal of, and premium, if any, and interest on, debt securities of
the series shall be payable;
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the price or prices at which, the period or periods within which and the terms and conditions upon which debt securities of the series may be redeemed, in whole or in part, at the
option of ONEOK Partners or otherwise;
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the obligation, if any, of ONEOK Partners to redeem, purchase or repay debt securities of the series pursuant to any sinking fund or analogous provisions or at the
option of a holder thereof, and the
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price or prices at which and the period or periods within which and the terms and conditions upon which debt securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligations;
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the terms, if any, upon which the debt securities of the series may be convertible into or exchanged for Capital Interests (which may be represented by depositary shares), other
debt securities or warrants for Capital Interests, debt securities or other securities of any kind of ONEOK Partners or any other obligor and the terms and conditions upon which such conversion or exchange shall be effected, including the initial
conversion or exchange price or rate, the conversion or exchange period and any other provision in addition to or in lieu of those described herein;
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if other than denominations of $1,000 and any integral multiple thereof, the denominations in which debt securities of the series shall be issuable;
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if the amount of principal of or any premium or interest on debt securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which
such amounts will be determined;
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if the principal amount payable at the stated maturity of debt securities of the series will not be determinable as of any one or more dates prior to such stated maturity, the
amount which will be deemed to be such principal amount as of any such date for any purpose, including the principal amount thereof which will be due and payable upon any maturity other than the stated maturity or which will be deemed to be
outstanding as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined);
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any changes or additions to the defeasance article of the applicable indenture, including the addition of covenants that may be subject to the covenant defeasance option included in
such article;
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if other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof or provable, pursuant to the indenture, in bankruptcy;
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the terms, if any, of the transfer, mortgage, pledge or assignment as security for the debt securities of the series of any properties, assets, moneys, proceeds, securities or other
collateral, including whether certain provisions of the Trust Indenture Act are applicable and any corresponding changes to provisions of the indenture as currently in effect;
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any addition to, deletion or change in the events of default with respect to the debt securities of the series and any change in the right of the trustee or the holders of debt
securities to declare the principal of, and premium and interest on, such debt securities due and payable;
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if the debt securities of the series shall be issued in whole or in part in the form of a global security or securities, the terms and conditions, if any, upon which such global
security or securities may be exchanged in whole or in part for other individual debt securities in definitive registered form; and the depositary for such global security or securities and the form of any legend or legends to be borne by any such
global security or securities;
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any trustees, authenticating or paying agents, transfer agents or registrars;
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the applicability of, and any addition to or change in the covenants and definitions currently set forth in the indenture or in the terms currently set forth in the provisions of
the indenture described below under the caption “Other Covenants — Consolidation, Merger, Sale or Conveyance,” including conditioning any merger, conveyance, transfer or lease permitted by such provisions upon the satisfaction of any
debt coverage standard by ONEOK Partners;
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with regard to any debt securities of the series that do not bear interest, the dates for certain required reports to the trustee;
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whether the debt securities of such series will be guaranteed pursuant to the guarantee provisions of the indenture governing such series, any modifications to the terms of such
provisions applicable to the debt securities of such series and the applicability of any other guarantees; and
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any other terms of the debt securities of such series.
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This description of debt securities will be deemed modified, amended or supplemented by any description of any series of debt securities set forth in a prospectus supplement related to that series.
The prospectus supplement may also describe any material United States federal income tax consequences or other special considerations regarding the
applicable series of debt securities, including those relating to:
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debt securities with respect to which payments of principal, premium or interest are determined with reference to an index or formula, including changes in prices of particular
securities, currencies or commodities;
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debt securities with respect to which principal, premium or interest is payable in a foreign or composite currency;
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debt securities that are issued at a discount below their stated principal amount, bearing no interest or interest at a rate that at the time of issuance is below market rates; and
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variable rate debt securities that are exchangeable for fixed rate debt securities.
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At our option, we may make interest payments by check mailed to the registered holders of debt securities or, if so stated in the applicable prospectus supplement, at the option of a holder by wire transfer to an
account designated by the holder.
Unless otherwise provided in the applicable prospectus supplement, fully registered securities may be
transferred or exchanged at the office of the trustee at which its corporate trust business is principally administered in the United States, subject to the limitations provided in the indenture, without the payment of any service charge, other than
any applicable tax or governmental charge.
Any funds we pay to a paying agent for the payment of amounts due on any debt securities that
remain unclaimed for two years will be returned to us, and the holders of the debt securities must look only to us for payment after that time.
Ranking
The senior debt securities will have the same rank as all of our other unsecured and unsubordinated Debt. The subordinated debt
securities will be subordinated to senior indebtedness as described under “Provisions Only in the Subordinated Indenture—Subordinated Debt Securities Subordinated to Senior Debt” below.
Guarantee
To the extent provided in a prospectus
supplement and either an indenture supplement or a resolution of the board of directors of our general partner, in each case, relating to a particular series of debt securities, each of our Subsidiaries that becomes a guarantor of the debt
securities of such series, and any of our Subsidiaries that is a successor thereto, will fully, irrevocably, unconditionally and absolutely guarantee the due and punctual payment of the principal of, and premium, if any, and interest on such debt
securities, and all other amounts due and payable under the applicable indenture and such debt securities by ONEOK Partners to the trustee or the holders of such debt securities.
No Limitation on Indebtedness
The indentures do not limit the amount of indebtedness or other obligations that we may incur and do not give you the right to require us to repurchase your debt securities upon a change of control.
Provisions Only in the Senior Indenture
Summary
The senior debt securities will rank equally in right of payment with all our other senior and unsubordinated Debt and senior in right of payment to
any of our subordinated Debt (including the subordinated debt securities). The senior indenture will contain restrictive covenants, including provisions that:
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limit our ability to put Liens on any of our property or assets; and
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limit our ability to sell and lease back our property.
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We have described below these provisions. We have also set forth below the definitions of important terms used in these provisions.
Limitation
on Liens
ONEOK Partners will not, and will not permit any Restricted Subsidiary to, create, incur, issue or assume any Debt secured by
any Lien on any Principal Property, or on Capital Interests or Debt of any Restricted Subsidiary (“Restricted Securities”), without making effective provision for the outstanding debt securities under the indenture (except as otherwise
specified pursuant to the indenture for the debt securities of any series) to be secured by the Lien equally and ratably with (or prior to) any and all Debt and obligations secured or to be secured thereby for so long as such Debt is so secured. The
foregoing restriction will not apply to:
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any Lien existing on the date of the first issuance of debt securities under the indenture;
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any Lien on any Principal Property or Restricted Securities of any Person existing at the time such Person is merged or consolidated with or into ONEOK Partners or a Restricted
Subsidiary, or such Person becomes a Restricted Subsidiary;
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any Lien on any Principal Property existing at the time of acquisition of such Principal Property by ONEOK Partners or a Restricted Subsidiary, whether or not assumed by ONEOK
Partners or such Restricted Subsidiary;
provided
that no such Lien may extend to any other Principal Property of ONEOK Partners or any Restricted Subsidiary;
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any Lien on any Principal Property (including any improvements on an existing Principal Property) of ONEOK Partners or any Restricted Subsidiary, and any Lien on the Capital
Interests of a Restricted Subsidiary that was formed or is held for the purpose of acquiring and holding such Principal Property, in each case to secure all or any part of the cost of acquisition, development, operation, construction, alteration,
repair or improvement of all or any part of such Principal Property (or to secure Debt incurred by ONEOK Partners or a Restricted Subsidiary for the purpose of financing all or any part of such cost);
provided
that such Lien is created prior
to, at the time of, or within 12 months after the latest of, the acquisition, completion of construction or improvement, or commencement of commercial operation of such Principal Property; and
provided, further
, that no such Lien (unless
otherwise permitted) may extend to any other Principal Property of ONEOK Partners or any Restricted Subsidiary, other than any theretofore unimproved real property on which the Principal Property is so constructed or developed or the improvement is
located;
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any Lien on any Principal Property or Restricted Securities to secure Debt owing to ONEOK Partners or to another Restricted Subsidiary;
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any Lien in favor of governmental bodies to secure advances or other payments pursuant to any contract or statute or to secure Debt incurred to finance the purchase price or cost of
constructing or improving the property subject to such Lien;
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any Lien created in connection with a project financed with, and created to secure, Non-Recourse Debt;
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carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other similar Liens arising in the ordinary course of business which
are not delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings;
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Liens (other than Liens imposed by ERISA) on the property of ONEOK Partners or any of its Restricted Subsidiaries incurred, or pledges or deposits required, in connection with
workmen’s compensation, unemployment insurance and other social security legislation;
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Liens securing taxes that remain payable without penalty or which are being contested in good faith by appropriate proceedings where collection thereof is stayed;
provided
that ONEOK Partners or any Restricted Subsidiary has set aside on its books reserves with respect to such taxes (segregated to the extent required by GAAP) deemed by it to be adequate;
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any right that any municipal or governmental body or agency may have by virtue of any franchise, license or contract to purchase or designate a purchaser of, or order the sale of,
any property of ONEOK Partners or any Restricted Subsidiary upon payment of reasonable compensation therefor or to terminate any franchise, license or other rights or to regulate the property and business of ONEOK Partners or any Restricted
Subsidiary;
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any Liens, neither assumed by ONEOK Partners or any Restricted Subsidiary nor on which it customarily pays interest, existing upon real estate, or rights in or relating to real
estate acquired by ONEOK Partners or any Restricted Subsidiary for sub-station, measuring station, regulating station, gas purification station, compressor station, transmission line, distribution line or right-of-way purposes;
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easements or reservations in any property of ONEOK Partners or any Restricted Subsidiary for the purpose of roads, pipe lines, hydrocarbon transmission and distribution lines,
electric light and power transmission and distribution lines, water mains and other like purposes, and zoning ordinances, regulations and restrictions which do not impair the use of such property in the operation of the business of ONEOK Partners or
any Restricted Subsidiary;
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any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any Lien referred to in the
foregoing bullets,
provided
that the Debt secured thereby may not exceed the principal amount of Debt so secured at the time of such renewal or refunding, and that such renewal or refunding Lien must be limited to all or any part of the same
property and improvements thereon, Capital Interests or Debt that secured the Lien renewed or refunded; or
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any Lien not permitted above securing Debt that, together with the aggregate outstanding principal amount of other secured Debt that would otherwise be subject to the foregoing
restrictions (excluding Debt secured by Liens permitted under the foregoing exceptions) and the Attributable Indebtedness in respect of all Sale-Leaseback Transactions (not including Attributable Indebtedness in respect of any such Sale-Leaseback
Transactions described in clause (iii) or (iv) under “—Limitation on Sale-Leaseback Transactions” below) would not then exceed 15% of Consolidated Net Tangible Assets.
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Limitation on Sale-Leaseback Transactions
ONEOK
Partners will not, and will not permit any Restricted Subsidiary to, enter into any Sale-Leaseback Transaction unless (i) ONEOK Partners or a Restricted Subsidiary would be entitled, without securing the outstanding debt securities under the
indenture, to incur Debt secured by a Lien on the Principal Property that is the subject of such Sale-Leaseback Transaction; (ii) the Attributable Indebtedness associated therewith would be in an amount permitted under the last bullet point
under “—Limitation on Liens” above; (iii) the proceeds received in respect of the Principal Property so sold and leased back at the time of entering into such Sale-
Leaseback Transaction are used for the business and operations of ONEOK Partners or any of its Subsidiaries; or (iv) within 12 months after the sale or
transfer, an amount equal to the proceeds received in respect of the Principal Property so sold and leased back at the time of entering into such Sale-Leaseback Transaction is applied to the prepayment (other than mandatory prepayment) of any
outstanding debt securities under the indenture or Funded Debt of ONEOK Partners or a Restricted Subsidiary (other than Funded Debt that is held by ONEOK Partners or any Restricted Subsidiary or Funded Debt of ONEOK Partners that is subordinate in
right of payment to any outstanding debt securities under the indenture).
Definitions
As used in the foregoing description of covenants by which we are bound pursuant to the senior indenture, the following terms have the following meanings:
“Attributable Indebtedness” means with respect to a Sale-Leaseback Transaction involving any Property, as of the time of
determination, the least of (i) the fair market value of such Property (as determined in good faith by the Board of Directors); (ii) the present value of the total Net Amount of Rent required to be paid under the lease involved in such
Sale-Leaseback Transaction during the remaining term thereof (including any renewal term exercisable at the lessee’s option or period for which the lease has been extended), discounted at the rate of interest set forth or implicit in the terms
of such lease, compounded semiannually; and (iii) if the obligation with respect to such Sale-Leaseback Transaction constitutes an obligation that is required to be classified and accounted for as a Capital Lease Obligation for financial
reporting purposes in accordance with U.S. generally accepted accounting principles, the amount equal to the capitalized amount of such obligation required to be paid by the lessee as determined in accordance with U.S. generally accepted accounting
principles and included in the financial statements of the lessee.
“Capital Interests” of any person means any and all shares,
interests, participations, rights or other equivalents (however designated) of capital stock of such person, including, without limitation, with respect to partnerships, partnership interests (whether general or limited), and with respect to limited
liability companies, member interests and any other interest or participation that confers on the holder thereof the right to receive a share of the profits and losses of, or distributions of assets of, such person.
“Capital Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized on a balance sheet in accordance with generally accepted accounting principles.
“Consolidated Net Tangible Assets” means, at any date of determination, the aggregate amount of total assets included in the most recent quarterly or annual balance sheet of ONEOK Partners and its consolidated Subsidiaries
prepared in accordance with generally accepted accounting principles less applicable reserves reflected in such balance sheet, after deducting the following amounts: (i) all current liabilities reflected in such balance sheet,
provided,
however
, that there shall not be deducted billings recorded as revenues deferred pending the outcome of rate proceedings (less applicable income taxes thereon), if and to the extent the obligation to refund the same shall not have been finally
determined; (ii) appropriate allowance for minority interests in Capital Interests of Subsidiaries; and (iii) all goodwill, trade names, trademarks, patents, unamortized debt discount and expenses and other like intangibles reflected in
such balance sheet.
“Debt” means obligations for money borrowed, evidenced by notes, bonds, debentures or other similar
evidences of borrowed money.
“Funded Debt” means all Debt maturing one year or more from the date of the incurrence, creation,
assumption or guarantee thereof, all Debt directly or indirectly renewable or extendable, at the option of the debtor, by its terms or by the terms of any instrument or agreement relating thereto, to a date one year or more from the date of the
incurrence, creation, assumption or guarantee thereof, and all Debt under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of one year or more.
“Lien” means any lien, mortgage, pledge, encumbrance, charge or security interest securing
Debt. However, the following types of transactions will not be considered to result in a Lien: (i) any acquisition by ONEOK Partners or any Restricted Subsidiary of any property or assets subject to any reservation or exception under the terms
of which any vendor, lessor or assignor creates, reserves or excepts or has created, reserved or excepted an interest in oil, gas or any other mineral in place or the proceeds thereof, (ii) any conveyance or assignment whereby ONEOK Partners or
any Restricted Subsidiary conveys or assigns to any Person or Persons an interest in oil, gas or any other mineral in place or the proceeds thereof, (iii) any Lien upon any property or assets either owned or leased by ONEOK Partners or any
Restricted Subsidiary or in which ONEOK Partners or any Restricted Subsidiary owns an interest that secures for the benefit of the Person or Persons paying the expenses of developing or conducting operations for the recovery, storage, transportation
or sale of the mineral resources of such property or assets (or property or assets with which it is unitized) the payment to such Person or Persons of ONEOK Partners’ or the Restricted Subsidiary’s proportionate part of such development or
operating expenses or (iv) any hedging arrangements entered into in the ordinary course of business, including any obligation to deliver any mineral, commodity or asset in connection therewith.
“Net Amount of Rent” as to any lease for any period means the aggregate amount of rent payable by the lessee with respect to such period after
excluding amounts, whether or not designated as rent or additional rent, required to be paid on account of or contingent upon maintenance and repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any lease that is
terminable by the lessee upon the payment of a penalty, such net amount shall be the lesser of (1) the net amount determined assuming termination of the lease on the first date such lease may be terminated (in which case such net amount shall
also include the amount of such penalty, but no rent shall be considered as payable under such lease subsequent to the first date upon which it may be so terminated) and (2) such net amount assuming no such termination.
“Non-Recourse Debt” means, at any time, Debt incurred after the date of the indenture by ONEOK Partners or a Restricted Subsidiary in
connection with the acquisition of property or assets by ONEOK Partners or a Restricted Subsidiary or the financing of the construction of or improvements on property, whenever acquired;
provided
that, under the terms of such Debt and
pursuant to applicable law, the recourse at such time and thereafter of the lenders with respect to such Debt is limited to the property or assets so acquired, or such construction or improvements, including Debt as to which a performance or
completion guarantee or similar undertaking was initially applicable to such Debt or the related property or assets if such guarantee or similar undertaking has been satisfied and is no longer in effect.
“Principal Property” means any property located in the United States, except any such property that in the opinion of the board of directors of
the general partner of ONEOK Partners is not of material importance to the total business conducted by ONEOK Partners and its consolidated Subsidiaries.
“Property” means any right or interest of ONEOK Partners or any of its Subsidiaries in and to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
“Restricted Subsidiary” means any Subsidiary that owns or leases a Principal Property.
“Sale-Leaseback Transaction” means any arrangement with any person pursuant to which ONEOK Partners or any of its Subsidiaries leases any
Principal Property that has been or is to be sold or transferred by ONEOK Partners or its Subsidiaries to such person, other than (a) any such transaction involving a lease for a term of not more than three years or classified as an operating
lease under generally accepted accounting principles, (b) any such transaction between ONEOK Partners and any of its Subsidiaries or between any Subsidiaries of ONEOK Partners, and (c) any such transaction executed by the time of, or
within 12 months after the latest of, the acquisition, the completion of construction, development or improvement, or the commencement of commercial operation of ONEOK Partners’ Principal Property subject to such leasing transaction.
“Subsidiary” of any person means:
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any person of which more than 50% of the total voting power of Capital Interests entitled (without regard to any contingency) to vote in the election of directors, managers,
trustees, or equivalent persons, at the time of such determination, is owned or controlled, directly or indirectly, by such person or one or more of the Subsidiaries of such person or a combination thereof;
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in the case of a partnership, any person of which more than 50% of the partners’ Capital Interests (considering all partners’ Capital Interests as a single class), at the
time of such determination, is owned or controlled, directly or indirectly, by such person or one or more of the Subsidiaries of such person; or
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any other person with respect to which such person or one or more of the Subsidiaries of such person or a combination thereof has the power to control by contract or otherwise the
board of directors, managers, trustees or equivalent governing body or otherwise controls such entity.
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Provisions Only in the
Subordinated Indenture
Subordinated Debt Securities Subordinated to Senior Debt
The subordinated debt securities will rank junior in right of payment to all of our Senior Indebtedness to the extent provided in the subordinated
indenture. “Senior Indebtedness,” unless otherwise provided with respect to the debt securities of a series, means (1) all our Debt, whether currently outstanding or hereafter issued, unless, by the terms of the instrument creating or
evidencing such Debt, it is provided that such Debt is not superior in right of payment to the subordinated debt securities or to other Debt which is equal in right of payment with or subordinated to the subordinated debt securities, and
(2) any modifications, refunding, deferrals, renewals or extensions of any such Debt or securities, notes or other evidence of Debt issued in exchange for such Debt;
provided
that in no event shall Senior Indebtedness include
(i) our indebtedness owed or owing to any of our Subsidiaries or to any officer, director or employee of us or any of our Subsidiaries, (ii) indebtedness to trade creditors or (iii) any liability for taxes owed or owing by us.
The holders of our Senior Indebtedness will receive payment in full of such Senior Indebtedness before holders of subordinated debt
securities will receive any payment of principal, premium or interest with respect to the subordinated debt securities:
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upon any payment or distribution of our assets to creditors;
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upon our liquidation or dissolution; or
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in a bankruptcy, receivership or similar proceeding relating to us or our property.
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Until the Senior Indebtedness is paid in full, any distribution to which holders of subordinated debt securities would otherwise be entitled will be made to the holders of Senior Indebtedness, except that such holders
may receive capital stock and any debt securities that are subordinated to Senior Indebtedness to at least the same extent as the subordinated debt securities.
If we do not pay any principal, premium or interest with respect to Senior Indebtedness within any applicable grace period (including at maturity), or any other default on Senior Indebtedness occurs and the maturity
of the Senior Indebtedness is accelerated in accordance with its terms, we may not:
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make any payments of principal, premium, if any, or interest with respect to subordinated debt securities;
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make any deposit for the purpose of defeasance of the subordinated debt securities; or
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repurchase, redeem or otherwise retire any subordinated debt securities, except that in the case of subordinated debt securities that provide for a mandatory sinking fund, we may
deliver subordinated debt securities to the trustee in satisfaction of our sinking fund obligation,
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unless:
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the default has been cured or waived and the declaration of acceleration has been rescinded;
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the Senior Indebtedness has been paid in full in cash; or
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we and the trustee receive written notice approving the payment from the representatives of each issue of Designated Senior Indebtedness.
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“Designated Senior Indebtedness” means:
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any Senior Indebtedness which, at the date of determination, has an aggregate principal amount outstanding of, or under which, at the date of determination, the holders thereof are
committed to lend up to, at least $100 million; and
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any other Senior Indebtedness that we may designate.
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During the continuance of any default with respect to any Designated Senior Indebtedness, other than a default described in the paragraph preceding the definition of Designated Senior Indebtedness, that may cause the maturity of any
Designated Senior Indebtedness to be accelerated immediately without further notice, other than any notice required to effect such acceleration, or upon the expiration of any applicable grace periods, we may not make payments on the subordinated
debt securities for a period called the “Payment Blockage Period.” A Payment Blockage Period will commence on the receipt by us and the trustee of written notice of the default, called a “Blockage Notice,” from the representative
of any Designated Senior Indebtedness specifying an election to effect a Payment Blockage Period and will expire 179 days thereafter.
The
Payment Blockage Period may be terminated before its expiration:
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by written notice to the trustee and us from the person or persons who gave the Blockage Notice;
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by repayment in full in cash of the Designated Senior Indebtedness with respect to which the Blockage Notice was given; or
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if the default giving rise to the Blockage Notice is no longer continuing.
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Unless the holders of such Designated Senior Indebtedness or the representative of such holders shall have accelerated the maturity of such Designated Senior Indebtedness, we may resume payments on the subordinated
debt securities after the expiration of the Payment Blockage Period.
Not more than one Blockage Notice may be given in any period of
360 consecutive days unless otherwise specified with respect to a series of subordinated debt securities. The total number of days during which any one or more Payment Blockage Periods are in effect, however, may not exceed an aggregate of 179 days
during any period of 360 consecutive days.
After all Senior Indebtedness is paid in full and until the subordinated debt securities are
paid in full, holders of the subordinated debt securities shall be subrogated to the rights of holders of Senior Indebtedness to receive distributions applicable to Senior Indebtedness.
As a result of the subordination provisions described above, in the event of insolvency, the holders of Senior Indebtedness, as well as certain of our
general creditors, may recover more, ratably, than the holders of the subordinated debt securities.
Other Covenants
Any series of debt securities may contain additional financial and other covenants applicable to us. The applicable prospectus supplement will contain a
description of any such covenants that are added to the indenture specifically for the benefit of holders of a particular series.
Consolidation, Merger, Sale or Conveyance
Neither ONEOK Partners nor any guarantor of debt securities shall consolidate or amalgamate with or merge with or into any person, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its assets to any person, whether in a single transaction or a series of related transactions:
(1) except in accordance with the provisions of such entity’s partnership agreement, certificate or articles of incorporation, bylaws or other applicable organizational documents, and
(2) unless:
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either (i) ONEOK Partners or such guarantor (as the case may be) shall be the continuing person in the case of a merger or (ii) the resulting, surviving or transferee
person if other than ONEOK Partners or such guarantor (respectively, the “Successor Partnership” and the “Successor Guarantor”), shall be a partnership, limited liability company or corporation organized and existing under the
laws of the United States of America, any state thereof or the District of Columbia, or Canada or any province thereof, and the Successor Partnership or Successor Guarantor (as the case may be) shall expressly assume, by one or more supplemental
indentures, executed and delivered to the trustee, in form satisfactory to the trustee, all the obligations of ONEOK Partners or such guarantor (as applicable) under the applicable indenture(s) and the debt securities or the applicable guarantee
according to their tenor;
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(b)
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immediately after giving effect to such transaction (and treating any Debt which becomes an obligation of the Successor Partnership or the Successor Guarantor (as the case may be)
or any Subsidiary thereof as a result of such transaction as having been incurred by the Successor Partnership or the Successor Guarantor (as applicable) or such Subsidiary at the time of such transaction), no default or event of default would occur
or be continuing; and
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(c)
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ONEOK Partners shall have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that such consolidation, amalgamation, merger or disposition
and such supplemental indenture(s) (if any) comply with the applicable indenture(s).
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In case of any consolidation,
amalgamation or merger where ONEOK Partners or any guarantor is not the continuing person, or disposition of all or substantially all of the assets of ONEOK Partners or any guarantor in accordance with this covenant, the Successor Partnership or
Successor Guarantor (as the case may be) shall succeed to and be substituted for ONEOK Partners or such guarantor (as applicable) with the same effect as if it had been named in the applicable indenture(s) as the respective party to the applicable
indenture(s), and the predecessor entity shall be released from all liabilities and obligations under the applicable indenture(s), the debt securities and any guarantee, except that no such release will occur in the case of a lease of all or
substantially all of its assets.
Events of Default, Remedies and Notice
Events of Default
Each of the following events will be an “event of default” under the
senior indenture or the subordinated indenture, as applicable, with respect to each series of debt securities:
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default in any payment of interest on any debt securities of that series when due that continues for 30 days;
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default in the payment of principal of or premium, if any, on any debt securities of that series when due, whether at stated maturity, upon redemption, by declaration, upon required
repurchase or otherwise;
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default in the payment of any sinking fund payment on any debt securities of that series when due;
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failure on the part of ONEOK Partners or any guarantor duly to observe or perform any other of the covenants or agreements on the part of ONEOK Partners or such guarantor with
respect to the debt securities of that series set forth in the indenture with respect to such series or in any supplemental indenture with respect to such series, or, in the absence of an applicable supplemental indenture, in any resolution of the
board of directors of our general partner authorizing the issuance of that series of debt securities (other than a covenant a default in the performance of which is elsewhere specifically dealt with), continuing for a period of 90 days after the
date on which written notice specifying such failure and requiring ONEOK Partners and such guarantor to remedy the same shall have been given, by registered or certified mail, to ONEOK Partners and such guarantor by the trustee, or to ONEOK
Partners, such guarantor and the trustee by the holders of at least 25% in aggregate principal amount of the debt securities of that series at the time outstanding;
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certain events of bankruptcy, insolvency or reorganization of ONEOK Partners or its guarantors (if any);
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default by us or any of our Subsidiaries in the payment, at maturity and after the expiration of any applicable grace period, of principal of, premium, if any, or interest on
indebtedness for money borrowed in the principal amount then outstanding of $100,000,000 or more, or acceleration of any indebtedness for borrowed money of such amount, such that the indebtedness becomes due and payable prior to its maturity date
and such acceleration is not rescinded within 60 days after notice thereof has been given to ONEOK Partners by the trustee or to ONEOK Partners and the trustee by the holders of at least 25% in aggregate principal amount of the outstanding debt
securities of such series;
provided
that, if, prior to the entry of judgment in favor of the trustee for payment of the debt securities of such series, the default under such indenture or instrument has been remedied or cured by ONEOK
Partners or such Subsidiary, or waived by the holders of such indebtedness, then the event of default under the indenture will be deemed likewise to have been remedied, cured or waived;
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except as permitted by the indenture, any guarantee ceases to be in full force and effect or is declared null and void in a judicial proceeding or any guarantor denies or disaffirms
its obligations under the indenture or its guarantee; or
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any other event of default provided in any supplemental indenture or, in the absence of an applicable supplemental indenture, in a resolution of the board of directors of our
general partner with respect to debt securities of that series.
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Exercise of Remedies
If an event of default, other than an event of default described in the fifth bullet point above, occurs and is continuing, the trustee or the holders of
at least 25% in aggregate principal amount of the outstanding debt securities of that series may declare the entire principal of, premium, if any, and accrued and unpaid interest, if any, on all the debt securities of that series to be due and
payable immediately.
If an event of default described in the fifth bullet point above occurs, the principal of, premium, if any, and
accrued and unpaid interest on all outstanding debt securities of all series will become immediately due and payable without any declaration of acceleration or other act on the part of the trustee or any holders.
The holders of a majority in principal amount of the outstanding debt securities of a series by written notice to the trustee may:
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waive all past defaults, except with respect to nonpayment of principal, premium or interest; and
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rescind any acceleration with respect to the debt securities of that series,
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but only if:
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rescinding the acceleration would not conflict with any judgment or decree of a court of competent jurisdiction already rendered; and
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all existing events of default with respect to the debt securities of such series have been cured or waived, other than the nonpayment of principal, premium or interest on the debt
securities of that series that have become due solely because of acceleration.
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If an event of default occurs and is
continuing, the trustee will be under no obligation, except as otherwise provided in the indenture, to exercise any of its rights or powers under the indenture at the request or direction of any of the holders of debt securities unless such holders
have offered to the trustee reasonable indemnity or security against any costs, liabilities or expenses. No holder of debt securities may pursue any remedy with respect to the indenture or the debt securities of any series, except to enforce the
right to receive payment of principal, premium or interest when due, unless:
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such holder has previously given the trustee notice that an event of default with respect to that series is continuing;
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holders of at least 25% in principal amount of the outstanding debt securities of that series have requested that the trustee pursue the remedy;
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such holders have offered the trustee reasonable indemnity or security against any costs, liabilities or expenses;
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the trustee has not complied with such request within 60 days after the receipt of the request and the offer of indemnity or security; and
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the holders of a majority in principal amount of the outstanding debt securities of that series have not given the trustee a direction that is inconsistent with such request.
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The holders of a majority in aggregate principal amount of the outstanding debt securities of a series have the right,
subject to certain restrictions, to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or of exercising any right or power conferred on the trustee with respect to that series of debt securities.
The trustee, however, may refuse to follow any direction that:
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is inconsistent with any provision of the indenture;
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the trustee determines is unduly prejudicial to the rights of any other holder of debt securities of that series; or
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the trustee determines would involve it in personal liability.
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Notice
of Event of Default
Within 30 days after the occurrence of any default or event of default, we are required to give written notice to
the trustee and indicate the status of the default or event of default and what action we are taking or propose to take to cure the default or event of default. In addition, we are required to deliver to the trustee, within 150 days after the end of
each fiscal year, a compliance certificate indicating that we have complied with all covenants contained in the indenture.
If a default
occurs and is continuing and is known to the trustee, the trustee must mail to each holder a notice of the event of default by the later of 90 days after the event of default occurs or 30 days after the trustee knows of the event of default.
However, except in the case of a default in the payment of principal, premium or interest with respect to any debt securities or in the making of any sinking fund payments with respect to any debt securities, the trustee may withhold such notice,
but only if and so long as the board of directors, the executive committee or a committee of directors or responsible officers of the trustee in good faith determines that withholding such notice is in the interests of the holders.
Amendments, Supplements and Waivers
ONEOK Partners, each guarantor (if any), and the trustee may enter into a supplemental indenture without the consent of any holder of debt securities to, among other things:
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provide for the assumption by a successor of our obligations under the indenture;
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add covenants for the benefit of the holders or surrender any right or power conferred upon us;
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cure any ambiguity, omission, defect or inconsistency;
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convey, transfer, assign, mortgage or pledge any property to or with the trustee;
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permit the qualification of the indenture under the Trust Indenture Act;
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change or eliminate any restriction on the payment of principal of, or premium, if any, on, any debt securities;
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secure any or all of the debt securities;
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for the subordinated debt securities indenture, make any change in the subordination provision that would limit or terminate the benefits available to any holder of senior
indebtedness (or Representatives therefor);
provided, however
, that an amendment may not make any change that adversely affects the rights of any holder of senior indebtedness then outstanding, unless the holders of the requisite percentage
of such senior indebtedness (or any group or representative thereof authorized to give a consent) consent to such change, as provided in the agreements under which such senior indebtedness is outstanding;
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make any change that does not adversely affect the rights of any holder of debt securities;
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add to, change or eliminate any of the provisions of the indenture in respect of one or more series of debt securities;
provided, however
, that any such addition, change or
elimination not otherwise permitted shall neither apply to any debt security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor modify the rights of the holder of any such
debt security with respect to such provision or shall become effective only when there is no such debt security outstanding;
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add or appoint a successor or separate trustee;
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establish the form or terms of debt securities of any series as permitted by the indenture; and
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reflect the release of any guarantor of its obligations under the guarantee, in the manner provided by the indenture.
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In addition, ONEOK Partners, each guarantor (if any), and the trustee may enter into a supplemental indenture if the holders of a majority in aggregate
principal amount then outstanding of all debt securities of each series that would be affected by the supplemental indenture consent to it. No such supplemental indenture, without the consent of each holder of outstanding debt securities of each
series that would be affected, shall:
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reduce the percentage in principal amount of debt securities of any series whose holders must consent to an amendment;
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reduce the rate of or extend the time for payment of interest on any debt securities;
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reduce the principal of or extend the stated maturity of any debt securities;
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reduce the premium payable upon the redemption of any debt securities or change the time at which any debt securities may or shall be redeemed;
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make any debt securities payable in other than U.S. dollars;
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impair the right of any holder to receive payment of premium, principal or interest with respect to such holder’s debt securities on or after the applicable due date;
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impair the right of any holder to institute suit for the enforcement of any payment with respect to such holder’s debt securities;
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release any security that has been granted in respect of the debt securities;
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make any change in the amendment provisions which requires each holder’s consent; or
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make any change in the waiver provisions.
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The consent of
the holders is not necessary under the indenture to approve the particular form of any proposed supplemental indenture. It is sufficient if such consent approves the substance of the proposed supplemental indenture. After an amendment pursuant to a
supplemental indenture becomes effective, we are required to mail to all holders of debt securities of each affected series a notice briefly describing the amendment. The failure to give, or any defect in, such notice, however, will not impair or
affect the validity of the amendment.
The holders of a majority in aggregate principal amount of the outstanding debt securities of each
affected series, on behalf of all such holders, may waive:
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compliance by us with certain restrictive provisions of the indenture; and
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any past default or event of default under the indenture;
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except that such majority of holders may not waive a default:
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in the payment of principal, premium or interest; or
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in respect of a provision that under the indenture cannot be amended without the consent of all holders of the affected series of debt securities.
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Defeasance
At any time, we may terminate, with
respect to debt securities of a particular series, all our obligations, and those of each guarantor (if any), under such series of debt securities and the indenture, which we call a “legal defeasance.”
At any time we may also effect a “covenant defeasance,” which means we have elected to terminate the operation of provisions that, among other
things:
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require us to file SEC reports and financial statements with the trustee;
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require us to preserve our corporate existence;
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limit our ability to incur indebtedness secured by a Lien, as described above under “Provisions Only in the Senior Indenture—Limitation on Liens;”
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limit our ability to engage in Sale-Leaseback Transactions, as described above under “Provisions Only in the Senior Indenture—Limitation on Sale-Leaseback
Transactions;”
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relate to our consolidation or merger or the sale or conveyance of all or substantially all of our assets;
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are made applicable to a particular series of debt securities as described in the prospectus supplement applicable to such series, except as otherwise described in such prospectus
supplement; and
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establish certain events of default.
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If we decide to
make a legal defeasance or a covenant defeasance, however, we may not terminate our obligations to, among other things:
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register the transfer or exchange of the debt securities;
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replace mutilated, destroyed, lost or stolen debt securities;
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pay the principal of, and premium, if any, and interest on the debt securities at the place and time and in the manner provided in the indenture or in the debt securities;
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maintain offices where the debt securities may be presented or surrendered for payment, transfer or exchange and where notices and demands to or upon us in respect of the debt
securities and the indenture may be served;
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appoint a trustee whenever necessary to avoid or fill a vacancy in the office of trustee;
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maintain provisions relating to paying agents;
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deliver to the trustee, within 150 days after the end of each fiscal year, a compliance certificate indicating that ONEOK Partners has complied with all covenants contained in the
indenture;
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pay such additional amounts as may be necessary so that the net amount received by each holder of debt securities will equal the amount that the holder would have received if taxes
had not been required to be withheld or deducted where either ONEOK Partners or a guarantor, if any, is required to withhold or deduct taxes due from any payment made under or with respect to the debt securities or a guarantee;
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furnish to the trustee a list of the names and addresses of the holders of the debt securities, so long as the trustee is not serving as the registrar with respect to the debt
securities;
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compensate the trustee for all services rendered under the indenture and to reimburse the trustee for all reasonable expenses incurred in accordance with the provisions of the
indenture;
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indemnify the trustee for, and hold it harmless against, any loss, liability or expense arising out of the trustee’s performance of its duties under the indenture;
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turn over to ONEOK Partners upon request any excess money or securities held by the trustee or paying agent at any time;
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indemnify the trustee and the holders of debt securities against any tax, fee or charge assessed against deposited U.S. government obligations or the principal and interest thereon;
and
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revive and reinstate the obligations of ONEOK Partners and each guarantor, if any, under the indenture and the debt securities of the defeased series (or the guarantees related
thereto) until such time as the trustee or any paying agent is permitted to apply all such money or U.S. government obligations.
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We may exercise our legal defeasance option notwithstanding our prior exercise of the covenant defeasance option. If we exercise our legal defeasance option, payment of the affected series of debt securities may not be accelerated because
of an event of default with respect to that series. If we exercise our covenant defeasance option, payment of the affected series of debt securities may not be accelerated because of:
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events of default with respect to our compliance with covenants in the indenture;
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cross defaults on other indebtedness for borrowed money;
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a guarantee, if any, ceases to be in full force and effect or is declared null and void in a judicial proceeding or any guarantor, if any, denies or disaffirms its obligations under
the indenture or its guarantee; and
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other events of default made applicable to a particular series of debt securities.
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In order to exercise either defeasance option, we must:
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irrevocably deposit in trust with the trustee money or certain U.S. government obligations for the payment of principal of, and premium, if any, and interest on the series of debt
securities to redemption or maturity, as the case may be;
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comply with certain other conditions, including that no default has occurred and is continuing after the deposit in trust; and
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deliver to the trustee of an opinion of counsel to the effect that holders of the series of debt securities will not recognize income, gain or loss for federal income tax purposes
as a result of such defeasance and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred. In the case of legal defeasance only,
such opinion of counsel must be based on a ruling of the Internal Revenue Service or other change in applicable federal income tax law.
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No Personal Liability of General Partner
Obligations of ONEOK Partners (or any guarantor) under the indenture and the debt
securities are non-recourse to the general partner (or the general partners or other holders of equity interests of any guarantor), and their respective affiliates (other than ONEOK Partners and any guarantor), and payable only out of cash flow and
assets of ONEOK Partners and any guarantor. The trustee, and each holder of a debt security by its acceptance thereof, will be deemed to have agreed in the indenture that (1) none of the general partner or the general partners or other holders
of equity interests of any guarantor (nor any of their respective affiliates other than ONEOK Partners and any guarantor) shall be liable for any of the obligations of ONEOK Partners or any guarantor under the indenture or any debt securities, and
(2) no partner, director, officer, employee, equity holder or unitholder, as such, of ONEOK Partners, any guarantor, the trustee, the general Partner or any affiliate of any of the foregoing entities and no member of the board of directors of
the general partner shall have any personal liability in respect of the obligations of ONEOK Partners or any guarantor under the indenture or any debt securities by reason of his, her or its status.
The Trustee
We may appoint a separate trustee for
any series of debt securities. We use the term “trustee” to refer to the trustee appointed with respect to any such series of debt securities. We may maintain banking and other commercial relationships with the trustee and its affiliates
in the ordinary course of business, and the trustee may own debt securities.
Governing Law
The indentures and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
Book Entry, Delivery and Form
We may issue debt
securities of a series in the form of one or more global certificates deposited with a depositary. We expect that The Depository Trust Company, New York, New York, or “DTC,” will act as depositary. If we issue debt securities of a series
in book-entry form, we will issue one or more global certificates that will be deposited with DTC and will not issue physical certificates to each holder. A global security may not be transferred unless it is exchanged in whole or in part for a
certificated security, except that DTC, its nominees and their successors may transfer a global security as a whole to one another.
DTC
will keep a computerized record of its participants, such as a broker, whose clients have purchased the debt securities. The participants will then keep records of their clients who purchased the debt securities. Beneficial interests in global
securities will be shown on, and transfers of beneficial interests in global securities will be made only through, records maintained by DTC and its participants.
DTC advises us that it is:
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a limited-purpose trust company organized under the New York Banking Law;
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a “banking organization” within the meaning of the New York Banking Law;
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a member of the United States Federal Reserve System;
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a “clearing corporation” within the meaning of the New York Uniform Commercial Code; and
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a “clearing agency” registered under the provisions of Section 17A of the Securities Exchange Act of 1934.
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DTC is owned by a number of its participants and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. The rules that apply to DTC and its participants are on file with the Securities and Exchange Commission.
File with the Securities and
Exchange Commission
DTC holds securities that its participants deposit with DTC. DTC also records the settlement among participants of
securities transactions, such as transfers and pledges, in deposited securities through computerized records for participants’ accounts. This eliminates the need to exchange certificates. Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations.
We will wire principal, premium, if any, and interest
payments due on the global securities to DTC’s nominee. We, the trustee and any paying agent will treat DTC’s nominee as the owner of the global securities for all purposes. Accordingly, we, the trustee and any paying agent will have no
direct responsibility or liability to pay amounts due on the global securities to owners of beneficial interests in the global securities.
It is DTC’s current practice, upon receipt of any payment of principal, premium, if any, or interest, to credit participants’ accounts on the payment date according to their respective holdings of beneficial interests in the
global securities as shown on DTC’s records. In addition, it is DTC’s current practice to assign any consenting or voting rights to participants, whose accounts are credited with debt securities on a record date, by using an omnibus proxy.
Payments by participants to owners of beneficial interests in the global securities, as well as voting by participants, will be governed
by the customary practices between the participants and the owners of beneficial interests, as is the case with debt securities held for the account of customers registered in “street name.” Payments to holders of beneficial interests are
the responsibility of the participants and not of DTC, the trustee or us.
Beneficial interests in global securities will be exchangeable
for certificated securities with the same terms in authorized denominations only if: DTC notifies us that it is unwilling or unable to continue as depositary or if DTC ceases to be a clearing agency registered under applicable law and a successor
depositary is not appointed by us within 90 days; or we determine not to require all of the debt securities of a series to be represented by a global security and notify the trustee of our decision.
