UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
(Date of Report) | September 28, 2007 | |
(Date of earliest event reported) | September 25, 2007 |
ONEOK PARTNERS, L.P.
(Exact name of registrant as specified in its charter)
Delaware | 1-12202 | 93-1120873 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
100 West Fifth Street
Tulsa, Oklahoma
(Address of principal executive offices)
74103-4298
(Zip Code)
(918) 588-7000
(Registrants telephone number, including area code)
NOT APPLICABLE
(Former name or former address, if changed since last report)
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement.
Underwriting Agreement
On September 25, 2007, ONEOK Partners, L.P. (the Partnership) and ONEOK Partners Intermediate Limited Partnership, a wholly owned subsidiary of the Partnership (the Guarantor), entered into an underwriting agreement (the Underwriting Agreement) with Wachovia Capital Markets, LLC, Greenwich Capital Markets, Inc., and UBS Securities LLC, as representatives of the several underwriters named therein (the Underwriters), for the purchase and sale of $600 million aggregate principal amount of the Partnerships 6.85% Senior Notes due 2037 (the Notes).
The Underwriting Agreement contains customary representations, warranties and agreements by the Partnership and the Guarantor, and customary conditions to closing, indemnification obligations of both the Partnership and the Guarantor, on the one hand, and the Underwriters, on the other hand, including for liabilities under the Securities Act of 1933, obligations of the parties and termination provisions. The Partnership also agreed not to offer or sell certain debt securities until October 25, 2007 without the prior consent of Wachovia Capital Markets, LLC. The foregoing description of the Underwriting Agreement is qualified in its entirety by reference to such Underwriting Agreement, a copy of which is filed herewith as Exhibit 1.1 and is incorporated herein by reference.
Indenture, Supplemental Indenture and Notes
On September 28, 2007, the Partnership completed the underwritten public offering (the Offering) of the Notes. The Partnership registered the sale of the Notes with the Securities and Exchange Commission (the Commission) pursuant to a Registration Statement on Form S-3 (Registration No. 333-137419) filed on September 19, 2006 (the Registration Statement). The Partnership intends to use the net proceeds from the Offering of approximately $592.9 million, after deducting underwriting discounts and commissions and expenses but before offering expenses, to finance the acquisition of a $300 million interstate pipeline system and related assets from a subsidiary of Kinder Morgan Energy Partners, L.P., and to repay indebtedness outstanding under the Partnerships $1 billion revolving credit agreement.
The terms of the Notes are governed by the Indenture, dated as of September 25, 2006 (the Indenture), between the Partnership and Wells Fargo Bank, N.A., as trustee (the Trustee), as supplemented by the Fourth Supplemental Indenture, dated September 28, 2007 (the Supplemental Indenture).
The Indenture is filed herewith as Exhibit 4.1 and is incorporated herein by reference. The Supplemental Indenture with respect to the Notes is filed herewith as Exhibit 4.2 and is incorporated herein by reference. The form of the Notes is filed herewith as Exhibit 4.3 and is incorporated herein by reference.
A summary of certain terms of the Notes, the Indenture and the Supplemental Indenture is included under the headings Description of the Notes (pages S-15 through S-18) and Description of the Debt Securities (pages 4 through 20) in the prospectus supplement, dated September 25, 2007 (the Prospectus Supplement), filed by the Partnership with the Commission on September 26, 2007. The aforementioned sections of the Prospectus Supplement are filed herewith as Exhibit 99.1 and are incorporated herein by reference. The description of the Notes is qualified in its entirety by the provisions of the Indenture and the Supplemental Indenture.
Relationships
Affiliates of each of the Underwriters are lenders under the Partnerships $1 billion revolving credit agreement. A portion of the net proceeds of the Offering will be used to repay indebtedness outstanding under this credit agreement. In addition, in the ordinary course of their business, certain of the Underwriters and their affiliates have engaged and may in the future engage in investment and commercial banking transactions with us and certain of our affiliates, including ONEOK, Inc. The Underwriters and their affiliates may provide similar services in the future.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information included under Indenture, Supplemental Indenture and Notes in Item 1.01 above is
Item 9.01 Financial Statements and Exhibits.
(d) | Exhibits. |
Exhibit Number |
Description |
|
Exhibit 1.1 | Underwriting Agreement, dated September 25, 2007, among ONEOK Partners, L.P. and ONEOK Partners Intermediate Limited Partnership and Wachovia Capital Markets LLC, Greenwich Capital Markets, Inc., and UBS Securities LLC, as representatives of the several underwriters named therein. | |
Exhibit 4.1 | Indenture, dated as of September 25, 2006, among ONEOK Partners, L.P. and Wells Fargo Bank, N.A., as trustee (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K, filed by ONEOK Partners, L.P. on September 26, 2006). | |
Exhibit 4.2 | Fourth Supplemental Indenture, dated as of September 28, 2007, among ONEOK Partners, L.P., ONEOK Partners Intermediate Limited Partnership and Wells Fargo Bank, N.A. , as trustee, with respect to the 6.85% Senior Notes due 2037. | |
Exhibit 4.3 | Form of Senior Note due 2037 (included in Exhibit 4.2 above). | |
Exhibit 99.1 | Sections of Prospectus Supplement dated September 25, 2007 filed with the Securities and Exchange Commission by ONEOK Partners, L.P. on September 26, 2007 entitled Description of the Notes and Description of the Debt Securities. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
ONEOK Partners, L.P. | ||||||||
By: |
ONEOK Partners GP, L.L.C., its general partner |
|||||||
Date: September 28, 2007 |
/s/ John R. Barker
|
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John R. Barker | ||||||||
Executive Vice President, General Counsel and Secretary |
EXHIBIT INDEX
Exhibit Number |
Description |
|
Exhibit 1.1 | Underwriting Agreement, dated September 25, 2007, among ONEOK Partners, L.P. and ONEOK Partners Intermediate Limited Partnership and Wachovia Capital Markets, LLC, Greenwich Capital Markets, Inc., and UBS Securities LLC, as representatives of the several underwriters named therein. | |
Exhibit 4.1 | Indenture, dated as of September 25, 2006, among ONEOK Partners, L.P. and Wells Fargo Bank, N.A., as trustee (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K, filed by ONEOK Partners, L.P. on September 26, 2006). | |
Exhibit 4.2 | Fourth Supplemental Indenture, dated as of September 28, 2007, among ONEOK Partners, L.P., ONEOK Partners Intermediate Limited Partnership and Wells Fargo Bank, N.A. , as trustee, with respect to the 6.85% Senior Notes due 2037. | |
Exhibit 4.3 | Form of Senior Note due 2037 (included in Exhibit 4.2 above). | |
Exhibit 99.1 | Sections of Prospectus Supplement dated September 25, 2007 filed with the Securities and Exchange Commission by ONEOK Partners, L.P. on September 26, 2007 entitled Description of the Notes and Description of the Debt Securities. |
Exhibit 1.1
EXECUTION VERSION
ONEOK PARTNERS, L.P.
Underwriting Agreement
September 25, 2007
Wachovia Capital Markets, LLC
Greenwich Capital Markets, Inc.
UBS Securities LLC
As Representatives of the Underwriters named in Schedule II hereto
c/o Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, NC 28288-0610
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, $600,000,000 aggregrate principal amount of its 6.850% Senior Notes due 2037 (the Notes). The Partnerships 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 September 25, 2006 (the Base Indenture), among the Partnership and Wells Fargo Bank, N.A., as trustee (the Trustee), as amended and supplemented by the Fourth Supplemental Indenture thereto to be dated the Closing Date (as defined herein), by and among the Partnership, the Guarantor and the Trustee (the Supplemental Indenture). The Base Indenture as amended and supplemented by the Supplemental Indenture is referred to herein as 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 21 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 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
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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 significant subsidiaries (as defined in Rule 1-02 of Regulation S-X) (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
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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 Subsidiarys governing documents and are fully paid (in the case of any Subsidiary that is a limited liability company, to the extent required by such Subsidiarys limited liability company agreement, and in the case of any Subsidiary that is a limited partnership, to the extent required by such Subsidiarys 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 in such Subsidiarys 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 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
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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 July 31, 2007, 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 Base Indenture has been duly authorized, executed and delivered by or on behalf of the Partnership, and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and binding agreement of the Partnership, enforceable against the Partnership in accordance with its terms; provided that the enforceability of the Base Indenture may be limited by the Enforceability Exceptions. The Supplemental Indenture has been duly authorized by or on behalf of the Issuers, and, when validly executed and delivered by or on behalf of 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 against each of the Issuers in accordance with its terms; provided that the enforceability of the Supplemental 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 Supplemental 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 Financial Industry Regulatory Authority (FINRA) 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 Partnerships 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) PricewaterhouseCoopers LLP, who has reviewed certain financial statements of the Partnership and its consolidated subsidiaries included, or 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.
(z) 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.
(aa) 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.
(bb) No labor problem or dispute with the employees of the Partnership or any of its Subsidiaries exists or, to the Partnerships knowledge, is threatened or imminent, that would reasonably be expected to have a Material Adverse Effect.
(cc) 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.
(dd) 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 Subsidiarys property or assets to the Partnership or any other Subsidiary of the Partnership, except as set forth in Section 7.5 of the Partnerships $1 billion amended and restated revolving credit agreement dated as of March 30, 2007, as modified by that certain Supplement and Joinder Agreement dated July 31, 2007, and except for such prohibitions mandated by the laws of each such Subsidiarys state of formation and the terms of any such Subsidiaries governing instruments.
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(ee) 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 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.
(ff) 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 managements 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 managements 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 Partnerships internal control over financial reporting.
(gg) The Partnership and its subsidiaries maintain disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act).
(hh) 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.
(ii) 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,
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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 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.
(jj) 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.
(kk) 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.
(ll) Neither the Partnership nor any of its Subsidiaries nor, to the Partnerships 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.
(mm) 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 Partnerships knowledge, threatened.
(nn) Neither the Partnership nor any of its Subsidiaries nor, to the Partnerships 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
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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.
(oo) 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 an Underwriter 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 an Underwriter.
(pp) 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.
(qq) 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).
(rr) 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 Partnerships 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 Partnerships knowledge, there are no rights of third parties to any such Intellectual Property; (b)
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to the Partnerships knowledge, there is no material infringement by third parties of any such Intellectual Property; (c) there is no pending or, to the Partnerships knowledge, threatened action, suit, proceeding or claim by others challenging the Partnerships rights in or to any such Intellectual Property; and (d) to the Partnerships 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.
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 Underwriters 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
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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 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
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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.
(e) As soon as practicable, the Partnership will make generally available, via the Commissions 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 FINRA 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
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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.
(i) The Partnership will not, without the prior written consent of Wachovia Capital Markets, LLC, 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
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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.
(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 Partnerships 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 financial statements and certain unaudited financial statements and financial information contained in the Registration Statement, the Preliminary Prospectus used most recently prior to the Execution Time and the Final Prospectus.
(g) The Partnership shall have requested and caused PricewaterhouseCoopers 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 certain unaudited financial statements and financial information contained in the Registration Statement, the Preliminary Prospectus used most recently prior to the Execution Time and the Final Prospectus.
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(h) 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 letters referred to in paragraphs (f) and (g) 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.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Partnerships 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.
(j) 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 Wachovia Capital Markets, LLC 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.
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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 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
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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 partys choice at the indemnifying partys 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 partys 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, (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
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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 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 Partnerships 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
20
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.
12. Selling Restrictions . Each Underwriter, severally and not jointly, represents and agrees (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the United Kingdom Financial Services and Market Act of 2000, or FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Issuers; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a Relevant Member State), each Underwriter, severally and not jointly, represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the Relevant Implementation Date) it has not made and will not make an offer of Securities to the public in that Relevant Member State other than:
(a) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(b) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than 43,000,000; and (3) an annual net turnover of more than 50,000,000, as shown in its last annual or consolidated accounts;
(c) to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the representatives; or
21
(d) in any other circumstances falling within Article 3(2) of the Prospectus Directive.
provided that no such offer of Securities shall require the Issuers or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an offer of Securities to the public in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression Prospectus Directive means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
13. 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 Wachovia Capital Markets, LLC, One Wachovia Center, 301 South College Street Charlotte, North Carolina 28288-0610; (fax no.: (704) 383-9165); 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.
14. 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.
15. No Fiduciary Duty . The Partnership hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arms-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 Partnerships 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.
16. 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.
17. 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.
22
18. 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.
19. 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.
20. Headings . The section headings used herein are for convenience only and shall not affect the construction hereof.
21. 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.
23
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.
Partnership Agreement shall mean the Third Amended and Restated Agreement of Limited Partnership of the Partnership, as amended.
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.
24
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/ John W. Gibson | |
Name: John W. Gibson | ||
Title: President and Chief Executive Officer |
ONEOK Partners Intermediate Limited Partnership | ||
By: | ONEOK ILP GP, L.L.C., its general partner | |
By: | /s/ John W. Gibson | |
Name: John W. Gibson | ||
Title: President and Chief Executive Officer |
The foregoing Agreement is
hereby confirmed and accepted
as of the date first written above
Wachovia Capital Markets, LLC
Greenwich Capital Markets, Inc.
UBS Securities LLC
By: Wachovia Capital Markets, LLC | ||
By: | /s/ Steve Taylor | |
Name: Steve Taylor | ||
Title: Managing Director |
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Registration Statement No. 333-137419
Representatives: Wachovia Capital Markets, LLC, Greenwich Capital Markets, Inc. and UBS Securities LLC
Title, Principal Amount and Purchase Price of Securities:
Title: | 6.850% Senior Notes due 2037 | |
Principal amount: | $600,000,000 | |
Purchase price (include accrued interest or amortization, if any): | $592,896,000 |
Closing Date, Time and Location: September 28, 2007 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 Wachovia Capital Markets, LLC: October 25, 2007.
SCHEDULE II
Underwriters |
Principal Amount
of Securities to be Purchased |
|
6.850% Senior Notes Due 2037 | ||
Wachovia Capital Markets, LLC |
$150,000,000 | |
Greenwich Capital Markets, Inc. |
$150,000,000 | |
UBS Securities LLC |
$150,000,000 | |
Barclays Capital Inc. |
$45,000,000 | |
BMO Capital Markets Corp. |
$45,000,000 | |
BNP Paribas Securities Corp. |
$30,000,000 | |
RBC Capital Markets Corporation |
$30,000,000 | |
Total |
$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
September 25, 2007
ONEOK PARTNERS, L.P.
PRICING TERM SHEET
6.850% Senior Notes due 2037
The following information supplements the Preliminary Prospectus Supplement dated September 25, 2007, and is filed pursuant to Rule 433, under Registration No. 333-137149
Issuer: | ONEOK Partners, L.P. | |
Guarantor: | ONEOK Partners Intermediate Limited Partnership | |
Security Type: | Senior Unsecured Notes | |
Ratings (Moodys / S&P): | Baa2 / BBB | |
Minimum Denomination: | $2,000 and any integral multiples of $1,000 in excess thereof | |
Pricing Date: | September 25, 2007 | |
Settlement Date: | September 28, 2007 | |
Maturity Date: | October 15, 2037 | |
Principal Amount: | $600,000,000 | |
Benchmark: | T 4.750% due February 15, 2037 | |
Benchmark Yield: | 4.894% | |
Re-offer Spread to Benchmark: | + 198 bps | |
Yield to Maturity: | 6.874% | |
Coupon: | 6.850% | |
Public Offering Price: | 99.691% | |
Gross Spread: | 0.875% | |
Optional Redemption: | T + 30 bps | |
Interest Payment Dates: | April 15 and October 15, beginning April 15, 2008 | |
CUSIP / ISIN: | 68268NAD5 / US68268NAD57 | |
Joint Bookrunning Managers: |
Wachovia Capital Markets, LLC Greenwich Capital Markets, Inc. UBS Securities LLC |
|
Senior Co-Managers: |
Barclays Capital Inc. BMO Capital Markets Corp. |
|
Co-Managers: |
BNP Paribas Securities Corp. RBC Capital Markets Corporation |
The issuer has filed a registration statement (including a base prospectus) and a prospectus supplement with the U.S. Securities and Exchange Commission (SEC) for the offering to which this communication relates. Before you invest, you should read the prospectus supplement for this offering, the prospectus in that registration statement and any 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 searching the SEC online data base (EDGAR) on the SEC web site at http://www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus supplement and prospectus if you request it by calling toll-free Wachovia Capital Markets, LLC at (866) 289-1262, Greenwich Capital Markets, Inc. at (866) 884-2071, or UBS Securities LLC at (888) 722-9555, ext.1088.
31
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.
Bear Paw Energy, L.L.C.
32
Exhibit A
Opinion of Andrews Kurth LLP
September [28], 2007
To each of the Underwriters named
in the Underwriting Agreement referenced herein
c/o Wachovia Capital Markets, LLC
301 South College Street
Charlotte, NC 28202-6000
Re: | [ ]% Senior Notes due 20[__] 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 [25], 2007 (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) Wachovia Capital Markets, LLC, Greenwich Capital Markets, Inc. and UBS Securities LLC, 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 Issuers [ ]% Senior Notes due 20[__] (the Securities ). The Issuer and the Guarantor are referred to collectively herein as the Obligors .
The Securities are being issued under an Indenture, dated as of September 25, 2006 (the Base Indenture ), among the Issuer and Wells Fargo Bank, N.A., as trustee (the Trustee ), as amended and supplemented by the Fourth Supplemental Indenture thereto, dated as of September [28], 2007 (the Fourth Supplemental Indenture ), among the Issuer, the Guarantor and the Trustee. The Base Indenture, as amended and supplemented by the Fourth Supplemental Indenture, is referenced herein as the Indenture .
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. 333-137419) 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 19, 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 );
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [28], 2007
Page 3
(b) the preliminary prospectus supplement dated September [25], 2007, 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 [25], 2007, 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 sheet relating to the Securities filed with the SEC as a free writing prospectus pursuant to Rules 164 and 433 of the Rules and Regulations on September [26], 2007 (such term sheet, together with the Preliminary Prospectus, being referred to herein as the Disclosure Package );
(e) each of the Issuers 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) the global note executed by the Issuer pursuant to the Indenture, in the aggregate principal amount of $[ ], representing the Securities 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 [__], 2007, and certified by the 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, dated as of May 17, 2006, certified by the 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 );
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [28], 2007
Page 4
(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 [__], 2007, and certified by the 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) (i) the Second Amended and Restated Agreement of Limited Partnership of the Issuer, dated as of May 17, 2006, certified by the Secretary of the General Partner, on behalf of the Issuer, as in effect on the date of the adoption of the resolutions specified in paragraph (n)(i) below and (ii) the Third Amended and Restated Agreement of Limited Partnership of the Issuer, dated as of September 15, 2006, as amended, certified by the Secretary of the General Partner, on behalf of the Issuer, as in effect on the date of the adoption of the resolutions specified in paragraph (n)(ii) below, the date of the Underwriting Agreement and the date hereof (the Issuer LP Agreement );
(n) (i) resolutions of the Board of Directors of the General Partner (the Board of Directors ), dated September [__], 2007, and (ii) resolutions of the Pricing Committee of the Board of Directors, dated September [25], 2007, each as certified by the 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 ), certified by the Secretary of State of the State of Delaware as in effect on September [__], 2007, and certified by the Secretary of the ILP GP as in effect on the date 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, dated as of May 12, 2006, certified by the Secretary of the ILP GP as in effect on the date 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 );
(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 [__], 2007, and certified by the Secretary of the ILP GP, on behalf of the Guarantor, as in effect on the date 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 May 17, 2006, as amended by Amendment No. 1 thereto, dated as of September 15, 2006, certified by the Secretary of the ILP GP, on behalf of the Guarantor, as in effect on the date 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 );
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [28], 2007
Page 5
(s) resolutions of the Board of Directors of the ILP GP, dated September [__], 2007, certified by the Secretary of the ILP GP;
(t) certificates from the Secretary of State of the State of Delaware dated September [__], 2007 and [ ] [__], 2007 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, the Guarantor, ONEOK Hydrocarbon, L.L.C., ONEOK Hydrocarbon Holdings, L.L.C. and ONEOK Hydrocarbon, L.P.; 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.
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:
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [28], 2007
Page 6
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 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.
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [28], 2007
Page 7
7. The statements in the Preliminary Prospectus and the Prospectus under the caption Material United States Federal Income 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 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
To each of the Underwriters named
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September [28], 2007
Page 8
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, as of September [25], 2007, 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 [ ] (Eastern [Daylight] Time) on September [25], 2007 (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 auditors 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 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.
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [28], 2007
Page 9
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 taxpayers 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.
(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-
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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 Intl 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
(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,
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September [28], 2007
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(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.
(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.
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(xii) 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.
(xiii) 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.
(xiv) We express no opinion as to Section 7.06 of the Indenture.
(xv) 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 courts discretion in determining whether to transfer an action to another court.
(xvi) 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.
(xvii) 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 A
ONEOK PARTNERS GP, L.L.C.
Officers Certificate
September [28], 2007
Reference is made to the Underwriting Agreement, dated September [25], 2007 (the Underwriting Agreement ), among (i) ONEOK Partners, L.P., a Delaware limited partnership (the Issuer ), (ii) ONEOK Partners Intermediate Limited Partnership, a Delaware limited partnership (the Guarantor ), and (iii) Wachovia Capital Markets, LLC, Greenwich Capital Markets, Inc. and UBS Securities LLC, as representatives of the several underwriters named therein (the Underwriters ). The undersigned, Curtis Dinan hereby certifies that he is the Senior Vice President, Chief Financial Officer and Treasurer of ONEOK Partners GP, L.L.C., the general partner of the Issuer.
Such officer understands that pursuant to the Underwriting Agreement, each of Andrews Kurth LLP ( AK ) and GableGotwals ( GG ), each special counsel to the Issuer, is delivering to the Underwriters an opinion letter dated the date hereof (collectively, the Opinion Letters ). Such officer further understands that AK and GG are relying on this certificate and the statements made herein in rendering certain of the opinions expressed in the Opinion Letters.
With regard to the foregoing, the undersigned certifies that he has made due inquiry of all persons necessary or appropriate to verify or confirm the statements contained herein and he further certifies the following:
1. Attached as Schedule 1 to this Officers Certificate is a true, accurate and complete list of every indenture, mortgage, deed of trust, loan, credit agreement, and financing lease (collectively, Applicable Agreements ) that is both (i) material in relation to the business, operations, affairs, financial condition, assets, or properties of the Issuer and its subsidiaries, considered as a single enterprise and (ii) an instrument 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.
2. Attached as Schedule 2 to this Officers Certificate is a true, accurate and complete list of every order or decree (collectively, Applicable Orders ) 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 Issuers 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.
3. The Issuer and its subsidiaries are engaged in businesses other than that of investing, reinvesting, owning, holding or trading in Securities. Furthermore, the Issuer and its subsidiaries:
(a) are not engaged primarily, nor does any of them hold itself out as being engaged primarily, nor does any of them propose to engage primarily, in the business of investing, reinvesting, or trading in Securities;
(b) are not engaged, nor do any of them propose to engage, in the business of issuing Face-Amount Certificates of the Installment Type, nor has any of them been engaged in such business and has any such certificates outstanding;
(c) are not engaged, nor does any of them propose to engage, in the business of investing, reinvesting, owning, holding or trading in Securities (other than Securities of its respective subsidiaries); and
(d) do not own, nor does any of them propose to acquire, Investment Securities having a value exceeding 40 percent of the value of its total assets (exclusive of Government Securities and cash items) on an unconsolidated basis.
As used in paragraph 3 of this certificate:
Face-Amount Certificate of the Installment Type means any certificate, investment contract or other Security which represents an obligation on the part of its issuer to pay a stated or determinable sum or sums at a fixed or determinable date or dates more than twenty-four months after the date of issuance, in consideration of the payment of periodic installments of a stated or determinable amount;
Government Security means any Security issued or guaranteed as to principal or interest by the United States, or by an entity controlled or supervised by and acting as an instrumentality of the Government of the United States pursuant to authority granted by the Congress of the United States; or any certificate of deposit for any of the foregoing;
Investment Securities means all Securities except (i) Government Securities and (ii) Securities issued by majority-owned subsidiaries of the owner, which subsidiaries: (A) are not themselves engaged in any activity described in clauses (a)-(c) of paragraph 3 of this certificate; and (B) do not own or propose to own Investment Securities having a value exceeding 40 percent of the value of each such subsidiarys total assets (exclusive of Government Securities and cash items) on an unconsolidated basis; and
Security or Securities means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas or other mineral rights, any put, call, straddle, option or privilege on any security (including a certificate of deposit) or on any group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.
4. Each of the Issuer and its subsidiaries does not own, and none of the proceeds from the offering of notes contemplated by the Underwriting Agreement will be used directly or indirectly to purchase or carry, any margin stock as defined in Regulation U promulgated by the Board of Governors of the Federal Reserve System.
IN WITNESS WHEREOF the undersigned has executed this Officers Certificate as of the date first written above.
Curtis Dinan |
Senior Vice President, Chief Financial Officer and |
Treasurer |
Schedule 1
Applicable Agreements
[To Come]
Schedule 2
Applicable Orders
[To come]
Exhibit B
Opinion of Gable & Gotwals
September [__], 2007
To each of the Underwriters named
in the Underwriting Agreement referenced herein
c/o Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, NC 28288-0610
Re: | [ ]% Senior Notes due 20[37], 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 [__], 2007 (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) Wachovia Capital Markets, LLC, Greenwich Capital Markets, Inc. and UBS Securities LLC, 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 Issuers [ ]% Senior Notes due 20[37] (the Securities ). The Issuer and the Guarantor are referred to collectively herein as the Obligors .
The Notes are being issued under an Indenture, dated as of September 25, 2006, as amended and supplemented through September [__], 2007 (the Indenture ), among the Issuer and Wells Fargo Bank, N.A., as trustee (the Trustee ).
We are furnishing this opinion letter to you pursuant to Section 6(c) 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 [__], 2007, 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 [__], 2007, 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
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(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 General Partner as being every indenture, mortgage, deed of trust, loan, credit agreement, and financing lease that is both (i) material in relation to the business, operations, affairs, financial condition, assets, or properties of the Issuer and its subsidiaries, considered as a single enterprise and (ii) an instrument 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 Issuers 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.
To each of the Underwriters named
in the Underwriting Agreement referenced herein
September [__], 2007
Page 3
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.
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
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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 A
ONEOK PARTNERS GP, L.L.C.
Officers Certificate
September [__], 2007
Reference is made to the Underwriting Agreement, dated September [__], 2007 (the Underwriting Agreement ), among (i) ONEOK Partners, L.P., a Delaware limited partnership (the Issuer ), (ii) ONEOK Partners Intermediate Limited Partnership, a Delaware limited partnership (the Guarantor ), and (iii) Wachovia Capital Markets, LLC, Greenwich Capital Markets, Inc. and UBS Securities LLC, as representatives of the several underwriters named therein (the Underwriters ). The undersigned, _________________ hereby certifies that he is the [CEO or CFO] of ONEOK Partners GP, L.L.C., the general partner of the Issuer.
Such officer understands that pursuant to the Underwriting Agreement, each of Andrews Kurth LLP ( AK ) and GableGotwals ( GG ), each special counsel to the Issuer, is delivering to the Underwriters an opinion letter dated the date hereof (the Opinion Letters ). Such officer further understands that AK and GG are relying on this certificate and the statements made herein in rendering certain of the opinions expressed in the Opinion Letters.
With regard to the foregoing, the undersigned certifies that he has made due inquiry of all persons necessary or appropriate to verify or confirm the statements contained herein and he further certifies the following:
1. Attached as Schedule 1 to this Officers Certificate is a true, accurate and complete list of every indenture, mortgage, deed of trust, loan, credit agreement, and financing lease (collectively, Applicable Agreements ) that is both (i) material in relation to the business, operations, affairs, financial condition, assets, or properties of the Issuer and its subsidiaries, considered as a single enterprise and (ii) an instrument 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.
2. Attached as Schedule 2 to this Officers Certificate is a true, accurate and complete list of every order or decree (collectively, Applicable Orders ) 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 Issuers 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.
3. The Issuer and its subsidiaries are engaged in businesses other than that of investing, reinvesting, owning, holding or trading in Securities. Furthermore, the Issuer and its subsidiaries:
(a) are not engaged primarily, nor does any of them hold itself out as being engaged primarily, nor does any of them propose to engage primarily, in the business of investing, reinvesting, or trading in Securities;
(b) are not engaged, nor do any of them propose to engage, in the business of issuing Face-Amount Certificates of the Installment Type, nor has any of them been engaged in such business and has any such certificates outstanding;
(c) are not engaged, nor does any of them propose to engage, in the business of investing, reinvesting, owning, holding or trading in Securities (other than Securities of its respective subsidiaries); and
(d) do not own, nor does any of them propose to acquire, Investment Securities having a value exceeding 40 percent of the value of its total assets (exclusive of Government Securities and cash items) on an unconsolidated basis.
As used in paragraph 3 of this certificate:
Face-Amount Certificate of the Installment Type means any certificate, investment contract or other Security which represents an obligation on the part of its issuer to pay a stated or determinable sum or sums at a fixed or determinable date or dates more than twenty-four months after the date of issuance, in consideration of the payment of periodic installments of a stated or determinable amount;
Government Security means any Security issued or guaranteed as to principal or interest by the United States, or by an entity controlled or supervised by and acting as an instrumentality of the Government of the United States pursuant to authority granted by the Congress of the United States; or any certificate of deposit for any of the foregoing;
Investment Securities means all Securities except (i) Government Securities and (ii) Securities issued by majority-owned subsidiaries of the owner, which subsidiaries: (A) are not themselves engaged in any activity described in clauses (a)-(c) of paragraph 3 of this certificate; and (B) do not own or propose to own Investment Securities having a value exceeding 40 percent of the value of each such subsidiarys total assets (exclusive of Government Securities and cash items) on an unconsolidated basis; and
Security or Securities means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas or other mineral rights, any put, call, straddle, option or privilege on any security (including a certificate of deposit) or on any group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.
4. Each of the Issuer and its subsidiaries does not own, and none of the proceeds from the offering of notes contemplated by the Underwriting Agreement will be used directly or indirectly to purchase or carry, any margin stock as defined in Regulation U promulgated by the Board of Governors of the Federal Reserve System.
Exhibit A
IN WITNESS WHEREOF the undersigned has executed this Officers Certificate as of the date first written above.
[name] | ||
[title] |
Schedule 1
Applicable Agreements
Schedule 2
Applicable Orders
Exhibit 4.2
Execution Copy
ONEOK PARTNERS, L.P.
Issuer
ONEOK PARTNERS INTERMEDIATE LIMITED PARTNERSHIP
Guarantor
and
WELLS FARGO BANK, N.A.
Trustee
FOURTH SUPPLEMENTAL INDENTURE
Dated as of September 28, 2007
to
INDENTURE
relating to Senior Debt Securities
Dated as of September 25, 2006
6.85% Senior Notes due 2037
TABLE OF CONTENTS
Page | ||
ARTICLE 1 Relation to Indenture; Definitions |
1 | |
SECTION 1.01. Relation to Indenture. |
1 | |
SECTION 1.02. Definitions. |
1 | |
SECTION 1.03. General References. |
1 | |
ARTICLE 2 The Series of Debt Securities |
2 | |
SECTION 2.01. The Form and Title of the Debt Securities. |
2 | |
SECTION 2.02. Amount. |
2 | |
SECTION 2.03. Stated Maturity. |
2 | |
SECTION 2.04. Interest and Interest Rates. |
2 | |
SECTION 2.05. Optional Redemption. |
2 | |
SECTION 2.06. Guarantee. |
3 | |
SECTION 2.07. Global Securities. |
3 | |
ARTICLE 3 Miscellaneous |
3 | |
SECTION 3.01. Certain Trustee Matters. |
3 | |
SECTION 3.02. Continued Effect. |
4 | |
SECTION 3.03. Governing Law. |
4 | |
SECTION 3.04. Counterparts. |
4 |
EXHIBITS
Exhibit A: Form of Note
FOURTH SUPPLEMENTAL INDENTURE , dated as of September 28, 2007 (this Supplemental Indenture ), among ONEOK P ARTNERS , L.P. , a Delaware limited partnership (the Partnership ), ONEOK P ARTNERS I NTERMEDIATE L IMITED P ARTNERSHIP , a Delaware limited partnership (the Guarantor ), and W ELLS F ARGO B ANK , N.A. , as trustee under the Indenture referred to below (in such capacity, the Trustee ).
RECITALS OF THE PARTNERSHIP
WHEREAS, the Partnership and the Trustee have heretofore entered into an Indenture, dated as of September 25, 2006 (the Original Indenture ) (the Original Indenture, as amended and supplemented from time to time, including without limitation pursuant to this Supplemental Indenture, being referred to herein as the Indenture ); and
WHEREAS, under the Original Indenture, a new series of Debt Securities may at any time be established by the Board of Directors of ONEOK Partners GP, L.L.C., the Partnerships general partner (the General Partner ), in accordance with the provisions of the Original Indenture, and the terms of such series may be established by an indenture supplemental to the Original Indenture; and
WHEREAS, the Partnership proposes to create under the Indenture a new series of Debt Securities; and
WHEREAS, all acts and things necessary to make the Notes (as herein defined), when executed by the General Partner on behalf of the Partnership and authenticated and delivered by the Trustee as provided in the Original Indenture and this Supplemental Indenture, the valid and binding obligations of the Partnership and to make this Supplemental Indenture a valid and binding agreement in accordance with the Original Indenture have been done or performed;
NOW, THEREFORE, in consideration of the premises, agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1
R ELATION TO I NDENTURE ; D EFINITIONS
SECTION 1.01. Relation to Indenture .
With respect to the Notes, this Supplemental Indenture constitutes an integral part of the Indenture.
SECTION 1.02. Definitions .
For all purposes of this Supplemental Indenture, capitalized terms used herein and not otherwise defined herein shall have the meanings assigned thereto in the Original Indenture.
SECTION 1.03. General References .
All references in this Supplemental Indenture to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Supplemental Indenture; and the term herein , hereof , hereunder and any other word of similar import refers to this Supplemental Indenture.
ARTICLE 2
T HE S ERIES OF D EBT S ECURITIES
SECTION 2.01. The Form and Title of the Debt Securities.
There is hereby established a new series of Debt Securities to be issued under the Indenture and to be designated as the Partnerships 6.85% Senior Notes due 2037 (the Notes ). The Notes shall be substantially in the form attached as Exhibit A hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the 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 or as may be required or appropriate to comply with any laws or with any rules made pursuant thereto or with the rules of any securities exchange or automated quotation system on which the Notes may be listed or traded, or to conform to general usage, or as may, consistently with the Indenture, be determined by the officers executing such Notes, as evidenced by their execution thereof.
The Notes shall be executed, authenticated and delivered in accordance with the provisions of, and shall in all respects be subject to, the terms, conditions and covenants of the Original Indenture as supplemented by this Supplemental Indenture (including the form of Note set forth as Exhibit A hereto (the terms of which are incorporated in and made a part of this Supplemental Indenture for all intents and purposes)).
SECTION 2.02. Amount.
The aggregate principal amount of the Notes which may be authenticated and delivered pursuant hereto is unlimited. The Trustee shall initially authenticate and deliver Notes for original issue in an initial aggregate principal amount of up to $600,000,000 upon delivery to the Trustee of a Partnership Order for the authentication and delivery of such Notes. The aggregate principal amount of the Notes to be issued hereunder may be increased at any time hereafter and the series may be reopened for issuances of additional Notes upon Partnership Order without the consent of any Holder. The Notes issued on the date hereof and any such additional Notes that may be issued hereafter shall be part of the same series of Debt Securities for all purposes under the Indenture.
SECTION 2.03. Stated Maturity.
The Notes may be issued on any Business Day on or after September 28, 2007, and the Stated Maturity of the Notes shall be October 15, 2037.
SECTION 2.04. Interest and Interest Rates.
The rate or rates at which the Notes shall bear interest, the date or dates from which such interest shall accrue, the interest payment dates on which any such interest shall be payable and the regular record date for any interest payable on any interest payment date, in each case, shall be as set forth in the form of Note set forth as Exhibit A hereto.
SECTION 2.05. Optional Redemption.
At its option, the Partnership may redeem the Notes, in whole or in part, in principal amounts of $2,000 and in multiples of $1,000 in excess thereof, at any time or from time to time, at the applicable redemption price determined as set forth in the form of Note attached hereto as Exhibit A , in accordance with the terms set forth in the Notes and in accordance with Article III of the Original Indenture.
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SECTION 2.06. Guarantee.
Except as provided below, Article XII of the Original Indenture shall apply to the Notes. For the purposes of this Supplemental Indenture and the Notes (including without limitation the provisions of the Original Indenture to the extent applicable thereto), the term Guarantor shall mean ONEOK Partners Intermediate Limited Partnership, a Delaware limited partnership, and any successor Person thereto under the Indenture.
With respect to the Notes, paragraph (a) of Section 12.04 of the Original Indenture is hereby amended and restated in its entirety as set forth below; provided, however that the amendment and restatement set forth below in this Section 2.06 shall apply only to the Notes and not to any other series of Debt Securities issued under the Original Indenture:
(a) Notwithstanding anything to the contrary in this Article XII, if any Guarantor shall cease to be a Subsidiary of the Partnership, 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.
The Guarantors address and telecopier number for the purposes of Section 13.03 of the Original Indenture is:
ONEOK Partners Intermediate Limited Partnership
c/o | ONEOK Partners GP, L.L.C. |
100 West Fifth Street, Suite 1831 |
Tulsa, Oklahoma 74103-4298 |
Telecopier No.: (918) 588-7800 |
Attention: Chief Financial Officer |
SECTION 2.07. Global Securities.
The Notes shall initially be issuable in whole or in part in the form of one or more Global Securities. Such Global Securities (i) shall be deposited with, or on behalf of, The Depository Trust Company, which shall act as Depositary with respect to the Notes, (ii) shall bear the legends applicable to Global Securities set forth in Section 2.15(a) of the Original Indenture, (iii) may be exchanged in whole or in part for Notes in definitive form upon the terms and subject to the conditions provided in Section 2.15(b) of the Original Indenture and in this Supplemental Indenture and (iv) shall otherwise be subject to the applicable provisions of the Indenture.
ARTICLE 3
M ISCELLANEOUS
SECTION 3.01. Certain Trustee Matters.
The recitals contained herein shall be taken as the statements of the Partnership, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture or the Notes or the proper authorization or the due execution hereof or thereof by the Partnership.
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Except as expressly set forth herein, nothing in this Supplemental Indenture shall alter the duties, rights or obligations of the Trustee set forth in the Original Indenture.
The Trustee makes no representation or warranty as to the validity or sufficiency of the information contained in the prospectus supplement related to the Notes, except such information which specifically pertains to the Trustee itself, or any information incorporated therein by reference.
SECTION 3.02. Continued Effect.
Except as expressly supplemented and amended by this Supplemental Indenture, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof, and the Original Indenture (as supplemented and amended by this Supplemental Indenture) is in all respects hereby ratified and confirmed. This Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided.
SECTION 3.03. Governing Law.
This Supplemental Indenture and the Notes shall be governed by and construed in accordance with the laws of the State of New York.
SECTION 3.04. Counterparts.
This instrument may be executed in any number of counterparts, each of which, when delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and delivered, all as of the day and year first above written.
ONEOK PARTNERS, L.P. | ||
By: | ONEOK Partners GP, L.L.C., | |
its General Partner | ||
By: | /s/ Curtis L. Dinan | |
Name: | Curtis L. Dinan | |
Title: | Senior Vice President, Chief Financial Officer and Treasurer | |
ONEOK PARTNERS INTERMEDIATE LIMITED PARTNERSHIP | ||
By: | ONEOK ILP GP, L.L.C., | |
its General Partner | ||
By: | /s/ Curtis L. Dinan | |
Name: | Curtis L. Dinan | |
Title: | Senior Vice President, Chief Financial Officer and Treasurer | |
WELLS FARGO BANK, N.A., as Trustee |
||
By: | /s/ Timothy P. Mowdy | |
Name: | Timothy P. Mowdy | |
Title: | Vice President |
Fourth Supplemental Indenture Signature Page
EXHIBIT A
[FORM OF FACE OF NOTE]
[If a Global Security, insertUNLESS 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.]
[If a Global Security, insertTRANSFERS 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 SUCCESSORS 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.]
ONEOK PARTNERS, L.P.
6.85% Senior Note due 2037
No. _____ |
U.S.$_______________ |
CUSIP No. 68268NAD5
ONEOK PARTNERS, L.P., a Delaware limited partnership (herein called the Partnership, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, the principal sum of United States Dollars on October 15, 2037, and to pay interest thereon from September 28, 2007, or from the most recent interest payment date to which interest has been paid or duly provided for, semi-annually on April 15 and October 15 in each year, commencing on April 15, 2008, at the rate of 6.85% per annum, until the principal hereof is paid or made available for payment and at the same rate per annum on any overdue principal and premium and on any overdue installment of interest. The amount of interest payable for any period shall be computed on the basis of twelve 30-day months and a 360-day year. The amount of interest payable for any partial period shall be computed on the basis of a 360-day year of twelve 30-day months and the days elapsed in any partial month. In the event that any date on which interest is payable on this Note is not a Business Day, then a payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) with the same force and effect as if made on the date the payment was originally payable. The interest so payable, and punctually paid or duly provided for, on any interest payment date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the regular record date for such interest, which record date shall be the April 1 or October 1 (whether or not a Business Day), as the case may be, next preceding such interest payment date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such regular record date and may either be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on a special record date for the payment of such Defaulted Interest to be fixed by the Trustee, notice of which shall be given to Holders of Notes not less than 10 days prior to such special record date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange or automated quotation system on which the Notes may be listed or traded, and upon such notice as may be required by such exchange or automated quotation system, all as more fully provided in the Indenture.
[If a Global Security, insertPayment of the principal of (and premium, if any) and any such interest on this Note will be made by transfer of immediately available funds to a bank account in the United States of America designated by the Holder to the Paying Agent in U.S. Dollars.]
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[If a definitive Debt Security, insertPayment of the principal of (and premium, if any) and any such interest on this Note will be made at the office or agency of the Partnership maintained for that purpose in U.S. Dollars or subject to any laws or regulations applicable thereto and to the right of the Partnership (as provided in the Indenture) to rescind the designation of any such Paying Agent, at the offices of , and at such other offices or agencies as the Partnership may designate, by U.S. Dollar check drawn on, or transfer to a U.S. Dollar account maintained by the payee with, a bank in The City of New York (so long as the applicable Paying Agent has received proper transfer instructions in writing at least 10 days prior to the payment date); provided, however , that payment of interest may be made at the option of the Partnership by U.S. Dollar check mailed to the addresses of the Persons entitled thereto as such addresses shall appear in the Debt Security Register or by transfer to a U.S. Dollar account maintained by the payee with a bank in The City of New York (so long as the applicable Paying Agent has received proper transfer instructions in writing by the record date prior to the applicable interest payment date).]
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly executed.
Dated: ,
ONEOK PARTNERS, L.P. | ||||
By: |
ONEOK Partners GP, L.L.C. its General Partner |
|||
By: | ||||
Name: | ||||
Title: |
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TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to in the within-mentioned Indenture.
WELLS FARGO BANK, N.A., as Trustee |
||
By: | ||
Authorized Signatory |
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[REVERSE OF NOTE]
ONEOK PARTNERS, L.P.
6.85% Senior Note due 2037
This security is one of a duly authorized issue of debt securities of the Partnership (the Debt Securities), issued and to be issued in one or more series under an Indenture dated as of September 25, 2006, as amended and supplemented to date, including without limitation by the Fourth Supplemental Indenture thereto, dated as of September 28, 2007 (such Indenture, as so amended and supplemented being referred to herein as the Indenture), between the Partnership and Wells Fargo Bank, N.A., as Trustee (the Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Partnership, the Trustee and the Holders of the Debt Securities and of the terms upon which the Debt Securities are, and are to be, authenticated and delivered. This Debt Security is one of the series designated on the face hereof. The Debt Securities of this series are referred to herein as the Notes.
The Notes will be subject to redemption at any time at the option of the Partnership, in whole or in part, at a redemption price equal to the principal amount of the Notes to be redeemed, plus any accrued and unpaid interest thereon to the applicable 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 the Make-Whole Premium as defined below.
The Make-Whole Premium or premium with respect to any Note to be redeemed shall be equal to the excess, if any, of: (a) the sum of the present values, calculated as of the Redemption Date, of (i) 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 (ii) the principal amount that, but for such redemption, would have been payable at the final maturity of the Note being redeemed; over (b) the principal amount of the Note being redeemed.
The present values of interest and principal payments referred to in clause (a) of the immediately preceding paragraph 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 30 basis points. The Make-Whole Premium will be calculated by an independent investment banking institution of national standing appointed by the Partnership. If the Partnership fails to appoint an independent investment banker not less than 30 days prior to the Redemption Date, or if such independent investment banker is unwilling or unable to make the calculation, the calculation will be made by Wachovia Capital Markets, LLC, Greenwich Capital Markets, Inc. and UBS Securities LLC. If Wachovia Capital Markets, LLC, Greenwich Capital Markets, Inc. and UBS Securities LLC are unwilling or unable to make the calculation, the Partnership 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, and prior to the Redemption Date the Partnership shall deliver to the Trustee an Officers Certificate setting forth the redemption price and showing the calculation thereof in reasonable detail.
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
A-4
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.
Unless the Partnership defaults in payment of the redemption price, on and after the date of redemption, interest will cease to accrue on this Note or the portions hereof called for redemption.
In the event of redemption of this Note in part only, a new Note or Notes of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of (1) the entire indebtedness of this Note or (2) certain restrictive covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Partnership, the Guarantor and the rights of the Holders of the Debt Securities of each series to be affected under the Indenture at any time by the Partnership, the Guarantor and the Trustee with the consent of not less than the Holders of a majority in principal amount of the Outstanding Debt Securities of each series to be affected. The Indenture also contains provisions permitting the Holders of a majority in principal amount of the Outstanding Debt Securities of each affected series, on behalf of the Holders of all Debt Securities of such series, to waive compliance by the Partnership and the Guarantor with certain provisions of the Indenture. The Indenture permits, with certain exceptions as therein provided, the Holders of a majority in principal amount of Debt Securities of any series then Outstanding to waive past defaults under the Indenture with respect to such series and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and all holders of Notes of which this Note is a predecessor Note, whether or not notation of such consent or waiver is made upon this or any other Note.
As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any action or proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders of not less than 25% in aggregate principal amount of the Notes at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default and offered the Trustee reasonable indemnity or security as required by the Trustee and the Trustee shall not have received from the Holders of a majority in principal amount of Notes at the time Outstanding a direction inconsistent with such request, and the Trustee shall have failed to institute any such proceeding for 60 days after receipt of such notice, request and offer of indemnity or security. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Partnership, which is absolute and unconditional, to pay the principal of and any premium and interest on this Note at the times, place(s) and rate, and in the currency, herein prescribed.
[If a Global Security, insertThis Global Security or portion hereof may not be exchanged for definitive Debt Securities of this series except in the limited circumstances provided in the Indenture.
The holders of beneficial interests in this Global Security will not be entitled to receive physical delivery of definitive Debt Securities except as described in the Indenture and will not be considered the Holders thereof for any purpose under the Indenture.]
[If a definitive Debt Security, insertAs provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registerable in the Debt Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Partnership in The City of New York, or, subject to any laws or
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regulations applicable thereto and to the right of the Partnership (limited as provided in the Indenture) to rescind the designation of any such transfer agent, at the offices of in the Borough of Manhattan, The City of New York, and at such other offices or agencies as the Partnership may designate, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Partnership and the Debt Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.]
The Notes are issuable only in registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Partnership may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Partnership, the Guarantor, the Trustee and any agent of the Partnership, the Guarantor or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Partnership, the Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.
Obligations of the Partnership and the Guarantor under the Indenture and the Debt Securities thereunder, including this Note, are non-recourse to ONEOK Partners GP, L.L.C. (the General Partner) and ONEOK ILP GP, L.L.C. (the Guarantor General Partner) and their respective Affiliates (other than the Partnership and the Guarantor), and payable only out of cash flow and assets of the Partnership and the 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, the Guarantor General Partner and their respective assets (nor any of their respective Affiliates, other than the Partnership and the Guarantor, or their respective assets) shall be liable for any of the obligations of the Partnership or the Guarantor under the Indenture or such Debt Securities, including this Note, and (2) no director, officer, employee, stockholder or unitholder, as such, of the Partnership, the Guarantor, the Trustee, the General Partner, the Guarantor General Partner or any Affiliate of any of the foregoing entities shall have any personal liability in respect of the obligations of the Partnership or the Guarantor under the Indenture or such Debt Securities by reason of his, her or its status.
This Note shall be governed by and construed in accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
A-6
[If a definitive Debt Security, insert as a separate page
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto (Please Print or Typewrite Name and Address of Assignee) the within instrument of ONEOK PARTNERS, L.P. and does hereby irrevocably constitute and appoint Attorney to transfer said instrument on the books of the within-named Partnership, with full power of substitution in the premises.
Please Insert Social Security or
Other Identifying Number of Assignee:
Dated: | ||||||
(Signature) |
Signature Guarantee: |
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(Participant in a Recognized Signature Guaranty Medallion Program) |
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever.]
A-7
[If a Global Security, insert as a separate page
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
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Amount of Decrease in Principal Amount of this Global Security |
Amount of Increase in Principal Amount
of this
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Principal Amount of this Global Security following
such decrease
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authorized officer of Trustee or Depositary |
A-8
NOTATION OF GUARANTEE
The Guarantor (which term includes any successor person under the Indenture dated as of September 25, 2006 (as amended and supplemented from time to time, the Indenture ) between ONEOK Partners, L.P., a Delaware limited partnership (the Partnership ), and Wells Fargo Bank, N.A., as trustee (the Trustee )), has fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture, the due and punctual payment of the principal of, premium, if any, and interest on the Notes and all other amounts due and payable under the Indenture and the Notes by the Partnership.
The obligations of the Guarantor to the Holders of Notes and to the Trustee pursuant to the Guarantee are expressly set forth in Article XII of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee. Capitalized terms used but not defined herein have the meanings given to them in the Indenture.
ONEOK PARTNERS INTERMEDIATE LIMITED PARTNERSHIP |
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By: |
ONEOK ILP GP, L.L.C., its General Partner |
By: |
Name: |
Title: |
A-9
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 dated as of September 25, 2006 (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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our senior unsecured indebtedness, ranking equally in right of payment with all of our existing and future unsecured senior indebtedness; |
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non-recourse to our general partner; |
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unconditionally guaranteed by our subsidiary ONEOK Partners Intermediate Limited Partnership; |
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senior to all of our future subordinated debt; |
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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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effectively junior to all of the existing and future debt and other liabilities of our non-guarantor subsidiaries. |
Upon the sale of the notes, our non-guarantor subsidiaries will have outstanding approximately $143.0 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 $600,000,000. We will issue the notes in denominations of $2,000 and whole multiples of $1,000 in excess thereof.
The notes will mature on October 15, 2037. Interest on the notes will accrue at the annual rate of 6.85%. Interest on the notes will accrue from September 28, 2007. Interest on the notes will be payable semi-annually in arrears on April 15 and October 15 of each year, commencing on April 15, 2008. We will make each interest payment to the holders of record at the close of business on the immediately preceding April 1 and October 1, 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.
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 at the office of the trustee (or other paying agent) or by mailing a check to the holders 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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a make-whole premium described below, if any. |
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:
(1) 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 |
(2) the principal amount of the note being redeemed.
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 30 basis points. 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 Wachovia Capital Markets, LLC, Greenwich Capital Markets, Inc. and UBS Securities LLC. If Wachovia Capital Markets, LLC, Greenwich Capital Markets, Inc. and UBS Securities LLC are 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 $2,000 and multiples of $1,000 thereafter 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 a 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 Partnerships 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 $1 billion revolving credit agreement and our five outstanding series of senior notes, together with any of its other existing and future indebtedness 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 Partnerships guarantee will be effectively subordinated to all indebtedness of our operating subsidiaries.
ONEOK Partners Intermediate Limited Partnerships 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.
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.
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. |
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 |
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. |
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. |
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 IndentureSubordinated 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. |
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, warehousemens, mechanics, landlords, materialmens, repairmens 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 workmens 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. |
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 lessees 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 Subsidiarys 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. |
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. |
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, |
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. |
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. |
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. |
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 entitys partnership agreement, certificate or articles of incorporation, bylaws or other applicable organizational documents, and
(2) unless:
(a) | 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; |
(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) | 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). |
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. |
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, |
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. |
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. |
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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conflicts with law; |
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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. |
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. |
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 holders 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 holders 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 holders consent; or |
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make any change in the waiver provisions. |
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; |
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. |
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 IndentureLimitation on Liens; |
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limit our ability to engage in Sale-Leaseback Transactions, as described above under Provisions Only in the Senior IndentureLimitation 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. |
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 trustees 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. |
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. |
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. |
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. |
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 DTCs nominee. We, the trustee and any paying agent will treat DTCs 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 DTCs 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 DTCs records. In addition, it is DTCs 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.