Exhibit 4.5
FORM OF
FORM OF , dated as of _______ __, _____ (the
"") by and between ONEOK, Inc., an Oklahoma corporation
(the "Company"), and SunTrust Bank, not individually but solely as purchase
contract agent, attorney-in-fact and trustee for the holders of Purchase
Contracts (each as defined in the Purchase Contract Agreement (as defined
herein)) from time to time (in any one or more of such capacities, the
"Purchase Contract Agent"), and _______________________________________,
____________________ (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue an aggregate Stated Amount $___________
of its Securities (the "Securities") under the Purchase Contract Agreement,
dated as of ________ __, ____, by and between the Purchase Contract Agent and
the Company (the "Purchase Contract Agreement"); and
WHEREAS, the Securities will initially consist of ___________ units
referred to as "Type A Securities," each such security consisting of a ___%
Series __ Senior Note due ____________ issued by the Company in the principal
amount of $______ (a "Debt Security") and a Purchase Contract issued by the
Company ("Purchase Contract") pursuant to the Purchase Contract Agreement and
_________ units referred to as "Type B Securities," each such security
consisting of certain U.S. Treasury Securities and a Purchase Contract; and
WHEREAS, the Debt Securities will be pledged pursuant to the Pledge
Agreement (the "Pledge Agreement"), dated as of ______ __, ____, by and between
the Company, ________________________, as Collateral Agent, Securities
Intermediary and Custodial Agent (the "Collateral Agent") and the Purchase
Contract Agent, to secure a Type A Security holder's obligations under the
related Purchase Contract on the Purchase Contract Settlement Date; and
WHEREAS, the Debt Securities of such holders electing to have their
Debt Securities that are not pledged pursuant to the Pledge Agreement
remarketed, or of such Type A Security holders who have elected not to settle
the Purchase Contracts related to their Type A Security from the proceeds of a
Cash Settlement and who have not early settled their Purchase Contracts, will be
remarketed by the Remarketing Agent on the third Business Day immediately
preceding the Purchase Contract Settlement Date; and
WHEREAS, the applicable interest rate on the Debt Securities that
remain outstanding on and after the Purchase Contract Settlement Date will be
reset on the third Business Day immediately preceding the Purchase Contract
Settlement Date, to the Reset Rate to be determined by the Reset Agent as the
rate that such Debt Securities should bear in order to have an approximate
market value of ____% of the aggregate principal amount of the Debt Securities
on the third Business Day immediately preceding the Purchase Contract Settlement
Date, provided that in the determination of such Reset Rate, the Company may
limit the Reset Spread (a component of the Reset Rate) to be no higher than ___
basis points (__%); and
WHEREAS, the Company has requested _____________________________
______________________________ ("_____________") to act as the Reset Agent and
as the Remarketing Agent and as such to perform the services described herein;
and
WHEREAS, _____________ is willing to act as Reset Agent and Remarketing
Agent and as such to perform such duties on the terms and conditions expressly
set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Purchase Contract
Agreement or, if not therein stated, the Pledge Agreement.
Section 2. Appointment and Obligations of Reset Agent and Remarketing
Agent. The Company hereby appoints _______________, and ________________ hereby
accepts such appointment, (i) as the Reset Agent to determine, and in
consultation with the Company and in the manner provided for in the Indenture,
the Reset Rate, that in the opinion of the Reset Agent, will, when applied to
the Debt Securities, enable the Debt Securities, to have an approximate market
value of approximately ____% of the aggregate principal amount of such Debt
Securities, provided that the Company may limit such Reset Rate to be no higher
than the rate on the Two-Year Benchmark Treasury plus ___ basis points (__%),
and (ii) as the exclusive Remarketing Agent to remarket the Debt Securities (a)
of Debt Securities holders electing to have their Debt Securities remarketed, or
(b) of Type A Security holders who have not early settled the related Purchase
Contracts and have failed to notify the Purchase Contract Agent, on or prior to
the fifth Business Day immediately preceding the Purchase Contract Settlement
Date, of their intention to settle the related Purchase Contracts through Cash
Settlement, for settlement on the Purchase Contract Settlement Date, pursuant to
the Remarketing Underwriting Agreement attached hereto as Exhibit A, among the
Company, the Purchase Contract Agent and the Remarketing Agent (with such
changes as the Company, the Purchase Contract Agent and the Remarketing Agent
may agree upon, it being understood that changes may be necessary in the
representations, warranties, covenants and other provisions of the Remarketing
Underwriting Agreement due to changes in law or facts and circumstances).
Pursuant to the Remarketing Underwriting Agreement, the Remarketing Agent,
either as the sole remarketing underwriter or as the representative of a
syndicate including the Remarketing Agent and one or more other remarketing
underwriters designated by the Remarketing Agent, will agree, subject to the
terms and conditions set forth therein, that the Remarketing Agent and any such
other remarketing underwriters will purchase, severally, the Debt Securities to
be sold by the holder or holders of Debt Securities or Type A Securities on the
third Business Day immediately preceding the Purchase Contract Settlement Date
and will use their reasonable efforts to remarket such Debt Securities (such
purchase and remarketing being hereinafter referred to as the "Remarketing"), at
a price of approximately ____% of the aggregate principal amount of such Debt
Securities plus any accrued and unpaid interest (including any deferred
interest). Notwithstanding the preceding sentence, the Remarketing Agent shall
not remarket any Debt Securities for a price less than ___% of the aggregate
principal amount of such Debt Securities, plus accrued and unpaid interest and
shall not be required to purchase any Debt Securities not remarketed. The
proceeds of such remarketing shall be paid to the Collateral Agent in accordance
with Section 4.6 of the
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Pledge Agreement and Section 5.4 of the Purchase Contract Agreement (both of
which Sections are incorporated herein by reference).
Section 3. Fees. With respect to the Remarketing, the Remarketing Agent
shall retain as Remarketing Fee an amount not exceeding ___ basis points (___%),
of the aggregate principal amount of the remarketed securities from any amount
received in connection with such Remarketing in excess of aggregate principal
amount of such remarketed Debt Securities plus any accrued and unpaid interest
(including any deferred interest), provided that the Remarketing Agent shall not
be entitled to receive more than one such fee in respect of such remarketed Debt
Securities under this Agreement, the Purchase Contract Agreement or the Pledge
Agreement. In addition, the Reset Agent shall receive from the Company a
reasonable and customary fee for acting as the Reset Agent (the "Reset Agent
Fee"); provided, however, that if the Remarketing Agent shall also act as the
Reset Agent, then the Reset Agent shall not be entitled to receive any such
Reset Agent Fee. Payment of such Reset Agent Fee shall be made by the Company on
the third Business Day immediately preceding the Purchase Contract Settlement
Date in immediately available funds or, upon the instructions of the Reset
Agent, by certified or official bank check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent and Reset
Agent. (a) The Company may in its absolute discretion replace _____________ as
the Remarketing Agent and/or as the Reset Agent in its capacity hereunder by
giving notice prior to 3:00 p.m., New York City time, on the eleventh Business
Day immediately prior to the Purchase Contract Settlement Date. Any such
replacement shall become effective upon the Company's appointment of a successor
to perform the services that would otherwise be performed hereunder by the
Remarketing Agent and/or the Reset Agent. Upon providing such notice, the
Company shall use all reasonable efforts to appoint such a successor and to
enter into a with such successor as soon as reasonably
practicable.
(a) _____________ may resign at any time and be discharged from its
duties and obligations hereunder as the Remarketing Agent and/or as the Reset
Agent by giving notice prior to 3:00 p.m., New York City time, on the eleventh
Business Day immediately prior to the Purchase Contract Settlement Date. Any
such resignation shall become effective upon the Company's appointment of a
successor to perform the services that would otherwise be performed hereunder by
the Remarketing Agent and/or the Reset Agent. Upon receiving notice from the
Remarketing Agent and/or the Reset Agent that it wishes to resign hereunder, the
Company shall appoint such a successor and enter into a
with it as soon as reasonably practicable.
Section 5. Dealing in the Securities. The Remarketing Agent, when acting
hereunder or under the Remarketing Underwriting Agreement or acting in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold or deal in any of the Debt Securities. With respect to any Debt
Securities owned by it, the Remarketing Agent may exercise any vote or join in
any action with like effect as if it did not act in any capacity hereunder. The
Remarketing Agent, in its individual capacity, either as principal or agent, may
also engage in or have an interest in any financial or other transaction with
the Company as freely as if it did not act in any capacity hereunder.
Section 6. Registration Statement and Prospectus. In connection with the
Remarketing, if and to the extent required (in the opinion of counsel for either
the Remarketing
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Agent or the Company) by applicable law, regulations or interpretations in
effect at the time of such Remarketing, the Company shall use its reasonable
efforts to have a registration statement relating to the Debt Securities
effective under the Securities Act of 1933 by the third Business Day immediately
preceding the Purchase Contract Settlement Date, shall furnish a current
prospectus and/or prospectus supplement to be used in such Remarketing by the
remarketing underwriter or underwriters under the Remarketing Underwriting
Agreement, and shall pay all expenses relating thereto.
Section 7. Conditions to the Remarketing Agent's Obligations. (a) The
obligations of the Remarketing Agent and any other remarketing underwriters to
purchase and remarket the Debt Securities, as the case may be, shall be subject
to the terms and conditions of the Remarketing Underwriting Agreement.
(a) If at any time during the term of this Agreement, any Event of
Default (as defined therein) under the Indenture, or event that with the passage
of time or the giving of notice or both would become an Event of Default under
the Indenture, has occurred and is continuing, then the obligations and duties
of the Remarketing Agent under this Agreement shall be suspended until such
default or event has been cured. The Company will cause the Trustee to give the
Remarketing Agent notice of all such defaults and events of which the Trustee is
aware.
Section 8. Termination of . This Agreement shall
terminate as to the Remarketing Agent on the effective date of its replacement
pursuant to Section 4(a) hereof or pursuant to Section 4(b) hereof.
Notwithstanding any such termination, the obligations set forth in Section 3
hereof shall survive and remain in full force and effect until all amounts
payable under said Section 3 shall have been paid in full.
Section 9. Remarketing Agent's Performance; Duty of Care. The duties and
obligations of the Remarketing Agent hereunder shall be determined solely by the
express provisions of this Agreement and the Remarketing Underwriting Agreement.
Section 10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 11. Term of Agreement. Unless otherwise terminated in accordance
with the provisions hereof and except as otherwise provided herein, this
Agreement shall remain in full force and effect from the date hereof until the
first day thereafter on which no Debt Securities are outstanding.
Section 12. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of _____________ as the Remarketing Agent and the
Purchase Contract Agent. The rights and obligations of _____________ as the
Remarketing Agent and/or as the Reset Agent hereunder may not be assigned or
delegated to any other person without the prior written consent of the Company.
This Agreement shall inure to the benefit of and be binding upon the Company and
_____________ as the Remarketing Agent and/or as the Reset Agent and their
respective successors and assigns. The terms "successors" and "assigns" shall
not include any purchaser of Securities merely because of such purchase.
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Section 13. Headings. Section headings have been inserted in this Agreement
as a matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Agreement and will not be used in the
interpretation of any provision of this Agreement.
Section 14. Severability. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provisions of any constitution, statute, rule or public policy or for
any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case,
circumstances or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 15. Counterparts. This Agreement may be executed in counterparts,
each of which shall be regarded as an original and all of which shall constitute
one and the same document.
Section 16. Amendments. This Agreement may be amended by any instrument in
writing signed by the parties hereto.
Section 17. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to ONEOK, Inc., 000 Xxxx Xxxxx Xxxxxx, Xxxxx,
Xxxxxxxx 00000, Attention: Chief Financial Officer, with a copy to Xxxxx &
Xxxxxxx, 100 ONEOK Plaza, 000 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000,
Attention: Xxxx Xxxxxx; if to the Remarketing Agent or Reset Agent,
__________________________; and if to the Purchase Contract Agent, 00 Xxxx
Xxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Corporate Trust
Department, or to such other address as any of the above shall specify to the
other in writing.
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IN WITNESS WHEREOF, each of the Company, the Remarketing Agent and the
Purchase Contract Agent has caused this Agreement to be executed in its name and
on its behalf by one of its duly authorized officers as of the date first above
written.
ONEOK, Inc.
By:__________________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
By:______________________________________
Authorized Signatory
SUNTRUST BANK, not individually but
solely as Purchase Contract Agent,
attorney-in-fact and trustee for the
holders of the Purchase Contracts
By:______________________________________
Name:
Title:
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Exhibit 4.5
Exhibit A to
FORM OF REMARKETING UNDERWRITING AGREEMENT
______________________________________________________ (the
"Remarketing Underwriter") hereby agrees, subject to the terms and conditions
herein set forth or incorporated herein, to purchase the Debt Securities as set
forth in Schedule I hereto, that have been tendered by the holders of the Type A
Securities for sale on ______________.
1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the purchase contract
agreement (the "Purchase Contract Agreement"), the pledge agreement (the "Pledge
Agreement"), the underwriting agreement, dated ______________, between the
Company and ______________, as underwriters with respect to the issuance and
sale of the Securities (the "Underwriting Agreement"), and the Indenture (For
Unsecured Debt Securities Series __), dated ___________, between
_______________________ and the Company (the "Indenture").
2. Registration Statement and Prospectus. If required (in the opinion
of counsel to either the Remarketing Underwriter or the Company) by applicable
law, the Company has filed with the Securities and Exchange Commission, and
there has become effective, a registration statement on Form S-3 (No. 333- ),
including a prospectus, relating to the Debt Securities. Such registration
statement, as amended to the date of this Agreement, is hereinafter referred to
as the "Registration Statement", the prospectus included in the Registration
Statement is hereinafter referred to as the "Basic Prospectus" and the Basic
Prospectus, as amended or supplemented to the date of this Agreement to relate
to the Debt Securities and to the remarketing of the Debt Securities, is
hereinafter referred to as the "Final Prospectus" (including in each case all
documents incorporated by reference).
3. Provisions Incorporated by Reference. (a) Subject to Section 3(b),
the provisions of Sections ____ and ____ of the Underwriting Agreement shall be
incorporated, as applicable into this Agreement and made applicable to the
obligations of the Remarketing Underwriter, except as explicitly amended hereby.
(b) With respect to the provisions of the Underwriting Agreement
incorporated herein, for the purposes hereof, (i) all references therein to the
"Underwriter" or "Underwriters" or the "Representative" or "Representatives", as
the case may be, shall be deemed to refer to the Remarketing Underwriter; (ii)
all references therein to the "Securities" which are the subject thereof shall
be deemed to refer to the Debt Securities as defined herein; (iii) all
references therein to the "Closing Date" shall be deemed to refer to the
Remarketing Closing Date specified in Schedule I hereto (the "Remarketing
Closing Date"); (iv) all references therein to the "Registration Statement", the
"Basic Prospectus" and the "Final Prospectus" shall be deemed to refer to the
Registration Statement, the Basic Prospectus and the Final Prospectus,
respectively, as defined herein.
4. Purchase and Sale; Remarketing Underwriting Fee. Subject to the
terms and conditions and in reliance upon the representations and warranties
herein set forth or incorporated herein, the Remarketing Underwriter agrees to
purchase from the registered holder or holders thereof in the manner specified
in Section 5 hereof, the principal amount of remarketed Debt Securities set
forth in Schedule I hereto at a purchase price not less than ____% of the
aggregate principal amount of such Debt Securities, plus any accrued and unpaid
interest thereon. In connection therewith, the registered holder or holders
thereof agree, in the manner specified in Section 5 hereof, to pay to the
Remarketing Underwriter a Remarketing Underwriting Fee equal to an amount not
exceeding __ basis points (___%) of the aggregate principal amount of the
remarketed Debt Securities, from any amount received from such Remarketing in
excess of the aggregate principal amount of such remarketed Debt Securities,
plus any accrued and unpaid interest.
5. Delivery and Payment. Delivery of payment for the remarketed Debt
Securities and payment of the Remarketing Underwriting Fee shall be made on the
Remarketing Closing Date at the location and time specified in Schedule I hereto
(or such later date not later than five business days after such date as the
Remarketing representatives shall designate), which date and time may be
postponed by agreement between the Remarketing Underwriter, the Company, and the
registered holder or holders thereof. Delivery of the remarketed Debt Securities
and payment of the Remarketing Underwriting Fee shall be made to the Remarketing
Underwriter [to or upon the order of the [registered holder or holders of the
remarketed Debt Securities] by certified or official bank check or checks drawn
on or by a New York Clearing House bank and payable in immediately available
funds] [in immediately available funds by wire transfer to an account or
accounts designated by the [Company] [registered holder or holders of the
remarketed Debt Securities]] or, if the remarketed Debt Securities are
represented by a Global Security, by any method of transfer agreed upon by the
Remarketing Underwriter and the Depositary for the Debt Securities under the
Indenture.
[It is understood that any registered holder or, if the Debt Securities
are represented by a Global Security, any beneficial owner, that has an account
at the Remarketing Underwriter and tenders its Debt Securities through such
account will not be required to pay any fee or commission to the Remarketing
Underwriter.]
If the Debt Securities are not represented by a Global Security,
certificates for the Debt Securities shall be registered in such names and
denominations as the Remarketing Underwriter may request not less than three
full business days in advance of the Remarketing Closing Date, and the Company,
and the [registered holder or holders thereof] agree to have such certificates
available for inspection, packaging and checking by the Remarketing Underwriter
in New York, New York not later than 1:00 p.m. on the Business Day prior to the
Remarketing Closing Date.
6. Notices. Unless otherwise specified, any notices, requests, consents
or other communications given or made hereunder or pursuant hereto shall be made
in writing or transmitted by any standard form of telecommunication, including
telephone, telegraph or telecopy, and confirmed in writing. All written notices
and confirmations of notices by telecommunication shall be deemed to have been
validly given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid. All such notices, requests,
consents or other communications shall be addressed as follows: if to the
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Company, to ONEOK, Inc., 000 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000,
Attention: Chief Financial Officer, with a copy to Xxxxx & Xxxxxxx, 100 ONEOK
Plaza, 000 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxxxx; if
to the Remarketing Agent or Reset Agent, to ________________________; and if to
the Purchase Contract Agent, to 00 Xxxx Xxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxx
00000, Attention: Corporate Trust Department, or to such other address as any of
the above shall specify to the other in writing.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Remarketing Underwriters.
Very truly yours,
ONEOK, Inc.
By: ____________________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
By: ________________________________
Authorized Signatory
SUNTRUST BANK, not individually but solely
as Purchase Contract Agent, attorney-in-fact
and trustee for the holders of the Purchase
Contracts
By: ________________________________
Name:
Title:
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SCHEDULE I
Title of Securities: ___% Series __ Senior Notes due ____
Principal Amount of Securities: $
Underwriting Agreement, dated as of _________ __, ____, between the Company and
_______________________________________
Remarketing [Underwriting] Fee: _____ % ($_____)
Remarketing Closing Date, Time and Location: _______________________
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