EXHIBIT 4.5
EXECUTION COPY
January 28, 2003
UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. X'Xxxx
SunTrust Bank
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Division
Ladies and Gentlemen:
This Agreement is dated as of January 28, 2003 (the "Agreement") by and
among ONEOK, Inc., an Oklahoma corporation (the "Company"), UBS Warburg LLC
("UBS"), Bank of America Securities LLC ("BAS"), X.X. Xxxxxx Securities Inc.
("JPMorgan" and, together with UBS and BAS, the "Remarketing Agent Candidates")
and SunTrust Bank, a Georgia banking corporation, not individually but solely as
Purchase Contract Agent (the "Purchase Contract Agent"), attorney-in-fact and
trustee for the Holders of Purchase Contracts (as defined in the Purchase
Contract Agreement referred to below).
SECTION 1. DEFINITIONS.
(a) Capitalized terms used and not defined in this Agreement shall have
the meanings set forth in the Purchase Contract Agreement, dated as of
January 28, 2003, between the Company and SunTrust Bank, as Purchase Contract
Agent, as amended from time to time (the "Purchase Contract Agreement").
(b) As used in this Agreement, the following terms have the following
meanings:
"Appointment Date" has the meaning set forth in Section 2(a).
"Preliminary Prospectus" means any preliminary prospectus relating to the
Remarketed Senior Notes included in the Registration Statement, including the
documents incorporated by reference therein as of the date of such Preliminary
Prospectus; and any reference to any amendment or supplement to such Preliminary
Prospectus shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus, under the Exchange Act, and incorporated by
reference in such Preliminary Prospectus.
"Prospectus" means the prospectus relating to the Remarketed Senior Notes,
in the form in which first filed, or transmitted for filing, with the Commission
after the effective date of the Registration Statement pursuant to Rule 424(b),
including the documents incorporated by reference therein as of the date of such
Prospectus; and any reference to any amendment or supplement to such Prospectus
shall be deemed to refer to and include any documents filed after the date of
such Prospectus, under the Exchange Act, and incorporated by reference in such
Prospectus.
"Registration Statement" means a registration statement under the
Securities Act prepared by the Company covering, inter alia, the Remarketing of
the Remarketed Senior Notes pursuant to Section 5(a) hereunder, including all
exhibits thereto and the documents incorporated by reference in the prospectus
contained in such registration statement, and any post-effective amendments
thereto.
"Remarketed Senior Notes" means the Pledged Senior Notes and the Separate
Senior Notes, if any, subject to Remarketing as identified to the Remarketing
Agent by the Purchase Contract Agent and the Custodial Agent, respectively,
after 11:00 a.m., New York City time, on the Business Day immediately preceding
the applicable Remarketing Date, and shall include: (a) (i) in the case of the
Initial Remarketing, the Pledged Senior Notes and (ii) in the case of the Final
Remarketing, the Senior Notes of the Holders of Corporate Units who have not
notified the Purchase Contract Agent prior to 5:00 p.m. on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date of their
intention to effect a Cash Settlement of the related Purchase Contracts pursuant
to the terms of the Purchase Contract Agreement or who have so notified the
Purchase Contract Agent but failed to make the required cash payment on the
fourth Business Day immediately preceding the Purchase Contract Settlement Date
pursuant to the terms of the Purchase Contract Agreement, and (b) the Separate
Senior Notes of the Holders of Separate Senior Notes, if any, who have elected
to have their Separate Senior Notes be remarketed in such Remarketing pursuant
to the terms of the Purchase Contract Agreement.
"Remarketing" means the remarketing of the Remarketed Senior Notes pursuant
to this .
"Remarketing Agent" means any of UBS, BAS or JPMorgan appointed as the
Remarketing Agent by the Company pursuant to Section 2(a) hereof.
"Remarketing Agent Candidates" has the meaning set forth in the preamble.
"Remarketing Date" means either the Initial Remarketing Date (as defined
herein) or the Final Remarketing Date (as defined herein), as context requires.
"Remarketing Fee" has the meaning set forth in Section 4(a).
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"Remarketing Materials" means the Preliminary Prospectus, the Prospectus or
any other information furnished by the Company to the Remarketing Agent for
distribution to investors in connection with the Remarketing.
"Senior Notes" means the 4.0% Senior Notes due February 16, 2008 of the
Company.
"Transaction Documents" means this Agreement, the Purchase Contract
Agreement, the Pledge Agreement and the Indenture, in each case as amended or
supplemented from time to time.
SECTION 2. APPOINTMENT AND OBLIGATIONS OF THE REMARKETING AGENT.
(a) On or before the 20th Business Day prior to the Initial Remarketing
Date (the "Appointment Date"), the Company shall send written notice appointing
any of UBS, BAS or JPMorgan as the exclusive Remarketing Agent, for the purpose
of (i) remarketing the Remarketed Senior Notes on behalf of the Holders thereof,
(ii) determining, in consultation with the Company, in the manner provided for
herein and in the Purchase Contract Agreement and the Indenture, the Reset Rate
for the Senior Notes, and (iii) performing such other duties as are assigned to
the Remarketing Agent in the Transaction Documents; provided that if the Company
fails to appoint a Remarketing Agent pursuant to this Section 2(a) by the
Appointment Date, the Company shall be deemed to have appointed UBS as the
Remarketing Agent. Each of UBS, BAS and JPMorgan hereby agree that if the
Company chooses to appoint it as the Remarketing Agent, it shall, subject to the
terms and conditions set forth herein, accept such appointment by the Company as
the exclusive Remarketing Agent.
(b) Unless a Special Event Redemption has occurred prior to such date, on
the third Business Day immediately preceding November 16, 2005 (the "Initial
Remarketing Date"), the Remarketing Agent shall use its reasonable efforts to
remarket ("Initial Remarketing") the Remarketed Senior Notes, at a price (the
"Remarketing Price"), based on the Reset Rate, equal to approximately 100.50% of
the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes
Purchase Price.
(c) In the case of a Failed Initial Remarketing and unless a Special Event
Redemption has occurred prior to such date, on the third Business Day
immediately preceding the February 16, 2006 (the "Final Remarketing Date"), the
Remarketing Agent shall use its reasonable efforts to remarket (the "Final
Remarketing") the Remarketed Senior Notes at a price (the "Final Remarketing
Price"), based on the Reset Rate, equal to approximately 100.50% of the
aggregate principal amount of the Remarketed Senior Notes being remarketed in
such Final Remarketing. It is understood and agreed that the Remarketing on any
Remarketing Date will be considered successful and no further attempts will be
made if the resulting proceeds are at least 100.50% of the sum of the Treasury
Portfolio Purchase Price and the Separate Senior Notes Purchase Price, in the
case of an Initial Remarketing 100.50% of the aggregate principal amount of the
Remarketed Senior Notes in the case of the Final Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall
determine, in consultation with the Company, the rate per annum, rounded to the
nearest one-thousandth
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(0.001) of one percent per annum, that the Senior Notes should bear (the "Reset
Rate") in order for the Remarketed Senior Notes to have an aggregate market
value equal to the Remarketing Price or the Final Remarketing Price, as the case
may be, and that in the sole reasonable discretion of the Remarketing Agent will
enable it to remarket all of the Remarketed Senior Notes at the Remarketing
Price or Final Remarketing Price, as the case may be, in such Remarketing,
provided that such rate shall not (i) be less than the Coupon Rate set forth in
the Indenture or (ii) exceed the maximum interest rate permitted by law.
(e) In the event of a Failed Remarketing, or if no Senior Notes are
included in Corporate Units and none of the Holders of the Separate Senior Notes
elect to have Senior Notes remarketed in such Remarketing, the applicable
interest rate on the Senior Notes will not be reset and will continue to be the
Coupon Rate set forth in the Indenture.
(f) If, by 4:00 p.m., New York City time, on the applicable Remarketing
Date, the Remarketing Agent is unable to remarket all of the Remarketed Senior
Notes at the Remarketing Price or the Final Remarketing Price, as the case may
be, pursuant to the terms and conditions hereof, a Failed Remarketing shall be
deemed to have occurred, and the Remarketing Agent shall advise by telephone the
Depositary, the Purchase Contract Agent and the Company, and return the
Remarketed Senior Notes to the Collateral Agent or the Custodial Agent, as the
case may be. Whether or not there has been a Failed Remarketing will be
determined in the sole reasonable discretion of the Remarketing Agent.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m.,
New York City time, on the applicable Remarketing Date, the Remarketing Agent
shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of
the Reset Rate determined by the Remarketing Agent in such Remarketing and
the number of Remarketed Senior Notes sold in such Remarketing;
(ii) each purchaser (or the Depositary Participant thereof) of
Remarketed Senior Notes of the Reset Rate and the number of Remarketed
Senior Notes such purchaser is to purchase; and
(iii) each such purchaser to give instructions to its Depositary
Participant to pay the purchase price on the third business day immediately
following the date of such Successful Remarketing in same day funds against
delivery of the Remarketed Senior Notes purchased through the facilities of
the Depositary.
The Remarketing Agent shall also, if required by the Securities Act or the
rules and regulations promulgated thereunder, deliver to each purchaser a
Prospectus in connection with the Remarketing.
(h) After deducting any fees specified in Section 4 below, the proceeds
from a Successful Remarketing (i) with respect to the Senior Notes that are
components of the Corporate Units, shall be paid to the Collateral Agent in
accordance with Sections 4.07 and 6.03 of the Pledge Agreement, as the case may
be, and Section 5.02 of the Purchase Contract Agreement and (ii) with respect to
the Separate Senior Notes, shall be paid to the Custodial
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Agent for payment to the Holders of such Separate Senior Notes in accordance
with Section 5.02 of the Purchase Contract Agreement and Section 6.03 of the
Pledge Agreement.
(i) The right of each holder of Separate Senior Notes or Corporate Units
to have Remarketed Senior Notes remarketed and sold on any Remarketing Date
shall be subject to the conditions that (i) the Remarketing Agent conducts an
Initial Remarketing and, in the event of a Failed Initial Remarketing, a Final
Remarketing, each pursuant to the terms of this Agreement, (ii) a Special Event
Redemption has not occurred prior to such Remarketing Date, (iii) the
Remarketing Agent is able to find a purchaser or purchasers for Remarketed
Senior Notes at the Remarketing Price or the Final Remarketing Price, as the
case may be, based on the Reset Rate, and (iv) such purchaser or purchasers
deliver the purchase price therefor to the Remarketing Agent as and when
required.
(j) It is understood and agreed that the Remarketing Agent shall not have
any obligation whatsoever to purchase any Remarketed Senior Notes, whether in
the Remarketing or otherwise, and shall in no way be obligated to provide funds
to make payment upon tender of Remarketed Senior Notes for Remarketing or to
otherwise expend or risk its own funds or incur or to be exposed to financial
liability in the performance of its duties under this Agreement, and without
limitation of the foregoing, the Remarketing Agent shall not be deemed an
underwriter of the Remarketed Senior Notes. Neither the Company nor the
Remarketing Agent shall be obligated in any case to provide funds to make
payment upon tender of the Remarketed Senior Notes for Remarketing.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants (i) on and as of the date any
Remarketing Materials are first distributed in connection with the Remarketing
(the "Commencement Date"), (ii) on and as of the applicable Remarketing Date and
(iii) on and as of the settlement date relating to such Remarketing Date, that:
(a) Solely for purposes of determining the conditions precedent with
regard to the Remarketing Agent's obligations under Section 6 hereof, each of
the representations and warranties of the Company set forth in Section 3 (except
for paragraphs (a) and (k) of such section) of the Underwriting Agreement, dated
as of January 23, 2003 (the "Underwriting Agreement"), among the Company and the
Underwriters identified in the related Price Determination Agreement, dated as
of January 23, 2003, among the Company, UBS, BAS and JPMorgan, is true and
correct as if made on each of the dates specified above; provided that for
purposes of this Section 3(a), (A) any reference in such sections of the
Underwriting Agreement to (i) the "Registration Statement", the "Prospectus" or
the "Preliminary Prospectus" shall be deemed to refer to such terms as defined
herein and (ii) the "Time of Delivery" shall be deemed to refer to the
applicable Remarketing Date and (B) the term "Significant Subsidiary" as used in
Section 2(e) of the Underwriting Agreement shall be deemed to include any
subsidiaries of the Company that are, on each of the dates specified above,
"significant subsidiaries" of the Company within the meaning of Regulation S-X.
(b) The Registration Statement, if any, in the form heretofore delivered
or to be delivered to the Remarketing Agent, has been declared effective by the
Commission in such
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form; and no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission.
(c) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state 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 any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and will not contain an
untrue statement of a material fact or omit to state 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; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information relating to
the Remarketing Agent furnished in writing to the Company by the Remarketing
Agent or its counsel expressly for use in the Prospectus.
(d) The Registration Statement, if any, conforms (and the Prospectus, if
any, and any further amendments or supplements to the Registration Statement or
the Prospectus, when they become effective or are filed with the Commission, as
the case may be, will conform) in all material respects to the requirements of
the Securities Act and the rules and regulations promulgated thereunder, and the
Registration Statement and the Remarketing Materials (and any amendment or
supplement thereto) as of their respective effective or filing dates and as of
the Commencement Date, applicable Remarketing Date and Purchase Contract
Settlement Date do not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided that no representation
and warranty is made as to any statement of eligibility on Form T-1 filed or
incorporated by reference as part of the Registration Statement, the Prospectus
or the Remarketing Materials, or as to information relating to the Remarketing
Agent contained in or omitted from the Registration Statement, the Prospectus or
the Remarketing Materials in reliance upon and in conformity with written
information furnished to the Company by the Remarketing Agent.
(e) This Agreement has been duly authorized, executed and delivered by the
Company.
SECTION 4. FEES.
(a) In the event of a Successful Remarketing of the Remarketed Senior
Notes prior to the Final Remarketing Date, the Remarketing Agent may retain as a
remarketing fee (the "Initial Remarketing Fee") an amount equal to 25 basis
points (0.25%) of the sum of the Treasury Portfolio Purchase Price and the
Separate Senior Note Purchase Price.
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(b) In the event of a Successful Final Remarketing, the Remarketing Agent
may retain as the Remarketing Fee, an amount equal to 25 basis points (0.25%) of
the principal amount of the Remarketed Senior Notes.
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SECTION 5. COVENANTS OF THE COMPANY.
The Company covenants and agrees as follows:
(a) If and to the extent the Remarketed Senior Notes are required (in the
view of counsel, which need not be in the form of a written opinion, for either
the Remarketing Agent or the Company) to be registered under the Securities Act
as in effect at the time of the Remarketing,
(i) to prepare the Registration Statement and the Prospectus, in a
form approved by the Remarketing Agent, to file any such Prospectus
pursuant to the Securities Act within the period required by the Securities
Act and the rules and regulations thereunder and to use commercially
reasonable efforts to cause the Registration Statement to be declared
effective by the Commission prior to the second Business Day immediately
preceding the applicable Remarketing Date;
(ii) to file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the reasonable judgment of the Company or the
Remarketing Agent, be required by the Securities Act or requested by the
Commission;
(iii) to advise the Remarketing Agent, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Remarketing Agent with copies thereof;
(iv) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a Prospectus is required in connection with the offering or
sale of the Remarketed Senior Notes;
(v) to advise the Remarketing Agent, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of the Prospectus, of the
suspension of the qualification of any of the Remarketed Senior Notes for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information, and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(vi) to furnish promptly to the Remarketing Agent such copies of the
following documents as the Remarketing Agent shall reasonably request:
(A) conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding
exhibits); (B) the Preliminary Prospectus and any amended or supplemented
Preliminary Prospectus, (C) the Prospectus and any amended or supplemented
Prospectus; and (D) any document incorporated by reference in the
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Prospectus (excluding exhibits thereto); and, if at any time when delivery
of a prospectus is required in connection with the Remarketing, any event
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or
the Exchange Act, to notify the Remarketing Agent and, upon its request, to
file such document and to prepare and furnish without charge to the
Remarketing Agent and to any dealer in securities as many copies as the
Remarketing Agent may from time to time reasonably request of an amended or
supplemented Prospectus that will correct such statement or omission or
effect such compliance;
(vii) prior to filing with the Commission (A) any amendment to the
Registration Statement or supplement to the Prospectus or (B) any
Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy
thereof to the Remarketing Agent and counsel to the Remarketing Agent; and
not to file any such amendment or supplement that shall be reasonably
disapproved by the Remarketing Agent promptly after reasonable notice;
(viii) as soon as practicable, but in any event not later than
eighteen months, after the effective date of the Registration Statement, to
make "generally available to its security holders" an "earnings statement"
of the Company and its subsidiaries complying with (which need not be
audited) Section 11 (a) of the Securities Act and the rules and regulations
thereunder (including, at the option of the Company, Rule 158). The terms
"generally available to its security holders" and "earnings statement"
shall have the meanings set forth in Rule 158; and
(ix) to take such action as the Remarketing Agent may reasonably
request in order to qualify the Remarketed Senior Notes for offer and sale
under the securities or "blue sky" laws of such jurisdictions as the
Remarketing Agent may reasonably request; provided that in no event shall
the Company be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction.
(b) To furnish the Remarketing Agent with such information and documents
as the Remarketing Agent may reasonably request in connection with the
transactions contemplated hereby, and to make reasonably available to the
Remarketing Agent and any accountant, attorney or other advisor retained by the
Remarketing Agent such information that parties would customarily require in
connection with a due diligence investigation conducted in accordance with
applicable securities laws and to cause the Company's officers, directors,
employees and accountants to participate in all such discussions and to supply
all such information reasonably requested by any such Person in connection with
such investigation.
(c) To pay: (i) the costs incident to the preparation and printing of the
Registration Statement, if any, any Prospectus and any other Remarketing
Materials and any amendments or
9
supplements thereto; (ii) the costs of distributing the Registration Statement,
if any, any Prospectus and any other Remarketing Materials and any amendments or
supplements thereto; (iii) any fees and expenses of qualifying the Remarketed
Senior Notes under the securities laws of the several jurisdictions as provided
in Section 5(a)(9) and of preparing, printing and distributing a Blue Sky
Memorandum, if any (including any related fees and expenses of counsel to the
Remarketing Agent); (iv) all other costs and expenses incident to the
performance of the obligations of the Company hereunder and the Remarketing
Agent hereunder; and (v) the reasonable fees and expenses of counsel to the
Remarketing Agent in connection with their duties hereunder.
SECTION 6. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS.
The obligations of the Remarketing Agent hereunder shall be subject to the
following conditions:
(a) The representations and warranties of the Company contained herein
shall be true and correct in all material respects on and as of the applicable
Remarketing Date and the settlement date for the applicable Remarketing Date,
and the Company, the Purchase Contract Agent and the Collateral Agent shall have
performed in all material respects all covenants and agreements contained herein
or in the Purchase Contract Agreement or Pledge Agreement to be performed on
their part at or prior to such Remarketing Date.
(b) (i) Trading generally shall not have been suspended or materially
limited on the New York Stock Exchange or the Nasdaq National Market,
(ii) trading of any securities of the Company shall not have been materially
suspended or limited on the New York Stock Exchange or any other exchange or
over-the-counter market, (iii) a material disruption in securities settlement,
payment or clearance services in the United States shall not have occurred,
(iv) a general moratorium on commercial banking activities shall not have been
declared by either Federal or New York State authorities, or (v) there shall not
have occurred a material adverse change in the financial markets, any outbreak
or escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war or other calamity or crisis, if
the effect of any such event specified in this clause (v) in the judgment of the
Remarketing Agent makes it impracticable or inadvisable to proceed with the
Remarketing or the delivery of the Remarketed Senior Notes on the terms and in
the manner contemplated in the Transaction Documents.
(c) The Prospectus, if any, shall have been timely filed with the
Commission; no stop order suspending the effectiveness of the Registration
Statement, if any, or any part thereof shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the Commission; and
any request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been complied
with.
(d) The Company shall have furnished to the Remarketing Agent a
certificate, dated the applicable Remarketing Date, of the Chief Financial
Officer satisfactory to the Remarketing Agent stating that: (i) no order
suspending the effectiveness of the Registration Statement, if any, or
prohibiting the sale of the Remarketed Senior Notes is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of such
officers, threatened by the Commission;
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(ii) the representations and warranties of the Company in Section 3 are true and
correct on and as of the applicable Remarketing Date and the Company has
performed in all material respects all covenants and agreements contained herein
to be performed on its part at or prior to such Remarketing Date; and (iii) the
Registration Statement, as of its effective date, and the Remarketing Materials,
as of their respective dates, did not contain any untrue statement of a material
fact and did not omit to state any material fact required to be stated therein
or necessary to make the' statements therein not misleading and the Prospectus
did not contain any untrue statement of material fact or omit to state 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.
(e) On the applicable Remarketing Date, the Remarketing Agent shall have
received a letter addressed to the Remarketing Agent and dated such date, in
form and substance satisfactory to the Remarketing Agent, of the independent
accountants of the Company, containing statements and information of the type
ordinarily included in accountants' "comfort letters" with respect to certain
financial information contained in the Remarketing Materials, if any.
(f) Outside counsels for the Company reasonably acceptable to the
Remarketing Agent shall have furnished to the Remarketing Agent its (or their)
opinion(s), addressed to the Remarketing Agent and dated the applicable
Remarketing Date, in form and substance reasonably satisfactory to the
Remarketing Agent addressing such matters as are set forth in such counsels'
opinion furnished pursuant to Section 5(e) of the Underwriting Agreement,
adapted as necessary to relate to the securities being remarketed hereunder and
to the Remarketing Materials, if any, or to any changed circumstances or events
occurring subsequent to the date of this Agreement, such adaptations being
reasonably acceptable to counsel to the Remarketing Agent.
(g) Counsel for the Remarketing Agent, shall have furnished to the
Remarketing Agent its opinion, addressed to the Remarketing Agent and dated the
applicable Remarketing Date, in form and substance satisfactory to the
Remarketing Agent.
(h) Subsequent to the execution and delivery of this Agreement and prior
to the applicable Remarketing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate an
improvement, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(i) The Senior Notes shall not have been called for redemption following
the occurrence of a Special Event. If any condition specified in this Section 6
is not satisfied when and as required to be satisfied, this Agreement may be
terminated by the Remarketing Agent by notice to the Company at any time on or
prior to the applicable Remarketing Date, which termination shall be without
liability on the part of any party to any other party, except that Sections, 5,
7 and 9 shall at all times be effective and shall survive such termination.
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SECTION 7. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless the Remarketing Agent,
its partners, directors and officers, each person, if any, who controls the
Remarketing Agent within the meaning of Section 15 of the Securities Act and
each affiliate of the Remarketing Agent within the meaning of Rule 405 under the
Securities Act as follows:
(i) against any and all loss, liability, claim and damage
(including, without limitation, any legal or other expenses reasonably
incurred in investigating or defending any such liability or claim)
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the information deemed to be part of
the Registration Statement pursuant to Rule 430A or Rule 434 under the Act
(the "Rule 430A/434 Information"), if applicable, or the omission or
alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
included in any Preliminary Prospectus or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursement of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such true statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that the indemnity set forth above shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by the Remarketing Agent expressly for use in the Registration Statement
(or any amendment thereto), including the Rule 430A/434 Information, if
applicable, or any Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto); and provided, further, that the foregoing indemnity with
respect to any Preliminary Prospectus shall not inure to the benefit of the
Remarketing Agent from whom the person asserting any such losses, claims,
damages, or liabilities purchased Securities, or any person controlling the
Remarketing Agent, if a copy of the Prospectus (as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) was
not sent or given by
12
or on behalf of the Remarketing Agent to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of the
Remarketed Senior Notes to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance by
the Company with Section 5(a)(vi) hereof.
(b) The Remarketing Agent will indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A/434
Information, if applicable, or any Preliminary Prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by the Remarketing Agent expressly
for use in the Registration Statement (or any amendment thereto) or such
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give written notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. The indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel related to such proceeding
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and the representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. In no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or Section
8 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim.
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(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(a)(ii) effected without its
written consent only if (i) such settlement is entered into more that 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 8. CONTRIBUTION.
(a) If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party, in lieu of such indemnification, shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Remarketing Agent on the other from the offering
of the Remarketed Senior Notes or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportions as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and the Remarketing Agent on
the other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any relevant
equitable considerations.
The relative benefits received by the Company on one hand and the
Remarketing Agent on the other Band in connection with the Remarketing shall be
deemed to be in the same proportions as the aggregate principal amount of the
Remarketed Senior Notes less the fee paid to the Remarketing Agent on the one
hand and the fee paid to the Remarketing Agent on the other hand bear to the
aggregate principal amount of the Remarketed Senior Notes.
The relative fault of the Company on the one hand and the Remarketing Agent
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Remarketing Agent and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Remarketing Agent agree that it would not be just and
equitable if contribution pursuant to this Section 8(a) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 8(a). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8(a) shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
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Notwithstanding the provisions of this subsection (a), the Remarketing
Agent shall not be required to contribute any amount in excess of the amount by
which the fees received by it under Section 4 exceeds the amount of any damages
which the Remarketing Agent has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11 (f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(b) For purposes of this Section 8, each person, if any, who controls the
Remarketing Agent within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Remarketing Agent; each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company.
(c) The indemnity and contribution provisions contained in Section 7 and
this Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of the Remarketing Agent or any person controlling the
Remarketing Agent, or the Company, its officers or director or any controlling
person of the Company, and the completion of the Remarketing.
SECTION 9. RESIGNATION AND REMOVAL OF THE REMARKETING AGENT.
The Remarketing Agent Candidates may resign and be discharged from their
duties and obligations hereunder, and the Company may remove any of the
Remarketing Agent Candidates by giving 30 days' prior written notice, in the
case of a resignation, to the Company and the Depositary and, in the case of a
removal, to the removed Remarketing Agent Candidate and the Depositary;
provided, however, that if only one Remarketing Agent Candidate remains:
(a) such Remarketing Agent Candidate may not resign without reasonable
cause; and
(b) no such resignation nor any such removal shall become effective until
the Company shall have appointed at least one nationally recognized
broker-dealer as successor Remarketing Agent and such successor Remarketing
Agent shall have entered into a with the Company, in which
it shall have agreed to conduct the Remarketing in accordance with the
Transaction Documents in all material respects.
In any such case, the Company will use commercially reasonable efforts to
appoint a successor Remarketing Agent and enter into such a with such person as soon as reasonably practicable. The provisions of
Section 7 and Section 8 shall survive the resignation or removal of any
Remarketing Agent pursuant to this Agreement.
15
SECTION 10. DEALING IN SECURITIES.
The Remarketing Agent, when acting as a Remarketing Agent or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the Remarketed Senior Notes, Corporate Units,
Treasury Units or any of the securities of the Company (together, the
"Securities"). The Remarketing Agent may exercise any vote or join in any action
which any beneficial owner of such Securities may be entitled to exercise or
take pursuant to the Indenture 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 11. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE.
The duties and obligations of the Remarketing Agent shall be determined
solely by the express provisions of this Agreement and the Transaction
Documents. No implied covenants or obligations of or against the Remarketing
Agent shall be read into this Agreement or any of the Transaction Documents. In
the absence of bad faith on the part of the Remarketing Agent, the Remarketing
Agent may conclusively rely upon any document furnished to it, as to the truth
of the statements expressed in any of such documents. The Remarketing Agent
shall be protected in acting upon any document or communication reasonably
believed by it to have been signed, presented or made by the proper party or
parties except as otherwise set forth herein. The Remarketing Agent, acting
under this Agreement, shall incur no liability to the Company or to any holder
of Remarketed Senior Notes in its individual capacity or as Remarketing Agent
for any action or failure to act, on its part in connection with a Remarketing
or otherwise, except if such liability is judicially determined to have resulted
from its failure to comply with the material terms of this Agreement or bad
faith, gross negligence or willful misconduct on its part. The provisions of
this Section 11 shall survive the termination of this Agreement and shall
survive the resignation or removal of any Remarketing Agent pursuant to this
Agreement.
SECTION 12. TERMINATION.
This Agreement shall automatically terminate (i) as to the Remarketing
Agent on the effective date of the resignation or removal of the Remarketing
Agent pursuant to Section 9 and (ii) on the earlier of (x) any Special Event
Redemption Date and (y) the Purchase Contract Settlement Date. If this Agreement
is terminated pursuant to any of the other provisions hereof, except as
otherwise provided herein, the Company shall not be under any liability to the
Remarketing, Agent and the Remarketing Agent shall not be under any liability to
the Company, except that if this Agreement is terminated by the Remarketing
Agent because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, the
Company will reimburse the Remarketing Agent for all of its out-of-pocket
expenses (including the fees and disbursements of its counsel) reasonably
incurred by it. Sections 7, 8 and 11 hereof shall survive the termination of
this Agreement or the resignation or removal of the Remarketing Agent.
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SECTION 13. NOTICES.
All statements, requests, notices and agreements hereunder shall be in
writing, and:
(a) if to UBS, shall be delivered or sent by mail, telex or facsimile
transmission to UBS Warburg LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel (Telecopy: (000) 000-0000);
(b) if to BAS, shall be delivered or sent by mail, telex or facsimile
transmission to Banc of America Securities LLC, 0 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxxx (Telecopy: (000) 000-0000);
(c) if to JPMorgan, shall be delivered or sent by mail, telex or facsimile
transmission to X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx X. X'Xxxx (Telecopy: (000) 000-0000);
(d) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to ONEOK, Inc., 000 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx
00000, Attention: Chief Financial Officer (Telecopy: (000) 000-0000); and
(e) if to the Purchase Contract Agent, shall be delivered or sent by mail,
telex or facsimile transmission to SunTrust Bank, 00 Xxxx Xxxxx, 00xx Xxxxx,
Xxxxxxx, Xxxxxxx 00000 Attention: Corporate Trust Division
(Telecopy: (000) 000-0000).
Any such statements, requests, notices or agreements shall take effect at
the time of receipt thereof.
SECTION 14. PERSONS ENTITLED TO BENEFIT OF AGREEMENT.
This Agreement shall inure to the benefit of and be binding upon each party
hereto and its respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(x) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
Remarketing Agent and the person or persons, if any, who control the Remarketing
Agent within the meaning of Section 15 of the Securities Act and (y) the
indemnity agreement of the Remarketing Agent contained in Section 7(b) of this
Agreement shall be deemed to be for the benefit of the Company's directors and
officers who sign the Registration Statement, if any, and any person controlling
the Company within the meaning of Section 15 of the Securities Act. Nothing
contained in this Agreement is intended or shall be construed to give any
person, other than the persons referred to herein, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained
herein.
SECTION 15. SURVIVAL.
The respective indemnities, representations, warranties and agreements of
the Company and the Remarketing Agent contained in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall survive any
Remarketing and shall remain in full
17
force and effect, regardless of any investigation made by or on behalf of any of
them or any person controlling any of them.
SECTION 16. GOVERNING LAW.
Agreement shall be governed by, and construed in accordance with, the laws
of New York, without regard to conflicts of laws principles.
SECTION 17. JUDICIAL PROCEEDINGS.
(a) Each party hereto expressly accepts and irrevocably submits to the
non-exclusive jurisdiction of the United States Federal or New York State court
sitting in the Borough of Manhattan, The City of New York, New York, over any
suit, action or proceeding arising out of or relating to this Agreement or the
Remarketed Senior Notes. To the fullest extent it may effectively do so under
applicable law, each party hereto irrevocably waives and agrees not to assert,
by way of motion, as a defense or otherwise, any claim that it is not subject to
the jurisdiction of any such court, any objection that it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding brought
in any such court and any claim that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum.
(b) Each party hereto agrees, to the fullest extent that it may
effectively do so under applicable law, that a judgment in any suit, action or
proceeding of the nature referred to in Section 17(a) brought in any such court
shall be conclusive and binding upon such party, subject to rights of appeal and
may be enforced in the courts of the United States of America or the State of
New York (or any other court the jurisdiction to which the Company is or may be
subject) by a suit upon such judgment.
SECTION 18. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts shall each be deemed to
be an original but all such counterparts shall together constitute one and the
same instrument.
SECTION 19. HEADINGS.
The headings herein are inserted for convenience of reference only and are
not intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
SECTION 20. 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, then, to
the extent permitted by law, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstance or jurisdiction, or of rendering any other provision or
provisions of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
18
SECTION 21. AMENDMENTS.
This Agreement may be amended by an instrument in writing signed by the
parties hereto. Each of the Company and the Purchase Contract Agent agrees that
it will not enter cause or permit any amendment or modification of the
Transaction Documents or any other instruments or agreements relating to the
Senior Notes or the Corporate Units that would in any way adversely affect the
rights, duties and obligations of the Remarketing Agent, without the prior
written consent of the Remarketing Agent.
SECTION 22. 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 the
Remarketing Agent. The rights and obligations of the Remarketing Agent hereunder
may not be assigned or delegated to any other Person (other than an affiliate of
the Remarketing Agent) without the prior written consent of the Company.
[SIGNATURES ON THE FOLLOWING PAGE]
19
If the foregoing correctly sets forth the agreement by and between the
Company, UBS, BAS, JPMorgan and the Purchase Contract Agent, please indicate
your acceptance in the space provided for that purpose below.
Very Truly Yours,
ONEOK, Inc.
By: /s/ Xxx Xxxxxx
-----------------------
Name: Xxx Xxxxxx
Title: Senior Vice President,
Treasurer and Chief
Financial Officer
CONFIRMED AND ACCEPTED:
UBS WARBURG LLC
By: /s/ Xxxxxx X. Xxxxx, III By: /s/ Xxxxx Xxxx
------------------------- -----------------------
Name: Xxxxxx X. Xxxxx, III Name: Xxxxx Xxxx
Title: Managing Director Title: Associate Director
BANC OF AMERICA SECURITIES LLC
By: /s/ Deleil Dillou
-----------------------
Name: Deleil Dillou
Title: Managing Director
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxx Xxxxxxx-Xxxxx
-----------------------
Name: Xxx Xxxxxxx-Xxxxx
Title: Vice President
20
SUNTRUST BANK, not individually, but
solely as Purchase Contract Agent, attorney in
fact and trustee for the Holders of the
Purchase Contracts
By: /s/ Xxxxxx Xxxxx
-----------------------
Name: Xxxxxx Xxxxx
Title: Vice President
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