Exhibit 1.1
EXECUTION COPY
ONEOK PARTNERS,
L.P.
Underwriting Agreement
September 20, 2006
Citigroup Global Markets
Inc.
SunTrust Capital Markets,
Inc.
As Representatives of the
Underwriters named in Schedule II hereto
c/o Citigroup Global Markets
Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
ONEOK Partners, L.P., a limited
partnership organized under the laws of the state of Delaware (the
“Partnership”), proposes to issue and sell to the
several underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
principal amount of its senior notes identified in Schedule I
hereto (the “Notes”). The Partnership’s
obligations under the Notes and the Indenture (as defined herein)
will be fully and unconditionally guaranteed (the
“Guarantee”), on a senior unsecured basis, by ONEOK
Partners Intermediate Limited Partnership, a limited partnership
organized under the laws of the state of Delaware (the
“Guarantor” and together with the Partnership, the
“Issuers”). The Notes and the Guarantee are referred to
herein as the “Securities.” The Securities will be
issued under an indenture, dated and effective as of the Closing
Date (as defined herein) (the “Base Indenture”), among
the Partnership and Wells Fargo Bank, N.A., as trustee (the
“Trustee”), as amended and supplemented by (i) the
First Supplemental Indenture thereto (the “First Supplemental
Indenture”) among the Issuers and the Trustee to be dated and
effective as of the Closing Date, (ii) the Second Supplemental
Indenture thereto among the Issuers and the Trustee to be dated and
effective as of the Closing Date (the “Second Supplemental
Indenture”) and (iii) the Third Supplemental Indenture
thereto among the Issuers and the Trustee to be dated and effective
as of the Closing Date (the “Third Supplemental
Indenture”) (the Base Indenture, as amended and supplemented
by the First Supplemental Indenture, the Second Supplemental
Indenture and the Third Supplemental Indenture, the
“Indenture”). Any reference herein to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on
or before the Effective Date or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date or
the issue date of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are
defined in Section 20 hereof.
This is to confirm the agreement
(this “Agreement”) concerning the purchase of the
Securities from the Issuers by the Underwriters.
1. Representations and
Warranties . The Issuers represent and warrant to, and agree
with, each Underwriter as set forth below in this
Section 1.
(a) The Partnership meets the
requirements for use of Form S-3 under the Act and has prepared and
filed with the Commission an “automatic shelf registration
statement” (as defined in Rule 405 ) (the file number
of which is set forth in Schedule I hereto), on Form S-3, including
a related Base Prospectus, for registration under the Act of the
offering and sale of the Securities. Such Registration Statement,
including any amendments thereto filed prior to the Execution Time,
became effective upon filing. The Partnership filed with the
Commission, as part of an amendment to the Registration Statement
or pursuant to Rule 424(b), one or more Preliminary Prospectuses
relating to the Securities, each of which has previously been
furnished to you. The Partnership will next file with the
Commission one of the following: (1) a Final Prospectus in
accordance with Rules 430B and 424(b) or (2) a Final
Prospectus in accordance with Rules 415 and 424(b). The Partnership
has included in such Registration Statement, as amended at the
Effective Date, all information (other than information permitted
to be excluded therefrom pursuant to Rule 430B (“Rule 430B
Information”)) required by the Act and the rules thereunder
to be included in such Registration Statement. As filed, the Final
Prospectus shall contain all applicable Rule 430B Information,
together with all other such information required by the Act and
the rules thereunder, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Partnership has advised you, prior
to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the
Registration Statement did, and when the Final Prospectus is first
filed in accordance with Rule 424(b) and on the Closing Date, the
Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act and
the Exchange Act and the respective rules thereunder; on each
Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; on the Effective Date and on the Closing Date, the
Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules
thereunder; and on the date of any filing with the Commission
pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not include
any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however , that the Issuers make no representations
or warranties as to (i) the exhibit to the Registration
Statement which shall constitute the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of the
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Trustee or (ii) the information contained
in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Partnership
by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the
Final Prospectus (or any amendment or supplement thereto), it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriters consists of the information
described as such in Section 8(b) hereof.
(c) (i) The Disclosure Package
did not, as of the Execution Time, contain any untrue statement of
a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to information contained in or omitted from the
Disclosure Package (or any amendments or supplement thereto), in
reliance upon and in conformity with information furnished in
writing to the Partnership by any Underwriter through the
Representatives specifically for inclusion therein, it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 8(b) hereof.
(d) (i) At the time of filing
the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Sections 13 or 15(d) of the Exchange Act or form of prospectus),
(iii) at the time the Issuers or any person acting on their
behalf (within the meaning, for this clause only, of Rule 163(c))
made any offer relating to the Securities in reliance on the
exemption in Rule 163, and (iv) at the Execution Time (with
such date being used as the determination date for purposes of this
clause (iv)), the Partnership was or is (as the case may be) a
Well-Known Seasoned Issuer. The Partnership agrees to pay the fees
required by the Commission relating to the Securities within the
time required by Rule 456(b)(1) and otherwise in accordance with
Rules 456(b) and 457(r).
(e) (i) At the earliest time
after the filing of the Registration Statement that the Issuers or
another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2)) of the Securities and (ii) as
of the Execution Time (with such date being used as the
determination date for purposes of this clause (ii)), the
Partnership was not and is not an “ineligible issuer”
(as defined in Rule 405).
(f) Each Issuer Free Writing
Prospectus and the final term sheet prepared and filed pursuant to
Section 5(b) hereof does not include any information that
conflicts with the information contained in the Registration
Statement, including any document incorporated therein by reference
and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information
furnished to the Partnership by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in
Section 8(b) hereof.
(g) The Partnership has been duly
formed and is validly existing under the Delaware Revised Uniform
Limited Partnership Act (the “DRULPA”) and each of
its
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“significant subsidiaries” (as
defined in Rule 1-02 of Regulation S-X except determined as of
June 30, 2006) (the “Subsidiaries”) has been duly
formed, is validly existing as a corporation, limited liability
company or limited partnership, as the case may be, and is in good
standing under the laws of the jurisdiction in which it is formed.
The Partnership has all the requisite partnership power and
authority and each of its Subsidiaries has full corporate, limited
liability or partnership power, as the case may be, and authority
to own or lease, as the case may be, and to operate its properties
and conduct its business in all material respects as described in
the Disclosure Package and the Final Prospectus, and is duly
qualified or registered to do business as a foreign entity and is
in good standing under the laws of each jurisdiction which requires
such qualification or registration, except where the failure to be
so qualified or registered or in good standing would not reasonably
be expected to (i) have a material adverse effect on the
condition (financial or otherwise), earnings, cash flow, business
affairs or business prospects of the Partnership and its
subsidiaries, considered as one enterprise (a “Material
Adverse Effect”), or (ii) subject the limited partners
of the Partnership to any material liability or
disability.
(h) All the outstanding equity
interests of each Subsidiary have been duly and validly authorized
and issued in accordance with such Subsidiary’s governing
documents and are fully paid (in the case of any Subsidiary that is
a limited liability company, to the extent required by such
Subsidiary’s limited liability company agreement, and in the
case of any Subsidiary that is a limited partnership, to the extent
required by such Subsidiary’s agreement of limited
partnership) and nonassessable (in the case of any Subsidiary that
is a limited liability company, except as such nonassessability may
be affected by Sections 18-607 and 18-804 of the Delaware Revised
Limited Liability Company Act, and in the case of any Subsidiary
that is a limited partnership, except as such nonassessability may
be affected by Sections 17-303, 17-607 and 17-804 of the DRULPA and
matters included such Subsidiary’s agreement of limited
partnership), and all outstanding equity interests of the
Subsidiaries are owned by the Partnership either directly or
through wholly owned Subsidiaries free and clear of any perfected
security interest or any other security interests, claims or liens
(“Liens”), except for any such Liens on the outstanding
equity interests of the Subsidiaries that are described in the
Disclosure Package and the Final Prospectus.
(i) There is no contract or other
document of a character required to be described in the
Registration Statement or Base Prospectus, or to be filed as an
exhibit to the Registration Statement, which is not described or
filed as required (and the Preliminary Prospectus contains in all
material respects the same description of the foregoing matters as
will be contained in the Base Prospectus); and the statements in
the Preliminary Prospectus and the Final Prospectus under the
heading “Material United States Federal Income Tax
Considerations”, insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein,
fairly summarize such legal matters, agreements, documents or
proceedings in all material respects.
(j) This Agreement has been duly
authorized, executed and delivered by or on behalf of each of the
Issuers.
(k) The Partnership is the sole
limited partner of the Guarantor with a 99.99% limited partner
interest in the Guarantor (subject to the provisions of the
Intermediate Partnership Agreement), and ONEOK ILP GP, L.L.C, a
limited liability company organized under the laws
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of the state of Delaware and wholly owned
subsidiary of the Partnership (the “ILP GP”), is the
sole general partner of the Guarantor with a 0.01% general partner
interest in the Guarantor; such partner interests are duly
authorized by the Intermediate Partnership Agreement, and the
limited partner interest is duly issued, fully paid (to the extent
required under the Intermediate Partnership Agreement) and
non-assessable (except as described in the Intermediate Partnership
Agreement and except as set forth in Sections 17-303, 17-607 and
17-804 of the DRULPA); as of the Closing Date, the Partnership will
own, directly or indirectly, such limited partner interest in the
Guarantor and the member interests in the ILP GP free and clear of
any Liens, except for any such Liens on such interests that are
described in the Disclosure Package and the Final
Prospectus.
(l) As of August 1, 2006, the
limited partners of the Partnership held limited partner interests
in the Partnership aggregating a 98.0% Partnership Interest (as
defined in the Partnership Agreement) (subject to the provisions of
the Partnership Agreement), such limited partner interests being
represented by a total of 46,397,214 outstanding Common Units and
36,494,126 outstanding Class B Units (collectively, the
“Limited Partner Units”); as of the Closing Date, the
Limited Partner Units and the limited partner interests represented
thereby were authorized by the Partnership Agreement and are
validly issued, fully paid (to the extent required under the
Partnership Agreement) and non-assessable (except as described in
the Partnership Agreement and except as set forth in Sections
17-303, 17-607 and 17-804 of the DRULPA).
(m) The Notes have been duly
authorized for issuance and sale to the Underwriters and, when
issued, executed and authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will have been duly
executed and delivered by or on behalf of the Partnership and will
constitute valid and binding obligations of the Partnership,
enforceable in accordance with their terms and the terms of the
Indenture and will be entitled to the benefits provided by the
Indenture; provided that the enforceability thereof may be
limited by bankruptcy, reorganization, insolvency, fraudulent
transfer or conveyance, moratorium or similar laws relating to or
affecting the enforcement of creditors’ rights generally from
time to time in effect and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) (the “Enforceability
Exceptions”); and the statements in “Description of the
Notes” in the Preliminary Prospectus used most recently prior
to the Execution Time and the Final Prospectus and
“Description of the Debt Securities” in the Base
Prospectus, insofar as they purport to constitute a summary of the
terms of the Securities and the Indenture, when such Securities are
issued, executed, authenticated and delivered against payment
therefore as provided herein and in the Indenture, fairly summarize
the matters described therein in all material respects.
(n) The Indenture has been duly
authorized by or on behalf of the Issuers, and, when validly
executed and delivered by or on behalf the Issuers, and assuming
due authorization, execution and delivery thereof by the Trustee,
will constitute a valid and binding agreement of each of the
Issuers, enforceable in accordance with its terms; provided
that the enforceability of the Indenture may be limited by the
Enforceability Exceptions.
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(o) The Guarantee has been duly
authorized by or on behalf of the Guarantor and, when the Indenture
is validly executed and delivered by or on behalf of the Issuers
and the Notes are duly executed by or on behalf of the Partnership
and authenticated by the Trustee in accordance with the Indenture
and delivered to and paid for by the Underwriters, and assuming due
authorization, execution and delivery of the Indenture by the
Trustee, will constitute a valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its
terms and entitled to the benefits provided by the Indenture;
provided that the enforceability of the Guarantee may be
limited by the Enforceability Exceptions.
(p) Neither the Partnership nor any
of its Subsidiaries is and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as described in the Disclosure Package and the Final Prospectus,
neither will be an “investment company” as defined in
the Investment Company Act of 1940, as amended.
(q) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions
contemplated herein except (i) such as have been obtained
under the Act and the Trust Indenture Act, and (ii) such as
may be required under the blue sky laws of any jurisdiction or the
by-laws and rules of the National Association of Securities
Dealers, Inc. (the “NASD”) in connection with the
purchase and distribution by the Underwriters of the Securities in
the manner contemplated herein and in the Disclosure Package and
the Final Prospectus or (iii) such that the failure to obtain
would not reasonably be expected to result in a Material Adverse
Effect.
(r) Neither the issuance and sale of
the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or
assets of the Partnership or any of its Subsidiaries pursuant to
(i) the provisions of the Partnership Agreement or other
governing documents of the Partnership or any of the governing
documents of any of its Subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Partnership or any
of its Subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Partnership
or any of its Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Partnership or any of its
Subsidiaries or any of its or their properties, which conflicts,
breaches, violations or defaults, in the case of clauses
(ii) or (iii), would reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.
(s) No holders of debt securities of
the Partnership have rights to the registration of such securities
under the Preliminary Prospectus, the Final Prospectus and the
Registration Statement.
(t) The historical consolidated
financial statements and schedules of the Partnership and its
consolidated subsidiaries included or incorporated by reference in
the Preliminary Prospectus, the Final Prospectus and the
Registration Statement present fairly in all material respects the
consolidated financial condition, results of operations and cash
flows of the Partnership as of the dates and for the periods
indicated, comply as to form in all material
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respects with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted
therein).
(u) Other than as set forth in the
Preliminary Prospectus, the Final Prospectus and the Registration
Statement, no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Partnership or any of its Subsidiaries or its or their property
is pending or, to the Partnership’s knowledge, threatened
that (i) would reasonably be expected to have a material
adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or
(ii) would reasonably be expected to have a Material Adverse
Effect.
(v) Each of the Partnership and each
of its Subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted
except where the failure to do so does not materially interfere
with the ownership, operation or benefits of operation of such
businesses or materially increase the cost of operation or
ownership of such businesses, provided that (a) with
respect to the gas transmission and gathering pipelines of the
Subsidiaries that own such pipelines and right-of-way interests
related thereto (the “Pipeline Properties”), the
foregoing shall only constitute a representation that,
(i) such Subsidiaries have sufficient title to enable them to
use such Pipeline Properties in their businesses as they have been
used in the past and as are proposed to be used in the future and
will not materially increase the cost of such use, and
(b) with respect to any real property, buildings and equipment
held under lease by the Subsidiaries, such real property, buildings
and equipment are held by the Subsidiaries under valid, subsisting
and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such
real property, buildings and equipment for such
Subsidiary.
(w) Neither the Partnership nor any
Subsidiary is in violation or default of (i) any provisions of
the Partnership Agreement or other governing documents of the
Partnership or the governing documents of such Subsidiary, as the
case may be, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
it is a party or bound or to which its property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Partnership or such Subsidiary or any of its
properties, as applicable, except in the case of clauses
(ii) and (iii) as would not reasonably be expected to
have a Material Adverse Effect or as could not materially impair
the ability of the Issuers to perform their respective obligations
under this Agreement or the Indenture.
(x) KPMG LLP, who has certified
certain financial statements of the Partnership and its
consolidated subsidiaries and delivered its report with respect to
the audited consolidated financial statements and schedules
incorporated by reference in the Final Prospectus, is an
independent registered public accounting firm with respect to the
Partnership as required by the Act and the Public Company
Accounting Oversight Board (United States) and its applicable
published rules and regulations.
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(y) There are no transfer taxes or
other similar fees or charges under Federal law or the laws of any
state, or any political subdivision thereof, required to be paid by
the Issuers in connection with the execution and delivery of this
Agreement or the issuance and sale by the Issuers of the
Securities.
(z) The Partnership has filed all
foreign, federal, state and local tax returns that are required to
be filed or has requested extensions thereof and has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due
and payable, except for (i) those failures to file or pay that
would not reasonably be expected to have a Material Adverse Effect,
(ii) any such tax payment, assessment, fine or penalty that is
currently being contested in good faith, or (iii) those
failures to file or pay set forth in or contemplated in the
Disclosure Package and the Final Prospectus.
(aa) No labor problem or dispute
with the employees of the Partnership or any of its Subsidiaries
exists or, to the Partnership’s knowledge, is threatened or
imminent, that would reasonably be expected to have a Material
Adverse Effect.
(bb) The Partnership and the
Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are
engaged; all policies of insurance and fidelity or surety bonds
insuring the Partnership or any of the Subsidiaries or their
respective businesses, assets, employees, officers and directors
are in full force and effect; the Partnership and the Subsidiaries
are in compliance with the terms of such policies and instruments
in all material respects; and there are no claims by the
Partnership or any of the Subsidiaries under any such policy or
instrument as to which any insurance company is denying liability
or defending under a reservation of rights clause; neither the
Partnership nor any such Subsidiary has been refused any insurance
coverage sought or applied for; and neither the Partnership nor any
such Subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not
reasonably be expected to have a Material Adverse
Effect.
(cc) No Subsidiary is currently
prohibited, directly or indirectly, from paying any dividends or
distributions to the Partnership, from repaying to the Partnership
any loans or advances to such Subsidiary from the Partnership or
from transferring any of such Subsidiary’s property or assets
to the Partnership or any other Subsidiary of the Partnership,
except as set forth in Section 7.5 of the Partnership’s
five-year $750 million amended and restated revolving credit
agreement dated as of March 30, 2006 and in Section 7.5
of the Partnership’s $1.1 billion 364-day credit agreement
dated as of April 6, 2006 and except for such prohibitions
mandated by the laws of each such Subsidiary’s state of
formation and the terms of any such Subsidiaries’ governing
instruments.
(dd) The Partnership and its
Subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses, except for such licenses, certificates, permits and
other authorizations that, if not obtained, would not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect, and neither the Partnership nor any
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such Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to have a Material Adverse
Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus.
(ee) The Partnership and each of its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Since
the date of the most recent audited balance sheet of the
Partnership and its consolidated subsidiaries audited by KPMG LLP
and reviewed by the board of directors of the general partner of
the Partnership, (i) the Partnership has not been advised of
(A) any significant deficiencies in the design or operations
of internal control over financial reporting that could adversely
affect the ability of the Partnership and each of its subsidiaries
to record, process, summarize and report financial data, or any
material weaknesses in internal control over financial reporting
and (B) any fraud, whether or not material, that involves
management or other employees who have a significant role in the
internal control over financial reporting of the Partnership and
each of its subsidiaries, and (ii) there have been no changes
in internal control over financial reporting, including any
corrective actions with regard to significant deficiencies and
material weaknesses, that has materially affected, or is reasonably
likely to affect, the Partnership’s internal control over
financial reporting.
(ff) The Partnership and its
subsidiaries maintain “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e) under
the Exchange Act).
(gg) The Partnership has not taken,
directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Partnership to
facilitate the sale or resale of the Securities.
(hh) The Partnership and its
Subsidiaries (i) are in compliance with any and all applicable
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received and are
in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) have not received notice
of any actual or potential liability under any Environmental Law,
except where such non-compliance with Environmental Laws, failure
to receive or comply with required permits, licenses or other
approvals, or liability would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect, and except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus. Except as set forth in
the Disclosure Package and the Final Prospectus, neither the
Partnership nor any of the Subsidiaries has been named as a
“potentially responsible party” under the
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Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, except
(y) with respect to any matters that, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect or (z) as set forth in or contemplated in the
Disclosure Package and the Final Prospectus.
(ii) In the ordinary course of its
business, the Partnership periodically reviews the effect of
Environmental Laws on the business, operations and properties of
the Partnership and the Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such
review, the Partnership has reasonably concluded that such
associated costs and liabilities would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(jj) The Partnership is in
compliance in all material respects with the applicable provisions
of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith, including Section 402
thereof related to loans to officers and directors and Sections 302
and 906 related to certifications.
(kk) Neither the Partnership nor any
of its Subsidiaries nor, to the Partnership’s knowledge, any
director, officer, agent, or employee of the Partnership or any of
its Subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the
FCPA, and the Partnership and its Subsidiaries have instituted and
maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance
therewith.
(ll) The operations of the
Partnership and its Subsidiaries are and have been conducted in
compliance in all material respects with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, and the
money laundering statutes of all applicable jurisdictions
(collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the
Partnership or any of its Subsidiaries with respect to the Money
Laundering Laws is pending or, to the Partnership’s
knowledge, threatened.
(mm) Neither the Partnership nor any
of its Subsidiaries nor, to the Partnership’s knowledge, any
director, officer, agent, or employee of the Partnership or any of
its Subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and the Partnership will
not directly or indirectly use the proceeds of the offering, or
lend, contribute or otherwise make available such proceeds to any
Subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
(nn) Except as disclosed in the
Disclosure Package and the Final Prospectus, the Partnership
(i) does not have any material lending or other relationship
with any bank or lending affiliate of Citigroup Global Markets
Holdings Inc. and (ii) does not intend to use any of the
proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any affiliate of Citigroup Global Markets
Holdings Inc.
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(oo) None of the following events
has occurred or exists: (i) a failure to fulfill the
obligations, if any, under the minimum funding standards of
Section 302 of the United States Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), and the
regulations and published interpretations thereunder with respect
to a Plan, determined without regard to any waiver of such
obligations or extension of any amortization period; (ii) an
audit or investigation by the Internal Revenue Service, the U.S.
Department of Labor, the Pension Benefit Guaranty Corporation or
any other federal or state governmental agency or any foreign
regulatory agency with respect to the employment or compensation of
employees by any of the Partnership or any of its Subsidiaries that
would reasonably be expected to have a Material Adverse Effect;
(iii) any breach of any contractual obligation, or any
violation of law or applicable qualification standards, with
respect to the employment or compensation of employees by the
Partnership or any of its Subsidiaries that would reasonably be
expected to have a Material Adverse Effect. None of the following
events has occurred or is reasonably likely to occur: (i) a
material increase in the aggregate amount of contributions required
to be made to all Plans in the current fiscal year of the
Partnership and its Subsidiaries compared to the amount of such
contributions made in the most recently completed fiscal year of
the Partnership and its Subsidiaries; (ii) a material increase
in the “accumulated post-retirement benefit
obligations” (within the meaning of Statement of Financial
Accounting Standards 106) of the Partnership and its Subsidiaries
compared to the amount of such obligations in the most recently
completed fiscal year of the Partnership and its Subsidiaries;
(iii) any event or condition giving rise to a liability under
Title IV of ERISA that would reasonably be expected to have a
Material Adverse Effect; or (iv) the filing of a claim by one
or more employees or former employees of the Partnership or any of
its Subsidiaries related to their employment that would reasonably
be expected to have a Material Adverse Effect. For purposes of this
paragraph, the term “Plan” means a plan (within the
meaning of Section 3(3) of ERISA) subject to Title IV of ERISA
with respect to which the Partnership or any of its Subsidiaries
may have any liability.
(pp) The Subsidiaries listed on
Annex A attached hereto are the only “significant
subsidiaries” of the Partnership (as defined by Rule 1-02 of
Regulation S-X, except determined as of June 30,
2006).
(qq) The Partnership and its
Subsidiaries own, possess, license or have other rights to use, on
reasonable terms, all material patents, patent applications, trade
and service marks, trade and service mark registrations, trade
names, copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the
“Intellectual Property”) necessary for the conduct of
the Partnership’s business as now conducted or as proposed in
the Final Prospectus to be conducted, except for failures of
ownership or use that would not reasonably be expected to have a
Material Adverse Effect. Additionally, (a) to the
Partnership’s knowledge, there are no rights of third parties
to any such Intellectual Property; (b) to the
Partnership’s knowledge, there is no material infringement by
third parties of any such Intellectual Property; (c) there is
no pending or, to the Partnership’s knowledge, threatened
action, suit, proceeding or claim by others challenging the
Partnership’s rights in or to any such Intellectual Property;
and (d) to the Partnership’s knowledge, there is no
pending or threatened action, suit, proceeding or claim by others
that the Partnership infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of
others.
11
Any certificate signed by or on
behalf of the Partnership and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the
Securities and pursuant to the terms of this Agreement shall be
deemed a representation and warranty by the Partnership, as to
matters covered thereby, to each Underwriter.
2. Purchase and Sale .
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Issuers agree
to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Issuers, at the purchase
price set forth in Schedule I hereto the principal amount of the
Securities set forth opposite such Underwriter’s name in
Schedule II hereto.
3. Delivery and Payment .
Delivery of and payment for the Securities shall be made on the
date and at the time specified in Schedule I hereto or at such time
on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement between the Representatives
and the Partnership or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being
herein called the “Closing Date”). Delivery of the
Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Partnership by wire transfer
payable in same-day funds to an account specified by the
Partnership. Delivery of the Securities shall be made through the
facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
4. Offering by Underwriters .
The several Underwriters propose to offer the Securities for sale
to the public as set forth in the Final Prospectus.
5. Agreements . The Issuers
agree with the several Underwriters that:
(a) Prior to the termination of the
offering of the Securities, the Partnership will not file any
amendment of the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Prospectus) to the Base
Prospectus unless the Partnership has furnished you a copy for your
review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object, unless, in
the judgment of counsel to the Partnership, such filing is required
by applicable law. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to
Rule 430B, or filing of the Final Prospectus is otherwise required
under Rule 424(b), the Partnership will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed in a
form approved by the Representatives with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Partnership will
promptly advise the Representatives (i) when the Final
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b),
(ii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been filed or become
12
effective, (iii) of any request
by the Commission or its staff for any amendment of the
Registration Statement or for any supplement to the Final
Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any notice
objecting to its use or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the
Partnership of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or
the institution or threatening of any proceeding for such purpose.
The Partnership will use its best efforts to prevent the issuance
of any such stop order or the occurrence of any such suspension or
objection to the use of the Registration Statement and, upon such
issuance, occurrence or notice of objection, to promptly use its
best efforts to obtain the withdrawal of such stop order or relief
from such occurrence or objection, including, if necessary, by
filing an amendment to the Registration Statement or a new
registration statement and using its best efforts to have such
amendment or new registration statement declared effective as soon
as practicable.
(b) To prepare a final term sheet,
containing solely a description of final terms of the Securities
and the offering thereof, in a form approved by the Representatives
and attached as Schedule IV hereto and to file such term sheet
pursuant to Rule 433(d) within the time required by such
Rule.
(c) If, at any time prior to the
filing of the Final Prospectus pursuant to Rule 424(b), any event
occurs as a result of which the Disclosure Package would include
any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light
of the circumstances under which they were made, not misleading,
the Partnership will (i) notify promptly the Representatives
so that any use of the Disclosure Package may cease until it is
amended or supplemented; (ii) amend or supplement the
Disclosure Package to correct such statement or omission; and
(iii) supply any amendment or supplement to you in such
quantities as you may reasonably request.
(d) If, at any time when a
prospectus relating to the Securities is required to be delivered
under the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172), any event occurs as a
result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the
light of the circumstances under which they were made at such time
not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or
supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, including in
connection with use or delivery of the Final Prospectus, the
Partnership promptly will (i) notify the Representatives of
any such event, (ii) prepare and file with the Commission,
subject to the second sentence of Section 5(a), an amendment
or supplement or new registration statement which will correct such
statement or omission or effect such compliance, (iii) use its
best efforts to have any amendment to the Registration Statement or
new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Final
Prospectus and (iv) supply any supplemented Final Prospectus
to you in such quantities as you may reasonably request.
13
(e) As soon as practicable, the
Partnership will make generally available, via the
Commission’s Electronic Data Gathering, Analysis and
Retrieval (EDGAR) System, to its security holders and to the
Representatives an earnings statement or statements of the
Partnership and its subsidiaries (which need not be audited) which
will satisfy the provisions of Section 11(a) of the Act,
including, at the option of the Partnership, Rule 158.
(f) The Partnership will furnish or
otherwise make available to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter
or dealer may be required by the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as
many copies of each Preliminary Prospectus, the Final Prospectus
and each Issuer Free Writing Prospectus and any supplement thereto
as the Representatives may reasonably request. The Partnership will
pay the expenses of printing or other production of all documents
relating to the offering (other than internal sales memoranda
prepared by any of the Underwriters).
(g) The Partnership will arrange, if
necessary, for the qualification of the Securities for sale under
the laws of such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications in effect
so long as reasonably required for the distribution of the
Securities and will pay any fee of the NASD in connection with its
review of the offering; provided that in no event shall the
Issuers be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(h) The Partnership agrees that,
unless it has or shall have obtained the prior written consent of
the Representatives, and each Underwriter, severally and not
jointly, agrees with the Partnership that, unless it has or shall
have obtained, as the case may be, the prior written consent of the
Partnership, it has not made and will not make any offer relating
to the Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a Free Writing
Prospectus required to be filed by the Partnership with the
Commission or retained by the Partnership under Rule 433, other
than a Free Writing Prospectus containing the information contained
in the final term sheet prepared and filed pursuant to
Section 5(b) hereto; provided that the prior written
consent of the parties hereto shall be deemed to have been given in
respect of the Free Writing Prospectuses included in Schedule III
hereto. Any such Free Writing Prospectus consented to by the
Representatives or the Partnership is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Partnership
agrees that (x) it has treated and will treat, as the case may
be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus and (y) it has complied and will comply, as
applicable and as the case may be, with the requirements of Rules
164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission,
legending and record keeping.
14
(i) The Partnership will not,
without the prior written consent of Citigroup Global Markets Inc.,
offer, sell, contract to sell, pledge, or otherwise dispose of (or
enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Partnership or any affiliate of the
Partnership or any person in privity with the Partnership or any
affiliate of the Partnership), directly or indirectly, including
the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the
Exchange Act, any debt securities issued or guaranteed by the
Partnership (other than the Securities) or publicly announce an
intention to effect any such transaction, until the Business Day
set forth on Schedule I hereto.
6. Conditions to the Obligations
of the Underwriters . The obligations of the Underwriters to
purchase the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Issuers contained
herein as of the Execution Time and the Closing Date, to the
accuracy of the statements of the Partnership made in any
certificates pursuant to the provisions hereof, to the performance
by the Issuers of its obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus, and any
supplement thereto, shall have been filed in the manner and within
the time period required by Rule 424(b); the final term sheet
contemplated by Section 5(b) hereto, and any other material
required to be filed by the Partnership pursuant to Rule 433(d)
under the Act, shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433;
and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued
and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Partnership shall have
requested and caused Andrews Kurth LLP, counsel for the
Partnership, to have furnished to the Representatives its opinion,
dated the Closing Date and addressed to the Representatives, in
substantially the form of Exhibit A hereto.
(c) The Partnership shall have
requested and caused Gable & Gotwals, counsel for the
Partnership, to have furnished to the Representatives its opinion,
dated the Closing Date and addressed to the Representatives, in
substantially the form of Exhibit B hereto.
(d) The Representatives shall have
received from Shearman & Sterling LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and
addressed to the Representatives, with respect to the issuance and
sale of the Securities, the Indenture, the Registration Statement,
the Disclosure Package, the Final Prospectus (together with any
supplement thereto) and other related matters as the
Representatives may reasonably require, and the Partnership shall
have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such
matters.
15
(e) The Partnership shall have
furnished to the Representatives a certificate of the Partnership,
signed by the Chairman of the Boa
