|
Exhibit 1.1
EXECUTION
VERSION
ONEOK P
ARTNERS , L.P.
2,500,000 Common
Units
Representing Limited Partner
Interests
U NDERWRITING
A GREEMENT
March 11, 2008
U NDERWRITING
A GREEMENT
March 11,
2008
UBS Securities LLC
Citigroup Global Markets Inc.
Wachovia Capital Markets, LLC
as Managing
Underwriters
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
ONEOK Partners, L.P., a
Delaware limited partnership (the “ Partnership
”), proposes to issue and sell to the underwriters named in
Schedule A annexed hereto (the “ Underwriters
”), for whom you are acting as representatives (the “
Representatives ”), an aggregate of 2,500,000 common
units (the “ Firm Units ”), representing limited
partnership interests in the Partnership (the “ Units
”). In addition, solely for the purpose of covering
over-allotments, the Partnership proposes to grant to the
Underwriters the option to purchase from the Partnership up to an
additional 375,000 Units (the “ Additional Units
”). The Firm Units and the Additional Units are hereinafter
collectively sometimes referred to as the “ Offered
Units .” The Offered Units are described in the
Prospectus which is referred to below. ONEOK Partners GP, L.L.C., a
Delaware limited liability company and the general partner of the
Partnership is referred to herein as the “ General
Partner ”.
The Partnership has prepared
and filed, in accordance with the provisions of the Securities Act
of 1933, as amended, and the rules and regulations thereunder
(collectively, the “ Act ”), with the Securities
and Exchange Commission (the “ Commission ”) a
registration statement on Form S-3ASR (File No. 333-137419)
under the Act (the “ registration statement ”),
including a prospectus, which registration statement incorporates
by reference certain documents which the Partnership has filed, or
will file, in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the “ Exchange Act ”).
Such registration statement has become effective under the
Act.
Except where the context
otherwise requires, “ Registration Statement ,”
as used herein, means the registration statement, as amended at the
time of such registration statement’s effectiveness for
purposes of Section 11 of the Act, as such section applies to
the respective Underwriters (the “ Effective Time
”), including (i) all documents filed as a part thereof
or incorporated or deemed to be incorporated by reference therein
and (ii) any information contained or incorporated by
reference in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Act, to the extent such information is
deemed, pursuant to Rule 430B or Rule 430C under the Act, to be
part of the registration statement at the Effective
Time.
The Partnership has furnished
to you, for use by the Underwriters and by dealers in connection
with the offering of the Offered Units, copies of one or more
preliminary prospectus supplements, and the documents incorporated
by reference therein, relating to the
Offered Units. Except where the context
otherwise requires, “ Pre-Pricing Prospectus ,”
as used herein, means each such preliminary prospectus supplement,
in the form so furnished, including any basic prospectus (whether
or not in preliminary form) furnished to you by the Partnership and
attached to or used with such preliminary prospectus supplement.
Except where the context otherwise requires, “ Basic
Prospectus ,” as used herein, means any such basic
prospectus and any basic prospectus furnished to you by the
Partnership and attached to or used with the Prospectus Supplement
(as defined below).
Except where the context
otherwise requires, “ Prospectus Supplement ,”
as used herein, means the final prospectus supplement, relating to
the Offered Units, filed by the Partnership with the Commission
pursuant to Rule 424(b) under the Act on or before the second
business day after the date hereof (or such earlier time as may be
required under the Act), in the form furnished by the Partnership
to you for use by the Underwriters and by dealers in connection
with the offering of the Offered Units.
Except where the context
otherwise requires, “ Prospectus ,” as used
herein, means the Prospectus Supplement together with the Basic
Prospectus attached to or used with the Prospectus
Supplement.
“ Permitted Free
Writing Prospectuses ,” as used herein, means the
documents listed on Schedule B attached hereto and each
“road show” (as defined in Rule 433 under the Act), if
any, related to the offering of the Offered Units contemplated
hereby that is a “written communication” (as defined in
Rule 405 under the Act). The Underwriters have not offered or sold
and will not offer or sell, without the Company’s consent,
any Offered Units by means of any “free writing
prospectus” (as defined in Rule 405 under the Act) that is
required to be filed by the Underwriters with the Commission
pursuant to Rule 433 under the Act, other than a Permitted Free
Writing Prospectus.
“ Disclosure
Package ,” as used herein, means any Pre-Pricing
Prospectus or Basic Prospectus, in either case together with any
combination of one or more of the Permitted Free Writing
Prospectuses, if any, and the information included in Schedule
C hereto.
Any reference herein to the
registration statement, the Registration Statement, any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement,
the Prospectus or any Permitted Free Writing Prospectus shall be
deemed to refer to and include the documents, if any, incorporated
by reference, or deemed to be incorporated by reference, therein
(the “ Incorporated Documents ”), including,
unless the context otherwise requires, the documents, if any, filed
as exhibits to such Incorporated Documents. Any reference herein to
the terms “ amend ,” “ amendment
” or “ supplement ” with respect to the
Registration Statement, any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act on or
after the initial effective date of the Registration Statement, or
the date of such Basic Prospectus, such Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or such Permitted Free
Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
- 2 -
As used in this Agreement,
“ business day ” shall mean a day on which the
New York Stock Exchange (the “ NYSE ”) is open
for trading. The terms “herein,” “hereof,”
“hereto,” “hereinafter” and similar terms,
as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph,
sentence or other subdivision of this Agreement. The term
“or,” as used herein, is not exclusive.
Concurrent with the issue and
sale of the Offered Units by the Partnership pursuant to the terms
of this Agreement, the Partnership is issuing and selling to ONEOK,
Inc., 5,400,000 Units (the “ Private Units ”)
pursuant to the terms of a common unit purchase agreement, dated as
of the date hereof, between the Partnership and ONEOK, Inc. (the
“ Private Placement ”).
The Partnership and the
Underwriters agree as follows:
1. Sale and Purchase .
Upon the basis of the representations and warranties and subject to
the terms and conditions herein set forth, the Partnership agrees
to issue and sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from
the Partnership the number of Firm Units set forth opposite the
name of such Underwriter in Schedule A attached hereto,
subject to adjustment in accordance with Section 8 hereof, in each
case at a purchase price of $56.15 per Unit. The Partnership is
advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Units as
soon after the effectiveness of this Agreement as in your judgment
is advisable and (ii) initially to offer the Firm Units upon
the terms set forth in the Prospectus. You may from time to time
increase or decrease the public offering price after the initial
public offering to such extent as you may determine.
In addition, the Partnership
hereby grants to the several Underwriters the option (the “
Over-Allotment Option ”) to purchase, and upon the
basis of the representations and warranties and subject to the
terms and conditions herein set forth, the Underwriters shall have
the right to purchase, severally and not jointly, from the
Partnership, ratably in accordance with the number of Firm Units to
be purchased by each of them, all or a portion of the Additional
Units as may be necessary to cover over-allotments made in
connection with the offering of the Firm Units, at the same
purchase price per unit to be paid by the Underwriters to the
Partnership for the Firm Units. The Over-Allotment Option may be
exercised by UBS Securities LLC (“ UBS ”) on
behalf of the several Underwriters at any time and from time to
time on or before the thirtieth day following the date of the
Prospectus Supplement, by written notice to the Partnership. Such
notice shall set forth the aggregate number of Additional Units as
to which the Over-Allotment Option is being exercised and the date
and time when the Additional Units are to be delivered (any such
date and time being herein referred to as an “ additional
time of purchase ”); provided , however ,
that no additional time of purchase shall be earlier than the
“time of purchase” (as defined below) nor earlier than
the second business day after the date on which the Over-Allotment
Option shall have been exercised nor later than the tenth business
day after the date on which the Over-Allotment Option shall have
been exercised. The number of Additional Units to be sold to each
Underwriter shall be the number which bears the same proportion to
the aggregate number of Additional Units being purchased as the
number of Firm Units set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total number
of Firm Units (subject, in each case, to such adjustment as UBS may
determine to eliminate fractional common units), subject to
adjustment in accordance with Section 8 hereof.
- 3 -
2. Payment and
Delivery . Payment of the purchase price for the Firm Units
shall be made to the Partnership by Federal Funds wire transfer
against delivery of the certificates for the Firm Units to you
through the facilities of The Depository Trust Company (“
DTC ”) for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00
A.M., New York City time, on March 14, 2008 (unless another
time shall be agreed to by you and the Partnership or unless
postponed in accordance with the provisions of Section 8 hereof).
The time at which such payment and delivery are to be made is
hereinafter sometimes called the “ time of purchase
.” Electronic transfer of the Firm Units shall be made to you
at the time of purchase in such names and in such denominations as
you shall specify.
Payment of the purchase price
for the Additional Units shall be made at the additional time of
purchase in the same manner and at the same office as the payment
for the Firm Units. Electronic transfer of the Additional Units
shall be made to you at the additional time of purchase in such
names and in such denominations as you shall specify.
Deliveries of the documents
described in Section 6 hereof with respect to the purchase of the
Offered Units shall be made at the offices of Shearman &
Sterling LLP at 599 Lexington Avenue, New York, New York, at 9:00
A.M., New York City time, on the date of the closing of the
purchase of the Firm Units or the Additional Units, as the case may
be.
3. Representations and
Warranties of the Partnership . The Partnership represents and
warrants to and agrees with each of the Underwriters
that:
(a) The Registration
Statement has heretofore become effective under the Act; no stop
order of the Commission preventing or suspending the use of any
Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing
Prospectus, or the effectiveness of the Registration Statement, has
been issued, and no proceedings for such purpose have been
instituted or, to the Partnership’s knowledge, are
contemplated by the Commission;
(b) the Registration
Statement complied when it became effective, complies as of the
date hereof and, as amended or supplemented, at the time of
purchase, each additional time of purchase, if any, and at all
times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of
Offered Units, will comply, in all material respects, with the
requirements of the Act; the conditions to the use of Form S-3 in
connection with the offering and sale of the Offered Units as
contemplated hereby have been satisfied; the Registration Statement
constitutes an “automatic shelf registration statement”
(as defined in Rule 405 under the Act); the Partnership has not
received, from the Commission, a notice, pursuant to Rule
401(g)(2), of objection to the use of the automatic shelf
registration statement form; as of the determination date
applicable to the Registration Statement (and any amendment
thereof) and the offering contemplated hereby, the Partnership is a
“well-known seasoned issuer”
- 4 -
as defined in Rule 405 under
the Act; the Registration Statement meets, and the offering and
sale of the Offered Units as contemplated hereby complies with, the
requirements of Rule 415 under the Act (including, without
limitation, Rule 415(a)(5) under the Act); the Registration
Statement did not, as of the Effective Time, 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 not misleading; each Pre-Pricing Prospectus complied, at
the time it was filed with the Commission, and complies as of the
date hereof, in all material respects with the requirements of the
Act; at no time during the period that begins on the earlier of the
date of such Pre-Pricing Prospectus and the date such Pre-Pricing
Prospectus was filed with the Commission and ends at the time of
purchase did or will any Pre-Pricing Prospectus, as then amended or
supplemented, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, and at no time during such period
did or will any Pre-Pricing Prospectus, as then amended or
supplemented, together with any combination of one or more of the
then issued Permitted Free Writing Prospectuses, if any, include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; each Basic Prospectus complied or will comply, as of
its date and the date it was or will be filed with the Commission,
complies as of the date hereof (if filed with the Commission on or
prior to the date hereof) and, at the time of purchase, each
additional time of purchase, if any, and at all times during which
a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Offered Units, will
comply, in all material respects, with the requirements of the Act;
each of the Prospectus Supplement and the Prospectus will comply,
as of the date that it is filed with the Commission, the date of
the Prospectus Supplement, the time of purchase, each additional
time of purchase, if any, and at all times during which a
prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Offered Units, in all
material respects, with the requirements of the Act (in the case of
the Prospectus, including, without limitation, Section 10(a)
of the Act); at no time during the period that begins on the
earlier of the date of the Prospectus Supplement and the date the
Prospectus Supplement is filed with the Commission and ends at the
later of the time of purchase, the latest additional time of
purchase, if any, and the end of the period during which a
prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Offered Units did or
will any Prospectus Supplement or the Prospectus, as then amended
or supplemented, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; at no time during the period that
begins on the date of such Permitted Free Writing Prospectus and
ends at the time of purchase did or will any Permitted Free Writing
Prospectus include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided , however , that the
Partnership makes no representation or warranty in this Section
3(b) with respect to
- 5 -
any statement contained in
the Registration Statement, any Pre-Pricing Prospectus, the
Prospectus or any Permitted Free Writing Prospectus in reliance
upon and in conformity with information concerning an Underwriter
and furnished in writing by or on behalf of such Underwriter
through you to the Partnership expressly for use in the
Registration Statement, such Pre-Pricing Prospectus, the Prospectus
or such Permitted Free Writing Prospectus; each Incorporated
Document, at the time such document was filed with the Commission
or at the time such document became effective, as applicable,
complied, in all material respects, with the requirements of the
Exchange Act and did not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(c) prior to the execution of
this Agreement, the Partnership has not, directly or indirectly,
offered or sold any Offered Units by means of any
“prospectus” (within the meaning of the Act) or used
any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Offered Units, in each
case other than the Pre-Pricing Prospectuses and the Permitted Free
Writing Prospectuses, if any; the Partnership has not, directly or
indirectly, prepared, used or referred to any Permitted Free
Writing Prospectus except in compliance with Rule 163 or with Rules
164 and 433 under the Act; assuming that such Permitted Free
Writing Prospectus is so sent or given after the Registration
Statement was filed with the Commission (and after such Permitted
Free Writing Prospectus was, if required pursuant to Rule 433(d)
under the Act, filed with the Commission), the sending or giving,
by any Underwriter, of any Permitted Free Writing Prospectus will
satisfy the provisions of Rule 164 and Rule 433 (without reliance
on subsections (b), (c) and (d) of Rule 164); the
conditions set forth in one or more of subclauses (i) through
(iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and
the registration statement relating to the offering of the Offered
Units contemplated hereby, as initially filed with the Commission,
includes a prospectus that, other than by reason of Rule 433 or
Rule 431 under the Act, satisfies the requirements of
Section 10 of the Act; neither the Partnership nor the
Underwriters are disqualified, by reason of subsection (f) or
(g) of Rule 164 under the Act, from using, in connection with
the offer and sale of the Offered Units, “free writing
prospectuses” (as defined in Rule 405 under the Act) pursuant
to Rules 164 and 433 under the Act; the Partnership is not an
“ineligible issuer” (as defined in Rule 405 under the
Act) as of the eligibility determination date for purposes of Rules
164 and 433 under the Act with respect to the offering of the
Offered Units contemplated by the Registration Statement; the
parties hereto agree and understand that the content of any and all
“road shows” (as defined in Rule 433 under the Act)
related to the offering of the Offered Units contemplated hereby is
solely the property of the Partnership;
(d) as of the date of this
Agreement, the Partnership has an authorized and outstanding
capitalization as set forth in the sections of the Registration
Statement, the Pre-Pricing Prospectuses and the Prospectus entitled
“Capitalization” and “Description of Common
Units” (and any similar sections or information, if any,
contained in any Permitted Free Writing Prospectus), and, as of the
time of purchase and any additional time of purchase, as the case
may be, the Partnership shall have an authorized and
- 6 -
outstanding capitalization as
set forth in the sections of the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus entitled
“Capitalization” and “Description of Common
Units” (and any similar sections or information, if any,
contained in any Permitted Free Writing Prospectus), except for
such adjustments as are necessary to reflect (x) the Private
Units sold in the Private Placement and (y) the offer and sale
of the Firm Units in the case of any additional time of
purchase;
(e) as of December 31,
2007, the limited partners of the Partnership held limited partner
interests in the Partnership aggregating a 98.0% Partnership
Interest (as defined in the Third Amended and Restated Agreement of
Limited Partnership of the Partnership, as amended (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 Units and
36,494,126 outstanding Class B Units (collectively, the “
Limited Partner Units ”); as of the time of purchase
and each additional time of purchase, if any, 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 Delaware Revised Uniform Limited Partnership Act (the
“ DRULPA ”));
(f) the Partnership has been
duly formed and is validly existing under the DRULPA and each of
its “significant subsidiaries” (as defined in Rule 1-02
of Regulation S-X) (the “ Subsidiaries ”) has
been duly formed, is validly existing as a corporation, limited
liability company or limited partnership, as the case may be, and
is in good standing under the laws of the jurisdiction in 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 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;
(g) 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
- 7 -
case of any Subsidiary that
is a limited partnership, except as such nonassessability may be
affected by Sections 17-303, 17-607 and 17-804 of the DRULPA and
matters included in such 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 Prospectus;
(h) the Offered Units have
been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and
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) and free of statutory and
contractual preemptive rights, resale rights, rights of first
refusal and similar rights; the Offered Units, when issued and
delivered against payment therefor as provided herein, will be free
of any restriction upon the voting or transfer thereof pursuant to
the Partnership’s Partnership Agreement or any agreement or
other instrument to which the Partnership is a party; and the
statements under the caption “Description of Common
Units” in the Basic Prospectus and contained or incorporated
by reference in the Registration Statement, insofar as such
statements summarize certain provision of documents referred to
therein, fairly summarize such provisions in all material
respects;
(i) the Units, including the
Offered Units, conform in all material respects to the description
thereof, if any, contained or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any; and
the certificates for the Offered Units are in due and proper
form;
(j) this Agreement has been
duly authorized, executed and delivered by or on behalf of the
Partnership;
(k) 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
Partnership to perform its obligations under this
Agreement;
(l) neither the issuance and
sale of the Offered Units nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof
- 8 -
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;
(m) 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 (ii) such as may be required under the blue
sky laws of any jurisdiction or the by-laws and rules of the
Financial Industry Regulatory Authority (“ FINRA
”) in connection with the purchase and distribution by the
Underwriters of the Offered Units in the manner contemplated herein
and in the Disclosure Package and the Prospectus or (iii) such
that the failure to obtain would not reasonably be expected to
result in a Material Adverse Effect;
(n) except for the obligation
of the General Partner under the Partnership Agreement to make such
investments as are required in order to maintain a 2% interest in
the Partnership, and as described in the Registration Statement
(excluding the exhibits thereto), each Pre-Pricing Prospectus and
the Prospectus, (i) no person has the right, contractual or
otherwise, to cause the Partnership to issue or sell to it Units or
other equity interests of the Partnership, (ii) no person has
any preemptive rights, resale rights, rights of first refusal or
other rights to purchase Units or other equity interests in the
Partnership and (iii) no person has the right to act as an
underwriter or as a financial advisor to the Partnership in
connection with the offer and sale of the Offered Units; no person
has the right, contractual or otherwise, to cause the Partnership
to register under the Act any Units or other equity interests in
the Partnership, or to include any such Units or other interests in
the Registration Statement or the offering contemplated
thereby;
(o) the Partnership and its
Subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses, except for such licenses, certificates, permits and
other authorizations that, if not obtained, would not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect, and neither the Partnership nor any such Subsidiary
has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit
which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be
expected to have a Material Adverse Effect, except as set forth in
or contemplated in the Disclosure Package and the
Prospectus;
- 9 -
(p) other than as set forth
in the Pre-Pricing Prospectus, the 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;
(q) KPMG LLP, whose report on
certain consolidated financial statements of the Partnership and
its consolidated subsidiaries included or incorporated by reference
in the Registration Statement, the Pre-Pricing Prospectuses and the
Prospectus, are independent registered public accountants as
required by the Act and by the rules of the Public Company
Accounting Oversight Board;
(r) PricewaterhouseCoopers
LLP, whose report on certain consolidated financial statements of
the Partnership and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement, the
Pre-Pricing Prospectuses and the Prospectus, are independent
registered public accountants as required by the Act and by the
rules of the Public Company Accounting Oversight Board;
(s) the historical
consolidated financial statements and schedules of the Partnership
and its consolidated subsidiaries included or incorporated by
reference in the Pre-Pricing Prospectus, the 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 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);
(t) the Partnership has
obtained for the benefit of the Underwriters the agreement (a
“ Lock-Up Agreement ”), in the form set forth as
Exhibit A hereto, of each party named in Exhibit A-1
hereto;
(u) the Partnership is not
and, after giving effect to the offering and sale of the Offered
Units and the application of the proceeds thereof as described in
the Disclosure Package and the Prospectus, will not be an
“investment company” as defined in the Investment
Company Act of 1940, as amended (the “ Investment Company
Act ”);
(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 transmission and
- 10 -
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, 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) 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 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 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, in the case of
each of clauses (a), (b), (c) and (d) which would be
reasonably expected to have a Material Adverse Effect;
(x) 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;
(y) 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, that would
reasonably be expected to have a Material Adverse Effect;
(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
- 11 -
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;
(z) 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 Prospectus. Neither the Partnership nor
any of the Subsidiaries has been named as a “potentially
responsible party” under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended,
except (y) with respect to any matters that, individually or
in the aggregate, would not reasonably be expected to have a
Material Adverse Effect or (z) as set forth in or contemplated
in the Disclosure Package and the Prospectus;
(aa) 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
|
