<PAGE> 1
As filed with the Securities and Exchange Commission on March 13, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ONEOK, INC.
(Exact Name of Registrant as Specified in Its Charter)
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OKLAHOMA 4924 73-1520922
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification Number)
</TABLE>
100 WEST FIFTH STREET
TULSA, OKLAHOMA 74103
(918) 588-7000
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
JIM KNEALE
VICE PRESIDENT, TREASURER AND CHIEF FINANCIAL OFFICER
ONEOK, INC.
100 WEST FIFTH STREET
TULSA, OKLAHOMA 74103
(918) 588-7000
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
Copies to:
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JOHN R. BARKER ROBERT A. YOLLES
GABLE & GOTWALS JONES, DAY, REAVIS & POGUE
100 WEST FIFTH STREET, SUITE 1000 77 WEST WACKER DRIVE
TULSA, OKLAHOMA 74103 CHICAGO, ILLINOIS 60601
(918) 585-8141 (312) 782-3939
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
The exchange will occur as soon as practicable after the effective date of this
registration statement.
---------------------
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
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If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTERED UNIT(1) PRICE(1) REGISTRATION FEE
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7.75% Notes due 2005, Series B............. $350,000,000 100% $350,000,000 $92,400
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(1) In accordance with Rule 457(f)(2) under the Securities Act of 1933, the
registration fee is based on the book value, which has been calculated as of
March 9, 2000, of the outstanding 7.75% Notes due 2005 of ONEOK, Inc. to be
canceled in the exchange transaction hereunder.
---------------------
WE HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE
NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL WE FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME
EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL
THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES
AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT CONSUMMATE THE EXCHANGE OFFER UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE NOTES AND IS NOT SOLICITING AN
OFFER TO BUY THESE NOTES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
Subject to completion dated March 13, 2000
PRELIMINARY PROSPECTUS
$350,000,000
[ONEOK]
EXCHANGE OFFER
FOR ALL OUTSTANDING
7.75% NOTES DUE 2005
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The Exchange Offer will expire at 5:00 p.m., New York City
time, on , 2000, unless we extend it.
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TERMS OF THE EXCHANGE OFFER
---------------------
We are offering to exchange registered 7.75% Notes due 2005, Series B, for
all of our old unregistered 7.75% Notes due 2005.
The terms of the new notes will be identical in all material respects to
the terms of the old notes, except that the registration rights and related
liquidated damages provisions and the transfer restrictions applicable to the
old notes will not be applicable to the new notes.
Subject to the satisfaction or waiver of specified conditions, we will
exchange the new notes for all old notes that are validly tendered and not
withdrawn prior to the expiration of the exchange offer.
Chase Bank of Texas, National Association, is serving as the exchange
agent. If you wish to tender your old notes, you must complete, execute and
deliver, among other things, a letter of transmittal to the exchange agent no
later than 5:00 p.m., New York City time, on the expiration date.
You may withdraw tenders of old notes at any time prior to the expiration
of the exchange offer.
Any outstanding notes not validly tendered will remain subject to existing
transfer restrictions.
The exchange of old notes for new notes pursuant to the exchange offer will
not be a taxable event for United States federal income tax purposes. See
"United States Federal Income Tax Considerations."
We will not receive any proceeds from the exchange offer.
The new notes will not be listed on any securities exchange or included in
any automated quotation system.
The new notes will have the same financial terms and covenants as the old
notes, and will be subject to the same business and financial risks.
SEE "RISK FACTORS" ON PAGE 9 OF THIS PROSPECTUS FOR A DISCUSSION OF RISKS
THAT YOU SHOULD CONSIDER BEFORE PARTICIPATING IN THE EXCHANGE OFFER.
---------------------
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A
PROXY.
---------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
This prospectus is dated , 2000.
<PAGE> 3
TABLE OF CONTENTS
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PAGE
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Documents Incorporated by Reference......................... i
Where You Can Find More Information......................... ii
Prospectus Summary.......................................... 1
Risk Factors................................................ 9
Forward-looking Statements.................................. 10
Use of Proceeds............................................. 11
Capitalization.............................................. 11
Selected Consolidated Financial Data........................ 12
The Exchange Offer.......................................... 14
Description of the New Notes................................ 24
United States Federal Income Tax Considerations............. 33
Plan of Distribution........................................ 36
Legal Matters............................................... 37
Experts..................................................... 37
</TABLE>
DOCUMENTS INCORPORATED BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" various documents, which means that we can disclose important
information to you by referring you to those documents. The information in the
documents incorporated by reference is considered to be part of this prospectus,
and information in documents that we file later with the Securities and Exchange
Commission will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the Securities and Exchange Commission under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934:
- our annual report on Form 10-K for the year ended August 31, 1999;
- our reports on Form 10-Q for the quarterly period ended November 30, 1999
and the transition period ended December 31, 1999; and
- our current reports on Form 8-K dated October 14, 1999, October 21, 1999,
November 8, 1999, December 15, 1999, January 7, 2000, January 24, 2000,
January 27, 2000, February 1, 2000, February 9, 2000 and February 22,
2000.
We will provide a copy of the documents we incorporate by reference in this
prospectus, at no cost, to any person who receives this prospectus. To obtain
timely delivery, requests for copies should be made no later than ,
2000. This date is five business days before the scheduled expiration of the
offer. To request a copy of any or all of these documents, you should write or
telephone us at the following address and telephone number:
ONEOK, Inc.
100 West Fifth Street
Tulsa, Oklahoma 74103
Attention: Chief Financial Officer
Telephone: (918) 588-7000
i
<PAGE> 4
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
documents with the Securities and Exchange Commission under the Exchange Act.
The Exchange Act file number for our filings is 1-13643. Our filings are
available to the public at the Securities and Exchange Commission's website at
http://www.sec.gov. You may also read and copy any document we file at the
following Securities and Exchange Commission public reference rooms:
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Judiciary Plaza Citicorp Center 7 World Trade Center
450 Fifth Street, N.W. 500 West Madison Street Suite 1300
Washington, D.C. 20549 Chicago, Illinois 60661 New York, New York 10048
</TABLE>
You may obtain information regarding the operation of the Securities and
Exchange Commission's public reference rooms by calling the Securities and
Exchange Commission at 1-800-SEC-0330.
In addition, because our common stock is listed on the New York Stock
Exchange, you may read our reports, proxy statements, and other documents at the
offices of the New York Stock Exchange at 20 Broad Street, New York, New York
10005.
We have filed with the Securities and Exchange Commission a registration
statement on Form S-4 under the Securities Act of 1933, and the rules and
regulations promulgated under the Securities Act, with respect to the new notes
offered for exchange under this prospectus. This prospectus, which constitutes
part of the registration statement, does not contain all of the information set
forth in the registration statement and the attached exhibits and schedules. The
statements contained in this prospectus as to the contents of any contract,
agreement or other document that is filed as an exhibit to the registration
statement are not necessarily complete. Accordingly, each of those statements is
qualified in all respects by reference to the full text of the contract,
agreement or document filed as an exhibit to the registration statement or
otherwise filed with the Securities and Exchange Commission.
---------------------
You should rely only on the information contained in this document or to
which we have referred you. We have not authorized anyone to provide you with
information that is different. This document may only be used where it is legal
to sell these securities. The information in this document may only be accurate
on the date of this document.
ii
<PAGE> 5
PROSPECTUS SUMMARY
This summary highlights the information contained elsewhere in or
incorporated by reference into this prospectus. Because this is only a summary,
it does not contain all of the information that may be important to you. For a
more complete understanding of this exchange offer, we encourage you to read
this entire prospectus and the documents to which we refer you.
In this prospectus, "ONEOK," "Company," "we," "our," and "us" refer to
ONEOK, Inc. and our subsidiaries.
ONEOK
GENERAL
ONEOK and its subsidiaries engage in several aspects of the energy
business. We purchase, gather, compress, transport and store natural gas for
distribution to consumers. We transport gas for others and lease pipeline
capacity to others for use in transporting gas. We drill for and produce gas and
oil, and extract and sell natural gas liquids. We also engage in the natural gas
marketing business and, to a limited extent, wholesale marketing of electricity.
As a regulated natural gas utility, we distribute natural gas to approximately
1.4 million customers in the states of Oklahoma and Kansas.
RECENT DEVELOPMENTS
ACQUISITION OF ASSETS AND OPERATIONS FROM KINDER MORGAN. On February 8,
2000, we announced that we had entered into an agreement to acquire gathering
and processing assets located in Oklahoma, Kansas and West Texas from Kinder
Morgan, Inc. We will also acquire Kinder Morgan's marketing and trading
operations, as well as some storage and transmission pipelines in the
mid-continent region. The aggregate purchase price is approximately $114 million
subject to an adjustment for working capital estimated to be approximately $120
million. We will also assume liabilities related to an operating lease for a
processing plant for which the Company anticipates it will establish a liability
for uneconomic lease obligation terms and some firm capacity lease obligations
to third parties for which the Company anticipates it will establish a liability
for out-of-market terms of those obligations. The assets and operations to be
acquired include over 12,000 miles of gas gathering and transmission pipeline
systems, six gas processing plants with capacity of 1.3 billion cubic feet per
day and 10.5 billion cubic feet of natural gas storage capacity. This
transaction is expected to close by the end of the first quarter of calendar
2000.
ACQUISITION OF ASSETS FROM DYNEGY. On February 1, 2000, we announced that
we had entered into an agreement to acquire eight gas processing plants,
interests in two other gas processing plants and approximately 7,000 miles of
gas gathering and transmission pipeline systems in Oklahoma, Kansas and Texas
from Dynegy Inc. The aggregate purchase price is approximately $308 million. The
current throughput of the assets to be acquired is approximately 240 million
cubic feet per day with an approximate capacity of 375 million cubic feet per
day. Production of natural gas liquids from the assets to be acquired averages
25,000 barrels per day. This transaction is expected to close by the end of the
first quarter of calendar 2000.
SOUTHWEST GAS TRANSACTION. In April 1999, we announced an agreement to
acquire Southwest Gas Corporation by merger for cash consideration of
approximately $917 million, plus the assumption of approximately $900 million of
related indebtedness. On January 18, 2000, we were notified by Southwest Gas
that it believed we had breached the merger agreement. Southwest Gas demanded
that the alleged breach be cured. On January 20, 2000, our board of directors
voted to terminate the merger agreement. On January 21, 2000, we advised
Southwest Gas that we did not believe we were in breach of the merger agreement
and that we had exercised our right to terminate the merger agreement. On the
same date, we filed a complaint in the U.S. District Court in Tulsa, Oklahoma
seeking a declaratory judgment that we had properly terminated the merger
agreement. On January 24, 2000, in response to our termination of the merger
agreement, Southwest Gas filed a complaint against ONEOK and Southern Union
Company in the
1
<PAGE> 6
U.S. District Court in Phoenix, Arizona. Southern Union, which had attempted to
acquire Southwest Gas, is a party or intervenor in various actions and
previously pending regulatory proceedings relating to our previously proposed
merger with Southwest Gas. These actions and proceedings are described in detail
in the documents incorporated by reference in this prospectus, as are two
shareholder derivative class actions also related to the previously proposed
merger that were filed in the District Court of Tulsa County, Oklahoma on
February 3, 2000 against our board of directors. See "Documents Incorporated by
Reference."
We have denied any liability or breach with regard to the merger agreement
and the various actions and proceedings referred to above and in the documents
incorporated by reference in this prospectus. Nevertheless, we expect that these
actions and proceedings will continue for the foreseeable future. These actions
and proceedings are at a preliminary stage and, thus, it is not possible to
predict their outcome. If the complainants in any of the actions or proceedings
were to be successful in their claims against us and if substantial damages were
to be awarded, our financial condition, cash flow and results of operations
could be materially adversely affected. We intend to continue to vigorously
defend these claims.
SUMMARY OF THE TERMS OF THE EXCHANGE OFFER
Old Notes.................. On March 1, 2000, we sold in a private transaction
the old notes, which consist of $350,000,000
aggregate principal amount of our 7.75% Notes due
2005, to Banc of America Securities LLC, Banc One
Capital Markets, Inc., First Union Securities,
Inc., J.P. Morgan Securities Inc., PaineWebber
Incorporated and Salomon Smith Barney Inc. The
initial purchasers then sold the old notes to
institutional investors. Simultaneously with the
initial sale of the old notes, we entered into a
registration rights agreement with the initial
purchasers under which we agreed, among other
things, to deliver this prospectus to you and to
complete an exchange offer for the old notes. See
"Exchange Offer -- Purpose of the Exchange Offer."
The Exchange Offer; New
Notes...................... We are offering to exchange up to $350,000,000
aggregate principal amount of our 7.75% Notes due
2005, Series B, that have been registered under the
Securities Act for a like aggregate principal
amount of the old notes. The terms of the new notes
are identical in all material respects to the terms
of the old notes, except that the registration
rights and related liquidated damages provisions
and the transfer restrictions applicable to the old
notes are not applicable to the new notes.
Old notes may be tendered only in $1,000
increments. Subject to the satisfaction or waiver
of specified conditions, we will exchange the new
notes for all old notes that are validly tendered
and not withdrawn prior to the expiration of the
exchange offer. We will cause the exchange to be
effected promptly after the expiration of the
exchange offer.
Upon completion of the exchange offer, there may be
no market for the old notes, and if you failed to
exchange the old notes, you may have difficulty
selling them.
Resales of the New Notes... Based on interpretations by the staff of the
Securities and Exchange Commission, we believe that
the new notes issued in the exchange offer may be
offered for resale, resold or otherwise transferred
by you,
2
<PAGE> 7
without compliance with the registration and
prospectus delivery requirements of the Securities
Act, if you:
- acquire the new notes in the ordinary course of
your business;
- are not engaging in and do not intend to engage
in a distribution of the new notes;
- do not have an arrangement or understanding with
any person to participate in a distribution of
the new notes;
- are not an affiliate of us within the meaning of
Rule 405 under the Securities Act; and
- are not a broker-dealer that acquired the old
notes directly from us.
If any of these conditions is not satisfied and you
transfer any new notes without delivering a proper
prospectus or without qualifying for a registration
exemption, you may incur liability under the
Securities Act.
In addition, if you are a broker-dealer seeking to
receive new notes for your own account in exchange
for old notes that you acquired as a result of
market-making or other trading activities, you must
acknowledge that you will deliver this prospectus
in connection with any offer to resell, resale or
other transfer of the new notes that you receive in
the exchange offer. See "Plan of Distribution."
Expiration Date............ The exchange offer will expire at 5:00 p.m., New
York City time, on , 2000, unless we
extend it.
Withdrawal................. You may withdraw the tender of your old notes at
any time prior to the expiration of the exchange
offer. We will return to you any of your old notes
that are not accepted for exchange for any reason,
without expense to you, promptly after the
rejection of the tender or the expiration or
termination of the exchange offer.
Consequences of Failing to
Exchange Your Old Notes.... The exchange offer satisfies our obligations and
your rights under the registration rights
agreement. After the exchange offer is completed,
you will not be entitled to any registration rights
with respect to your old notes.
Therefore, if you do not exchange your old notes,
you will not be able to reoffer, resell or
otherwise dispose of your old notes unless:
- you comply with the registration and prospectus
delivery requirements of the Securities Act; or
- you qualify for an exemption from those
Securities Act requirements.
Interest on the New Notes
and the Old Notes.......... The new notes will bear interest at the annual rate
of 7.75% from March 1, 2000. Interest will be
payable semi-annually on each March 1 and September
1, commencing September 1, 2000. No interest will
be paid on the old notes following their acceptance
for exchange. See "Description of the New Notes."
3
<PAGE> 8
Conditions to the Exchange
Offer...................... The exchange offer is subject to various
conditions. We reserve the right to terminate or
amend the exchange offer at any time before the
expiration date if various specified events occur.
The exchange offer is not conditioned upon any
minimum principal amount of outstanding old notes
being tendered. See "The Exchange
Offer -- Conditions to the Exchange Offer."
Exchange Agent............. Chase Bank of Texas, National Association, is
serving as exchange agent for the exchange offer.
All executed letters of transmittal should be
directed to the exchange agent at the following
address:
By Mail: 1201 Main Street, 18th Floor, Dallas,
Texas 75202, Attn.: Frank Ivins, Personal &
Confidential
By Hand or Overnight Courier: 1201 Main Street,
18th Floor, Dallas, Texas 75202, Attn.: Frank
Ivins, Personal & Confidential
Questions and requests for assistance should be
directed to the exchange agent at (214) 672-5687.
Procedures for Tendering
Old Notes.................. If you wish to tender your old notes, you must
cause the following to be transmitted to and
received by the exchange agent no later than 5:00
p.m., New York City time, on the expiration date:
- a confirmation of a book-entry transfer of the
tendered old notes into the exchange agent's
account at DTC;
- a properly completed and duly executed letter of
transmittal in the form accompanying this
prospectus (with any required signature
guarantees) or, at the option of the tendering
holder in the case of a book-entry tender, an
agent's message in lieu of the letter of
transmittal; and
- any other documents required by the letter of
transmittal.
The New Notes are referred to as the "Exchange
Notes" in the letter of transmittal.
Guaranteed Delivery
Procedures................. If you wish to tender your old notes and you cannot
complete procedures for book-entry transfer or
cause the old notes or any other required documents
to be transmitted to and received by the exchange
agent before 5:00 p.m., New York City time, on the
expiration date, you may tender your old notes
according to the guaranteed delivery procedures
described in this prospectus under the heading "The
Exchange Offer -- Guaranteed Delivery Procedures."
Special Procedures for
Beneficial Owners.......... If you are the beneficial owner of old notes that
are registered in the name of your broker, dealer,
commercial bank, trust company or other nominee,
and you wish to participate in the exchange offer,
you should promptly contact the person in whose
name your outstanding old notes are registered and
instruct that person to tender your old notes on
your behalf. See "The Exchange Offer -- Procedures
for Tendering."
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Representations of
Tendering Holders.......... By tendering old notes pursuant to the exchange
offer, you will, in addition to other customary
representations, represent to us that you:
- are not an affiliate of us;
- are not a broker-dealer tendering old notes
acquired directly from us;
- are acquiring the new notes in the ordinary
course of business;
- are not engaging in and do not intend to engage
in a distribution of the new notes;
- have no arrangement or understanding with any
person to participate in the distribution of the
new notes; and
- acknowledge that if you are deemed to have
participated in the exchange offer for the
purpose of distributing the new notes, you will
comply with the registration and prospectus
delivery requirements of the Securities Act.
Acceptance of Old Notes and
Delivery of New Notes...... Subject to the satisfaction or waiver of the
conditions to the exchange offer, we will accept
for exchange any and all old notes that are
properly tendered and not withdrawn prior to 5:00
p.m., New York City time, on the expiration date.
We will cause the exchange to be effected promptly
after the expiration of the exchange offer.
United States Federal
Income Tax
Considerations............. The exchange of old notes for new notes pursuant to
the exchange offer generally will not be a taxable
event for United States federal income tax
purposes. See "United States Federal Income Tax
Considerations."
Appraisal or Dissenters'
Rights..................... You will have no appraisal or dissenters' rights in
connection with the exchange offer.
Use of Proceeds............ We will not receive any proceeds from the issuance
of new notes pursuant to the exchange offer. We
will pay expenses incident to the exchange offer to
the extent indicated in the registration rights
agreement.
SUMMARY OF THE TERMS OF THE NEW NOTES
The terms of the new notes will be identical in all material respects to
the terms of the old notes, except that the registration rights and related
liquidated damages provisions and the transfer restrictions applicable to the
old notes are not applicable to the new notes. The new notes will evidence the
same debt as the old notes. The new notes and the old notes will be governed by
the same indenture. For more complete information about the new notes, see the
"Description of the New Notes" section of this prospectus.
Issuer..................... ONEOK, Inc.
Aggregate Amount........... $350 million principal amount of 7.75% Notes due
2005, Series B.
Maturity................... The new notes will mature on March 1, 2005.
Interest Rate.............. The new notes will bear interest at the annual rate
of 7.75%.
5
<PAGE> 10
Interest Payment Dates..... We will pay interest on the new notes semi-annually
on March 1 and September 1, beginning September 1,
2000.
Optional Redemption........ We may redeem all or part of the new notes at our
option, on at least 30 days' notice, at the
redemption prices determined as described under
"Description of the New Notes -- Optional
Redemption," plus any accrued and unpaid interest
to the date fixed for redemption.
Ranking.................... The new notes will be general unsecured obligations
of ours. The new notes will rank equal in right of
payment with all of our other unsubordinated
indebtedness and senior in right of payment to all
of our future subordinated indebtedness. The new
notes will not be guaranteed by any of our
subsidiaries.
Certain Covenants.......... The indenture governing the new notes contains
covenants that, among other things, restrict our
ability to:
- incur certain liens; and
- engage in sale and leaseback transactions.
See "Description of the New Notes -- Certain
Covenants."
Events of Default.......... The indenture describes the circumstances that
constitute events of default with respect to the
new notes. See "Description of the New
Notes -- Events of Default."
Use of Proceeds............ We will not receive any proceeds from the exchange
offer. For a description of the use of proceeds
from the offering of the old notes, see "Use of
Proceeds."
Form of the New Notes...... The new notes will be represented by one or more
permanent global securities in registered form
deposited with Chase Bank of Texas, National
Association, as custodian, for the benefit of DTC.
You will not receive notes in registered form
unless one of the events set forth under the
heading "Description of the New
Notes -- Book-Entry, Only Issuance -- The
Depository Trust Company" occurs. Instead,
beneficial interests in the new notes will be shown
on, and transfers of these interests will be
effected only through, records maintained in
book-entry form by DTC with respect to its
participants.
Absence of a Public Market
for the New Notes.......... There has been no public market for the old notes,
and no active public market for the new notes is
currently anticipated. We do not intend to apply
for a listing of the new notes on any securities
exchange or inclusion in any automated quotation
system. We cannot make any assurances regarding the
liquidity of the market for the new notes, the
ability of holders to sell their new notes or the
price at which holders may sell their new notes.
See "Plan of Distribution."
Trustee.................... Chase Bank of Texas, National Association, is
serving as the trustee under the indenture.
HOW TO CONTACT US
ONEOK is the successor to a company founded in 1906 as Oklahoma Natural Gas
Company and is incorporated in the state of Oklahoma. Our principal executive
offices are located at 100 West Fifth Street, Tulsa, Oklahoma 74103. Our
telephone number is (918) 588-7000. Our website address is http://www.oneok.com.
The information in our website is not incorporated by reference in this
prospectus.
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SUMMARY CONSOLIDATED FINANCIAL DATA
We derived the following summary consolidated statements of operations data
and consolidated balance sheet data from both our audited and unaudited
consolidated financial statements and related notes. The data do not include the
effect of the proposed Kinder Morgan or Dynegy asset acquisitions. Our unaudited
consolidated statements of operations data for the four months ended December
31, 1999 and 1998 and consolidated balance sheet data as of December 31, 1999
include all adjustments, consisting only of normal recurring adjustments, that
management considers necessary for a fair presentation of the information shown.
In October 1999, we decided to change our fiscal year-end to December 31 from
August 31. The results of operations for the four months ended December 31, 1999
are not necessarily indicative of the results of operations for any future
period.
You should read the summary consolidated financial data presented below in
conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations," our audited and unaudited consolidated financial
statements and related notes and other financial information contained in our
Annual Report on Form 10-K for the year ended August 31, 1999 and our Report on
Form 10-Q for the transition period ended December 31, 1999, which we
incorporate by reference in this prospectus. See "Documents Incorporated By
Reference."
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FOUR MONTHS ENDED
YEAR ENDED AUGUST 31, DECEMBER 31,
------------------------------ -----------------
1999 1998 1997 1999 1998
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(DOLLARS IN MILLIONS)
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CONSOLIDATED STATEMENTS OF OPERATIONS DATA:
Operating revenues............................ $1,842.8 $1,820.8 $1,161.9 $808.9 $580.7
Cost of gas................................... 1,156.0 1,220.0 725.9 523.5 368.8
-------- -------- -------- ------ ------
Net revenues................................ 686.8 600.8 436.0 285.4 211.9
-------- -------- -------- ------ ------
Operating expenses:
Operations and maintenance.................. 297.8 277.1 210.9 141.4 89.6
Depreciation, depletion and amortization.... 129.7 101.6 74.5 43.2 41.7
General taxes............................... 39.7 33.2 22.5 14.8 12.5
-------- -------- -------- ------ ------
Total operating expenses............ 467.2 411.9 307.9 199.4 143.8
-------- -------- -------- ------ ------
Operating income.................... 219.6 188.9 128.1 86.0 68.1
-------- -------- -------- ------ ------
Other income.................................. 6.6 14.6 -- -- 5.0
Interest...................................... 52.8 35.1 34.0 27.9 15.6
Income taxes.................................. 67.1 66.6 34.8 22.7 22.7
-------- -------- -------- ------ ------
Net income.................................... 106.3 101.8 59.3 35.4 34.8
Preferred stock dividends..................... 37.2 27.0 0.3 12.4 12.4
-------- -------- -------- ------ ------
Income available for common stock... $ 69.1 $ 74.8 $ 59.0 $ 23.0 $ 22.4
======== ======== ======== ====== ======
OTHER FINANCIAL DATA:
Ratio of earnings to fixed charges(1)......... 4.06x 5.50x 3.51x 2.94x 4.48x
======== ======== ======== ====== ======
Ratio of earnings to combined fixed charges
and preferred stock dividends
requirements(2)............................. 1.93x 2.52x 3.48x 1.74x 2.00x
======== ======== ======== ====== ======
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31, 1999
------------------------
ACTUAL AS ADJUSTED(3)
------- --------------
<S> <C> <C>
CONSOLIDATED BALANCE SHEET DATA (AT PERIOD END):
Working capital (deficit)................................... $(193.0) $ 154.0
Total assets................................................ 3,239.6 3,242.0
Long-term debt, less current maturities..................... 775.1 1,124.5
Total shareholders' equity.................................. 1,151.5 1,151.5
</TABLE>
- ---------------
(Footnotes on Next Page)
7
<PAGE> 12
(1) For purposes of computing the ratio of earnings to fixed charges, "earnings"
consists of net income plus fixed charges and income taxes, less
undistributed income from equity investees. "Fixed charges" consists of
interest charges, the amortization of debt discounts and issue costs and the
representative interest portion of operating leases.
(2) For purposes of computing the ratio of earnings to combined fixed charges
and preferred dividend requirements, "earnings" consists of net income plus
fixed charges and income taxes, less undistributed income from equity
investees. "Fixed charges" consists of interest charges, the amortization of
debt discounts and issue costs and the representative interest portion of
operating leases. "Preferred dividend requirements" consists of the pre-tax
preferred dividend requirement.
(3) Reflects our unaudited balance sheet data as of December 31, 1999 on an as
adjusted basis to give effect to the issuance of the old notes and the
application of the net proceeds therefrom as if that issuance had occurred
on December 31, 1999. The as adjusted data will not be materially affected
by the consummation of the exchange offer.
8
<PAGE> 13
RISK FACTORS
The new notes, like the old notes, entail risk. In deciding whether to
participate in the exchange offer, you should consider the risks associated with
the nature of our business and the risk factors relating to the exchange offer
in addition to the other information contained in this prospectus. You should
carefully consider the following factors before making a decision to exchange
your old notes for new notes. The risk factors described below are not
necessarily exhaustive, and we encourage you to perform your own investigation
with respect to the new notes and our company.
IF YOU FAIL TO EXCHANGE YOUR OLD NOTES, YOU MAY BE UNABLE TO SELL THEM.
Because we did not register the old notes under the Securities Act or any
state securities laws, nor do we intend to after the exchange offer, the old
notes may only be transferred in limited circumstances under the securities
laws. If the holders of the old notes do not exchange their notes in the
exchange offer, they lose their right to have their old notes registered under
the Securities Act, subject to certain limitations. A holder of old notes after
the exchange offer may be unable to sell its old notes.
THERE IS NO PUBLIC MARKET FOR THE NEW NOTES, SO YOU MAY BE UNABLE TO SELL THEM.
The new notes are new securities for which there is currently no market.
Consequently, the new notes will be relatively illiquid, and you may be unable
to sell them. We do not intend to apply for listing of the new notes on any
securities exchange or for the inclusion of the new notes in any automated
quotation system. Accordingly, we cannot assure you that a liquid market for the
new notes will develop.
YOU MUST TENDER THE OLD NOTES IN ACCORDANCE WITH PROPER PROCEDURES IN ORDER TO
ENSURE THE EXCHANGE WILL OCCUR.
The exchange of the old notes for the new notes can only occur if the
proper procedures, as detailed in this prospectus, are followed. The new notes
will be issued in exchange for the old notes only after timely receipt by the
exchange agent of the old notes or a book-entry confirmation, a properly
completed and executed letter of transmittal (or an agent's message in lieu
thereof) and all other required documentation. If you want to tender your old
notes in exchange for new notes, you should allow sufficient time to ensure
timely delivery. The exchange agent is not and we are not under any duty to give
you notification of defects or irregularities with respect to your tender of old
notes for exchange. Old notes that are not tendered will continue to be subject
to the existing transfer restrictions. In addition, if you are an affiliate of
ours or you tender the old notes in the exchange offer in order to participate
in a distribution of the new notes, you will be required to comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. For additional information, please refer
to the sections entitled "The Exchange Offer" and "Plan of Distribution" later
in this prospectus.
IF A MARKET DEVELOPS FOR THE NEW NOTES, THE NOTES MIGHT TRADE AT PRICES HIGHER
OR LOWER THAN THE INITIAL OFFERING PRICE OF THE NEW NOTES.
If a market develops for the new notes, they might trade at prices higher
or lower than their initial offering price. The trading price would depend on
many factors, such as prevailing interest rates, the market for similar
securities, general economic conditions and our financial condition, performance
and prospects.
9
<PAGE> 14
FORWARD-LOOKING STATEMENTS
Some of the statements contained and incorporated in this prospectus are
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. The forward-looking statements relate to
anticipated financial performance, management's plans and objectives for future
operations, business prospects, outcome of regulatory proceedings, market
conditions and other matters. The Private Securities Litigation Reform Act of
1995 provides a safe harbor for forward-looking statements in various
circumstances. The following discussion is intended to identify important
factors that could cause future outcomes to differ materially from those set
forth in the forward-looking statements.
Forward-looking statements include the items identified in the preceding
paragraph, the information concerning possible or assumed future results of
operations and other statements contained or incorporated in this prospectus
identified by words such as "anticipate," "estimate," "expect," "intend,"
"believe," "projection" or "goal."
You should not place undue reliance on the forward-looking statements. They
are based on known and unknown risks, uncertainties and other factors that may
cause our actual results, performance or achievements to be materially different
from any future results, performance or achievements expressed or implied by the
forward-looking statements. Those factors may affect our operations, markets,
products, services and prices. In addition to any assumptions and other factors
referred to specifically in connection with the forward-looking statements,
factors that could cause our actual results to differ materially from those
contemplated in any forward-looking statement include, among others, the
following:
- the effects of weather and other natural phenomena on sales and prices;
- increased competition from other energy suppliers as well as alternative
forms of energy;
- the capital intensive nature of our business;
- further deregulation, or "unbundling," of the natural gas business;
- competitive changes in the natural gas gathering, transportation and
storage business resulting from deregulation, or "unbundling;"
- the profitability of assets or businesses acquired by us;
- risks of hedging and marketing activities as a result of changes in
energy prices;
- economic climate and growth in the geographic areas in which we do
business;
- the uncertainty of gas and oil reserve estimates;
- the timing and extent of changes in commodity prices for natural gas,
electricity, crude oil and liquified petroleum gas;
- the effects of changes in governmental policies and regulatory actions,
including income taxes, environmental compliance and authorized rates;
- the results of litigation relating to our previously proposed acquisition
of Southwest Gas Corporation or to the termination of our merger
agreement with Southwest Gas; and
- the other factors listed in the reports we have filed and may file with
the Securities and Exchange Commission, which are incorporated by
reference.
Other factors and assumptions not identified above were also involved in
the making of the forward-looking statements. The failure of those assumptions
to be realized, as well as other factors, may also cause actual results to
differ materially from those projected. We have no obligation and make no
undertaking to update publicly or revise any forward-looking statements.
10
<PAGE> 15
USE OF PROCEEDS
The exchange offer is intended to satisfy our obligations under the
registration rights agreement that we entered into in connection with the
private offering of the old notes. We will not receive any cash proceeds from
the issuance of the new notes. The old notes that are surrendered in exchange
for the new notes will be retired and canceled and cannot be reissued. As a
result, the issuance of the new notes will not result in any increase or
decrease in our indebtedness. We have agreed to bear the expenses of the
exchange offer to the extent indicated in the registration rights agreement. No
underwriter is being used in connection with the exchange offer.
The net proceeds from the issuance and sale of the old notes was
approximately $347.0 million, after deduction of initial purchasers' discounts
and offering expenses paid or payable by us. We used those net proceeds to
refinance short-term borrowings. The weighted average annual interest rate of
this short-term indebtedness was 5.71% as of January 31, 2000. We expect to
incur additional short-term indebtedness to fund the acquisitions of the
operations and assets from Kinder Morgan and Dynegy that are described above
under "Prospectus Summary -- Recent Developments."
CAPITALIZATION
The following table sets forth our capitalization as of December 31, 1999
and our capitalization, as adjusted to reflect the issuance of the old notes.
The following data will not be affected by any exchange of old notes for new
notes and is qualified in its entirety by reference to, and should be read
together with, the detailed information and financial statements appearing in
the documents incorporated in this prospectus.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1999
-----------------------------------
ACTUAL AS ADJUSTED
---------------- ----------------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C>
Notes..................................................... $ -- --% $ 349.4 15.4%
Other long-term debt (excluding current portion).......... 775.1 40.2 775.1 34.0
Convertible preferred stock............................... 564.4 29.3 564.4 24.8
Common shareholders' equity............................... 587.1 30.5 587.1 25.8
-------- ----- -------- -----
Total capitalization............................ $1,926.6 100.0% $2,276.0 100.0%
======== ===== ======== =====
Short-term notes payable (including current portion of
long-term debt)......................................... $ 484.0 $ 137.0
======== ========
</TABLE>
11
<PAGE> 16
SELECTED CONSOLIDATED FINANCIAL DATA
We derived the consolidated statements of operations data for each of the
years in the three-year period ended August 31, 1999 from our consolidated
financial statements, which have been audited by KPMG LLP, our independent
auditors. The consolidated financial statements as of August 31, 1999 and 1998
and for each of the years in the three-year period ended August 31, 1999, and
the report thereon, are incorporated by reference herein. The data do not
include the effect of the proposed Kinder Morgan or Dynegy asset acquisitions.
In October 1999, we decided to change our fiscal year-end from August 31 to
December 31. We derived the consolidated statements of operations data and
consolidated balance sheet data as of and for the four months ended December 31,
1999 and 1998 from our unaudited consolidated financial statements, which
include all adjustments, consisting only of normal recurring adjustments, that
management considers necessary for a fair presentation of the information shown.
The results of operations for the four months ended December 31, 1999 are not
necessarily indicative of the results of operations for any future period.
You should read the selected consolidated financial data presented below in
conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations," our consolidated financial statements and related
notes and other financial information contained in our Annual Report on Form
10-K for the year ended August 31, 1999 and our Report on Form 10-Q for the
transition period ended December 31, 1999, which we incorporate by reference in
this prospectus. See "Documents Incorporated By Reference."
<TABLE>
<CAPTION>
FOUR MONTHS ENDED
YEAR ENDED AUGUST 31, DECEMBER 31,
------------------------------ -----------------
1999 1998 1997 1999 1998
-------- -------- -------- ------- -------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENTS OF OPERATIONS DATA:
Operating revenues............................ $1,842.8 $1,820.8 $1,161.9 $808.9 $580.7
Cost of gas................................... 1,156.0 1,220.0 725.9 523.5 368.8
-------- -------- -------- ------ ------
Net revenues................................ 686.8 600.8 436.0 285.4 211.9
-------- -------- -------- ------ ------
Operating expenses:
Operations and maintenance.................. 297.8 277.1 210.9 141.4 89.6
Depreciation, depletion and amortization.... 129.7 101.6 74.5 43.2 41.7
General taxes............................... 39.7 33.2 22.5 14.8 12.5
-------- -------- -------- ------ ------
Total operating expenses............ 467.2 411.9 307.9 199.4 143.8
-------- -------- -------- ------ ------
Operating income.................... 219.6 188.9 128.1 86.0 68.1
-------- -------- -------- ------ ------
Other income.................................. 6.6 14.6 -- -- 5.0
Interest...................................... 52.8 35.1 34.0 27.9 15.6
Income taxes.................................. 67.1 66.6 34.8 22.7 22.7
-------- -------- -------- ------ ------
Net income.................................... 106.3 101.8 59.3 35.4 34.8
Preferred stock dividends..................... 37.2 27.0 0.3 12.4 12.4
-------- -------- -------- ------ ------
Income available for common stock... $ 69.1 $ 74.8 $ 59.0 $ 23.0 $ 22.4
======== ======== ======== ====== ======
OTHER FINANCIAL DATA:
Ratio of earnings to fixed charges(1)......... 4.06x 5.50x 3.51x 2.94x 4.48x
======== ======== ======== ====== ======
Ratio of earnings to combined fixed charges
and preferred stock dividends
requirements(2)............................. 1.93x 2.52x 3.48x 1.74x 2.00x
======== ======== ======== ====== ======
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31, 1999
-------------------------
ACTUAL AS ADJUSTED(3)
-------- --------------
<S> <C> <C>
CONSOLIDATED BALANCE SHEET DATA (AT PERIOD END):
Working capital (deficit)................................... $ (193.0) $ 154.0
Total assets................................................ 3,239.6 3,242.0
Long-term debt, less current maturities..................... 775.1 1,124.5
Total shareholders' equity.................................. 1,151.5 1,151.5
</TABLE>
- ---------------
(Footnotes on Next Page)
12
<PAGE> 17
(1) For purposes of computing the ratio of earnings to fixed charges, "earnings"
consists of net income plus fixed charges and income taxes, less
undistributed income from equity investees. "Fixed charges" consists of
interest charges, the amortization of debt discounts and issue costs and the
representative interest portion of operating leases.
(2) For purposes of computing the ratio of earnings to combined fixed charges
and preferred dividend requirements, "earnings" consists of net income plus
fixed charges and income taxes, less undistributed income from equity
investees. "Fixed charges" consists of interest charges, the amortization of
debt discounts and issue costs and the representative interest portion of
operating leases. "Preferred dividend requirements" consists of the pre-tax
preferred dividend requirement.
(3) Reflects our unaudited balance sheet data as of December 31, 1999 on an as
adjusted basis to give effect to the issuance of the old notes and the
application of the net proceeds therefrom as if that issuance had occurred
on December 31, 1999. The as adjusted data will not be materially affected
by the consummation of the exchange offer.
13
<PAGE> 18
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
We initially sold the old notes in a private offering on March 1, 2000 to
Banc of America Securities LLC, Banc One Capital Markets, Inc., First Union
Securities, Inc., J.P. Morgan Securities Inc., PaineWebber Incorporated and
Salomon Smith Barney Inc. pursuant to a purchase agreement dated February 24,
2000 between us and them. These initial purchasers of the old notes resold them
to qualified institutional buyers in reliance on, and subject to the
restrictions imposed under, Rule 144A under the Securities Act. As of the date
of this prospectus, $350 million aggregate principal amount of old notes are
outstanding.
In connection with the private offering of the old notes, we entered into a
registration rights agreement dated March 1, 2000 with the initial purchasers
under which we agreed, among other things, to:
(1) file with the Securities and Exchange Commission on or before June
29, 2000 an exchange offer registration statement under the Securities Act
relating to an exchange offer for the old notes;
(2) use our reasonable best efforts to cause the exchange offer
registration statement to be declared effective under the Securities Act on
or before September 27, 2000;
(3) upon the effectiveness of the registration statement, commence the
exchange offer and offer the holders of the old notes the opportunity to
exchange their old notes for a like principal amount of new notes and to
keep the exchange offer open for not less than 20 business days (or longer
if required by applicable law) after the date on which notice of the
exchange offer is mailed to the holders of the old notes; and
(4) use our reasonable best efforts to complete the exchange offer and
issue the new notes on or prior to the date that is 35 days immediately
following the date that the exchange offer registration statement shall
have been declared effective by the Securities and Exchange Commission.
We are making this exchange offer to satisfy our obligations and your
registration rights under the registration rights agreement. If any of the
events described under (1), (2) or (4) above do not occur within the time period
required, we must pay you, as a holder of outstanding old notes, additional
interest at an annual rate of 0.5% for the first 90-day period immediately
following the failure. The additional annual interest rate will be further
increased by an additional 0.5% after the end of that 90-day period until all
registration defaults have been cured, up to a maximum additional annual
interest rate of 1%. Upon filing of the exchange offer registration statement
after June 29, 2000, the declaration of the effectiveness of the exchange offer
registration statement after September 27, 2000, or the consummation of the
exchange offer after the date that is 35 days immediately following the date
that the exchange offer registration statement is declared effective by the
Securities and Exchange Commission, as applicable, any increase in the interest
rate described in this paragraph will cease to be effective.
EFFECT OF THE EXCHANGE OFFER
Based on several no-action letters issued by the staff of the Securities
and Exchange Commission to third parties in unrelated transactions, we believe
that you may offer for resale, resell or otherwise transfer any new notes issued
to you in the exchange offer without further registration under the Securities
Act or delivery of a prospectus if you:
- are acquiring the new notes in the ordinary course of your business;
- are not participating, do not intend to participate and have no
arrangement or understanding with any person to participate, in a
distribution of the new notes;
- are not an affiliate of ours as defined in Rule 405 under the Securities
Act; and
- are not a broker-dealer who acquired old notes from us.
14
<PAGE> 19
If you do not satisfy these criteria:
- you will not be able to rely on the interpretations of the staff of the
Securities and Exchange Commission in connection with any offer for
resale, resale or other transfer of new notes; and
- you must comply with the registration and prospectus delivery
requirements of the Securities Act, or have an exemption available to
you, in connection with any offer for resale, resale or other transfer of
the new notes.
Each broker-dealer that receives new notes for its own account in exchange
for old notes it acquired as a result of market-making or other trading
activities, may be a statutory underwriter and must acknowledge that it will
deliver a prospectus in connection with any resale of its new notes. This will
not be an admission by the broker-dealer that it is an underwriter within the
meaning of the Securities Act. See "Plan of Distribution."
SHELF REGISTRATION STATEMENT
If (1) we reasonably determine that changes in law or the applicable
interpretations of the staff of the Securities and Exchange Commission do not
permit us to effect the exchange offer; (2) the exchange offer is not
consummated on or before November 1, 2000; or (3) we receive a request from any
initial purchaser with respect to any old notes held by it indicating that the
initial purchaser is not permitted pursuant to applicable law or applicable
interpretations of the staff of the Securities and Exchange Commission to
participate in the exchange offer and thereby receive new notes, we have agreed
that we will promptly notify the holders of the old notes and will, at our cost:
- cause to be filed with the Securities and Exchange Commission a shelf
registration statement relating to a shelf registration of the old notes
covering resales of the old notes;
- use our reasonable best efforts to cause the shelf registration statement
to be declared effective under the Securities Act as soon as practicable;
and
- use our reasonable best efforts to keep effective the shelf registration
statement until March 1, 2002 or until all old notes eligible to be sold
thereunder have been so sold or cease to be outstanding.
We will provide to each relevant holder of the old notes copies of the
prospectus that is a part of the shelf registration statement, notify each
holder when the shelf registration statement has become effective and take
various other actions as are required to permit unrestricted resales of the
relevant old notes. A holder of old notes that sells its old notes pursuant to
the shelf registration statement generally will be required to be named as a
selling security holder in the related prospectus and to deliver a prospectus to
purchasers, will be subject to some of the civil liability provisions under the
Securities Act in connection with those sales and will be bound by the
provisions of the registration rights agreement that are applicable to that
holder, including some indemnification and contribution obligations. In
addition, a holder of old notes will be required to deliver information to be
used in connection with the shelf registration statement in order to have that
holder's notes included in the shelf registration statement.
If the shelf registration statement is not declared effective (or shall
thereafter cease to be effective, subject to various exceptions, prior to the
earlier of March 1, 2002 and the date on which all transfer restricted old notes
have been sold thereunder) on or prior to the later of November 1, 2000 and the
60th calendar day after the publication of the change in law or interpretation,
we must pay you as a holder of outstanding old notes, additional interest at an
annual rate of 0.5% for the first 90-day period immediately following that
registration default. The additional annual interest rate will be further
increased by an additional 0.5% after the end of that period until all
registration defaults have been cured, up to a maximum additional annual
interest rate of 1%. Upon the effectiveness of the shelf registration statement
after November 1, 2000 or the 60th calendar day after the publication of the
change in law or interpretation, as applicable, any increase in the interest
rate will cease to be effective.
15
<PAGE> 20
The foregoing is a summary description of the material provisions of the
registration rights agreement. Because it is a summary, it does not include all
of the information that is included in the registration rights agreement. We
encourage you to read the entire text of the registration rights agreement
carefully because it, and not this description, defines your rights as a holder
of the old notes. The registration rights agreement is included as an exhibit to
this registration statement. You may request a copy of the registration rights
agreement at our address set forth under "Documents Incorporated by Reference."
TERMS OF THE EXCHANGE OFFER
We will accept all old notes validly tendered and not withdrawn prior to
5:00 p.m., New York City time, on the expiration date of the exchange offer. You
should read "-- Expiration Date; Extensions; Amendments" below for an
explanation of how the expiration date may be amended.
We will issue and deliver $1,000 principal amount of new notes in exchange
for each $1,000 principal amount of outstanding old notes accepted in the
exchange offer. Holders may exchange some or all of their old notes in minimum
denominations of $1,000 and integral multiples of $1,000 in excess thereof.
By tendering old notes in exchange for new notes and by signing the letter
of transmittal (or delivering an agent's message in lieu thereof), you will be
representing that, among other things:
- you are not our affiliate (as defined in Rule 405 under the Securities
Act);
- you are not a broker-dealer who acquired old notes directly from us;
- any new notes to be received by you will be acquired in the ordinary
course of your business;
- you are not engaging in and do not intend to engage in a distribution of
the new notes;
- you have no arrangement or understanding with any person to participate
in the distribution of the new notes; and
- you acknowledge that if you are deemed to have participated in the
exchange offer for the purpose of distributing the new notes, you will
comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable.
The terms of the new notes are identical in all material respects to the
terms of the old notes, except that the registration rights and related
liquidated damages provisions and the transfer restrictions applicable to the
old notes are not applicable to the new notes. The new notes will evidence the
same debt as the old notes and will be entitled to the benefits of the indenture
governing the old notes.
In connection with the exchange offer, holders of the old notes do not have
any appraisal or dissenters' rights under law or the indenture governing the old
notes.
We are sending this prospectus and the letter of transmittal to all
registered holders of old notes as of the close of business on ,
2000.
We are not conditioning the exchange offer upon the tender of any minimum
amount of old notes.
We have provided for customary conditions, which we may waive in our
discretion. See "-- Conditions of the Exchange Offer."
We may accept tendered old notes by giving oral or written notice to the
exchange agent. The exchange agent will act as your agent for the purpose of
receiving the new notes from us and delivering them to you.
You will be required to pay brokerage commissions or fees and transfer
taxes with respect to the exchange of old notes. We will pay charges and
expenses in connection with the exchange offer to the extent indicated in the
registration rights agreement.
16
<PAGE> 21
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The exchange offer will expire at 5:00 p.m., New York City time, on
, 2000, unless we, in our sole discretion, extend it. We may
extend the exchange offer at any time and from time to time by giving oral
(promptly confirmed in writing) or written notice to the exchange agent and by
making a public announcement of the extension before 9:00 a.m., New York City
time, on the next business day after the previously scheduled expiration date.
We may also accept all properly tendered old notes as of the expiration date and
extend the expiration date in respect of the remaining outstanding old notes. We
may, in our sole discretion,
- amend the terms of the exchange offer in any manner;
- delay acceptance of, or refuse to accept, any old notes not previously
accepted;
- extend the exchange offer; or
- terminate the exchange offer.
We will give prompt notice of any amendment to the registered holders of
the old notes. If we materially amend the exchange offer, we will promptly
disclose the amendment in a manner reasonably calculated to inform you of the
amendment and we will extend the exchange offer to the extent required by law.
PROCEDURES FOR TENDERING
Only a holder of old notes may tender them in the exchange offer. For
purposes of the exchange offer, the term "holder" or "registered holder"
includes any participant in DTC whose name appears on a security position
listing as a holder of old notes.
To tender in the exchange offer, you must cause the following to be
transmitted to and received by the exchange agent no later than 5:00 p.m., New
York City time, on the expiration date:
- a confirmation of the book-entry transfer of the tendered old notes into
the exchange agent's account at DTC;
- a properly completed and duly executed letter of transmittal in the form
accompanying this prospectus (with any required signature guarantees) or,
at the option of the tendering holder in the case of a book-entry tender,
an agent's message in lieu of that letter of transmittal; and
- any other documents required by the letter of transmittal.
If you wish to tender your old notes and your old notes are not available,
you cannot complete the procedures for book-entry transfer or you cannot cause
the old notes or any other required documents to be transmitted to and received
by the exchange agent before 5:00 p.m., New York City time, on the expiration
date, you may tender your old notes according to the guaranteed delivery
procedures described in this section under the heading "-- Guaranteed Delivery
Procedures."
Any beneficial owner of old notes that are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee who wishes to
participate in the exchange offer should promptly contact the person through
which it beneficially owns its old notes and instruct that person to tender old
notes on behalf of the beneficial owner. See "Instructions to Registered Holder
and/or Book-Entry Transfer Facility Participant From Owner" included with the
letter of transmittal. If the beneficial owner wishes to tender on his or her
own behalf, the owner must, prior to completing and executing the letter of
transmittal and delivering the beneficial owner's old notes, either make
appropriate arrangements to register ownership of the old notes in the owner's
name or obtain a properly completed bond power from the registered holder. The
transfer of registered ownership may take considerable time.
The tender by a holder of old notes will constitute an agreement between
the holder and us in accordance with the terms and subject to the conditions
specified in this prospectus and in the letter of
17
<PAGE> 22
transmittal. If a holder tenders less than all the old notes held, the holder
should fill in the amount of old notes being tendered in the appropriate box on
the letter of transmittal. The exchange agent will deem the entire amount of old
notes delivered to it to have been tendered unless the holder has indicated
otherwise.
The method of delivery of the letter of transmittal or agent's message and
all other required documents to the exchange agent is at your election and risk.
Instead of delivery by mail, we recommend that you use an overnight or hand
delivery service. In all cases, you should allow sufficient time to ensure
delivery to the exchange agent prior to the expiration date. Do not send your
letter of transmittal or other required documents to us.
SIGNATURE REQUIREMENTS AND SIGNATURE GUARANTEE
You must arrange for an "eligible institution" to guarantee your signature
on the letter of transmittal or a notice of withdrawal, unless the old notes are
tendered:
- by a registered holder of its old notes; or
- for the account of an eligible guarantor institution.
The following are "eligible institutions":
- a member firm of a registered national securities exchange or of the
National Association of Securities Dealers, Inc.;
- a commercial bank or trust company having an office or correspondent in
the United States; or
- an "eligible guarantor institution" within the meaning of Rule 17Ad-15
under the Exchange Act.
If a letter of transmittal is signed by a person other than the registered
holder of any old notes listed in the letter of transmittal, the old notes must
be endorsed or accompanied by a properly completed bond power and signed by the
registered holder as the registered holder's name appears on the old notes.
If trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, sign or endorse any required documents, they should so indicate when
signing and must submit evidence satisfactory to us of their authority to so act
with the letter of transmittal.
BOOK-ENTRY TRANSFER
The exchange agent will make a request promptly after the date of this
prospectus to establish an account with respect to the old notes in The
Depository Trust Company's book-entry system. Subject to the establishment of
the account, any financial institution that is a participant in DTC's system may
make book-entry delivery of old notes by causing DTC to transfer them into the
exchange agent's account with respect to the old notes. However, the exchange
agent will only exchange the old notes so tendered after a timely confirmation
of their book-entry transfer into the exchange agent's account, and timely
receipt of an agent's message and any other documents required by the letter of
transmittal.
The term "agent's message" means a message, transmitted by DTC to, and
received by, the exchange agent and forming part of the confirmation of a
book-entry transfer, which states that:
- DTC has received an express acknowledgment from a participant tendering
old notes stating that the participant agrees to participate in the
automated tender option program;
- the participant has received the letter of transmittal and agrees to be
bound by its terms; and
- we may enforce that agreement against the participant.
Although you may effect delivery of old notes through book-entry transfer
into the exchange agent's account at DTC, unless the exchange agent receives an
agent's message in compliance with the automated
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<PAGE> 23
tender option program, you must provide the exchange agent a completed and
executed letter of transmittal with any required signature guarantee (or an
agent's message in lieu thereof) and all other required documents prior to the
expiration date. If you comply with the guaranteed delivery procedures described
below, you must provide the letter of transmittal (or an agent's message in lieu
thereof) to the exchange agent within the time period provided under those
procedures. Delivery of documents to DTC does not constitute delivery to the
exchange agent.
GUARANTEED DELIVERY PROCEDURES
If you wish to tender your old notes and your old notes are not immediately
available, you cannot deliver your old notes, the letter of transmittal or any
other required documents to the exchange agent prior to the expiration date or
you cannot complete the procedure for book-entry transfer on a timely basis, you
may instead effect a tender if:
- you make the tender through an eligible guarantor institution;
- prior to the expiration date, the exchange agent receives from that
eligible guarantor institution a properly completed and duly executed
notice of guaranteed delivery (by facsimile transmittal, mail or hand
delivery) specifying the name and address of the holder and the principal
amount of your old notes tendered, stating that the tender is being made
thereby, and guaranteeing that, within three New York Stock Exchange
trading days after the expiration date, the old notes being tendered, a
properly completed and duly executed letter of transmittal or a
confirmation of a book-entry transfer into the exchange agent's account
at DTC and an agent's message and any other documents required by the
letter of transmittal, will be deposited by the eligible guarantor
institution with the exchange agent; and
- the exchange agent receives your old notes being tendered and letter of
transmittal, properly completed and duly executed, with any required
signature guarantees, or confirmation of a book-entry transfer into its
account at DTC and an agent's message and all other documents required by
the letter of transmittal within three New York Stock Exchange trading
days after the expiration date.
WITHDRAWAL OF TENDERS
Except as otherwise provided in this prospectus, you may withdraw tendered
old notes at any time before 5:00 p.m., New York City time, on the expiration
date. To do so, you must provide the exchange agent with a written or facsimile
transmission notice of withdrawal before 5:00 p.m., New York City time, on the
expiration date.
Any notice of withdrawal must:
- specify the name of the person having deposited who desires to withdraw;
- identify the old notes to be withdrawn, including the certificate numbers
and principal amount of the old notes and the name and number of the
account at DTC to be credited; and
- be signed by you in the same manner as the original signature on your
letter of transmittal (including any required signature guarantee) or be
accompanied by documents of transfer sufficient to permit the trustee to
register the transfer of the withdrawn old notes into your name or any
other name in which old notes are to be registered, if so specified.
We will determine all questions as to the validity, form and eligibility,
including time of receipt, of all withdrawal notices. Our determination will be
final and binding on all parties. We will not deem any old notes withdrawn to be
validly tendered for purposes of the exchange offer and will not issue new notes
for them unless the holder of old notes withdrawn validly retenders them. You
may retender withdrawn old notes by following one of the procedures described
above under "-- Procedures for Tendering" at any time prior to the expiration
date.
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<PAGE> 24
DETERMINATION OF VALIDITY
We will determine all questions as to the validity, form, eligibility,
including time of receipt, acceptance and withdrawal of the tendered old notes
in our sole discretion. Our determination will be final and binding. We may
reject any and all old notes which are not properly tendered or any old notes of
which our acceptance would, in our opinion or the opinion of our counsel, be
unlawful. We also may waive any irregularities or conditions of tender as to
particular old notes. Our interpretation of the terms and conditions of the
exchange offer, including the instructions in the letter of transmittal, will be
final and binding on all parties. Unless waived, you must cure any defects or
irregularities in connection with tenders of old notes within a time period
determined by us.
Although we intend to notify tendering holders of defects or irregularities
with respect to tenders of old notes, neither we nor anyone else has any duty to
do so. Neither we nor the exchange agent shall incur any liability for failure
to give that notification. Your old notes will not be deemed tendered until you
have cured or we have waived any irregularities. As soon as practicable
following the expiration date, the exchange agent will return any old notes that
we reject due to improper tender or otherwise unless you cured all defects or
irregularities or we waive them.
We reserve the right in our sole discretion:
- to purchase or make offers for any old notes that remain outstanding
subsequent to the expiration date;
- to terminate the exchange offer, as set forth in "-- Conditions of the
Exchange Offer"; and
- to the extent permitted by applicable law, to purchase old notes in the
open market, in privately negotiated transactions or otherwise.
The terms of any of those purchases or offers may differ from the terms of
the exchange offer.
CONDITIONS OF THE EXCHANGE OFFER
We will not be required to accept for exchange, or to issue new notes for,
any old notes, and we may terminate or amend the exchange offer before the
acceptance of old notes if, in our judgment, any of the following conditions has
occurred or exists or has not been satisfied:
- any action or proceeding is instituted or threatened in any court or by
or before any governmental agency with respect to the exchange offer
that, in our reasonable judgment, might materially impair our ability to
proceed with the exchange offer or materially impair the contemplated
benefits of the exchange offer to us, or any material adverse development
has occurred in any existing action or proceeding with respect to us or
any of our subsidiaries;
- any change, or any development involving a prospective change, in our
business or financial affairs or of any of our subsidiaries has occurred
that, in our reasonable judgment, might materially impair our ability to
proceed with the exchange offer or materially impair the contemplated
benefits of the exchange offer to us;
- there shall have been proposed, adopted or enacted any law, statute, rule
or regulation (or an amendment to any existing law, statute, rule or
regulation) that, in our sole judgment, might materially impair our
ability to proceed with the exchange offer or have a material adverse
effect on the contemplated benefits of the exchange offer to us;
- there shall occur a change in the current interpretation by the staff of
the Securities and Exchange Commission that permits the new notes issued
pursuant to the exchange offer in exchange for the old notes to be
offered for resale, resold and otherwise transferred by holders thereof
without compliance with the registration and prospectus delivery
provisions of the Securities Act provided that: (1) those new notes are
acquired in the ordinary course of the holders' business; (2) the holders
are not engaging in and do not intend to engage in a distribution of the
new notes and have
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<PAGE> 25
no arrangement or understanding with any person to participate in the
distribution of those new notes; (3) the holders are not our affiliates
within the meaning of Rule 405 under the Securities Act; and (4) the
holders are not broker-dealers that acquired the old notes directly from
us.
- there has occurred:
(1) any general suspension of, shortening of hours for, or limitation on
prices for, trading in securities on any national securities
exchange or in the over-the-counter market (whether or not
mandatory);
(2) any limitation by any governmental agency or authority that may
adversely affect our ability to complete the transactions
contemplated by the exchange offer;
(3) a declaration of a banking moratorium or any suspension of payments
in respect of banks by federal or state authorities in the United
States, whether or not mandatory;
(4) a commencement of a war, armed hostilities or other international or
national crisis directly or indirectly involving the United States;
(5) any limitation, whether or not mandatory, by any governmental
authority on, or other event having a reasonable likelihood of
affecting, the extension of credit by banks or other lending
institutions in the United States; or
(6) in the case of any of the foregoing existing at the time of the
commencement of the exchange offer, a material acceleration or
worsening thereof.
The conditions listed above are for our sole benefit and may be asserted by
us regardless of the circumstances giving rise to any of these conditions. We
may waive these conditions in our reasonable discretion in whole or in part at
any time and from time to time. The failure by us at any time to exercise any of
the above rights shall not be deemed a waiver of that right and that right shall
be deemed an ongoing right that may be asserted at any time and from time to
time. If we determine in our reasonable discretion that any of the conditions
are not satisfied, we may:
- refuse to accept any old notes and return any old notes that have been
tendered to the tendering holders;
- extend the exchange offer and retain all old notes tendered prior to the
expiration date of the exchange offer, subject to the rights of the
holders of the tendered old notes to withdraw those old notes; or
- waive the termination event with respect to the exchange offer and accept
the properly tendered old notes that have not been withdrawn.
If we determine that a waiver constitutes a material change in the exchange
offer, we will promptly disclose the change in a manner reasonably calculated to
inform the holders of the change and we will extend the exchange offer to the
extent required by law.
ACCEPTANCE OF OLD NOTES FOR EXCHANGE; DELIVERY OF NEW NOTES
Upon satisfaction or waiver of all of the conditions to the exchange offer,
we will accept, as soon as practicable after the expiration date, all old notes
that have been validly tendered and not withdrawn, and will issue the applicable
new notes in exchange for those old notes promptly after our acceptance of those
old notes. For purposes of the exchange offer, we will be deemed to have
accepted validly tendered old notes for exchange when, as and if we have given
written and oral notice of acceptance to the exchange agent.
For each old note accepted for exchange, the holder of the old note will
receive a new note having a principal amount equal to that of the surrendered
old note. The new notes will bear interest from March 1, 2000. Accordingly,
registered holders of new notes on the relevant record date for the first
interest
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payment date following the completion of the exchange offer will receive
interest accruing from March 1, 2000. Old notes accepted for exchange will cease
to accrue interest from and after the date on which they are accepted for
exchange. Holders whose old notes are accepted for exchange will not receive any
payment for accrued interest on the old notes otherwise payable on any interest
payment date and will be deemed to have waived their rights to receive the
accrued interest on the old notes.
If any tendered old notes are not accepted for any reason or if old notes
are submitted for a greater principal amount than the holder desires to
exchange, those unaccepted or non-exchanged old notes will be returned without
expense to the tendering holder of the old notes or, if the old notes were
tendered by book-entry transfer, the non-exchanged old notes will be credited to
an account maintained with the book-entry transfer facility. In either case, the
return of old notes will be effected promptly after the expiration or
termination of the exchange offer.
EXCHANGE AGENT
We have appointed Chase Bank of Texas, National Association, as the
exchange agent for the exchange offer. Chase Bank of Texas, National
Association, also acts as trustee under the indenture. You should send all
executed letters of transmittal to the exchange agent and direct all
communications with the exchange agent, including requests for assistance or for
additional copies of this prospectus or of the letter of transmittal as follows:
Delivery to: Chase Bank of Texas, National Association, Exchange Agent
<TABLE>
<S> <C>
By Mail: By Hand or Overnight Courier:
1201 Main Street 1201 Main Street
18th Floor 18th Floor
Dallas, Texas 75202 Dallas, Texas 75202
Attn: Frank Ivins, Personal & Confidential Attn: Frank Ivins, Personal & Confidential
By Facsimile for (Eligible Institutions): (214) 672-5746
Facsimile Confirmation Only: (214) 672-5687
For Information: (214) 672-5687
</TABLE>
If you deliver the letter of transmittal to an address other than as set
forth above or transmit instructions by facsimile other than as set forth above,
that delivery or those instructions will not be effective.
FEES AND EXPENSES
We will bear expenses of the exchange offer to the extent indicated in the
registration rights agreement. We are making the principal solicitation pursuant
to the exchange offer by mail. Our officers and employees and our affiliates may
also make solicitations in person, by telegraph, telephone or facsimile
transmission.
We have not retained any dealer-manager in connection with the exchange
offer and will not make any payments to brokers, dealers or other persons
soliciting acceptances of the exchange offer. We, however, will pay the exchange
agent reasonable and customary fees for its services and will reimburse its
reasonable out-of-pocket costs and expenses and will indemnify the exchange
agent for all losses and claims incurred by it as a result of the exchange
offer. We may also pay brokerage houses and other custodians, nominees and
fiduciaries the reasonable out-of-pocket expenses incurred by them in forwarding
copies of this prospectus, letters of transmittal and related documents to the
beneficial owners of the old notes and in handling or forwarding tenders for
exchange.
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TRANSFER TAXES
We will not pay any transfer taxes applicable to the exchange of old notes
pursuant to the exchange offer.
In addition to transfer taxes imposed with respect to the exchange of old
notes pursuant to the exchange offer, the tendering holder will pay transfer
taxes, if:
- new notes for principal amounts not tendered, or accepted for exchange
are to be registered or issued in the name of any person other than the
registered holder of the old notes tendered; or
- tendered old notes are registered in the name of any person other than
the person signing the letter of transmittal.
If you do not submit satisfactory evidence of payment of taxes for which
you are liable or exemption from them with your letter of transmittal, we will
bill you for the amount of these transfer taxes directly.
ACCOUNTING TREATMENT
We will record the new notes at the same carrying value as the old notes,
which is the principal amount as reflected in our accounting records on the date
of the exchange. Accordingly, we will not recognize any gain or loss for
accounting purposes. We will capitalize the expenses of the exchange offer for
accounting purposes. We will classify these expenses as debt issuance costs and
include them in other assets on our balance sheet. We will amortize these
expenses on a straight line basis over the life of the new notes.
CONSEQUENCES OF FAILURE TO EXCHANGE OLD NOTES
Holders of old notes who do not exchange their old notes for new notes
pursuant to the exchange offer will continue to be subject to the restrictions
on transfer of those old notes. The old notes were originally issued in a
transaction exempt from registration under the Securities Act, and may be
offered, sold, pledged, or otherwise transferred only:
- in the United States to a person whom the seller reasonably believes is a
qualified institutional buyer, as defined in Rule 144A under the
Securities Act;
- outside the United States in an offshore transaction in accordance with
Rule 904 under the Securities Act;
- pursuant to an exemption from registration under the Securities Act
provided by Rule 144, if available; or
- pursuant to an effective registration statement under the Securities Act.
The offer, sale, pledge or other transfer of old notes must also be made in
accordance with any applicable securities laws of any state of the United
States, and the seller must notify any purchaser of the old notes of the
restrictions on transfer described above. We do not currently anticipate that we
will register the old notes under the Securities Act.
APPRAISAL OR DISSENTERS' RIGHTS
Holders of the old notes will not have appraisal or dissenters' rights in
connection with the exchange offer.
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<PAGE> 28
DESCRIPTION OF THE NEW NOTES
GENERAL
The new notes will be issued under the indenture dated as of September 24,
1998, as amended and supplemented, between ONEOK and Chase Bank of Texas,
National Association, as trustee. Whenever particular defined terms of the
indenture are referred to, those defined terms are incorporated herein by
reference.
The new notes will be issued only in fully registered form, without
coupons, in denominations of $1,000 and integral multiples thereof. The new
notes will be represented by permanent global notes registered in the name of
The Depository Trust Company or its nominee. Payment of principal and interest
will be made in immediately available funds to the registered holder, which will
be DTC or its nominee.
The new notes will mature on March 1, 2005. We will have the right to issue
additional debt securities, including additional new notes, under the indenture
at any time, without limit. The new notes will bear interest at the annual rate
of 7.75% from March 1, 2000, payable on each March 1 and September 1, commencing
September 1, 2000, to the person in whose name the new note is registered at the
close of business on February 15 or August 15 (whether or not a business day),
as the case may be. The new notes will be our unsecured and unsubordinated
obligations.
OPTIONAL REDEMPTION
We have the right to redeem all or any portion of the new notes at any time
at a redemption price equal to the greater of (1) 100% of principal amount or
(2) as determined by a Quotation Agent, the sum of the present values of the
remaining scheduled payments of principal and interest on the new notes to be
redeemed that are payable after the date of redemption, discounted to that date
of redemption on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus, in each case, accrued
but unpaid interest to the date of redemption.
We must give notice of redemption to the registered holders of the new
notes to be redeemed at least 30 days but not more than 60 days before the
proposed date of redemption. Interest will not accrue on the new notes or
portions thereof called for redemption on and after the date of redemption
unless we fail to pay the redemption price.
"Adjusted Treasury Rate" means, with respect to any date of redemption, the
rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for that date of redemption, plus 0.20%.
"Comparable Treasury Issue" means the United States Treasury security
selected by a Quotation Agent as having a maturity comparable to the remaining
term of the new notes to be redeemed that would be used, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the new notes.
"Comparable Treasury Price" means, with respect to any date of redemption,
(1) the average of the Reference Treasury Dealer Quotations for the date of
redemption, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (2) if we obtain fewer than three such Reference Treasury
Dealer Quotations, the average of all such Quotations.
"Quotation Agent" means one of the Reference Treasury Dealers appointed by
us and certified to the trustee by us.
"Reference Treasury Dealer" means (1) each of Banc of America Securities
LLC, Banc One Capital Markets, Inc., First Union Securities, Inc., J.P. Morgan
Securities Inc., PaineWebber Incorporated and Salomon Smith Barney Inc. and
their respective successors; provided, however, that if any of the foregoing
ceases to be a primary U.S. Government Securities dealer in New York City (a
"Primary Treasury
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<PAGE> 29
Dealer"), we will substitute therefor another Primary Treasury Dealer and
certify the same to the trustee; and (2) any other Primary Treasury Dealer
selected by us and certified to the trustee.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any date of redemption of the new notes, the
average, as determined by us and certified to the trustee by us, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to us by that Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third business day
preceding that date of redemption.
BOOK-ENTRY ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
DTC will act as the initial securities depositary for the new notes. The
new notes will be issued only as fully registered securities registered in the
name of Cede & Co., DTC's nominee. One or more fully registered global note
certificates will be issued, representing in the aggregate the total principal
amount of new notes, and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants deposit with DTC. DTC also facilitates
the settlement among its participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic computerized
book-entry changes in its participant's accounts, thereby eliminating the need
for physical movement of securities certificates. DTC's direct participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and other organizations. DTC is owned by a number of its direct
participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain a custodial
relationship with a direct participant, either directly or indirectly as an
indirect participant. The rules applicable to DTC and its participants are on
file with the Securities and Exchange Commission.
Purchases of new notes within the DTC system must be made by or through
direct participants, which will receive a credit for the new notes on DTC's
records. The ownership interest of each actual purchaser of new notes (the
purchaser, or the person to whom that purchaser conveys his or her ownership
interest, a "beneficial owner") is in turn to be recorded on the direct and
indirect participants' records. Beneficial owners will not receive written
confirmation from DTC of their purchases, but beneficial owners are expected to
receive written confirmations providing details of the transactions, as well as
periodic statements of their holdings, from the direct or indirect participants
through which the beneficial owners purchased new notes. Transfers of ownership
interests in the new notes are to be accomplished by entries made on the books
of participants acting on behalf of beneficial owners. Beneficial owners will
not receive certificates representing their ownership interests in new notes,
except if use of the book-entry system for the new notes is discontinued or we
determine that beneficial owners may exchange their ownership interests for
certificates or there shall have occurred an event of default under the
indenture.
DTC has no knowledge of the actual beneficial owners of the new notes.
DTC's records reflect only the identity of the direct participants to whose
accounts the new notes are credited, which may or may not be the beneficial
owners. The participants will remain responsible for keeping account of their
holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants and by direct
participants and indirect participants to beneficial owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
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<PAGE> 30
We will send redemption notices to DTC. If less than all of the new notes
are being redeemed, DTC will reduce the amount of the interest of each direct
participant in the new notes in accordance with its procedures.
Although voting with respect to the new notes is limited, in those cases
where a vote is required, neither DTC nor Cede & Co. will itself consent or vote
with respect to the new notes. Under its usual procedures, DTC would mail an
omnibus proxy to us as soon as possible after the record date. The omnibus proxy
assigns Cede & Co.'s consenting or voting rights to those direct participants to
whose accounts the new notes are credited on the record date (identified in a
listing attached to the omnibus proxy).
Payments on the new notes will be made to DTC. DTC's practice is to credit
direct participants' accounts on the relevant payment date in accordance with
their respective holdings shown on DTC's records unless DTC has reason to
believe that it will not receive payments on that payment date. Payments by
participants to beneficial owners will be governed by standing instructions and
customary practices, as is the case with securities held for the account of
customers registered in "street name," and will be the responsibility of the
participant and not of DTC or us, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment to DTC is our
responsibility, disbursements of those payments to direct participants is the
responsibility of DTC and disbursements of those payments to the beneficial
owners is the responsibility of direct and indirect participants.
Except as provided herein, a beneficial owner of an interest in a global
note will not be entitled to receive physical delivery of new notes.
Accordingly, each beneficial owner must rely on the procedures of DTC to
exercise any rights under the new notes. The laws of some jurisdictions may
require that purchasers of securities take physical delivery of securities in
definitive form. Those laws may impair the ability to transfer beneficial
interests in a global note.
DTC may discontinue providing its services as security depositary with
respect to the new notes at any time by giving us reasonable notice. Under those
circumstances, in the event that a successor securities depositary is not
obtained, certificates representing the new notes will be printed and delivered
to the holders of record. Additionally, we may decide to discontinue use of the
system of book-entry transfers through DTC (or a successor depositary) with
respect to the new notes. In that event, certificates for the new notes will be
printed and delivered to the holders of record.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that we believe to be reliable, but we take no
responsibility for the accuracy thereof. We have no responsibility for the
performance by DTC or its participants of their respective obligations as
described herein or under the rules and procedures governing their respective
operations.
RESTRICTIVE COVENANTS
We have agreed to two principal restrictions on our activities for the
benefit of holders of the new notes. We have used in this summary description
capitalized terms that we have defined below under "-- Glossary." In this
description of the covenants only, all references to "us" or "we" mean ONEOK and
our principal subsidiaries, unless the context clearly indicates otherwise. Our
principal subsidiaries are those that own or lease a Principal Property.
Other than the restrictions on Liens and Sale/Leaseback transactions
described below, the indenture and the new notes do not contain any covenants or
other provisions designed to protect holders of the new notes in the event we
participate in a highly leveraged transaction. The indenture and the new notes
also do not contain provisions that give holders of the new notes the right to
require us to repurchase their securities in the event of change-in-control,
recapitalization or similar restructuring or otherwise or upon a decline in our
credit rating.
For these purposes, "debt" includes all notes, bonds, debentures or similar
evidences of obligations for borrowed money.
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<PAGE> 31
LIMITATION ON LIENS
We have agreed that we will issue, assume or guarantee debt for borrowed
money secured by any Lien upon a Principal Property or shares of stock or debt
of any principal subsidiary only if we secure the new notes equally and ratably
with or prior to the debt secured by that Lien. If we secure the new notes in
this manner, we have the option to secure any of our other debt or obligations
equally and ratably with or prior to the debt secured by the Lien and,
accordingly, equally and ratably with the new notes. This covenant has
exceptions that permit:
- Liens that existed on the date we first issued a series of debt
securities under the indenture;
- Liens on any Principal Property or shares of stock or debt of any entity
that constitutes a principal subsidiary existing at the time we merge or
consolidate with that entity or acquire its property or at the time the
entity becomes a principal subsidiary;
- Liens on any Principal Property existing at the time we acquire that
Principal Property so long as the Lien does not extend to any of our
other Principal Property;
- Liens on any Principal Property, and any Lien on the shares of stock of
any principal subsidiary formed for the purpose of acquiring that
Principal Property, either:
- securing all or part of the cost of acquiring, constructing, improving,
developing or expanding the Principal Property that was incurred before,
at or within 12 months after the latest of the acquisition or completion
of the assets or their commencing commercial operation; or
- securing debt to finance the purchase price of the Principal Property or
the cost of constructing, improving, developing or expanding the assets
that was incurred before, at or within 12 months after the latest of the
acquisition or completion of the assets or their commencing commercial
operation;
- Liens on any Principal Property or shares of stock or debt of any
principal subsidiary to secure debt owed to us;
- Liens securing industrial development, pollution control or other revenue
bonds of a government entity;
- Liens arising in connection with a project financed with, and securing,
Non-Recourse Indebtedness;
- Statutory or other Liens arising in the ordinary course of business and
relating to amounts that are not delinquent or remain payable without
penalty or that we are contesting in good faith;
- Liens (other than Liens imposed by the Employee Retirement Income
Security Act of 1974) on our property incurred or required in connection
with workmen's compensation, unemployment insurance and other social
security legislation;
- Liens securing taxes that remain payable without penalty or that we are
contesting in good faith if we believe we have adequate reserves for the
taxes in question;
- Rights that any governmental entity may have to purchase or order the
sale of any of our property upon payment of reasonable compensation;
- Rights that any governmental entity may have to terminate any of our
franchises, licenses or other rights or to regulate our property and
business;
- Liens that we do not assume or on which we do not customarily pay
interest and that exist on real estate or other rights we acquire for
sub-station, measuring station, regulating station, gas purification
station, compressor station, transmission line, distribution line or
right-of-way purposes;
- Easements or reservations in our property for roads, pipelines, gas
transmission and distribution lines, electric light and power
transmission and distribution lines, water mains and other similar
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purposes and zoning ordinances, regulations and restrictions that do not
impair the use of the property in the operation of our business;
- Any extensions, renewals, substitutions or replacements of the
above-described Liens or any debt secured by these Liens if both:
- the amount of debt secured by the new Lien and not otherwise permitted
does not exceed the principal amount of debt so secured at the time of
the renewal or refunding; and
- the new Lien is limited to the property (plus any improvements) secured
by the original Lien.
In addition, without securing the new notes as described above, we may
issue, assume or guarantee debt that this covenant would otherwise restrict in a
total principal amount that, when added to all of our other outstanding debt
that this covenant would otherwise restrict and the total amount of Attributable
Debt outstanding for Sale/Leaseback Transactions, does not exceed a "basket"
equal to 15% of Consolidated Net Tangible Assets. When calculating this total
principal amount, we exclude from the calculation Attributable Debt from
Sale/Leaseback Transactions in connection with which we have purchased property
or retired debt as described below under "-- Limitation on Sale/Leaseback
Transactions."
LIMITATION ON SALE/LEASEBACK TRANSACTIONS
We have agreed that we will enter into a Sale/Leaseback Transaction only if
at least one of the following applies:
- we could incur debt secured by a Lien on the Principal Property that is
the subject of that Sale/ Leaseback Transaction;
- the Attributable Debt subject to that Sale/Leaseback Transaction would be
in an amount permitted under the "basket" described above under
"-- Limitation on Liens";
- the proceeds of that Sale/Leaseback Transaction are used for our business
and operations; or
- within the period ending 12 months after the closing of the
Sale/Leaseback Transaction, we apply the net proceeds of the
Sale/Leaseback Transaction to the voluntary retirement of any debt
securities issued under the indenture or Funded Indebtedness (other than
Funded Indebtedness that we hold or that is subordinate in right of
payment to any debt securities issued under the indenture).
GLOSSARY
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by that Person
under the lease during the remaining term thereof (excluding amounts required to
be paid on account of maintenance and repairs, services, insurance, taxes,
assessments, water rates and similar charges and contingent rents), discounted
from the respective due dates thereof at the weighted average of the rates of
interest (or yield to maturity, in the case of debt securities issued under the
indenture and originally sold at a discount) borne by the debt securities then
outstanding under the indenture, compounded annually.
"Consolidated Net Tangible Assets" means (1) the total amount of assets
(less applicable reserves and other properly deductible items) which under
generally accepted accounting principles would be included on a consolidated
balance sheet of ONEOK and its subsidiaries after deducting therefrom (A) all
current liabilities, provided, however, that there will not be deducted billings
recorded as revenues deferred pending the outcome of rate proceedings (less
applicable income taxes thereon), if and to the extent the obligation to refund
the same has not been finally determined, (B) appropriate allowance for minority
interests in common stocks of subsidiaries and (C) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, which in each case under generally
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accepted accounting principles would be included on the consolidated balance
sheet, less (2) the amount which would be so included on the consolidated
balance sheet for investments (less applicable reserves) made in subsidiaries.
"Funded Indebtedness" as applied to any Person, means all debt of that
Person maturing after, or renewable or extendible at that Person's option
beyond, 12 months from the date of determination.
"Lien" means any lien, mortgage, pledge, encumbrance, charge or security
interest securing debt; provided, however, that the following types of
transactions will not be considered for purposes of this definition to result in
a Lien: (1) any acquisition by us of any property or assets subject to any
reservation or exception under the terms of which any vendor, lessor or assignor
creates, reserves or excepts or has created, reserved or excepted an interest in
oil, gas or any other mineral in place or the proceeds thereof, (2) any
conveyance or assignment whereby we convey or assign to any Person or Persons an
interest in oil, gas or any other mineral in place or the proceeds thereof, (3)
any Lien upon any property or assets either owned or leased by us or in which we
own an interest that secures for the benefit of the Person or Persons paying the
expenses of developing or conducting operations for the recovery, storage,
transportation or sale of the mineral resources of the property or assets (or
property or assets with which it is unitized) the payment to that Person or
Persons of our proportionate part of the development or operating expenses or
(4) any hedging arrangements entered into in the ordinary course of business,
including any obligation to deliver any mineral, commodity or asset in
connection with the arrangement.
"Non-Recourse Indebtedness" means, at any time, debt incurred after the
date of the indenture by us in connection with the acquisition of property or
assets by us or the financing of the construction of or improvements on
property, whenever acquired, provided that, under the terms of that debt and
pursuant to applicable law, the recourse at that time and thereafter of the
lenders with respect to the debt is limited to the property or assets so
acquired, or the construction or improvements, including debt as to which a
performance or completion guarantee or similar undertaking was initially
applicable to the debt or the related property or assets if the guarantee or
similar undertaking has been satisfied and is no longer in effect.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Principal Property" means any property located in the United States,
except any property that in the opinion of our board of directors is not of
material importance to the total business conducted by us and our consolidated
subsidiaries.
"Sale/Leaseback Transaction" means any arrangement with any Person pursuant
to which we lease any Principal Property that has been or is to be sold or
transferred by us to that Person, other than (1) a lease for a term, including
renewals at the option of the lessee, of not more than three years or classified
as an operating lease under generally accepted accounting principles, (2) leases
between us and one of our principal subsidiaries or between principal
subsidiaries, (3) leases of a Principal Property executed by the time of, or
within 12 months after the latest of, the acquisition, the completion of
construction or improvement, or the commencement of commercial operation, of the
Principal Property and (4) the ground lease for ONEOK Plaza, 100 West Fifth
Street, Tulsa, Oklahoma 74103.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The indenture generally permits a consolidation or merger between us and
another entity. It also permits the sale by us of all or substantially all of
our assets. We have agreed, however, that we will consolidate with or merge into
any entity or transfer or dispose of all or substantially all of our assets to
any entity only if:
- immediately after giving effect to the transaction, no default or event
of default would have occurred and be continuing or would result from the
transaction;
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- we are the continuing corporation or, if we are not the continuing
corporation, the resulting entity is organized and existing under the
laws of any United States jurisdiction and assumes the due and punctual
payments on the debt securities issued under the indenture, including the
new notes, and the performance of our covenants and obligations under the
indenture and those debt securities; and
- we provide the trustee with a certificate and a legal opinion, each
stating that the indenture permits the transaction.
If we engage in any of these transactions that result in any Principal
Property or shares of stock or debt of any principal subsidiary becoming subject
to any Lien and unless we are otherwise able to create that Lien, the indenture
provides that the new notes (so long as the new notes are entitled to the
protection of the "Limitation on Liens" covenant) will be secured to at least
the same extent as the debt that would become secured by the Lien as a result of
the transaction.
EVENTS OF DEFAULT
The following are events of default for the new notes:
- our failure to pay interest on the new notes for 30 days after it becomes
due and payable;
- our failure to pay principal of or any premium on the new notes when due;
- our failure to comply with any of our covenants or agreements for the new
notes or in the indenture (other than an agreement or covenant that we
have included in the indenture solely for the benefit of less than all
series of debt securities issued under the indenture) for 60 days after
the trustee or the holders of at least 25% in principal amount of all
outstanding old notes and new notes, in the aggregate, provide written
notice to us;
- the default under any agreement under which we or any subsidiary that
owns or leases Principal Property have at the time outstanding debt in
excess of $15,000,000 and, if that debt has not already matured, it has
been accelerated and the acceleration is not rescinded within 30 days
after we receive notice from the trustee or the holders of at least 25%
in principal amount of all outstanding old notes and new notes, in the
aggregate, so long as, prior to the entry of judgment in favor of the
trustee for payment of the new notes, we do not cure the default, or the
default under the agreement has not been waived; or
- various events involving our bankruptcy, insolvency or reorganization.
A default under one series of debt securities issued under the indenture
will not necessarily be a default under the new notes. The trustee may withhold
notice to the holders of the new notes of any default or event of default
(except in any payment on the new notes) if the trustee considers it in the
interest of the holders of the new notes to do so.
If an event of default for the new notes occurs and is continuing, the
trustee or the holders of at least 25% in principal amount of the outstanding
old notes and new notes, in the aggregate (or, in some cases, 25% in principal
amount of all debt securities issued under the indenture affected, voting as one
class), may require us to pay on an accelerated basis the principal of and all
accrued and unpaid interest on the new notes and those other debt securities.
The holders of a majority in principal amount of the outstanding old notes and
new notes, in the aggregate (or of all debt securities affected, voting as one
class), may in some cases rescind this accelerated payment requirement.
If an event of default occurs and is continuing, the trustee must use the
degree of care and skill of a prudent man in the conduct of his own affairs. The
trustee will become obligated to exercise any of its powers under the indenture
at the request of any of the holders of the old notes and the new notes only
after those holders have offered the trustee indemnity reasonably satisfactory
to it.
The holders of a majority in principal amount of old notes and new notes,
in the aggregate, have the right to waive past defaults under the indenture that
relate to the new notes except for a default in the
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payment on the new notes or a provision that can only, under the indenture, be
modified or amended if all holders that are affected consent.
In most cases, holders of a majority in principal amount of the outstanding
old notes and new notes, in the aggregate (or of all debt securities affected,
voting as one class), may direct the time, method and place of:
- conducting any proceeding for any remedy available to the trustee; and
- exercising any trust or power conferred on the trustee.
The indenture requires us to file each year with the trustee a written
statement as to our compliance with the covenants contained in the indenture.
MODIFICATION AND WAIVER
We may amend or supplement the indenture if the holders of a majority in
principal amount of the outstanding debt securities of all series that the
amendment or supplement affects (acting as one class) consent to it. Without the
consent of each holder of the new notes, however, no modification may:
- reduce the principal of the new notes or change their stated maturity;
- reduce the rate of or change the time for payment of interest on the new
notes;
- reduce any premium payable on the redemption of the new notes or change
the time at which the new notes may be redeemed;
- change any obligation to pay additional amounts on the new notes;
- impair the holder's right to institute suit for the enforcement of any
payment on the new notes;
- impair the holder's right to convert or exchange the new notes;
- reduce the percentage of principal amount of debt securities issued under
the indenture whose holders must consent to an amendment to or supplement
of the indenture;
- reduce the percentage of principal amount of debt securities issued under
the indenture necessary to waive compliance with some of the provisions
of the indenture; or
- modify provisions relating to amendment or waiver, except to increase
percentages or to provide that other provisions of the indenture cannot
be amended or waived without the consent of each holder affected.
We may amend or supplement the indenture or waive any provision of it
without the consent of any holders of new notes in various circumstances,
including:
- to provide for the assumption of our obligations under the indenture and
the new notes by a successor;
- to add covenants that would benefit the holders of the new notes or to
surrender any of our rights or powers;
- to provide for the issuance of additional securities, including new
notes, under the indenture;
- to add events of default;
- to provide any security for or guarantees of the new notes;
- to provide for the form or terms of the new notes;
- to appoint a successor trustee or to provide for the administration of
the trusts under the indenture by more than one trustee;
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- to cure any ambiguity, omission, defect or inconsistency that does not
adversely affect the interests of the holders of outstanding new notes;
- to make any change to the extent necessary to permit or facilitate
defeasance or discharge of the new notes that does not adversely affect
the interests of the holders of outstanding debt securities of any other
series; or
- to make any change that does not affect the rights of any holder.
The holders of a majority in principal amount of all outstanding debt
securities issued under the indenture may waive our obligations to comply with
various covenants, including those relating to (1) our obligation to secure
those debt securities in the event of mergers, consolidations and sales of
assets, (2) corporate existence and (3) the restrictions on Liens and
Sale/Leaseback Transactions.
DEFEASANCE
When we use the term defeasance, we mean discharge from some or all of our
obligations under the indenture. If we deposit with the trustee funds or
government securities the maturing principal and interest of which is sufficient
to make payments on the new notes on the dates those payments are due and
payable, then, at our option, either of the following will occur:
- "legal defeasance," which means that we will be discharged from our
obligations with respect to the new notes; or
- "covenant defeasance," which means that we will no longer have any
obligation to comply with the restrictive covenants under the indenture
and any other restrictive covenants that apply to the new notes, and the
related events of default will no longer apply to us.
If we defease the new notes, the holders of the new notes will not be
entitled to the benefits of the indenture, except for our obligations to pay
additional amounts, if any, to provide temporary securities, to register the
transfer or exchange of new notes, to replace stolen, lost or mutilated new
notes or to maintain paying agencies and hold moneys for payment in trust. In
the case of covenant defeasance, our obligation to pay principal, premium and
interest on the new notes will also survive.
We will be required to deliver to the trustee an opinion of counsel that
the deposit and related defeasance would not cause the holders of the new notes
to recognize income, gain or loss for federal income tax purposes. If we elect
legal defeasance, that opinion of counsel must be based upon a ruling from the
Internal Revenue Service or a change in law to that effect.
GOVERNING LAW
New York law governs the indenture and the new notes.
TRUSTEE
The indenture contains limitations on the right of the trustee, if it
becomes one of our creditors, to obtain payment of claims or to realize on
property received for those claims, as security or otherwise. The trustee is
permitted to engage in other transactions with us. If, however, it acquires any
conflicting interest, it must eliminate that conflict or resign.
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UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the United States federal tax consequences of
the exchange of the old notes for the new notes and, in the case of non-U.S.
holders, of the ownership and disposition of the new notes. This summary is
based on the Internal Revenue Code of 1986, existing and proposed Treasury
regulations promulgated thereunder and administrative and judicial
interpretations thereof, all in effect as of the date of this prospectus and all
of which are subject to change, possibly with retroactive effect. The summary
assumes that you hold the old notes, and will hold the new notes, as capital
assets within the meaning of Section 1221 of the Internal Revenue Code. It does
not address any state, local or foreign tax consequences of the exchange of the
old notes for the new notes or of the ownership and disposition of new notes by
non-U.S. holders. It also does not discuss all of the tax consequences that may
be relevant to you in the light of your particular circumstances or if you are a
certain type of holder, including:
- a bank;
- an insurance company;
- a tax-exempt organization;
- a dealer in securities or foreign currencies;
- a holder who or that will hold a new note as part of a hedging
transaction, "straddle," conversion transaction or other integrated
transaction for United States federal income tax purposes;
- a holder whose functional currency is not the United States dollar; or
- a holder who or that did not purchase the old notes for cash at their
original issue date at their original offering price.
You should consult with your own tax advisor about the application of the
United States federal income and estate tax laws to your particular situation as
well as any consequences of the exchange of old notes for new notes and of the
ownership and disposition of new notes under the tax laws of any state, local or
foreign jurisdiction.
UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE
Your acceptance of the exchange offer and the related exchange of your old
notes for new notes will not be a taxable event for United States federal income
tax purposes. Your new notes will be treated as a continuation of the old notes.
You will have the same tax basis and holding period in the new notes as you had
in the old notes immediately before the exchange.
UNITED STATES FEDERAL TAX CONSEQUENCES TO NON-U.S. HOLDERS
If you are a non-U.S. holder, the following discussion describes the United
States federal income and estate tax consequences of the ownership and
disposition of the new notes that may be applicable to you. You are a non-U.S.
holder if you are a beneficial owner of a new note who or that, for United
States federal income tax purposes, is
- an individual other than a citizen or resident alien of the United
States;
- a corporation or partnership that is not created or organized in or under
the laws of the United States or any of its political subdivisions and,
in the case of a partnership, is not treated as a United States person
under Treasury regulations;
- an estate other than an estate the income of which is subject to United
States federal income taxation regardless of its source; or
- a trust if no court within the United States is able to exercise primary
supervision over the trust's administration or one or more United States
persons do not have the authority to control all of the trust's
substantial decisions.
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OWNERSHIP
Subject to the discussion below concerning backup withholding, you will not
be subject to withholding of United States federal income tax on payments of
principal, interest and premium, if any, on the new notes, provided that, in the
case of interest, you satisfy the following conditions:
- you do not own, actually or constructively, 10% or more of the total
combined voting power of all classes of ONEOK stock entitled to vote;
- you are not a controlled foreign corporation that is related, directly,
indirectly or constructively, to ONEOK through stock ownership; and
- you satisfy the certification requirements, described generally below,
set forth in Section 871(h) or Section 881(c) of the Internal Revenue
Code and the regulations thereunder.
If you cannot meet these conditions, you generally will be subject to U.S.
withholding tax at the rate of 30% on interest payments, unless you are eligible
for a reduced withholding tax rate under an applicable U.S. income tax treaty.
You will fulfill the certification requirement referred to above if you
certify on Internal Revenue Service Form W-8BEN (or successor form), under
penalties of perjury, that you are not a United States person and provide your
name and address, and file the Form W-8BEN with ONEOK or its paying agent. If a
new note is held on your behalf by a securities clearing organization, bank or
other financial institution holding customers' securities in the ordinary course
of its trade or business, the certification requirement will be fulfilled if the
financial institution files with ONEOK or its paying agent a statement, signed
under penalties of perjury, that it has received the Form W-8BEN from you (or
from another intermediary financial institution acting on your behalf) and
furnishes ONEOK or its paying agent with a copy thereof. Under current law, if
you are a foreign partnership, you may furnish the Form W-8BEN to ONEOK or its
paying agent or to a financial institution holding a new note on your behalf.
However, for interest received after December 31, 2000, if you are a foreign
partnership, unless you have entered into a withholding agreement with the
Internal Revenue Service, you will be required, in addition to providing an
intermediary Form W-8BEN, to attach an appropriate certification by each
partner. A look-through rule will apply in the case of tiered partnerships.
Foreign partnerships and their partners should consult their own tax advisors
regarding possible additional certification and reporting requirements.
If you are engaged in the conduct of a trade or business in the United
States, and if interest on a new note is effectively connected with the conduct
of that trade or business, you will be subject to regular United States federal
income tax on that interest on a net income basis in the same manner as if you
were a United States person. You will be exempt from the withholding tax
discussed above if you provide to ONEOK or its paying agent a properly executed
Internal Revenue Service Form W-8ECI (or successor form). In addition, if you
are a foreign corporation, you may be subject to a branch profits tax at the
rate of 30%, or such lesser rate as may be specified by an applicable U.S.
income tax treaty, on your effectively connected earnings and profits for the
taxable year, subject to various adjustments. For purposes of the branch profits
tax, interest on a new note will be included in your effectively connected
earnings and profits if the interest is effectively connected with the conduct
of a trade or business in the United States.
SALE, EXCHANGE, REDEMPTION OR OTHER DISPOSITION
Subject to the discussion below concerning backup withholding, you will not
be subject to United States federal income tax, or to any withholding thereof,
on any gain realized on the sale, exchange, redemption or other disposition of a
new note, unless:
- you are an individual who is present in the United States for 183 days or
more in the taxable year of the disposition and certain other conditions
are met; or
- the gain is effectively connected with the conduct by you of a trade or
business in the United States.
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If you are engaged in the conduct of a trade or business in the United
States, and if any gain realized on the sale, exchange, redemption or other
disposition of a new note is effectively connected with the conduct of that
trade or business, you will be subject to regular United States federal income
tax on the gain on a net income basis in the same manner as if you were a United
States person. In addition, if you are a foreign corporation, you may be subject
to a branch profits tax at the rate of 30%, or such lesser rate as may be
specified by an applicable U.S. income tax treaty, on your effectively connected
earnings and profits for the taxable year, subject to various adjustments. For
purposes of the branch profits tax, any gain recognized on the sale, exchange,
redemption or other disposition of a new note will be included in your
effectively connected earnings and profits if the gain is effectively connected
with the conduct of a trade or business in the United States.
ESTATE TAX
If you are an individual non-U.S. holder and if you hold a new note at the
time of your death, the note will not be includible in your gross estate for
purposes of the United States federal estate tax, provided that, at the time of
your death:
- you do not own, actually or constructively, 10% or more of the total
combined voting power of all classes of ONEOK stock entitled to vote; and
- payments of interest with respect to the new note, if received at that
time, would not have been effectively connected with the conduct of your
trade or business in the United States.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Under current United States federal income tax law, you will not be subject
to backup withholding tax at the rate of 31% or to information reporting on
payments of interest if the certifications required by Section 871(h) or Section
881(c) of the Internal Revenue Code and described generally above are received,
provided that neither ONEOK nor its paying agent has actual knowledge that you
are a United States person.
Under current Treasury regulations, payments of the proceeds of the sale,
exchange, redemption or other disposition of a new note made to or through a
foreign office of a broker generally will not be subject to backup withholding
or information reporting. However, information reporting will be required if a
broker is either:
- a United States person;
- a controlled foreign corporation for United States federal income tax
purposes;
- a foreign person 50% or more of whose gross income is effectively
connected with the conduct of a United States trade or business for a
specified three-year period; or
- in the case of payments made after December 31, 2000, a foreign
partnership with certain connections to the United States;
unless the broker has in its records documentary evidence that you, as payee,
are not a United States person or that otherwise establishes an exemption.
Backup withholding may apply to any payment that a broker is required to report
if the broker has actual knowledge that you, as payee, are a United States
person. Payments to or through the United States office of a broker will be
subject to backup withholding and information reporting unless you certify,
under penalties of perjury, that you are not a United States person or otherwise
establish an exemption.
Any amounts withheld from a payment under the backup withholding rules will
be allowed as a credit against your United States federal income tax liability
and may entitle you to a refund, provided that the required information is
furnished to the Internal Revenue Service. You should consult your own tax
advisor regarding the application of the information reporting and backup
withholding requirements to your particular situation, the availability of an
exemption therefrom, and the procedure for obtaining an exemption, if available.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account pursuant to
the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of those new notes. A broker-dealer may use this
prospectus, as it may be amended or supplemented from time to time, in
connection with resales of new notes received in exchange for old notes where
those old notes were acquired as a result of market-making or other trading
activities and not directly from us. We have agreed that, for a period of 60
days after the expiration date of the exchange offer, we will make this
prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with those resales. In addition, until , 2000, all
dealers effecting transactions in the new notes may be required to deliver a
prospectus.
We will not receive any proceeds from any sale of new notes by
broker-dealers. Broker-dealers may sell from time to time new notes they receive
for their own account pursuant to the exchange offer through:
- one or more transactions in the over-the-counter market;
- in negotiated transactions;
- through the writing of options on the new notes; or
- a combination of those methods of resale.
Those broker-dealers may sell at:
- market prices prevailing at the time of resale;
- prices related to those prevailing market prices; or
- negotiated prices.
Any broker-dealer may resell directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from the broker-dealer or the purchasers of the new notes. Any
broker-dealer that resells new notes that it received for its own account
pursuant to the exchange offer and any broker-dealer that participates in a
distribution of the new notes may be deemed to be an "underwriter" within the
meaning of the Securities Act. Any profit on any underwriter's resale of new
notes and any commission or concessions received by any underwriters may be
deemed to be underwriting compensation under the Securities Act. The letter of
transmittal states that a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act by acknowledging that
it will deliver and by delivering a prospectus.
The letter of transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act. We
have agreed, for a period of 60 days after the expiration date to promptly send
additional copies of this prospectus and any amendment or supplement to this
prospectus to any broker-dealer that requests those documents in the letter of
transmittal. We have also agreed to pay expenses incident to the exchange offer
to the extent indicated in the registration rights agreement and will indemnify
the holders of the new notes (including any broker-dealers) against various
liabilities, including liabilities under the Securities Act, to the extent they
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement or prospectus or an
omission or alleged omission to state in the registration statement or the
prospectus a material fact that is necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. This
indemnification obligation does not extend to statements or omissions in the
registration statement or prospectus made in reliance upon and in conformity
with written information pertaining to the holder that is furnished to us by or
on behalf of the holder.
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LEGAL MATTERS
Various legal matters relating to the new notes offered hereby will be
passed upon for us by Gable & Gotwals, Tulsa, Oklahoma.
EXPERTS
The consolidated financial statements of ONEOK and its subsidiaries as of
August 31, 1999 and 1998 and for each of the years in the three-year period
ended August 31, 1999 have been incorporated by reference herein in reliance
upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
37
<PAGE> 42
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[ONEOK]
OFFER TO EXCHANGE ITS
7.75% NOTES DUE 2005, SERIES B,
FOR ANY AND ALL OF ITS OUTSTANDING
7.75% NOTES DUE 2005
------------------------------------------
PROSPECTUS
------------------------------------------
, 2000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 43
PART II.
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
ONEOK, Inc. (the "Company"), as an Oklahoma corporation, is empowered by
section 1031 of the Oklahoma General Corporation Act, subject to the procedures
and limitations stated therein, to indemnify any person against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with any threatened,
pending or completed action, suit or proceeding in which such person is made or
threatened to be made a party by reason of his being or having been a director,
officer, employee or agent of the Company. The statute provides that
indemnification pursuant to its provisions is not exclusive of other rights of
indemnification to which a person may be entitled under any by-law, agreement,
vote of shareholders, or disinterested directors, or otherwise. Article VIII of
the by-laws of the Company provides that directors and officers of the Company
shall be indemnified by the Company to the fullest extent permitted by Oklahoma
law as now or hereafter enforced, including the advance of related expenses. In
addition, indemnification agreements, the form of which has been previously
approved by the shareholders of the Company, have been entered into between the
Company and each of its directors and executive officers.
The certificate of incorporation of the Company provides that a director of
the corporation shall not be personally liable to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except for liability for (i) any breach of the director's duty of loyalty to the
corporation or its shareholders, (ii) acts or omissions not in good faith or
which would involve intentional misconduct or a knowing violation of law, (iii)
payment of unlawful dividends or unlawful stock purchases or redemptions or (iv)
any transaction from which the director derived an improper personal benefit.
Pursuant to Article VIII of the by-laws of the Company, upon authorization
and determination (1) by the board of directors by a majority of a quorum
consisting of directors who were not parties to the action, suit, or proceeding
involved; (2) if such a quorum is not obtainable, or even if obtainable and a
quorum of disinterested directors so directs, by independent counsel in a
written opinion; or (3) by the shareholders, the Company is obligated to
indemnify any person who incurs liability by reason of the fact that he is or
was a director, officer, employee, or agent of the Company, or is or was serving
at its request as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, or as a
member of any committee or similar body, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. However, in an action by
or in the right of the Company, no indemnification will be made if such person
shall be adjudged to be liable to the Company, unless such indemnification is
allowed by a court of competent jurisdiction.
The indemnification agreements referred to above provide that the Company
is obligated to indemnify the specified director or executive officer to the
fullest extent permitted by law. The agreements provide that, upon request by a
director or executive officer, the Company is obligated to advance expenses for
defense of a claim made against the director or executive officer. The
obligation of the Company to indemnify the director or executive officer is
subject to applicable law and the determination by a "reviewing party" selected
by the board of directors that the director or executive officer is entitled to
indemnification. In addition, the agreements obligate the Company to indemnify
the specified executive officer or director to the extent of the Company's
recoveries under insurance policies regardless of whether the director or
executive officer is ultimately determined to be entitled to indemnification.
The agreements also provide for partial indemnification if a portion of a claim
for indemnification is not allowed by the reviewing party appointed by the board
of directors.
Under an insurance policy obtained by the Company, coverage of Company
officers and directors against liability for neglect, errors, omissions, or
breaches of duty in their capacities as such is provided for both the Company,
to the extent that it is obligated to indemnify such officers and directors, and
the officers and directors themselves. Additional coverage is provided to the
Company for claims arising from
II-1
<PAGE> 44
any such conduct in connection with any purchase or sale of, or any offer to
purchase or sell, securities issued by the Company. Such coverage is provided in
the amount of $100,000,000, with a retained limit by the Company of $250,000.
The insurance company is obligated to pay any covered loss in excess of the
$250,000 retained limit and covered defense costs from the first dollar, up to
the policy limit of $100,000,000. Among the policy exclusions are those which
exclude coverage for accounting for profits made within the meaning of Section
16(b) of the Securities Exchange Act of 1934, claims based upon or attributable
to directors and officers gaining any personal profit or advantage to which such
individuals are not legally entitled, and for any claims brought about or
attributable to the dishonesty of an officer or director.
It is recognized that the above-summarized provisions of the Company's
by-laws, the indemnification agreements and the applicable provisions of the
Oklahoma General Corporation Act may be sufficiently broad to indemnify
officers, directors, and controlling persons of the Company against liabilities
arising under such Act.
The Company and Western Resources, Inc. ("WRI") have entered into a
Registration Rights Agreement that provides for indemnification of the Company's
directors, officers, employees and controlling persons, if any, in any offering
or sale of shares of common stock, obtainable upon conversion of the Series A
Convertible Preferred Stock or Series B Convertible Preferred Stock, against any
claims (including amounts paid in settlement), or actions or proceedings in
respect thereof, arising out of or based upon an untrue statement or alleged
untrue statement of a material fact contained in such registration statement or
prospectus contained therein, or any document incorporated by reference therein,
or arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated or necessary to make the
statements therein not misleading, in each case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by WRI or an agent or underwriter thereof expressly for use therein.
ITEM 21. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 Purchase Agreement, dated as of February 24, 2000, among the
Company and Banc of America Securities LLC, Banc One Capital
Markets, Inc., First Union Securities, Inc., J.P. Morgan
Securities Inc., PaineWebber Incorporated and Salomon Smith
Barney Inc. as "Initial Purchasers."
4.1 Certificate of Incorporation of the Company, filed May 16,
1997 (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-4, as amended
(Commission File No. 333-27467)).
4.2 Certificate of Merger of the Company, filed November 26,
1997 (incorporated by reference to Exhibit (1)(b) to the
Company's Quarterly Report on Form 10-Q for the quarter
ended May 31, 1998).
4.3 Amendment to Certificate of Incorporation of the Company,
filed January 16, 1998 (incorporated by reference to Exhibit
(1)(b) to the Company's Quarterly Report on Form 10-Q for
the quarter ended May 31, 1998).
4.4 By-laws of the Company, as amended (incorporated by
reference to Exhibit (3)(d) to the Company's Annual Report
on Form 10-K for the year ended August 31, 1999).
4.5 Form of Indenture between the Company and Chase Bank of
Texas, National Association, as Trustee, relating to the
Securities (incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-3 (Commission
File No. 333-62279)).
</TABLE>
II-2
<PAGE> 45
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
4.6 First Supplemental Indenture (incorporated by reference to
Exhibit (5)(a) to the Company's Current Report on Form 8-K
dated September 24, 1998).
4.7 Second Supplemental Indenture (incorporated by reference to
Exhibit (5)(b) to the Company's Current Report on Form 8-K
dated September 24, 1998).
4.8 Third Supplemental Indenture (incorporated by reference to
Exhibit 4 to the Company's Current Report on Form 8-K dated
February 8, 1999).
4.9 Fourth Supplemental Indenture (incorporated by reference to
Exhibit 4.5 to the Company's Registration Statement on Form
S-3 (Commission File No. 333-76375)).
4.10 Fifth Supplemental Indenture (incorporated by reference to
Exhibit 4 to the Company's Current Report on Form 8-K dated
August 17, 1999).
4.11 Sixth Supplemental Indenture.
4.12 Form of Note (included in Exhibit 4.11).
4.13 Form of Exchange Note (included in Exhibit 4.11).
4.14 Registration Rights Agreement, dated as of March 1, 2000,
among the Company and the Initial Purchasers.
5.1 Opinion of Gable & Gotwals.
12.1 Statement of Computation of Ratio of Earnings to Combined
Fixed Charges and Preferred Stock Dividend Requirements.
12.2 Statement of Computation of Ratio of Earnings to Fixed
Charges.
23.1 Consent of KPMG LLP.
23.2 Consent of Gable & Gotwals (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
25.1 Statement of Eligibility of Chase Bank of Texas, National
Association under the Trust Indenture Act of 1939 on Form
T-1 relating to the Indenture.
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Letter to DTC Participants and Form of Instruction
to Registered Holder and/or Book-Entry Transfer Participant
from Owner.
99.4 Form of Letter to Clients.
</TABLE>
ITEM 22. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(2) The undersigned registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder through the use of
a prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
II-3
<PAGE> 46
(3) The registrant undertakes that every prospectus: (i) that is filed
pursuant to paragraph (2) immediately preceding, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Act and is used in connection with
an offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(4) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(5) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
(6) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-4
<PAGE> 47
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Tulsa, state of Oklahoma,
on March 10, 2000.
ONEOK, INC.
By: /s/ Jim Kneale
----------------------------------
Jim Kneale
Vice President, Treasurer and
Chief Financial Officer
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
immediately below constitutes and appoints Jim Kneale and John A. Gaberino, Jr.,
and each of them, his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and
registration statements filed pursuant to Rule 462 under the Securities Act of
1933, and to file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agents or any
of them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Larry W. Brummett Chairman of the Board, Chief March 10, 2000
- ----------------------------------------------------- Executive Officer and Director
Larry W. Brummett (Principal Executive Officer)
/s/ E. G. Anderson Director March 10, 2000
- -----------------------------------------------------
E. G. Anderson
/s/ W. M. Bell Director March 10, 2000
- -----------------------------------------------------
W. M. Bell
/s/ D. R. Cummings Director March 10, 2000
- -----------------------------------------------------
D. R. Cummings
/s/ B. D. Epperson Vice President, Controller and March 10, 2000
- ----------------------------------------------------- Chief Accounting Officer
B. D. Epperson (Principal Accounting Officer)
/s/ H. R. Fricke Director March 10, 2000
- -----------------------------------------------------
H. R. Fricke
/s/ D. L. Kyle President, Chief Operating March 10, 2000
- ----------------------------------------------------- Officer and Director
D. L. Kyle
</TABLE>
II-5
<PAGE> 48
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ B. H. Mackie Director March 10, 2000
- -----------------------------------------------------
B. H. Mackie
/s/ Jim Kneale Vice President, Treasurer and March 10, 2000
- ----------------------------------------------------- Chief Financial Officer
Jim Kneale (Principal Financial Officer)
/s/ D. A. Newsom Director March 10, 2000
- -----------------------------------------------------
D. A. Newsom
/s/ G. D. Parker Director March 10, 2000
- -----------------------------------------------------
G. D. Parker
</TABLE>
II-6
<PAGE> 49
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
1.1 Purchase Agreement, dated as of February 24, 2000, among the
Company and Banc of America Securities LLC, Banc One Capital
Markets, Inc., First Union Securities, Inc., J.P. Morgan
Securities Inc., PaineWebber Incorporated and Salomon Smith
Barney Inc. as "Initial Purchasers."
4.1 Certificate of Incorporation of the Company, filed May 16,
1997 (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-4, as amended
(Commission File No. 333-27467)).
4.2 Certificate of Merger of the Company, filed November 26,
1997 (incorporated by reference to Exhibit (1)(b) to the
Company's Quarterly Report on Form 10-Q for the quarter
ended May 31, 1998).
4.3 Amendment to Certificate of Incorporation of the Company,
filed January 16, 1998 (incorporated by reference to Exhibit
(1)(b) to the Company's Quarterly Report on Form 10-Q for
the quarter ended May 31, 1998).
4.4 By-laws of the Company, as amended (incorporated by
reference to Exhibit (3)(d) to the Company's Annual Report
on Form 10-K for the year ended August 31, 1999).
4.5 Form of Indenture between the Company and Chase Bank of
Texas, National Association, as Trustee, relating to the
Securities (incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-3 (Commission
File No. 333-62279)).
4.6 First Supplemental Indenture (incorporated by reference to
Exhibit (5)(a) to the Company's Current Report on Form 8-K
dated September 24, 1998).
4.7 Second Supplemental Indenture (incorporated by reference to
Exhibit (5)(b) to the Company's Current Report on Form 8-K
dated September 24, 1998).
4.8 Third Supplemental Indenture (incorporated by reference to
Exhibit 4 to the Company's Current Report on Form 8-K dated
February 8, 1999).
4.9 Fourth Supplemental Indenture (incorporated by reference to
Exhibit 4.5 to the Company's Registration Statement on Form
S-3 (Commission File No. 333-76375)).
4.10 Fifth Supplemental Indenture (incorporated by reference to
Exhibit 4 to the Company's Current Report on Form 8-K dated
August 17, 1999).
4.11 Sixth Supplemental Indenture.
4.12 Form of Note (included in Exhibit 4.11).
4.13 Form of Exchange Note (included in Exhibit 4.11).
4.14 Registration Rights Agreement, dated as of March 1, 2000,
among the Company and the Initial Purchasers.
5.1 Opinion of Gable & Gotwals.
12.1 Statement of Computation of Ratio of Earnings to Combined
Fixed Charges and Preferred Stock Dividend Requirements.
12.2 Statement of Computation of Ratio of Earnings to Fixed
Charges.
23.1 Consent of KPMG LLP.
23.2 Consent of Gable & Gotwals (included in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
</TABLE>
<PAGE> 50
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
25.1 Statement of Eligibility of Chase Bank of Texas, National
Association under the Trust Indenture Act of 1939 on Form
T-1 relating to the Indenture.
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Letter to DTC Participants and Form of Instruction
to Registered Holder and/or Book-Entry Transfer Participant
from Owner.
99.4 Form of Letter to Clients.
</TABLE>
<PAGE> 1
EXHIBIT 1.1
- --------------------------------------------------------------------------------
ONEOK, INC.
$350,000,000
7.75% Notes
Due 2005
PURCHASE AGREEMENT
Dated: February 24, 2000
================================================================================
<PAGE> 2
ONEOK, INC.
$350,000,000
7.75% Notes
Due 2005
PURCHASE AGREEMENT
February 24, 2000
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
FIRST UNION SECURITIES, INC.
J.P. MORGAN SECURITIES INC.
PAINEWEBBER INCORPORATED
SALOMON SMITH BARNEY INC.
as the Initial Purchasers
c/o Banc of America Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
Ladies and Gentlemen:
ONEOK, Inc., an Oklahoma corporation (the "Company"), confirms its
agreement (the "Agreement") with Banc of America Securities LLC ("BofA"), Banc
One Capital Markets, Inc., First Union Securities, Inc., J.P. Morgan Securities
Inc., PaineWebber Incorporated and Salomon Smith Barney Inc. (collectively, the
"Initial Purchasers," which term shall also include any initial purchaser
substituted as hereinafter provided in Section 11 hereof), with respect to the
issue and sale by the Company and the purchase by the Initial Purchasers,
severally and not jointly, of the respective principal amounts set forth in
SCHEDULE A hereto of $350,000,000 aggregate principal amount of the Company's
7.75% Notes due 2005 (the "Notes"). The Notes are to be issued pursuant to an
indenture dated as of September 24, 1998 (as amended or supplemented through the
date hereof, the "Indenture"), between the Company and Chase Bank of Texas,
National Association, as trustee (the "Trustee").
The Company understands that the Initial Purchasers propose to make an
offering of the Notes on the terms and in the manner set forth herein and agrees
that the Initial Purchasers may resell, subject to the conditions set forth
herein, all or a portion of the Notes to purchasers ("Subsequent Purchasers") at
any time after the date of this Agreement. The Notes are to be offered and sold
through the Initial Purchasers without such transactions being registered under
the U.S. Securities Act of 1933, as amended (the "1933 Act"), in reliance upon
exemptions therefrom. Pursuant to the terms of the Notes and the Indenture,
investors that acquire Notes may only resell or otherwise transfer such Notes if
such transactions are hereafter registered under the 1933 Act or if an exemption
from the registration requirements of the 1933 Act is available (including the
exemptions afforded by Rule 144A ("Rule 144A") or Regulation S ("Regulation S")
of the rules and regulations promulgated under the 1933 Act by the U.S.
Securities and Exchange Commission (the "Commission")).
<PAGE> 3
Subsequent Purchasers of the Notes will have the registration rights set
forth in the registration rights agreement (the "Registration Rights
Agreement"), to be dated the date of the Closing Time referred to in Section
2(b) hereof, in substantially the form of ANNEX 1 hereto, for so long as such
Notes constitute Registrable Notes (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company will
agree to, among other things, file with the Commission in the circumstances set
forth therein, a registration statement under the 1933 Act (the "Registration
Statement") relating to an exchange offer for the outstanding Notes (the
"Exchange Offer") pursuant to which securities (the "Exchange Notes") that will
have terms identical in all material respects to the Notes (except with respect
to liquidated damages or transfer restrictions) will be offered in exchange for
the then outstanding Notes tendered for exchange at the option of the holders
thereof. This Agreement, the Indenture, the Notes and the Registration Rights
Agreement are hereinafter sometimes referred to collectively as the "Operative
Documents."
The Company has prepared and delivered to each Initial Purchaser copies of
a preliminary offering memorandum dated February 21, 2000 (the "Preliminary
Offering Memorandum") and has prepared and will deliver to each Initial
Purchaser, on the date hereof or on the next succeeding day, copies of a final
offering memorandum dated February 24, 2000 (the "Final Offering Memorandum"),
each for use by such Initial Purchaser in connection with its solicitation of
purchases of, or offering of, Notes. "Offering Memorandum" means, with respect
to any date or time referred to in this Agreement, the most recent offering
memorandum (whether the Preliminary Offering Memorandum or the Final Offering
Memorandum, or any amendment or supplement to either such document), including
exhibits thereto and any documents incorporated therein by reference, which has
been prepared and delivered by the Company to the Initial Purchasers in
connection with their solicitation of purchases of, or offering of, the Notes.
All references in this Agreement to financial statements and schedules and
other information that is "contained," "included" or "stated" in the Offering
Memorandum (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information that
are incorporated by reference in the Offering Memorandum; and all references in
this Agreement to amendments or supplements to the Offering Memorandum shall be
deemed to mean and include the filing of any document under the U.S. Securities
Exchange Act of 1934, as amended (the "1934 Act"), that is incorporated by
reference in the Offering Memorandum.
SECTION 1. Representations and Warranties.
Representations and Warranties of the Company. The Company, as to itself
and its subsidiaries, represents and warrants to each Initial Purchaser as of
the date hereof and as of the Closing Time referred to in Section 2(b) hereof,
and agrees with each Initial Purchaser, as follows:
(a) Neither the Company nor any of its affiliates, as such term is defined
in Rule 501(b) under the 1933 Act (each, an "Affiliate"), has, directly or
indirectly, solicited any offer to buy, sold or offered to sell or otherwise
negotiated in respect of, or will solicit any offer to buy or offer to sell or
otherwise negotiate in respect of, in the United States or to any United States
citizen or resident, any security, if such transaction is or would be integrated
with the sale
2
<PAGE> 4
of the Notes in a manner that would require the offer and sale of the notes to
be registered under the 1933 Act.
(b) The Offering Memorandum (including the information incorporated by
reference therein (the "Incorporated Documents")) does not, and any supplement
or amendment to it 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, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
contained in this paragraph (b) shall not apply to statements in or omissions
from the Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchasers furnished to the Company in
writing by or on behalf of the Initial Purchasers expressly for use therein. The
Incorporated Documents, at the time they were or hereafter are filed or last
amended, as the case may be, with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act.
(c) The only subsidiaries of the Company are those named on SCHEDULE C. The
Company and each of its subsidiaries has been duly organized, is validly
existing as a corporation or limited liability company in good standing under
the laws of its jurisdiction of incorporation or organization and has full power
and authority to carry on its business as it is currently being conducted and to
own, lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation or limited liability company authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified or in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, cash flow,
business affairs or business prospects of the Company and its subsidiaries,
taken as a whole (the foregoing exception herein defined as a "Material Adverse
Effect").
(d) All of the outstanding shares of capital stock of, or other ownership
interests in, each of the Company's subsidiaries have been duly authorized and
validly issued and, as to capital stock, are fully paid and nonassessable, and
are owned by the Company, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature, except with respect to
subsidiaries that, when taken as a whole, do not account for a material
proportion of the Company's business, operations or assets, and the loss of
which would not result in a Material Adverse Effect.
(e) The Indenture has been duly authorized by the Company and, when duly
executed and delivered in accordance with its terms (assuming the due execution
and delivery thereof by the Trustee), will be a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity) and except to the extent that a
waiver of rights under any usury laws may be unenforceable. At the Closing Time,
the Indenture will conform in all material respects to the requirements of the
Trust Indenture Act of 1939, as amended (the "1939 Act"), and the rules and
regulations of the Commission applicable to an indenture which is qualified
thereunder.
3
<PAGE> 5
(f) The Notes and the issuance and sale of the Notes to the Initial
Purchasers pursuant to the Indenture and this Agreement have been duly
authorized by the Company and at the Closing Time the Notes will have been duly
executed by the Company and will, when issued, executed, authenticated and
delivered in accordance with the Indenture and paid for in accordance with the
terms of this Agreement, constitute legal, valid and binding obligations of the
Company, enforceable against the Company according to their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws affecting creditors' rights and remedies generally and
to general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or in equity) and except to the extent that a waiver of
rights under any usury laws may be unenforceable, will be entitled to the
benefits of the Indenture and will conform in all material respects to the
description thereof in the Offering Memorandum.
(g) The description of the Notes in the Offering Memorandum is, and at the
Closing Date will be, complete and accurate in all respects. The Indenture and
the Registration Rights Agreement conform to the descriptions thereof contained
in the Offering Memorandum.
(h) The Exchange Notes have been duly authorized by the Company and when
executed, authenticated and delivered in accordance with the Indenture and the
Registration Rights Agreement will constitute legal, valid and binding
obligations of the Company, enforceable against the Company according to their
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity) and except to the extent that a
waiver of rights under any usury laws may be unenforceable, and will be entitled
to the benefits of the Indenture.
(i) Neither the Company nor any of its subsidiaries is in violation of its
respective charter or by-laws or other equivalent instruments, as the case may
be, or, except such as would not have a Material Adverse Effect, in default in
the performance of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any other agreement,
lease, contract, indenture or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound, and there exists no condition which, with the
passage of time or otherwise, would constitute such a default under any such
document or instrument, except such as would not have a Material Adverse Effect.
(j) The execution, delivery and performance of the Operative Documents,
compliance by the Company with all the provisions thereof and the consummation
of the transactions contemplated thereby will not require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body (except such as may be required under the
securities or blue sky laws of the various states and, with respect to the
Registration Rights Agreement, the Commission) and will not conflict with or
constitute a breach of any of the terms or provisions of, or a default (with the
passage of time or otherwise) under, (i) the charter or by-laws or other
equivalent instruments, as the case may be, of the Company or any of its
subsidiaries, or (ii) except such as would not have a Material Adverse Effect,
any agreement, lease, contract, indenture or other instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries
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<PAGE> 6
or their respective property is bound, or violate or conflict with any laws,
administrative regulations or rulings or court decrees applicable to the
Company, any of its subsidiaries or their respective property.
(k) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any of their
respective property is subject, and, to the best of the Company's knowledge, no
such proceedings are threatened, in each case, except as disclosed or
incorporated by reference in the Offering Memorandum and except such as would
not result in a Material Adverse Effect or, in the case of governmental
proceedings, would not otherwise require disclosure in the Offering Memorandum.
(l) Except as disclosed or incorporated by reference in the Offering
Memorandum, neither the Company nor any of its subsidiaries nor, to the best
knowledge of the Company, any other person or entity for whom any of them is or
may be liable is in violation of any Federal, state, local, provincial or
foreign laws or regulations relating to pollution or protection of human health
or the environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata), including, without limitation,
laws and regulations relating to emissions, discharges, releases or threatened
releases of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products, asbestos or
asbestos-containing materials, or polychlorinated biphenyls ("Materials of
Environmental Concern"), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, "Environmental Laws"), which
violation would have a Material Adverse Effect. For purposes of this Section
1(l) and Section 1(n), "Violation" includes, but is not limited to,
noncompliance with any permit or other governmental authorization required under
applicable Environmental Laws and noncompliance with the terms and conditions of
any such permit or authorization.
(m) Neither the Company nor any of its subsidiaries has received any
communication (written or oral), whether from a governmental authority,
citizens' group, employee or otherwise, asserting that the Company or any of its
subsidiaries or any other person or entity for whom any of them is or may be
liable is not in compliance with any Environmental Laws or permit or
authorization required under applicable Environmental Laws where such failure to
comply would have a Material Adverse Effect, and there are no circumstances that
may prevent or interfere with such full compliance in the future, except where
failure so to comply would not have a Material Adverse Effect.
(n) Except as disclosed or incorporated by reference in the Offering
Memorandum, there is no claim, action, cause of action, investigation or notice
(written or oral) by any person or entity alleging potential liability
(including, without limitation, potential liability for investigatory costs,
natural resources damages, property damages, personal injuries or penalties)
arising out of, based on or resulting from (i) the presence in or release into
the environment of any Materials of Environmental Concern at any location owned,
leased or operated, now or in the past, by the Company or any of its
subsidiaries, or, to the best knowledge of the Company, any other person or
entity for whom any of them is or may be liable, or (ii) circumstances forming
the basis of any violation or alleged violation of any Environmental Law
(collectively, "Environmental Claims") pending or threatened against the Company
or any of its subsidiaries or, to the best knowledge of the Company, any other
person or entity whose liability for any
5
<PAGE> 7
Environmental Claim the Company or any of its subsidiaries has retained or
assumed either contractually or by operation of law, except any such matter that
would not have a Material Adverse Effect.
(o) Except as disclosed or incorporated by reference in the Offering
Memorandum, to the best of the Company's knowledge, there are no past or present
actions, activities, circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge, presence or disposal of
any Materials of Environmental Concern, that could form the basis of any
Environmental Claim against the Company or any of its subsidiaries with respect
to property owned, leased or operated by or for the Company or any of its
subsidiaries, now or in the past, or against any person or entity whose
liability for any Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of law, except any such
matter that would not have a Material Adverse Effect.
(p) Except for liabilities pursuant to Environmental Laws reflected in the
Company's financial statements as set forth or incorporated by reference in the
Offering Memorandum, the Company has reasonably concluded that no such
liabilities of which it is currently aware would, singly or in the aggregate,
have a Material Adverse Effect.
(q) Except such as would not, singly or in the aggregate, have a Material
Adverse Effect and except as described in the Offering Memorandum, the Company
and each of its subsidiaries has good and marketable title, free and clear of
all liens, claims, encumbrances and restrictions, except liens for taxes not yet
due and payable, to all property and assets described in the Offering Memorandum
as being owned by it. All leases to which the Company or any of its subsidiaries
is a party are valid and binding and, except such as would not have a Material
Adverse Effect, no default has occurred or is continuing thereunder; and, with
respect to real property leases, the Company and its subsidiaries enjoy peaceful
and undisturbed possession under all such leases to which any of them is a party
as lessee.
(r) The Company and each of its subsidiaries maintains insurance in amounts
and with limits and coverage which the Company in good faith deems appropriate.
(s) The accountants who certified the financial statements and supporting
schedules included or incorporated by reference in the Offering Memorandum are
independent public accountants with respect to the Company as required by the
1933 Act.
(t) The financial statements, together with related schedules and notes,
set forth or incorporated by reference in the Offering Memorandum (and any
amendment or supplement thereto) present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and its subsidiaries at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial information and data of the Company and its
subsidiaries set forth in the Offering Memorandum (and any amendment or
supplement thereto) is, in all material respects, fairly presented and prepared
on a basis consistent with such financial statements and the books and records
of the Company. There are no pro forma financial statements or other pro forma
financial information that would be required to be included or incorporated by
reference in a registration statement filed under the
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<PAGE> 8
1933 Act if the Notes were being registered under the 1933 Act. No other
financial statements or schedules of the Company would be required by the 1933
Act, the 1934 Act or the Rules and regulations promulgated under the 1933 Act by
the Commission to be included or incorporated by reference in the Offering
Memorandum if the Notes were being registered under the 1933 Act.
(u) Except such as would not result in a Material Adverse Effect, (i) the
Company and each of its subsidiaries has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("Authorizations") as
are necessary to own, lease and operate its respective properties and to conduct
its business in the manner described in the Offering Memorandum or the
Incorporated Documents; (ii) the Company and each of its subsidiaries has
fulfilled and performed all of its obligations with respect to such
Authorizations and no event has occurred which allows, or after notice or lapse
of time or both would allow, revocation or termination thereof or results in any
other impairment of the rights of the holder of any such Authorizations; and
(iii) such Authorizations contain no restrictions that are burdensome to the
Company or any of its subsidiaries.
(v) The Company is not an "investment company" or a company "controlled" by
or an "affiliated person" of an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(w) Neither the Company nor any of its subsidiaries is a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935 (the "1935
Act") or a "subsidiary company," "associated company" or "affiliate" of any
"holding company" within the meaning of the 1935 Act. Neither the Company nor
any of its subsidiaries is subject to regulation under the Natural Gas Act.
(x) No holder of any security of the Company has any right to require
registration of any security of the Company on the Registration Statement
relating to the Exchange Notes.
(y) Except such as would not, singly or in the aggregate, have a Material
Adverse Effect, neither the Company nor any of its subsidiaries has (i) violated
any applicable federal, state, local or foreign law relating to employment or
employment practices or the terms and conditions of employment, including,
without limitation, discrimination in the hiring, promotion or pay of employees,
wages, hours of work, plant closings and layoffs, collective bargaining, and
occupational safety and health, or any provisions of the Worker Adjustment and
Retraining Notification Act of 1988 or the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or the rules and regulations promulgated
thereunder or any other applicable law, rule or regulation (whether foreign or
domestic) relating to or governing the operation or maintenance of any plan or
arrangement falling within the definition of an "employee benefit plan" (as such
term is defined in Section 3(3) of ERISA) or any other employee pension or
benefit plan or arrangement, or (ii) engaged in any unfair labor practice.
Except such as would not, singly or in the aggregate, result in any Material
Adverse Effect, there is (A) no charge pending or, to the best of the Company's
knowledge, threatened against the Company or any of its subsidiaries before the
Equal Employment Opportunity Commission or any other federal, state, local or
foreign agency responsible for the enforcement of labor or employment laws and,
to the best of the Company's knowledge, no such agency is conducting or has
threatened to initiate an investigation of or relating to the Company or any of
its subsidiaries; (B) no
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<PAGE> 9
complaint, lawsuit or other proceeding pending or, to the best of the Company's
knowledge, threatened against the Company or any of its subsidiaries in which
any current or former employee, applicant for employment or class of the
foregoing is alleging breach of any express or implied contract of employment of
other violation of any federal, state, local, or foreign law relating to
employment or employment practices or the terms and conditions of employment;
(C) no unfair labor practice charge or complaint pending or, to the best of the
Company's knowledge, threatened against the Company or any of its subsidiaries
before the National Labor Relations Board or any corresponding state, local,
provincial or foreign agency, and no grievance or arbitration proceeding arising
out of or under any collective bargaining agreement is pending or, to the best
of the Company's knowledge, threatened against the Company or any of its
subsidiaries; (D) to the best of the Company's knowledge, no union
representation claim or question existing with respect to the employees of the
Company or any of its subsidiaries and no union organizing activities taking
place; and (E) no claim, proceeding, action, audit or investigation pending,
filed or reasonably anticipated with respect to any employee pension or benefit
plan. Except as disclosed or incorporated by reference in the Offering
Memorandum, neither the Company nor any of its subsidiaries is a party to or
bound by any collective bargaining or similar agreement with any labor
organization, or work rules or practices agreed to with any labor organization
or employee association applicable to employees of the Company or any of its
subsidiaries. Except such as would not, singly or in the aggregate, result in
any Material Adverse Effect, (1) no labor dispute involving the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company,
is threatened or imminent; and (2) the Company is not aware of any existing,
threatened labor disturbance by the employees of any principal suppliers or
contractors of the Company or any of its subsidiaries.
(z) The books, records and accounts of the Company and its subsidiaries
accurately and fairly reflect, in reasonable detail, the transactions in and
dispositions of the assets of the Company and its subsidiaries. The Company and
each of its subsidiaries maintains 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.
(aa) All material tax returns required to be filed by the Company and each
of its subsidiaries have been filed and all such returns are true, complete, and
correct in all material respects. All material taxes that are due or claimed to
be due from the Company and each of its subsidiaries have been paid other than
those (i) currently payable without penalty or interest or (ii) being contested
in good faith and by appropriate proceedings and for which adequate reserves
have been established in accordance with generally accepted accounting
principles ("GAAP"). There are no proposed tax assessments against the Company
or any of its subsidiaries that could singly or in the aggregate have a Material
Adverse Effect. The accruals and reserves on the books and records of the
Company and its subsidiaries in respect of any material tax liability for any
taxable period not finally determined are adequate to meet any assessments of
tax for any such period.
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<PAGE> 10
(bb) The Company and its subsidiaries own, or are licensed or otherwise
have the full exclusive right to use, all material trademarks, service marks and
trade names presently employed by them in connection with the businesses now
operated by them, except such as to which the failure would not, singly or in
the aggregate, have a Material Adverse Effect, and neither the Company nor any
of its subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing, which, singly or
in the aggregate, if the subject of any unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(cc) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws and subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws affecting
creditors' rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
(dd) The Company has full power, authority and legal capacity to enter into
and perform its obligations under this Agreement, and the Company has taken all
necessary corporate action to authorize the execution and the performance of its
obligations under this Agreement.
(ee) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Notes by the Company, in connection with the execution, delivery and performance
of this Agreement or the Registration Rights Agreement by the Company or in
connection with the taking by the Company of any action contemplated hereby and
in the Indenture, the Notes or the Registration Rights Agreement, except such as
have been obtained or as may be required under the 1933 Act in connection with
the Exchange Notes and such as may be required under state securities or "blue
sky" laws.
(ff) Each of the Company and its subsidiaries is in compliance with all
laws, ordinances and regulations (domestic and foreign) applicable to its
properties (whether owned or leased) and its business, as described in the
Offering Memorandum, except where noncompliance with such laws, ordinances and
regulations would not, singly or in the aggregate, have a Material Adverse
Effect.
(gg) The Registration Rights Agreement has been duly authorized by the
Company and, at the Closing Time, will have been duly executed and delivered by
the Company. When the Registration Rights Agreement has been duly executed and
delivered, such agreement will be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws and subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws affecting
creditors' rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity), and will conform in all material respects to the description thereof in
the Offering Memorandum.
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<PAGE> 11
(hh) Other than as described in the Offering Memorandum, no "nationally
recognized statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the 1933 Act (i) has imposed (or has informed the
Company that it is considering imposing) any condition (financial or otherwise)
on the Company's retaining any rating assigned to any securities of the Company
or (ii) has indicated to the Company that it is considering (A) the downgrading,
suspension, or withdrawal of, or any review for a possible change that does not
indicate the direction of the possible change in, any rating so assigned or (B)
any change in the outlook for any rating of the Company or any securities of the
Company.
(ii) Since the respective dates as of which information is given in the
Offering Memorandum, other than as disclosed in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there has not occurred any material adverse change or any
development involving a prospective material adverse change in the condition,
financial or otherwise, or the earnings, business, management or operations of
the Company and its subsidiaries, taken as a whole (a "Material Adverse
Change"), (ii) there has not been any Material Adverse Change in the capital
stock or in the long-term debt of the Company or any of its subsidiaries.
(jj) Each of the Preliminary Offering Memorandum and the Final Offering
Memorandum, as of its date, contains all the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the 1933 Act.
(kk) When the Notes are issued and delivered by the Company pursuant to
this Agreement, the Notes will not be of the same class (within the meaning of
Rule 144A) as any security of the Company that is listed on a national
securities exchange registered under Section 6 of the 1934 Act or that is quoted
in a United States automated interdealer quotation system.
(ll) No form of general solicitation or general advertising (as defined in
Regulation D under the 1933 Act) was used by the Company or any of its
representatives (other than the Initial Purchasers, as to whom the Company makes
no representation) in connection with the offer and sale of the Notes
contemplated hereby, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio or at any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. No
securities of the same class as the Notes have been issued and sold by the
Company within the six-month period immediately prior to the date hereof.
(mm) Prior to the effectiveness of any Registration Statement, the
Indenture is not required to be qualified under the 1939 Act, assuming the
accuracy of the Initial Purchasers' representations and warranties set forth in
Section 2(c) hereof and that there has been no breach by the Initial Purchasers
of their agreements pursuant to Section 6(a) hereof.
(nn) No registration under the 1933 Act is required for the sale of the
Notes to the Initial Purchasers as contemplated hereby or for the offers (the
"Exempt Resales") of the Notes purchased hereunder on the terms set forth in the
Offering Memorandum, as amended or supplemented, (i) to persons each of whom the
applicable Initial Purchaser reasonably believes to be a "qualified
institutional buyer" within the meaning of Rule 144A (a "Qualified
10
<PAGE> 12
Institutional Buyer") or (ii) in offshore transactions meeting the requirements
of Regulations S under the 1933 Act ("Regulation S"), assuming the accuracy of
the Initial Purchasers' representations and warranties set forth in Section 2(c)
hereof and that there has been no breach by the Initial Purchasers of their
agreements pursuant to Section 6(a) hereof.
(oo) Each certificate signed by any officer of the Company and delivered to
the Initial Purchasers or counsel for the Initial Purchasers shall be deemed to
be a representation and warranty by the Company to the Initial Purchasers as to
the matters covered thereby.
(pp) None of the Company or any of its subsidiaries is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying any Margin Stock (as defined in Regulation
U of the Board of Governors of the Federal Reserve System as in effect from time
to time).
The Company acknowledges that the Initial Purchasers and, for purposes of
the opinions to be delivered to the Initial Purchasers pursuant to Section 5
hereof, counsel to the Company and counsel to the Initial Purchasers, will rely
upon the accuracy and truth of the foregoing representations and hereby consents
to such reliance.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) Notes. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Initial Purchaser, severally and not jointly, and each
Initial Purchaser, severally and not jointly, agrees to purchase from the
Company, at the price set forth in SCHEDULE B, the aggregate principal amount of
Notes set forth in SCHEDULE A opposite the name of such Initial Purchaser, plus
any additional principal amount of Notes that such Initial Purchaser may become
obligated to purchase pursuant to the provisions of Section 11 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Notes shall be made at the office of Jones, Day, Reavis &
Pogue, 77 West Wacker, Chicago, Illinois 60601, or at such other place as shall
be agreed upon by the Initial Purchasers and the Company at 10:00 a.m. Central
time on the third business day after the date hereof (unless postponed in
accordance with the provisions of Section 11), or such other time not later than
ten business days after such date as shall be agreed upon by the Initial
Purchasers and the Company (such time and date of payment and delivery being
herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Initial Purchasers of certificates of the Notes to be purchased by them.
(c) Qualified Institutional Buyer. Each Initial Purchaser severally and not
jointly represents and warrants to, and agrees with, the Company that it is a
Qualified Institutional Buyer and an "accredited investor" within the meaning of
Rule 501(a) under the 1933 Act (an '"Accredited Investor").
(d) Interests in Global Notes. The Company will cause the Trustee to
authenticate and issue one or more certificates evidencing the Notes to The
Depository Trust Company
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<PAGE> 13
("DTC") registered in the name of Cede & Co., as nominee of DTC or such other
persons as the Initial Purchases shall inform the Company in writing. The
certificates representing the Notes shall be made available for examination by
the Initial Purchasers in The City of New York not later than 10:00 a.m. on the
last business day prior to Closing Time.
SECTION 3. Covenants. The Company covenants with each Initial Purchaser as
follows:
(a) Offering Memorandum. The Company, as promptly as possible, will furnish
to each Initial Purchaser, without charge, such number of copies of the Final
Offering Memorandum and any amendments and supplements thereto and documents
incorporated by reference therein as such Initial Purchaser may reasonably
request.
(b) Notice and Effect or Material Events. The Company will immediately
notify each Initial Purchaser, and confirm such notice in writing, of (i) any
filing made by the Company of information relating to the offering of the Notes
with any securities exchange or any other regulatory body in the United States
or any other jurisdiction, and (ii) prior to the completion of the placement of
the Notes by the Initial Purchasers as evidenced by a notice in writing from the
Initial Purchasers to the Company, any material changes in or affecting the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries that (A) make any statement in the
Offering Memorandum false or misleading or (B) are not disclosed or incorporated
in the Offering Memorandum. In such event or if during such time any event shall
occur as a result of which it is necessary, in the reasonable opinion of the
Company, its counsel, the Initial Purchasers or counsel for the Initial
Purchasers, to amend or supplement the Final Offering Memorandum in order that
the Final Offering Memorandum not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances then existing, the
Company will forthwith amend or supplement the Final Offering Memorandum by
preparing and furnishing to each Initial Purchaser an amendment or amendments
of, or a supplement or supplements to, the Final Offering Memorandum (in form
and substance satisfactory in the reasonable opinion of counsel for the Initial
Purchasers) so that, as so amended or supplemented, the Final Offering
Memorandum will 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 existing at the time it is delivered to a Subsequent
Purchaser, not misleading.
(c) Amendment to Offering Memorandum and Supplements. The Company will
advise each Initial Purchaser promptly of any proposal to amend or supplement
the Offering Memorandum and will not effect such amendment or supplement without
the consent of the Initial Purchasers. Neither the consent of the Initial
Purchasers, nor an Initial Purchaser's delivery of any such amendment or
supplement, shall constitute a waiver of any of the conditions set forth in
Section 5 hereof.
(d) Qualification of Notes for Offer and Sale. The Company will use its
reasonable best efforts, in cooperation with the Initial Purchasers, to qualify
the Notes for offering and sale under the applicable securities laws of such
jurisdictions as the Initial Purchasers may designate and will maintain such
qualifications in effect as long as required for the sale of the Notes;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in Notes in any jurisdiction in
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<PAGE> 14
which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject.
(e) Rating of Notes. The Company shall take all reasonable action necessary
to enable Standard & Poor's Ratings Service, a division of The McGraw Hill
Companies, Inc. ("S&P") and Moody's Investors Service ("Moody's") to provide
their respective credit ratings of the Notes.
(f) DTC. The Company will cooperate with the Initial Purchasers and use its
reasonable best efforts to permit the Notes to be eligible for clearance and
settlement through the facilities of DTC.
(g) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Notes in the manner specified in the Offering Memorandum
under "Use of Proceeds."
(h) Restriction on Sale of Notes. During a period of 20 days from the date
of the Offering Memorandum, the Company will not, without the prior written
consent of the Initial Purchasers, directly or indirectly, issue, sell, offer or
agree to sell, grant any option for the sale of, or otherwise dispose of, any
Notes or securities of the Company that are convertible into, or exchangeable
for, the Notes.
SECTION 4. Payments of Expenses.
(a) Expenses. Other than the fees and disbursements of counsel for the
Initial Purchasers, the Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and delivery to the Initial Purchasers of this Agreement,
the Registration Rights Agreement, the Indenture and such other documents as may
be required in connection with the offering, purchase, sale, issuance or
delivery of the Notes, (ii) the preparation, issuance and delivery of the
certificates for the Notes to the Initial Purchasers, including any charges of
DTC in connection therewith, (iii) the fees and disbursements of the Company's
accountants and other advisors, (iv) the qualification of the Notes in
accordance with the provisions of Section 3(d) hereof, including fees and
disbursements of counsel for the Initial Purchasers and filing fees in
connection therewith, (v) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Notes, and (vi) any fees payable in connection with the rating
of the Notes.
(b) Termination of Agreement. If this Agreement is terminated by the
Initial Purchasers in accordance with the provisions of Section 5(h) or Section
10 hereof, the Company shall reimburse the Initial Purchasers for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations. The obligations
of the several Initial Purchasers hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officers of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
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<PAGE> 15
(a) Opinion of Counsel for Company. At the Closing Time, the Initial
Purchasers shall have received the favorable opinion, dated as of the Closing
Time, of Gable & Gotwals, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Initial Purchasers, to the effect set
forth in EXHIBIT A hereto and to such further effect as counsel to the Initial
Purchasers may reasonably request. The opinion of Gable & Gotwals described in
this Section 5(a) shall be rendered to the Initial Purchasers at the request of
the Company and shall so state therein. In rendering such opinion, such counsel
may rely upon certificates of any officers of the Company or of government
officials as to matters of fact of which the maker of such certificate has
knowledge provided that counsel rendering such opinion shall furnish the Initial
Purchasers or counsel for the Initial Purchasers with copies of any such
statements, certificates or opinions and, as to opinions, shall state that the
Initial Purchasers are entitled to rely on such opinion. In addition, in
rendering its opinion, such counsel may state that their opinion is limited to
matters of the laws of the State of Oklahoma and the federal law of the United
States.
(b) Opinion of Counsel for Initial Purchasers. At the Closing Time, the
Initial Purchasers shall have received the favorable opinion, dated as of the
Closing Time, of Jones, Day, Reavis & Pogue, counsel for the Initial Purchasers,
in form and substance reasonably satisfactory to the Initial Purchasers. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York and the
federal law of the United States, upon the opinions of counsel satisfactory to
the Initial Purchasers. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(c) Officers' Certificate. At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Offering Memorandum, any Material Adverse Change, whether or not
arising in the ordinary course of business, and the Initial Purchasers shall
have received a certificate of the President, a Vice President, chief financial
or chief accounting officer of the Company, dated as of the Closing Time, to the
effect that (i) there has been no such Material Adverse Change, (ii) the
representations and warranties in Section 1 hereof that are qualified as to
materiality are true and correct in all respects with the same force and effect
as though expressly made at and as of the Closing Time, and the representations
and warranties in Section 1 hereof that are not so qualified as to materiality
are true and correct in all material respects with the same force and effect as
though expressly made at and as of the Closing Time, and (iii) the Company has
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Time.
(d) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Initial Purchasers shall have received from KPMG LLP ("KPMG"),
independent accountant for the Company, a letter dated such date, in form and
substance satisfactory to the Initial Purchasers, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
initial purchasers with respect to the financial statements and certain
financial information contained or incorporated by reference in the Offering
Memorandum.
(e) Bring-down Comfort Letter. At the Closing Time, the Initial Purchasers
shall have received from KPMG a letter, dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (d) of this Section, except that
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<PAGE> 16
the specified date referred to therein shall be a date not more than three
business days prior to the Closing Time.
(f) Maintenance of Rating. At the Closing Time, the Notes shall be rated at
least "A2" by Moody's and "A" by S&P, and the Company shall have delivered to
the Initial Purchasers a letter dated the date of the Closing Time from each
such rating agency, or other evidence reasonably satisfactory to the Initial
Purchasers, confirming that the Notes have such ratings; and since the date of
this Agreement there shall not have occurred a downgrading in the rating
assigned to the Notes or any of the Company's other debt securities by any
"nationally recognized statistical rating agency," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the 1933 Act, no such
securities rating agency shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of the
Notes or any of the Company's other debt securities.
(g) Additional Documents. At the Closing Time, counsel for the Initial
Purchasers shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Notes as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Notes as herein contemplated shall be reasonably
satisfactory in form and substance to the Initial Purchasers and counsel for the
Initial Purchasers.
(h) Termination of Agreement. If any condition specified in this Section
that is to be fulfilled by the Company shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by the Initial
Purchasers by notice to the Company at any time at or prior to the Closing Time,
and such termination shall be without liability of any party to any other party
except as to expenses payable under Section 4 and except that Sections 1, 7, 8
and 9 shall survive any such termination and remain in full force and effect.
SECTION 6. Subsequent Offers and Resales of the Notes.
(a) Offer and Sale Procedures. Each of the Initial Purchasers and the
Company shall agree to observe the following procedures in connection with the
offer and sale of the Notes:
(i) Offers and Sales only to Qualified Institutional Buyers. Offers
and sales of the Notes shall only be made (A) to persons whom the offeror
or seller reasonably believes to be Qualified Institutional Buyers or (B)
in offshore transactions meeting the requirements of Regulation S.
(ii) No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the 1933 Act) will be
used in the United States in connection with the offering or sale of the
Notes.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of Notes acting as a fiduciary for one or more third
parties, each third party shall, in the judgment of the applicable Initial
Purchaser, be a Qualified Institutional Buyer or a Non-U.S. Person within
the meaning of Regulation S.
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<PAGE> 17
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
take reasonable steps to inform, and cause each of its affiliates to take
reasonable steps to inform, persons acquiring Notes from such Initial
Purchaser or affiliate, as the case may be, in the United States that (A)
the offering and sale of the Notes have not been and will not be registered
under the 1933 Act, (B) the Notes are being sold to them without
registration under the 1933 Act in reliance on Rule 144A or Regulation S
and (C) the Notes may not be offered, sold or otherwise transferred except
(1) to the Company, (2) pursuant to a registration statement which has been
declared effective under the 1933 Act, or (3) in accordance with (x) Rule
144A to a person whom the seller reasonably believes is a Qualified
Institutional Buyer that is purchasing such Notes for its own account or
for the account of a Qualified Institutional Buyer to whom notice is given
that the offer, sale or transfer is being made in reliance on Rule 144A or
(y) pursuant to another available exemption from registration under the
1933 Act.
(v) Restrictions on Transfer. The transfer restrictions and the other
provisions set forth in the Offering Memorandum under the heading "Notice
to Investors," including the legend required thereby, shall apply to the
Notes except as otherwise agreed by the Company and the Initial Purchasers.
(vi) Delivery of Offering Memorandum. Each Initial Purchaser will
deliver to each purchaser of the Notes from such Initial Purchaser, in
connection with its original distribution of the Notes, a copy of the
Offering Memorandum, as amended and supplemented at the date of such
delivery.
(b) Covenants of the Company. The Company covenants with each Initial
Purchaser as follows:
(i) Integration. The Company will not and will cause its Affiliates
not to solicit any offer to buy or make any offer or sale of, or otherwise
negotiate in respect of, securities of the Company of any class if, as a
result of the doctrine of "integration" referred to in Rule 502 under the
1933 Act, such offer or sale would render invalid (for the purpose of (i)
the sale of the Notes by the Company to the Initial Purchasers, (ii) the
resale of the Notes by the Initial Purchasers to Subsequent Purchasers or
(iii) the resale of the Notes by such Subsequent Purchasers to others) the
exemption from the registration requirements of the 1933 Act provided by
Section 4(2) thereof or by Rule 144A or by Regulation S thereunder or
otherwise.
(ii) Rule 144A Information. In order to render the Notes eligible for
resale pursuant to Rule 144A under the 1933 Act, while any of the Notes
remain outstanding, the Company will make available, upon request, to any
holder of Notes or prospective purchasers of Notes the information
specified in Rule 144A(d)(4), unless the Company furnishes information to
the Commission pursuant to Section 13 or 15(d) of the 1934 Act (such
information, whether made available to holders or prospective purchasers or
furnished to the Commission, is herein referred to as "Additional
Information").
(c) Resale Pursuant to Rule 144A. Each Initial Purchaser understands that
the offering and sale of the Notes have not been and will not be registered
under the 1933 Act and the Notes may not be offered or sold within the United
States or to, or for the account or benefit
16
<PAGE> 18
of, U.S. Persons except in accordance with an exemption from the registration
requirements of the 1933 Act. Each Initial Purchaser severally represents and
agrees, that it has offered and sold Notes and will offer and sell Notes as part
of their distribution at any time only in accordance with Rule 144A under the
1933 Act or Regulation S.
SECTION 7. Indemnification.
(a) The Company shall indemnify and hold harmless (i) each of the Initial
Purchasers and (ii) each person, if any, who controls (within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act) any of the Initial
Purchasers (any of the persons referred to in this clause (ii) being hereinafter
referred to as a "controlling person"), and (iii) the respective officers,
directors, partners, employees, representatives and agents of any of the Initial
Purchasers or any controlling person (any person referred to in clause (i), (ii)
or (iii) may hereinafter be referred to as an "Indemnified Person") to the
fullest extent lawful from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without limitation and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action or any investigation or proceeding by
any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Indemnified Person) directly or
indirectly caused by, related to, based upon, arising out of or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in the Offering Memorandum (or any amendment thereto) or any document
incorporated by reference therein or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Offering Memorandum, in light of the
circumstances under which they were made) not misleading, except insofar as such
losses, claims, damages, liabilities, judgments, actions or expenses are caused
by an untrue statement or omission or alleged untrue statement or omission that
is (A) made in reliance upon and in conformity with information relating to any
Initial Purchaser furnished in writing to the Company by such Initial Purchaser
expressly for use in the Offering Memorandum ("Initial Purchaser Information")
or (B) with respect to the Initial Purchaser from whom the person asserting the
loss, claim, damage or liability purchased Notes, made in any Preliminary
Offering Memorandum if a copy of the Offering Memorandum (as amended or
supplemented) shall have been furnished to the Initial Purchasers by the Company
with such amendments or supplements thereto on a timely basis and such Offering
Memorandum was not delivered by or on behalf of any of the Initial Purchasers to
the person asserting the claim or action if required by law to have been so
delivered by the Indemnified Person seeking indemnification, at or prior to the
written confirmation of the sale of the Notes, and it shall be finally
determined by a court of competent jurisdiction, by a judgment not subject to
appeal or review, that the Offering Memorandum (as so amended or supplemented)
would have corrected such untrue statement or omission. The Company shall notify
you promptly of the institution, threat or assertion of any claim, proceeding
(including any governmental investigation) or litigation in connection with the
matters addressed by this Agreement which involves the Company or an Indemnified
Person. The parties hereto agree that for purposes of this Section 7 and Section
1(b) the only Initial Purchasers Information are (1) the names of the Initial
Purchasers on the front and back cover pages of the Offering Memorandum and in
the first paragraph under the heading "Plan of Distribution" in the Offering
Memorandum and (2) the statements contained in the third and fourth sentences in
the third paragraph, the fourth sentence in the fourth paragraph, the fifth
paragraph and the sixth paragraph under the heading "Plan of Distribution" in
the Offering Memorandum.
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<PAGE> 19
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any Indemnified Person with
respect to which indemnity may be sought from an indemnifying party (or
indemnifying parties), such Indemnified Person shall promptly notify the
indemnifying party (or indemnifying parties) in writing (provided that the
failure to give such notice shall not relieve the indemnifying party (or
indemnifying parties) of its or their obligations pursuant to this Agreement
unless and only to the extent such failure to give notice results in the loss or
compromise of any material rights or defenses of the indemnifying party (or
indemnifying parties) as determined by a court of competent jurisdiction by a
final judgment no longer subject to appeal or review and shall not relieve the
indemnifying party from any liability which it may have to an Indemnified Person
otherwise than under this Section 7). Upon receiving such notice, the
indemnifying party (or indemnifying parties) shall be entitled to participate in
any such action or proceeding and to assume, at their sole expense, the defense
thereof, with counsel reasonably satisfactory to such Indemnified Person (who
shall not, except with the consent of the Indemnified Person, be counsel to the
indemnifying party (or indemnifying parties) or an affiliate thereof) and, after
written notice from the indemnifying party (or indemnifying parties) to such
Indemnified Person of its or their election so to assume the defense thereof
within 15 business days after receipt of the notice from the Indemnified Person
of such action or proceeding, the indemnifying party (or indemnifying parties)
shall not be liable to such Indemnified Person hereunder for legal expenses of
other counsel subsequently incurred by such Indemnified Person in connection
with the defense thereof, other than reasonable costs of investigation, unless
(i) the indemnifying party (or indemnifying parties) agrees in writing to pay
such fees and expenses, (ii) the indemnifying party (or indemnifying parties)
fails to assume such defense within the 15 business days specified above or
fails to employ counsel reasonably satisfactory to such Indemnified Person, or
(iii) the named parties to any such action or proceeding (including any
impleaded parties) include both such Indemnified Person and the indemnifying
party (or indemnifying parties) or its or their affiliates, and such Indemnified
Person shall have been advised by counsel in writing that a conflict of interest
exists between such Indemnified Person and the indemnifying party (or
indemnifying parties) or its or their affiliates (in which case, if such
Indemnified Person notifies the indemnifying party (or indemnifying parties) in
writing, neither the indemnifying party (or indemnifying parties) nor its or
their affiliates shall have the right to assume the defense thereof), it being
understood, however, that the indemnifying party (or indemnifying parties) shall
not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for all Indemnified Persons, which firm shall be
designated in writing by BofA so long as it is one of the Indemnified Persons or
by mutual agreement if it is not such a person. No indemnifying party shall be
liable for any settlement of any such action or proceeding effected without its
prior written consent. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested the indemnifying party (or indemnifying
parties) to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, the indemnifying party
(or indemnifying parties) agree that they shall be liable for any settlement of
any proceeding effected without its written consent if (A) such settlement is
entered into more than 90 business days after receipt by the indemnifying party
(or indemnifying parties) of the aforesaid request and (B) the indemnifying
party (or indemnifying parties) shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement. The
indemnifying party (or indemnifying parties) shall not, without the prior
written consent of each Indemnified Person, settle or
18
<PAGE> 20
compromise or consent to the entry of judgment in or otherwise seek to terminate
any pending or threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
any Indemnified Person is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Person from all liability arising out of such action, claim, litigation or
proceeding.
(c) Each of the Initial Purchasers agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers, and any
person controlling (within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act) the Company, to the same extent as the foregoing indemnity
from the Company to each of the Indemnified Persons, but only with respect to
claims and actions based on any Initial Purchaser Information provided by such
Initial Purchaser.
SECTION 8. Contribution. If the indemnification provided for in Section 7
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to herein, then the Company or the Initial Purchasers, as
applicable, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Initial Purchasers on the other hand from the offering of the Notes
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying parties and the indemnified party, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and any of the Initial Purchasers, on the other hand,
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of discounts and commissions but before deducting expenses)
received by the Company bears to the total discounts and commissions received by
such Initial Purchaser. The relative fault of the Company on the one hand, and
the Initial Purchasers, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact related to
information supplied by the Company, on the one hand, or the Initial Purchasers,
on the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The indemnity and contribution obligations of the Company set forth herein and
in Section 7 hereof shall be in addition to any liability or obligation that the
Company may otherwise have (other than with respect to the matters covered by
Section 7 and this Section 8) to any Indemnified Person.
The Company and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 7 and this Section 8, none of the
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<PAGE> 21
Initial Purchasers (or their related Indemnified Persons) shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total discount applicable to the Notes purchased by such Initial Purchaser
exceeds the amount of any damages which such Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute pursuant to
this Section 8 are several in proportion to the respective principal amounts of
Notes purchased by each of the Initial Purchasers hereunder and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Initial Purchaser or by or on
behalf of the Company, and shall survive delivery of the Notes to the Initial
Purchasers.
SECTION 10. Termination of Agreement.
(a) Termination; General. The Initial Purchasers may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Offering
Memorandum, any Material Adverse Change, whether or not arising in the ordinary
course of business, (ii) if there has occurred any material adverse change in
the financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Initial
Purchasers, impracticable to market the Notes or to enforce contracts for the
sale of the Notes, (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the New York Stock Exchange or in the
Nasdaq National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority or (iv) if a banking moratorium has been declared by
either U.S. Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section
10, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 7,
8 and 9 shall survive such termination and remain in full force and effect.
SECTION 11. Default By One or More of The Initial Purchasers. If one or
more of the Initial Purchasers shall fail at the Closing Time to purchase the
Notes which it or they are obligated to purchase under this Agreement (the
"Defaulted Notes"), BofA shall have the right, but not the obligation, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other Initial Purchasers, to purchase all, but not
less than all, of the Defaulted Notes in such amounts as may be agreed upon and
upon the terms
20
<PAGE> 22
herein set forth; if, however, BofA shall not have completed such arrangements
within such 24-hour period, then this Agreement shall terminate without
liability on the part of any non-defaulting Initial Purchaser.
If at the Closing Time any one or more of the Initial Purchasers shall fail
or refuse to purchase the Notes which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of Notes which such
defaulting Initial Purchaser or Initial Purchasers, as the case may be, agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of Notes to be purchased on such date by all Initial
Purchasers, each non-defaulting Initial Purchaser shall be obligated severally,
in the proportion which the principal amount of Notes set forth opposite its
name in SCHEDULE A bears to the aggregate principal amount of Notes which all
the non-defaulting Initial Purchasers, as the case may be, have agreed to
purchase, or in such other proportion as you may specify, to purchase the Notes
which such defaulting Initial Purchaser or Initial Purchasers, as the case may
be, agreed but failed or refused to purchase on such date; provided that in no
event shall the aggregate principal amount of Notes which any Initial Purchaser
has agreed to purchase pursuant to Section 2 hereof be increased pursuant to
this Section 11 by an amount in excess of one-ninth of such principal amount of
Notes without the written consent of such Initial Purchaser. If at the Closing
Time any Initial Purchaser or Initial Purchasers shall fail or refuse to
purchase Notes and the aggregate principal amount of Notes with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
Notes to be purchased by all Initial Purchasers and arrangements satisfactory to
you and the Company for purchase of such Notes are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Initial Purchaser and the Company. In any such case which
does not result in termination of this Agreement, either you or the Company
shall have the right to postpone the Closing Time, but in no event for longer
than seven days, in order that the required changes, if any, in the Offering
Memorandum or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Initial Purchaser
from liability in respect of any default of any such Initial Purchaser under
this Agreement.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to c/o Banc of America Securities LLC, 100 Tryon
Street, Charlotte, North Carolina 28255, attention of Phil Bennett; notices to
the Company shall be directed to it at 100 West Fifth Street, Tulsa, Oklahoma
74103, attention of Jim Kneale.
SECTION 13. Parties. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchasers and the Company and their respective successors and the
controlling persons and other persons referred to in Sections 7 and 8 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Initial Purchasers and the Company and their
respective successors, and said controlling persons and other persons and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation.
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No purchaser of Notes from any Initial Purchaser shall be deemed to be a
successor by reason of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND RULE 327(b) OF THE NEW YORK CIVIL PRACTICE LAWS AND RULES.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
[signature page follows]
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<PAGE> 24
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
ONEOK, INC.
By: /s/ David L. Kyle
-------------------------------------------------
Name: David L. Kyle
Title: President and Chief Operating Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
On behalf of itself and the several underwriters
named in Schedule I hereto
By: /s/ Lynn McConnell
------------------------------
Authorized Signatory
S-1
<PAGE> 25
SCHEDULE A
<TABLE>
<CAPTION>
Principal
Name of Initial Purchaser Amount of Notes
<S> <C>
Banc of America Securities LLC.............................................. $ 210,000,000
Banc One Capital Markets, Inc............................................... 28,000,000
First Union Securities, Inc................................................. 28,000,000
J.P. Morgan Securities Inc.................................................. 28,000,000
PaineWebber Incorporated.................................................... 28,000,000
Salomon Smith Barney Inc.................................................... 28,000,000
--------------
Total................................................................ $ 350,000,000
==============
</TABLE>
<PAGE> 26
SCHEDULE B
ONEOK, INC.
$350,000,000
7.75% Notes due 2005
1. The initial offering price of the Notes shall be 99.837% of the
principal amount thereof ($349,429,500), plus accrued interest, if any, from the
date of issuance.
2. The purchase price to be paid by the Initial Purchasers for the Notes
shall be 99.237% of the principal amount thereof ($347,329,500).
3. The interest rate on the Notes shall be 7.75% per annum.
<PAGE> 27
SCHEDULE C
See attached.
<PAGE> 28
<TABLE>
<CAPTION>
Place of Incorporation
Name or Organization
<S> <C>
Kansas Gas Service Company Kansas
Mid Continent Market Center, Inc. Kansas
Mid Continent Transportation, Inc. Delaware
OkTex Pipeline Company Delaware
ONEOK Field Services Company Oklahoma
ONEOK Financing Company Kansas
ONEOK Gas Marketing Company Delaware
ONEOK Gas Processing, L.L.C. Oklahoma
ONEOK Gas Storage, L.L.C. Oklahoma
ONEOK Gas Transportation, L.L.C. Oklahoma
ONEOK International, Inc. Delaware
ONEOK Leasing Company Delaware
ONEOK Parking Company Delaware
ONEOK Power Marketing Company Delaware
ONEOK Producer Services, L.L.C. Oklahoma
ONEOK Resources Company Delaware
ONEOK Sayre Storage Company Delaware
ONEOK Services Company Oklahoma
ONEOK Technology Company Delaware
Kansas Gas Marketing Company Kansas
Market Center Gathering, Inc. Kansas
ONEOK Field Services Gathering, L.L.C. Oklahoma
ONEOK Field Services Transmission, L.L.C. Oklahoma
ONEOK Field Services Processing, L.L.C. Oklahoma
Alpha Transmission Company Oklahoma
Fifth Street Investment Corporation Oklahoma
Oklahoma Natural Energy Service Company Oklahoma
</TABLE>
<PAGE> 29
EXHIBIT A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(i) the Indenture, the Notes and the Registration Rights Agreement have
been duly authorized, executed and delivered by the Company; the issuance and
sale of the Notes to the Initial Purchasers pursuant to the Agreement have been
duly authorized;
(ii) the Notes, when executed and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the Initial Purchasers
in accordance with the terms of the Agreement, will be legally valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms and entitled to the benefits of the Indenture, subject to the
following exceptions, limitations and qualifications: the effect of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
then or thereafter in effect relating to or affecting the rights and remedies of
creditors; general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or law), and the discretion of the court
before which any proceeding therefor may be brought; the unenforceability under
certain circumstances under law or court decisions of provisions providing for
the indemnification of or contribution to a party with respect to a liability
where such indemnification or contribution is contrary to public policy;
(iii) the Exchange Notes have been duly authorized by the Company and when
executed, authenticated and delivered in accordance with the terms of the
Indenture and the Registration Rights Agreement, will be legally valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of the Indenture,
subject to the following exceptions, limitations and qualifications: the effect
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws then or thereafter in effect relating to or affecting the rights
and remedies of creditors; general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or law), and the discretion
of the court before which any proceeding therefor may be brought; the
unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to
public policy;
(iv) each of the Indenture, assuming due authorization, execution and
delivery thereof by the Trustee, and the Registration Rights Agreement
constitutes a valid and legally binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject to the following
exceptions, limitations and qualifications: the effect of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
then or thereafter in effect relating to or affecting the rights and remedies of
creditors; general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or law), and the discretion of the court
before which any proceeding therefor may be brought; the unenforceability under
certain circumstances under law or court decisions of provisions providing for
the indemnification of or contribution to a party with respect to a liability
where
A-1
<PAGE> 30
such indemnification or contribution is contrary to public policy; the
enforceability of the waiver of rights or defenses under any usury law contained
in the Indenture;
(v) the Notes, the Exchange Notes, the Registration Rights Agreement and
the Indenture conform in all material respects to the descriptions thereof
contained in the Offering Memorandum under the headings "Description of the
Notes" and "Exchange Offer; Registration Rights";
(vi) the Indenture complies as to form in all material respects with the
requirements of the 1939 Act, and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder. It is not necessary in
connection with the offer, sale and delivery of the Notes to the Initial
Purchasers in the manner contemplated by this Agreement or in connection with
the Exempt Resales to qualify the Indenture under the 1939 Act;
(vii) the execution, delivery and performance of this Agreement, the
Registration Rights Agreement and the Indenture by the Company, compliance by
the Company with all the provisions hereof and thereof and the consummation of
the transactions contemplated hereby and thereby, including the issuance and
sale of the Notes and the Exchange Notes to the Initial Purchasers, will not
require any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body (except such
as may be required under the 1933 Act, the 1939 Act or other securities or blue
sky laws or the laws of any foreign countries) and will not conflict with or
constitute a breach of any of the terms or provisions of, or a default (with the
passage of time, the giving of notice or otherwise) under, the charter or
by-laws or other equivalent instruments, as the case may be, of the Company or
any of its subsidiaries or any agreement, lease, contract, indenture or other
instrument referenced in the Offering Memorandum or any document incorporated by
reference therein, or (assuming compliance with all applicable state securities
or blue sky laws or the laws of any foreign countries) violate or conflict with
any valid statutes or valid and published administrative regulations, including
Regulation U of the Federal Reserve Board, applicable to the Company or any of
its subsidiaries or their respective properties or solely in respect of
Regulation U to the Initial Purchasers which, in our opinion, are normally
applicable to the transactions of the type contemplated by this Agreement or
violate any judgment, injunction, order or decree disclosed in writing to us
that names the Company or any of its subsidiaries and is specifically directed
to any of them or any of their respective properties;
(viii) the Company has the corporate power and authority to enter into and
perform this Agreement; and this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the Company
enforceable in accordance with its terms, subject to the following exceptions,
limitations and qualifications: the effect of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws then or thereafter in
effect relating to or affecting the rights and remedies of creditors; general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or law), and the discretion of the court before which any
proceeding therefor may be brought; the unenforceability under certain
circumstances under law or court decisions of provisions providing for the
indemnification of or contribution to a party with respect to a liability where
such indemnification or contribution is contrary to public policy;
A-2
<PAGE> 31
(ix) the Company has been duly incorporated and the Company and each of its
subsidiaries listed on Schedule C to the Purchase Agreement is validly existing
as a corporation or limited liability company in good standing under the laws of
its jurisdiction of incorporation or organization and has full power and
authority required to carry on its business as described in the Offering
Memorandum and to own, lease and operate its properties;
(x) to the best of such counsel's knowledge, each contract or document
material to the Company and its subsidiaries as a whole described in or whose
description is incorporated into the Offering Memorandum is in full force and
effect in accordance with its terms, except such as would not cause a Material
Adverse Effect;
(xi) neither the Company nor any of its subsidiaries is in violation of its
respective charter or by-laws or other equivalent instruments, as the case may
be, and, except such as would not have a Material Adverse Effect, neither the
Company nor any of its subsidiaries is in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any other agreement, lease, contract,
indenture or instrument to which the Company or any of its subsidiaries is a
party or by which it or any of its subsidiaries or their respective property is
bound, and there exists no condition which, with the passage of time or
otherwise, would constitute such a default under any such document or
instrument;
(xii) the execution, delivery and performance of the Agreement, the
Registration Rights Agreement, the Indenture, the Exchange Notes and the Notes
by the Company, compliance by the Company with all the provisions hereof and
thereof and the consummation of the transactions contemplated hereby and thereby
will not require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental body (except
such as may be required under the 1933 Act, the 1939 Act or other securities or
blue sky laws or the laws of any foreign countries) and will not conflict with
or constitute a breach of any of the terms or provisions of, or a default (with
the passage of time or otherwise) under, the charter or by-laws or other
equivalent instruments, as the case may be, of the Company or any of its
subsidiaries or any agreement, lease, contract, indenture or other instrument
referenced in the Offering Memorandum or any document incorporated by reference
therein, or (assuming compliance with all applicable state securities or blue
sky laws and the laws of any foreign countries) to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective properties are bound, or violate or conflict with any valid
statutes or valid and published administrative regulations applicable to the
Company or any of its subsidiaries or their respective properties which are
normally applicable to transactions of the type contemplated by the Agreement or
violate any judgment, injunction, order or decree that names the Company or any
of its subsidiaries and is specifically directed to any of them or any of their
respective properties;
(xiii) there exists no legal or governmental proceeding pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of their respective property is subject which is required to be
described in the Offering Memorandum and is not so described or incorporated by
reference;
A-3
<PAGE> 32
(xiv) the Company has the corporate power and authority to enter into and
perform its obligations under the Agreement, the Indenture, the Registration
Rights Agreement, the Exchange Notes and the Notes;
(xv) all of the issued and outstanding shares of capital stock or
membership interests of each of the subsidiaries have been duly and validly
authorized and issued or created, as the case may be, and, as to capital stock,
are fully paid and nonassessable; and
(xvi) such counsel does not know of any contract or other document to which
the Company or any of its subsidiaries is a party that is required to be
described in the Offering Memorandum or the materials incorporated by reference
therein that has not been so described.
Based upon the participation of such counsel in the preparation of the
documents incorporated by reference in the Offering Memorandum and in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Initial Purchasers and their counsel at which the
contents of the Offering Memorandum were discussed, nothing has come to the
attention of such counsel that causes such counsel to believe that the Offering
Memorandum, as amended or supplemented, as of its date and the date of the
Closing Time, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Such counsel need express no opinion with respect to the
financial statements, schedules and other financial data included or
incorporated by reference in the Offering Memorandum.
A-4
<PAGE> 33
ANNEX 1
Form of Registration Rights Agreement
<PAGE> 34
ANNEX 1
Form of Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of _______, 2000 by and among ONEOK, Inc., an Oklahoma
corporation (the "Company"), and Banc of America Securities LLC, Banc One
Capital Markets, Inc., First Union Securities, Inc., J.P. Morgan Securities
Inc., PaineWebber Incorporated and Salomon Smith Barney Inc. (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated as of
February 24, 2000 (the "Purchase Agreement"), by and between the Company, as
issuer of the 7.75% Notes due 2005 (the "Notes"), and the Initial Purchasers,
which provides for, among other things, the sale by the Company to the Initial
Purchasers of the aggregate principal amount of Notes specified therein. In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closings under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of
Section 3(u) hereof.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(u)
hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in The City of New York, New York are
authorized or required by law or executive order to remain closed.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Consummation Date" shall have the meaning set forth in Section 2(a)
hereof.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided that such depositary must have an
address in the Borough of Manhattan, in The City of New York, New York.
"Effective Date" shall have the meaning set forth in Section 2(a)
hereof.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
<PAGE> 35
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Notes" shall mean the 7.75% Notes due 2005 issued by the
Company under the Indenture containing terms identical to the Notes (except that
(i) interest thereon shall accrue from the last date on which interest has been
paid on the Notes or, if no such interest has been paid, from the date of the
original issue of the Notes and (ii) they will not contain terms with respect to
transfer restrictions under the Securities Act and will not provide for any
Liquidated Damages thereon). Unless the context otherwise indicates, the term
Exchange Notes shall include Private Exchange Notes.
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes for a like amount of Exchange Notes
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Filing Date" shall have the meaning set forth in Section 2(a) hereof.
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable Notes, and each of its respective successors, assigns and direct and
indirect transferees who become registered owners of Registrable Notes under the
Indenture.
"Indemnified Person" shall have the meaning set forth in Section 4(a)
hereof.
"Indemnified Person Information" shall have the meaning set forth in
Section 4(a) hereof.
"Indenture" shall mean the Indenture, dated as of September 24, 1998,
between the Company, as issuer, and Chase Bank of Texas, National Association,
as trustee, as the same may be amended or supplemented from time to time in
accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Inspectors" shall have the meaning set forth in Section 3(o) hereof.
"Issue Date" shall mean March 1, 2000, the date of delivery of the
Notes from the Company to the Initial Purchasers.
2
<PAGE> 36
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Notes.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notes" shall have the meaning set forth in the preamble to this
Agreement.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(u) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company or a government or agency
or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(b)
hereof.
"Private Exchange Notes" shall have the meaning set forth in Section
2(b) hereof.
"Process Agent" shall have the meaning set forth in Section 7(j)
hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all documents incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Records" shall have the meaning set forth in Section 3(o) hereof.
"Registrable Notes" shall mean all Notes and Private Exchange Notes;
provided, however, that Notes shall cease to be Registrable Notes when the
earlier of the following occurs: (i) a Registration Statement with respect to
such Notes or Private Exchange Notes for the exchange or resale thereof shall
have been declared effective under the Securities Act and such Notes or Private
Exchange Notes shall have been exchanged or disposed of pursuant to such
Registration Statement, (ii) such Notes or Private Exchange Notes shall have
been sold pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) under the Securities Act or are eligible to be sold without
restriction as contemplated by Rule 144(k), (iii) such Notes or Private Exchange
Notes shall have ceased to be outstanding, (iv) no Shelf Registration Event has
occurred and the Exchange Offer has concluded in accordance with the provisions
hereof or (v) upon consummation of the Exchange Offer but only with respect to
Notes held by a Holder that are eligible to receive fully tradeable Exchange
Notes in connection with the Exchange Offer.
3
<PAGE> 37
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or NASD registration and filing fees, including,
if applicable, the fees and expenses of any "qualified independent underwriter"
(and its counsel) that is required to be retained by any Holder of Registrable
Notes in accordance with the rules and regulations of the NASD; (ii) all fees
and expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of one counsel for
all underwriters or Holders as a group in connection with blue sky qualification
of any of the Exchange Notes or Registrable Notes) and compliance with the rules
of the NASD; (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing, printing and distributing any underwriting
agreements, securities sales agreements and other documents relating to the
performance of and compliance with this Agreement; (iv) all rating agency fees;
(v) all fees and expenses incurred in connection with the listing, if any, of
any of the Exchange Notes on any securities exchange or exchanges; (vi) the fees
and disbursements of counsel for the Company and of the independent certified
public accountants of the Company, including the expenses of any "cold comfort"
letters required by or incident to the performance of and compliance with this
Agreement; (vii) the reasonable fees and expenses of the Trustee and its counsel
and any exchange agent, escrow agent or custodian; and (viii) any fees and
disbursements of the underwriters customarily required to be paid by issuers or
sellers of securities and the reasonable fees and expenses of any special
experts retained by the Company in connection with any Registration Statement,
but excluding fees of counsel to the underwriters and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any Exchange Notes or Registrable Notes pursuant to the
provisions of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein.
"Representative" shall have the meaning set forth in Section 3(a)
hereof.
"Rule 144(k) Period" shall mean the period of two years (or such other
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
4
<PAGE> 38
"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) hereof which
covers all of the Registrable Notes on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the
Company shall, for the benefit of the Holders, at the Company's cost (i) cause
to be filed with the SEC an Exchange Offer Registration Statement on an
appropriate form under the Securities Act relating to the Exchange Offer within
120 calendar days after the Issue Date (the "Filing Date"), (ii) use its
reasonable best efforts to cause such Exchange Offer Registration Statement to
be declared effective under the Securities Act by the SEC within 210 calendar
days after the Issue Date (the "Effective Date"), (iii) use its reasonable best
efforts to keep such Exchange Offer Registration Statement effective for not
less than 20 Business Days (or longer if required by applicable law) after the
date notice of the Exchange Offer is mailed to the Holders and (iv) use its
reasonable best efforts to cause the Exchange Offer to be consummated within 35
calendar days after the date that the Exchange Offer Registration Statement is
declared effective (the "Consummation Date"). Promptly after the effectiveness
of the Exchange Offer Registration Statement, the Company shall commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
eligible Holder to exchange Registrable Notes for a like principal amount of
Exchange Notes (provided that such Holder (A) is not an Affiliate of the
Company, (B) is not a broker-dealer tendering Registrable Notes acquired
directly from the Company, (C) acquires the Exchange Notes in the ordinary
course of such Holder's business and (D) has no arrangements or understandings
with any Person to participate in the Exchange Offer for the purpose of
distributing Exchange Notes).
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(2) keep the Exchange Offer open for acceptance for a period
of not less than 20 Business Days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
5
<PAGE> 39
(3) utilize the services of the Depositary for the Exchange
Offer with respect to Notes represented by a global certificate;
(4) permit each Holder to withdraw tendered Notes at any time
prior to the close of business, New York City time, on the last
Business Day of the Exchange Period, by sending to the institution
specified in the notice to Holders, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
series and amount of Notes delivered for exchange, and a statement that
such Holder is withdrawing its election to have such Notes exchanged;
(5) notify each Holder that any Notes not tendered by such
Holder in the Exchange Offer will remain outstanding and continue to
accrue interest but will not retain any rights under this Agreement
(except in the case of the Initial Purchasers and Participating
Broker-Dealers as provided herein); and
(6) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(x) accept for exchange all Notes or portions thereof tendered
and not validly withdrawn pursuant to the Exchange Offer;
(y) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by
the Company; and
(z) issue, and cause the Trustee under the Indenture to
promptly authenticate and deliver to each Holder, Exchange Notes equal
in principal amount to the principal amount of the Notes surrendered by
such Holder.
Interest on each of the Exchange Notes issued pursuant to the Exchange
Offer will accrue from the last date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on such Notes,
from the Issue Date. To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, the Company shall use its reasonable
best efforts to complete the Exchange Offer as provided above, and shall comply
with the applicable requirements of the Securities Act, the Exchange Act and
other applicable laws in connection with the Exchange Offer. The Exchange Offer
shall not be subject to any conditions other than the conditions referred to in
Section 2(b)(i) below and those conditions that are customary in similar
exchange offers. Each Holder of Registrable Notes who wishes to exchange such
Registrable Notes for Exchange Notes in the Exchange Offer will be required to
make certain customary representations in connection therewith, including
representations that (i) it is not an Affiliate of the Company, (ii) it is not a
broker-dealer tendering Registrable Notes acquired directly from the Company,
(iii) the Exchange Notes to be received by it are being acquired in the ordinary
course of its business and (iv) at the time of the Exchange Offer, it has no
arrangements or understandings with any Person to participate in the
distribution (within the
6
<PAGE> 40
meaning of the Securities Act) of Exchange Notes. The Company shall inform the
Initial Purchasers, after consultation with the Trustee, of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders in order to facilitate
the tender of Registrable Notes in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Exchange Notes held by Participating
Broker-Dealers to the extent of any prospectus delivery requirement for a period
of 60 days after the Exchange Offer is consummated, and the Company shall not
have any further obligation to register the Registrable Notes held by any Holder
(other than any Initial Purchaser) pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the Company reasonably
determines, after conferring with counsel (which may be in-house counsel), that
the Exchange Offer Registration provided in Section 2(a) above is not available
under applicable law and regulations and currently prevailing interpretations of
the staff of the SEC, (ii) the Exchange Offer is not consummated within 245
calendar days after the Issue Date or (iii) upon the request of any Initial
Purchaser with respect to any Registrable Notes held by it, if such Initial
Purchaser is not permitted, in the written opinion of Jones, Day, Reavis &
Pogue, pursuant to applicable law or applicable interpretations of the staff of
the SEC, to participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the Securities Act and
applicable blue sky or state securities laws (any of the events specified in
(i), (ii) or (iii) being a "Shelf Registration Event," and the date of
occurrence thereof being the "Shelf Registration Event Date"), then in addition
to or in lieu of conducting the Exchange Offer contemplated by Section 2(a), as
the case may be, the Company shall promptly notify the Holders and shall, at its
cost, use its reasonable best efforts to cause to be filed as promptly as
practicable after such Shelf Registration Event Date, a Shelf Registration
Statement providing for the sale by the Holders of such Registrable Notes, and
shall use its reasonable best efforts to have such Shelf Registration Statement
declared effective by the SEC as soon as practicable. No Holder of Registrable
Notes shall be entitled to include any of its Registrable Notes in any Shelf
Registration pursuant to this Agreement unless and until such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder and furnishes to the Company in writing, within 10 days after
receipt of a request therefor, such information as the Company may, after
conferring with counsel with regard to information relating to Holders that
would be required by the SEC to be included in such Shelf Registration Statement
or Prospectus included therein, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein. Each Holder as to which
any Shelf Registration is being effected agrees to furnish to the Company all
information with respect to such Holder necessary to make the information
previously furnished to the Company by such Holder not materially misleading.
In the case of a Shelf Registration Event arising under clause (iii) of
the preceding paragraph, the Company, upon request of such Initial Purchaser,
and to the extent permitted by applicable law, shall, simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchaser, in exchange (the "Private Exchange") for such Notes held by
the Initial Purchaser, a like principal amount of debt securities of the Company
that are identical in all material respects to the Exchange Notes other than
transfer restrictions (the "Private Exchange Notes") and which are issued
pursuant to the same indenture as the Exchange Notes. The term Exchange Notes
shall include the Private Exchange Notes unless the
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<PAGE> 41
context otherwise requires and the Private Exchange Notes shall have such rights
in addition to the rights granted under this Section 2(b). To the extent
permitted the Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes.
The Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective and the Prospectus usable for
resales until the earlier of: (A) the end of the Rule 144(k) Period or (B) such
time as all of the Registrable Notes covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or cease to be
Registrable Notes (the "Effectiveness Period"). The Company shall not permit any
securities other than (1) the Company's issued and outstanding securities
currently possessing incidental registration rights and (2) Registrable Notes to
be included in the Shelf Registration. The Company will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder a
reasonable number of copies of the Prospectus which is a part of the Shelf
Registration Statement, notify each such Holder when the Shelf Registration has
become effective and take any other action required to permit unrestricted
resales of the Registrable Notes. The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or by any
other rules and regulations thereunder for shelf registrations, and the Company
agrees to furnish to the Holders of Registrable Notes copies of any such
supplement or amendment promptly after it has been filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any Registration Statement filed pursuant to Section 2(a) or
2(b) hereof. Except as provided herein, each Holder shall pay all expenses of
its counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Notes pursuant
to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the Exchange Offer or the offering of
Registrable Notes pursuant to such Shelf Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, the Exchange Offer Registration
Statement or Shelf Registration Statement will be deemed not to have been
effective during the period of such interference, until the Exchange Offer or
the offering of Registrable Notes pursuant to such Registration Statement may
legally resume. The Company will not be deemed to have used its reasonable best
efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become or to remain effective
during the requisite period if it voluntarily takes any action that would result
in any such Registration Statement not being declared effective or that would
result in the Holders of Registrable Notes covered thereby not being able to
exchange or offer and sell such Registrable Notes during that period, unless
such action is required by applicable law.
(e) Liquidated Damages. In the event that:
(i) the Exchange Offer Registration Statement is not filed
with the Commission by the Filing Date, the Exchange Offer Registration
Statement is
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<PAGE> 42
not declared effective by the Commission by the Effective Date or the
Exchange Offer is not consummated on or prior to the Consummation Date
(unless changes in law or the applicable interpretation of the staff
does not permit the Company to effect the Exchange Offer, in which case
clause (ii) shall apply); or
(ii) any Shelf Registration Statement with respect to the
Registrable Notes required to be filed pursuant to clause (i) or (iii)
of Section 2(b) is not declared effective (or shall thereafter cease to
be effective, except for a 60-day grace period within any 12 month
period as the result of the occurrence of an event specified in Section
3(e)(ii)(C), 3(e)(ii)(D), 3(e)(ii)(E) or 3(e)(ii)(F), prior to the
earlier of the second anniversary of the Issue Date or until all
Registrable Notes have been sold thereunder) under the Securities Act
on or prior to the later of the 245th calendar day after the date of
the original issuance of such Notes and the 60th calendar day after the
publication of the change in law or interpretation referred to in
Section 3(8)(ii) above;
then liquidated damages ("Liquidated Damages") shall accrue on the
principal amount of the Notes at a rate of 0.50% per annum for the
first 90 days immediately following each such date and such Liquidated
Damages rate shall increase to 1.0% per annum commencing on the 91st
day following each such date; provided, however, that upon (A) filing
of the Exchange Offer Registration Statement after the Filing Date or
the declaration of the effectiveness of the Exchange Offer Registration
Statement after the Effective Date or the consummation of the Exchange
Offer after the Consummation Date, as applicable as described in clause
(i) above or (B) the effectiveness of a Shelf Registration Statement
after the 245th or 60th calendar day, as applicable, described in
clause (ii) above (or if the Shelf Registration Statement ceased to be
effective as described above, once the Shelf Registration Statement
again becomes effective), such Liquidated Damages shall cease to
accrue.
Any amounts of Liquidated Damages due pursuant to Section 2(e)(i) or
(ii) above will be payable in cash on the next succeeding March 1 or September
1, as the case may be, to Holders on the relevant record dates for the payment
of interest pursuant to the Indenture.
3. Registration Procedures. In connection with the obligations of the
Company pursuant to Sections 2(a) and 2(b) hereof, the Company shall use its
reasonable best efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
the relevant time periods specified in Section 2 hereof on the appropriate form
under the Securities Act, (i) which form shall (A) be selected by the Company
and (B) in the case of a Shelf Registration, be available for the sale of the
Registrable Notes by the selling Holders thereof and, in the case of an Exchange
Offer, be available for the exchange of Registrable Notes, and (ii) comply as to
form in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith; and
to cause such Registration Statement to become effective and remain effective
(and, in the case of a Shelf Registration Statement, the Prospectus to remain
usable for resales) in accordance with Section 2 hereof; provided, however,
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<PAGE> 43
that if (1) such filing is pursuant to Section 2(b) or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2(a) is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes, before filing any such
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company shall furnish to a representative designated by the Majority Holders
(the "Representative") which, unless other notice is given to the Company, shall
be the Initial Purchasers and their counsel and afford such Persons a reasonable
opportunity to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits thereto which
have been previously filed with the SEC) proposed to be filed; and the Company
shall not file any such Registration Statement or Prospectus or any amendments
or supplements thereto in respect of which the Representative must be afforded
an opportunity to review prior to the filing of such document if the
Representative and their counsel shall reasonably object in a timely manner
unless required by law;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the Exchange Period, the Effectiveness
Period or the Applicable Period, as the case may be, and cause each Prospectus
to be supplemented, if determined by the Company or requested by the SEC, by any
required prospectus supplement and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the Securities Act, and
comply with the provisions of the Securities Act, the Exchange Act and the rules
and regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by a Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in accordance
with the intended method or methods of distribution by the selling Holders
thereof described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes, at least three Business Days prior to filing, that the Shelf
Registration Statement with respect to the Registrable Notes is being filed and
advising such Holder that the distribution of Registrable Notes will be made in
accordance with the method selected by the Majority Holders, (ii) furnish to
each Holder of Registrable Notes included in the Shelf Registration Statement
and to each underwriter of an underwritten offering of Registrable Notes, if
any, without charge, as many copies of each Prospectus, including each
preliminary prospectus, and any amendment or supplement thereto, and such other
documents as such Holder or underwriter may reasonably request, in order to
facilitate the public sale or other disposition of the Registrable Notes and
(iii) consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Notes included in the
Shelf Registration Statement in connection with the offering and sale of the
Registrable Notes covered by the Prospectus or any amendment or supplement
thereto;
(d) in the case of a Shelf Registration, register or qualify the
Registrable Notes under all applicable state securities or "blue sky" laws of
such jurisdictions by the time the Shelf Registration Statement is declared
effective by the SEC as any Holder of Registrable Notes covered by such
Registration Statement and each underwriter of an underwritten offering of
Registrable Notes shall reasonably request in writing in advance of such date of
effectiveness, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder and underwriter to consummate the
disposition in each such jurisdiction of
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<PAGE> 44
such Registrable Notes owned by such Holder; provided, however, that the Company
shall not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (ii) file any general consent to service of
process in any jurisdiction where it would not otherwise be subject to such
service of process or (iii) subject itself to taxation in any such jurisdiction
if it is not then so subject;
(e) (i) in the case of the Shelf Registration or (ii) if Participating
Broker-Dealers, from whom the Company has received prior written notice that
they will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(u) hereof, are seeking to sell
Exchange Notes and are required to deliver Prospectuses, promptly notify each
Holder of Registrable Notes or such Participating Broker-Dealers, as the case
may be, their counsel and the managing underwriters, if any, and promptly
confirm such notice in writing (A) when the applicable Registration Statement
has become effective and when any post-effective amendments thereto become
effective, (B) of any request by the SEC or any state securities authority for
amendments and supplements to the applicable Registration Statement or
Prospectus or for additional information after such Registration Statement has
become effective, (C) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of the applicable
Registration Statement or the qualification of the Registrable Notes or the
Exchange Notes to be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in Section 3(d) hereof or the initiation of any
proceedings for that purpose, (D) in the case of a Shelf Registration, if,
between the effective date of the Registration Statement and the closing of any
sale of Registrable Notes covered thereby, the representations and warranties of
the Company contained in any underwriting or other similar agreement cease to be
true and correct in all material respects, (E) of the happening of any event or
the failure of any event to occur or the discovery of any facts during the
Effectiveness Period, which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
causes such Registration Statement or Prospectus to 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, as well as any other
corporate developments, public filings with the SEC or similar events causing
such Registration Statement not to be effective or the Prospectus not useable
for resales and (F) of the reasonable determination of the Company that a
post-effective amendment to the applicable Registration Statement would be
appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of
a Registration Statement at the earliest possible moment;
(g) in the case of the Shelf Registration, furnish to each Holder of
Registrable Notes included within the coverage of the Shelf Registration
Statement, at no charge, at least one conformed copy of such Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(h) in the case of the Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and delivery
of certificates representing Registrable Notes to be sold and not bearing any
restrictive legends and in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling
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<PAGE> 45
Holders or the underwriters may reasonably request at least two Business Days
prior to the closing of any sale of Registrable Notes pursuant to such Shelf
Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified in Section
3(e)(ii)(C), 3(e)(ii)(E) (subject to a 60-day grace period within any 12-month
period) or 3(e)(ii)(F) hereof, prepare a supplement or post-effective amendment
to such Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of Registrable Notes, such Prospectus
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; and to notify each
Holder to suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend use of the
Prospectus until the Company has so amended or supplemented the Prospectus;
(j) in the case of the Shelf Registration, a reasonable time prior to
the filing of any document which is to be incorporated by reference into the
Shelf Registration Statement or the Prospectus after the initial filing of the
Shelf Registration Statement, provide a reasonable number of copies of such
document to the Representative and make such of the representatives of the
Company as shall be reasonably requested by the Representative on behalf of such
Holders available for discussion of such document;
(k) obtain a CUSIP number and ISIN for the Exchange Notes not later
than the effective date of the Exchange Offer Registration Statement, and
provide the Trustee with certificates for the Exchange Notes in a form eligible
for deposit with the Depositary;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange Notes or Registrable Notes, as the case may be, and effect such changes
to such document as may be required for it to be so qualified in accordance with
the terms of the TIA and execute, and cause the Trustee to execute, all
documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such documents to be so
qualified in a timely manner;
(m) in the case of the Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten offerings
and take all such other appropriate actions in connection therewith as are
reasonably requested by the Holders of at least 25% in aggregate principal
amount of the Registrable Notes in order to facilitate the disposition of the
Registrable Notes;
(n) in the case of the Shelf Registration, whether or not an
underwriting agreement is entered into and whether or not the registration is an
underwritten registration, if requested by an Initial Purchaser, in the case
where such Initial Purchaser holds Notes acquired by it as part of its initial
placement or Private Exchange Notes: (i) make such representations and
warranties to Initial Purchasers and the underwriters (if any) with respect to
the business of the Company and the subsidiaries of the Company as then
conducted and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in
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<PAGE> 46
underwritten offerings, and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Company and updates thereof (which may be in the form
of a reliance letter) in form and substance reasonably satisfactory to the
managing underwriters (if any) and the Initial Purchasers, addressed to the
Initial Purchasers and the underwriters (if any) covering the matters
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such underwriters (it being
agreed that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions); (iii) obtain "cold comfort" letters
and updates thereof in form and substance reasonably satisfactory to the
managing underwriters from the independent certified public accountants of the
Company (and, if necessary, any other independent certified public accountants
of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and such other
matters as reasonably requested by such underwriters in accordance with
Statement on Auditing Standards No. 72; and (iv) provide indemnification
provisions and procedures no less favorable than those set forth in Section 4
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriters) customary for such
agreements with respect to all parties to be indemnified pursuant to said
Section (including, without limitation, such underwriters and selling Holders);
(o) if (i) the Shelf Registration is filed pursuant to Section 2(b) or
(ii) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make reasonably available for inspection by any selling
Holder of Registrable Notes in such offering or Participating Broker-Dealer, as
applicable, any underwriter participating in any such disposition of Registrable
Notes, if any, and any attorney, accountant or other agent retained by any such
selling Holder, Participating Broker-Dealer, or underwriter (collectively, the
"Inspectors") at the offices where normally kept, during the Company's normal
business hours, all financial and other records, pertinent organizational and
operational documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause the officers,
trustees and employees of the Company and its subsidiaries to supply all
relevant information in each case reasonably requested by any such Person in
connection with such Registration Statement; and any Records and information
which the Company determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be disclosed to any Inspector
except where (A) the disclosure of such Records or information is necessary to
avoid or correct a material misstatement or omission in such Registration
Statement, (B) the release of such Records or information is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction or is necessary
in connection with any action, suit or proceeding or (C) such Records or
information previously have been made generally available to the public; and
each such selling Holder of Registrable Notes, Participating Broker-Dealer and
underwriter will be required to agree in writing that Records and information
obtained by it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Company unless and until such Records or information are made
generally available to the public through no fault of an Inspector; and each
such selling Holder, Participating Broker-Dealer and underwriter will be
required to further agree in writing that it
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<PAGE> 47
will, upon learning that disclosure of such Records or information is sought in
a court of competent jurisdiction or in connection with any action, suit or
proceeding, give notice to the Company and allow the Company at its expense to
undertake appropriate action to prevent disclosure of the Records and
information deemed confidential;
(p) comply with all applicable rules and regulations of the SEC so long
as any provision of this Agreement shall be applicable and make generally
available to its securityholders earning statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall cover said
12-month periods;
(q) upon consummation of the Exchange Offer, if requested by the
Trustee, obtain an opinion of counsel to the Company addressed to the Trustee
for the benefit of all Holders of Registrable Notes participating in the
Exchange Offer, substantially to the effect that (i) the Company has duly
authorized, executed and delivered the Exchange Notes and (ii) each of the
Exchange Notes constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company, in accordance with its respective terms (in
each case, with customary exceptions);
(r) if the Exchange Offer is to be consummated, upon delivery of the
Registrable Notes by Holders to the Company (or to such other Person as directed
by the Company) in exchange for Exchange Notes, the Company shall mark, or cause
to be marked, on such Registrable Notes delivered by such Holders that such
Registrable Notes are being cancelled in exchange for Exchange Notes; it being
understood that in no event shall such Registrable Notes be marked as paid or
otherwise satisfied;
(s) cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in connection
with any filings required to be made with the NASD;
(t) take all other steps necessary to effect the registration of the
Registrable Notes covered by the Shelf Registration Statement contemplated
hereby;
(u) (i) in the case of the Exchange Offer Registration Statement (A)
include in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably acceptable to the
Representative and which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that holds Registrable Notes acquired
for its own account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer") and that will be the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes to be
received by such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or
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<PAGE> 48
such positions or policies, in the reasonable judgment of the Representatives or
such other representative, represent the prevailing views of the staff of the
SEC, including a statement that any such broker-dealer who receives Exchange
Notes for Registrable Notes pursuant to the Exchange Offer may be deemed a
statutory underwriter and must deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of such Exchange Notes, (B)
furnish to each Participating Broker-Dealer who has delivered to the Company the
notice referred to in Section 3(e), without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (the Company hereby consents
to the use of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto by any Person subject to the
prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Notes covered by the Prospectus or any amendment or supplement
thereto), (C) keep the Exchange Offer Registration Statement effective and amend
and supplement the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as such
Persons must comply with such requirements under the Securities Act and
applicable rules and regulations in order to resell the Exchange Notes;
provided, however, that such period shall not be required to exceed 60 days (or
such longer period if extended pursuant to the last sentence of Section 3
hereof) (the "Applicable Period"), and (D) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (1) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable Notes
acquired for its own account as a result of market-making activities or
other trading activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of
Exchange Notes received in respect of such Registrable Notes pursuant
to the Exchange Offer";
and (2) a statement to the effect that, by making the acknowledgment described
in clause (1) and by delivering a Prospectus in connection with the exchange of
Registrable Notes, the broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act; and
(ii) in the case of the Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchasers, if reasonably requested by
an Initial Purchaser on behalf of the Participating Broker-Dealers upon
consummation of the Exchange Offer (A) an opinion of counsel in form and
substance reasonably satisfactory to such Initial Purchaser covering the matters
customarily covered in opinions requested in connection with exchange offer
registration statements and such other matters as may be reasonably requested
(it being agreed that the matters to be covered by such opinion may be subject
to customary qualifications and exceptions), (B) an officers' certificate
containing certifications substantially similar to those set forth in Section
5(c) of the Purchase Agreement and such additional certifications as are
customarily delivered in a public offering of debt securities and (C) upon the
effectiveness of the Exchange Offer Registration Statement, comfort letter(s),
in each case, in customary form if permitted by Statement on Auditing Standards
No. 72.
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<PAGE> 49
The Company may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Company such information
regarding such seller as may be required by the staff of the SEC to be included
in a Registration Statement. The Company may exclude from such registration the
Registrable Notes of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. The Company
shall not have any obligation to register under the Securities Act the
Registrable Notes of a seller who so fails to furnish such information.
In the case of the Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
this Section 3(u) hereof are seeking to sell Exchange Notes and are required to
deliver Prospectuses, each Holder agrees that, upon receipt of any notice from
the Company of the occurrence of any event specified in Section 3(e)(ii),
3(e)(ii)(C), 3(e)(ii)(E) or 3(e)(ii)(F) hereof, such Holder will forthwith
discontinue disposition of Registrable Notes or Exchange Notes, as the case may
be, pursuant to a Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(i)
hereof or until it is advised in writing (the "Advice") by the Company that the
use of the applicable Prospectus may be resumed, and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense) all
copies in such Holder's possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Notes or
Exchange Notes, as the case may be, current at the time of receipt of such
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Notes or Exchange Notes, as the case may be, pursuant to a
Registration Statement, the Company shall use its reasonable best efforts to
file and have declared effective (if an amendment) as soon as practicable after
the resolution of the related matters an amendment or supplement to the
applicable Registration Statement and shall extend the period during which such
Registration Statement is required to be maintained effective and the Prospectus
usable for resales pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when the Company shall have made available to the Holders (x) copies of
the supplemented or amended Prospectus necessary to resume such dispositions or
(y) the Advice.
4. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company shall
indemnify and hold harmless the Initial Purchasers, each Holder, each
underwriter who participates in an offering of Registrable Notes, each
Participating Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and each of their respective directors, officers, employees and
agents (each, an "Indemnified Person"), against any and all losses, claims,
damages, liabilities, judgments, actions and expenses (including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Person) directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment or supplement thereto) or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of
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the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages, liabilities or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is (i) made
in reliance upon and in conformity with information ("Indemnified Person
Information") relating to any Holder or any other Indemnified Person furnished
in writing to the Company by such Indemnified Person expressly for use in a
Registration Statement or any Prospectus or (ii) with respect to the Indemnified
Person from whom the person asserting the loss, claim, damage or liability
purchased Notes or Private Exchange Notes, made in any preliminary prospectus if
a copy of the Prospectus (as amended or supplemented) shall have been furnished
to the Indemnified Person by the Company with such amendments or supplements
thereto on a timely basis and such Prospectus (as amended or supplemented) was
not delivered by or on behalf of the Indemnified Person to the person asserting
the claim or action, if required by law to have been so delivered by the
Indemnified Person seeking indemnification, at or prior to the written
confirmation of the sale of such Notes or Private Exchange Notes, and it shall
be finally determined by a court of competent jurisdiction, by a judgment not
subject to appeal or review, that the Prospectus (as amended or supplemented)
would have corrected such untrue statement or omission. The Company shall notify
any applicable Indemnified Party promptly of the institution, threat or
assertion of any claim, proceeding (including any governmental investigation) or
litigation, of which it has knowledge, in connection with the matters addressed
by this Agreement which involves the Company or an Indemnified Person. In case
any action or proceeding (including any governmental investigation) shall be
brought or asserted against any Indemnified Person with respect to which
indemnity may be sought against an indemnifying party (or indemnifying parties),
such Indemnified Person shall promptly notify the indemnifying party (or
indemnifying parties) in writing (provided that the failure to give such notice
shall not relieve the indemnifying party (or indemnifying parties) of its or
their obligations pursuant to this Agreement unless and only to the extent such
failure to give notice results in the loss or compromise of any material rights
or defenses of the indemnifying party (or indemnifying parties) as determined by
a court of competent jurisdiction by a final judgment no longer subject to
appeal or review). Upon receiving such notice, the indemnifying party (or
indemnifying parties) shall be entitled to participate in any such action or
proceeding and to assume, at its or their sole expense, the defense thereof,
with counsel reasonably satisfactory to such Indemnified Person (who shall not,
except with the consent of the Indemnified Person, be counsel to the
indemnifying party (or indemnifying parties) or an affiliate thereof) and, after
written notice from the indemnifying party (or indemnifying parties) to such
Indemnified Person of its or their election so to assume the defense thereof
within 15 business days after receipt of the notice from the Indemnified Person
of such action or proceeding, the indemnifying party (or indemnifying parties)
shall not be liable to such Indemnified Person hereunder for legal expenses of
other counsel subsequently incurred by such Indemnified Person in connection
with the defense thereof, other than reasonable costs of investigation, unless
(A) the indemnifying party (or indemnifying parties) agrees in writing to pay
such fees and expenses, or (B) the indemnifying party (or indemnifying parties)
fails to assume such defense within the 15 business days specified above or
fails to employ counsel reasonably satisfactory to such Indemnified Person or
(C) the named parties to any such action or proceeding (including any impleaded
parties) include both such Indemnified Person and the indemnifying party (or
indemnifying parties) or its or their affiliates, and such Indemnified Person
shall have been advised by counsel that a conflict (actual or potential) of
interest exists between such Indemnified Person and the indemnifying party (or
indemnifying parties) or its or their affiliates, in which case, if such
Indemnified Person notifies the indemnifying party (or indemnifying parties) in
writing, neither the indemnifying party (or
17
<PAGE> 51
indemnifying parties) nor its or their affiliates shall have the right to assume
the defense thereof, it being understood, however, that the indemnifying party
(or indemnifying parties) shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time
for all Indemnified Persons. No indemnifying party shall be liable for any
settlement of any such action or proceeding effected without its prior written
consent. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested the indemnifying party (or indemnifying parties) to
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, the indemnifying party
(or indemnifying parties) agrees that it or they shall be liable for any
settlement of any proceeding effected without its or their written consent if
(1) such settlement is entered into more than 60 business days after receipt by
the indemnifying party (or indemnifying parties) of the aforesaid request and
(2) the indemnifying party (or indemnifying parties) shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. The indemnifying party (or indemnifying parties) shall not, without
the prior written consent of each Indemnified Person, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any pending
or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Person is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Person from all liability arising out of such action, claim, litigation or
proceeding.
(b) Each of the Indemnified Persons agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers, and any
person controlling (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) the Company, to the same extent as the foregoing indemnity
from the Company to each of the Indemnified Persons, but only with respect to
claims and actions based on any Indemnified Person Information provided by such
Indemnified Person.
(c) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the Company or the Indemnified Persons, as applicable, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying parties and the indemnified party, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand, and the indemnified party, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact related to information supplied by the Company, on the one hand,
or the Indemnified Persons, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The indemnity and contribution obligations of the Company
set forth in this Section 4 shall be in addition to any liability or obligation
that the Company may otherwise have (other than with respect to the matters
covered by this Section 4) to any Indemnified Person.
18
<PAGE> 52
(d) The Company and the Indemnified Persons agree that it would not be
just and equitable if contribution pursuant to this Section 4 were determined by
pro rata allocation (even if the Indemnified Persons were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Indemnified Persons' obligations to contribute pursuant
to this Section 4 are several not joint. In no event shall any Holder, its
directors, officers or any Person who controls such Holder be liable or
responsible for any amount in excess of the amount by which the total amount
received by such Holder with respect to its sale of Registrable Notes pursuant
to a Registration Statement exceeds (i) the amount paid by such Holder for such
Registrable Notes and (ii) the amount of any damages that such Holder, its
directors, officers or any Person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Notes on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Notes covered
by the Shelf Registration Statement who desire to do so may sell the Notes
covered by such Shelf Registration in an underwritten offering, subject to the
provisions of Section 3(m) hereof. In any such underwritten offering, the
underwriter or underwriters and manager or managers that will administer the
offering will be selected by the Holders of a majority in aggregate principal
amount, as applicable, of the Registrable Notes included in such offering;
provided, however, that such underwriters and managers must be reasonably
satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes remain outstanding, the Company will file the reports required
to be filed by it under the Securities Act and Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the SEC thereunder;
provided, however, that if the Company ceases to be so required to file such
reports, it will, upon the request of any Holder of Registrable Notes (i) make
publicly available such information as is necessary to permit sales of its
securities pursuant to Rule 144 under the Securities Act, (ii) deliver such
information to a prospective purchaser as is necessary to permit sales of its
securities pursuant to Rule 144A under the Securities Act and (iii) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Notes without registration under the
19
<PAGE> 53
Securities Act within the limitation of the exemptions provided by (A) Rule 144
under the Securities Act, as such rule may be amended from time to time, (B)
Rule 144A under the Securities Act, as such rule may be amended from time to
time or (C) any similar rules or regulations hereafter adopted by the SEC. Upon
the request of any Holder of Registrable Notes, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into, nor
will the Company on or after the date of this Agreement enter into, any
agreement that is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof, except to the extent that the other party to any such agreement has
waived such conflict. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of Holders of a
majority in aggregate principal amount of the outstanding Registrable Notes
affected by such amendment, modification, supplement, waiver or departure;
provided that no amendment, modification or supplement or waiver or consent to
departure with respect to the provisions of Section 4 hereof shall be effective
as against any Holder of Registrable Notes unless consented to in writing by
such Holder of Registrable Notes. Notwithstanding the foregoing sentence, (i)
this Agreement may be amended, without the consent of any Holder of Registrable
Notes, by written agreement signed by the Company and the Initial Purchasers, to
cure any ambiguity, to correct or supplement any provision of this Agreement
that may be inconsistent with any other provision of this Agreement, (ii) this
Agreement may be amended, modified or supplemented, and waivers and consents to
departures from the provisions hereof may be given, by written agreement signed
by the Company and the Initial Purchasers to the extent that any such amendment,
modification, supplement, waiver or consent is, in their reasonable judgment,
necessary or appropriate to comply with applicable law (including any
interpretation of the staff of the SEC) or any change therein and (iii) to the
extent any provision of this Agreement relates to an Initial Purchaser, such
provision may be amended, modified or supplemented, and waivers or consents to
departures from such provisions may be given, by written agreement signed by
such Initial Purchaser and the Company.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to each Initial
Purchaser, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is
20
<PAGE> 54
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Notes in violation of the terms of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Registrable Notes, in any manner,
whether by operation of law or otherwise, such Registrable Notes shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Notes, such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating
Broker-Dealer shall be third party beneficiaries of the agreements made
hereunder among the Initial Purchasers and the Company, and the Initial
Purchasers shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND RULE 327(B) OF THE NEW YORK CIVIL PRACTICE LAWS AND RULES.
(j) Jurisdiction, Etc.
(i) The Company hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction
of any New York State court or federal court of the United States of
America sitting in The City of New York, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to
this Agreement or the Notes, Exchange
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<PAGE> 55
Notes or the Private Exchange Notes, or for recognition or enforcement
of any judgment, and the Company hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may
be heard and determined in any such New York State court or, to the
extent permitted by law, in such federal court. The Company hereby
agrees that service of process in any such action or proceeding brought
in any such New York State court or in such federal court may be made
upon the Company at its offices at 100 West Fifth Street, Tulsa,
Oklahoma 74103, Attention: Corporate Secretary (the "Process Agent"),
and hereby further agrees that the failure of the Process Agent to give
any notice of any such service to the Company shall not impair or
affect the validity of such service or of any judgment rendered in any
action or proceeding based thereon. The Company agrees that a final
judgement in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect
any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes, the Exchange Notes
or the Private Exchange Notes in the courts of any jurisdiction.
(ii) The Company irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or
the Notes, the Exchange Notes or the Private Exchange Notes in any New
York State or federal court. The Company hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such
court.
(iii) To the extent that the Company has or hereafter may
acquire any immunity from the jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, the Company hereby irrevocably
waives such immunity in respect of its obligations under this Agreement
and the Notes, the Exchange Notes or the Private Exchange Notes.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its Affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
[signature page follows]
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<PAGE> 56
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ONEOK, INC.
By:
----------------------------------------------
Name: Jim Kneale
Title: Vice President, Chief Financial
Officer and Treasurer
Confirmed and accepted as of
the date first above
written:
BANC OF AMERICA SECURITIES LLC
On behalf of itself and the Initial Purchasers
By:
-------------------------------------
Name: Lynn McConnell
Title: Managing Director
S-1
<PAGE> 1
Exhibit 4.11
================================================================================
ONEOK, INC.
7.75% NOTES
Due 2005
---------------
SIXTH SUPPLEMENTAL INDENTURE
Dated as of March 1, 2000
---------------
Chase Bank of Texas, National Association
TRUSTEE
================================================================================
<PAGE> 2
THIS SIXTH SUPPLEMENTAL INDENTURE is made as of the 1st day of March,
2000, by and between ONEOK, INC., an Oklahoma corporation (the "Company"), and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into an Indenture, dated as
of September 24, 1998 (the "Original Indenture"), with the Trustee;
WHEREAS, the Original Indenture is incorporated herein by this reference
and the Original Indenture, as supplemented by this Sixth Supplemental
Indenture, is herein called the "Indenture";
WHEREAS, under the Original Indenture, a new series of Securities may at
any time be established pursuant to a supplemental indenture executed by the
Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a new series
of Securities; and
WHEREAS, all conditions necessary to authorize the execution and delivery
of this Sixth Supplemental Indenture and to make it a valid and binding
obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
7.75% NOTES DUE 2005
SECTION 101. Establishment. There is hereby established a new series of
Securities to be issued under the Indenture, to be designated as the Company's
7.75% Notes Due 2005 (the "Notes").
There are to be authenticated and delivered $350,000,000 principal amount
of Notes to be issued and delivered to the initial purchasers thereof at 99.837%
of principal amount. The Company shall have the right to issue additional Notes
at any time upon compliance with the applicable provisions of the Indenture. The
Notes shall be issued in definitive fully registered form.
The Notes shall be issued in the form of one or more Global Securities,
each in substantially the form set out in Exhibit A hereto, except for changes
to be reflected in the Exchange Notes (as hereinafter defined) by reason of
their registration under the Securities Act of 1933, to eliminate provisions
relating to liquidated damages, registration rights and transfer restrictions
and to reflect interest accrual provisions. The initial Depositary with respect
to the Notes shall be The Depository Trust Company.
<PAGE> 3
The Company will not pay Additional Amounts, as defined in Section 1008
of the Original Indenture.
The form of the Trustee's Certificate of Authentication for the Notes
shall be in substantially the form set forth in Exhibit B hereto.
Each Note shall be dated the date of authentication thereof. Each Note
shall bear interest from the Original Issue Date, except for Exchange Notes,
which shall bear interest from the last interest payment date on which interest
was paid on the Note surrendered in exchange therefor or, if no interest has
been paid on that Note, from the Original Issue Date.
The interest rate on the Notes will not be reset pursuant to Section
308(b) of the Original Indenture and the Stated Maturity shall not be extended
pursuant to Section 309 of the Original Indenture.
SECTION 102. Definitions. The following defined terms used herein shall,
unless the context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
"Adjusted Treasury Rate" means, with respect to any Redemption Date, the
rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date, plus .20%.
"Comparable Treasury Issue" means the United States Treasury security
selected by a Quotation Agent as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (ii) if the Company obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Reference Treasury Dealer
Quotations.
"Exchange Notes" means securities that will have terms identical in all
material respects to the Notes (except with respect to liquidated damages,
registration rights, transfer restrictions and interest accrual provisions),
which will be offered in exchange for Notes tendered in exchange therefor at the
option of the holders thereof, pursuant to an exchange offer for the
then-outstanding Notes in accordance with the terms of the Registration Rights
Agreement.
"Interest Payment Dates" means March 1 and September 1 of each year.
"Original Issue Date" means March 1, 2000.
2
<PAGE> 4
"Quotation Agent" means one of the Reference Treasury Dealers appointed
by the Company and certified to the Trustee by the Company.
"Reference Treasury Dealer" means (i) each of Banc of America Securities
LLC, Banc One Capital Markets, Inc., First Union Securities, Inc., J.P. Morgan
Securities Inc., PaineWebber Incorporated and Salomon Smith Barney Inc.
(collectively, the "Initial Purchasers") and their respective successors;
provided, however, that if any of the foregoing shall cease to be a primary U.S.
Government Securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer and certify
the same to the Trustee; and (ii) any other Primary Treasury Dealer selected by
the Company and certified to the Trustee.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Company and certified to the Trustee by the Company, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Company by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such Redemption Date.
"Registration Rights Agreement" means the agreement dated as of the date
hereof, by and among the Company and the Initial Purchasers, which provides to
the holders of Notes certain registration rights as set forth therein.
"Regular Record Date" means February 15 in the case of a March 1 Interest
Payment Date and August 15 in the case of a September 1 Interest Payment Date.
"Stated Maturity" means March 1, 2005.
SECTION 103. Payment of Principal and Interest. The principal of the
Notes shall be due at Stated Maturity (unless earlier redeemed). The unpaid
principal amount of the Notes shall bear interest at the rate of 7.75% per annum
until paid or duly provided for. Interest shall be paid semi-annually in arrears
on each Interest Payment Date to the Person in whose name the Notes are
registered on the Regular Record Date for such Interest Payment Date and on
Stated Maturity. Accrued interest paid on Stated Maturity shall be paid to the
Person to whom principal is paid. Any such interest that is not so punctually
paid or duly provided for will forthwith cease to be payable to the Holders on
such Regular Record Date and may be paid to the Person or Persons in whose name
the Notes are registered at the close of business on a Special Record Date for
the payment of such defaulted interest to be fixed by the Trustee, notice
whereof shall be given to Holders of the Notes not less than ten days prior to
such Special Record Date.
Payments of interest on the Notes will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for the Notes
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months.
Payment of the principal and interest due at the Stated Maturity or
earlier redemption of the Notes shall be made upon surrender of the Notes at the
office or agency of the Company in the Borough of Manhattan, City and State of
New York or at the Corporate Trust Office of the Trustee. The principal of and
interest on the Notes shall be paid in such currency of the United
3
<PAGE> 5
States of America as at the time of payment is legal tender for payment of
public and private debts. Payments of interest will be made at the option of the
Company, (i) by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or (ii) by wire transfer to
an account located in the United States maintained by the payee.
SECTION 104. Denominations. The Notes may be issued in denominations of
$1,000 and any integral multiple thereof.
SECTION 105. Global Securities. The Notes will be issued in the form of
one or more Global Securities registered in the name of the Depositary or its
nominee. Except under the limited circumstances described below, Notes
represented by the Global Security will not be exchangeable for, and will not
otherwise be issuable as, Notes in definitive form. The Global Securities
described above may not be transferred except by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or to a successor Depositary or its nominee.
Owners of beneficial interests in such a Global Security will not be
considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing a Note shall be exchangeable, except for another
Global Security of like denomination and tenor to be registered in the name of
the Depositary or its nominee or to a successor Depositary or its nominee. The
rights of Holders of such Global Security shall be exercised only through the
Depositary.
A Global Security shall be exchangeable for Notes registered in the names
of persons other than the Depositary or its nominee only if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as a Depositary
for such Global Security and no successor Depositary shall have been appointed
by the Company, or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, at a time when
the Depositary is required to be so registered to act as such Depositary and no
successor Depositary shall have been appointed by the Company, in each case
within 90 days after the Company receives such notice or becomes aware of such
cessation, (ii) the Company in its sole discretion determines that such Global
Security shall be so exchangeable, or (iii) there shall have occurred an Event
of Default with respect to the Notes.
SECTION 106. Transfer. No service charge will be made for any transfer or
exchange of Notes, but payment will be required of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
SECTION 107. Redemption at the Company's Option. The Notes will be
redeemable, in whole or in part, at any time at the option of the Company at a
redemption price (the "Redemption Price") equal to the greater of (i) 100% of
the principal amount of the Notes to be redeemed or (ii) as determined by a
Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest on the Notes to be redeemed that are payable
after the date of redemption (the "Redemption Date") discounted to the
Redemption Date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus, in each case, accrued
but unpaid interest to the Redemption Date.
4
<PAGE> 6
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of the Notes to be
redeemed. Unless the Company defaults in payment of the Redemption Price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on and after the Redemption Date.
SECTION 108. Other Terms.
The Notes will not have a sinking fund.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
Any redemption of less than all of the Notes shall, with respect to the
principal thereof, be divisible by $1,000.
ARTICLE 2
MISCELLANEOUS PROVISIONS
SECTION 201. Recitals by Company. The recitals in this Sixth Supplemental
Indenture are made by the Company only and not by the Trustee, and all of the
provisions contained in the Original Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in
respect of Notes and of this Sixth Supplemental Indenture as fully and with like
effect as if set forth herein in full.
SECTION 202. Ratification and Incorporation of Original Indenture. The
Original Indenture is in all respects ratified and confirmed, and the Original
Indenture and this Sixth Supplemental Indenture shall be read, taken and
construed as one and the same instrument; provided that, in the case of a
conflict between this Sixth Supplemental Indenture and the Original Indenture,
this Sixth Supplemental Indenture shall control.
SECTION 203. Executed in Counterparts. This Sixth Supplemental Indenture
may be simultaneously executed in several counterparts, each of which shall be
deemed to be an original, and such counterparts shall together constitute one
and the same instrument.
SECTION 204. Parties Interested Herein. Nothing in the Indenture
expressed or implied is intended or shall be construed to confer upon, or to
give or grant to, any person or entity, other than the Company, the Trustee, the
Paying Agent and the registered owners of the Notes, any right, remedy or claim
under or by reason of the Indenture or any covenant, condition or stipulation
hereof, and all covenants, stipulations, promises and agreements in the
Indenture contained by and on behalf of the Company shall be for the sole and
exclusive benefit of the Company, the Trustee, the Paying Agent and the
registered owners of the Notes.
5
<PAGE> 7
IN WITNESS WHEREOF, each party hereto has caused this Sixth
Supplemental Indenture to be signed in its name and behalf by its duly
authorized officers or signatories, all as of the day and year first above
written.
ATTEST: ONEOK, INC.
By: /s/ Deborah R. Barnes By: /s/ Jim Kneale
---------------------------------------- -------------------------
ATTEST: CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Mauri J. Cowen By: /s/ John G. Jones
----------------------------------------- ------------------------
Authorized Signatory Authorized Signatory
6
<PAGE> 8
EXHIBIT A
FORM OF NOTE
[Attached]
NOTE: FOLLOWING REGISTRATION OF THE NOTES UNDER THE SECURITIES ACT OF 1933,
APPROPRIATE CHANGES WILL BE MADE IN THE FORM OF NOTE AS CONTEMPLATED BY THE
INDENTURE.
<PAGE> 9
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
================================================================================
No. __
ONEOK, INC.
7.75% NOTES DUE 2005
CUSIP: 682680AG8
ONEOK, Inc., an Oklahoma corporation (herein called "Company," which
term includes any successor corporation under the Indenture referred to herein),
for value received, hereby promises to pay to:
CEDE & CO.
or registered assigns, the principal sum of
*__________________ DOLLARS*
on March 1, 2005 and to pay interest on such principal sum at the rate of seven
and three-fourths percent (7.75%) per annum.
================================================================================
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD,
<PAGE> 10
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF
ANY, REQUIRED UNDER THE INDENTURE PURSUANT TO WHICH THIS NOTE IS ISSUED) AND IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER JURISDICTION. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER
OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(A) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (C) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (D)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), AS LONG AS THE REGISTRAR RECEIVES A CERTIFICATION OF THE TRANSFEROR
AND AN OPINION OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL AND EACH SUBSEQUENT HOLDER IS REQUIRED TO NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTION SET FORTH IN
(A) ABOVE.
The Company will pay interest from March 1, 2000, semi-annually on March
1 and September 1 of each year, and on the date of maturity, commencing
September 1, 2000 (each such date an "Interest Payment Date"), until the
principal hereof is otherwise paid or duly provided for. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture (as defined below), be paid to the holder of
this Note (the "Holder") of record at the close of business on the regular
record date (the "Regular Record Date") for such Interest Payment Date, which
shall be February 15 (in the case of the March 1 Interest Payment Date) or
August 15 (in the case of the September 1 Interest Payment Date), whether or not
a Business Day. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date by
virtue of his having been such Holder, and may be paid to the Holder of record
of this Note at the close of business on a special record date (the "Special
Record Date") fixed by the Company for the payment of such defaulted interest,
notice whereof shall be given to Holders not less than 10 days prior to such
Special Record Date, all as more fully provided in the Indenture.
<PAGE> 11
Payment of the principal of this Note and the interest thereof will be
made at the office or agency of the Company in the Borough of Manhattan, City
and State of New York or at the Corporate Trust Office of the Trustee in such
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
<PAGE> 12
ONEOK, INC.
7.75% Notes Due 2005
This Note is one of a duly authorized issue of debt securities of the
Company (herein called the "Securities"), issuable in one or more series, issued
and to be issued under and pursuant to an Indenture dated as of September 24,
1998, as amended and supplemented by that certain Sixth Supplemental Indenture
(the "Indenture"), duly executed and delivered by the Company to Chase Bank of
Texas, National Association, as trustee (the "Trustee," which term includes any
successor trustee under the Indenture) and is one of a series unlimited in
aggregate principal amount and designated as 7.75% Notes Due 2005 (the "Notes").
Reference is hereby made to the Indenture for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of Securities (including Holders of the
Notes).
If (i)(a) the Company has not filed a registration statement
(the "Exchange Offer Registration Statement") under the Securities Act
registering a security substantially identical to this Note (except that such
note (the "Exchange Note") will not contain terms with respect to liquidated
damages or transfer restrictions) pursuant to an exchange offer (the "Exchange
Offer") within 120 days after this Note is issued (the "Issue Date"), (b) the
Exchange Offer Registration Statement has not become or been declared effective
within 210 days after the Issue Date or (c) the Exchange Offer has not been
consummated within 35 days after the Exchange Offer Registration Statement is
declared effective (unless changes in law or the applicable interpretations of
the staff of the Division of Corporate Finance of the Securities and Exchange
Commission do not permit the Company to effect the Exchange Offer) or (ii) a
registration statement registering this Note for resale (a "Shelf Registration
Statement") has not been declared effective (or shall thereafter cease to be
effective, subject to certain exceptions, prior to the earlier of the second
anniversary of the Issue Date and the date on which all transfer restricted
notes have been sold thereunder) on or prior to the later of the 245th calendar
day after the Issue Date and the 60th calendar day after the publication of the
change in law or interpretation, then the interest rate borne by this Note will
be increased by one-half of one percent per annum for the first 90 days
following the deadline for the Exchange Offer Registration Statement to be filed
or declared effective or for the Exchange Offer to be consummated, as
applicable, in the case of clause (i) above, or following such 245th or 60th
calendar day, as applicable, in the case of clause (ii) above, and will be
increased by an additional one-half of one percent per annum after the end of
such period, except under the circumstances described in the succeeding
sentence, as liquidated damages. Upon (x) filing of the Exchange Offer
Registration Statement after the deadline for it to be filed, declaration of the
effectiveness of the Exchange Offer Registration Statement after the deadline
for it to be declared effective or consummation of the Exchange Offer after the
deadline for its consummation, as applicable, as described in clause (i) above,
or (y) the effectiveness of the Shelf Registration Statement after the 245th or
60th calendar day, as applicable, described in clause (ii) above (or if the
Shelf Registration Statement ceased to be effective as described above, after
the Shelf Registration Statement again becomes effective subject to certain
specified exceptions), any such increase in the interest rate will cease to be
effective. The aggregate amount of liquidated damages pursuant to such
provisions will not exceed one percent per annum.
The Notes are subject to defeasance at the option of the Company as
provided in the Indenture.
<PAGE> 13
As long as this Note is represented in global form (the "Global
Security") registered in the name of the Depository or its nominee, except as
provided in the Indenture and subject to certain limitations therein set forth,
no Global Security shall be exchangeable or transferable.
If an Event of Default (as defined in the Indenture) with respect to
the Notes shall occur and be continuing, the principal plus any accrued interest
may be declared due and payable in the manner and with the effect and subject to
the conditions provided in the Indenture.
The Indenture permits the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
Outstanding (as defined in the Indenture) of all series that are affected by
such amendment or modification, except that certain amendments that do not
adversely affect the rights of any holder of the Securities may be made without
the approval of holders of the Securities. No amendment or modification may,
among other things, change the Stated Maturity of any Security, reduce the
principal amount thereof, reduce the rate or change the time of payment of any
interest thereon, or reduce the aforesaid majority in aggregate principal amount
of Securities of any series, consent of the holders of which is required for any
such amendment or modification, without the consent of each Securityholder
affected.
Notwithstanding any provision in the Indenture or any provision of this
Note, the Holder of this Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
interest on this Note at the times, places and rate, and in the currency herein
prescribed.
The Notes may be redeemed, in whole or in part, at any time at the
option of the Company at a Redemption Price equal to the greater of (i) 100% of
the principal amount of the Notes to be redeemed or (ii) as determined by a
Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest on the Notes to be redeemed that are payable
after the Redemption Date discounted to the Redemption Date on a semiannual
basis (assuming a 360-day consisting of twelve 30-day months) at the Adjusted
Treasury Rate, plus, in each case, accrued but unpaid interest to the Redemption
Date.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder upon surrender hereof or otherwise reduced in accordance with
the provisions of the Indenture. The Notes will not have a sinking fund.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
All terms used in this Note but not defined herein have the meanings
assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
<PAGE> 14
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
ONEOK, INC.
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
Attested:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
-------------
This is one of the Notes referred to in the within-
mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
as Trustee
By:
--------------------------------------
Authorized Signatory
<PAGE> 15
SCHEDULE OF EXCHANGES OF INTEREST IN THE NOTE
The following exchanges of interests in this Note have been made:
<TABLE>
<CAPTION>
Principal Amount of
Amount of decrease Amount of increase this Note following Signature of authorized
Date of Exchange in this Note in this Note such decrease or (increase) signatory of Trustee
<S> <C> <C> <C>
</TABLE>
<PAGE> 16
CERTIFICATE OF TRANSFER
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint __________________ agent to transfer this Note on the
books of ONEOK, Inc. The agent may substitute another to act for him.
- ----------------------------------------------------------------
Date: Your Signature:
------------------ ------------------------
- ----------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS IT
APPEARS ON THE FIRST PAGE OF THE NOTE.
THE SIGNATURE MUST BE GUARANTEED BY AN "ELIGIBLE GUARANTOR INSTITUTION"
THAT IS A MEMBER OR PARTICIPANT IN A "SIGNATURE GUARANTEE PROGRAM" (E.G., THE
SECURITIES TRANSFER AGENTS MEDALLION PROGRAM, THE STOCK EXCHANGE MEDALLION
PROGRAM OR THE NEW YORK STOCK EXCHANGE, INC. MEDALLION PROGRAM).
<PAGE> 17
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act of 1933 (the "Securities Act") after the later
of the date of original issuance of such Notes and the last date, if any, on
which such Notes were owned by ONEOK, Inc. or any Affiliate, the undersigned
confirms that such Notes are being transferred in accordance with the terms of
such Notes:
CHECK ONE BOX BELOW
(1) [ ] to ONEOK, Inc.; or
(2) [ ] pursuant to an effective registration statement under the
Securities Act; or
(3) [ ] inside the United States to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) that purchases
for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A under the Securities Act, in
each case pursuant to and in compliance with Rule 144A under the
Securities Act; or
(4) [ ] outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance
with Rule 904 under the Securities Act; or
(5) [ ] pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Notes evidenced by this certificate in the name of any person other
than the registered holder thereof; provided, however, that if box (3), (4)
or (5) is checked, the Trustee may require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and other
information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act, such
as the exemption provided by Rule 144 under the Securities Act.
<PAGE> 18
- ------------------------------
Signature
Signature Guarantee:
- ------------------------------- -------------------------------
[Signature must be guaranteed Signature
by an eligible Guarantor
Institution (banks, stock
brokers, savings and loan
associations and credit
unions) with membership in
an approved guarantee
medallion program pursuant
to Securities and Exchange
Commission Rule 17Ad-15]
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act,
and is aware that the sale to it is being made in reliance on Rule 144A under
the Securities Act and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A
under the Securities Act or has determined not to request such information and
that it is aware that the transferor is relying upon the foregoing
representations of the undersigned in order to claim the exemption from
registration provided by Rule 144A under the Securities Act.
Dated:
---------------- ----------------------------------------------
NOTICE: To be executed by an executive officer
<PAGE> 19
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee [or Successor
Trustee]
Dated: By:
------------------------- -----------------------------------
Authorized Signatory
<PAGE> 1
EXHIBIT 4.14
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of March 1, 2000 by and among ONEOK, Inc., an Oklahoma
corporation (the "Company"), and Banc of America Securities LLC, Banc One
Capital Markets, Inc., First Union Securities, Inc., J.P. Morgan Securities
Inc., PaineWebber Incorporated and Salomon Smith Barney Inc. (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated as of
February 24, 2000 (the "Purchase Agreement"), by and between the Company, as
issuer of the 7.75% Notes due 2005 (the "Notes"), and the Initial Purchasers,
which provides for, among other things, the sale by the Company to the Initial
Purchasers of the aggregate principal amount of Notes specified therein. In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closings under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of
Section 3(u) hereof.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(u)
hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in The City of New York, New York are
authorized or required by law or executive order to remain closed.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Consummation Date" shall have the meaning set forth in Section 2(a)
hereof.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided that such depositary must have an
address in the Borough of Manhattan, in The City of New York, New York.
"Effective Date" shall have the meaning set forth in Section 2(a)
hereof.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
<PAGE> 2
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Notes" shall mean the 7.75% Notes due 2005 issued by the
Company under the Indenture containing terms identical to the Notes (except that
(i) interest thereon shall accrue from the last date on which interest has been
paid on the Notes or, if no such interest has been paid, from the date of the
original issue of the Notes and (ii) they will not contain terms with respect to
transfer restrictions under the Securities Act and will not provide for any
Liquidated Damages thereon). Unless the context otherwise indicates, the term
Exchange Notes shall include Private Exchange Notes.
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes for a like amount of Exchange Notes
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Filing Date" shall have the meaning set forth in Section 2(a) hereof.
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable Notes, and each of its respective successors, assigns and direct and
indirect transferees who become registered owners of Registrable Notes under the
Indenture.
"Indemnified Person" shall have the meaning set forth in Section 4(a)
hereof.
"Indemnified Person Information" shall have the meaning set forth in
Section 4(a) hereof.
"Indenture" shall mean the Indenture, dated as of September 24, 1998,
between the Company, as issuer, and Chase Bank of Texas, National Association,
as trustee, as the same may be amended or supplemented from time to time in
accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Inspectors" shall have the meaning set forth in Section 3(o) hereof.
"Issue Date" shall mean March 1, 2000, the date of delivery of the
Notes from the Company to the Initial Purchasers.
2
<PAGE> 3
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Notes.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notes" shall have the meaning set forth in the preamble to this
Agreement.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(u) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company or a government or agency
or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(b)
hereof.
"Private Exchange Notes" shall have the meaning set forth in Section
2(b) hereof.
"Process Agent" shall have the meaning set forth in Section 7(j)
hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all documents incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Records" shall have the meaning set forth in Section 3(o) hereof.
"Registrable Notes" shall mean all Notes and Private Exchange Notes;
provided, however, that Notes shall cease to be Registrable Notes when the
earlier of the following occurs: (i) a Registration Statement with respect to
such Notes or Private Exchange Notes for the exchange or resale thereof shall
have been declared effective under the Securities Act and such Notes or Private
Exchange Notes shall have been exchanged or disposed of pursuant to such
Registration Statement, (ii) such Notes or Private Exchange Notes shall have
been sold pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) under the Securities Act or are eligible to be sold without
restriction as contemplated by Rule 144(k), (iii) such Notes or Private Exchange
Notes shall have ceased to be outstanding, (iv) no Shelf Registration Event has
occurred and the Exchange Offer has concluded in accordance with the provisions
hereof or (v) upon consummation of the Exchange Offer but only with respect to
Notes held by a Holder that are eligible to receive fully tradeable Exchange
Notes in connection with the Exchange Offer.
3
<PAGE> 4
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or NASD registration and filing fees, including,
if applicable, the fees and expenses of any "qualified independent underwriter"
(and its counsel) that is required to be retained by any Holder of Registrable
Notes in accordance with the rules and regulations of the NASD; (ii) all fees
and expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of one counsel for
all underwriters or Holders as a group in connection with blue sky qualification
of any of the Exchange Notes or Registrable Notes) and compliance with the rules
of the NASD; (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing, printing and distributing any underwriting
agreements, securities sales agreements and other documents relating to the
performance of and compliance with this Agreement; (iv) all rating agency fees;
(v) all fees and expenses incurred in connection with the listing, if any, of
any of the Exchange Notes on any securities exchange or exchanges; (vi) the fees
and disbursements of counsel for the Company and of the independent certified
public accountants of the Company, including the expenses of any "cold comfort"
letters required by or incident to the performance of and compliance with this
Agreement; (vii) the reasonable fees and expenses of the Trustee and its counsel
and any exchange agent, escrow agent or custodian; and (viii) any fees and
disbursements of the underwriters customarily required to be paid by issuers or
sellers of securities and the reasonable fees and expenses of any special
experts retained by the Company in connection with any Registration Statement,
but excluding fees of counsel to the underwriters and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any Exchange Notes or Registrable Notes pursuant to the
provisions of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein.
"Representative" shall have the meaning set forth in Section 3(a)
hereof.
"Rule 144(k) Period" shall mean the period of two years (or such other
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
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"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) hereof which
covers all of the Registrable Notes on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the
Company shall, for the benefit of the Holders, at the Company's cost (i) cause
to be filed with the SEC an Exchange Offer Registration Statement on an
appropriate form under the Securities Act relating to the Exchange Offer within
120 calendar days after the Issue Date (the "Filing Date"), (ii) use its
reasonable best efforts to cause such Exchange Offer Registration Statement to
be declared effective under the Securities Act by the SEC within 210 calendar
days after the Issue Date (the "Effective Date"), (iii) use its reasonable best
efforts to keep such Exchange Offer Registration Statement effective for not
less than 20 Business Days (or longer if required by applicable law) after the
date notice of the Exchange Offer is mailed to the Holders and (iv) use its
reasonable best efforts to cause the Exchange Offer to be consummated within 35
calendar days after the date that the Exchange Offer Registration Statement is
declared effective (the "Consummation Date"). Promptly after the effectiveness
of the Exchange Offer Registration Statement, the Company shall commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
eligible Holder to exchange Registrable Notes for a like principal amount of
Exchange Notes (provided that such Holder (A) is not an Affiliate of the
Company, (B) is not a broker-dealer tendering Registrable Notes acquired
directly from the Company, (C) acquires the Exchange Notes in the ordinary
course of such Holder's business and (D) has no arrangements or understandings
with any Person to participate in the Exchange Offer for the purpose of
distributing Exchange Notes).
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(2) keep the Exchange Offer open for acceptance for a period
of not less than 20 Business Days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
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(3) utilize the services of the Depositary for the Exchange
Offer with respect to Notes represented by a global certificate;
(4) permit each Holder to withdraw tendered Notes at any time
prior to the close of business, New York City time, on the last
Business Day of the Exchange Period, by sending to the institution
specified in the notice to Holders, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
series and amount of Notes delivered for exchange, and a statement that
such Holder is withdrawing its election to have such Notes exchanged;
(5) notify each Holder that any Notes not tendered by such
Holder in the Exchange Offer will remain outstanding and continue to
accrue interest but will not retain any rights under this Agreement
(except in the case of the Initial Purchasers and Participating
Broker-Dealers as provided herein); and
(6) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(x) accept for exchange all Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer;
(y) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by
the Company; and
(z) issue, and cause the Trustee under the Indenture to
promptly authenticate and deliver to each Holder, Exchange Notes equal
in principal amount to the principal amount of the Notes surrendered by
such Holder.
Interest on each of the Exchange Notes issued pursuant to the Exchange
Offer will accrue from the last date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on such Notes,
from the Issue Date. To the extent not prohibited by any law or applicable
interpretation of the staff of the SEC, the Company shall use its reasonable
best efforts to complete the Exchange Offer as provided above, and shall comply
with the applicable requirements of the Securities Act, the Exchange Act and
other applicable laws in connection with the Exchange Offer. The Exchange Offer
shall not be subject to any conditions other than the conditions referred to in
Section 2(b)(i) below and those conditions that are customary in similar
exchange offers. Each Holder of Registrable Notes who wishes to exchange such
Registrable Notes for Exchange Notes in the Exchange Offer will be required to
make certain customary representations in connection therewith, including
representations that (i) it is not an Affiliate of the Company, (ii) it is not a
broker-dealer tendering Registrable Notes acquired directly from the Company,
(iii) the Exchange Notes to be received by it are being acquired in the ordinary
course of its business and (iv) at the time of the Exchange Offer, it has no
arrangements or understandings with any Person to participate in the
distribution (within the
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<PAGE> 7
meaning of the Securities Act) of Exchange Notes. The Company shall inform the
Initial Purchasers, after consultation with the Trustee, of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders in order to facilitate
the tender of Registrable Notes in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Exchange Notes held by Participating
Broker-Dealers to the extent of any prospectus delivery requirement for a period
of 60 days after the Exchange Offer is consummated, and the Company shall not
have any further obligation to register the Registrable Notes held by any Holder
(other than any Initial Purchaser) pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the Company reasonably
determines, after conferring with counsel (which may be in-house counsel), that
the Exchange Offer Registration provided in Section 2(a) above is not available
under applicable law and regulations and currently prevailing interpretations of
the staff of the SEC, (ii) the Exchange Offer is not consummated within 245
calendar days after the Issue Date or (iii) upon the request of any Initial
Purchaser with respect to any Registrable Notes held by it, if such Initial
Purchaser is not permitted, in the written opinion of Jones, Day, Reavis &
Pogue, pursuant to applicable law or applicable interpretations of the staff of
the SEC, to participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the Securities Act and
applicable blue sky or state securities laws (any of the events specified in
(i), (ii) or (iii) being a "Shelf Registration Event," and the date of
occurrence thereof being the "Shelf Registration Event Date"), then in addition
to or in lieu of conducting the Exchange Offer contemplated by Section 2(a), as
the case may be, the Company shall promptly notify the Holders and shall, at its
cost, use its reasonable best efforts to cause to be filed as promptly as
practicable after such Shelf Registration Event Date, a Shelf Registration
Statement providing for the sale by the Holders of such Registrable Notes, and
shall use its reasonable best efforts to have such Shelf Registration Statement
declared effective by the SEC as soon as practicable. No Holder of Registrable
Notes shall be entitled to include any of its Registrable Notes in any Shelf
Registration pursuant to this Agreement unless and until such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder and furnishes to the Company in writing, within 10 days after
receipt of a request therefor, such information as the Company may, after
conferring with counsel with regard to information relating to Holders that
would be required by the SEC to be included in such Shelf Registration Statement
or Prospectus included therein, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein. Each Holder as to which
any Shelf Registration is being effected agrees to furnish to the Company all
information with respect to such Holder necessary to make the information
previously furnished to the Company by such Holder not materially misleading.
In the case of a Shelf Registration Event arising under clause (iii) of
the preceding paragraph, the Company, upon request of such Initial Purchaser,
and to the extent permitted by applicable law, shall, simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchaser, in exchange (the "Private Exchange") for such Notes held by
the Initial Purchaser, a like principal amount of debt securities of the Company
that are identical in all material respects to the Exchange Notes other than
transfer restrictions (the "Private Exchange Notes") and which are issued
pursuant to the same indenture as the Exchange Notes. The term Exchange Notes
shall include the Private Exchange Notes unless the
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<PAGE> 8
context otherwise requires and the Private Exchange Notes shall have such rights
in addition to the rights granted under this Section 2(b). To the extent
permitted the Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes.
The Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective and the Prospectus usable for
resales until the earlier of: (A) the end of the Rule 144(k) Period or (B) such
time as all of the Registrable Notes covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or cease to be
Registrable Notes (the "Effectiveness Period"). The Company shall not permit any
securities other than (1) the Company's issued and outstanding securities
currently possessing incidental registration rights and (2) Registrable Notes to
be included in the Shelf Registration. The Company will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder a
reasonable number of copies of the Prospectus which is a part of the Shelf
Registration Statement, notify each such Holder when the Shelf Registration has
become effective and take any other action required to permit unrestricted
resales of the Registrable Notes. The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or by any
other rules and regulations thereunder for shelf registrations, and the Company
agrees to furnish to the Holders of Registrable Notes copies of any such
supplement or amendment promptly after it has been filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any Registration Statement filed pursuant to Section 2(a) or
2(b) hereof. Except as provided herein, each Holder shall pay all expenses of
its counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Notes pursuant
to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the Exchange Offer or the offering of
Registrable Notes pursuant to such Shelf Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, the Exchange Offer Registration
Statement or Shelf Registration Statement will be deemed not to have been
effective during the period of such interference, until the Exchange Offer or
the offering of Registrable Notes pursuant to such Registration Statement may
legally resume. The Company will not be deemed to have used its reasonable best
efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become or to remain effective
during the requisite period if it voluntarily takes any action that would result
in any such Registration Statement not being declared effective or that would
result in the Holders of Registrable Notes covered thereby not being able to
exchange or offer and sell such Registrable Notes during that period, unless
such action is required by applicable law.
(e) Liquidated Damages. In the event that:
(i) the Exchange Offer Registration Statement is not filed
with the Commission by the Filing Date, the Exchange Offer Registration
Statement is
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not declared effective by the Commission by the Effective Date or the
Exchange Offer is not consummated on or prior to the Consummation Date
(unless changes in law or the applicable interpretation of the staff
does not permit the Company to effect the Exchange Offer, in which case
clause (ii) shall apply); or
(ii) any Shelf Registration Statement with respect to the
Registrable Notes required to be filed pursuant to clause (i) or (iii)
of Section 2(b) is not declared effective (or shall thereafter cease to
be effective, except for a 60-day grace period within any 12 month
period as the result of the occurrence of an event specified in Section
3(e)(ii)(C), 3(e)(ii)(D), 3(e)(ii)(E) or 3(e)(ii)(F), prior to the
earlier of the second anniversary of the Issue Date or until all
Registrable Notes have been sold thereunder) under the Securities Act
on or prior to the later of the 245th calendar day after the date of
the original issuance of such Notes and the 60th calendar day after the
publication of the change in law or interpretation referred to in
Section 3(8)(ii) above;
then liquidated damages ("Liquidated Damages") shall accrue on the
principal amount of the Notes at a rate of 0.50% per annum for the
first 90 days immediately following each such date and such Liquidated
Damages rate shall increase to 1.0% per annum commencing on the 91st
day following each such date; provided, however, that upon (A) filing
of the Exchange Offer Registration Statement after the Filing Date or
the declaration of the effectiveness of the Exchange Offer Registration
Statement after the Effective Date or the consummation of the Exchange
Offer after the Consummation Date, as applicable as described in clause
(i) above or (B) the effectiveness of a Shelf Registration Statement
after the 245th or 60th calendar day, as applicable, described in
clause (ii) above (or if the Shelf Registration Statement ceased to be
effective as described above, once the Shelf Registration Statement
again becomes effective), such Liquidated Damages shall cease to
accrue.
Any amounts of Liquidated Damages due pursuant to Section 2(e)(i) or
(ii) above will be payable in cash on the next succeeding March 1 or September
1, as the case may be, to Holders on the relevant record dates for the payment
of interest pursuant to the Indenture.
3. Registration Procedures. In connection with the obligations of the
Company pursuant to Sections 2(a) and 2(b) hereof, the Company shall use its
reasonable best efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
the relevant time periods specified in Section 2 hereof on the appropriate form
under the Securities Act, (i) which form shall (A) be selected by the Company
and (B) in the case of a Shelf Registration, be available for the sale of the
Registrable Notes by the selling Holders thereof and, in the case of an Exchange
Offer, be available for the exchange of Registrable Notes, and (ii) comply as to
form in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith; and
to cause such Registration Statement to become effective and remain effective
(and, in the case of a Shelf Registration Statement, the Prospectus to remain
usable for resales) in accordance with Section 2 hereof; provided, however,
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that if (1) such filing is pursuant to Section 2(b) or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2(a) is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes, before filing any such
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company shall furnish to a representative designated by the Majority Holders
(the "Representative") which, unless other notice is given to the Company, shall
be the Initial Purchasers and their counsel and afford such Persons a reasonable
opportunity to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits thereto which
have been previously filed with the SEC) proposed to be filed; and the Company
shall not file any such Registration Statement or Prospectus or any amendments
or supplements thereto in respect of which the Representative must be afforded
an opportunity to review prior to the filing of such document if the
Representative and their counsel shall reasonably object in a timely manner
unless required by law;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the Exchange Period, the Effectiveness
Period or the Applicable Period, as the case may be, and cause each Prospectus
to be supplemented, if determined by the Company or requested by the SEC, by any
required prospectus supplement and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the Securities Act, and
comply with the provisions of the Securities Act, the Exchange Act and the rules
and regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by a Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in accordance
with the intended method or methods of distribution by the selling Holders
thereof described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes, at least three Business Days prior to filing, that the Shelf
Registration Statement with respect to the Registrable Notes is being filed and
advising such Holder that the distribution of Registrable Notes will be made in
accordance with the method selected by the Majority Holders, (ii) furnish to
each Holder of Registrable Notes included in the Shelf Registration Statement
and to each underwriter of an underwritten offering of Registrable Notes, if
any, without charge, as many copies of each Prospectus, including each
preliminary prospectus, and any amendment or supplement thereto, and such other
documents as such Holder or underwriter may reasonably request, in order to
facilitate the public sale or other disposition of the Registrable Notes and
(iii) consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Notes included in the
Shelf Registration Statement in connection with the offering and sale of the
Registrable Notes covered by the Prospectus or any amendment or supplement
thereto;
(d) in the case of a Shelf Registration, register or qualify the
Registrable Notes under all applicable state securities or "blue sky" laws of
such jurisdictions by the time the Shelf Registration Statement is declared
effective by the SEC as any Holder of Registrable Notes covered by such
Registration Statement and each underwriter of an underwritten offering of
Registrable Notes shall reasonably request in writing in advance of such date of
effectiveness, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder and underwriter to consummate the
disposition in each such jurisdiction of
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such Registrable Notes owned by such Holder; provided, however, that the Company
shall not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (ii) file any general consent to service of
process in any jurisdiction where it would not otherwise be subject to such
service of process or (iii) subject itself to taxation in any such jurisdiction
if it is not then so subject;
(e) (i) in the case of the Shelf Registration or (ii) if Participating
Broker-Dealers, from whom the Company has received prior written notice that
they will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(u) hereof, are seeking to sell
Exchange Notes and are required to deliver Prospectuses, promptly notify each
Holder of Registrable Notes or such Participating Broker-Dealers, as the case
may be, their counsel and the managing underwriters, if any, and promptly
confirm such notice in writing (A) when the applicable Registration Statement
has become effective and when any post-effective amendments thereto become
effective, (B) of any request by the SEC or any state securities authority for
amendments and supplements to the applicable Registration Statement or
Prospectus or for additional information after such Registration Statement has
become effective, (C) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of the applicable
Registration Statement or the qualification of the Registrable Notes or the
Exchange Notes to be offered or sold by any Participating Broker-Dealer in any
jurisdiction described in Section 3(d) hereof or the initiation of any
proceedings for that purpose, (D) in the case of a Shelf Registration, if,
between the effective date of the Registration Statement and the closing of any
sale of Registrable Notes covered thereby, the representations and warranties of
the Company contained in any underwriting or other similar agreement cease to be
true and correct in all material respects, (E) of the happening of any event or
the failure of any event to occur or the discovery of any facts during the
Effectiveness Period, which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
causes such Registration Statement or Prospectus to 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, as well as any other
corporate developments, public filings with the SEC or similar events causing
such Registration Statement not to be effective or the Prospectus not useable
for resales and (F) of the reasonable determination of the Company that a
post-effective amendment to the applicable Registration Statement would be
appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness of
a Registration Statement at the earliest possible moment;
(g) in the case of the Shelf Registration, furnish to each Holder of
Registrable Notes included within the coverage of the Shelf Registration
Statement, at no charge, at least one conformed copy of such Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(h) in the case of the Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and delivery
of certificates representing Registrable Notes to be sold and not bearing any
restrictive legends and in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling
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Holders or the underwriters may reasonably request at least two Business Days
prior to the closing of any sale of Registrable Notes pursuant to such Shelf
Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified in Section
3(e)(ii)(C), 3(e)(ii)(E) (subject to a 60-day grace period within any 12-month
period) or 3(e)(ii)(F) hereof, prepare a supplement or post-effective amendment
to such Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of Registrable Notes, such Prospectus
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; and to notify each
Holder to suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend use of the
Prospectus until the Company has so amended or supplemented the Prospectus;
(j) in the case of the Shelf Registration, a reasonable time prior to
the filing of any document which is to be incorporated by reference into the
Shelf Registration Statement or the Prospectus after the initial filing of the
Shelf Registration Statement, provide a reasonable number of copies of such
document to the Representative and make such of the representatives of the
Company as shall be reasonably requested by the Representative on behalf of such
Holders available for discussion of such document;
(k) obtain a CUSIP number and ISIN for the Exchange Notes not later
than the effective date of the Exchange Offer Registration Statement, and
provide the Trustee with certificates for the Exchange Notes in a form eligible
for deposit with the Depositary;
(l) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange Notes or Registrable Notes, as the case may be, and effect such changes
to such document as may be required for it to be so qualified in accordance with
the terms of the TIA and execute, and cause the Trustee to execute, all
documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such documents to be so
qualified in a timely manner;
(m) in the case of the Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten offerings
and take all such other appropriate actions in connection therewith as are
reasonably requested by the Holders of at least 25% in aggregate principal
amount of the Registrable Notes in order to facilitate the disposition of the
Registrable Notes;
(n) in the case of the Shelf Registration, whether or not an
underwriting agreement is entered into and whether or not the registration is an
underwritten registration, if requested by an Initial Purchaser, in the case
where such Initial Purchaser holds Notes acquired by it as part of its initial
placement or Private Exchange Notes: (i) make such representations and
warranties to Initial Purchasers and the underwriters (if any) with respect to
the business of the Company and the subsidiaries of the Company as then
conducted and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in
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underwritten offerings, and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Company and updates thereof (which may be in the form
of a reliance letter) in form and substance reasonably satisfactory to the
managing underwriters (if any) and the Initial Purchasers, addressed to the
Initial Purchasers and the underwriters (if any) covering the matters
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such underwriters (it being
agreed that the matters to be covered by such opinion may be subject to
customary qualifications and exceptions); (iii) obtain "cold comfort" letters
and updates thereof in form and substance reasonably satisfactory to the
managing underwriters from the independent certified public accountants of the
Company (and, if necessary, any other independent certified public accountants
of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and such other
matters as reasonably requested by such underwriters in accordance with
Statement on Auditing Standards No. 72; and (iv) provide indemnification
provisions and procedures no less favorable than those set forth in Section 4
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriters) customary for such
agreements with respect to all parties to be indemnified pursuant to said
Section (including, without limitation, such underwriters and selling Holders);
(o) if (i) the Shelf Registration is filed pursuant to Section 2(b) or
(ii) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make reasonably available for inspection by any selling
Holder of Registrable Notes in such offering or Participating Broker-Dealer, as
applicable, any underwriter participating in any such disposition of Registrable
Notes, if any, and any attorney, accountant or other agent retained by any such
selling Holder, Participating Broker-Dealer, or underwriter (collectively, the
"Inspectors") at the offices where normally kept, during the Company's normal
business hours, all financial and other records, pertinent organizational and
operational documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause the officers,
trustees and employees of the Company and its subsidiaries to supply all
relevant information in each case reasonably requested by any such Person in
connection with such Registration Statement; and any Records and information
which the Company determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be disclosed to any Inspector
except where (A) the disclosure of such Records or information is necessary to
avoid or correct a material misstatement or omission in such Registration
Statement, (B) the release of such Records or information is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction or is necessary
in connection with any action, suit or proceeding or (C) such Records or
information previously have been made generally available to the public; and
each such selling Holder of Registrable Notes, Participating Broker-Dealer and
underwriter will be required to agree in writing that Records and information
obtained by it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Company unless and until such Records or information are made
generally available to the public through no fault of an Inspector; and each
such selling Holder, Participating Broker-Dealer and underwriter will be
required to further agree in writing that it
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will, upon learning that disclosure of such Records or information is sought in
a court of competent jurisdiction or in connection with any action, suit or
proceeding, give notice to the Company and allow the Company at its expense to
undertake appropriate action to prevent disclosure of the Records and
information deemed confidential;
(p) comply with all applicable rules and regulations of the SEC so long
as any provision of this Agreement shall be applicable and make generally
available to its securityholders earning statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall cover said
12-month periods;
(q) upon consummation of the Exchange Offer, if requested by the
Trustee, obtain an opinion of counsel to the Company addressed to the Trustee
for the benefit of all Holders of Registrable Notes participating in the
Exchange Offer, substantially to the effect that (i) the Company has duly
authorized, executed and delivered the Exchange Notes and (ii) each of the
Exchange Notes constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company, in accordance with its respective terms (in
each case, with customary exceptions);
(r) if the Exchange Offer is to be consummated, upon delivery of the
Registrable Notes by Holders to the Company (or to such other Person as directed
by the Company) in exchange for Exchange Notes, the Company shall mark, or cause
to be marked, on such Registrable Notes delivered by such Holders that such
Registrable Notes are being cancelled in exchange for Exchange Notes; it being
understood that in no event shall such Registrable Notes be marked as paid or
otherwise satisfied;
(s) cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in connection
with any filings required to be made with the NASD;
(t) take all other steps necessary to effect the registration of the
Registrable Notes covered by the Shelf Registration Statement contemplated
hereby;
(u) (i) in the case of the Exchange Offer Registration Statement (A)
include in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably acceptable to the
Representative and which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that holds Registrable Notes acquired
for its own account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer") and that will be the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes to be
received by such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or
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<PAGE> 15
such positions or policies, in the reasonable judgment of the Representatives or
such other representative, represent the prevailing views of the staff of the
SEC, including a statement that any such broker-dealer who receives Exchange
Notes for Registrable Notes pursuant to the Exchange Offer may be deemed a
statutory underwriter and must deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of such Exchange Notes, (B)
furnish to each Participating Broker-Dealer who has delivered to the Company the
notice referred to in Section 3(e), without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (the Company hereby consents
to the use of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto by any Person subject to the
prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Notes covered by the Prospectus or any amendment or supplement
thereto), (C) keep the Exchange Offer Registration Statement effective and amend
and supplement the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as such
Persons must comply with such requirements under the Securities Act and
applicable rules and regulations in order to resell the Exchange Notes;
provided, however, that such period shall not be required to exceed 60 days (or
such longer period if extended pursuant to the last sentence of Section 3
hereof) (the "Applicable Period"), and (D) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (1) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable Notes
acquired for its own account as a result of market-making activities or
other trading activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of
Exchange Notes received in respect of such Registrable Notes pursuant
to the Exchange Offer";
and (2) a statement to the effect that, by making the acknowledgment described
in clause (1) and by delivering a Prospectus in connection with the exchange of
Registrable Notes, the broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act; and
(ii) in the case of the Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchasers, if reasonably requested by
an Initial Purchaser on behalf of the Participating Broker-Dealers upon
consummation of the Exchange Offer (A) an opinion of counsel in form and
substance reasonably satisfactory to such Initial Purchaser covering the matters
customarily covered in opinions requested in connection with exchange offer
registration statements and such other matters as may be reasonably requested
(it being agreed that the matters to be covered by such opinion may be subject
to customary qualifications and exceptions), (B) an officers' certificate
containing certifications substantially similar to those set forth in Section
5(c) of the Purchase Agreement and such additional certifications as are
customarily delivered in a public offering of debt securities and (C) upon the
effectiveness of the Exchange Offer Registration Statement, comfort letter(s),
in each case, in customary form if permitted by Statement on Auditing Standards
No. 72.
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<PAGE> 16
The Company may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Company such information
regarding such seller as may be required by the staff of the SEC to be included
in a Registration Statement. The Company may exclude from such registration the
Registrable Notes of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. The Company
shall not have any obligation to register under the Securities Act the
Registrable Notes of a seller who so fails to furnish such information.
In the case of the Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
this Section 3(u) hereof are seeking to sell Exchange Notes and are required to
deliver Prospectuses, each Holder agrees that, upon receipt of any notice from
the Company of the occurrence of any event specified in Section 3(e)(ii),
3(e)(ii)(C), 3(e)(ii)(E) or 3(e)(ii)(F) hereof, such Holder will forthwith
discontinue disposition of Registrable Notes or Exchange Notes, as the case may
be, pursuant to a Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(i)
hereof or until it is advised in writing (the "Advice") by the Company that the
use of the applicable Prospectus may be resumed, and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense) all
copies in such Holder's possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Notes or
Exchange Notes, as the case may be, current at the time of receipt of such
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Notes or Exchange Notes, as the case may be, pursuant to a
Registration Statement, the Company shall use its reasonable best efforts to
file and have declared effective (if an amendment) as soon as practicable after
the resolution of the related matters an amendment or supplement to the
applicable Registration Statement and shall extend the period during which such
Registration Statement is required to be maintained effective and the Prospectus
usable for resales pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when the Company shall have made available to the Holders (x) copies of
the supplemented or amended Prospectus necessary to resume such dispositions or
(y) the Advice.
4. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company shall
indemnify and hold harmless the Initial Purchasers, each Holder, each
underwriter who participates in an offering of Registrable Notes, each
Participating Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and each of their respective directors, officers, employees and
agents (each, an "Indemnified Person"), against any and all losses, claims,
damages, liabilities, judgments, actions and expenses (including without
limitation and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Person) directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment or supplement thereto) or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of
16
<PAGE> 17
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages, liabilities or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is (i) made
in reliance upon and in conformity with information ("Indemnified Person
Information") relating to any Holder or any other Indemnified Person furnished
in writing to the Company by such Indemnified Person expressly for use in a
Registration Statement or any Prospectus or (ii) with respect to the Indemnified
Person from whom the person asserting the loss, claim, damage or liability
purchased Notes or Private Exchange Notes, made in any preliminary prospectus if
a copy of the Prospectus (as amended or supplemented) shall have been furnished
to the Indemnified Person by the Company with such amendments or supplements
thereto on a timely basis and such Prospectus (as amended or supplemented) was
not delivered by or on behalf of the Indemnified Person to the person asserting
the claim or action, if required by law to have been so delivered by the
Indemnified Person seeking indemnification, at or prior to the written
confirmation of the sale of such Notes or Private Exchange Notes, and it shall
be finally determined by a court of competent jurisdiction, by a judgment not
subject to appeal or review, that the Prospectus (as amended or supplemented)
would have corrected such untrue statement or omission. The Company shall notify
any applicable Indemnified Party promptly of the institution, threat or
assertion of any claim, proceeding (including any governmental investigation) or
litigation, of which it has knowledge, in connection with the matters addressed
by this Agreement which involves the Company or an Indemnified Person. In case
any action or proceeding (including any governmental investigation) shall be
brought or asserted against any Indemnified Person with respect to which
indemnity may be sought against an indemnifying party (or indemnifying parties),
such Indemnified Person shall promptly notify the indemnifying party (or
indemnifying parties) in writing (provided that the failure to give such notice
shall not relieve the indemnifying party (or indemnifying parties) of its or
their obligations pursuant to this Agreement unless and only to the extent such
failure to give notice results in the loss or compromise of any material rights
or defenses of the indemnifying party (or indemnifying parties) as determined by
a court of competent jurisdiction by a final judgment no longer subject to
appeal or review). Upon receiving such notice, the indemnifying party (or
indemnifying parties) shall be entitled to participate in any such action or
proceeding and to assume, at its or their sole expense, the defense thereof,
with counsel reasonably satisfactory to such Indemnified Person (who shall not,
except with the consent of the Indemnified Person, be counsel to the
indemnifying party (or indemnifying parties) or an affiliate thereof) and, after
written notice from the indemnifying party (or indemnifying parties) to such
Indemnified Person of its or their election so to assume the defense thereof
within 15 business days after receipt of the notice from the Indemnified Person
of such action or proceeding, the indemnifying party (or indemnifying parties)
shall not be liable to such Indemnified Person hereunder for legal expenses of
other counsel subsequently incurred by such Indemnified Person in connection
with the defense thereof, other than reasonable costs of investigation, unless
(A) the indemnifying party (or indemnifying parties) agrees in writing to pay
such fees and expenses, or (B) the indemnifying party (or indemnifying parties)
fails to assume such defense within the 15 business days specified above or
fails to employ counsel reasonably satisfactory to such Indemnified Person or
(C) the named parties to any such action or proceeding (including any impleaded
parties) include both such Indemnified Person and the indemnifying party (or
indemnifying parties) or its or their affiliates, and such Indemnified Person
shall have been advised by counsel that a conflict (actual or potential) of
interest exists between such Indemnified Person and the indemnifying party (or
indemnifying parties) or its or their affiliates, in which case, if such
Indemnified Person notifies the indemnifying party (or indemnifying parties) in
writing, neither the indemnifying party (or
17
<PAGE> 18
indemnifying parties) nor its or their affiliates shall have the right to assume
the defense thereof, it being understood, however, that the indemnifying party
(or indemnifying parties) shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time
for all Indemnified Persons. No indemnifying party shall be liable for any
settlement of any such action or proceeding effected without its prior written
consent. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested the indemnifying party (or indemnifying parties) to
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, the indemnifying party
(or indemnifying parties) agrees that it or they shall be liable for any
settlement of any proceeding effected without its or their written consent if
(1) such settlement is entered into more than 60 business days after receipt by
the indemnifying party (or indemnifying parties) of the aforesaid request and
(2) the indemnifying party (or indemnifying parties) shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. The indemnifying party (or indemnifying parties) shall not, without
the prior written consent of each Indemnified Person, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any pending
or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Person is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Person from all liability arising out of such action, claim, litigation or
proceeding.
(b) Each of the Indemnified Persons agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers, and any
person controlling (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) the Company, to the same extent as the foregoing indemnity
from the Company to each of the Indemnified Persons, but only with respect to
claims and actions based on any Indemnified Person Information provided by such
Indemnified Person.
(c) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the Company or the Indemnified Persons, as applicable, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying parties and the indemnified party, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand, and the indemnified party, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact related to information supplied by the Company, on the one hand,
or the Indemnified Persons, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The indemnity and contribution obligations of the Company
set forth in this Section 4 shall be in addition to any liability or obligation
that the Company may otherwise have (other than with respect to the matters
covered by this Section 4) to any Indemnified Person.
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<PAGE> 19
(d) The Company and the Indemnified Persons agree that it would not be
just and equitable if contribution pursuant to this Section 4 were determined by
pro rata allocation (even if the Indemnified Persons were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Indemnified Persons' obligations to contribute pursuant
to this Section 4 are several not joint. In no event shall any Holder, its
directors, officers or any Person who controls such Holder be liable or
responsible for any amount in excess of the amount by which the total amount
received by such Holder with respect to its sale of Registrable Notes pursuant
to a Registration Statement exceeds (i) the amount paid by such Holder for such
Registrable Notes and (ii) the amount of any damages that such Holder, its
directors, officers or any Person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Notes on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Notes covered
by the Shelf Registration Statement who desire to do so may sell the Notes
covered by such Shelf Registration in an underwritten offering, subject to the
provisions of Section 3(m) hereof. In any such underwritten offering, the
underwriter or underwriters and manager or managers that will administer the
offering will be selected by the Holders of a majority in aggregate principal
amount, as applicable, of the Registrable Notes included in such offering;
provided, however, that such underwriters and managers must be reasonably
satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes remain outstanding, the Company will file the reports required
to be filed by it under the Securities Act and Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the SEC thereunder;
provided, however, that if the Company ceases to be so required to file such
reports, it will, upon the request of any Holder of Registrable Notes (i) make
publicly available such information as is necessary to permit sales of its
securities pursuant to Rule 144 under the Securities Act, (ii) deliver such
information to a prospective purchaser as is necessary to permit sales of its
securities pursuant to Rule 144A under the Securities Act and (iii) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Notes without registration under the
19
<PAGE> 20
Securities Act within the limitation of the exemptions provided by (A) Rule 144
under the Securities Act, as such rule may be amended from time to time, (B)
Rule 144A under the Securities Act, as such rule may be amended from time to
time or (C) any similar rules or regulations hereafter adopted by the SEC. Upon
the request of any Holder of Registrable Notes, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into, nor
will the Company on or after the date of this Agreement enter into, any
agreement that is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof, except to the extent that the other party to any such agreement has
waived such conflict. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of Holders of a
majority in aggregate principal amount of the outstanding Registrable Notes
affected by such amendment, modification, supplement, waiver or departure;
provided that no amendment, modification or supplement or waiver or consent to
departure with respect to the provisions of Section 4 hereof shall be effective
as against any Holder of Registrable Notes unless consented to in writing by
such Holder of Registrable Notes. Notwithstanding the foregoing sentence, (i)
this Agreement may be amended, without the consent of any Holder of Registrable
Notes, by written agreement signed by the Company and the Initial Purchasers, to
cure any ambiguity, to correct or supplement any provision of this Agreement
that may be inconsistent with any other provision of this Agreement, (ii) this
Agreement may be amended, modified or supplemented, and waivers and consents to
departures from the provisions hereof may be given, by written agreement signed
by the Company and the Initial Purchasers to the extent that any such amendment,
modification, supplement, waiver or consent is, in their reasonable judgment,
necessary or appropriate to comply with applicable law (including any
interpretation of the staff of the SEC) or any change therein and (iii) to the
extent any provision of this Agreement relates to an Initial Purchaser, such
provision may be amended, modified or supplemented, and waivers or consents to
departures from such provisions may be given, by written agreement signed by
such Initial Purchaser and the Company.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to each Initial
Purchaser, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is
20
<PAGE> 21
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Notes in violation of the terms of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Registrable Notes, in any manner,
whether by operation of law or otherwise, such Registrable Notes shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Notes, such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating
Broker-Dealer shall be third party beneficiaries of the agreements made
hereunder among the Initial Purchasers and the Company, and the Initial
Purchasers shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND
THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND RULE 327(B) OF THE NEW YORK CIVIL PRACTICE LAWS AND RULES.
(j) Jurisdiction, Etc.
(i) The Company hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction
of any New York State court or federal court of the United States of
America sitting in The City of New York, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to
this Agreement or the Notes, Exchange
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<PAGE> 22
Notes or the Private Exchange Notes, or for recognition or enforcement
of any judgment, and the Company hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may
be heard and determined in any such New York State court or, to the
extent permitted by law, in such federal court. The Company hereby
agrees that service of process in any such action or proceeding brought
in any such New York State court or in such federal court may be made
upon the Company at its offices at 100 West Fifth Street, Tulsa,
Oklahoma 74103, Attention: Corporate Secretary (the "Process Agent"),
and hereby further agrees that the failure of the Process Agent to give
any notice of any such service to the Company shall not impair or
affect the validity of such service or of any judgment rendered in any
action or proceeding based thereon. The Company agrees that a final
judgement in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect
any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes, the Exchange Notes
or the Private Exchange Notes in the courts of any jurisdiction.
(ii) The Company irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or
the Notes, the Exchange Notes or the Private Exchange Notes in any New
York State or federal court. The Company hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such
court.
(iii) To the extent that the Company has or hereafter may
acquire any immunity from the jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, the Company hereby irrevocably
waives such immunity in respect of its obligations under this Agreement
and the Notes, the Exchange Notes or the Private Exchange Notes.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its Affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
[signature page follows]
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<PAGE> 23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ONEOK, INC.
By: /s/ Jim Kneale
----------------------------------------------
Name: Jim Kneale
Title: Vice President, Chief Financial
Officer and Treasurer
Confirmed and accepted as of
the date first above
written:
BANC OF AMERICA SECURITIES LLC
On behalf of itself and the Initial Purchasers
By: /s/ Lynn McConnell
-------------------------------------
Name: Lynn McConnell
Title: Managing Director
S-1
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF GABLE & GOTWALS]
March 10, 2000
ONEOK, Inc.
PO Box 871
Tulsa, OK 74102-0871
Re: Registration Statement on Form S-4
Ladies & Gentlemen:
We have acted as counsel to ONEOK, Inc., an Oklahoma corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-4 (the "Registration Statement") filed by the Company with the Securities
and Exchange Commission with respect to up to $350 million aggregate principal
amount of the Company's 7.75% Notes Due 2005, Series B (the "Exchange Notes"),
which will be offered in exchange for the Company's issued and outstanding 7.75%
Notes Due 2005 (the "Old Notes"), as described in the Registration Statement.
The Exchange Notes are to be issued in exchange for the Old Notes pursuant
to the Indenture dated as of September 24, 1998 (the "Indenture") between the
Company and Chase Bank of Texas, National Association, as Trustee (the
"Trustee"), as amended by a Sixth Supplemental Indenture dated as of March 1,
2000, between the Company and the Trustee (the "Sixth Supplemental Indenture"),
and pursuant to the Registration Rights Agreement dated as of March 1, 2000,
among the Company, Banc of America Securities L.L.C., Bank One Capital Markets,
Inc., First Union Securities, Inc., J.P. Morgan Securities Inc., PaineWebber
Incorporated and Salomon Smith Barney Inc. (the "Registration Rights
Agreement").
In so acting, we have examined and have relied upon such records, documents
and other instruments as in our judgment are necessary or appropriate in order
to express the opinion hereinafter set forth and have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies.
Based upon and subject to the foregoing, we are of the opinion that the
Exchange Notes, when duly executed and authenticated in accordance with the
terms of the Indenture, as amended
<PAGE> 2
ONEOK, Inc.
March 10, 2000
Page 2
by the Sixth Supplemental Indenture, and delivered in exchange for the Old Notes
in accordance with the terms of the Indenture, as amended by the Sixth
Supplemental Indenture, will have been validly issued and will be legally
binding obligations of the Company, subject to the following exceptions,
limitations and qualifications: (a) the effect of bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent conveyance, fraudulent
transfer and other similar laws relating to or affecting the rights and remedies
of creditors generally and (b) general principles of equity (including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance, injunctive relief or
other equitable remedies), regardless of whether considered in a proceeding at
law or in equity, and the discretion of the court before which any proceeding
therefor may be brought.
We express no opinion herein other than as to the laws of the State of
Oklahoma and the federal laws of the United States.
We hereby consent to the reference to our law firm in the Registration
Statement under the caption "Legal Matters" and to the use of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ JOHN R. BARKER
John R. Barker
For the Firm
JRB:jh
<PAGE> 1
EXHIBIT 12.1
ONEOK, Inc.
Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividend Requirements
<TABLE>
<CAPTION>
Four Months Ended
December 31, Years Ended August 31,
---------------------- -------------------------------------
1999 1998 1999 1998 1997
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Fixed charges, as defined
Interest on long-term debt 19,682 11,983 37,087 30,846 31,354
Other interest 7,303 3,364 14,440 3,723 3,376
Amortization of debt discount and expense 898 220 1,282 506 518
Interest on lease agreements 868 775 2,604 2,325 2,266
------- ------- ------- ------- -------
Total fixed charges 28,751 16,342 55,413 37,400 37,514
Preferred dividend requirements 19,850 20,380 61,061 44,228 285
------- ------- ------- ------- -------
Total fixed charges and
preferred dividend requirements 48,601 36,722 116,474 81,628 37,799
======= ======= ======= ======= =======
Earnings before income taxes and income from
equity investees 55,685 56,930 169,552 168,380 94,107
Total fixed charges 28,751 16,342 55,413 37,400 37,514
------- ------- ------- ------- -------
Earnings available for combined
fixed charges and preferred
dividend requirements 84,436 73,272 224,965 205,780 131,621
======= ======= ======= ======= =======
Ratio of earnings to combined
fixed charges and preferred
dividend requirements 1.74x 2.00x 1.93x 2.52x 3.48x
======= ======= ======= ======= =======
</TABLE>
For purposes of computing the ratio of earnings to combined fixed charges and
preferred dividend requirements, "earnings" consists of net income plus fixed
charges and income taxes, less undistributed income from equity investees.
"Fixed charges" consists of interest charges, the amortization of debt discounts
and issue costs and the representative interest portion of operating leases.
"Preferred dividend requirements" consists of the pre-tax preferred dividend
requirement.
<PAGE> 1
EXHIBIT 12.2
ONEOK, Inc.
Computation of Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Four Months Ended
December 31, Years Ended August 31,
----------------- ----------------------
1999 1998 1999 1998 1997
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Fixed charges, as defined
Interest on long-term debt 19,682 11,983 37,087 30,846 31,354
Other interest 7,303 3,364 14,440 3,723 3,376
Amortization of debt discount and expense 898 220 1,282 506 518
Interest on lease agreements 868 775 2,604 2,325 2,266
------- ------- ------- ------- -------
Total fixed charges 28,751 16,342 55,413 37,400 37,514
------- ------- ------- ------- -------
Earnings before income taxes and income from
equity investees 55,685 56,930 169,552 168,380 94,107
------- ------- ------- ------- -------
Earnings available for fixed charges 84,436 73,272 224,965 205,780 131,621
======= ======= ======= ======= =======
Ratio of earnings to fixed charges requirements 2.94x 4.48x 4.06x 5.50x 3.51x
======= ======= ======= ======= =======
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, "earnings"
consists of net income plus fixed charges and income taxes, less undistributed
income from equity investees. "Fixed charges" consists of interest charges, the
amortization of debt discounts and issue costs and the representative interest
portion of operating leases.
<PAGE> 1
Exhibit 23.1
The Board of Directors
ONEOK, Inc.
We consent to the incorporation by reference herein of our report on the
Consolidated Financial Statements of ONEOK, Inc. and subsidiaries as of August
31, 1999 and 1998, and for each of the years in the three-year period ended
August 31, 1999, which report appears in the August 31, 1999, Annual Report on
Form 10-K of ONEOK, Inc. and to the references to our firm under the headings
"Experts" and "Selected Consolidated Financial Data" in the prospectus.
/s/ KPMG LLP
Tulsa, Oklahoma
March 10, 2000
<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ____
----------------------
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
74-0800980
(I.R.S. Employer Identification Number)
712 MAIN STREET, HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip code)
LEE BOOCKER, 712 MAIN STREET, 26TH FLOOR
HOUSTON, TEXAS 77002 (713) 216-2448
(Name, address and telephone number of agent for service)
ONEOK, INC.
(Exact name of obligor as specified in its charter)
OKLAHOMA 73-1520922
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
100 WEST FIFTH STREET 74103
TULSA, OKLAHOMA (Zip code)
(Address of principal executive offices)
7.75% NOTES DUE MARCH 1, 2005
(Title of indenture securities)
================================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C. Federal Deposit
Insurance Corporation, Washington, D.C. Board of Governors of the
Federal Reserve System, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee. (See Note on Page
7.)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE.
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
--------------- -------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER
WHICH ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING
INFORMATION:
(a) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER
INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE> 3
ITEM 4. (CONTINUED)
(b) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE
CLAIM THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION
310(B)(1) OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER
ANY SUCH OTHER INDENTURE, INCLUDING A STATEMENT AS TO HOW THE
INDENTURE SECURITIES WILL RANK AS COMPARED WITH THE SECURITIES
ISSUED UNDER SUCH OTHER INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICER OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR REPRESENTATIVE
OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON
HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF
THE TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
<S> <C> <C> <C>
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN IN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY COL.C
------------- -------------- ------------ -----------------
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
2
<PAGE> 4
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES
OF THE TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
<S> <C> <C> <C>
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN IN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY COL.C
------------- -------------- ------------ -----------------
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO THE SECURITIES OF THE
OBLIGOR OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN
DEFAULT BY THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
<S> <C> <C> <C>
AMOUNT OWNED
WHETHER THE BENEFICIALLY OR PERCENTAGE OF
SECURITIES HELD AS COLLATERAL CLASS
ARE VOTING SECURITY FOR REPRESENTED BY
OR NONVOTING OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS SECURITIES DEFAULT COL.C
-------------- ------------ ------------------ ---------------
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
3
<PAGE> 5
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL
SECURITY FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF
SUCH UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
<S> <C> <C> <C>
AMOUNT OWNED
BENEFICIALLY OR PERCENTAGE OF
HELD AS COLLATERAL CLASS
NAME OF ISSUER SECURITY FOR REPRESENTED BY
AND AMOUNT OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL.C
-------------- ------------ ------------------ ---------------
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL
SECURITY FOR OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE
KNOWLEDGE OF THE TRUSTEE (1) OWNS 10% OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH
THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
<S> <C> <C> <C>
AMOUNT OWNED
BENEFICIALLY OR PERCENTAGE OF
HELD AS COLLATERAL CLASS
NAME OF ISSUER SECURITY FOR REPRESENTED BY
AND AMOUNT OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL.C
-------------- ------------ ------------------ ---------------
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
4
<PAGE> 6
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50% OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL
SECURITY FOR OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE
KNOWLEDGE OF THE TRUSTEE, OWNS 50% OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OR
SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
<S> <C> <C> <C>
AMOUNT OWNED
BENEFICIALLY OR PERCENTAGE OF
HELD AS COLLATERAL CLASS
NAME OF ISSUER SECURITY FOR REPRESENTED BY
AND AMOUNT OBLIGATIONS IN AMOUNT GIVEN IN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE COL.C
-------------- ------------ ------------------ ---------------
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS
INDEBTED TO THE TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
<TABLE>
<CAPTION>
COL. A COL. B COL. C
<S> <C> <C>
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- --------
</TABLE>
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(a) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not, nor has there been, a default with respect to the
securities under this indenture. (See Note on Page 7.)
5
<PAGE> 7
ITEM 13. (CONTINUED)
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There has not been a default under any such indenture or series. (See
Note on Page 7.)
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE
EACH SUCH AFFILIATION.
Not applicable by virtue of Form T-1 General Instruction B and response to
Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN
TRUSTEE IS AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF
ELIGIBILITY.
o 1. A copy of the articles of association of the trustee now
in effect.
# 2. A copy of the certificate of authority of the trustee to
commence business.
* 3. A copy of the certificate of authorization of the trustee
to exercise corporate trust powers issued by the Board of
Governors of the Federal Reserve System under date of January
21, 1948.
+ 4. A copy of the existing bylaws of the trustee.
5. Not applicable.
6. The consent of the United States institutional trustees
required by Section 321(b) of the Act.
6
<PAGE> 8
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
NOTE REGARDING INCORPORATED EXHIBITS
Effective January 20, 1998, the name of the Trustee was changed from
Texas Commerce Bank National Association to Chase Bank of Texas, National
Association. Certain of the exhibits incorporated herein by reference, except
for Exhibit 7, were filed under the former name of the Trustee.
o Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-3 File No. 33-56195.
# Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-3 File No. 33-42814.
* Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-11 File No. 33-25132.
+ Incorporated by reference to exhibit bearing the same designation and
previously filed with the Securities and Exchange Commission as exhibits to the
Form S-3 File No. 33-65055.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment
by the trustee of all facts on which to base responsive answers to Items 2 and
13, the answers to said Items are based on incomplete information. Such Items
may, however, be considered as correct unless amended by an amendment to this
Form T-1.
7
<PAGE> 9
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939 THE
TRUSTEE, CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, FORMERLY KNOWN AS TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, A NATIONAL BANKING ASSOCIATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, HAS DULY CAUSED THIS
STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO AUTHORIZED, ALL IN THE CITY OF HOUSTON, AND STATE OF TEXAS, ON THE
10TH DAY OF MARCH, 2000.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, AS TRUSTEE
By: /s/ JOHN G. JONES
---------------------------------
John G. Jones
Vice President and Trust Officer
8
<PAGE> 10
EXHIBIT 6
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
The undersigned is trustee under an Indenture between ONEOK, Inc., an
Oklahoma corporation, as obligor (the "Company"), and Chase Bank of Texas,
National Association, as Trustee, entered into in connection with the issuance
of the Company's 7.75% Notes due March 1, 2005.
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned hereby consents that reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By: /s/ JOHN G. JONES
---------------------------------
John G. Jones
Vice President and Trust Officer
<PAGE> 11
EXHIBIT 7
<TABLE>
<S> <C>
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL Expires March 31, 2000
- -------------------------------------------------------------------------------------------------------------------------
[1]
[LOGO] Please Refer to Page i,
Table of Contents, for
the required disclosure
of estimated burden.
- -------------------------------------------------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES - FFIEC 031
REPORT AT THE CLOSE OF BUSINESS DECEMBER 31, 1999 19991231
-----------
(RCRI 9999)
This report is required by law: 12 U.S.C. Section 324 (State This report form is to be filed by banks with branches and
member banks); 12 U.S.C. Section 1817 (State nonmember consolidated subsidiaries in U.S. territories and possessions,
banks); and 12 U.S.C. Section 161 (National banks). Edge or Agreement subsidiaries, foreign branches, consolidated
foreign subsidiaries, or International Banking Facilities.
- -------------------------------------------------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by The Reports of Condition and Income are to be prepared in
an authorized officer and the Report of Condition must be accordance with Federal regulatory authority instructions.
attested to by not less than two directors (trustees) for
State nonmember banks and three directors for State member
and National banks.
I, Jack Alexander, Senior Vice President We, the undersigned directors (trustees), attest to
- ----------------------------------------------------------- the correctness of this Report of Condition
Name and Title of Officer Authorized to Sign Report (including the supporting schedules) for this report date and
declare that it has been examined by us and to the best of our
of the named bank do hereby declare that these Reports of knowledge and belief has been prepared in conformance
Condition and Income (including the supporting schedules) for with the instructions issued by the appropriate
this report date have been prepared in conformance with the Federal regulatory authority and is true and correct.
instructions issued by the appropriate Federal regulatory
authority and are true to the best of my knowledge and belief. Alan R. Buckwalter /s/ ALAN R. BUCKWALTER
---------------------------------------------------------
Director (Trustee)
/s/ JACK ALEXANDER
- ------------------------------------------------------------- Harriet S. Wasserstrum /s/ HARRIET S. WASSERSTRUM
Signature of Officer Authorized to Sign Report ---------------------------------------------------------
Director (Trustee)
Beverly H. McCaskill /s/ BEVERLY H. MCCASKILL
- ------------------------------------------------------------- ---------------------------------------------------------
Date of Signature Director (Trustee)
- -------------------------------------------------------------------------------------------------------------------------
Submission of Reports (If other than EDS) must transmit the bank's
computer data file to EDS.
Each bank must prepare its Reports of Condition and Income
either: For electronic filing assistance, contact EDS Call
Report Services, 2150 N. Prospect Ave., Milwaukee,
WI 53202, telephone (800) 255-1571.
(a) in electronic form and then file the computer data file
directly with the banking agencies' collection agent.
Electronic Data Systems Corporation (EDS), by modem or To fulfill the signature and atestation requirement for the
on computer diskette; or Reports of Condition and Income for this report date, attach
(b) in hard-copy (paper) form and arrange for another party this signature page (or a photocopy or a computer-generated
to convert the paper report to electronic form. That version of this page) to the hard-copy record of the completed
party report that the bank places in its files.
- -------------------------------------------------------------------------------------------------------------------------
FDIC Certificate Number 03263 Chase Bank of Texas, National Association
---------- ---------------------------------------------------------
(RCRI 9050) Legal Title of Bank (TEXT 9010)
http://Chase.com Houston
- ------------------------------------------------------------- ---------------------------------------------------------
Primary Internet Web Address of Bank City (TEXT 9130)
(Home Page), if any (TEXT 4087) TX 77001
(Example: www.example.com) ---------------------------------------------------------
State Abbrev. (TEXT 9200) Zip Code (TEXT 9220)
Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency
</TABLE>
<PAGE> 12
<TABLE>
<S> <C> <C>
FFIEC 031
Page i
2
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR
A BANK WITH DOMESTIC AND FOREIGN OFFICES
- ---------------------------------------------------------------------------------------------------------------------
TABLE OF CONTENTS REPORT OF CONDITION
SIGNATURE PAGE COVER Schedule RC--Balance Sheet .......................... RC-1, 2
REPORT OF INCOME Schedule RC-A--Cash and Balances Due
From Depository Institutions ........................ RC-3
Schedule RI-Income Statement .................... RI-1, 2, 3
Schedule RC-B--Securities ........................... RC-3, 4, 5
Schedule RI-A-Changes in Equity Capital ............RI-4
Schedule RC-C--Loans and Lease Financing Receivables:
Schedule RI-B-Charge-offs and Recoveries on Loans Part I. Loans and Leases .......................... RC-6, 7, 8
and Leases and Changes in Allowance for Credit Part II. Loans to Small Businesses and
Losses ...........................................RI-4, 5 Small Farms (to be completed for the
June report only; not included in the forms
for the September and December reports) ........... RC-8a, 8b
Schedule RI-D--Income from International
Operations ....................................... RI-6 Schedule RC-D--Trading Assets and Liabilities
(to be completed only by selected banks) ........ RC-8
Schedule RI-E--Explanations ........................ RI-7, 8 Schedule RC-E--Deposit Liabilities ................ RC-9, 10, 11
Schedule RC-F--Other Assets ..................... RC-11
Disclosure of Estimated Burden Schedule RC-G--Other Liabilities ................. RC-11
Schedule RC-H--Selected Balance Sheet Items
The estimated average burden associated with this for Domestic Offices ............................ RC-12
information collection is 34.1 hours per respondent and Schedule RC-I--Selected Assets and Liabilities
estimated to vary from 15 to 400 hours per response, of IBFs .......................................... RC-13
depending on individual circumstances. Burden estimates Schedule RC-K--Quarterly Averages ................. RC-13
include the time for reviewing instructions, gathering Schedule RC-L--Off Balance Sheet
and maintaining data in the required form, and completing Items ............................................ RC-14, 15, 16
the information collection, but exclude the time for compiling Schedule RC-M--Memoranda ......................... RC-17, 18
and maintaining business records in the normal course of Schedule RC-N--Past Due and Nonaccrual
a respondent's activities. A Federal agency may not conduct Loans, Leases, and Other Assets .................. RC-19, 20
or sponsor, and an organization (or a person) is not Loans, Leases, and Other Assets .................. RC-19, 20
required to respond to a collection of information, Schedule RC-O--Other Data for Deposit
unless it displays a currently valid OMB control number. Insurance and FICO Assessments ................... RC-21, 22
Comments concerning the accuracy of this burden estimate and Schedule RC-R--Regulatory Capital .................. RC-23, 24
suggestions for reducing this burden should be directed to Optional Narrative Statement Concerning the
the Office of Information and Regulatory Affairs, Amounts Reported in the Reports
Office of Management and Budget. of Condition and Income ........................... RC-25
Washington, D.C. 20503, and to one of the following:
Secretary
Board of Governors of the Federal Reserve System SPECIAL REPORT (TO BE COMPLETED BY ALL BANKS)
Washington, D.C. 20551
Legislative and Regulatory Analysis Division
Office of the Comptroller of the Currency
Washington, D.C. 20219
Assistant Executive Secretary
Federal Deposit Insurance Corporation
Washington, D.C. 20429
For information or assistance, National and State nonmember banks should contact the FDIC's Reports Analysis
and Quality
</TABLE>
2
<PAGE> 13
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/99 State #: FFIEC 031
712 Main Street Vendor Date: D Cert #: 03263 RI-1
Houston, TX 77001 Transit#: 0000000 ----------
3
----------
</TABLE>
CONSOLIDATED REPORT OF INCOME
FOR THE PERIOD JANUARY 1, 1999-DECEMBER 31, 1999
All Report of Income schedules are to be reported on a calendar year-to-date
basis in thousands of dollars.
SCHEDULE RI--INCOME STATEMENT
<TABLE>
<CAPTION>
I480 <-
Dollar Amounts in Thousands
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Interest income:
a. Interest and fee income on loans:
(1) In domestic offices: RIAD
----
(a) Loans secured by real estate.................................................. 4011 221,609 1.a.(1)(a)
(b) Loans to depository institutions.............................................. 4019 232 1.a.(1)(b)
(c) Loans to finance agricultural production and other loans to farmers........... 4024 1,824 1.a.(1)(c)
(d) Commercial and industrial loans............................................... 4012 436,152 1.a.(1)(d)
(e) Acceptances of other banks.................................................... 4026 0 1.a.(1)(e)
(f) Loans to individuals for household, family and other personal expenditures:
(1) Credit cards and related plans............................................ 4054 13,518 1.a.(1)(f)(1)
(2) Other..................................................................... 4055 148,370 1.a.(1)(f)(2)
(g) Loans to foreign governments and official institutions........................ 4056 539 1.a.(1)(g)
(h) Obligations (other than securities and leases) of states and political
subdivisions in the U.S.:
(1) Taxable obligations....................................................... 4503 0 1.a.(1)(h)(1)
(2) Tax-exempt obligations.................................................... 4504 309 1.a.(1)(h)(2)
(i) All other loans in domestic offices........................................... 4058 140,054 1.a.(1)(i)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs..................... 4059 1,477 1.a.(2)
b. Income from lease financing receivables:
(1) Taxable leases.................................................................... 4505 1,977 1.b.(1)
(2) Tax-exempt leases................................................................. 4307 0 1.b.(2)
c. Interest income on balances due from depository institutions: (1)
(1) In domestic offices............................................................... 4105 0 1.c.(1)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs..................... 4106 117 1.c.(2)
d. Interest and dividend income on securities:
(1) U.S. Treasury securities and U.S. Government agency obligations
(including mortgage-backed securities issued
or guaranteed by FNMA, FHLMC, or GNMA) ........................................... 4027 316,091 1.d.(1)
(2) Securities issued by states and political subdivisions in the U.S.:
(a) Taxable securities............................................................ 4506 3 1.d.(2)(a)
(b) Tax-exempt securities......................................................... 4507 11 1.d.(2)(b)
(3) Other domestic debt securities
(including mortgage-backed securities not issued
or guaranteed by FNMA, FHLMC, or GNMA)............................................ 3657 40 1.d.(3)
(4) Foreign debt securities........................................................... 3658 147 1.d.(4)
(5) Equity securities (including investments in mutual funds)......................... 3659 2,849 1.d.(5)
e. Interest income from trading assets................................................... 4069 124 1.e.
- ---------------
(1) Includes interest income on time certificates of deposit not held for trading.
</TABLE>
3
<PAGE> 14
<TABLE>
<S> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC C3
712 Main Street Vendor ID: D Cert #: 03263 RI-2
Houston, TX 77001 Transit #: 00000000
--------
4
--------
</TABLE>
Schedule RI -- Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Interest income (continued)
f. Interest income on federal funds sold and securities purchased under RIAD Year-to-Date
agreements to resell..................................................4020 30,706 1.f
g. Total interest income (sum of items 1.a through 1.f)..................4107 1,322,149 1.g
2. Interest expense:
a. Interest on deposits:
(1) Interest on deposits in domestic offices:
(a) Transaction accounts (NOW accounts, ATS accounts, and
telephone and preauthorized transfer accounts)................4508 4,260 2.a.(1)(a)
(b) Nontransaction accounts:
(1) Money market deposit accounts (MMDAs).....................4509 44,939 2.a.(1)(b)(1)
(2) Other savings deposits....................................4511 130,381 2.a.(1)(b)(2)
(3) Time deposits of $100,000 or more.........................A517 42,418 2.a.(1)(b)(3)
(4) Time deposits of less than $100,000.......................A518 104,867 2.a.(1)(b)(4)
(2) Interest on deposits in foreign offices, Edge and Agreement
subsidiaries, and IBFs............................................4172 11,680 2.a.(2)
b. Expense of federal funds purchased and securities sold under
agreements to repurchase..............................................4180 79,983 2.b
c. Interest on demand notes issued to the U.S. Treasury, trading
liabilities, and other borrowed money.................................4185 33,262 2.c
d. Not applicable
e. Interest on subordinated notes and debentures.........................4200 28,583 2.e
f. Total interest expense (sum of Items 2.a through 2.e).................4073 480,373 RIAD 2.f
3. Net interest income (item 1.g minus 2.f)................................... 4074 841,776 3.
4. Provisions:
a. Provision for credit losses........................................... 4230 110,000 4.a
b. Provision for allocated transfer risk................................. 4243 0 4.b
5. Noninterest income: RIAD
a. Income from fiduciary activities......................................4070 190,226 5.a
b. Service charges on deposit accounts in domestic offices...............4080 157,896 5.b
c. Trading revenue (must equal Schedule RI, sum of Memorandum
items 8.a through 8.d)................................................A220 26,028 5.c
d.-e. Not applicable
f. Other noninterest income:
(1) Other fee income..................................................5407 120,837 5.f.(1)
(2) All other noninterest income*.....................................5408 205,040 RIAD 5.f.(2)
g. Total noninterest income (sum of items 5.a through 5.f)............... 4079 700,029 5.g
6. a. Realized gains (losses) on held-to-maturity securities................ 3521 0 6.a
b. Realized gains (losses) on available-for-sale securities.............. 3196 23,667 6.b
7. Noninterest expense: RIAD
a. Salaries and employee benefits........................................4135 567,699 7.a
b. Expenses of premises and fixed assets (net of rental income)
(excluding salaries and employee benefits and mortgage interest)......4217 215,437 7.b
c. Other noninterest expense*............................................4092 284,337 RIAD 7.c
d. Total noninterest expense (sum of items 7.a through 7.c).............. 4093 1,067,473 7.d
8. Income (loss) before income taxes and extraordinary items and other
adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and 7.d).. 4301 388,019 8.
9. Applicable income taxes (on item 8)........................................ 4302 138,271 9.
10. Income (loss) before extraordinary items and other adjustments (item 8
minus 9)................................................................... 4300 249,748 10.
11. Extraordinary items and other adjustments, net of income taxes*............ 4320 0 11.
12. Net income (loss) (sum of items 10 and 11)................................. 4340 248,748 12.
</TABLE>
- ---------------
* Describe on Schedule RI-E -- Explanations.
4
<PAGE> 15
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 RI-3
Houston, TX 77001 Transit #: 00000000 ----------
5
----------
</TABLE>
Schedule RI--Continued
<TABLE>
<CAPTION>
I481 <-
Dollar Amounts in Thousands RIAD Year-to-date
- ---------------------------------------------------------------------------------------------------------------------------
Memoranda
<S> <C> <C> <C> <C>
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired after
August 7, 1986, that is not deductible for federal income tax purposes........................... 4513 6 M.1.
2. Income from the sale and servicing of mutual funds and annuities in domestic offices
(included in Schedule RI, item 8)................................................................ 8431 21,590 M.2.
3.-4. Not applicable
5. Number of full-time equivalent employees on payroll at end of current period (round to Number
nearest whole number)............................................................................ 4150 9,861 M.5.
6. Not applicable
7. If the reporting bank has restated its balance sheet as a result of applying push CCYY/MM/DD
accounting this calendar year, report the date of the bank's acquisition(1)...................... 9106 N/A M.7.
8. Trading revenue (from cash instruments and off-balance sheet derivative instruments)
(sum of Memorandum items 8.a through 8.d must equal Schedule RI, item 5.c):
a. Interest rate exposures....................................................................... 8757 116 M.8.a.
b. Foreign exchange exposures.................................................................... 8758 25,912 M.8.b.
c. Equity security and index exposures........................................................... 8759 0 M.8.c.
d. Commodity and other exposures................................................................. 8760 0 M.8.d.
9. Impact on income of off-balance sheet derivatives held for purposes other than trading:
a. Net increase (decrease) to interest income.................................................... 8761 2,370 M.9.a.
b. Net (increase) decrease to interest expense................................................... 8762 659 M.9.b.
c. Other (noninterest) allocations............................................................... 8763 (1,014) M.9.c.
10. Credit losses on off-balance sheet derivatives (see instructions)................................ A251 0 M.10.
11. Does the reporting bank have a Subchapter S election in effect for federal income tax YES/NO
purposes for the current tax year? ............................................................. A530 NO M.11.
12. Deferred portion of total applicable income taxes included in Schedule RI,
items 9 and 11 (to be reported with the December Report of Income)............................... 4772 6,110 M.12.
- --------------
(1) For example, a bank acquired on June 1, 1998, would report 1998/06/01.
* Describe on Schedule RI-E Explanations.
</TABLE>
5
<PAGE> 16
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Chase Bank of Texas, National Association. Call Date: 12/31/1999 State #: FFIEC 031
Address: 712 Main Street Vendor ID: D Cert#: 03263 RI-4
City, State Zip: Houston, TX 77001 Transit #: 00000000
FDIC Certificate No.: 03263
</TABLE>
Schedule RI-A--Changes in Equity Capital
Indicate decreases and losses in parentheses.
<TABLE>
<CAPTION>
I483 <-
Dollar Amounts in Thousands RIAD
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Total equity capital originally reported in the December 31, 1998, Reports of Condition
and Income........................................................................................ 3215 1,812,417 1.
2. Equity capital adjustments from amended Reports of Income, net*................................... 3216 0 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2).............................. 3217 1,812,417 3.
4. Net income (loss) (must equal Schedule RI, item 12)............................................... 4340 248,748 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net................................ 4346 0 5.
6. Changes incident to business combinations, net.................................................... 4356 0 6.
7. LESS: Cash dividends declared on preferred stock.................................................. 4470 0 7.
8. LESS: Cash dividends declared on common stock..................................................... 4460 100,000 8.
9. Cumulative effect of changes in accounting principles from prior years* (see instructions for
this schedule).................................................................................... 4411 0 9.
10. Corrections of material accounting errors from prior years* (see instructions for this schedule) 4412 0 10.
11. a. Change in net unrealized holding gains (losses) on available-for-sale securities............... 8433 (228,454) 11.a
b. Change in accumulated net gains (losses) on cash flow hedges .................................. 4574 0 11.b
12. Foreign currency translation adjustments ......................................................... 4414 0 12.
13. Other transactions with parent holding company* (not included in items 5, 7, or 8 above) ......... 4415 0 13.
14. Total equity capital end of current period (sum of items 3 through 13) (must equal
Schedule RC, item 28) ............................................................................ 3210 1,733,711 14.
- ---------------
* Describe on Schedule RI-E -- Explanations.
</TABLE>
Schedule RI-B -- Charge-offs and Recoveries on Loans and Leases and Changes
in Allowance for Credit Losses
Part I. Charge-offs and Recoveries on Loans and Leases(1)
Part I excludes charge-offs and recoveries through
the alloted transfer risk reserve.
<TABLE>
<CAPTION>
I486 <-
--------------------------------------
(Column A) (Column B)
Charge-offs Recoveries
--------------------------------------
Calendar year-to-date
--------------------------------------
Dollar Amounts in Thousands RIAD RIAD
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Loans secured by real estate:
a. To U.S. addressees (domicile)......................................... 4651 2,467 4661 2,278 1.a.
b. To non-U.S. addressees (domicile)..................................... 4652 0 4662 0 1.b.
2. Loans to depository institutions and acceptances of other banks:
a. To U.S. banks and other U.S. depository institutions.................. 4653 17 4663 0 2.a.
b. To foreign banks...................................................... 4654 0 4664 0 2.b.
3. Loans to finance agricultural production and other loans to farmers...... 4655 0 4665 489 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile)......................................... 4645 28,072 4617 3,692 4.a.
b. To non-U.S. addressees (domicile)..................................... 4646 0 4618 0 4.b.
5. Loans to individuals for household, family, and other personal
expenditures:
a. Credit cards and related plans........................................ 4656 2,361 4666 376 5.a.
b. Other (includes single payment, installment, and all student loans)... 4657 51,007 4667 10,800 5.b.
6. Loans to foreign governments and official institutions................... 4643 0 4627 16 6.
7. All other loans.......................................................... 4644 35,263 4628 3,363 7.
8. Lease financing receivables:
a. Of U.S. addressees (domicile)......................................... 4658 0 4668 0 8.a.
b. Of non-U.S. addressees (domicile)..................................... 4659 0 4669 0 8.b.
9. Total (sum of items 1 through 8)......................................... 4635 119,187 4605 21,014 9.
</TABLE>
6
<PAGE> 17
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/99 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 Page RI-5
Houston, Texas 77001 Transit #: 00000000
FDIC Certificate No.: 03263 ---
7
---
</TABLE>
SCHEDULE RI-B--CONTINUED
Part I. Continued
<TABLE>
Memoranda
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
----Calendar Year to Date----
1-3. Not applicable. (Column A) (Column B)
4. Loans to finance commercial real estate, construction, and land RIAD Charge-offs RIAD Recoveries
development activities (not secured by real estate) included in ---- ----------- ---- ----------
Schedule RI-B, part I, items 4 and 7, above............................ 5409 1099 5410 58 M.4.
5. Loans secured by real estate in domestic offices (included in
Schedule RI-B, part I, item 1, above):
a. Construction and land development................................... 3582 0 3583 50 M.5.a
b. Secured by farmland................................................. 3584 0 3585 18 M.5.b
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4 family residential
properties and extended under lines of credit................... 5411 0 5412 0 M.5.c.(1)
(2) All other loans secured by 1-4 family residential properties.... 5413 2,401 5414 795 M.5.c.(2)
d. Secured by multifamily (5 or more) residential properties........... 3588 17 3589 6 M.5.d.
e. Secured by nonfarm nonresidential properties........................ 3590 49 3591 1,409 M.5.e.
</TABLE>
Part II. Changes in Allowance for Credit Losses
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RAID
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Balance originally reported in the December 31, 1996, Reports of Condition and Income........ 3124 204,129 1.
2. Recoveries (must equal part I, item 9, column B above)....................................... 2419 21,014 2.
3. LESS: Charge-offs (must equal or exceed part I, item 9, column A above)...................... 2432 119,187 3.
4. Provision for credit losses (must equal or exceed Schedule RI, item 4.a)..................... 4230 110 000 4.
5. Adjustments * (see instructions for this schedule)........................................... 4815 0 5.
6. Balance end of current period (sum of items 1 through 5) (must equal or exceed Schedule RC,
item 4.b).................................................................................... A512 215,956 6.
</TABLE>
- --------------
Describe on Schedule RI-E -- Explanations.
7
<PAGE> 18
<TABLE>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 PJ-6
Houston, Tx 77001 Transit #: 00000000
-----------
8
-----------
</TABLE>
SCHEDULE RI-D -- INCOME FROM INTERNATIONAL OPERATIONS
For all banks with foreign offices, Edge or Agreement subsidiaries, or IBFs
where international operations account for more than 10 percent of total
revenues, total assets, or net income.
PART I. ESTIMATED INCOME FROM INTERNATIONAL OPERATIONS
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------
I492 <-
--------------------------- ----
Year-to-date
---------------------------
RIAD
----
<S> <C> <C> <C>
1. Interest income and expense booked at foreign offices, Edge and
Agreement subsidiaries, and IBFs:
a. Interest income booked..................................... 4837 N/A 1.a.
b. Interest expense booked.................................... 4838 N/A 1.b.
c. Net interest income booked at foreign offices, Edge and
Agreement subsidiaries, and IBFs (item 1.a minus 1.b)...... 4839 N/A 1.c.
2. Adjustments for booking location of international operations:
a. Net interest income attributable to international
operations booked at domestic offices...................... 4840 N/A 2.a.
b. Net interest income attributable to domestic business
booked at foreign offices.................................. 4841 N/A 2.b.
c. Net booking location adjustment (item 2.a minus 2.b)....... 4842 N/A 2.c.
3. Noninterest income and expense attributable to international
operations:
a. Noninterest income attributable to international
operations................................................. 4097 N/A 3.a.
b. Provision for loan and lease losses attributable to
international operations................................... 4235 N/A 3.b.
c. Other noninterest expense attributable to international
operations................................................. 4239 N/A 3.c.
d. Net noninterest income (expense) attributable to
international operations (item 3.a minus 3.b and 3.c)...... 4843 N/A 3.d.
4. Estimated pretax income attributable to international operations
before capital allocation adjustment (sum of items 1.c, 2.c, and
3.d)............................................................... 4844 N/A 4.
5. Adjustment to pretax income for internal allocations to
international operations to reflect the effects of equity capital
on overall bank funding costs...................................... 4845 N/A 5.
6. Estimated pretax income attributable to international operations
after capital allocation adjustment (sum of items 4 and 5)......... 4846 N/A 6.
7. Income taxes attributable to income from international operations
as estimated in item 6............................................. 4797 N/A 7.
8. Estimated net income attributable to international operations
(item 6 minus 7)................................................... 4341 N/A 8.
</TABLE>
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------
RIAD
----
<S> <C> <C> <C>
1. Intracompany interest income included in item 1.a above............ 4847 N/A M.1.
2. Intracompany interest expense included in item 1.b above........... 4848 N/A M.2.
</TABLE>
PART II. SUPPLEMENTARY DETAILS ON INCOME FROM INTERNATIONAL OPERATIONS
REQUIRED BY THE DEPARTMENTS OF COMMERCE AND TREASURY FOR PURPOSES OF THE U.S.
INTERNATIONAL ACCOUNTS AND THE U.S. NATIONAL INCOME AND PRODUCT ACCOUNTS
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------
Year-to-date
---------------------------
RIAD
----
<S> <C> <C> <C>
1. Interest income booked at IBFs..................................... 4849 N/A 1.
2. Interest expense booked at IBFs.................................... 4850 N/A 2.
3. Noninterest income attributable to international operations
booked at domestic offices (excluding IBFs):
a. Gains (losses) and extraordinary items..................... 5491 N/A 3.a.
b. Fees and other noninterest income.......................... 5492 N/A 3.b.
4. Provision for loan and lease losses attributable to international
operations booked at domestic offices (excluding IBFs)............. 4852 N/A 4.
5. Other noninterest expense attributable to international operations
booked at domestic offices (excluding IBFs)........................ 4853 N/A 5.
</TABLE>
8
<PAGE> 19
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cart#: 03263 RI-7
Houston, TX 77001 Transit #: 00000000
--------
9
--------
</TABLE>
SCHEDULE RI-E--EXPLANATIONS
Schedule RI-E is to be completed each quarter on a calender year-to-date basis.
Detail all adjustments in Schedules RI-A and RI-B, all extraordinary items and
other adjustments in Schedule RI, and all significant items of other
noninterest income and other noninterest expense in Schedule RI. (See
instructions for details.)
<TABLE>
<CAPTION>
I495
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. All other noninterest income (from Schedule RI, item 5.f.(2))
Report amounts that exceed 10% of Schedule RI, item 5.f.(2): RIAD Year-to-date
a. Net gains (losses) on other real estate owned ......................................... 5415 N/A 1.a.
b. Net gains (losses) on sales of loans .................................................. 5416 N/A 1.b.
c. Net gains (losses) on sales of premises and fixed assets .............................. 5417 N/A 1.c.
Itemized and describe the three largest other amounts that exceed 10% of Schedule RI,
item 5.f.(2): RIAD
d. TEXT 4461 Intercompany contract services ..................................... 4461 78,092 1.d.
e. TEXT 4462 Sale of Business Units ............................................ 4462 71,000 1.e.
f. TEXT 4463 ..................................................................... 4463 N/A 1.f.
2. Other noninterest expense (from Schedule R1, item 7.c): Year-to-date
a. Amortization expense of intangible assets ............................................ 4531 39,966 2.a.
Report amounts that exceed 10% of Schedule RI, item 7.c:
b. Net (gains) losses on other real estate owned ........................................ 5418 N/A 2.b.
c. Net (gains) losses on sales of loans ................................................. 5419 N/A 2.c.
d. Net (gains) losses on sales of premises and fixed assets ............................. 5420 N/A 2.d.
Itemize and describe the three largest other amounts that exceed 10% of Schedule RI,
item 7.c: RIAD
e. TEXT 4464 4464 N/A 2.e.
f. TEXT 4467 4467 N/A 2.f.
g. TEXT 4468 4468 N/A 2.g.
3. Extraordinary items and other adjustments and applicable income tax effect
(from Schedule RI, item 11.b) (itemize and describe all extraordinary items and
other adjustments): RIAD
a. (1) TEXT 6373 Effect of adopting FAS 133, 6373 0 3.a.(1)
"Accounting for Derivative Instruments and Hedging Activities"
(2) Applicable income tax effect....................................RIAD 4486 0 3.a.(2)
b. (1) 4487 4487 0 3.b.(1)
(2) Applicable income tax effect....................................RIAD 4488 0 3.b.(2)
c. (1) TEXT 4489 4489 0 3.c.(1)
(2) Applicable income tax effect....................................RIAD 4491 0 3.c.(2)
4. Equity capital adjustments from amended Reports of Income (from Schedule RI-A, item 2)
(itemize and describe all adjustments): RIAD
a. TEXT 4492 4492 N/A 4.a.
b. TEXT 4493 4493 N/A 4.b.
5. Cumulative effect of changes in accounting principles from prior years
(from Schedule RI-A, item 9) (itemize and describe all changes in accounting principles): RIAD
a. TEXT 4494 4494 N/A 5.a.
b. TEXT 4495 4495 N/A 5.b.
6. Corrections of material accounting errors from prior years (from Schedule RI-A, item 10)
(itemize and describe all corrections): RIAD
a. TEXT 4496 4496 N/A 6.a.
b. TEXT 4497 4497 N/A 6.b.
</TABLE>
9
<PAGE> 20
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 RI-8
Houston, TX 77001 Transit #: 00000000
--------
10
--------
</TABLE>
Schedule RI-E--Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RIAD Year-to-Date
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
7. Other transactions with parent holding company (from Schedule RI-A, item 13)
(itemize and describe all such transactions):
a. Text 4498 ............................................................................... 4498 N/A 7.a.
b. Text 4499 ............................................................................... 4499 N/A 7.b.
8. Adjustments to allowance for credit losses (from Schedule RI-B, part II, item 5)
(itemize and describe all adjustments):
a. Text 4521 ............................................................................... 4521 N/A 8.a.
b. Text 4522 ............................................................................... 4522 N/A 8.b.
9. Other explanations (the space below is provided for bank to briefly describe, at its I498 I499 <-
option, any other significant items affecting the Report of Income):
RIAD
-------
X = NO COMMENT - Y = COMMENT ___ 4769 X
-------
Other explanations (please type or print clearly):
TEXT 4769 (70 characters per line)
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
</TABLE>
10
<PAGE> 21
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
Address: 712 Main Street Vendor ID: D Cert #: 03263 RC-1
City, State Zip: Houston, TX 77001 Transit #: 00000000
--------
11
--------
</TABLE>
Schedule RI-E--Continued
CONSOLIDATED REPORT OF CONDITION FOR INSURED
COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1999
ALL SCHEDULES ARE TO BE REPORTED IN THOUSANDS OF DOLLARS. UNLESS OTHERWISE
INDICATED, REPORT THE AMOUNT OUTSTANDING AS OF THE LAST BUSINESS DAY OF THE
QUARTER.
SCHEDULE RC - BALANCE SHEET
<TABLE>
<CAPTION>
----
C400 <-
------------------
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1)................................. 0081 2,579,609 1.a
b. Interest bearing balances(2).......................................................... 0071 3,643 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)............................ 1754 103,780 2.a
b. Available-for-sale securities (from Schedule RC-B, column D).......................... 1773 5,254,147 2.b
3. Federal funds sold and securities purchased under agreements to resell..................... 1350 3,633,423 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C)... RCFD 2122 12,433,069 4.a
b. LESS: Allowance for loan and lease losses....................... RCFD 3123 215,956 4.b
c. LESS: Allocated transfer risk reserve........................... RCFD 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b
and 4.c).............................................................................. 2125 12,217,113 4.d
5. Trading assets (from Schedule RC-D)........................................................ 3545 183,614 5.
6. Premises and fixed assets (including capitalized leases)................................... 2145 697,508 6.
7. Other real estate owned (from Schedule RC-M)............................................... 2150 1,191 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule
RC-M)...................................................................................... 2130 3,328 8.
9. Customers' liability to this bank on acceptances outstanding............................... 2155 9,107 9.
10. Intangible assets (from Schedule RC-M)..................................................... 2143 320,614 10.
11. Other assets (from Schedule RC-F).......................................................... 2160 426,526 11.
12. Total assets (sum of items 1 through 11)................................................... 2170 25,435,803 12.
</TABLE>
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
11
<PAGE> 22
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 RC-2
Houston, TX 77001 Transit #: 00000000
--------
12
--------
</TABLE>
SCHEDULE RC -- CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E
part I)...................................................................... RCON 2200 18,675,722 13.a.
(1) Noninterest-bearing(1)...........................RCON 6631 8,311,219 13.a.(1)
(2) Interest-bearing.................................RCON 6636 10,364,503 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E, part II)................................................ RCFN 2200 0 13.b.
(1) Noninterest-bearing...............................RCFN 6631 0 13.b.(1)
(2) Interest-bearing..................................RCFN 6636 0 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase...... RCFD 2800 1,424,990 14.
15. a. Demand notes issued to the U.S. Treasury..................................... RCON 2840 722,997 15.a.
b. Trading liabilities (from Schedule RC-D)..................................... RCFD 3548 171,687 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
a. With a remaining maturity of one year or less............................... RCFD 2332 1,967,863 16.a.
b. With a remaining maturity of more than one year through three years......... RCFD A547 0 16.b.
c. With a remaining maturity of more than three years........................... RCFD A548 14,896 16.c.
17. Not applicable
18. Bank's liability on acceptances executed and outstanding....................... RCFD 2920 9,107 18.
19. Subordinated notes and debentures(2)........................................... RCFD 3200 445,000 19.
20. Other liabilities (from Schedule RC-G)......................................... RCFD 2930 249,831 20.
21. Total liabilities (sum of items 13 through 20)................................. RCFD 2948 23,702,092 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.................................. RCFD 3838 0 23.
24. Common stock................................................................... RCFD 3230 612,893 24.
25. Surplus (exclude all surplus related to preferred stock)....................... RCFD 3839 924,674 25.
26. a. Undivided profits and capital reserves...................................... RCFD 3632 388,628 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities...... RCFD 8434 (192,384) 26.b.
C. Accumulated net gains (losses) on cash flow hedges.......................... RCFD 4835 0 26.C.
27. Cumulative foreign currency translation adjustments............................ RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27).............................. RCFD 3210 1,733,711 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................. RCFD 3300 25,435,803 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best Number
describes the most comprehensive level of auditing work performed for the bank ------
by independent external auditors as of any date during 1998.................... RCFD 6724 N/A M.1
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required
by state chartering authority)
</TABLE>
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
12
<PAGE> 23
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/99 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 RC-3
Houston, TX 77001 Transit #: 00000000
</TABLE>
-------------
13
-------------
SCHEDULE RC-A -- CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS
Exclude assets held for trading.
<TABLE>
<CAPTION>
C405 <-
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B)
Consolidated Domestic
<S> <C> <C> <C> <C> <C>
1. Cash items in process of collection, unposted debits, and currency RCFD Bank Offices
and coin ................................................................... 0022 2,343,645 1.
a. Cash items in process of collection and unposted debits.................. 0020 1,604,592 1.a.
b. Currency and coin........................................................ 0080 738,953 1.b.
2. Balances due from depository institutions in the U.S. ...................... 0082 118,056 2.
a. U.S. branches and agencies of foreign banks (including their IBFs)....... 0083 0 2.a.
b. Other commercial banks in the U.S. and other depository institutions
in the U.S (including their IBFs)........................................ 0085 118,056 2.b.
3. Balances due from banks in foreign countries and foreign central banks...... 0070 17,338 3.
a. Foreign branches of other U.S. banks..................................... 0073 1,114 3.a
b. Other banks in foreign countries and foreign central banks............... 0074 16,224 3.b
4. Balances due from Federal Reserve Banks..................................... 0090 104,413 0900 104,413 4.
5. Total (sum of items 1 through 4) (total of column A must
equal Schedule RC, sum of items 1.a and 1.b ................................ 0010 2,583,452 0010 2,583,452 5.
</TABLE>
Memorandum
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Noninterest-bearing balances due from commercial banks in the U.S. (included in item RCON
2, column B above)............................................................................ 0050 114,945 M.1.
</TABLE>
SCHEDULE RC-B -- SECURITIES
Exclude assets held for trading.
<TABLE>
<CAPTION>
C410 <-
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------------
Held-to-maturity Available-for-sale
----------------------------------- -----------------------------------------
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cost Fair Value(1)
---------------- -------------- ------------------- -------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
RCFD RCFD RCFD RCFD
1. U.S. Treasury securities.......... 0211 0 0213 0 1286 1,430,719 1287 1,359,968 1
2. U.S. Government agency
obligations (exclude mortgage-
backed securities):
a. Issued by U.S. Government
agencies(2).................... 1289 0 1290 0 1291 0 1293 0 2.a
b. Issued by U.S. Government-
sponsored agencies(3).......... 1294 36 1295 364 1297 251,321 1298 231,914 2.b
</TABLE>
- ---------------
(1) Includes equity securities without readily determinable fair values at
historical cost in item 6.b, column D.
(2) Includes Small Business Administration "Guaranteed Loan Pool Certificates,"
U.S. Maritime Administration obligations, and Export-Import Bank
participation certificates.
(3) Includes obligations (other than mortgage-backed securities) issued by the
Farm Credit System, the Federal Home Loan Bank System, the Federal Home Loan
Mortgage Corporation, the Federal National Mortgage Association, the
Financing Corporation, Resolution Funding Corporation, the Student Loan
Marketing Association, and the Tennessee Valley Authority.
13
<PAGE> 24
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/99 State #: FFIEC 231
712 Main Street Vendor ID: D Cert #: 03263 RC-1
Houston, TX 77001 Transit #: 00000000 ----
14
----
</TABLE>
SCHEDULE RC-B-CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
Held-to-maturity Available-for-sale
--------------------------------- ------------------------------------
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cost Fair Value(1)
--------------- ---------------- -------------- ---------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C><C>
3. Securities issued by states and political
subdivisions in the U.S.: RCFD RCFD RCFD RCFD
a. General obligations............................... 1676 130 1677 130 1678 0 1679 0 3.a.
b. Revenue obligations............................... 1681 0 1686 0 1690 0 1691 0 3.b.
c. Industrial development and similar obligations.... 1694 0 1695 0 1696 0 1697 0 3.c.
4. Mortgage-backed securities (MBS):
a. Pass-through securities:
(1) Guaranteed by GNMA............................ 1698 0 1699 0 1701 783,557 1702 742,425 4.a.(1)
(2) Issued by FNMA and FHLMC...................... 1703 103,614 1705 102,292 1706 3,043,022 1707 2,873,693 4.a.(2)
(3) Other pass-through securities................. 1709 0 1710 0 1711 0 1713 0 4.a.(3)
b. Other mortgage-backed securities (include CMOs,
REMICs, and stripped MBS): RCFD RCFD RCFD RCFD
(1) Issued or guaranteed by FNMA, GNMA............ 1714 0 1715 0 1716 0 1717 0 4.b.(1)
(2) Collateralized by MBS issued or guaranteed by
FNMA, FHLMC, or GNMA.......................... 1718 0 1719 0 1731 0 1732 0 4.b.(2)
(3) All other mortgage-backed securities.......... 1733 0 1734 0 1735 0 1736 0 4.b.(3)
5. Other debt securities:
a. Other domestic debt securities.................... 1737 0 1738 0 1739 0 1741 0 5.a.
b. Foreign debt securities........................... 1742 0 1743 0 1744 0 1746 0 5.b.
6. Equity securities:
a. Investments in mutual funds and other equity RCFD RCFD
securities with readily determinable fair values.. A510 0 A511 0 6.a.
b. All other equity securities(1).................... 1752 46,127 1753 46,127 6.b.
7. Total (sum of items 1 through 6) (total of column A
must equal Schedule RC, item 2.a) (total of column D RCFD RCFD RCFD RCFD
must equal Schedule RC, item 2.b).................... 1754 103,780 1771 102,786 1772 5,554,746 1773 5,254,147 7.
</TABLE>
- -----------------
(1) Includes equity securities without readily determinable fair values at
historical cost in item 6.b, column D.
14
<PAGE> 25
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 RC-5
Houston, TX 77001 Transit #: 00000000 15
</TABLE>
SCHEDULE RC-B -- CONTINUED
Memoranda
<TABLE>
<CAPTION>
C412
-------------------
RCFD Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Pledged securities(2)........................................................... 0416 1,971,492 M.1.
2. Maturity and repricing data for debt securities(1)(2)(excluding those in
nonaccrual status):
a. Securities issued by the U.S. Treasury, U.S. Government agencies, and states
and political subdivisions in the U.S.; other non-mortgage debt securities;
and mortgage pass-through securities other than those backed by closed-end
first lien 1-4 family residential mortgages with a remaining maturity or
repricing frequency of:(3)(4)
(1) Three months or less................................................... A549 73,980 M.2.a.(1)
(2) Over three months through 12 months.................................... A550 35 M.2.a.(2)
(3) Over one year through three years...................................... A551 29,603 M.2.a.(3)
(4) Over three years through five years.................................... A552 787,375 M.2.a.(4)
(5) Over five years through 15 years....................................... A553 701,039 M.2.a.(5)
(6) Over 15 years.......................................................... A554 35 M.2.a.(6)
b. Mortgage pass-through securities backed by closed-end first lien 1-4 family
residential mortgages with a remaining maturity or repricing frequency of:(3)(5)
(1) Three months or less................................................... A555 1,230 M.2.b.(1)
(2) Over three months through 12 months.................................... A556 79,397 M.2.b.(2)
(3) Over one year through three years...................................... A557 24,561 M.2.b.(3)
(4) Over three years through five years.................................... A558 46 M.2.b.(4)
(5) Over five years through 15 years....................................... A559 485,300 M.2.b.(5)
(6) Over 15 years.......................................................... A560 3,148,904 M.2.b.(6)
c. Other mortgage-backed securities (include CMOs, REMICs, and stripped MBS;
exclude mortgage pass-through securities) with an expected average life of(6):
(1) Three years or less.................................................... A561 0 M.2.c.(1)
(2) Over three years....................................................... A562 0 M.2.c.(2)
d. Debt securities with a REMAINIMG MATURITY of one year or less (included in
Memorandum items 2.a. through 2.c above.................................... A248 152,097 M.2.d.
3.-6. Not applicable
7. Amortized cost of held-to-maturity securities sold or transferred to
available-for-sale or trading securities during the calendar year-to-date
(report the amortized cost at date of sale or transfer)......................... 1778 0 M.7.
8. Not applicable
9. Structured notes (included in the held-to-maturity and available-for-sale
accounts in Schedule RC-B, items 2, 3, and 5):
a. Amortized cost............................................................. 8782 0 M.9.a.
b. Fair value................................................................. 8783 0 M.9.b.
</TABLE>
- ---------------
(1) Includes held-to-maturity securities at amortized cost and
available-for-sale securities at fair value.
(2) Exclude equity securities, e.g., investments in mutual funds, Federal
Reserve stock, common stock, and preferred stock.
(3) Report fixed rate debt securities by remaining maturity and floating rate
debt securities by repricing frequency.
(4) Sum of Memorandum item 2.a.(1) through 2.a.(6) plus any nonaccrual debt
securities in the categories of debt securities reported in Memorandum item
2.a that are included in Schedule RC-N, item 9, column C, must equal
Schedule RC-B, sum of items 1, 2, 3, and 5, columns A and D, plus mortgage
pass-through securities other than those backed by closed-end first lien
1-4 family residential mortgages included in Schedule RC-B, item 4.a,
columns A and D.
(5) Sum of Memorandum items 2.b.(1) through 2.b.(6) plus any nonaccrual
mortgage pass-through securities backed by closed-end first lien 1-4 family
residential mortgages included in Schedule RC-N, item 9, column C, must
equal Schedule RC-B, item 4.a, sum of columns A and D, less the amount of
mortgage pass-through securities other than those backed by closed-end first
lien 1-4 family residential mortgages included in Schedule RC-B, item 4.a,
columns A and D.
(6) Sum of Memorandum items 2.c.(1) and 2.c.(2) plus any nonaccrual "Other
mortgage-backed securities" included in Schedule RC-N, item 9, column C,
must equal Schedule RC-B, item 4.b, sum of columns A and D.
15
<PAGE> 26
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Chase Bank of Texas, National Association Call Date: 12/31/99 State #: FFIEC 031
Address: 712 Main Street Vendor ID: D Cert #: 03263 RC-6
City, State Zip: Houston, TX 77001 Transit#: 00000000 -----
16
-----
</TABLE>
SCHEDULE RC-C -- LOANS AND LEASE FINANCING RECEIVABLES
PART I. LOANS AND LEASES
Do not deduct the allowance for loan and lease losses from amounts reported in
this schedule. Report total loans and leases, net of unearned income. Exclude
assets held for trading and commercial paper.
<TABLE>
<CAPTION>
C415 <-
(Column A) (Column B)
Consolidated Domestic
Dollar Amounts in Thousands Bank Offices
- ----------------------------------------------------------- ------------------- -------------------
<S> <C> <C> <C> <C> <C>
RCFD CON
1. Loans secured by real estate:.......................... 1410 2,441,501 1.
a. Construction and land development................... 1415 548,506 1.a.
b. Secured by farmland (including farm
residential and other improvements)................. 1420 5,494 1.b.
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4
family residential properties and
extended under lines of credit.................. 1797 0 1.c.(1)
(2) All other loans secured by 1-4 family
residential properties:
(a) Secured by first liens...................... 5367 812,258 1.c.(2)(a)
(b) Secured by junior liens..................... 5368 511,996 1.c.(2)(b)
d. Secured by multifamily (5 or more) residential
properties.......................................... 1460 69,226 1.d.
e. Secured by nonfarm nonresidential properties........ 1480 493,021 1.e.
2. Loans to depository institutions:
a. To commercial banks in the U.S.:.................... 1505 1,774 2.a.
(1) To U.S. branches and agencies of foreign banks.. 1506 125 2.a.(1)
(2) To other commercial banks in the U.S............ 1507 649 2.a.(2)
b. To other depository institutions in the U.S......... 1517 409 1517 409 2.b
c. To banks in foreign countries:...................... 1510 0 2.c.
(1) To foreign branches of other U.S. banks......... 1513 0 2.c.(1)
(2) To other banks in foreign countries............. 1516 0 2.c.(2)
3. Loans to finance agricultural production and
other loans to farmers................................. 1590 57,849 1590 37,849 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile)....................... 1763 6,370,912 1763 6,370,912 4.a.
b. To non-U.S. addressees (domicile)................... 1764 195,365 1764 195,365 4.b.
5. Acceptances of other banks:
a. Of U.S. banks....................................... 1756 0 1756 0 5.a.
b. Of foreign banks.................................... 1757 0 1757 0 5.b.
6. Loans to individuals for household, family, and other
personal expenditures (i.e., consumer loans) (includes
purchased paper):...................................... 1975 1,456,279 6.
a. Credit cards and related plans (includes check
credit and other revolving credit plans)............ 2008 105,756 6.a.
b. Other (includes single payment, installment, and
all student loans).................................. 2011 1,350,523 6.b.
7. Loans to foreign governments and official institutions
(including foreign central banks)...................... 2081 6,022 2081 6,022 7.
8. Obligations (other than securities and leases) of
states and political subdivisions in the U.S. ......... 2107 7,093 2107 7,093 8.
9. Other loans:........................................... 1563 1,873,342 9.
a. Loans for purchasing or carrying securities
(secured and unsecured)............................. 1545 37,155 9.a.
b. All other loans (exclude consumer loans)............ 1564 1,833,187 9.b.
10. Lease financing receivables (net of unearned income)... 2165 45,823 10.
a. Of U.S. addressees (domicile)....................... 2182 45,102 10.a.
b. Of non-U.S. addressees (domicile)................... 2183 421 10.b.
11. LESS: Any unearned income on loans reflected in
items 1-9 above........................................ 2123 0 2123 0 11.
12. Total loans and leases, net of unearned income
(sum of items 1 through 10 minus item 11) (total of
column A must equal Schedule RC, item 4.a)............ 2122 12,433,069 2122 12,433,069 12.
</TABLE>
16
<PAGE> 27
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Chase Bank of Texas, National Association Call Date: 12/31/99 State #: FFIEC 031
Address: 712 Main Street Vendor ID: D Cert #: 03263 RC-7
City, State Zip: Houston, TX 77001 Transit #: 000000000 -----
17
-----
</TABLE>
SCHEDULE RC-C - CONTINUED
PART I. CONTINUED
MEMORANDA
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Not applicable
2. Loans and leases restructured and in compliance with modified terms (included in
Schedule RC-C, part I, above and not reported as past due or nonaccrual in
Schedule RC-N, Memorandum item 1):
a. Loans secured by real estate:
(1) To U.S. addressees (domicile)................................................... RCFD 1687 0 M.2.a.(1)
(2) To non-U.S. addressees (domicile)............................................... RCFD 1689 0 M.2.a.(2)
b. All other loans and all lease financing receivables (exclude loans to individuals
for household, family, and other personal expenditures).............................. RCFD 8691 0 M.2.b.
c. Commercial and industrial loans to and lease financing receivables of non-U.S.
addressees (domicile) included in Memorandum item 2.b above.......................... RCFD 8692 0 M.2.c.
3. Maturity and repricing data for loans and leases (excluding those in nonaccrual
status):
a. Closed-end loans secured by first liens on 1-4 family residential properties
in domestic offices (reported in Schedule RC-C, part I, item 1.c (2)(a), column B)
offices with a remaining maturity or repricing frequency of:(1)(2)
(1) Three months or less............................................................ RCON A564 28,024 M.3.a.(1)
(2) Over three months through 12 months............................................. RCON A565 58,068 M.3.a.(2)
(3) Over one year through three years............................................... RCON A566 134,113 M.3.a.(3)
(4) Over three years through five years............................................. RCON A567 106,090 M.3.a.(4)
(5) Over five years through 15 years................................................ RCON A568 179,396 M.3.a.(5)
(6) Over 15 years................................................................... RCON A569 289,000 M.3.a.(6)
b. All loans and leases (reported in Schedule RC-C, part I, Items 1 through 10, column A)
EXCLUDING closed-end loans secured by first liens on 1-4 family residential
properties in domestic offices (reported in Schedule RC-C, part I, Item 1-C(2)(a), column B)
with a remaining maturity or repricing frequency of:(1)(3)
(1) Three months or less............................................................ RCFD A570 6,961,523 M.3.b.(1)
(2) Over three months through 12 months............................................. RCFD A571 2,038,174 M.3.b.(2)
(3) Over one year through three years............................................... RCFD A572 961,307 M.3.b.(3)
(4) Over three years through five years............................................. RCFD A573 718,754 M.3.b.(4)
(5) Over five years through 15 years................................................ RCFD A574 719,212 M.3.b.(5)
(6) Over 15 years................................................................... RCFD A575 62,540 M.3.b.(6)
c. Loans and leases (reported in Schedule RC-C, part 1 items 1
through 10, column A) with a REMAINING MATURITY of one year of less.................. RCFD A247 4,971,000 M.3.c.
d. Loans secured by nonfarm nonresidential properties in
domestic offices (reported in Schedule RC-C, part 1 item 1.e, column B) with a
REMAINING MATURITY of over five years................................................ RCON A577 162,000 M.3.d.
e. Commercial and industrial loans (reported in Schedule RC-C
part 1, item 4, column A) with a REMAINING MATURITY of over three years.............. RCFD A578 2,302,000 M.3.e.
</TABLE>
- ---------------
(1) Report fixed rate loans and leases by remaining maturity and floating rate
loans by repricing frequency.
(2) Sum of Memorandum items 3.a.(1) through
3.a.(6) plus total nonaccrual closed-end loans secured by first liens on 1-4
family residential properties included in Schedule RC-N. Memorandum item
3.c.(2), column C, must equal total closed-end loans secured by first liens
on 1-4 family residential properties from Schedule RC-C, part I, item
1.c.(2)(a), column B.
(3) Sum of Memorandum items 3.b.(1) through 3.b.(6),
plus total nonaccrual loans and leases from Schedule RC-N, sum of items 1
through 8, column C, minus nonaccrual closed-end loans secured by first liens
on 1-4 family residential properties in domestic offices included in Schedule
RC-N, Memorandum item 3.c.(2), column C, must equal total loans and leases
from Schedule RC-C, Part I, sum of items 1 through 10, column A, minus total
closed-end loans secured by first liens on 1-4 family residential properties
in domestic offices from Schedule RC-C, part I, item 1.c.(2)(a), column B.
17
<PAGE> 28
<TABLE>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 Page RC-8
Houston, TX 77001 Transit #: 00000000
FDIC Certificate No.: 03283 ----------
18
----------
</TABLE>
Schedule RC-C--Continued
Part I. Continued
Memoranda (continued)
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
4. Loans to finance commercial real estate, construction, and land development
activities (not secured by real estate) included in Schedule RC-C, part I, items 4
and 9, column A, page RC-6(1)........................................................... RCFD 2746 682,147 M.4.
5. Loans and leases held for sale (included in Schedule RC-C, part I, page RC-6)........... RCFD 5369 14,650 M.5.
6. Adjustable rate closed-end loans secured by first liens on 1-4 family residential
properties in domestic offices (included in Schedule RC-C, part I, item 1.c.(2)(a),
column B, page RC-6).................................................................... RCON 5370 76,371 M.6.
</TABLE>
- ---------------
(1) Exclude loans secured by real estate that are included in Schedule RC-C,
part I, item 1, column A.
Schedule RC-D -- Trading Assets and Liabilities
Schedule RC-D is to be completed by banks with $1 billion or more in total
assets or with $2 billion or more in par/notional amount of off-balance sheet
derivative contracts (as reported in Schedule RC-L, items 14.a through 14.e,
columns A through D).
<TABLE>
<CAPTION>
C420 <-
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
1. U.S. Treasury securities in domestic offices........................................... RCON 3531 0 1.
2. U.S. Government agency obligations in domestic offices (exclude mortgage-backe
securities)............................................................................ RCON 3532 0 2.
3. Securities issued by states and political subdivisions in the U.S. in domestic
offices................................................................................ RCON 3533 0 3.
4. Mortgage-backed securities (MBS) in domestic offices:
a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA................ RCON 3534 0 4.a.
b. Other mortgage-backed securities issued or guaranteed by FNMA, FHLMC, or GNMA
(include CMOs, REMICs, and stripped MBS)............................................ RCON 3535 4.b.
c. All other mortgage-backed securities................................................ RCON 3536 0 4.c.
5. Other debt securities in domestic offices.............................................. RCON 3537 0 5.
6. - 8. Not applicable
9. Other trading assets in domestic offices............................................... RCON 3541 10,347 9.
10. Trading assets in foreign offices...................................................... RCFN 3542 0 10.
11. Revaluation gains on interest rate, foreign exchange rate, and other commodity and
equity contracts:
a. In domestic offices................................................................. RCON 3543 173,267 11.a.
b. In foreign offices.................................................................. RCFN 3543 0 11.b.
12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC, item 5)...... RCFD 3545 183,614 12.
<CAPTION>
<S> <C> <C> <C>
LIABILITIES
13. Liability for short positions.......................................................... RCFD 3546 0 13.
14. Revaluation losses on interest rate, foreign exchange rate, and other commodity and
equity contracts....................................................................... RCFD 3547 171,687 14.
15. Total trading liabilities (sum of items 13 and 14) (must equal Schedule RC, item
15.b).................................................................................. RCFD 3548 171,687 15.
</TABLE>
18
<PAGE> 29
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 Page RC-9
Houston, TX 77001 Transit #: 00000000
----------
19
----------
</TABLE>
Schedule RC-E -- Deposit Liabilities
Part I. Deposits in Domestic Offices
<TABLE>
<CAPTION>
C425 <-
- ---------------------------------------------------------------------------------------------------------
Nontransaction
Transaction Accounts Accounts
------------------------------------- --------------
(Column A) (Column C)
Total (Column B) Total
Transaction Memo: Total nontransaction
accounts Demand Deposits Accounts
(including total (included in (including
demand deposits) column A) MMDAs)
----------------- ----------------- -----------------
Dollar Amounts in Thousands RCON CON CON
- ------------------------------------------------ ----------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C> <C> <C>
Deposits of:
1. Individuals, partnerships and corporations... 2201 5,724,907 2240 5,314,677 2346 11,835,609 1.
2. U.S. Government.............................. 2202 17,212 2280 13,014 2520 0 2.
3. States and political subdivisions in the
U.S.......................................... 2203 321,253 2290 50,876 2530 118,032 3.
4. Commercial banks in the U.S.................. 2206 505,578 2310 505,578 2550 0 4.
5. Other depository institutions in the U.S..... 2207 63,192 2312 63,192 2349 0 5.
6. Banks in foreign countries................... 2213 18,624 2320 18,624 2236 0 6.
7. Foreign governments and official institutions
(including foreign central banks)............ 2216 1,403 2300 1,403 2377 0 7.
8. Certified and official checks................ 2330 69,912 2330 69,912 8.
9. Total (sum of items 1 through 8) (sum of
columns A and C must equal Schedule RC, item
13.a)........................................ 2215 6,722,081 2210 6,037,276 2385 11,953,641 9.
</TABLE>
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Selected components of total deposits (i.e., sum of item 9, columns A and C): RCON
a. Total Individual Retirement Accounts (IRAs) and Keogh Plan accounts............. 6835 601,253 M.1.a.
b. Total brokered deposits......................................................... 2365 0 M.1.b.
c. Fully insured brokered deposits (included in Memorandum item 1.b above):
(1) Issued in denominations of less than $100,000............................... 2343 0 M.1.c.(1)
(2) Issued either in denominations of $100,000 or in denominations greater than
$100,000 and participated out by the broker in shares of $100,000 or less... 2344 0 M.1.c.(2)
d. Maturity data for brokered deposits:
(1) Brokered deposits issued in denominations of less than $100,000 with a
remaining maturity of one year or less (included in Memorandum item 1.c.(1)
above)...................................................................... A243 0 M.1.d.(1)
(2) Brokered deposits issued in denominations of $100,000 or more with a
remaining maturity of one year or less (included in Memorandum item 1.b
above)...................................................................... A244 0 M.1.d.(2)
e. Preferred deposits (uninsured deposits of states and political subdivisions in
the U.S. reported in item 3 above which are secured or collateralized as
required under state law) (to be completed for the December report only)........ 5590 415,678 M.1.e.
2. Components of total nontransaction accounts (sum of Memorandum items 2.a through
2.d must equal item 9, column C, above):
a. Savings deposits: RCON
(1) Money market deposit accounts (MMDAs)....................................... 6810 4,972,146 M.2.a.(1)
(2) Other savings deposits (excludes MMDAs)..................................... 0352 3,549,152 M.2.a.(2)
b. Total time deposits of less than $100,000....................................... 6648 2,005,103 M.2.b.
c. Total time deposits of $100,000 or more......................................... 2604 1,427,240 M.2.c.
3. All NOW accounts (included in column A above)...................................... 2398 684,805 M.3
4. Not applicable
</TABLE>
19
<PAGE> 30
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/99 State#: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 Page RC-10
Houston, TX 77001 Transit #: 00000000
------
20
------
</TABLE>
SCHEDULE RC-E -- CONTINUED
PART I. CONTINUED
Memoranda (Continued)
<TABLE>
<CAPTION>
------------------
Dollar Amounts in Thousands RCON
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
5. Maturity and repricing data for time deposits of less than $100,000:
a. Time deposits of less than $100,000 with a remaining maturity or repricing
frequency of:(1)(2)
(1) Three months or less.......................................................... A579 532,027 M.5.a.(1)
(2) Over three months through 12 months........................................... A580 1,073,056 M.5.a.(2)
(3) Over one year through three years............................................. A581 339,017 M.5.a.(3)
(4) Over three years.............................................................. A582 61,003 M.5.a.(4)
b. Fixed rate AND floating rate time deposits of less than $100,000 with a REMAINING
MATURITY of one year or less (included in Memorandum items 5.a.(1) through 5.a.(4)
above)............................................................................ A241 1,605,000 M.5.b.
6. Maturity and repricing data for time deposits of $100,000 or more:
a. Time deposits of $100,000 or more with a remaining maturity or repricing
frequency of:(1)(3)
(1) Three months or less...................................................... A584 880,531 M.6.a.(1)
(2) Over three months through 12 months....................................... A585 439,766 M.6.a.(2)
(3) Over one year through three years......................................... A586 84,955 M.6.a.(3)
(4) Over three years.......................................................... A587 21,988 M.6.a.(4)
b. Fixed rate AND floating rate time deposits of $100,000 or more with a
REMAINING MATURITY of one year or less (included in Memorandum items 6.a.(1)
through 6.a.(4) above)........................................................ A242 1,320,000 M.6.b.
</TABLE>
- ---------------
(1) Report fixed rate time deposits by remaining maturity and floating rate
time deposits by repricing frequency.
(2) Sum of Memorandum items 5.a.(1) through 5.a.(4) must equal Schedule RC-E,
Memorandum item 2.b above.
(3) Sum of Memorandum items 6.a.(1) through 6.a.(4) must equal Schedule RC-E,
Memorandum item 2.c above.
20
<PAGE> 31
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/99 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 RC-11
Houston, TX 77001 Transit #: 00000000
----
21
----
</TABLE>
SCHEDULE RC-E--CONTINUED
PART II. DEPOSITS IN FOREIGN OFFICES (INCLUDING EDGE AND AGREEMENT SUBSIDIARIES
AND IBFS)
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
Deposits of: RCFN
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Individuals, partnerships, and corporations............................................. 2621 0 1.
2. U.S. banks (including IBFs and foreign branches of U.S. banks).......................... 2623 0 2.
3. Foreign banks (including U.S. branches and agencies of foreign banks, including their
IBFs)................................................................................... 2625 0 3.
4. Foreign governments and official institutions (including foreign central banks)......... 2650 0 4.
5. Certified and official checks........................................................... 2330 0 5.
6. All other deposits...................................................................... 2668 0 6.
7. Total (sum of items 1 through 6) (must equal Schedule RC, item 13.b).................... 2200 0 7.
</TABLE>
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
Memorandum RCFN
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Time deposits with a remaining maturity of one year or less (included in Part II,
Item 7 above)........................................................................... A245 0 M.1.
</TABLE>
SCHEDULE RC-F -- OTHER ASSETS
<TABLE>
<CAPTION>
C430 <-
Dollar Amounts in Thousands
RCFD
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Income earned, not collected on loans................................................... 2164 73,311 1.
2. Net deferred tax assets(1).............................................................. 2148 164,646 2.
3. Interest-only strips receivable (not in the form of a security)(2) on:
a. Mortgage loans....................................................................... A519 0 3.a.
b. Other financial assets............................................................... A520 0 3.b.
4. Other (itemize and describe amounts that exceed 25% of this item)....................... 2168 190,567 4.
a. TEXT 3549: ..........................................RCFD 3549 N/A 4.a.
b. TEXT 3550: ..........................................RCFD 3550 N/A 4.b.
c. TEXT 3551: ..........................................RCFD 3551 N/A 4.c.
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11)...................... 2160 428,526 5.
</TABLE>
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
Memorandum RCFD
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Deferred tax assets disallowed for regulatory capital purposes.......................... 5610 0 M.1.
</TABLE>
SCHEDULE RC-G -- OTHER LIABILITIES
<TABLE>
<CAPTION>
C435 <-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. a. Interest accrued and unpaid on deposits in domestic offices(3)....................... RCON 3645 17,108 1.a.
b. Other expenses accrued and unpaid (includes accrued income taxes payable)............ RCFD 3646 199,318 1.b.
2. Net deferred tax liabilities(1)......................................................... RCFD 3049 0 2.
3. Minority interest in consolidated subsidiaries.......................................... RCFD 3000 0 3.
4. Other (itemize and describe amounts that exceed 25% of this item)....................... RCFD 2938 33,405 4.
a. TEXT 3552: ...................................... RCFD 3552 N/A 4.a.
b. TEXT 3553:....................................... RCFD 3553 N/A 4.b.
c. TEXT 3554:....................................... RCFD 3554 N/A 4.c.
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20)...................... RCFD 2930 249,831 5.
</TABLE>
- ---------------
(1) See discussion of deferred income taxes in Glossary entry on "income taxes."
(2) Report interest-only strips receivable in the form a security as
available-for-sale securities in Schedule RC, item 2.b, or as trading
assets in Schedule RC, item 5, as appropriate.
(3) For savings banks, include "dividends" accrued and unpaid on deposits.
21
<PAGE> 32
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/99 State #: 47-2085 FFIEC 031
712 Main Street Vendor ID: D Cert #: RC-12
Houston, TX 77001 Transit #: 00000000
-----------
22
-----------
</TABLE>
SCHEDULE RC-H -- SELECTED BALANCE SHEET ITEMS FOR DOMESTIC OFFICES
<TABLE>
<CAPTION>
C440
---------------------------
Dollar Amounts in Thousands
---------------------------
RCON Domestic Offices
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Customers' liability to this bank on acceptances outstanding. . . . . . . 2155 9,107 1.
2. Bank's liability on acceptances executed and outstanding. . . . . . . . . 2920 9,107 2.
3. Federal funds sold and securities purchased under agreements to resell. . 1350 3,633,423 3.
4. Federal funds purchased and securities sold under agreements
to repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2800 1,424,990 4.
5. Other borrowed money. . . . . . . . . . . . . . . . . . . . . . . . . . . 3190 2,002,758 5.
EITHER
6. Net due from own foreign offices, Edge and Agreement subsidiaries, and
IBFs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2163 N/A 6.
OR
7. Net due to own foreign offices, Edge and Agreement subsidiaries, and
IBFs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2941 0 7.
8. Total assets (excludes net due from foreign offices, Edge and Agreement
subsidiaries, and IBFs) . . . . . . . . . . . . . . . . . . . . . . . . . 2192 25,435,803 8.
9. Total liabilities (excludes net due to foreign offices, Edge and
Agreement subsidiaries, and IBFs) . . . . . . . . . . . . . . . . . . . . 3129 23,702,092 9.
In Items 10-17 report the amortized (historical) cost of both held-to-maturity
and available-for-sale securities in domestic offices.
10. U.S. Treasury securities. . . . . . . . . . . . . . . . . . . . . . . . . 1039 1,430,719 10.
11. U.S. Government agency obligations (exclude mortgage-backed securities) . 1041 251,357 11.
12. Securities issued by states and political subdivisions in the U.S. . . . 1042 130 12.
13. Mortgage-backed securities (MBS):
a. Pass-through securities:
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA . . . . . . . . . . . 1043 3,930,193 13.a.1
(2) Other pass-through securities. . . . . . . . . . . . . . . . . . . 1044 0 13.a.2
b. Other mortgage-backed securities (include CMOs, REMICs, and stripped
MBS):
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA . . . . . . . . . . . 1209 0 13.b.1
(2) All other mortgage-backed securities . . . . . . . . . . . . . . . 1280 0 13.b.2
14. Other domestic debt securities . . . . . . . . . . . . . . . . . . . . . 1281 0 14.
15. Foreign debt securities . . . . . . . . . . . . . . . . . . . . . . . . . 1282 0 15.
16. Equity securities:
a. Investments in mutual funds and other equity securities with readily
determinable fair values . . . . . . . . . . . . . . . . . . . . . . . A510 0 16.a.
b. All other equity securities. . . . . . . . . . . . . . . . . . . . . . 1752 46,127 16.b.
17. Total amortized (historical) cost of both held-to-maturity and
available-for-sale securities (sum of items 10 through 16). . . . . . . . 1374 5,658,526 17.
</TABLE>
Memorandum (to be completed only by banks with IBFs and other "foreign" offices)
<TABLE>
<CAPTION>
RCON Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
EITHER
1. Net due form the IBF of the domestic offices of the reporting bank . . . 3051 N/A M.1.
OR
2. Net due to the IBF of the domestic offices of the reporting bank . . . . 3059 N/A M.2.
</TABLE>
22
<PAGE> 33
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Chase Bank of Texas, Call Date: 12/31/99 State #: FFIEC 031
Nations Association Vendor ID: D Cert. #: 03263 Page RC-13
712 Main Street Transit #: 00000000
Houston, TX 77001
----
23
----
</TABLE>
SCHEDULE RC-I -- SELECTED ASSETS AND LIABILITIES OF IBFS
To be completed only by banks with IBFs and other "foreign" offices.
<TABLE>
<CAPTION>
C445 <-
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
RCFN
1. Total IBF assets of the consolidated bank (component of Schedule RC,
item 12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2133 N/A 1.
2. Total IBF loans and lease financing receivables (component of Schedule
RC-C, part I, item 12, column A). . . . . . . . . . . . . . . . . . . . . 2076 N/A 2.
3. IBF commercial and industrial loans (component of Schedule RC-C, part I,
item 4, column A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2077 N/A 3.
4. Total IBF liabilities (component of Schedule RC, item 21) . . . . . . . . 2898 N/A 4.
5. IBF deposit liabilities due to banks, including other IBFs (component of
Schedule RC-E, part II, items 2 and 3). . . . . . . . . . . . . . . . . . 2379 N/A 5.
6. Other IBF deposit liabilities (component of Schedule RC-E, part II,
items 1, 4, 5, and 6) . . . . . . . . . . . . . . . . . . . . . . . . . . 2381 N/A 6.
</TABLE>
Schedule RC-K -- QUARTERLY AVERAGES(1)
<TABLE>
<CAPTION>
C445 <-
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS
1. Interest-bearing balances due from depository institutions. . . . . . . . RCFD 3381 1,050 1.
2. U.S. Treasury securities and U.S. Government agency obligations(2)
(including mortgage-backed securities
issued or guaranteed by FNMA, or GNMA . . . . . . . . . . . . . . . . . . RCFD 3382 5,512,356 2.
3. Securities issued by states and political subdivisions in the U.S.(2) . . RCFD 3383 140 3.
4. a. Other debt securities(2) . . . . . . . . . . . . . . . . . . . . . . .
(including mortgage-backed securities not
issued or guaranteed by FNMA, FHLMC, or GNMA. . . . . . . . . . . . . . . RCFD 3647 0 4.a.
b. Equity securities(3) (includes investments in mutual funds and
Federal Reserve stock) . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3648 46,127 4.b.
5. Federal funds sold and securities purchased under agreements to resell. . RCFD 3365 1,099,052 5.
6. Loans:
a. Loans in domestic offices:
(1) Total loans . . . . . . . . . . . . . . . . . . . . . . . . . . . RCON 3360 12,798,232 6.a.(1)
(2) Loans secured by real estate . . . . . . . . . . . . . . . . . . . RCON 3385 2,444,997 6.a.(2)
(3) Loans to finance agricultural production and other loans to
farmers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCON 3386 40,693 6.a.(3)
(4) Commercial and industrial loans. . . . . . . . . . . . . . . . . . RCON 3387 6,183,977 6.a.(4)
(5) Loans to individuals for household, family, and other personal
expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . RCON 3388 1,520,445 6.a.(5)
b. Total loans in foreign offices, Edge and Agreement subsidiaries,
and IBFs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFN 3360 0 6.b.
7. Trading assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3401 75,189 7.
8. Lease financing receivables (net of unearned income). . . . . . . . . . . RCFD 3484 42,149 8.
9. Total assets(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3368 22,874,832 9.
LIABILITIES
10. Interest-bearing transaction accounts in domestic offices (NOW accounts,
ATS accounts, and telephone and preauthorized transfer accounts)
(exclude demand deposits) . . . . . . . . . . . . . . . . . . . . . . . . RCON 3485 319,374 10.
11. Nontransaction accounts in domestic offices:
a. Money market deposit accounts (MMDAs). . . . . . . . . . . . . . . . . RCON 3486 5,089,694 11.a.
b. Other savings deposits . . . . . . . . . . . . . . . . . . . . . . . . RCON 3487 3,632,317 11.b.
c. Time deposits of $100,000 or more. . . . . . . . . . . . . . . . . . . RCON A514 1,128,961 11.c.
d. Time deposits of less than $100,000. . . . . . . . . . . . . . . . . . RCON A529 2,040,953 11.d.
12. Interest-bearing deposits in foreign offices, Edge and Agreement
subsidiaries, and IBFs . . . . . . . . . . . . . . . . . . . . . . . . . RCFN 3404 0 12.
13. Federal funds purchased and securities sold under agreements to
repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3353 1,501,379 13.
14. Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3355 820,968 14.
</TABLE>
- ------------------
(1) For all items, banks have option of reporting either (1) an average of
daily figures for the quarter, or (2) an average of weekly figures (i.e.,
the Wednesday of each week of the quarter).
(2) Quarterly averages for all debt securities should be based on amortized
cost.
(3) Quarterly averages for all equity securities should be based on historical
cost.
(4) The quarterly average for total assets should reflect all debt securities
(not held for trading) at amortized cost, equity securities with readily
determinable fair values at the lower of cost or fair value, and equity
securities without readily determinable fair values at historical cost.
23
<PAGE> 34
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/99 State #: FFIEC 031
712 Main Street Vendor ID #: D Cert #: 03263 RI-14
Houston, TX 77001 Transit #: 0000000
-----
24
-----
</TABLE>
SCHEDULE RC-L -- OFF-BALANCE SHEET ITEMS
Please read carefully the instructions for the preparation of Schedule RC-L.
Some of the amounts reported in Schedule RC-L are regarded as volume indicators
and not necessarily as measures of risk.
<TABLE>
<CAPTION>
C460 <-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Unused commitments:
a. Revolving, open-end lines secured by 1-4 family residential properties, e.g., RCFD
home equity lines..................................................................... 3814 0 1.a
b. Credit card lines..................................................................... 3815 0 1.b
c. Commercial real estate, construction, and land development:
(1) Commitments to fund loans secured by real estate.................................. 3816 236,167 1.c.(1)
(2) Commitments to fund loans not secured by real estate.............................. 6550 535,019 1.c.(2)
d. Securities underwriting............................................................... 3817 0 1.d
e. Other unused commitments.............................................................. 3818 8,520,062 1.e
2. Financial standby letters of credit and foreign office guarantees.......... RCFD 3819 1,734,989 2.
a. Amount of financial standby letters of credit conveyed to others........ 3820 87,467 2.a
3. Performance standby letters of credit and foreign office guarantees...................... 3821 248,700 3.
a. Amount of performance standby letters of credit conveyed to others...... 3822 616 3.a
4. Commercial and similar letters of credit................................................. 3411 82,806 4.
5. Participations in acceptances (as described in the instructions) conveyed to others
by the reporting bank.................................................................... 3428 0 5.
6. Participations in acceptances (as described in the instructions) acquired by the
reporting (nonaccepting) bank............................................................ 3429 0 6.
7. Securities borrowed...................................................................... 3432 0 7.
8. Securities lent (including customers' securities lent where the customer is
indemnified against loss by the reporting bank).......................................... 3433 0 8.
9. Financial assets transferred with recourse that have been treated as sold for Call
Report purposes:
a. First lien 1-to-4 family residential mortgage loans:
(1) Outstanding principal balance of mortgages transferred as of the report RCFD
date.................................................................................. A521 0 9.a.(1)
(2) Amount of recourse exposure on these mortgages as of the report date.............. A522 0 9.a.(2)
b. Other financial assets (excluding small business obligations reported in item 9.c.):
(1) Outstanding principal balance of assets transferred as of the report date......... A523 0 9.b.(1)
(2) Amount of recourse exposure on these assets as of the report date................. A524 0 9.b.(2)
c. Small business obligations transferred with recourse under Section 208 of the
Reigle Community Development and Regulatory Improvement Act of 1994:
(1) Outstanding principal balance of small business obligations transferred
as of the report date................................................................. A249 0 9.c.(1)
(2) Amount of retained recourse on these obligations as of the report date............ A250 0 9.c.(2)
10. Notional amount of credit derivatives:
a. Credit derivatives on which the reporting bank is the guarantor....................... A534 0 10.a
b. Credit derivatives on which the reporting bank is the beneficiary..................... A535 0 10.b
11. Spot foreign exchange contracts.......................................................... 8765 1,559,977 11.
12. All other off-balance sheet liabilities (exclude off-balance sheet derivatives)
(itemize and describe each component of this item over 25% of Schedule RC,
item 28, "Total equity capital")......................................................... 3430 0 12.
TEXT RCFD
a. 3555: 3555 N/A 12.a
b. 3556: 3556 N/A 12.b
c. 3557: 3557 N/A 12.c
d. 3558: 3558 N/A 12.d
</TABLE>
24
<PAGE> 35
<TABLE>
<CAPTION>
<C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/99 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 RC-15
Houston, TX 77001 Transit#: 00000000
-----
25
-----
</TABLE>
SCHEDULE RC-L -- CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
13. All other off-balance sheet assets (exclude off-balance sheet derivatives) (itemize RCFD
and describe each component of this item over 25% of Schedule RC, item 28, "Total 5591 0 13.
equity capital")
TEXT RCFD
a. 5592: 5592 N/A 13.a
b. 5593: 5593 N/A 13.b
c. 5594: 5594 N/A 13.c
d. 5595: 5595 N/A 13.d
</TABLE>
<TABLE>
<CAPTION>
C461<-
OFF-BALANCE SHEET DERIVATIVES
POSITION INDICATORS Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------------------------------
(Column A) (Column B) (Column C) (Column D)
Interest Foreign Equity Commodity
Rate Exchange Derivative and
Contracts Contracts Contracts other Contracts
<S> <C> <C> <C> <C> <C>
14. Gross amounts (e.g., national
amounts)(for each column, sum of
items 14.a through 14.e must equal
sum of items 15, 16.a, and 16.b): RFCD RFCD RFCD RFCD
a. Futures contracts...................8693 33,500 8694 0 8895 0 8696 0 14.a
b. Forward contracts...................8697 28,450 8698 1,427,014 8699 0 8700 0 14.b
c. Exchange-traded option contracts:
(1) Written options.................8701 1,550,000 8702 0 8703 0 8704 0 14.c(1)
(2) Purchased options...............8705 3,100,000 8706 0 8707 0 8708 0 14.c(2)
d. Over-the-counter option contracts:
(1) Written options.................8709 3,366,821 8710 61,301 8711 346,348 8712 5,424 14.d(1)
(2) Purchased options...............8713 3,366,821 8714 61,301 8715 346,348 8716 5,424 14.d(2)
e. Swaps...............................3450 6,202,328 3826 0 8719 0 8720 0 14.e
15. Total gross notional amount of
derivative contracts held for trading...A126 12,489,420 A127 1,549,616 8723 692,696 8724 10,848 15.
16. Total gross notional amount of
derivative contracts held for
purposes other than trading: RFCD RFCD RFCD RFCD
a. Contracts marked to market.........8725 2,025,000 8726 0 8727 0 8728 0 16.a
b. Contracts not marked to market.....8729 3,431,500 8730 0 8731 0 8732 0 16.b
c. Interest rate swaps where the bank CON
has agreed to pay a fixed rate.....A589 0 16.c.
</TABLE>
25
<PAGE> 36
<TABLE>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cart#: 03263 RC-16
Houston, TX 77001 Transit #: 00000000
--------
26
--------
</TABLE>
SCHEDULE RC-L -- CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------
Off-Balance Sheet Derivatives (Column A) (Column B) (Column C) (Column D)
Position Indicators Interest Rate Foreign Exchange Equity Derivatives Commodity And
Contracts Contracts Contracts other Contracts
----------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
17. Gross fair values of
derivative contracts:
a. Contracts held for trading: RCFD RCFD RCFD RCFD
(1) Gross positive
fair value............. 8733 55,916 8734 37,833 8735 86,085 8736 0 17.a.(1)
(2) Gross negative
fair value............. 8737 56,346 8738 35,621 8739 86,085 8740 0 17.a.(2)
b. Contracts held for
purposes other than
trading that are marked
to market:
(1) Gross positive
fair value............. 8741 0 8742 0 8743 0 8744 0 17.b.(1)
(2) Gross negative
fair value............. 8745 10 8746 0 8747 0 8748 0 17.b.(2)
c. Contracts held for
purposes other than
trading that are not
marked to market:
(1) Gross positive
fair value............. 8749 3,219 8750 0 8751 0 8752 0 17.c.(1)
(2) Gross negative
fair value............. 8753 43,666 8754 0 8755 0 8756 0 17.c.(2)
</TABLE>
<TABLE>
<CAPTION>
MEMORANDA Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1-2. Not applicable
3. Unused commitments with an original maturity exceeding one year that are
reported in Schedule RC-L, items 1.a through 1.e, above (report only the unused RCFD
portions of commitments that are fee paid or otherwise legally binding).............. 3833 4,485,802 M.3.
a. Participations in commitments with an original
maturity exceeding one year conveyed to others ........... RCFD 3834 47,584 M.3.a.
4. To be completed only by banks with $1 billion or more in total assets:
Standby letters of credit and foreign office guarantees (both financial and
performance) issued to non-U.S. addressees (domicile) included in Schedule RC-L, items RCFD
2 and 3, above....................................................................... 3377 43,396 M.4.
5. Loans to individuals for household, family and other personal
expenditures that have been securitized and sold (with servicing retained), amounts
outstanding by type of loan:
a. Loans to purchase private passenger automobiles RCFD
(to be completed for the September report only)................................... 2741 N/A M.5.a.
b. Credit cards and related plans (TO BE COMPLETED QUARTERLY)........................ 2742 0 M.5.b.
c. All other consumer installment credit (including mobile home loans)(to be
completed for the September report only).......................................... 2743 N/A M.5.c.
</TABLE>
26
<PAGE> 37
<TABLE>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cart#: 03263 RC-17
Houston, TX 77001 Transit #: 00000000
--------
27
--------
</TABLE>
SCHEDULE RC-M -- MEMORANDA
<TABLE>
<CAPTION>
C465 <-
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Extensions of credit by the reporting bank to its executive officers, directors,
principal shareholders, and their related interests as of the report date:
a. Aggregate amount of all extensions of credit to all executive officers, directors, RCFD
principal shareholders and their related interests................................... 6164 1,138 1.a.
b. Number of executive officers, directors, and principal shareholders
to whom the amount of all extensions of credit by the reporting
bank (including extensions of credit to related interests) equals
or exceeds the lesser of $500,000 or 5 percent of total capital as Number
defined for this purpose in agency regulations..................... RCFD 6165 0 1.b.
2. Federal funds sold and securities purchased under agreements to resell with U.S. RCFD
branches and agencies of foreign banks (1) (included in Schedule RC, item 3)............ 3405 0 2.
3. Not applicable.
4. Outstanding principal balance of 1-4 family residential mortgage loans serviced for
others (include both retained servicing and purchased servicing):
a. Mortgages serviced under a GNMA contract............................................. 5500 0 4.a.
b. Mortgages serviced under a FHLMC contract:
(1) Serviced with recourse to servicer............................................... 5501 0 4.b.(1)
(2) Serviced without recourse to servicer............................................ 5502 0 4.b.(2)
c. Mortgages serviced under a FNMA contract:
(1) Serviced under a regular option contract......................................... 5503 0 4.c.(1)
(2) Serviced under a special option contract......................................... 5504 0 4.c.(2)
d. Mortgages serviced under other servicing contracts................................... 5505 0 4.d.
5. To be completed only by banks with $1 billion or more in total assets:
Customers' liability to this bank on acceptances outstanding (sum of items 5.a and 5.b
must equal Schedule RC, item 9):
a. U.S. addressees (domicile)........................................................... 2103 5,457 5.a.
b. Non-U.S. addressees (domicile)....................................................... 2104 3,650 5.b.
6. Intangible assets:
a. Mortgage Servicing Assets............................................................ 3164 0 6.a.
(1) Estimated fair value of mortgage servicing assets.............. RCFD A590 1,354 0 6.a.(1)
b. Other identifiable intangible assets:
(1) Purchased credit card relationships.............................................. 5506 0 6.b.(1)
(2) All other identifiable intangible assets......................................... 5507 34,854 6.b.(2)
c. Goodwill............................................................................. 3163 265,760 6.c.
d. Total (sum of items 6.a, 6.b.(1), 6,.b.(2), and 6.c)(must equal Schedule RC, item 10) 2143 320,614 6.d.
e. Amount of intangible assets (included in item 6.b.(2) above) that have been
grandfathered or are otherwise qualifying for regulatory capital purposes............ 6442 0 6.e.
7. Mandatory convertible debt, net of common or perpetual preferred stock
dedicated to redeem the debt............................................................ 3295 0 7.
</TABLE>
- ---------------
(1) Do not report federal funds sold and securities purchased under agreements
to resell with other commercial banks in the U.S. in this item.
27
<PAGE> 38
<TABLE>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cart#: 03263 RC-18
Houston, TX 77001 Transit #: 00000000
--------
28
--------
</TABLE>
SCHEDULE RC-M -- CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
8. a. Other real estate owned:
(1) Direct and indirect investments in real estate ventures....................... RCFD 5372 0 8.a.(1)
(2) All other real estate owned:
(a) Construction and land development in domestic offices.................... RCON 5508 0 8.a.(2)(a)
(b) Farmland in domestic offices ............................................ RCON 5509 0 8.a.(2)(b)
(c) 1-4 family residential properties in domestic offices.................... RCON 5510 849 8.a.(2)(c)
(d) Multifamily (5 or more) residential properties in domestic offices....... RCON 5511 0 8.a.(2)(d)
(e) Nonfarm nonresidential properties in domestic offices.................... RCON 5512 342 8.a.(2)(e)
(f) In foreign offices....................................................... RCFN 5513 0 8.a.(2)(f)
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule RC, item 7)..... RCFD 2150 1,191 8.a.(3)
b. Investments in unconsolidated subsidiaries and associated companies:
(1) Direct and indirect investments in real estate ventures....................... RCFD 5374 0 8.b.(1)
(2) All other investments in unconsolidated subsidiaries and associated
companies..................................................................... RCFD 5375 3,328 8.b.(2)
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule RC, item 8)..... RCFD 2130 3,328 8.b.(3)
9. Noncumulative perpetual preferred stock and related surplus included in Schedule RC,
item 23, "Perpetual preferred stock and related surplus"................................ RCFD 3778 0 9.
10. Mutual fund and annuity sales in domestic offices during the quarter (include
proprietary, private label, and third party products):
a. Money market funds................................................................. RCON 6441 14,968,429 10.a.
b. Equity securities funds............................................................ RCON 8427 8,616 10.b.
c. Debt securities funds.............................................................. RCON 8428 1,226 10.c.
d. Other mutual funds................................................................. RCON 8429 356,774 10.d.
e. Annuities.......................................................................... RCON 8430 60 10.e.
f. Sales of proprietary mutual funds and annuities (included in items 10.a through
10.e above)........................................................................ RCON 8784 6,574,102 10.f.
11. Net unamortized realized deferred gains (losses) on off-balance sheet derivative
contracts included in assets and liabilities reported in Schedule RC.................... RCFD A525 3,549 11.
12. Amount of assets netted against nondeposit liabilities and deposits in foreign offices
(other than insured branches in Puerto Rico and U.S. territories and possessions) on
the balance sheet (Schedule RC) in accordance with generally accepted accounting
principles(1)........................................................................... RCFD A526 0 12.
13. Outstanding principal balance of loans other than 1-4 family residential mortgage loans
that are serviced for others (to be completed if this balance is more than $10 million
and exceeds ten percent of total assets)................................................ RCFD A591 0 13.
</TABLE>
<TABLE>
- -----------------------------------------------------------------------------------------------------------------
Memorandum Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Reciprocal holdings of banking organizations' capital instruments (to be completed RCFD
for the December report only)........................................................... 3836 0 M.1.
</TABLE>
- ---------------------
(1) Exclude netted on-balance sheet amounts associated with off-balance sheet
derivative contracts, deferred tax assets netted against deferred tax
liabilities, and assets netted in accounting for pensions.
28
<PAGE> 39
<TABLE>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 RC-18
Houston, TX 77001 Transit #: 00000000
--------
29
--------
</TABLE>
SCHEDULE RC-N -- PAST DUE AND NONACCRUAL LOANS, LEASES, AND OTHER ASSETS
The FFIEC regards the information reported in all of Memorandum item 1, in items
1 through 10, column A, and in Memorandum items 2 through 4, column A, as
confidential.
<TABLE>
<CAPTION>
C470 <-
Dollar Amounts in Thousands
-----------------------------------------------------------------
(Column A) (Column B) (Column C)
Past due Past due 90 Nonaccrual
30 through 89 days or more
days and still and still
accruing accruing
RCFD RCFD RCFD
<S> <C> <C> <C> <C> <C> <C> <C>
1. Loans secured by real estate:
a. To U.S. addressees (domicile)................... 1245 1246 5,863 1247 18,597 1.a.
b. To non-U.S. addressees (domicile)............... 1248 1249 0 1250 0 1.b.
2. Loans to depository institutions and acceptances of
other banks:
a. To U.S. banks and other U.S. depository
institutions.................................... 5377 5378 0 5379 0 2.a.
b. To foreign banks................................ 5380 5381 0 5382 0 2.b.
3. Loans to finance agricultural production and other
loans to farmers..................................... 1594 1597 0 1583 0 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile)................... 1251 1252 16,539 1253 81,434 4.a.
b. To non-U.S. addressees (domicile)............... 1254 1255 1,064 1256 14,172 4.b.
5. Loans to individuals for household, family, and other
personal expenditures:
a. Credit cards and related plans.................. 5383 5384 909 5385 0 5.a.
b. Other (includes single payment, installment, and
all student loans).............................. 5386 5387 4,381 5388 3,449 5.b.
6. Loans to foreign governments and official
institutions......................................... 5389 5390 0 5391 0 6.
7. All other loans...................................... 5459 5460 2,673 5461 8,226 7.
8. Lease financing receivables:
a. Of U.S. addressees (domicile)................... 1257 1258 0 1259 0 8.a.
b. Of non-U.S. addressees (domicile)............... 1271 1272 0 1791 0 8.b.
9. Debt securities and other assets (exclude other real
estate owned and other repossessed assets)........... 3505 3506 0 3507 0 9.
=================================================================================================================================
Amounts reported in items 1 through 8 above include guaranteed and unguaranteed
portions of past due and nonaccrual loans and leases. Report in item 10 below
certain guaranteed loans and leases that have already been included in the
amounts reported in items 1 through 8.
<CAPTION>
RCFD RCFD RCFD
---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
10. Loans and leases reported in items 1 through 8 above
which are wholly or partially guaranteed by the U.S.
Government.......................................... 5612 5613 0 5614 4,894 10.
a. Guaranteed portion of loans and leases
included in item 10 above..................... 5615 5616 0 5617 3,915 10.a.
</TABLE>
29
<PAGE> 40
<TABLE>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cart#: 03263 RC-18
Houston, TX 77001 Transit #: 00000000
--------
30
--------
</TABLE>
SCHEDULE RC-N--CONTINUED
<TABLE>
<CAPTION>
C473
Dollar Amounts In Thousands
- -------------------------------------------------------------------------------------------------------------------
(Column A) (Column B) (Column C)
Past due 30 Past due 90 Nonaccrual
Memoranda through 89 days or more
days and still and still
accruing accruing
RCFD RCFD RCFD
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
1. Restructured loans and leases included in
Schedule RC-N, items 1 through 8, above (and
not reported in Schedule RC-C, part I,
Memorandum item 2)................................ 1658 1659 0 1661 0 M.1.
2. Loans to finance commercial real estate,
construction, and land development activities
(not secured by real estate) included in Schedule
RC-N, items 4 and 7, above........................ 6558 6559 0 6560 1,242 M.2.
3. Loans secured by real estate in domestic offices RCON RCON RCON
(included in Schedule RC-N, item 1, above):
a. Construction and land development.............. 2759 2769 5,311 3492 5,530 M.3.a.
b. Secured by farmland............................ 3493 3494 0 3495 0 M.3.b.
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4
family residential properties and extended
under lines of credit...................... 5398 5399 0 5400 0 M.3.c.(1)
(2) All other loans secured by 1-4 family
residential properties..................... 5401 5402 552 5403 7,577 M.3.c.(2)
d. Secured by multifamily (5 or more) residential
properties..................................... 3499 3500 0 3501 76 M.3.d.
e. Secured by nonfarm nonresidential properties... 3502 3503 0 3504 5,414 M.3.e.
</TABLE>
<TABLE>
<CAPTION>
(Column A) (Column B)
Past due Past due
30 thru 89 days 90 days or more
and still accruing and still accruing
------------------ -------------------
RCFD RCFD
---- ----
<S> <C> <C> <C>
4. Interest rate, foreign exchange rate, and other
commodity and equity contracts:
a. Book value of amounts carried as assets........ 3522 3528 0 M.4.a.
b. Replacement cost of contracts with a positive
replacement cost............................... 3529 3530 0 M.4.b.
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
PERSON TO WHOM QUESTIONS ABOUT THE REPORTS OF CONDITION AND INCOME SHOULD BE DIRECTED: C477
Name Title Area code/phone number/extension
8901 Andrew Gutche 8901 Vice President 8902 (212) 701-8949
----------------------------- ---------------------- -----------------------------------
TEXT Fax: Area Code/Phone Number
[ILLEGIBLE] (212) 797-4726
-----------------------------------
</TABLE>
30
<PAGE> 41
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 RC-21
Houston, TX 77001 Transit #: 00000000
----------
31
----------
</TABLE>
SCHEDULE RC-O--OTHER DATA FOR DEPOSIT INSURANCE AND FICO ASSESSMENTS
<TABLE>
<CAPTION>
C475 <-
Dollar Amounts in Thousands RCON
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Unposted debits (see instructions):
a. Actual amount of all unposted debits............................................... 0030 0 1.a
OR
b. Separate amount of unposted debits:
(1) Actual amount of unposted debits to demand deposits............................ 0031 N/A 1.b.1
(2) Actual amount of unposted debits to time and savings deposits(1)............... 0032 N/A 1.b.2
2. Unposted credits (see instructions):
a. Actual amount of all unposted credits.............................................. 3510 0 2.a.
OR
b. Separate amount of unposted credits:
(1) Actual amount of unposted credits to demand deposits........................... 3512 N/A 2.b.1
(2) Actual amount of unposted credits to time and savings deposits(1).............. 3514 N/A 2.b.2
3. Uninvested trust funds (cash) held in bank's own trust department (not included
in total deposits in domestic offices)................................................ 3520 25,856 3.
4. Deposits of consolidated subsidiaries in domestic offices and in insured branches in
Puerto Rico and U.S. territories and possessions (not included in total deposits):
a. Demand deposits of consolidated subsidiaries....................................... 2211 8,816 4.a.
b. Time and savings deposits (1) of consolidated subsidiaries......................... 2351 17 4.b.
c. Interest accrued and unpaid on deposits of consolidated subsidiaries............... 5514 0 4.c.
5. Deposits in insured branches in Puerto Rico and U.S. territories and possessions:
a. Demand deposits in insured branches (included in Schedule RC-E, Part II)........... 2229 0 5.a.
b. Time and savings deposits(1) in insured branches (included in Schedule RC-E, Part
II)................................................................................ 2383 0 5.b.
c. Interest accrued and unpaid on deposits in insured branches
(included in Schedule RC-G, item 1.b).............................................. 5515 0 5.c.
6. Reserve balances actually passed through to the Federal Reserve by the reporting bank
on behalf of its respondent depository institutions that are also reflected as deposit
liabilities of the reporting bank:
a. Amount reflected in demand deposits (included in Schedule RC-E, Part I, item 4 or
5, column B)....................................................................... 2314 0 6.a.
b. Amount reflected in time and savings deposits (1) (included in Schedule RC-E, Part
I, item 4 or 5, column A or C, but not column B)................................... 2315 0 6.b.
7. Unamortized premiums and discounts on time and savings deposits:(1)
a. Unamortized premiums............................................................... 5516 0 7.a.
b. Unamortized discounts.............................................................. 5517 0 7.b.
8. To be completed by banks with "Oakar deposits."
a. Deposits purchased or acquired from other FDIC-insured institutions during the
quarter (exclude deposits purchased or acquired from foreign offices other than
insured branches in Puerto Rico and U.S. territories and possessions):
(1) Total deposits purchased or acquired from other FDIC-insured institutions
during the quarter............................................................. A531 N/A 8.a.1
(2) Amount of purchased or acquired deposits reported in item 8.a.(1) above
attributable to a secondary fund (i.e., BIF members report deposits
attributable to SAIF; SAIF members report deposits attributable to BIF)....... A532 N/A 8.a.2
b. Total deposits sold or transferred to other FDIC-insured institutions during the
quarter (exclude sales or transfers by the reporting bank of deposits in
foreign offices other than insured branches in Puerto Rico and U.S. territories
and possessions).................................................................. A533 N/A 8.b.
</TABLE>
- ---------------
(1) For FDIC and FICO insurance assessment purposes, "time and savings
deposits" consists of nontransaction accounts and all transaction accounts
other than demand deposits.
31
<PAGE> 42
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 RC-22
Houston, TX 77001 Transit #: 00000000
</TABLE>
----
32
SCHEDULE RC-O -- CONTINUED ----
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCON
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
9. Deposits in lifeline accounts.................................................................... 5596 9.
10. Benefit-responsive "Depository Institution Investment Contracts" (included in total deposits
in domestic offices)............................................................................. 8432 0 10.
11. Adjustments to demand deposits in domestic offices and in insured branches in Puerto Rico and
U.S. territories and possessions reported in Schedule RC-E for certain reciprocal demand
balances:
a. Amount by which demand deposits would be reduced if the reporting bank's reciprocal demand
balances with the domestic offices of U.S. banks and savings associations and insured
branches in Puerto Rico and U.S. territories and possessions that were reported on a gross
basis in Schedule RC-E had been reported on a net basis....................................... 8785 0 11.a
b. Amount by which demand deposits would be increased if the reporting bank's reciprocal
demand balances with foreign banks and foreign offices of other U.S. banks (other than
insured branches in Puerto Rico and U.S. territories and possessions) that were reported on
a net basis in Schedule RC-E had been reported on a gross basis............................... A181 0 11.b
c. Amount by which demand deposits would be reduced if cash items in process of collection were
included in the calculation of the reporting bank's net reciprocal demand balances with the
domestic offices of U.S. banks and savings associations and insured branches in Puerto Rico
and U.S. territories and possessions in Schedule RC-E......................................... A182 0 11.c
12. Amount of assets netted against deposit liabilities in domestic offices and in insured branches
in Puerto Rico and U.S. territories and possessions on the balance sheet (Schedule RC) in
accordance with generally accepted accounting principles (exclude amounts related to reciprocal
demand balances):
a. Amount of assets netted against demand deposits............................................... A527 0 12.a
b. Amount of assets netted against time and savings deposits..................................... A528 0 12.b
</TABLE>
Memoranda (To be completed each quarter except as noted)
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCON
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1. Total deposits in domestic offices of the bank:
(sum of Memorandum items 1.a.(1) and 1.b.(1) must equal Schedule RC, item 13.a):
a. Deposit accounts of $100,000 or less:
(1) Amount of deposit accounts of $100,000 or less.............................. 2702 7,986,375 M.1.a.(1)
NUMBER
(2) Number of deposit accounts of $100,000 or less (to be ------
completed for the June report only)................... RCON 3779 N/A M.1.a.(2)
b. Deposit accounts of more than $100,000:
(1) Amount of deposit accounts of more than $100,000............................ 2710 10,689,347 M.1.b.(1)
NUMBER
------
(2) Number of deposit accounts of more than $100,000...... RCON 2722 22,385 M.1.b.(2)
2. Estimated amount of uninsured deposits in domestic offices of the bank:
a. An estimate of your bank's uninsured deposits can be determined by multiplying
the number of deposit accounts of more than $100,000 reported in Memorandum item
1.b(2) above by $100,000 and subtracting the result from the amount of deposit
accounts of more than $100,000 reported in Memorandum item 1.b.(1) above.
YES/NO
------
Indicate in the appropriate box at right whether your bank has a method or
procedure for determining a better estimate of uninsured deposits than the
estimate described above........................................................ 6861 N/A M.2.a.
b. If the box marked YES has been checked, report the estimate of uninsured deposits
determined by using your bank's method or procedure............................. 5597 N/A M.2.b.
3. Has the reporting institution been consolidated with a parent bank or savings
association in that parent bank's or parent savings association's Call Report
or Thrift Financial Report?
If so, report the legal title and FDIC Certificate Number of the parent bank
or parent savings association:
FDIC Cert No.
-------------
TEXT A545........................................................................... A546 N/A M.3.
</TABLE>
32
<PAGE> 43
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Chase Bank of Texas, National Association Call Date: 12/31/99 State #: FFIEC 031
712 Main Street Vendor ID: D Cert #: 03263 RC-33
Houston, TX 77001 Transit #: 00000000 -----------
33
-----------
</TABLE>
SCHEDULE RC-R -- REGULATORY CAPITAL
This schedule must be completed by all banks as follows: Banks that reported
total assets of $1 billion or more in Schedule RC, item 12, for June 30, 1998,
must complete items 2 through 9 and Memoranda items 1 and 2. BANKS WITH ASSETS
OF LESS THAN $1 BILLION MUST COMPLETE ITEMS 1 THROUGH 3 BELOW OR SCHEDULE RC-R
IN ITS ENTIRETY, DEPENDING ON THEIR RESPONSE TO ITEM 1 BELOW.
<TABLE>
<CAPTION>
C480 <-
-----------
RCFD YES NO
--- ---
<S> <C> <C> <C>
1. Test for determining the extent to which Schedule RC-R must be completed. To be completed
only by banks with total assets of less than $1 billion. Indicate in the appropriate box
at the right whether the bank has total capital greater than or equal to eight percent of
adjusted total assets.................................................................... 6056 N/A 1.
For purposes of this test, adjusted total assets equals total assets less
cash, U.S. Treasuries, U.S. Government agency obligations, and 80 percent of
U.S. Government-sponsored agency obligations plus the allowance for loan and
lease losses and selected off-balance sheet items as reported on Schedule
RC-L (see instructions).
If the box marked YES has been checked, then the bank only has to complete
items 2 and 3 below. If the box marked NO has been checked, the bank must
complete the remainder of this schedule.
A NO response to item 1 does not necessarily mean that the bank's actual
risk-based capital ratio is less than eight percent or that the bank is not
in compliance with the risk-based capital guidelines.
NOTE: All banks are required to complete items 2 and 3 below.
</TABLE>
<TABLE>
<CAPTION>
RCFD Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
2. Portion of qualifying limited-life capital instruments (original
weighted average maturity of at least five years) that is includible
in Tier 2 capital:
a. Subordinated debt(1) and intermediate term preferred stock........... A515 445,000 2.a.
b. Other limited-life capital instruments............................... A516 0 2.b.
3. Amounts used in calculating regulatory capital ratios (report amounts
determined by the bank for its own internal regulatory capital analyses
consistent with applicable capital standards):
a.(1)Tier 1 capital....................................................... 8274 1,605,481 3.a.1
(2)Tier 2 capital....................................................... 8275 660,956 3.a.2
(3)Tier 3 capital....................................................... 1395 0 3.a.3
b.Total risk-based capital................................................ 3792 2,268,437 3.b.
c. Excess allowance for loan and lease losses (amount that exceeds
1.25% of gross risk-weighted assets)................................. A222 0 3.c.
d.(1)Net risk-weighted assets (gross risk-weighted assets less excess
allowance reported in item 3.c above and all other deductions)....... A223 18,908,216 3.d.1
(2)Market risk equivalent assets (included in item 3.d.(1) above)....... 1651 0 3.d.2
e.Maximum contractual dollar amount of recourse exposure in low level
recourse transactions (to be completed only if the bank uses the
"direct reduction method" to report these transactions in Schedule RC-R) 1727 0 3.a
f."Average total assets" (quarterly average reported in Schedule RC-K,
item 9, less all assets deducted from Tier 1 capital)(2)............. A224 22,554,218 3.f.
</TABLE>
Items 4-9 and Memoranda items 1 and 2 are to be completed by banks that answered
NO to item 1 above and by banks with total assets of $1 billion or more.
<TABLE>
<CAPTION>
(Column A) (Column B)
Assets Credit Equivalent
Recorded Amount of Off-
on the Balance Sheet
Dollar Amounts in Thousands Balance Sheet Items(3)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
4. Assets and credit equivalent amounts of off-balance sheet items
assigned to the Zero percent risk category: RCFD RCFD
a. Assets recorded on the balance sheet................................ 5163 3,028,730 4.a.
b. Credit equivalent amount of off-balance sheet items................. 3796 8,929 F 4.b.
</TABLE>
- ---------------
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.
(2) Do not deduct excess allowance for loan and lease losses.
(3) Do not report in column B the risk-weighted amount of assets reported in
column A.
33
<PAGE> 44
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Chase Bank of Texas, National Association Call Date: 12/31/1999 State #: FFIEC 031
Address: 712 Main Street Vendor ID: D Cert #: 03263 RC-24
City, State Zip: Houston, TX 77001 Transit #: 00000000 ----------
34
----------
Schedule RC-R -- Continued
(Column A) (Column B)
Assets Credit Equivalent
Recorded Amount
on the of Off-Balance
Balance Sheet Sheet Items(2)
------------------- --------------------
Dollar Amounts in Thousands RCFD RCFD
- ------------------------------------------------------------------- ---- ----
5. Assets and credit equivalent amounts of off-balance sheet items
assigned to the 20 percent risk category:
a. Assets recorded on the balance sheet......................... 5165 8,933,041 5.a.
b. Credit equivalent amount of off-balance sheet items.......... 3801 259,948 5.b.
6. Assets and credit equivalent amounts of off-balance sheet items
assigned to the 50 percent risk category:
a. Assets recorded on the balance sheet......................... 3802 813,567 6.a.
b. Credit equivalent amount of off-balance sheet items.......... 3803 124,693 6.b.
7. Assets and credit equivalent amounts of off-balance sheet items
assigned to the 100 percent risk category:
a. Assets recorded on the balance sheet......................... 3804 12,719,022 7.a.
b. Credit equivalent amount of off-balance sheet items.......... 3805 3,881,466 7.b.
8. On-balance sheet asset values excluded from and deducted in
the calculation of the risk-based capital ratio(2).............. 3806 157,399 8.
9. Total assets recorded on the balance sheet (sum of
items 4.a, 5.a, 6.a, 7.a, and 8, column A) (must equal
Schedule RC, item 12 plus items 4.b and 4.c).................... 3807 25,651,759 9.
Memoranda
Dollar Amounts in Thousands RCFD
- -----------------------------------------------------------------------------------------------------------
1. Current credit exposure across all off-balance sheet derivative contracts covered
by the risk-based capital standards............................................... 8764 58,593 M.1.
With a remaining maturity of
------------------------------------------------------------------------
(Column B)
(Column A) Over one year (Column C)
One year or less through five years Over five years
---------------------- ---------------------- ----------------------
RCFD RCFD RCFD
---------------------- ---------------------- ----------------------
2. Notional principal amounts of
off-balance sheet derivative contracts (3):
a. Interest rate contracts.................... 3809 5,280,507 8766 6,206,983 8767 1,210,109 M.2a
b. Foreign exchange contracts................. 3812 1,280,168 8769 208,147 8770 0 M.2b
c. Gold contracts............................. 8771 0 8772 0 8773 0 M.2c
d. Other precious metals contracts............ 8774 0 8775 0 8776 0 M.2d
e. Other commodity contracts.................. 8777 5,424 8778 0 8779 0 M.2e
f. Equity derivative contracts................ A000 150,239 A001 196,109 A002 0 M.2f
</TABLE>
- ---------------
(1) Do not report in column B the risk-weighted amount of assets reported in
column A.
(2) Include the difference between the fair value and the amortized cost of
available-for-sale securities in item 8 and report the amortized cost of
these securities in items 4 through 7 above. Item 8 also includes on-balance
sheet asset values (or portions thereof) of off-balance sheet interest rate,
foreign exchange rate, and commodity contracts and those contracts (e.g.
futures contracts) not subject to risk-based capital. Item 8 margin accounts
and accrued receivables not included in the calculation of credit equivalent
amounts of off-balance sheet derivatives as well as any portion of the
allowance for loan and lease losses in excess of the amount that may be
included in Tier 2 capital.
(3) Exclude foreign exchange contracts with an original maturity of 14 days or
less and all futures contracts.
34
<PAGE> 45
<TABLE>
<S> <C> <C> <C>
Vendor ID: D Cert #: 03283 Page RC-25
Transit #: 00000000 ----------
35
----------
Optional Narrative Statement Concerning the Amounts
Reported in the Reports of Condition and Income
at close of business on December 31, 1999
Chase Bank of Texas, National Association Houston TX
- --------------------------------------------------------- ------------------------------------------ ---------------------
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, submit a brief narrative statement on the amounts reported in the Reports of
Condition and Income. This optional statement will be made available to the public, along with the publicly available data in the
Reports of Condition and Income, in response to any request for individual bank report data. However, the information reported in
column A and in all of Memorandum item 1 of Schedule RC-N is regarded as confidential and will not be released to the public.
BANKS CHOOSING TO SUBMIT THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE STATEMENT DOES NOT CONTAIN THE NAMES OR OTHER
IDENTIFICATIONS OF INDIVIDUAL BANK CUSTOMERS, REFERENCES TO THE AMOUNTS REPORTED IN THE CONFIDENTIAL ITEMS IN SCHEDULE RC-N, OR ANY
OTHER INFORMATION THAT THEY ARE NOT WILLING TO HAVE MADE PUBLIC OR THAT WOULD COMPROMISE THE PRIVACY OF THEIR CUSTOMERS.
All information furnished by the bank in the narrative statement must be accurate and not misleading. Appropriate efforts shall be
taken by the submitting bank to ensure the statement's accuracy.
If, subsequent to the original submission, material changes are submitted for the data reported in the Reports of Condition and
Income, the existing narrative statement will be deleted from the files, and from disclosure; the bank, at its option, may replace
it with a statement appropriate to the amended data.
The optional narrative statement will appear in agency records and in release to the public exactly as submitted (or amended as
described in the preceding paragraph) by the management of the bank.
THE STATEMENT WILL NOT BE EDITED OR SCREENED IN ANY WAY BY THE SUPERVISORY AGENCIES FOR ACCURACY OR RELEVANCE. DISCLOSURE OF THE
STATEMENT SHALL NOT SIGNIFY THAT ANY FEDERAL SUPERVISORY AGENCY HAS VERIFIED OR CONFIRMED THE ACCURACY OF THE INFORMATION CONTAINED
THEREIN. A STATEMENT TO THIS EFFECT WILL APPEAR ON ANY PUBLIC RELEASE OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT OF THE
REPORTING BANK.
- ------------------------------------------------------------------------------------------------------------------------
RCON
x = NO COMMENT Y = COMMENT 6979 X
BANK MANAGEMENT STATEMENT (please type or print clearly):
TEXT (70 characters per line)
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
/S/ JACK ALEXANDER 1/30/2000
- --------------------------------------- -----------------
Signature of Executive Officer of Bank Date of Signature
</TABLE>
35
<PAGE> 46
----
36
----
<TABLE>
<S> <C> <C>
Chase Bank of Texas, National Association OMB No. For FDIC: 1557-0081
712 Main Street OMB No. For FDIC: 3064-0052
Houston, TX 77001 OMB No. For Federal Reserve: 7100-0036
Expiration Date: 3/31/2002
SPECIAL REPORT
C700 <-
Dollar Amounts in Thousands
- ---------------------------------------------------------------------------------------------------------------------------
CLOSE OF BUSINESS
DATE: FDIC Cert. #
---------------- ------------
12/31/1999 03263
- ---------------------------------------------------------------------------------------------------------------------------
LOANS TO EXECUTIVE OFFICERS (Complete as of each Call Report Date)
- ---------------------------------------------------------------------------------------------------------------------------
The following information is required by Public Laws 90-44 and 102-242, but does not constitute a part of the Report of
Condition. With each Report of Condition, these Laws require all banks to furnish a report of all loans or other
extensions of credit to its executive officers made since the date of the previous Report of Condition. Data regarding
individual loans or other extensions of credit are not required. If no such loans or other extensions of credit were
made during the period, insert "none" against subitem (a). (Exclude the first $15,000 of indebtedness of each executive
officer under bank credit card plan.) See Sections 215.2 and 215.3 of Title 12 of the Code of Federal Regulations
(Federal Reserve Board Regulation O) for the definitions of "executive officer" and "extension of credit," respectively.
Exclude loans and other extensions of credit to directors and principal shareholders who are not executive officers.
- ---------------------------------------------------------------------------------------------------------------------------
a. Number of loans made to executive officers since the previous Call Report date............ RCFD 3561 0 a.
b. Total dollar amount of above loans (in thousands of dollars) ............................ RCFD 3562 0 b.
c. Range of interest charged on above loans RCFD FROM TO
(example: 9 3/4% = 9.75) ........................................... 7701 0.00% to RCFD 7702 0.00% c.
- ---------------------------------------------------------------------------------------------------------------------------
/s/ JACK ALEXANDER 1/30/00
- ---------------------------------------------------------------------------------------------------------------------------
SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT: DATE (Month, Day, Year):
- ---------------------------------------------------------------------------------------------------------------------------
FDIC 8040/53 (3-98)
</TABLE>
36
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
OFFER TO EXCHANGE
7.75% NOTES DUE 2005, SERIES B,
FOR ANY AND ALL OUTSTANDING
7.75% NOTES DUE 2005
OF
ONEOK, INC.
PURSUANT TO THE PROSPECTUS DATED , 2000
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
, 2000 UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY BE
WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
<TABLE>
<S> <C> <C>
By Registered or Certified Facsimile Transmission By Hand or Overnight
Mail: Number: Delivery:
(Eligible Institutions Only)
(214) 672-5746
Chase Bank of Texas, Chase Bank of Texas,
National Association National Association
1201 Main Street 1201 Main Street
18th Floor Confirm by Telephone: 18th Floor
Dallas, Texas 75202 or For Information Call: Dallas, Texas 75202
Attn.: Frank Ivins, (214) 672-5687 Attn.: Frank Ivins,
Personal and Confidential Personal and Confidential
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE, OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges that it has received the Prospectus dated
, 2000 (as amended or supplemented from time to time, the
"Prospectus") of ONEOK, Inc., an Oklahoma corporation (the "Company"), and this
Letter of Transmittal (as amended or supplemented from time to time, the "Letter
of Transmittal"), which together constitute the offer of the Company (the
"Exchange Offer") to exchange $1,000 principal amount of its 7.75% Notes due
2005, Series B (the "Exchange Notes"), registered under the Securities Act of
1933 (the "Securities Act") pursuant to a registration statement of which the
Prospectus is a part, for each $1,000 principal amount of its outstanding 7.75%
Notes due 2005 (the "Old Notes") of which $350,000,000 aggregate principal
amount is outstanding. The form and terms of the Exchange Notes are the same as
the form and terms of the Old Notes except that (i) the Exchange Notes will bear
a Series B designation, (ii) the Exchange Notes will have been registered under
the Securities Act and will not bear legends restricting the transfer thereof,
(iii) holders of the Exchange Notes will not be entitled to the rights of
holders of Old Notes under the Registration Rights Agreement dated as of March
1, 2000 between the Company and the initial purchasers of the Old Notes (the
"Registration Rights Agreement") and (iv) the Exchange Notes will not contain
terms with respect to liquidated damages. The Exchange Notes will evidence the
same debt as the Old Notes (which they replace) and will be issued under and be
entitled to the benefits of the Indenture dated as of September 24, 1998, as
supplemented (the "Indenture") by and between the Company and Chase
<PAGE> 2
Bank of Texas, National Association, as trustee. The Old Notes and the Exchange
Notes are sometimes referred to herein collectively as the "Notes." See "The
Exchange Offer" and "Description of the New Notes" in the Prospectus.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by holders of Old Notes
either if Old Notes are to be forwarded herewith or if tenders of Old Notes are
to be made by book-entry transfer to an account maintained by Chase Bank of
Texas, National Association (the "Exchange Agent") at The Depository Trust
Company (the "Book-Entry Transfer Facility" or "DTC") pursuant to the procedures
set forth in the Prospectus under "The Exchange Offer -- Procedures for
Tendering." Delivery of this Letter of Transmittal and any other required
documents should be made to the Exchange Agent.
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available, (ii) who cannot deliver their Old Notes, this Letter of
Transmittal or any other required documents to the Exchange Agent or (iii) who
cannot complete the procedures for book-entry transfer prior to the Expiration
Date may effect a tender of such Old Notes in accordance with the guaranteed
delivery procedures set forth in the Prospectus under "The Exchange
Offer -- Guaranteed Delivery Procedures." See Instruction 2.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
The undersigned has completed the appropriate boxes below and signed this
Letter of Transmittal to indicate the action the undersigned desires to take
with respect to the Exchange Offer.
List below the Old Notes to which this Letter of Transmittal relates. If
the space provided below is inadequate, the certificate numbers and principal
amount of Old Notes should be listed on a separate schedule affixed hereto.
<TABLE>
<S> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD NOTES
(1) (2) (3)
- ------------------------------------------------------------------------------------------------------------------------
Name(s) and Address(es) of Registered Holder(s) Aggregate Principal Amount
(Please fill in, if blank) Principal of Old Notes
Certificate Amount of Tendered
Number(s)* Old Notes (if less than all)**
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
* Need not be completed if Old Notes are being tendered by book-entry holders.
** Old Notes may be tendered in whole or in part in integral multiples of $1,000, provided that if any Old Notes are
tendered for exchange in part, the untendered principal amount thereof must be any integral multiple of $1,000. See
instruction 3. Unless this column is completed, a holder will be deemed to have tendered the full aggregate
principal amount of the Old Notes represented by the Old Notes indicated in column 2.
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE> 3
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
- -----------------------------------------------------------------------------
Account Number
-----------------------------------------------------------------------------
Transaction Code Number
-----------------------------------------------------------------------------
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s)
- -------------------------------------------------------------------------
Window Ticket Number (if any)
------------------------------------------------------------------------------
Name of Eligible Institution that Guaranteed Delivery
-------------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery
---------------------------------------------------------
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution
- -----------------------------------------------------------------------------
Account Number
-----------------------------------------------------------------------------
Transaction Code Number
-----------------------------------------------------------------------------
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD NOTES
ARE TO BE RETURNED BY CREDITING THE BOOK-ENTRY TRANSFER FACILITY ACCOUNT
NUMBER SET FORTH ABOVE
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER THAT ACQUIRED THE OLD NOTES FOR ITS
OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING ACTIVITIES AND
WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
- --------------------------------------------------------------------------------
Address:
-----------------------------------------------------------------------------
- ---------------
(1) The first paragraph of Instruction 4 contains the definition of an "Eligible
Institution."
3
<PAGE> 4
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the aggregate principal amount of Old
Notes indicated above in exchange for a like aggregate principal amount of
Exchange Notes. Subject to, and effective upon, the acceptance for exchange of
the Old Notes tendered hereby, the undersigned hereby exchanges, assigns and
transfers to, or upon the order of, the Company all right, title and interest in
and to such Old Notes.
The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent its agent and attorney-in-fact (with full knowledge that the Exchange
Agent also acts as the agent of the Company) with respect to the tendered Old
Notes with the full power of substitution (such power of attorney being deemed
to be an irrevocable power coupled with an interest), subject to the right of
withdrawal described in the Prospectus, to (i) deliver certificates for such Old
Notes to the Company and deliver all accompanying evidences of transfer and
authenticity to, or upon the order of, the Company, (ii) present such Old Notes
for transfer on the books of the Company and (iii) receive all benefits and
otherwise exercise all rights of beneficial ownership of such Old Notes, all in
accordance with the terms of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, assign and transfer the Old Notes
tendered hereby and that, when the same are accepted for exchange, the Company
will acquire good and unencumbered title thereto, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claims or
proxies. The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agent or the Company to be necessary or
desirable to complete the exchange, assignment and transfer of the Old Notes
tendered hereby, and the undersigned will comply with its obligations under the
Registration Rights Agreement. The undersigned has read and agreed to all of the
terms of the Exchange Offer.
The undersigned agrees that acceptance of any tendered Old Notes by the
Company and the issuance of Exchange Notes in exchange therefor will constitute
performance in full by the Company of its obligations under the Registration
Rights Agreement and that the Company will have no further obligations or
liabilities thereunder (except in limited circumstances).
The name(s) and address(es) of the registered holders of the Old Notes
tendered hereby should be printed above, if they are not already set forth
above, as they appear on the Old Notes. The Certificate number(s) and the Old
Notes that the undersigned wishes to tender should be indicated in the
appropriate boxes above.
The undersigned also acknowledges that this Exchange Offer is being made in
reliance upon interpretations by the staff of the Securities and Exchange
Commission (the "Commission") set forth in certain no-action letters issued to
third parties in similar transactions. On the basis thereof, the Exchange Notes
issued pursuant to the Exchange Offer may be offered for resale, resold and
otherwise transferred by any holder thereof (other than any such holder that is
(i) an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act or (ii) a broker-dealer that acquired the Old Notes in a
transaction other than part of its market-making or other trading activities)
without compliance with the registration and prospectus delivery requirements of
the Securities Act, provided that such Exchange Notes are acquired in the
ordinary course of such holder's business and such holder has no arrangement or
understanding with any person to participate in the distribution of such
Exchange Notes. However, the Commission has not considered the Exchange Offer in
the context of a no-action letter and there can be no assurance that the staff
of the Commission would make a similar determination with respect to the
Exchange Offer as in such other circumstances.
The undersigned represents that (i) the undersigned is not an "affiliate"
of the Company within the meaning of Rule 405 under the Securities Act, (ii) the
undersigned is not a broker-dealer tendering Old Notes acquired directly from
the Company, (iii) the Exchange Notes are to be acquired by the undersigned in
the ordinary course of business, (iv) the undersigned is not engaging, and does
not intend to engage, in the distribution of the Exchange Notes, (v) the
undersigned has no arrangement or
4
<PAGE> 5
understanding with any person to participate in the distribution of the Exchange
Notes and (vi) the undersigned acknowledges that if the undersigned is deemed to
have participated in the Exchange Offer for the purpose of distributing the
Exchange Notes, it must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale of the Exchange
Notes and cannot rely on the no-action letters referred to above.
The Company has agreed that, subject to the provisions of the Registration
Rights Agreement, the Prospectus may be used by a Participating Broker-Dealer
(as defined below) in connection with resales of Exchange Notes received in
exchange for Old Notes, where such Old Notes were acquired by such Participating
Broker-Dealer for its own account as a result of market-making activities or
other trading activities, for a period ending 60 days after the date of the
Prospectus or, if earlier, when all such Exchange Notes have been disposed of by
such Participating Broker-Dealer.
Each broker-dealer who acquired Old Notes for its own account as a result
of market-making or other trading activities (a "Participating Broker-Dealer"),
by tendering such Old Notes and executing this Letter of Transmittal, agrees
that, upon receipt of notice from the Company of the occurrence of any event or
the discovery of any fact that makes any statement contained or incorporated by
reference in the Prospectus untrue in any material respect or that causes the
Prospectus to omit to state a material fact necessary in order to make the
statements contained or incorporated by reference therein, in the light of the
circumstances under which they were made, not misleading or of the occurrence of
certain other events specified in the Registration Rights Agreement, such
Participating Broker-Dealer will suspend the sale of Exchange Notes pursuant to
the Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to the Participating Broker-Dealer or the Company has
given notice that the sale of the Exchange Notes may be resumed, as the case may
be. If the Company gives such notice to suspend the sale of the Exchange Notes,
the 60-day period referred to above during which Participating Broker-Dealers
are entitled to use the Prospectus in connection with the resale of Exchange
Notes shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the date when
Participating Broker-Dealers shall have received copies of the supplemented or
amended Prospectus necessary to permit resales of the Exchange Notes or to and
including the date on which the Company has given notice that the sale of
Exchange Notes may be resumed, as the case may be.
The undersigned understands that tenders of the Old Notes pursuant to any
one of the procedures described under "The Exchange Offer -- Procedures for
Tendering" in the Prospectus and in the instructions hereto and the acceptance
thereof by the Company will constitute agreement between the undersigned and the
Company in accordance with the terms and subject to the conditions set forth
herein and in the Prospectus.
The undersigned recognizes that, under certain circumstances set forth in
the Prospectus under "The Exchange Offer -- Conditions of the Exchange Offer,"
the Company will not be required to accept for exchange any of the Old Notes
tendered. Old Notes not accepted for exchange or withdrawn will be returned to
the undersigned at the address set forth below unless otherwise indicated in the
box entitled "Special Delivery Instructions" below (or, in the case of Old Notes
tendered by book-entry transfer, credited to an account maintained by the
tendering holder at DTC).
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Notes
(and, if applicable, any substitute certificates representing Old Notes not
exchanged or not accepted for exchange) be issued in the name(s) of the
undersigned and be delivered to the undersigned at the address, or, in the case
of book-entry transfer of Old Notes, be credited to the account at DTC shown
above in the box entitled "Description of Old Notes."
The Exchange Notes will bear interest from March 1, 2000, which is the date
of issuance of the Old Notes surrendered in exchange therefor. Such interest
will be paid with the first interest payment on the
5
<PAGE> 6
Exchange Notes on September 1, 2000 to persons who are registered holders of the
Exchange Notes on August 15, 2000.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Old Notes tendered hereby. All authority
herein conferred or agreed to be conferred in this Letter of Transmittal shall
survive the death or incapacity of the undersigned and any obligation of the
undersigned hereunder shall be binding upon the heirs, executors,
administrators, personal representatives, trustees in bankruptcy, legal
representatives, successors and assigns of the undersigned. This tender may be
withdrawn only in accordance with the procedures set forth in the Prospectus and
in the instructions contained in this Letter of Transmittal.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD NOTES"
ABOVE AND SIGNING THIS LETTER OF TRANSMITTAL AND DELIVERING SUCH OLD NOTES AND
THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT, WILL BE DEEMED TO HAVE
TENDERED THE OLD NOTES AS SET FORTH IN SUCH BOX ABOVE.
6
<PAGE> 7
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
(Complete accompanying Substitute Form W-9)
X
- ------------------------------------------------
X
- ------------------------------------------------
Signature(s) of Owner(s)
Date:
- --------------------------------------, 2000
Date:
- --------------------------------------, 2000
The above lines must be signed by the registered holder(s) exactly as their
name(s) appear(s) on the Old Notes, or by person(s) authorized to become
registered holder(s) by a properly completed bond power from the registered
holder(s), a copy of which must be transmitted with this Letter of Transmittal.
If Old Notes to which this Letter of Transmittal relate are held of record by
two or more joint holders, then all such holders must sign this. If signature is
by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
then please set forth full title. See Instruction 4.
Name(s):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please Type or Print)
Capacity:
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
(Including Zip Code)
Area Code and Telephone Number:
- ---------------------------------------------------------------------
Tax Identification or
Social Security Number(s):
- -----------------------------------------------------------------------------
(Authorized Signature)
SIGNATURE GUARANTEE
(If required by Instruction 4)
Signatures Guaranteed
by an Eligible Institution:
- --------------------------------------------------------------------------------
(Authorized Signature)
- --------------------------------------------------------------------------------
(Title)
- --------------------------------------------------------------------------------
(Name of Firm)
- --------------------------------------------------------------------------------
(Address and Telephone Number)
Dated:
- ------------ , 2000
7
<PAGE> 8
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if certificates for Old Notes not exchanged and/or
Exchange Notes are to be issued in the name of and sent to someone other than
the person or persons whose signature(s) appear(s) on this Letter of Transmittal
above.
Issue Exchange Notes and/or Old Notes to:
Name(s):
(Please Type or Print)
Address:
(Zip Code)
Telephone Number:
Tax Identification or
Social Security Number(s):
(Complete Substitute Form W-9)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 4 AND 5)
To be completed ONLY if certificates for Old Notes not exchanged and/or
Exchange Notes are to be sent to someone other than the person or persons whose
signature(s) appear(s) on this Letter of Transmittal above or to such person or
persons at an address other than shown in the box above entitled "Description of
Old Notes."
Deliver Exchange Notes and/or Old Notes to:
Name(s):
(Please Type or Print)
(Please Type or Print)
Address:
(Zip Code)
Telephone Number:
Tax Identification or
Social Security Number(s):
IMPORTANT: UNLESS GUARANTEED DELIVERY PROCEDURES ARE COMPLIED WITH, THIS
LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (OR, IN THE CASE OF A BOOK-ENTRY
TRANSFER, AN AGENT'S MESSAGE) (TOGETHER WITH THE CERTIFICATE(S) FOR OLD NOTES
AND ANY OTHER DOCUMENTS REQUIRED) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR
TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
8
<PAGE> 9
INSTRUCTIONS TO REGISTERED HOLDER AND/OR BOOK-ENTRY
TRANSFER FACILITY PARTICIPANT FROM BENEFICIAL OWNER
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. PROCEDURES FOR TENDERING.
Only a holder of Old Notes may tender such Old Notes in the Exchange Offer.
To tender in the Exchange Offer, a holder must complete, sign and date this
Letter of Transmittal, or a facsimile thereof, have the signatures thereon
guaranteed if required by this Letter of Transmittal or transmit an Agent's
Message in connection with a book-entry transfer, and mail or otherwise deliver
this Letter of Transmittal or a facsimile hereof or Agent's Message, together
with the Old Notes and any other required documents, to the Exchange Agent prior
to 5:00 p.m., New York City time, on the Expiration Date. To be tendered
effectively, the Old Notes, this Letter of Transmittal or Agent's Message and
other required documents must be completed and received by the Exchange Agent at
the address set forth above prior to 5:00 p.m., New York City time, on the
Expiration Date. Delivery of the Old Notes may be made by book-entry transfer in
accordance with the procedures described below. Confirmation of such book-entry
transfer must be received by the Exchange Agent prior to the Expiration Date.
The term "Agent's Message" means a message, transmitted by a book-entry
transfer facility to, and received by, the Exchange Agent forming a part of a
confirmation of a book-entry, which states that such book-entry transfer
facility has received an express acknowledgment from the participant in such
book-entry transfer facility tendering the Old Notes that such participant has
received and agrees: (i) to participate in the Automated Tender Option Program
("ATOP"); (ii) to be bound by the terms of this Letter of Transmittal; and (iii)
that the Company may enforce such agreement against such participant.
By executing this Letter of Transmittal or Agent's Message, each holder
will make to the Company the representations set forth above in the Prospectus
in the third paragraph under the heading "The Exchange Offer -- Terms of the
Exchange Offer."
The Company shall be deemed to have accepted validly tendered Old Notes
when, as and if the Company has given oral or written notice thereof to the
Exchange Agent. The Exchange Agent will act as agent for the tendering holders
for the purpose of receiving the Exchange Notes from the Company.
The tender by a holder and the acceptance thereof by the Company will
constitute agreement between such holder and the Company in accordance with the
terms and subject to the conditions set forth in the Prospectus and in this
Letter of Transmittal.
THE METHOD OF DELIVERY OF OLD NOTES AND THIS LETTER OF TRANSMITTAL OR
AGENT'S MESSAGE AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE
ELECTION AND SOLE RISK OF THE HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY CONFIRMED BY THE EXCHANGE AGENT. AS AN ALTERNATIVE TO DELIVERY BY MAIL,
HOLDERS MAY WISH TO CONSIDER OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT
BEFORE THE EXPIRATION DATE. NO LETTER OF TRANSMITTAL OR OLD NOTES SHOULD BE SENT
TO THE COMPANY. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS,
COMMERCIAL BANKS, TRUST COMPANIES OR NOMINEES TO EFFECT THE ABOVE TRANSACTIONS
FOR SUCH HOLDERS.
Any beneficial owner whose Old Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact the registered holder promptly and instruct such
registered holder to tender on such beneficial owner's behalf.
Although delivery of the Old Notes may be effected through book-entry
transfer into the Exchange Agent's account at the Book-Entry Transfer Facility,
unless an Agent's Message is received by the Exchange Agent in compliance with
ATOP, an appropriate Letter of Transmittal properly completed and
9
<PAGE> 10
duly executed with any required signature guarantee and all other required
documents must in each case be transmitted to and received or confirmed by the
Exchange Agent at its address set forth below on or prior to the Expiration
Date, or, if the guaranteed delivery procedures described below are complied
with, within the time period provided under such procedures. Delivery of
documents to the Book-Entry Transfer Facility does not constitute delivery to
the Exchange Agent.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance of tendered Old Notes and withdrawal of tendered Old Notes
will be determined by the Company in its sole discretion, which determination
will be final and binding. The Company reserves the absolute right to reject any
and all Old Notes not properly tendered or any Old Notes the Company's
acceptance of which would, in the opinion of the Company or counsel for the
Company, be unlawful. The Company also reserves the right in its sole discretion
to waive any defects, irregularities or conditions of tender as to particular
Old Notes. The Company's interpretation of the terms and conditions of the
Exchange Offer (including the instructions in this Letter of Transmittal) will
be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Notes must be cured within such
time as the Company shall determine.
Although the Company intends to notify holders of defects or irregularities
with respect to tenders of Old Notes, neither the Company, the Exchange Agent
nor any person shall incur any liability for failure to give such notification.
Tender of Old Notes will not be deemed to have been made until such defects or
irregularities have been cured or waived. Any Old Notes received by the Exchange
Agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned by the Exchange
Agent to the tendering holders, unless otherwise provided in this Letter of
Transmittal, as soon as practicable following the Expiration Date.
2. GUARANTEED DELIVERY PROCEDURES.
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available, (ii) who cannot deliver their Old Notes, this Letter of
Transmittal or any other required documents to the Exchange Agent or (iii) who
cannot complete the procedures for book-entry transfer, prior to the Expiration
Date, may effect a tender if:
(a) the tender is made through an Eligible Institution (as defined in
Instruction 4);
(b) prior to the Expiration Date, the Exchange Agent received from
such Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by facsimile transmission, mail or hand delivery)
setting forth the name and address of the holder, the certificate number(s)
of the Old Notes and the principal amount of Old Notes tendered, stating
that the tender is being made thereby and guaranteeing that, within three
New York Stock Exchange trading days after the Expiration Date, this Letter
of Transmittal (or facsimile hereof) (or, in the case of a book-entry
transfer, an Agent's Message) together with the certificate(s) representing
the Old Notes (or a confirmation of book-entry transfer of such Old Notes
into the Exchange Agent's account at the Book-Entry Transfer Facility), and
any other documents required by this Letter of Transmittal will be
deposited by the Eligible Institution with the Exchange Agent; and
(c) the certificate(s) representing all tendered Old Notes in proper
form for transfer (or a confirmation of a book-entry transfer of such Old
Notes into the Exchange Agent's account at the Book-Entry Transfer
Facility), together with this Letter of Transmittal (of facsimile hereof),
properly completed and duly executed, with any required signature
guarantees (or, in the case of a book-entry transfer, an Agent's Message)
and all other documents required by the Letter of Transmittal are received
by the Exchange Agent within three New York Stock Exchange trading days
after the Expiration Date.
Upon request to the Exchange Agent, a Notice of Guaranteed Delivery will be
sent to holders who wish to tender their Old Notes according to the guaranteed
delivery procedures set forth above.
10
<PAGE> 11
3. PARTIAL TENDERS AND WITHDRAWAL RIGHTS.
The Company will issue $1,000 principal amount of Exchange Notes in
exchange for each $1,000 principal amount of outstanding Old Notes accepted in
the Exchange Offer. Holders may tender some or all of their Old Notes pursuant
to the Exchange Offer. However, Old Notes may be tendered only in integral
multiples of $1,000. If less than all the Old Notes evidenced by any Certificate
submitted are to be tendered, fill in the principal amount of Old Notes which
are to be tendered in the box entitled "Principal Amount of Old Notes Tendered
(if less than all)." In such case, new certificate(s) for the remainder of the
Old Notes that were evidenced by your old certificate(s) will only be sent to
the holder of the Old Notes (or, in the case of Old Notes tendered pursuant to
book-entry transfer, will only be credited to the account at DTC maintained by
the holder of the Old Notes) promptly after the Expiration Date. All Old Notes
represented by certificates or subject to a Book-Entry Confirmation delivered to
the Exchange Agent will be deemed to have been tendered unless otherwise
indicated.
Except as otherwise provided in the Prospectus, tenders of Old Notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration
Date.
To withdraw a tender of Old Notes in the Exchange Offer, a telegram, telex,
letter or facsimile transmission notice of withdrawal must be received by the
Exchange Agent at its address set forth herein prior to 5:00 p.m., New York City
time, on the Expiration Date. Any such notice of withdrawal must (i) specify the
name of the person having deposited the Old Notes to be withdrawn (the
"Depositor"), (ii) identify the Old Notes to be withdrawn (including the
certificate number(s) and principal amount of such Old Notes, or, in the case of
Old Notes transferred by book-entry transfer, the name and number of the account
at the Book-Entry Transfer Facility to be credited), (iii) be signed by the
holder in the same manner as the original signature on this Letter of
Transmittal by which such Old Notes were tendered (including any required
signature guarantees) or be accompanied by documents of transfer sufficient to
have the Trustee with respect to the Old Notes register the transfer of such Old
Notes into the name of the person withdrawing the tender and (iv) specify the
name in which any such Old Notes are to be registered, if different from that of
the Depositor. All questions as to the validity, form and eligibility (including
time of receipt) of such notices will be determined by the Company, whose
determination shall be final and binding on all parties. Any Old Notes so
withdrawn will be deemed not to have been validly tendered for purposes of the
Exchange Offer and no Exchange Notes will be issued with respect thereto unless
the Old Notes so withdrawn are validly retendered. Any Old Notes which have been
tendered but that are not accepted for exchange will be returned to the holder
thereof without cost to such holder as soon as practicable after withdrawal,
rejection of tender or termination of the Exchange Offer. Properly withdrawn Old
Notes may be retendered by following one of the procedures described above under
"Procedures for Tendering" at any time prior to the Expiration Date.
4. SIGNATURES ON THIS LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES.
Signatures on this Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by an Eligible Institution (as defined below)
unless the Old Notes tendered pursuant thereto are tendered (i) by a registered
holder who has not completed the box entitled "Special Issuance Instructions" or
"Special Delivery Instructions" on this Letter of Transmittal or (ii) for the
account of an Eligible Institution. In the event that signatures on a Letter of
Transmittal or a notice of withdrawal, as the case may be, are required to be
guaranteed, such guarantee must be by a member firm of the Medallion System (an
"Eligible Institution").
If this Letter of Transmittal is signed by a person other than the
registered holder of any Old Notes listed herein, such Old Notes must be
endorsed or accompanied by a properly completed bond power, signed by such
registered holder as such registered holder's name appears on such Old Notes
with the signature thereon guaranteed by an Eligible Institution.
If this Letter of Transmittal or any Old Notes or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or
11
<PAGE> 12
representative capacity, such persons should so indicate when signing, and
evidence satisfactory to the Company of their authority to so act must be
submitted with this Letter of Transmittal.
5. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering holders of Old Notes should indicate in the applicable box the
name and address or account at DTC to which Exchange Notes issued pursuant to
the Exchange Offer and/or substitute Old Notes for principal amounts not
tendered or not accepted for exchange are to be issued, sent or deposited if
different from the name and address or account of the person signing this Letter
of Transmittal. In the case of issuance in a different name, the employer
identification or social security number of the person named must also be
indicated. If no such instructions are given, any Exchange Notes will be issued
in the name of, and delivered to, the name and address (or account at DTC, in
the case of any tender by book-entry transfer) of the person signing this Letter
of Transmittal, and any Old Notes not accepted for exchange will be returned to
the name and address (or account at DTC, in the case of any tender by book-entry
transfer) of the person signing this Letter of Transmittal.
6. BACKUP FEDERAL INCOME TAX WITHHOLDING AND SUBSTITUTE FORM W-9.
Under the federal income tax laws, payments that may be made by the Company
on account of Exchange Notes issued pursuant to the Exchange Offer may be
subject to backup withholding at the rate of 31%. In order to avoid such backup
withholding, each tendering holder should complete and sign the Substitute Form
W-9 included in this Letter of Transmittal and either (a) provide the correct
taxpayer identification number ("TIN") and certify, under penalties of perjury,
that the TIN provided is correct and that (i) the holder has not been notified
by the Internal Revenue Service (the "IRS") that the holder is subject to backup
withholding as a result of failure to report all interest or dividends or (ii)
the IRS has notified the holder that the holder is no longer subject to backup
withholding; or (b) provide an adequate basis for exemption. If the tendering
holder has not been issued a TIN and has applied for one, or intends to apply
for one in the near future, such holder should write "Applied For" in the space
provided for the TIN in Part I of the Substitute Form W-9, sign and date the
Substitute Form W-9 and sign the Certificate of Payee Awaiting Taxpayer
Identification Number. If "Applied For" is written in Part I, the Company (or
the Paying Agent under the Indenture governing the Exchange Notes) will retain
31% of payments made to the tendering holder during the 60-day period following
the date of the Substitute Form W-9. If the holder furnishes the Exchange Agent
or the Company with its TIN within 60-days after the date of the Substitute Form
W-9, the Company (or the Paying Agent) will remit such amounts retained during
the 60-day period to the holder and no further amounts shall be retained or
withheld from payments made to the holder thereafter. If, however, the holder
has not provided the Exchange Agent or the Company with its TIN within such
60-day period, the Company (or the Paying Agent) will remit such previously
retained amounts to the IRS as backup withholding. In general, if a holder is an
individual, the taxpayer identification number is the Social Security Number of
such individual. If the Exchange Agent or the Company is not provided with the
correct taxpayer identification number, the holder may be subject to a $50
penalty imposed by the IRS. Certain holders (including, among others, all
corporations and certain foreign individuals) are not subject to these backup
withholding and reporting requirements. In order for a foreign individual to
qualify as an exempt recipient, such holder must submit a statement (generally,
IRS Form W-8), signed under penalties of perjury, attesting to that individual's
exempt status. Such statements can be obtained from the Exchange Agent. For
further information concerning backup withholding and instructions for
completing the Substitute Form W-9 (including how to obtain a taxpayer
identification number if you do not have one and how to complete the Substitute
Form W-9 if Old Notes are registered in more than one name), consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
Failure to complete the Substitute Form W-9 will not, by itself, cause Old
Notes to be deemed invalidly tendered, but may require the Company (or the
Paying Agent) to withhold 31% of the amount of any payments made on account of
the Exchange Notes. Backup withholding is not an additional federal income tax.
Rather, the federal income tax liability of a person subject to backup
withholding will be
12
<PAGE> 13
reduced by the amount of tax withheld. If withholding results in an overpayment
of taxes, a refund may be obtained.
7. TRANSFER TAXES.
Holders who tender Old Notes in the Exchange Offer will be required to pay
brokerage commissions or fees or transfer taxes with respect to the exchange of
Old Notes pursuant to the Exchange Offer. The Company will pay charges and
expenses in connection with the Exchange Offer to the extent indicated in the
Registration Rights Agreement. See "The Exchange Offer -- Fees and Expenses" in
the Prospectus.
8. WAIVER OF CONDITIONS.
The Company reserves the absolute right to waive, in whole or in part, any
of the conditions to the Exchange Offer set forth herein or in the Prospectus.
9. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders of Old Notes
or transmittals of this Letter of Transmittal will be accepted. All tendering
holders of Old Notes, by execution of this Letter of Transmittal, shall waive
any right to receive notice of the acceptance of their Old Notes for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of defects or irregularities in any tender, nor shall any of them
incur any liability for failure to give any such notice.
10. INADEQUATE SPACE.
If the space provided herein is inadequate, the aggregate principal amount
of Old Notes being tendered and the certificate number or numbers (if
applicable) should be listed on a separate schedule attached hereto and
separately signed by all parties required to sign this Letter of Transmittal.
11. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES.
If any certificate has been lost, mutilated, destroyed or stolen, the
holder should promptly notify Chase Bank of Texas, National Association, at 1201
Main Street, 18th Floor, Dallas, Texas 75202, telephone number (214) 672-5746.
The holder will then be instructed as to the steps that must be taken to replace
the certificate. This Letter of Transmittal and related documents cannot be
processed until the Old Notes have been replaced.
12. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus and this Letter of Transmittal, may be
directed to the Exchange Agent at the address and telephone number indicated
above.
13. VALIDITY OF TENDERS.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of tendered Old Notes will be determined by the Company,
in its sole discretion, which determination will be final and binding. The
Company reserves the right to reject any and all Old Notes not validly tendered
or any Old Notes, the Company's acceptance of which may, in the opinion of the
Company or counsel to the Company, be unlawful. The Company also reserves the
right to waive any conditions of the Exchange Offer or defects or irregularities
in tenders of Old Notes as to any ineligibility of any holder who seeks to
tender Old Notes in the Exchange Offer, whether or not similar conditions or
irregularities are waived in the case of other holders. The interpretation of
the terms and conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) by the Company shall be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Old Notes must be cured within such time as the
Company shall determine. The Company will use reasonable efforts to give
13
<PAGE> 14
notification of defects or irregularities with respect to tenders of Old Notes,
but neither the Company nor the Exchange Agent shall incur any liability for
failure to give such notification.
14. ACCEPTANCE OF TENDERED OLD NOTES AND ISSUANCE OF EXCHANGE NOTES; RETURN OF
OLD NOTES.
Subject to the terms and conditions of the Exchange Offer, the Company will
accept for exchange all validly tendered Old Notes as soon as practicable after
the Expiration Date and will issue Exchange Notes therefor as soon as
practicable thereafter. For purposes of the Exchange Offer, the Company shall be
deemed to have accepted tendered Old Notes when, as and if the Company has given
written and oral notice thereof to the Exchange Agent. If any tendered Old Notes
are not exchanged pursuant to the Exchange Offer for any reason, such
unexchanged Old Notes will be returned, without expense, to the name and address
shown above or, if Old Notes have been tendered by book-entry transfer, to the
account at DTC shown above, or at a different address or account at DTC as may
be indicated under "Special Delivery Instructions."
14
<PAGE> 15
TO BE COMPLETED BY ALL TENDERING HOLDERS
(SEE INSTRUCTION 6)
PAYOR'S NAME:
- ------------------------------------------------------
<TABLE>
<S> <C> <C>
- ----------------------------------------------------------------------------------------------------------------
PART I -- Taxpayer Identification Number
SUBSTITUTE -----------------------------
Enter your taxpayer identification number Social Security Number
FORM W-9 in the appropriate box. For most
Department of the Treasury individuals, this is your Social Security OR
Internal Revenue Service Number. If you do not have a number, see
how to obtain a "TIN" in the enclosed -----------------------------
Guidelines. Employer Identification Number
NOTE: If the account is in more than one
name, see the chart on page 2 of the
enclosed Guidelines to determine what
number to give.
-----------------------------------------------------------------------------
PART II -- For Payees Exempt from Backup Withholding (see enclosed
Guidelines)
-----------------------------------------------------------------------------
CERTIFICATION -- UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
Payor's Request for (1) the number shown on this form is my correct Taxpayer Identification
Taxpayer Identification Number (or I am waiting for a number to be issued to me), and
Number ("TIN") and
Certification (2) I am not subject to backup withholding either because I have not been
notified by the Internal Revenue Service (the "IRS") that I am subject to
backup withholding as a result of a failure to report all interest or
dividends or the IRS has notified me that I am no longer subject to
backup withholding.
SIGNATURE ----------------------------------- DATE
--------------------------
- ----------------------------------------------------------------------------------------------------------------
CERTIFICATE GUIDELINES -- You must cross out Item (2) of the above certification if you have been notified by
the IRS that you are subject to backup withholding because of under reporting of interest or dividends on your
tax return. However, if after being notified by the IRS that you were subject to backup withholding, you
received another notification from the IRS that you are no longer subject to backup withholding, do not cross
out Item (2).
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
CERTIFICATION OF PAYEE AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify, under penalties of perjury, that a Taxpayer Identification
Number has not been issued to me and that I mailed or delivered an application
to receive a Taxpayer Identification Number to the appropriate Internal Revenue
Service Center or Social Security Administration Office (or I intend to mail or
deliver an application in the near future). I understand that if I do not
provide a Taxpayer Identification Number to the payor, 31% of all payments made
to me on account of the Exchange Notes shall be retained until I provide a
Taxpayer Identification Number to the payor and that, if I do not provide my
Taxpayer Identification Number within 60 days, such retained amounts shall be
remitted to the Internal Revenue Service as a backup withholding and 31% of all
reportable payments made to me thereafter will be withheld and remitted to the
Internal Revenue Service until I provide a Taxpayer Identification Number.
SIGNATURE
----------------------------------- DATE
-----------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU ON ACCOUNT OF THE EXCHANGE NOTES.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
15
<PAGE> 1
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF ANY AND ALL OUTSTANDING
7.75% NOTES DUE 2005
IN EXCHANGE FOR
7.75% NOTES DUE 2005, SERIES B,
OF
ONEOK, INC.
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used by registered holders of outstanding 7.75% Notes due 2005
(the "Old Notes") of ONEOK, Inc., an Oklahoma corporation (the "Company"), who
wish to tender their Old Notes for an equal principal amount of new 7.75% Notes
due 2005, Series B, of the Company (the "Exchange Notes") that have been
registered under the Securities Act of 1933 and (i) whose Old Notes are not
immediately available, (ii) who cannot deliver their Old Notes, the duly
completed and executed Letter of Transmittal or any other required documents to
Chase Bank of Texas, National Association, as exchange agent (the "Exchange
Agent"), or (iii) who cannot complete the procedures for book-entry transfer
prior to 5:00 P.M., New York City time on the Expiration Date.
This Notice of Guaranteed Delivery may be delivered by facsimile
transmission, mail or hand delivery (receipt confirmed by telephone and an
original delivered by guaranteed overnight delivery), to the Exchange Agent. See
"The Exchange Offer -- Guaranteed Delivery Procedures" in the Prospectus dated
, 2000, as the same may be amended or supplemented from time to time
(the "Prospectus"). The Company has the right to reject a tender of Old Notes
made pursuant to the guaranteed delivery procedures unless the registered holder
using the guaranteed delivery procedure submits either (a) the Old Notes
tendered thereby, in proper form for transfer, or (b) confirmation of book-entry
transfer set forth in the Prospectus, in either case together with one or more
properly completed and duly executed Letter(s) of Transmittal (or facsimile
thereof) (or, in the case of a book-entry transfer, an Agent's Message) and any
other documents required by the Letter of Transmittal within three New York
Stock Exchange trading days after the Expiration Date.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
<TABLE>
<S> <C> <C>
By Registered or Certified Facsimile Transmission Number By Hand or Overnight Delivery:
Mail: (Eligible Institutions Only)
(214) 672-5746
Chase Bank of Texas,
Chase Bank of Texas, National Association
National Association Confirm by Telephone: 1201 Main Street
1201 Main Street or For Information Call: 18th Floor
18th Floor (214) 672-5687 Dallas, Texas 75202
Dallas, Texas 75202 Attn.: Frank Ivins,
Attn.: Frank Ivins, Personal and Confidential
Personal and Confidential
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE VALID
DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE> 2
Ladies and Gentlemen:
Upon the terms and subject to the conditions set forth in the Prospectus
and the related Letter of Transmittal (which together constitute the "Exchange
Offer"), receipt of which is hereby acknowledged, the undersigned hereby tenders
to the Company the aggregate principal amount of the Old Notes set forth below,
pursuant to the guaranteed delivery procedures set forth in the Prospectus under
the caption "The Exchange Offer -- Guaranteed Delivery Procedures" and in
Instruction 2 to the Letter of Transmittal.
2
<PAGE> 3
DESCRIPTION OF SECURITIES TENDERED
<TABLE>
<S> <C> <C> <C>
Name and address of Certificate Aggregate Principal Principal Amount of
registered holder as it Number(s) of Old Amount Represented Old Notes Tendered
appears on the Old Notes Tendered by Old Notes*
Notes (Please print)
- ------------------------ ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------ ------------------------
- ------------------------ ------------------------ ------------------------ ------------------------
</TABLE>
* Must be in denominations of a principal amount of U.S. $1,000 and
integral multiples thereof.
If the Old Notes will be tendered by book-entry transfer, provide the
following information:
DTC Account Number: ____________
All authority herein conferred or agreed to be conferred shall survive the death
or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
PLEASE SIGN HERE
<TABLE>
<S> <C>
X --------------------------------------------------- Date: ---------------------------------------- , 2000
X --------------------------------------------------- Date: ----------------------------------------, 2000
Signature(s) of Owner(s) or Authorized Signatory
</TABLE>
Area Code and Telephone Number:
- --------------------------------------------------------------------------
Must be signed by the holder(s) of the Old Notes as their name(s) appear(s) on
certificates of the Old Notes or on a security position listing, or by person(s)
authorized to become registered holder(s) by endorsement and documents
transmitted with this Notice of Guaranteed Delivery.
3
<PAGE> 4
If a signature or signatures on the previous page is by a trustee, executor,
administrator, guardian, attorney-in-fact, officer or other person acting in a
fiduciary or representative capacity, such person must set forth his or her full
title below.
Please print name(s) and address(es)
Name(s):
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
Capacity:
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
Address(es):
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
THE ACCOMPANYING GUARANTEE MUST BE COMPLETED
4
<PAGE> 5
THIS GUARANTEE MUST BE COMPLETED
GUARANTEE OF DELIVERY
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under
the Securities Exchange Act of 1934 as an "eligible guarantor institution,"
hereby guarantees to deliver to the Exchange Agent, at one of its addresses set
forth above, either (a) the Old Notes tendered hereby, in proper form for
transfer, or (b) confirmation of the book-entry transfer of such Old Notes into
the Exchange Agent's account at The Depository Trust Company maintained for such
purpose, pursuant to the procedures for book-entry transfer set forth in the
Prospectus, in either case together with one or more properly completed and duly
executed Letter(s) of Transmittal (or facsimile thereof) (or, in the case of a
book-entry transfer, an Agent's message) and any other documents required by the
Letter of Transmittal within three New York Stock Exchange trading days after
the Expiration Date.
The undersigned acknowledges that it must deliver the Letter(s) of
Transmittal and the Old Notes tendered hereby to the Exchange Agent within the
time period set forth above and that failure to do so could result in a
financial loss to the undersigned.
Name of Firm:
- -------------------------------------
Address:
- --------------------------------------------
- ------------------------------------------------------
(zip code)
Area Code and
Telephone Number:
- --------------------------------
- ------------------------------------------------------
(Authorized Signature)
Title:
- -----------------------------------------------
Name:
- ----------------------------------------------
(Please type or print)
Date:
- -----------------------------------------------
NOTE: DO NOT SEND CERTIFICATES FOR OLD NOTES WITH THIS FORM. CERTIFICATES FOR
OLD NOTES SHOULD ONLY BE SENT WITH YOUR LETTER OF TRANSMITTAL.
5
<PAGE> 1
EXHIBIT 99.3
OFFER TO EXCHANGE
7.75% NOTES DUE 2005, SERIES B,
FOR ANY AND ALL OUTSTANDING
7.75% NOTES DUE 2005
OF
ONEOK, INC.
To The Depository Trust Company Participants:
We are enclosing herewith the materials listed below relating to the offer
by ONEOK, Inc., an Oklahoma corporation (the "Company"), to exchange up to
$350,000,000 aggregate principal amount of its 7.75% Notes due 2005, Series B
(the "Exchange Notes"), pursuant to an offering registered under the Securities
Act of 1933 (the "Securities Act") for an equal principal amount of 7.75% Notes
due 2005 (the "Old Notes") upon the terms and subject to the conditions set
forth in the Prospectus dated , 2000 (as amended or supplemented from
time to time, the "Prospectus") of the Company and the related Letter of
Transmittal (as amended or supplemented from time to time, the "Letter of
Transmittal"), which together constitute the Company's offer (the "Exchange
Offer").
Enclosed herewith are copies of the following documents:
1. Prospectus dated , 2000;
2. Letter of Transmittal;
3. Notice of Guaranteed Delivery;
4. Letter that may be sent to your clients for whose account you hold
Old Notes in your name or in the name of your nominee, to accompany
the instruction form referred to above, for obtaining such client's
instruction with regard to the Exchange Offer; and
5. Instructions to Registered Holder and/or Book-Entry Transfer
Participant from Beneficial Owner.
WE URGE YOU TO CONTACT YOUR CLIENTS PROMPTLY. PLEASE NOTE THAT THE EXCHANGE
OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2000,
UNLESS EXTENDED.
The Exchange Offer is not conditioned upon any minimum number of Old Notes
being tendered.
To tender in the Exchange Offer, a holder must cause to be transmitted an
Agent's Message (as defined below) in connection with a book-entry transfer and
mail or otherwise deliver the Agent's Message, together with any other required
documents, to Chase Bank of Texas, National Association (the "Exchange Agent"),
prior to 5:00 p.m., New York City time, on the Expiration Date. To be tendered
effectively, the Agent's Message and other required documents must be completed
and received by the Exchange Agent at the address set forth in the Letter of
Transmittal prior to 5:00 p.m., New York City time, on the Expiration Date.
Confirmation of book-entry transfer must be received by the Exchange Agent prior
to the Expiration Date.
The term "Agent's Message" means a message, transmitted by a book-entry
transfer facility to, and received by, the Exchange Agent forming a part of a
confirmation of a book-entry, which states that such book-entry transfer
facility has received an express acknowledgment from the participant in such
book-entry transfer facility tendering the Old Notes that such participant has
received and agrees: (i) to participate in the Automated Tender Option Program
("ATOP"); (ii) to be bound by the terms of the Letter of Transmittal; and (iii)
that the Company may enforce such agreement against such participant.
Pursuant to the Letter of Transmittal, each holder will represent to the
Company that (i) neither the holder nor any other person receiving the Exchange
Notes is an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act, (ii) the holder is not a broker-dealer tendering Old Notes
<PAGE> 2
acquired directly from the Company, (iii) the Exchange Notes are to be acquired
by the holder or the person receiving such Exchange Notes, whether or not such
person is the holder, in the ordinary course of business, (iv) the holder or any
such other person (other than a broker-dealer referred to in the next sentence)
is not engaging, and does not intend to engage, in the distribution of the
Exchange Notes, (v) the holder or any such other person has no arrangement or
understanding with any person to participate in the distribution of the Exchange
Notes and (vi) the holder or any such other person acknowledges that if such
holder or any other person is deemed to have participated in the Exchange Offer
for the purpose of distributing the Exchange Notes, it must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale of the Exchange Notes and cannot rely on the
interpretations by the staff of the Securities and Exchange Commission set forth
in certain no-action letters issued to third parties in similar transactions and
on which the Company is relying in making the Exchange Offer. Each participating
broker-dealer that receives Exchange Notes for its own account in exchange for
Old Notes must acknowledge that it (i) acquired the Old Notes for its own
account as a result of market-making activities or other trading activities,
(ii) has not entered into any arrangement or understanding with the Company or
any "affiliate" of the Company (within the meaning of Rule 405 under the
Securities Act) to distribute the Exchange Notes to be received in the Exchange
Offer and (iii) will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Notes.
The enclosed Instruction to Registered Holder and/or Book-Entry Transfer
Participant from Owner contains an authorization by the beneficial owners of the
Old Notes for you to make the foregoing representations.
The Company will not pay any fee or commission to any broker or dealer or
to any other persons (other than the Exchange Agent) in connection with the
solicitation of tenders of Old Notes pursuant to the Exchange Offer. The Company
will not pay or cause to be paid any transfer taxes payable on the transfer of
Old Notes to it.
Additional copies of the enclosed material may be obtained from Chase Bank
of Texas, National Association, 1201 Main Street, 18th Floor, Dallas, Texas
75202, Attention: Frank Ivins, Personal and Confidential.
Very truly yours,
ONEOK, Inc.
By:
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
THE AGENT OF ONEOK, INC. OR CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, OR
AUTHORIZE YOU TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON THEIR BEHALF IN
CONNECTION WITH THE EXCHANGE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH
AND THE STATEMENTS CONTAINED THEREIN.
2
<PAGE> 3
INSTRUCTION TO
REGISTERED HOLDER AND/OR BOOK-ENTRY
TRANSFER PARTICIPANT FROM OWNER
OF
ONEOK, INC.
7.75% NOTES DUE 2005
To Registered Holder and/or Participant of the Book-Entry Transfer Facility:
The undersigned hereby acknowledges receipt of the Prospectus dated
, 2000 (the "Prospectus") of ONEOK, Inc. (the "Company") and a
related Letter of Transmittal (which together constitute the "Exchange Offer").
Capitalized terms not defined herein have the meanings assigned to such terms in
the Prospectus.
This will instruct you, the book-entry transfer facility participant, as to
the action to be taken by you relating to the Exchange Offer with respect to the
Old Notes held by you for the account of the undersigned.
The aggregate face amount of the Old Notes held by you for the account of
the undersigned is (fill in amount):
$ of the 7.75% Notes Due 2005.
With respect to the Exchange Offer, the undersigned hereby instructs you
(check appropriate statement):
A. To TENDER the following Old Notes held by you for the
account of the undersigned (insert principal amount of Old Notes to be
tendered):
$ (1) of the 7.75% Notes Due 2005, and not to tender other Old
Notes, if any, held by you for the account of the undersigned;
OR
B. NOT to tender any Old Notes held by you for the account of the
undersigned.
If the undersigned instructs you to tender the Old Notes held by you for
the account of the undersigned, it is understood that you are authorized to
make, on behalf of the undersigned (and the undersigned, by its signature below,
hereby makes to you), the representations and warranties contained in the Letter
of Transmittal that are to be made with respect to the undersigned as a
beneficial owner, including but not limited to the representations, that
pursuant to the Letter of Transmittal, each holder will represent to the Company
that (i) neither the holder nor any other person receiving the Exchange Notes is
an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act, (ii) the holder is not a broker-dealer tendering Old Notes
acquired directly from the Company, (iii) the Exchange Notes are to be acquired
by the holder or the person receiving such Exchange Notes, whether or not such
person is the holder, in the ordinary course of business, (iv) the holder or any
such other person (other than a broker-dealer referred to in the next sentence)
is not engaging and does not intend to engage, in distribution of the Exchange
Notes, (v) the holder or any such other person has no arrangement or
understanding with any person to participate in the distribution of the Exchange
Notes and (vi) the holder or any such other person acknowledges that if such
holder or any other person participates in the Exchange Offer for the purpose of
distributing the Exchange Notes it must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
resale of the Exchange Notes and cannot rely on the interpretations by the staff
of the Securities and Exchange Commission set forth in certain no-action letters
issued to third parties in similar transactions and on which the Company is
relying in making the Exchange Offer. Each participating broker-dealer that
receives Exchange Notes for its own account in exchange for Old Notes must
acknowledge that it (i) acquired the Old Notes for its own account as a result
of market-making activities or other trading activities, (ii) has not entered
into
- ---------------
(1) Must be in integral multiples of $1,000.
<PAGE> 4
any arrangement or understanding with the Company or any "affiliate" of the
Company (within the meaning of Rule 405 under the Securities Act) to distribute
the Exchange Notes to be received in the Exchange Offer and (iii) will deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes. By acknowledging that it will deliver and by
delivering a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
Name of beneficial owner(s): ------------------------------
Signature(s): ------------------------------------------------------------------
Name(s) (please print): ----------------------------------------------
Address: -----------------------------------------------------------------------
(zip code)
Telephone Number: ----------------------------------------------------
(area code)
Taxpayer Identification or Social Security Number: ---------
Date: --------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 99.4
OFFER TO EXCHANGE
7.75% NOTES DUE 2005, SERIES B,
FOR ANY AND ALL OUTSTANDING
7.75% NOTES DUE 2005
OF
ONEOK, INC.
To Our Clients:
We are enclosing herewith a Prospectus dated , 2000 (as
amended and supplemented from time to time, the "Prospectus") of ONEOK, Inc., an
Oklahoma corporation (the "Company"), and the related Letter of Transmittal (as
amended and supplemented from time to time, the "Letter of Transmittal") which
together constitute the offer of the Company (the "Exchange Offer") to exchange
$1,000 principal amount of its 7.75% Notes due 2005, Series B (the "Exchange
Notes"), registered under the Securities Act of 1933 (the "Securities Act"),
pursuant to a registration statement of which the Prospectus is a part, for each
$1,000 principal amount of its outstanding 7.75% Notes due 2005 (the "Old
Notes"), of which $350,000,000 aggregate principal amount is outstanding.
PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 2000, UNLESS EXTENDED.
The Exchange Offer is not conditioned upon any minimum number of Old Notes
being tendered.
We are participants in the book-entry transfer facility of Old Notes held
by us for your account. A tender of such Old Notes can be made only by us as a
participant in the book-entry transfer facility and pursuant to your
instructions. The Letter of Transmittal is furnished to you for your information
only and cannot be used by you to tender Old Notes held by us for your account.
We request instructions as to whether you wish to tender any or all of the
Old Notes held by us for your account pursuant to the terms and conditions of
the Exchange Offer. We also request that you confirm that we may on your behalf
make the representations contained in the Letter of Transmittal that are to be
made with respect to you as beneficial owner.
Pursuant to the Letter of Transmittal, each holder will represent to the
Company that (i) neither the holder nor any other person receiving the Exchange
Notes is an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act, (ii) the holder is not a broker-dealer tendering Old Notes
acquired directly from the Company, (iii) the Exchange Notes are to be acquired
by the holder or the person receiving such Exchange Notes, whether or not such
person is the holder, in the ordinary course of business, (iv) the holder or any
such other person (other than a broker-dealer referred to in the next paragraph)
is not engaging, and does not intend to engage, in the distribution of the
Exchange Notes, (v) the holder or any such other person has no arrangement or
understanding with any person to participate in the distribution of the Exchange
Notes and (vi) the holder or any such other person acknowledges that if such
holder or any other person is deemed to have participated in the Exchange Offer
for the purpose of distributing the Exchange Notes, it must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale of the Exchange Notes and cannot rely on the
interpretations by the staff of the Securities and Exchange Commission set forth
in certain no-action letters issued to third parties in similar transactions and
on which the Company is relying in making the Exchange Offer.
Each participating broker-dealer that receives Exchange Notes for its own
account in exchange for Old Notes must acknowledge that it (i) acquired the Old
Notes for its own account as a result of market-making activities or other
trading activities, (ii) has not entered into any arrangement or understanding
with the Company or any "affiliate" of the Company (within the meaning of Rule
405 under the Securities Act) to distribute the Exchange Notes to be received in
the Exchange Offer and (iii) will deliver a prospectus meeting the requirements
of the Securities Act in connection with any resale of such Exchange Notes. By
acknowledging that it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Notes, such
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
Very truly yours,
