DELAWARE 4610 76-0380342
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
|
JOSEPH LISTENGART
ONE ALLEN CENTER, SUITE 1000 ONE ALLEN CENTER, SUITE 1000
500 DALLAS STREET 500 DALLAS STREET
HOUSTON, TEXAS 77002 HOUSTON, TEXAS 77002
(713) 369-9000 (713) 369-9000
(Address, including zip code, and telephone (Address, including zip code, and telephone
number, including area code, of registrant's number, including area code, of registrant's
principal executive offices) agent for service of process)
|
If the securities being registered on this Form are to be offered in connection with the formation of a holding company or there is compliance with General Instruction G, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
-----------------------------------------------------------------------------------------------------------------
5.35% Senior Notes due
2007....................... $250,000,000 100% $250,000,000 $23,000
-----------------------------------------------------------------------------------------------------------------
7.30% Senior Notes due
2033....................... $500,000,000 100% $500,000,000 $46,000
-----------------------------------------------------------------------------------------------------------------
Total........................ $69,000
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
|
The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statements filed with the Securities and Exchange Commission are effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED OCTOBER 4, 2002.
$750,000,000
KINDER MORGAN ENERGY PARTNERS, L.P.
OFFER TO EXCHANGE
5.35% EXCHANGE SENIOR NOTES DUE 2007
FOR ANY AND ALL OUTSTANDING 5.35% SENIOR NOTES DUE 2007
AND
OFFER TO EXCHANGE
7.30% EXCHANGE SENIOR NOTES DUE 2033
FOR ANY AND ALL OUTSTANDING 7.30% SENIOR NOTES DUE 2033
This prospectus, and accompanying letters of transmittal, relate to our proposed exchange offers. In one exchange offer, we are offering to exchange up to $250,000,000 aggregate principal amount of new 5.35% senior notes due 2002, which we call the 5.35% exchange notes and which will be freely transferable, for any and all outstanding 5.35% senior notes due 2007, which we call the original 5.35% notes, previously issued in a private offering and which have certain transfer restrictions. In the other exchange offer, we are offering to exchange up to $500,000,000 aggregate principal amount of new 7.30% senior notes due 2033, which we call the 7.30% exchange notes and which will be freely transferable, for any and all outstanding 7.30% senior notes due 2033, which we call the original 7.30% notes, previously issued in private offerings and which have certain transfer restrictions.
In this prospectus we sometimes refer to the original 5.35% notes and the original 7.30% notes collectively as the original notes, the 5.35% exchange notes and the 7.30% exchange notes collectively as the exchange notes and the exchange notes and the original notes collectively as the notes.
- Each exchange offer expires at 5:00 p.m., New York City time, on , 2002, unless extended.
- The terms of each series of exchange notes are substantially identical to the terms of the original notes of the same series, except that the exchange notes will be freely transferable and issued free of any covenants regarding exchange and registration rights.
- All original notes of each series that are validly tendered and not validly withdrawn will be exchanged.
- Tenders of original notes of each series may be withdrawn at any time prior to expiration of the exchange offer relating to that series of original notes.
- We will not receive any proceeds from the exchange offers.
- The exchange of original notes for exchange notes of the same series will not be a taxable event for United States federal income tax purposes.
- Holders of original notes do not have any appraisal or dissenters' rights in connection with the exchange offers.
- Original notes not exchanged in the exchange offers will remain outstanding and be entitled to the benefits of the indenture, but except under certain circumstances, will have no further exchange or registration rights under the registration rights agreements discussed in this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the exchange notes or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
We may amend or supplement this prospectus from time to time by filing amendments or supplements as required. You should read this entire prospectus, the accompanying letters of transmittal and related documents and any amendments or supplements to this prospectus carefully before making your investment decision.
The date of this prospectus is , 2002.
TABLE OF CONTENTS
PAGE
----
Summary..................................................... 1
Risk Factors................................................ 6
The Exchange Offers......................................... 9
Use of Proceeds............................................. 20
Summary Historical Financial Data........................... 21
Consolidated Ratios of Earnings to Fixed Charges............ 23
Capitalization.............................................. 24
Description of Notes........................................ 25
Book-Entry, Delivery and Form............................... 34
Material Federal Income Tax Considerations.................. 36
Validity of the Exchange Notes.............................. 41
Experts..................................................... 41
Where You Can Find More Information......................... 42
Information Regarding Forward-Looking Statements............ 43
Annex A -- Letter of Transmittal for 5.35% Notes............ A-1
Annex B -- Letter of Transmittal for 7.30% Notes............ B-1
|
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS OR TO WHICH WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION. THIS PROSPECTUS MAY ONLY BE USED WHERE IT IS LEGAL TO SELL THE NOTES. YOU SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED IN OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THOSE DOCUMENTS. OUR BUSINESS, FINANCIAL CONDITION, RESULTS OF OPERATIONS AND PROSPECTS MAY HAVE CHANGED SINCE THOSE DATES.
SUMMARY
This summary highlights information appearing in other sections of this prospectus. It may not contain all of the information that is important to you. This prospectus includes or incorporates by reference information about the notes, the exchange offers, our business and our financial and operating data, and certain financial information about our general partner. Before making an investment decision, we encourage you to read the entire prospectus carefully, including the "Risk Factors" section and the financial statements and the footnotes to those statements, which are incorporated by reference in this prospectus.
KINDER MORGAN ENERGY PARTNERS, L.P.
BUSINESS DESCRIPTION
We are a limited partnership, formed in Delaware in August 1992, with our common units traded on the NYSE under the symbol "KMP." We are the largest publicly-traded pipeline limited partnership in the United States in terms of market capitalization and the largest independent refined petroleum products pipeline system in the United States in terms of volumes delivered. Since February 1997, our operations have experienced significant growth, and our net income has increased from $17.7 million, for the year ending December 31, 1997, to $442.3 million, for the year ending December 31, 2001. Our operations are grouped into the following business segments:
- Products Pipelines: Delivers gasoline, diesel fuel, jet fuel and natural gas liquids to various markets on over 10,000 miles of products pipelines and over 32 associated terminals;
- Natural Gas Pipelines: Transports, stores and sells natural gas and has over 13,000 miles of natural gas transmission pipelines;
- CO(2) Pipelines: Transports by pipeline and markets carbon dioxide, commonly called CO(2), to oil fields which use CO(2) to increase production of oil, and owns interests in four oil fields in West Texas; and
- Terminals: Composed of 44 owned or operated liquid and bulk terminal facilities, including 11 terminals that handle refined petroleum products, chemicals, and other liquid products, four terminals that handle coal, eight terminals that handle petroleum coke and 21 bulk terminal facilities that handle various other bulk products.
BUSINESS STRATEGY
Our objective is to grow by:
- providing, for a fee, transportation, storage and handling services which are core to the energy infrastructure of growing markets;
- increasing utilization of assets while controlling costs;
- leveraging economies of scale from incremental acquisitions; and
- maximizing the benefits of our financial structure.
We primarily transport and/or handle products for a fee and generally are not engaged in the unmatched purchase and resale of commodity products. As a result, we do not face significant risks relating directly to movements in commodity prices.
Generally, as utilization of our pipelines and terminals increases, our fee-based revenues increase. Increases in utilization are principally driven by increases in demand for gasoline, jet fuel, natural gas and other energy products transported and handled by us. Increases in demand for these products are generally driven by demographic growth in markets we serve, including the rapidly growing western and southeastern United States.
RECENT DEVELOPMENTS
On February 28, 2002, we closed the acquisition of Tejas Gas, LLC, a wholly owned subsidiary of InterGen (North America), Inc., for approximately $750 million. Tejas Gas, LLC owns a 3,400 mile intrastate natural gas pipeline system with 16 compressor stations, two natural gas storage facilities with approximately 3.5 billion cubic feet per day of working gas capacity and three natural gas processing treating facilities.
On July 17, 2002, we reported net income for the quarter ended June 30, 2002 of $144.5 million, an increase of 39% over the net income of $104.2 million in the second quarter of 2001. Further, we reported net income for the six months ended June 30, 2002 of $286.0 million, an increase of 39% over the net income of $205.9 million for the first six months of 2001. We also announced an increase in our cash distribution to $0.61 per common unit for the second quarter of 2002 from $0.59 for the first quarter of 2002.
Kinder Morgan Management, LLC is a limited partner in us and, pursuant to a delegation of control agreement, manages and controls our business and affairs, and the business and affairs of our operating limited partnerships and subsidiaries. On August 6, 2002, Kinder Morgan Management closed the public offering of 12,478,900 of its shares (including over-allotment shares) for net proceeds of approximately $328.6 million. It used all of the net proceeds from that offering to purchase from us equity securities which we call i-units. We, in turn, used all of the net proceeds from the sale of i-units to Kinder Morgan Management to reduce short-term debt incurred principally to finance acquisitions and expansion projects undertaken since the middle of 2001.
OFFICES
The address of our principal executive offices is One Allen Center, Suite 1000, 500 Dallas Street, Houston, Texas 77002, and our telephone number at this address is (713) 369-9000.
THE EXCHANGE OFFERS
Registration Rights
Agreement..................... We sold $250 million in aggregate principal
amount of original 5.35% notes and $500 million
in aggregate principal amount of original 7.30%
notes to qualified institutional buyers as
defined in Rule 144A under the Securities Act
and outside the United States in accordance
with Regulation S under the Securities Act
through Salomon Smith Barney Inc., J.P. Morgan
Securities Inc., Wachovia Securities, Inc., RBC
Dominion Securities Corporation, SunTrust
Capital Markets, Inc., Banc One Capital
Markets, Inc. and Credit Lyonnais Securities
(USA) Inc., as initial purchasers. The initial
purchasers and we entered into registration
rights agreements which grant the holders of
the original notes certain exchange and
registration rights. The exchange offers made
hereby are intended to satisfy such exchange
rights.
The Exchange Offers........... $1,000 principal amount of 5.35% exchange notes
in exchange for each $1,000 principal amount of
original 5.35% notes and $1,000 principal
amount of 7.30% exchange notes in exchange for
each $1,000 principal amount of original 7.30%
notes. As of the date hereof, $750 million
aggregate principal amount of the original
notes are outstanding. We will issue each
series of exchange notes to holders on the
earliest practicable date following the
applicable Expiration Date.
Resales of the Exchange
Notes......................... Based on an interpretation by the staff of the
SEC set forth in no-action letters issued to
third parties, we believe that, except as
described below, the exchange notes issued
pursuant to the exchange offers may be offered
for resale, resold and otherwise transferred by
a holder thereof, other than any such holder
that is an "affiliate" of ours within the
meaning of Rule 405 under the Securities Act,
without compliance with the registration and
prospectus delivery provisions of the
Securities Act, provided that such exchange
notes are acquired in the ordinary course of
such holder's business and that such holder has
no arrangement or understanding with any person
to participate in the distribution of such
exchange notes.
Each broker-dealer that receives exchange notes
pursuant to an exchange offer in exchange for
original notes of that series that such
broker-dealer acquired for its own account as a
result of market-making activities or other
trading activities, other than original notes
acquired directly from us or our affiliates,
must acknowledge that it will deliver a
prospectus in connection with any resale of
such exchange notes. Each letter of transmittal
states that by so acknowledging 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.
If we receive certain notices in a letter of
transmittal, this prospectus, as it may be
amended or supplemented from time to time, may
be used for the appropriate time period by a
broker-dealer in connection with resales of
exchange notes received in exchange for
original notes where such original notes were
3
|
acquired by such broker-dealer as a result of
market-making activities or other trading
activities and not acquired directly from us.
We have agreed that, if we receive certain
notices in a letter of transmittal, we will
make this prospectus available to any such
broker-dealer for use in connection with any
such resale.
Each letter of transmittal requires
broker-dealers tendering original notes in an
exchange offer to indicate whether such
broker-dealer acquired the original notes for
its own account as a result of market-making
activities or other trading activities, other
than original notes acquired directly from us
or any of our affiliates. If no broker-dealer
indicates that the original notes were so
acquired, we have no obligation under the
registration rights agreement to maintain the
effectiveness of the registration statement
past the consummation of the exchange offer or
to allow the use of this prospectus for such
resales. See "The Exchange Offers --
Registration Rights" and "-- Resale of the
Exchange Notes; Plan of Distribution."
Expiration Date............... Each exchange offer expires at 5:00 p.m., New
York City time, on , 2002, unless we
extend an exchange offer in our sole
discretion, in which case the term "Expiration
Date" means the latest date and time to which
that exchange offer is extended.
Conditions to the Exchange
Offers........................ Each exchange offer is subject to certain
conditions which we may waive. See "The
Exchange Offers -- Conditions to the Exchange
Offers."
Procedures for Tendering the
Original Notes................ Each holder of original notes wishing to accept
an exchange offer must complete, sign and date
the accompanying applicable letter of
transmittal in accordance with the instructions
contained in this prospectus and in the letter
of transmittal, and mail or otherwise deliver
such letter of transmittal together with the
original notes and any other required
documentation to the exchange agent identified
below under "Exchange Agent" at the address set
forth in this prospectus. By executing a letter
of transmittal, a holder will make certain
representations to us. See "The Exchange
Offers -- Registration Rights" and
"-- Procedures for Tendering Original Notes."
Special Procedures for
Beneficial Owners............. Any beneficial owner whose original 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 the
registered holder to tender on such beneficial
owner's behalf. See "The Exchange Offers --
Procedures for Tendering Original Notes."
Guaranteed Delivery
Procedures.................... Holders of original notes who wish to tender
their original notes when those securities are
not immediately available or who cannot deliver
their original notes, the applicable letter of
transmittal or any other documents required by
that letter of transmittal to the exchange
agent prior to the Expiration Date
4
|
must tender their original notes according to
the guaranteed delivery procedures set forth in
"The Exchange Offers -- Procedures for
Tendering Original Notes -- Guaranteed
Delivery."
Withdrawal Rights............. Tenders of original notes pursuant to an
exchange offer may be withdrawn at any time
prior to the Expiration Date for that exchange
offer.
Acceptance of Original Notes
and Delivery of Exchange
Notes......................... We will accept for exchange any and all
original notes that are properly tendered in
the applicable exchange offer, and not
withdrawn, prior to that exchange offer's
Expiration Date. The exchange notes issued
pursuant to an exchange offer will be issued on
the earliest practicable date following our
acceptance for exchange of original notes of
that series. See "The Exchange Offers -- Terms
of the Exchange Offers."
Exchange Agent................ Wachovia Bank, National Association is serving
as exchange agent in connection with each
exchange offer.
Federal Income Tax
Considerations................ We have received an opinion of counsel advising
that the exchange of original notes for
exchange notes of the same series pursuant to
an exchange offer will not be treated as a
taxable exchange for federal income tax
purposes. See "Material Federal Income Tax
Considerations."
|
RISK FACTORS
You should carefully consider the risks described below, in addition to other information contained or incorporated by reference in this prospectus. Realization of any of the following risks could have a material adverse effect on our business, financial condition, cash flows and results of operations.
PENDING FEDERAL ENERGY REGULATORY COMMISSION AND CALIFORNIA PUBLIC UTILITIES COMMISSION PROCEEDINGS SEEK SUBSTANTIAL REFUNDS AND REDUCTIONS IN TARIFF RATES ON SOME OF OUR PIPELINES. IF THE PROCEEDINGS ARE DETERMINED ADVERSELY, THEY COULD HAVE A MATERIAL ADVERSE IMPACT ON US. Regulators and shippers on our pipelines have rights to challenge the rates we charge under certain circumstances prescribed by applicable regulations. In 1992, and from 1995 through 2001, some shippers on our pipelines filed complaints with the Federal Energy Regulatory Commission and California Public Utilities Commission that seek substantial refunds for alleged overcharges during the years in question and prospective reductions in the tariff rates on our Pacific operations' pipeline system.
The FERC complaints, separately docketed in two different proceedings, predominantly attacked the interstate pipeline tariff rates of our Pacific operations' pipeline system, contending that the rates were not just and reasonable under the Interstate Commerce Act and should not be entitled to "grandfathered" status under the Energy Policy Act. Complaining shippers seek substantial reparations for alleged overcharges during the years in question and request prospective rate reductions on each of the challenged facilities. Hearings on the second of these two proceedings began in October 2001, and an initial decision by the administrative law judge is expected in the fourth quarter of 2002.
The complaints filed before the California Public Utilities Commission challenge the rates charged for intrastate transportation of refined petroleum through the Pacific operations' pipeline system in California. After the California Public Utilities Commission dismissed these complaints and subsequently granted a limited rehearing on April 10, 2000, the complainants filed a new complaint with the California Public Utilities Commission asserting the intrastate rates were not just and reasonable.
The Federal Energy Regulatory Commission complaints seek approximately $137 million in tariff refunds and approximately $22 million in prospective annual tariff reductions. The California Public Utilities Commission complaint seeks approximately $20 million in tariff refunds and approximately $12 million in prospective annual tariff reductions. Amounts, if any, ultimately owed will be impacted by the passage of time and the application of interest. Decisions regarding these complaints could negatively impact our cash flow. Additional challenges to tariff rates could be filed with the Federal Energy Regulatory Commission and California Public Utilities Commission in the future.
PROPOSED RULEMAKING BY THE FEDERAL ENERGY REGULATORY COMMISSION OR OTHER REGULATORY AGENCIES HAVING JURISDICTION COULD ADVERSELY IMPACT OUR INCOME AND OPERATIONS. For example, on September 27, 2001, FERC issued a Notice of Proposed Rulemaking in Docket No. RM01-10. The proposed rule would expand FERC's current standards of conduct to include a regulated transmission provider and all of its energy affiliates. It is not known whether FERC will issue a final rule in this docket and, if it does, whether as a result we could incur increased costs and increased difficulty in our operations. Generally speaking, new regulations or different interpretations of existing regulations applicable to our assets could have a negative impact on our business, financial condition and results of operations.
OUR RAPID GROWTH MAY CAUSE DIFFICULTIES INTEGRATING NEW OPERATIONS. As discussed above, part of our business strategy includes acquiring additional businesses that will allow us to increase distributions to our common unitholders. Unexpected costs or challenges may arise whenever businesses with different operations and management are combined. Successful business combinations require management and other personnel to devote significant amounts of time to integrating the acquired business with existing operations. These efforts may temporarily distract their attention from day-to-day business, the development or acquisition of new properties and other business opportunities. In addition, the management of the acquired business often will not join our management team. The change in management may make it more difficult to integrate an acquired business with our existing operations.
OUR ACQUISITION STRATEGY REQUIRES ACCESS TO NEW CAPITAL. TIGHTENED CREDIT
MARKETS OR MORE EXPENSIVE CAPITAL WOULD IMPAIR OUR ABILITY TO GROW. Part of our business strategy includes acquiring additional businesses that will allow us to increase distributions to our common unitholders. During the period from December 31, 1996 to December 31, 2001, we made a significant number of acquisitions that increased our asset base over 22 times and increased our net income over 37 times. We regularly consider and enter into discussions regarding potential acquisitions and are currently contemplating potential acquisitions. These transactions can be effected quickly, may occur at any time and may be significant in size relative to our existing assets and operations. We may need new capital to finance these acquisitions. Limitations on our access to capital will impair our ability to execute this strategy. We normally fund acquisitions with short term debt and repay such debt through equity and debt offerings. An inability to access the capital markets may result in a substantial increase in our leverage and have a detrimental impact on our credit profile.
ENVIRONMENTAL REGULATION COULD RESULT IN INCREASED OPERATING AND CAPITAL COSTS FOR US. Our business operations are subject to federal, state and local laws and regulations relating to environmental protection. If an accidental leak or spill of liquid petroleum products or chemicals occurs from our pipelines or at our storage facilities, we may have to pay a significant amount to clean up the leak or spill or pay for government penalties, liability to government agencies for natural resource damage, personal injury or property damage to private parties or significant business interruption. The resulting costs and liabilities could negatively affect our level of cash flow. In addition, emission controls required under the Federal Clean Air Act and other similar federal and state laws could require significant capital expenditures at our facilities. The impact of Environmental Protection Agency standards or future environmental measures on us could increase our costs significantly if environmental laws and regulations become stricter. Since the costs of environmental regulation are already significant, additional regulation could negatively affect our business.
COMPETITION COULD ULTIMATELY LEAD TO LOWER LEVELS OF PROFITS AND LOWER CASH FLOW. We face competition from other pipelines and terminals in the same markets as our assets, as well as from other means of transporting and storing energy products.
WE DO NOT OWN APPROXIMATELY 97.5% OF THE LAND ON WHICH OUR PIPELINES ARE CONSTRUCTED AND WE ARE SUBJECT TO THE POSSIBILITY OF INCREASED COSTS TO RETAIN NECESSARY LAND USE. We obtain the right to construct and operate the pipelines on other people's land for a period of time. If we were to lose these rights, our business could be affected negatively.
Southern Pacific Transportation Company has allowed us to construct and operate a significant portion of our Pacific operations' pipeline system under their railroad tracks. Southern Pacific Transportation Company and its predecessors were given the right to construct their railroad tracks under federal statutes enacted in 1871 and 1875. The 1871 statute was thought to be an outright grant of ownership that would continue until the land ceased to be used for railroad purposes. Two United States Circuit Courts, however, ruled in 1979 and 1980 that railroad rights-of-way granted under laws similar to the 1871 statute provide only the right to use the surface of the land for railroad purposes without any right to the underground portion. If a court were to rule that the 1871 statute does not permit the use of the underground portion for the operation of a pipeline, we may be required to obtain permission from the landowners in order to continue to maintain the pipelines. Approximately 10% of our pipeline assets are located in the ground underneath railroad rights-of-way.
Whether we have the power of eminent domain for our pipelines varies from state to state depending upon the type of pipeline -- petroleum liquids, natural gas or carbon dioxide -- and the laws of the particular state. Our inability to exercise the power of eminent domain could negatively affect our business if we were to lose the right to use or occupy the property on which our pipelines are located.
OUR DEBT INSTRUMENTS MAY LIMIT OUR FINANCIAL FLEXIBILITY AND INCREASE OUR FINANCING COSTS. The instruments governing our debt contain restrictive covenants that may prevent us from engaging in certain transactions that we deem beneficial and that may be beneficial to us. The agreements governing our debt
generally require us to comply with various affirmative and negative covenants, including the maintenance of certain financial ratios and restrictions on:
- incurring additional debt;
- entering into mergers, consolidations and sales of assets;
- granting liens; and
- entering into sale-leaseback transactions.
The instruments governing any future debt may contain similar restrictions.
THERE IS NO PUBLIC MARKET FOR THE NOTES AND YOU CANNOT BE SURE AN ACTIVE TRADING MARKET FOR THE NOTES WILL DEVELOP. The original notes have not been registered under the Securities Act, and may not be resold by purchasers thereof unless the original notes are subsequently registered or an exemption from the registration requirements of the Securities Act is available. There can be no assurance, even following registration or exchange of the original notes for exchange notes, that an active trading market for the original notes or the exchange notes will exist. At the time of the private placement of the original notes, the initial purchasers advised us that they intended to make a market in the original notes and, if issued, the exchange notes. However, the initial purchasers are not obligated to make a market in the original notes or the exchange notes, and any such market-making may be discontinued at any time at the sole discretion of the initial purchasers. No assurance can be given as to the liquidity of or trading market for the original notes or the exchange notes.
The liquidity of any market for the notes will depend upon the number of holders of the notes, our performance, the market for similar securities, the interest of securities dealers in making a market in the notes and other factors.
THE MARKET VALUE OF YOUR ORIGINAL NOTES MAY BE LOWER IF YOU DO NOT EXCHANGE
YOUR ORIGINAL NOTES OR FAIL TO PROPERLY TENDER YOUR ORIGINAL NOTES FOR EXCHANGE.
CONSEQUENCES OF FAILURE TO EXCHANGE. To the extent that original notes are tendered and accepted for exchange pursuant to the exchange offer, the trading market for original notes that remain outstanding may be significantly more limited, which might adversely affect the liquidity of the original notes not tendered for exchange. The extent of the market and the availability of price quotations for original notes will depend upon a number of factors, including the number of holders of original notes remaining at such time and the interest in maintaining a market in such original notes on the part of securities firms. An issue of securities with a smaller outstanding market value available for trading, called the "float," may command a lower price than would a comparable issue of securities with a greater float. Therefore, the market price for original notes that are not exchanged in the exchange offer may be affected adversely to the extent that the amount of original notes exchanged pursuant to the exchange offer reduces the float. The reduced float also may tend to make the trading price of the original notes that are not exchanged more volatile.
CONSEQUENCES OF FAILURE TO PROPERLY TENDER. Issuance of the exchange notes in exchange for the original notes pursuant to the exchange offer will be made following the prior satisfaction, or waiver, of the conditions set forth in "The Exchange Offers -- Conditions to the Exchange Offers" and only after timely receipt by the exchange agent of such original notes, a properly completed and duly executed letter of transmittal and all other required documents. Therefore, holders of original notes desiring to tender such original notes in exchange for exchange notes should allow sufficient time to ensure timely delivery of all required documentation. Neither we, the exchange agent nor any other person is under any duty to give notification of defects or irregularities with respect to the tenders of original notes for exchange. Original notes that may be tendered in the exchange offer but which are not validly tendered will, following the consummation of the exchange offer, remain outstanding and will continue to be subject to the same transfer restrictions currently applicable to such original notes.
THE EXCHANGE OFFERS
REGISTRATION RIGHTS
At the closings of the offerings of each series of original notes, we entered into registration rights agreements with the initial purchasers pursuant to which we agreed, for the benefit of the holders of the original notes, at our cost,
- within 120 days after the date of the original issuance of the original notes, to file an exchange offer registration statement with the SEC with respect to the exchange offers for the exchange notes, and
- to use our reasonable efforts to cause the exchange offer registration statement to be declared effective under the Securities Act within 210 days after the date of original issuance of the original notes.
Upon the exchange offer registration statement being declared effective, we agreed to offer the exchange notes of each series in exchange for surrender of the original notes of each series. We agreed to keep the exchange offers open for not less than 30 days, or longer if required by applicable law.
For each original note surrendered to us pursuant to its exchange offer, the holder of such original note will receive an exchange note of the same series having a principal amount equal to that of the surrendered original note. Interest on each exchange note will accrue from the last interest payment date on which interest was paid on the original note surrendered in exchange therefor or, if no interest has been paid on such original note, from the date of its original issue. The registration rights agreements also provide an agreement to include in the prospectus for the exchange offers certain information necessary to allow a broker-dealer who holds original notes that were acquired for its own account as a result of market-making activities or other ordinary course trading activities (other than original notes acquired directly from us or one of our affiliates) to exchange such original notes pursuant to the exchange offers and to satisfy the prospectus delivery requirements in connection with resales of exchange notes received by such broker-dealer in the exchange offers. We agreed to maintain the effectiveness of the registration statement for these purposes for 120 days after the consummation of the exchange offers.
The preceding agreement is needed because any broker-dealer who acquires original notes for its own account as a result of market-making activities or other trading activities is required to deliver a prospectus meeting the requirements of the Securities Act. This prospectus covers the offer and sale of the exchange notes pursuant to the exchange offers made pursuant to this prospectus and the resale of exchange notes received in an exchange offer by any broker-dealer who held original notes of the same series acquired for its own account as a result of market-making activities or other trading activities other than original notes acquired directly from us or one of our affiliates.
Under existing interpretations of the staff of the SEC contained in several no-action letters to third parties, the exchange notes will in general be freely tradeable after the exchange offers without further registration under the Securities Act. However, any purchaser of original notes who is an "affiliate" of ours or who intends to participate in an exchange offer for the purpose of distributing the related exchange notes
- will not be able to rely on the interpretation of the staff of the SEC,
- will not be able to tender its original notes in the applicable exchange offer, and
- must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the original notes unless such sale or transfer is made pursuant to an exemption from such requirements.
Each holder of the original notes, other than certain specified holders, who wishes to exchange original notes for exchange notes of the same series in an exchange offer will be required to make certain representations, including that
- it is not an affiliate of ours,
- any exchange notes to be received by it were acquired in the ordinary course of its business, and
- at the time of commencement of the exchange offer, it has no arrangement with any person to participate in the distribution (within the meaning of the Securities Act) of the exchange notes.
In the event that any changes in law or the applicable interpretations of the staff of the SEC do not permit us to effect the exchange offers, or if for any other reason the exchange offers are not consummated within 210 days of the date of issuance and sale of the original notes, or the exchange offers are not available to any initial purchasers based upon an opinion of counsel, we will, at our cost,
- as promptly as practicable, file a shelf registration statement (which may be an amendment of the registration statement of which this prospectus is a part) covering resales of the original notes,
- use all reasonable efforts to cause the shelf registration statement to be declared effective under the Securities Act, and
- use all reasonable efforts to keep effective the shelf registration statement until two years after the date of original issuance of the original notes, or, if Rule 144(k) under the Securities Act is amended to provide a shorter restricted period, such shorter period, or until all original notes have been sold.
We will, in the event of the filing of a shelf registration statement, provide to each holder of the original notes copies of the prospectus which is a part of the shelf registration statement, notify each such holder when the shelf registration statement for the original notes has become effective, and take certain other actions as are required to permit unrestricted resales of the original notes. A holder of original notes that sells such original 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 certain of the civil liability provisions under the Securities Act in connection with such sales and will be bound by the provisions of the registration rights agreements which are applicable to such holder, including certain indemnification obligations. In addition, each holder of the original notes will be required to deliver information to be used in connection with the shelf registration statement and to provide comments on the shelf registration statement within the time periods set forth in the registration rights agreements in order to have their original notes included in the shelf registration statement and to benefit from the provisions regarding liquidated damages set forth in the following paragraph.
We will pay liquidated damages on the original notes upon the occurrence of any of the following events:
- if the exchange offer registration statement or shelf registration statement is not filed within 120 days following the date of original issuance of the original notes, then commencing on the 121st day after the date of original issuance of the original notes, liquidated damages shall accrue on the original notes over and above the otherwise applicable interest rate at a rate of .25% per year;
- if an exchange offer registration statement or a shelf registration statement is filed and is not declared effective within 210 days following the date of original issuance of the original notes, then commencing on the 211th day after the date of original issuance of the original notes, liquidated damages shall accrue on the original notes over and above the otherwise applicable interest rate at a rate of .25% per year; or
- if either:
(A) we have not issued exchange notes for all original notes validly tendered in accordance with the terms of the exchange offer on or prior to 45 business days after the date on which the exchange offer registration statement was declared effective; or
(B) the shelf registration statement has been declared effective but such shelf registration statement ceases to be effective at any time:
(1) prior to the expiration of the second anniversary of the date of original issuance of the original notes, or, if Rule 144(k) is amended to provide a shorter restrictive period, such shorter period, and
(2) while any registrable securities are outstanding, then liquidated damages shall accrue on the original notes over and above the otherwise applicable interest rate at a rate of .25% per year commencing on the 46th business day after such effective date, in the case of (A) above, or the day such shelf registration statement ceases to be effective, in the case of (B) above.
The foregoing circumstances under which we may be required to pay liquidated damages are not cumulative. In no event will the liquidated damages rate on the original notes exceed .25% per year. Further, any liquidated damages will cease to accrue when all of the events described above have been cured or upon the expiration of the second anniversary of the date of original issuance of the original notes, or, if Rule 144(k) is amended to provide a shorter restrictive period, the shorter period. For purposes of clarifying the foregoing provisions, the registration rights agreements state that liquidated damages shall not accrue at any time that there are no registrable securities outstanding. The receipt of liquidated damages will be the sole monetary remedy available to a holder if we fail to meet these obligations.
This summary of certain provisions of the registration rights agreements does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all the provisions of the registration rights agreements, copies of which are filed as exhibits to the registration statement of which this prospectus is a part.
Except as set forth above, after consummation of an exchange offer, holders of original notes which are the subject of an exchange offer have no registration or exchange rights under the registration rights agreements. See "-- Consequences of Failure to Exchange," and "-- Resale of the Exchange Notes; Plan of Distribution."
CONSEQUENCES OF FAILURE TO EXCHANGE
The original notes which are not exchanged for exchange notes of the same series pursuant to an exchange offer and are not included in a resale prospectus which, if required, will be filed as part of an amendment to the registration statement of which this prospectus is a part, will remain restricted securities and subject to restrictions transfer. Accordingly, such original notes may only be resold
(1) to us, upon redemption thereof or otherwise,
(2) so long as the original notes are eligible for resale pursuant to Rule 144A, to a person whom the seller reasonably believes is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act, purchasing for its own account or for the account of a qualified institutional buyer to whom notice is given that the resale, pledge or other transfer is being made in reliance on Rule 144A,
(3) in an offshore transaction in accordance with Regulation S under the Securities Act,
(4) pursuant to an exemption from registration in accordance with Rule 144, if available, under the Securities Act,
(5) in reliance on another exemption from the registration requirements of the Securities Act, or
(6) pursuant to an effective registration statement under the Securities Act.
In all of the situations discussed above, the resale must be in accordance with any applicable securities laws of any state of the United States and subject to certain requirements of the registrar or co-
registrar being met, including receipt by the registrar or co-registrar of a certification and, in the case of (3), (4) and (5) above, an opinion of counsel reasonably acceptable to us and the registrar.
To the extent original notes are tendered and accepted in the exchange offers, the principal amount of outstanding original notes will decrease with a resulting decrease in the liquidity in the market for those original notes. Accordingly, the liquidity of the market of the original notes could be adversely affected. See "Risk Factors -- Consequences of Failure to Exchange."
TERMS OF THE EXCHANGE OFFERS
Upon the terms and subject to the conditions set forth in this prospectus and in the respective letters of transmittal, copies of which are attached to this prospectus as Annex A and Annex B, respectively, we will accept any and all original notes validly tendered and not withdrawn prior to the applicable Expiration Date. We will issue $1,000 principal amount of 5.35% exchange notes in exchange for each $1,000 principal amount of original 5.35% notes accepted in the exchange offer, and we will issue $1,000 principal amount of 7.30% exchange notes in exchange for each $1,000 principal amount of original 7.30% notes accepted in the exchange offer. Holders may tender some or all of their original notes pursuant to the respective exchange offer. However, original notes may be tendered only in integral multiples of $1,000 principal amount.
The form and terms of the 5.35% exchange notes and the 7.30% exchange notes are the same as the form and terms of the original 5.35% notes and the original 7.30% notes, respectively, except that
- the exchange notes will have been registered under the Securities Act and will not bear legends restricting their transfer pursuant to the Securities Act, and
- except as otherwise described above, holders of the exchange notes will not be entitled to the rights of holders of original notes under the registration rights agreements.
The exchange notes will evidence the same debt as the original notes which they replace, and will be issued under, and be entitled to the benefits of, the indenture which governs all of the notes.
Solely for reasons of administration and for no other purpose, we have fixed the close of business on , 2002 as the record date for the exchange offers for purposes of determining the persons to whom this prospectus and the letter of transmittal designated for such notes will be mailed initially. Only a registered holder of original notes or such holder's legal representative or attorney-in-fact as reflected on the records of the trustee under the indenture may participate in an exchange offer. There will be no fixed record date for determining registered holders of the original notes entitled to participate in the relevant exchange offer.
Holders of the original notes do not have any appraisal or dissenters' rights under Delaware law or the indenture in connection with the exchange offers. We intend to conduct the exchange offers in accordance with the applicable requirements of the Exchange Act and the rules and regulations of the SEC thereunder.
We shall be deemed to have accepted validly tendered original notes when, as and if we have given oral or written notice thereof to the exchange agent. The exchange agent will act as agent for the tendering holders of the original notes for the purposes of receiving the exchange notes. The exchange notes delivered pursuant to the exchange offers will be issued on the earliest practicable date following the acceptance for exchange of original notes by us.
If any tendered original notes are not accepted for exchange because of an invalid tender, the occurrence of certain other events set forth in this prospectus or otherwise, certificates for any such unaccepted original notes will be returned, without expense, to the tendering holder of the original notes as promptly as practicable after the applicable Expiration Date.
Holders who tender original notes in the exchange offers will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal designated for such original
notes, transfer taxes with respect to the exchange of the original notes pursuant to the exchange offers. We will pay all charges and expenses, other than certain applicable taxes, in connection with the exchange offers. See "-- Fees and Expenses."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" with respect to each exchange offer shall mean 5:00 p.m., New York City time, on , 2002, unless we, in our sole discretion, extend an exchange offer, in which case the term "Expiration Date" shall mean the latest date and time to which that exchange offer is extended.
In order to extend an exchange offer, we will notify the exchange agent of any extension by oral or written notice and will make a public announcement thereof, each prior to 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date of that exchange offer.
We reserve the right, in our sole discretion,
- to delay accepting any original notes,
- to extend either or both exchange offers,
- if any of the conditions set forth below under "-- Conditions to the Exchange Offers" have not been satisfied, to terminate either or both exchange offers, or
- to amend the terms of an exchange offer in any manner.
We may effect any such delay, extension or termination by giving oral or written notice thereof to the exchange agent.
Except as specified in the second paragraph under this heading, any such delay in acceptance, extension, termination or amendment will be followed as promptly as practicable by a public announcement thereof. If an exchange offer is amended in a manner determined by us to constitute a material change, we will promptly disclose such amendment by means of a prospectus supplement that will be distributed to the registered holders of the original notes. That exchange offer will then be extended for a period of five to 10 business days, as required by law, depending upon the significance of the amendment and the manner of disclosure to the registered holders, if the exchange offer would otherwise expire during such five to 10 business day period.
Without limiting the manner in which we may choose to make a public announcement of any delay, extension, termination or amendment of these exchange offers, we shall not have an obligation to publish, advertise, or otherwise communicate any such public announcement, other than by making a timely release of the announcement to the Dow Jones News Service.
PROCEDURES FOR TENDERING ORIGINAL NOTES
Tenders of Original Notes. The tender by a holder of original notes pursuant to any of the procedures set forth below will constitute the tendering holder's acceptance of the terms and conditions of the exchange offer applicable to such notes. Our acceptance for exchange of original notes tendered pursuant to any of the procedures described below will constitute a binding agreement between such tendering holder and us in accordance with the terms and subject to the conditions of the exchange offer applicable to such original notes. Only holders are authorized to tender their original notes. The procedures by which original notes may be tendered by beneficial owners that are not holders will depend upon the manner in which the original notes are held.
DTC has authorized DTC participants that are beneficial owners of original notes through DTC to tender their original notes as if they were holders. To effect a tender, DTC participants should either (1) complete and sign the applicable letter of transmittal or a facsimile thereof, have the signature thereon guaranteed if required by Instruction 1 of the letter of transmittal, and mail or deliver the letter of transmittal or such facsimile pursuant to the procedures for book-entry transfer set forth below under "-- Book-Entry Delivery Procedures," or (2) transmit their acceptance to DTC through the DTC
Automated Tender Offer Program ("ATOP"), for which the transaction will be eligible, and follow the procedures for book-entry transfer, set forth below under "-- Book-Entry Delivery Procedures."
Tender of Original Notes Held in Physical Form. To tender effectively original notes held in physical form pursuant to an exchange offer
- a properly completed letter of transmittal applicable to such notes (or a facsimile thereof) duly executed by the holder thereof, and any other documents required by the letter of transmittal, must be received by the exchange agent at one of its addresses set forth below, and tendered original notes must be received by the exchange agent at such address (or delivery effected through the deposit of original notes into the exchange agent's account with DTC and making book-entry delivery as set forth below) on or prior to the Expiration Date of that exchange offer, or
- the tendering holder must comply with the guaranteed delivery procedures set forth below.
LETTERS OF TRANSMITTAL OR ORIGINAL NOTES SHOULD BE SENT ONLY TO THE
EXCHANGE AGENT AND SHOULD NOT BE SENT TO US.
Tender of Original Notes Held Through a Custodian. To tender effectively original notes that are held of record by a custodian bank, depository, broker, trust company or other nominee, the beneficial owner thereof must instruct such holder to tender the original notes on the beneficial owner's behalf. A letter of instructions from the record owner to the beneficial owner may be included in the materials provided along with this prospectus which may be used by the beneficial owner in this process to instruct the registered holder of such owner's original notes to effect the tender.
Tender of Original Notes Held Through DTC. To tender effectively original notes that are held through DTC, DTC participants should either
- properly complete and duly execute the letter of transmittal applicable to such notes (or a facsimile thereof), and any other documents required by the letter of transmittal, and mail or deliver the letter of transmittal or such facsimile pursuant to the procedures for book-entry transfer set forth below, or
- transmit their acceptance through ATOP, for which the transaction will be eligible, and DTC will then edit and verify the acceptance and send an Agent's Message to the exchange agent for its acceptance.
Delivery of tendering original notes held through DTC must be made to the exchange agent pursuant to the book-entry delivery procedures set forth below or the tendering DTC participant must comply with the guaranteed delivery procedures set forth below.
THE METHOD OF DELIVERY OF ORIGINAL NOTES AND LETTERS OF TRANSMITTAL, ANY REQUIRED SIGNATURE GUARANTEES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC AND ANY ACCEPTANCE OR AGENT'S MESSAGE TRANSMITTED THROUGH ATOP, IS AT THE ELECTION AND RISK OF THE PERSON TENDERING ORIGINAL NOTES AND DELIVERING LETTERS OF TRANSMITTAL. EXCEPT AS OTHERWISE PROVIDED IN THE LETTER OF TRANSMITTAL, DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, IT IS SUGGESTED THAT THE HOLDER USE PROPERLY INSURED, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, AND THAT THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE APPLICABLE EXPIRATION DATE TO PERMIT DELIVERY TO THE EXCHANGE AGENT PRIOR TO SUCH DATE.
Except as provided below, unless the original notes being tendered are deposited with the exchange agent on or prior to the applicable Expiration Date (accompanied by a properly completed and duly executed letter of transmittal or a properly transmitted Agent's Message), we may, at our option, reject such tender. Exchange of exchange notes for original notes of the same series will be made only against deposit of the tendered original notes and delivery of all other required documents.
Book-Entry Delivery Procedures. The exchange agent will establish accounts with respect to the original notes at DTC for purposes of the exchange offers within two business days after the date of this prospectus, and any financial institution that is a participant in DTC may make book-entry delivery of the
original notes by causing DTC to transfer such original notes into the exchange agent's account in accordance with DTC's procedures for such transfer. However, although delivery of original notes may be effected through book-entry at DTC, the applicable letter of transmittal (or facsimile thereof), with any required signature guarantees or an Agent's Message in connection with a book-entry transfer, and any other required documents, must, in any case, be transmitted to and received by the exchange agent at one or more of its addresses set forth in this prospectus on or prior to the applicable Expiration Date, or compliance must be made with the guaranteed delivery procedures described below. Delivery of documents to DTC does not constitute delivery to the exchange agent. The confirmation of a book-entry transfer into the exchange agent's account at DTC as described above is referred to herein as a "Book-Entry Confirmation."
The term "Agent's Message" means a message transmitted by DTC to, and received by, the exchange agent and forming a part of the Book-Entry Confirmation, which states that DTC has received an express acknowledgment from each participant in DTC tendering the original notes and that such participant has received the applicable letter of transmittal and agrees to be bound by the terms of the letter of transmittal and we may enforce such agreement against such participant.
Signature Guarantees. Signatures on all letters of transmittal must be guaranteed by a recognized member of the Medallion Signature Guarantee Program or by any other "eligible guarantor institution," as such term is defined in Rule 17Ad-15 promulgated under the Exchange Act (each of the foregoing, an "Eligible Institution"), unless the original notes tendered thereby are tendered
- by a registered holder of original notes (or by a participant in DTC whose name appears on a DTC security position listing as the owner of such original notes) who has not completed either the box entitled "Special Issuance Instructions" or "Special Delivery Instructions" on the letter of transmittal, or
- for the account of an Eligible Institution.
See Instruction 1 of the letters of transmittal. If the original notes are registered in the name of a person other than the signer of the letter of transmittal or if original notes not accepted for exchange or not tendered are to be returned to a person other than the registered holder, then the signatures on the letter of transmittal accompanying the tendered original notes must be guaranteed by an Eligible Institution as described above. See Instructions 1 and 5 of the letters of transmittal.
Guaranteed Delivery. If a holder desires to tender original notes pursuant to an exchange offer and time will not permit the applicable letter of transmittal, certificates representing such original notes and all other required documents to reach the exchange agent, or the procedures for book-entry transfer cannot be completed, on or prior to the Expiration Date of that exchange offer, such original notes may nevertheless be tendered if all three of the following conditions are satisfied:
- the tender is made by or through an Eligible Institution;
- a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by us, or an Agent's Message with respect to guaranteed delivery that is accepted by us, is received by the exchange agent on or prior to the Expiration Date, as provided below; and
- the certificates for the tendered original notes, in proper form for transfer (or a Book-Entry Confirmation of the transfer of such original notes into the exchange agent's account at DTC as described above), together with the applicable letter of transmittal (or facsimile thereof), properly completed and duly executed, with any required signature guarantees and any other documents required by the letter of transmittal or a properly transmitted Agent's Message, are received by the exchange agent within two business days after the date of execution of the Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be sent by hand delivery, telegram,
facsimile transmission or mail to the exchange agent and must include a
guarantee by an Eligible Institution in the form set forth in the Notice of
Guaranteed Delivery.
Notwithstanding any other provision hereof, delivery of exchange notes by the exchange agent for original notes of the same series tendered and accepted for exchange pursuant to an exchange offer will, in all cases, be made only after timely receipt by the exchange agent of such original notes (or Book-Entry Confirmation of the transfer of such original notes into the exchange agent's account at DTC as described above), and the applicable letter of transmittal (or facsimile thereof) with respect to such original notes, properly completed and duly executed, with any required signature guarantees and any other documents required by the letter of transmittal, or a properly transmitted Agent's Message.
Determination of Validity. All questions as to the validity, form, eligibility (including time of receipt), acceptance and withdrawal of tendered original notes will be determined by us in our sole discretion, which determination will be final and binding. We reserve the absolute right to reject any and all original notes not properly tendered or any original notes our acceptance of which, in the opinion of our counsel, would be unlawful.
We also reserve the right to waive any defects, irregularities or conditions of tender as to particular original notes. The interpretation of the terms and conditions of our exchange offers (including the instructions in the letters of transmittal) by us will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of original notes must be cured within such time as we shall determine.
Although we intend to notify holders of defects or irregularities with respect to tenders of original notes through the exchange agent, neither we, the exchange agent nor any other person is under any duty to give such notice, nor shall they incur any liability for failure to give such notification. Tenders of original notes will not be deemed to have been made until such defects or irregularities have been cured or waived.
Any original notes received by the exchange agent that are not validly tendered and as to which the defects or irregularities have not been cured or waived, or if original notes are submitted in a principal amount greater than the principal amount of original notes being tendered by such tendering holder, such unaccepted or non-exchanged original notes will either be
- returned by the exchange agent to the tendering holders, or
- in the case of original notes tendered by book-entry transfer into the exchange agent's account at the Book-Entry Transfer Facility pursuant to the book-entry transfer procedures described below, credited to an account maintained with such Book-Entry Transfer Facility.
By tendering, each registered holder will represent to us that, among other things,
(1) the exchange notes to be acquired by the holder and any beneficial owner(s) of the original notes in connection with the applicable exchange offer are being acquired by the holder and any beneficial owner(s) in the ordinary course of business of the holder and any beneficial owner(s),
(2) the holder and each beneficial owner are not participating, do not intend to participate, and have no arrangement or understanding with any person to participate, in a distribution of the exchange notes,
(3) the holder and each beneficial owner acknowledge and agree that
(x) any person participating in the exchange offer for the purpose of
distributing the exchange notes must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction with respect to the exchange notes acquired by
such person and cannot rely on the position of the Staff of the SEC set
forth in no-action letters that are discussed herein under "-- Resale of
the Exchange Notes; Plan of Distribution," and (y) any broker-dealer that
receives exchange notes for its own account in exchange for original notes
of the same series pursuant to the exchange offer must deliver a prospectus
in connection with any resale of such exchange notes, but by so
acknowledging, the holder shall not be deemed to admit that, by delivering
a prospectus, it is an "underwriter" within the meaning of the Securities
Act,
(4) neither the holder nor any beneficial owner is an "affiliate," as defined under Rule 405 of the Securities Act, of ours except as otherwise disclosed to us in writing, and
(5) the holder and each beneficial owner understands that a secondary resale transaction described in clause (3) above should be covered by an effective registration statement containing the selling securityholder information required by Item 507 of Regulation S-K of the SEC.
Each broker-dealer that receives exchange notes for its own account in exchange for original notes of the same series, where those original notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such exchange notes. See "-- Resale of the Exchange Notes; Plan of Distribution."
WITHDRAWAL OF TENDERS
Except as otherwise provided in this prospectus and the applicable letter of transmittal, tenders of original notes pursuant to an exchange offer may be withdrawn, unless therefore accepted for exchange as provided in the applicable exchange offer, at any time prior to the Expiration Date of that exchange offer.
To be effective, a written or facsimile transmission notice of withdrawal must be received by the exchange agent at its address set forth in this prospectus prior to the Expiration Date of that exchange offer. Any such notice of withdrawal must
- specify the name of the person having deposited the original notes to be withdrawn,
- identify the original notes to be withdrawn, including the certificate, number or numbers of the particular certificates evidencing the original notes (unless such original notes were tendered by book-entry transfer), and aggregate principal amount of such original notes, and
- be signed by the holder in the same manner as the original signature on the letter of transmittal (including any required signature guarantees) or be accompanied by documents of transfer sufficient to have the trustee under the indenture register the transfer of the original notes into the name of the person withdrawing such original notes.
If original notes have been delivered pursuant to the procedures for book-entry transfer set forth in "-- Procedures for Tendering Original Notes -- Book-Entry Delivery Procedures," any notice of withdrawal must specify the name and number of the account at the appropriate book-entry transfer facility to be credited with such withdrawn original notes and must otherwise comply with such book-entry transfer facility's procedures.
If the original notes to be withdrawn have been delivered or otherwise identified to the exchange agent, a signed notice of withdrawal meeting the requirements discussed above is effective immediately upon written or facsimile notice of withdrawal even if physical release is not yet effected. A withdrawal of original notes can only be accomplished in accordance with these procedures.
All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by us in our sole discretion, which determination shall be final and binding on all parties. No withdrawal of original notes will be deemed to have been properly made until all defects or irregularities have been cured or expressly waived. Neither we, the exchange agent nor any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or revocation, nor shall we or they incur any liability for failure to give any such notification. Any original notes so withdrawn will be deemed not to have been validly tendered for purposes of that exchange offer and no exchange notes will be issued with respect thereto unless the original notes so withdrawn are retendered. Properly withdrawn original notes may be retendered by following one of the procedures described above under "-- Procedures for Tendering Original Notes" at any time prior to the Expiration Date of that exchange offer.
Any original notes which have been tendered but which are not accepted for exchange due to the rejection of the tender due to uncured defects or the prior termination of the applicable exchange offer, or which have been validly withdrawn, will be returned to the holder thereof unless otherwise provided in the applicable letter of transmittal, as soon as practicable following the Expiration Date of that exchange offer or, if so requested in the notice of withdrawal, promptly after receipt by us of notice of withdrawal without cost to such holder.
CONDITIONS TO THE EXCHANGE OFFERS
Neither exchange offer shall be subject to any conditions, other than that
- the SEC has issued an order or orders declaring the indenture governing the notes qualified under the Trust Indenture Act of 1939,
- the exchange offer, or the making of any exchange by a holder, does not violate applicable law or any applicable interpretation of the staff of the SEC,
- no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to that exchange offer, which, in our judgment, might impair our ability to proceed with that exchange offer,
- there shall not have been adopted or enacted any law, statute, rule or regulation which, in our judgment, would materially impair our ability to proceed with the exchange offer, or
- there shall not have occurred any material change in the financial markets in the United States or any outbreak of hostilities or escalation thereof or other calamity or crisis the effect of which on the financial markets of the United States, in our judgment, would materially impair our ability to proceed with the exchange offer.
If we determine in our sole discretion that any of the conditions to an exchange offer are not satisfied, we may
- refuse to accept any original notes and return all tendered original notes to the tendering holders,
- extend the exchange offer and retain all original notes tendered prior to the Expiration Date applicable to that exchange offer, subject, however, to the rights of holders to withdraw such original notes (see "-- Withdrawal of Tenders"), or
- waive such unsatisfied conditions with respect to the exchange offer and accept all validly tendered original notes which have not been withdrawn.
If such waiver constitutes a material change to the applicable exchange offer, we will promptly disclose such waiver by means of a prospectus supplement that will be distributed to the registered holders, and will extend that exchange offer for a period of five to 10 business days, depending upon the significance of the waiver and the manner of disclosure to the registered holders, if that exchange offer would otherwise expire during such five to 10 business day period.
EXCHANGE AGENT
Wachovia Bank, National Association, the trustee under the indenture governing the notes, has been appointed as exchange agent for the exchange offers. Questions and requests for assistance, requests for
additional copies of this prospectus or of the letters of transmittal and requests for Notices of Guaranteed Delivery and other documents should be directed to the exchange agent addressed as follows:
By Mail:
Wachovia Bank, National Association
Customer Information Center
Corporate Trust Operations -- NC1153
1525 West W.T. Harris Boulevard -- 3C3
Charlotte, NC 28288
Attention: Marsha Rice
By Facsimile:
(704) 590-7628
Confirm by
Telephone:
(704) 590-7413
By Hand:
Wachovia Bank, National Association
Customer Information Center
Corporate Trust Operations -- NC1153
1525 West W.T. Harris Boulevard -- 3C3
Charlotte, NC 28262-1153
Attention: Marsha Rice
FEES AND EXPENSES
We will bear the expenses of soliciting tenders. The principal solicitation is being made by mail; however, additional solicitation may be made by telegraph, telecopy, telephone or in person by officers and regular employees of the partnership, the general partner and its delegate.
No dealer-manager has been retained in connection with the exchange offers and no payments will be made to brokers, dealers or others soliciting acceptance of the exchange offers. However, reasonable and customary fees will be paid to the exchange agent for its services and it will be reimbursed for its reasonable out-of-pocket expenses in connection therewith.
We estimate that our out of pocket expenses for the exchange offers will be approximately $ . Such expenses include fees and expenses of the exchange agent and the trustee under the indenture, accounting and legal fees and printing costs, among others.
We will pay all transfer taxes, if any, applicable to the exchange of the original notes pursuant to the exchange offers. If, however, a transfer tax is imposed for any reason other than the exchange of the original Notes pursuant to the applicable exchange offer, then the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted with the letter of transmittal, the amount of such transfer taxes will be billed directly to such tendering holder.
ACCOUNTING TREATMENT
The exchange notes will be recorded at the carrying value of the original notes of the same series and no gain or loss for accounting purposes will be recognized. The expenses of the exchange offers will be amortized over the term of the applicable exchange notes.
RESALE OF THE EXCHANGE NOTES; PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange notes for its own account pursuant to an exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of exchange notes. This
prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for original notes of the same series where such original notes were acquired as a result of market-making activities or other trading activities. We have agreed that we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until , 2002 (90 days after the date of this prospectus), all dealers effecting transactions in the exchange notes, whether or not participating in this distribution, may be required to deliver a prospectus. This requirement is in addition to the obligation of dealers to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.
We will not receive any proceeds from any sale of exchange notes by broker-dealers. Exchange notes received by broker-dealers for their own account pursuant to an exchange offer may be sold from time to time in one or more transactions
- in the over-the-counter market,
- in negotiated transactions,
- through the writing of options on the exchange notes or a combination of such methods of resale,
- at market prices prevailing at the time of resale,
- at prices related to such prevailing market prices, or
- at negotiated prices.
Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such exchange notes.
Any broker-dealer that resells exchange notes that were received by it for its own account pursuant to an exchange offer and any broker or dealer that participates in a distribution of such exchange notes may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit on any such resale of exchange notes and any commission on concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letters of transmittal state that, by acknowledging that it will deliver a prospectus 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 to pay all expenses incident to the exchange offers (including the expenses of one counsel for the holders of the notes approved in writing by the holders of a majority in aggregate principal amount of the notes) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the notes (including any broker-dealers) required to use this prospectus in connection with their resale of exchange notes as described above against certain liabilities, including civil liabilities under the Securities Act.
USE OF PROCEEDS
The exchange offers are intended to satisfy our obligations under the registration rights agreements. We will not receive any cash proceeds from the issuance of the exchange notes offered by this prospectus. In consideration for issuing the exchange notes as contemplated in this prospectus, we will receive in exchange original notes of the same series in like principal amount, the form and terms of which are the same as the form and terms of the exchange notes, except as otherwise described in this prospectus under "The Exchange Offers -- Terms of the Exchange Offers." The original notes surrendered in exchange for the exchange notes of the same series will be retired and canceled and cannot be reissued. Accordingly, issuance of the exchange notes will not result in any increase in our indebtedness.
SUMMARY HISTORICAL FINANCIAL DATA
The following sets forth our summary financial data as presented in Item 6 of our Annual Report on Form 10-K for the year ended December 31, 2001 as filed with the SEC on February 20, 2002, and also includes unaudited data for June 30, 2002 and the six months ended June 30, 2002 and 2001. The following should be read in conjunction with Management's Discussion and Analysis of Financial Condition and Results of Operations and the financial statements and the related notes thereto incorporated by reference in this prospectus.
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
----------------------- ------------------------------------------------------------
2002(1) 2001(2) 2001(3) 2000(4) 1999(5) 1998(6) 1997
---------- ---------- ---------- ---------- ---------- ---------- --------
INCOME AND CASH FLOW DATA:
Operating revenues.............. $1,894,001 $1,764,400 $2,946,676 $ 816,442 $ 428,749 $ 322,617 $ 73,932
Gas purchases and other cost of
sales......................... 1,160,569 1,128,052 1,657,689 124,641 16,241 5,860 7,154
Depreciation and amortization... 83,949 66,023 142,077 82,630 46,469 36,557 10,067
Other operating expense......... 311,280 293,378 583,082 293,610 178,632 139,531 32,480
---------- ---------- ---------- ---------- ---------- ---------- --------
Operating income................ 338,203 276,947 563,828 315,561 187,407 140,669 24,231
Earnings from equity
investments................... 47,568 42,350 84,834 71,603 42,918 25,732 5,724
Amortization of excess cost of
equity investments............ (2,788) (4,506) (9,011) (8,195) (4,254) (764) --
Interest expense................ (83,772) (97,714) (175,930) (97,102) (54,336) (40,856) (12,605)
Interest income and other,
net........................... (3,777) (3,406) (5,005) 10,415 22,988 (5,992) (353)
---------- ---------- ---------- ---------- ---------- ---------- --------
Income from continuing
operations before income
tax........................... 295,434 213,671 458,716 292,282 194,723 118,789 16,997
Income tax (provision)
benefit....................... (9,484) (7,778) (16,373) (13,934) (9,826) (1,572) 740
---------- ---------- ---------- ---------- ---------- ---------- --------
Income from continuing
operations.................... 285,950 205,893 442,343 278,348 184,897 117,217 17,737
Extraordinary charge(7)......... -- -- -- -- (2,595) (13,611) --
---------- ---------- ---------- ---------- ---------- ---------- --------
Net income...................... $ 285,950 $ 205,893 $ 442,343 $ 278,348 $ 182,302 $ 103,606 $ 17,737
========== ========== ========== ========== ========== ========== ========
OTHER DATA:
EBITDA(8)....................... $ 465,943 $ 381,914 $ 785,734 $ 480,209 $ 299,782 $ 196,966 $ 39,669
Additions to property, plant and
equipment..................... $ 187,290 $ 109,190 $ 295,088 $ 125,523 $ 82,725 $ 38,407 $ 6,884
BALANCE SHEET DATA (AT END OF
PERIOD):
Net property, plant and
equipment..................... $5,982,816 $4,328,006 $5,082,612 $3,306,305 $2,578,313 $1,763,386 $244,967
Total assets.................... $7,905,947 $6,261,679 $6,732,666 $4,625,210 $3,228,738 $2,152,272 $312,906
Long-term debt.................. $2,997,410 $2,195,933 $2,231,574 $1,255,453 $ 989,101 $ 611,571 $146,824
Partners' capital............... $3,080,046 $3,106,789 $3,159,034 $2,117,067 $1,774,798 $1,360,663 $150,224
|
(1) Includes results of operations for our additional 10% interest in the Cochin Pipeline System and our acquisitions of Laser Materials Services LLC and Tejas Gas, LLC since dates of acquisition. The additional interest in Cochin Pipeline System and Laser Materials Services LLC were effective as of January 1, 2002. The Tejas Gas LLC acquisition was effective January 31, 2002.
(2) Includes results of operations for the remaining 50% interest in the Colton Processing Facility, Kinder Morgan Texas Pipeline, L.P., Casper and Douglas gas gathering assets, 50% interest in Coyote Gas Treating, LLC, 25% interest in Thunder Creek Gas Services, LLC, Central Florida Pipeline LLC, Kinder Morgan Liquids Terminals LLC, Pinney Dock and Transport LLC, CALNEV Pipe Line LLC and the 34.8% interest in Cochin Pipeline System since dates of acquisition. The remaining interest in the Colton Processing Facility, Kinder Morgan Texas Pipeline, L.P., Casper and Douglas gas gathering assets and our interests in Coyote and Thunder Creek were acquired on December 31, 2000. Central Florida and Kinder Morgan Liquids Terminals LLC were acquired January 1, 2001. Pinney Dock was acquired March 1, 2001. CALNEV was acquired March 30, 2001. Our second investment in Cochin, representing a 2.3% interest was made on June 20, 2001.
(3) Includes results of operations for the remaining 50% interest in the Colton Processing Facility, Kinder Morgan Texas Pipeline, L.P., Casper and Douglas gas gathering assets, 50% interest in Coyote Gas Treating, LLC, 25% interest in Thunder Creek Gas Services, LLC, Central Florida Pipeline LLC, Kinder Morgan Liquids Terminals LLC, Pinney Dock & Transport LLC, CALNEV Pipe Line LLC, 34.8% interest in the Cochin Pipeline System, Vopak terminal LLCs, Boswell terminal assets, Stolt-Nielsen terminal assets and additional gasoline and gas plant interests since dates of acquisition. The remaining interest in the Colton Processing Facility, Kinder Morgan Texas Pipeline, L.P., Casper and Douglas gas gathering assets and our interests in Coyote and Thunder Creek were acquired on December 31, 2000. Central Florida and Kinder Morgan Liquids Terminals LLC were acquired January 1, 2001. Pinney Dock was acquired March 1, 2001. CALNEV was acquired March 30, 2001. Our second investment in Cochin, representing a 2.3% interest was made on June 20, 2001. Vopak terminal LLCs were acquired July 10, 2001. Boswell terminals were acquired August 31, 2001. Stolt-Nielsen terminals were acquired on November 8 and 29, 2001, and our additional interests in the Snyder Gasoline Plant and the Diamond M Gas Plant were acquired on November 14, 2001.
(4) Includes results of operations for Kinder Morgan Interstate Gas Transmission, LLC, 66 2/3% interest in Trailblazer Pipeline Company, 49% interest in Red Cedar, Milwaukee Bulk Terminals, Dakota Bulk Terminal, remaining 80% interest in Kinder Morgan CO2 Company, L.P., Devon Energy carbon dioxide properties, Kinder Morgan Transmix Company, LLC, a 32.5% interest in Cochin Pipeline System and Delta Terminal Services LLC since dates of acquisition. Kinder Morgan Interstate Gas Transmission, LLC, Trailblazer assets, and our 49% interest in Red Cedar were acquired on December 31, 1999. Milwaukee
Bulk Terminals, Inc. and Dakota Bulk Terminal, Inc. were acquired on January 1, 2000. Kinder Morgan Transmix Company, LLC was acquired on October 25, 2000. Our 32.5% interest in Cochin was acquired on November 3, 2000, and Delta Terminal Services LLC was acquired on December 1, 2000.
(5) Includes results of operations for 51% interest in Plantation Pipe Line Company, Products Pipelines' initial transmix operations and 33 1/3% interest in Trailblazer Pipeline Company since dates of acquisition. Our second investment in Plantation, representing a 27% interest was made on June 16, 1999. The Products Pipelines' initial transmix operations were acquired on September 10, 1999, and our initial 33 1/3% investment in Trailblazer was made on November 30, 1999.
(6) Includes results of operations for Pacific operations' pipeline system, Kinder Morgan Bulk Terminals and 24% interest in Plantation Pipe Line Company since dates of acquisition. Kinder Morgan Bulk Terminals were acquired on July 1, 1998 and our 24% interest in Plantation Pipe Line Company was acquired on September 15, 1998.
(7) Statement of Financial Accounting Standards No. 145, Rescission of FASB Statements No. 4, 44, and 64, Amendment of FASB Statement No. 13, and Technical Corrections, which is required to be implemented for fiscal years beginning after May 15, 2002, will result in the reclassification to income from continuing operations of gains or losses on extinguishment of debt that were previously reported as extraordinary items.
(8) EBITDA has been computed by adjusting income from continuing operations as follows: (a) increased by the amounts of depreciation and amortization, amortization of excess cost of equity investments, interest expense and income tax provision and (b) reduced by the amount of income tax benefit. EBITDA is not a measure recognized by generally accepted accounting principles and should not be considered in isolation or as a substitute for measures of income, performance, net cash provided by operations or liquidity prepared in accordance with generally accepted accounting principles. EBITDA as presented may not be comparable to other similarly titled financial measures of other companies.
In June 2001, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 142, Goodwill and Other Intangible Assets, referred to in the following discussion as "SFAS 142." SFAS 142, which superceded Accounting Principles Board Opinion No. 17, Intangible Assets, addresses financial accounting and reporting for (1) intangible assets acquired individually or with a group of other assets (but not those acquired in a business combination) at acquisition and (2) goodwill and other intangible assets subsequent to their acquisition. SFAS 142 is required to be applied starting with fiscal years beginning after December 15, 2001. As previously disclosed in our Form 10-Q for the period ended March 31, 2002 as filed with the SEC on May 10, 2002, we adopted SFAS 142 effective January 1, 2002.
Had the provisions of SFAS 142 been in effect during the periods prior to January 1, 2002 presented above, goodwill amortization would have been eliminated, increasing net income and associated per unit amounts as follows:
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
------------------- ---------------------------------------------------
2002 2001 2001 2000 1999 1998 1997
-------- -------- -------- -------- -------- -------- -------
(IN THOUSANDS)
Reported Income Before Extraordinary
Charge..................................... $285,950 $205,893 $442,343 $278,348 $184,897 $117,217 $17,737
Add Back: Goodwill Amortization, Net of
Related Tax Benefit........................ -- 5,967 13,416 5,460 3,048 966 --
-------- -------- -------- -------- -------- -------- -------
Adjusted Income Before Extraordinary
Charge..................................... 285,950 211,860 455,759 283,808 187,945 118,183 17,737
Extraordinary Charge......................... -- -- -- -- (2,595) (13,611) --
-------- -------- -------- -------- -------- -------- -------
Adjusted Net Income.......................... $285,950 $211,860 $455,759 $283,808 $185,350 $104,572 $17,737
======== ======== ======== ======== ======== ======== =======
Reported Diluted Limited Partners' Net Income
per Unit................................... $ 0.95 $ 0.80 $ 1.56 $ 1.34 $ 1.29 $ 0.87 $ 0.51
======== ======== ======== ======== ======== ======== =======
Diluted Limited Partners' Net Income per
Unit, as Adjusted.......................... $ 0.95 $ 0.84 $ 1.65 $ 1.38 $ 1.32 $ 0.88 $ 0.51
======== ======== ======== ======== ======== ======== =======
|
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The historical ratios of earnings to fixed charges of us and our consolidated subsidiaries for the periods indicated are as follows:
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED --------------------------------
JUNE 30, 2002 2001 2000 1999 1998 1997
------------- ---- ---- ---- ---- ----
4.34 3.56 3.82 4.36 3.63 2.65
|
In all cases, earnings are determined by adding:
- income before income taxes, extraordinary items, equity income and minority interest; plus
- fixed charges, amortization of capitalized interest and distributed income of equity investees; less
- capitalized interest.
In all cases, fixed charges include:
- interest, including capitalized interest; plus
- amortization of debt issuance costs; plus
- the estimated interest portion of rental expenses.
CAPITALIZATION
The following table sets forth our historical consolidated capitalization as of June 30, 2002, and our consolidated capitalization as adjusted to give effect to:
- the issuance and sale on August 6, 2002 of 12,478,900 limited partner interests we call i-units to Kinder Morgan Management and the use of the net proceeds from that sale to retire short-term debt, and
- our receipt and use of the net proceeds from the sale of the original notes to retire commercial paper debt.
See "Use of Proceeds." You should read this table in conjunction with Management's Discussion and Analysis of Financial Condition and Results of Operations and our historical financial statements and notes thereto that are incorporated by reference in this prospectus.
HISTORICAL
JUNE 30,
2002 AS ADJUSTED
---------- -----------
(UNAUDITED)
(THOUSANDS OF DOLLARS)
Cash and cash equivalents................................... $ 32,041 $ 32,041
========== ==========
Notes payable and current maturities of long-term debt...... $ 802,446 $ --
---------- ----------
Long-term debt
Kinder Morgan Energy Partners, L.P.:
Credit facilities....................................... $ -- $ --
6.3% notes due 2009..................................... 249,458 249,458
8% notes due 2005....................................... 199,776 199,776
7.5% notes due 2010..................................... 248,681 248,681
6.75% notes due 2011.................................... 698,210 698,210
7.125% notes due 2012................................... 447,968 447,968
7.75% notes due 2032.................................... 298,491 298,491
7.40% notes due 2031.................................... 299,278 299,278
Other (market value of interest rate swaps)............. 33,672 33,672
Short-term debt expected to be refinanced............... 276,300 4,122
5.35% notes due 2007.................................... -- 249,830
7.30% notes due 2033.................................... -- 499,056
Subsidiaries:
Industrial revenue and economic development bonds due
2004 (Kinder Morgan Liquids Terminals L.L.C.).......... 87,930 87,930
Notes due 2008 (Central Florida Pipeline L.L.C.)........ 30,000 30,000
First mortgage notes (SFPP, L.P.)....................... 37,057 37,057
New Jersey economic development bonds due 2018 (Kinder
Morgan Liquids Terminals L.L.C.)....................... 25,000 25,000
Tax exempt bonds due 2024 (Kinder Morgan Operating L.P.
"B")................................................... 23,700 23,700
Plaquemines, Louisiana Port development bonds due 2006
(International Marine Terminals)....................... 40,000 40,000
Other................................................... 1,889 1,889
---------- ----------
Total long-term debt................................ $2,997,410 $3,474,118
---------- ----------
Minority interest(1)........................................ $ 39,010 $ 42,363
---------- ----------
Partners' capital
Common units, 129,922,218 units issued and
outstanding(2)......................................... $1,871,905 $1,871,905
Class B units, 5,313,400 units issued and outstanding... 124,768 124,768
i-units, 31,617,905 issued and outstanding before the
August 6 sale, and 44,096,805 issued and outstanding
after the August 6 sale(2)............................. 1,049,854 1,378,413
General partner......................................... 64,377 64,377
Accumulated other comprehensive income (loss)........... (30,858) (30,858)
---------- ----------
Total partners' capital........................... $3,080,046 $3,408,605
---------- ----------
Total capitalization........................................ $6,918,912 $6,925,086
========== ==========
|
(2) The unit numbers do not include:
- the 265,500 common units issuable, subject to vesting, upon exercise of options granted by us and outstanding on June 30, 2002; and
- the effect of exercises of common unit options, since no common units have been issued upon exercise of options since June 30, 2002.
DESCRIPTION OF NOTES
GENERAL
The original notes were issued, and the exchange notes will be issued, under an indenture dated as of August 19, 2002. The indenture is a contract between us and Wachovia Bank, National Association, which acts as trustee. The indenture and the notes contain the full legal text of the matters described in this section. The indenture and the notes are governed by New York law. A copy of the indenture is filed as an exhibit to the registration statement of which this prospectus is a part.
The following description of the material provisions of the notes and the indenture is a summary only. Because this section is a summary, it does not describe every aspect of those documents. You should read the indenture because it, and not this summary, controls your rights as a holder of beneficial interests in the notes. This summary is subject to and qualified in its entirety by reference to all the provisions of the indenture, including definitions of terms referenced in this prospectus. The summary contains references to the described sections of the indenture.
PRINCIPAL AND MATURITY
The notes are unsecured obligations of Kinder Morgan Energy Partners. Although only $250 million aggregate principal amount of the 5.35% notes and $500 million aggregate principal amount of the 7.30% notes were originally issued, so long as no Event of Default under the indenture has occurred and is continuing, we may issue and sell additional notes of either or both series and with the same terms, without the consent of holders of either series of the notes. Any additional notes of a series, together with these notes of that series, will constitute a single series of notes under the indenture. The 5.35% notes will mature on August 15, 2007 and the 7.30% notes will mature on August 15, 2033, unless sooner redeemed. The notes are not entitled to the benefits of a sinking fund.
All of the notes of each series are held initially in the form of one or more global notes. See "Book-Entry, Delivery and Form" for a general description of the global notes.
INTEREST
The notes bear interest from August 19, 2002 at the annual rates set forth on the cover page of this prospectus, payable semi-annually in arrears on February 15 and August 15 of each year to noteholders in whose name the notes are registered at the close of business on February 1 or August 1 (whether or not a business day) preceding the applicable interest payment date. We refer to each of those days as an interest payment date. If an interest payment date or a redemption date occurs on a date which is not a business day, payment will be made on the next business day and no additional interest will accrue. Interest payments shall commence on February 15, 2003.
Interest on the notes is computed on the basis of a 360-day year comprised of twelve 30-day months.
RANKING
The notes will rank equally with all of our other unsecured and unsubordinated indebtedness from time to time outstanding. Holders of the notes will generally have a junior position to claims of creditors and holders of preferred securities of our subsidiaries who do not become guarantors. Currently, none of our subsidiaries are guarantors, even though some of them have long-term debt. See "Capitalization."
The indenture does not limit our ability to incur additional indebtedness or contain provisions that would afford holders of notes protection in the event of a sudden and significant decline in our credit quality or a takeover, recapitalization or highly leveraged or similar transaction. Accordingly, we could in the future enter into transactions that could increase the amount of indebtedness outstanding at that time or otherwise adversely affect our capital structure or credit rating.
OPTIONAL REDEMPTION
The notes of each series are redeemable, at our option, at any time in whole, or from time to time in part, upon not less than 30 and not more than 60 days notice mailed to each holder of notes of that series to be redeemed at the holder's address appearing in the note register, at a price equal to 100% of the principal amount of the notes to be redeemed plus accrued interest to the redemption date, subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date, plus a make-whole premium, if any. In no event will the redemption price ever be less than 100% of the principal amount of the notes being redeemed plus accrued interest to the redemption date.
The amount of the make-whole premium on any note, or portion of a note, to be redeemed will be equal to the excess, if any, of:
(1) the sum of the present values, calculated as of the redemption date, of:
- each interest payment that, but for the redemption, would have been payable on the note, or portion of a note, being redeemed on each interest payment date occurring after the redemption date, excluding any accrued interest for the period prior to the redemption date; and
- the principal amount that, but for the redemption, would have been payable at the stated maturity of the note, or portion of a note, being redeemed;
over
(2) the principal amount of the note, or portion of a note, being redeemed.
The present value of interest and principal payments referred to in clause
(1) above will be determined in accordance with generally accepted principles of
financial analysis. The present values will be calculated by discounting the
amount of each payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the redemption date
at a discount rate equal to the Treasury Yield, as defined below, plus 0.20% in
the case of the 5.35% notes and 0.30% in the case of the 7.30% notes.
The make-whole premium will be calculated by an independent investment banking institution of national standing appointed by us. It could be one of the initial purchasers. If we fail to make that appointment at least 30 business days prior to the redemption date, or if the institution so appointed is unwilling or unable to make the calculation, the financial institution named in the notes will make the calculation. If the financial institution named in the notes is unwilling or unable to make the calculation, an independent investment banking institution of national standing appointed by the trustee will make the calculation.
For purposes of determining the make-whole premium, Treasury Yield refers to an annual rate of interest equal to the weekly average yield to maturity of United States Treasury Notes that have a constant maturity that corresponds to the remaining term to maturity of the notes of the applicable series to be redeemed, calculated to the nearer 1/12 of a year, which we call the remaining term. The Treasury Yield will be determined as of the third business day immediately preceding the applicable redemption date.
The weekly average yields of United States Treasury Notes will be determined by reference to the most recent statistical release published by the Federal Reserve Bank of New York and designated "H.15(519) Selected Interest Rates" or any successor release, which we call the H.15 Statistical Release. If the H.15 Statistical Release sets forth a weekly average yield for United States Treasury Notes having a constant maturity that is the same as the remaining term of the series to be redeemed, then the Treasury Yield will be equal to that weekly average yield. In all other cases, the Treasury Yield will be calculated by interpolation, on a straight-line basis, between the weekly average yields on the United States Treasury Notes that have a constant maturity closest to and greater than the remaining term of the series to be
redeemed and the United States Treasury Notes that have a constant maturity closest to and less than the remaining term, in each case as set forth in the H.15 Statistical Release. Any weekly average yields so calculated by interpolation will be rounded to the nearer 0.01%, with any figure of 0.0050% or more being rounded upward. If weekly average yields for United States Treasury Notes are not available in the H.15 Statistical Release or otherwise, then the Treasury Yield will be calculated by interpolation of comparable rates selected by the independent investment banking institution.
If less than all of the notes of a series are to be redeemed, the trustee will select the notes to be redeemed by a method that the trustee deems fair and appropriate. The trustee may select for redemption notes and portions of notes in amounts of $1,000 or whole multiples of $1,000.
SAME DAY SETTLEMENT
The original notes trade in, and the exchange notes will trade in, The Depository Trust Company's settlement system until maturity. As a result, The Depository Trust Company will require secondary trading activity in the notes to be settled in immediately available funds. So long as the notes continue to trade in The Depository Trust Company's settlement system, all payments of principal and interest on the global notes will be made by us in immediately available funds.
CERTAIN COVENANTS
LIMITATIONS ON LIENS
The indenture provides that we will not, nor will we permit any subsidiary to, create, assume, incur or suffer to exist any lien upon any Principal Property, as defined below, or upon any shares of capital stock of any subsidiary owning or leasing any Principal Property, whether owned or leased on the date of the indenture or thereafter acquired, to secure any of our debt or debt of any other person, other than the notes issued under the indenture, without making effective provision for all of the notes outstanding under the indenture to be secured equally and ratably with, or prior to, that debt so long as that debt is so secured.
Principal Property means, whether owned or leased on the date of the indenture or thereafter acquired:
- any pipeline assets of ours or any subsidiary, including any related facilities employed in the transportation, distribution, storage or marketing of refined petroleum products, natural gas liquids and carbon dioxide, that are located in the United States of America or any territory or political subdivision thereof; and
- any processing or manufacturing plant or terminal owned or leased by us or any subsidiary that is located in the United States or any territory or political subdivision thereof,
except, in the case of either of the foregoing clauses:
(1) any of those assets consisting of inventories, furniture, office fixtures and equipment, including data processing equipment, vehicles and equipment used on, or useful with, vehicles; and
(2) any of those assets, plants or terminals which, in the opinion of the board of directors of Kinder Morgan Management, LLC, the delegate of Kinder Morgan G.P., Inc., our general partner, is not material in relation to our activities or those of our subsidiaries, taken as a whole.
There is excluded from this restriction:
(1) Permitted Liens, as defined below;
(2) any lien upon any property or assets created at the time of acquisition of that property or assets by us or any subsidiary or within one year after that time to secure all or a portion of the
purchase price for that property or assets or debt incurred to finance the purchase price, whether that debt was incurred prior to, at the time of or within one year after the date of the acquisition;
(3) any lien upon any property or assets to secure all or part of the cost of construction, development, repair or improvements thereon or to secure debt incurred prior to, at the time of, or within one year after completion of the construction, development, repair or improvements or the commencement of full operations thereof, whichever is later, to provide funds for that purpose;
(4) any lien upon any property or assets existing thereon at the time of the acquisition thereof by us or any subsidiary; provided, however, that the lien only encumbers the property or assets so acquired;
(5) any lien upon any property or assets of an entity existing thereon at the time that entity becomes a subsidiary by acquisition, merger or otherwise; provided, however, that the lien only encumbers the property or assets of that entity at the time it becomes a subsidiary;
(6) any lien upon any property or assets of ours or any subsidiary in existence on the date the notes are first issued or provided for pursuant to agreements existing on that date;
(7) liens imposed by law or order as a result of any proceeding before any court or regulatory body that is being contested in good faith, and liens which secure a judgment or other court-ordered award or settlement as to which we or the applicable subsidiary have not exhausted our appellate rights;
(8) any extension, renewal, refinancing, refunding or replacement, or successive extensions, renewals, refinancing, refunding or replacements, of liens, in whole or in part, referred to in clauses (1) through (7) above; provided, however, that any extension, renewal, refinancing, refunding or replacement lien shall be limited to the property or assets covered by the lien extended, renewed, refinanced, refunded or replaced and that the obligations secured by any extension, renewal, refinancing, refunding or replacement lien shall be in an amount not greater than the amount of the obligations secured by the lien extended, renewed, refinanced, refunded or replaced and any expenses of ours and our subsidiaries, including any premium, incurred in connection with any extension, renewal, refinancing, refunding or replacement; or
(9) any lien resulting from the deposit of moneys or evidence of indebtedness in trust for the purpose of defeasing debt of ours or any subsidiary.
Notwithstanding the foregoing, under the indenture, we may, and may permit any subsidiary to, create, assume, incur, or suffer to exist any lien upon any Principal Property to secure debt of ours or any person, other than the notes, that is not excepted by clauses (1) through (9) above, without securing the notes issued under the indenture; provided that the aggregate principal amount of all debt then outstanding secured by that lien and all similar liens, together with all Attributable Indebtedness, as defined below, from Sale-Leaseback Transactions (excluding Sale-Leaseback Transactions permitted by clauses (1) through (4), inclusive, of the first paragraph of the restriction on sale-leasebacks covenant described below) does not exceed 10% of Consolidated Net Tangible Assets, as defined below. (Section 1006)
Permitted Liens means:
(1) liens upon rights-of-way for pipeline purposes;
(2) any statutory or governmental lien or lien arising by operation of law, or any mechanic's, repairman's, materialman's, supplier's, carrier's, landlord's, warehouseman's or similar lien incurred in the ordinary course of business which is not yet due or which is being contested in good faith by appropriate proceedings and any undetermined lien which is incidental to construction, development, improvement or repair;
(3) the right reserved to, or vested in, any municipality or public authority by the terms of any right, power, franchise, grant, license, permit or by any provision of law, to purchase or recapture or to designate a purchaser of, any property;
(4) liens of taxes and assessments which are (A) for the then current year, (B) not at the time delinquent, or (C) delinquent but the validity of which is being contested at the time by us or any subsidiary in good faith;
(5) liens of, or to secure performance of, leases, other than capital leases;
(6) any lien upon, or deposits of, any assets in favor of any surety company or clerk of court for the purpose of obtaining indemnity or stay of judicial proceedings;
(7) any lien upon property or assets acquired or sold by us or any subsidiary resulting from the exercise of any rights arising out of defaults on receivables;
(8) any lien incurred in the ordinary course of business in connection with workmen's compensation, unemployment insurance, temporary disability, social security, retiree health or similar laws or regulations or to secure obligations imposed by statute or governmental regulations;
(9) any lien in favor of us or any subsidiary;
(10) any lien in favor of the United States of America or any state of the United States, or any department, agency or instrumentality or political subdivision of the United States of America or any state of the United States, to secure partial, progress, advance, or other payments pursuant to any contract or statute, or any debt incurred by us or any subsidiary for the purpose of financing all or any part of the purchase price of, or the cost of constructing, developing, repairing or improving, the property or assets subject to the lien;
(11) any lien securing industrial development, pollution control or similar revenue bonds;
(12) any lien securing debt of ours or any subsidiary, all or a portion of the net proceeds of which are used, substantially concurrent with the funding thereof (and for purposes of determining "substantial concurrence," taking into consideration, among other things, required notices to be given to holders of outstanding notes under the indenture in connection with the refunding, refinancing or repurchase, and the required corresponding durations thereof), to refinance, refund or repurchase all outstanding notes under the indenture, including the amount of all accrued interest thereon and reasonable fees and expenses and premium, if any, incurred by us or any subsidiary in connection therewith;
(13) liens in favor of any person to secure obligations under the provisions of any letters of credit, bank guarantees, bonds or surety obligations required or requested by any governmental authority in connection with any contract or statute; or
(14) any lien upon or deposits of any assets to secure performance of bids, trade contracts, leases or statutory obligations.
Consolidated Net Tangible Assets means, at any date of determination, the total amount of assets after deducting:
- all current liabilities, excluding:
- any current liabilities that by their terms are extendable or renewable at the option of the obligor to a time more than 12 months after the time as of which the amount is being computed; and
- current maturities of long-term debt; and
- the value, net of any applicable reserves, of all goodwill, trade names, trademarks, patents and other like intangible assets,
all as set forth, or on a pro forma basis as would be set forth, on our consolidated balance sheet for our most recently completed fiscal quarter, prepared in accordance with generally accepted accounting principles.
RESTRICTION ON SALE-LEASEBACKS
The indenture provides that we will not, and will not permit any of our subsidiaries to, engage in the sale or transfer by us or any subsidiary of any Principal Property to a person, other than us or a subsidiary, and the taking back by us or any subsidiary, as the case may be, of a lease of the Principal Property, which we call a Sale-Leaseback Transaction, unless:
(1) the Sale-Leaseback Transaction occurs within one year from the date of completion of the acquisition of the Principal Property subject thereto or the date of the completion of construction, development or substantial repair or improvement, or commencement of full operations on the Principal Property, whichever is later;
(2) the Sale-Leaseback Transaction involves a lease for a period, including renewals, of not more than three years;
(3) we or a subsidiary would be entitled to incur debt secured by a lien on the Principal Property subject thereto in a principal amount equal to or exceeding the Attributable Indebtedness from the Sale-Leaseback Transaction without equally and ratably securing the notes; or
(4) we or a subsidiary, within a one-year period after the Sale-Leaseback Transaction, applies or causes to be applied an amount not less than the Attributable Indebtedness from the Sale-Leaseback Transaction to:
- the prepayment, repayment, redemption, reduction or retirement of any of our debt or debt of any subsidiary that is not subordinated to the notes; or
- the expenditure or expenditures for Principal Property used or to be used in the ordinary course of our business or the business of our subsidiaries.
Attributable Indebtedness, when used with respect to any to any Sale-Leaseback Transaction, means, as at the time of determination, the present value, discounted at the rate set forth or implicit in the terms of the lease included in the transaction, of the total obligations of the lessee for rental payments during the remaining term of the lease included in the Sale-Leaseback Transaction, including any period for which the lease has been extended; provided that the rental payments shall include amounts required to be paid on account of property taxes, maintenance, repairs, insurance, assessments, utilities, operating and labor costs and other items that do not constitute payments for property rights. In the case of any lease that is terminable by the lessee upon the payment of a penalty or other termination payment, the amount shall be the lesser of the amount determined assuming termination upon the first date the lease may be terminated, in which case the amount shall also include the amount of the penalty or termination payment, but no rent shall be considered as required to be paid under the lease subsequent to the first date upon which it may be so terminated, or the amount determined assuming no termination.
Notwithstanding the foregoing, the indenture provides that we may, and may permit any subsidiary to, effect any Sale-Leaseback Transaction that is not excepted by clauses (1) through (4), inclusive, of the first paragraph above, provided that the Attributable Indebtedness from the Sale-Leaseback Transaction, together with the aggregate principal amount of outstanding debt, other than the notes, secured by liens upon Principal Properties not excepted by clauses (1) through (9), inclusive, of the first paragraph of the limitation on liens covenant described above, do not exceed 10% of the Consolidated Net Tangible Assets. (Section 1007)
POTENTIAL GUARANTY OF NOTES BY SUBSIDIARIES
We are a holding company that conducts all of our operations through our subsidiaries. Initially, none of our subsidiaries will guarantee the notes. However, if our subsidiaries become guarantors or co-obligors of our Funded Debt, as defined below, then those subsidiaries will be required by the indenture to fully and unconditionally guarantee, as "guarantors," our payment obligations on the notes. In particular, the indenture will require those subsidiaries who become guarantors or borrowers under our bank credit agreement to equally guarantee the notes.
However, SFPP, L.P., the subsidiary that owns our Pacific operations, currently has debt agreements that prohibit it from becoming a guarantor of any of our debt. As a result, SFPP, L.P. will not become a guarantor, and your claims will be subordinated to those of any creditors of SFPP, L.P. On June 30, 2002, SFPP, L.P. had approximately $79.5 million of outstanding debt to non-affiliates.
In the indenture, the term subsidiary means, with respect to any person:
- any entity of which more than 50% of the total voting power of the equity interests entitled, without regard to the occurrence of any contingency, to vote in the election of directors, managers or trustees thereof; or
- any partnership of which more than 50% of the partners' equity interests, considering all partners' equity interests as a single class, is at the time owned or controlled, directly or indirectly, by that person or one or more of the other subsidiaries of that person or combination thereof.
Funded Debt means all debt:
- maturing one year or more from the date of its creation;
- directly or indirectly renewable or extendable, at the option of the debtor, by its terms or by the terms of any instrument or agreement relating to the debt, to a date one year or more from the date of its creation; or
- under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of one year or more.
ADDITION AND RELEASE OF GUARANTEES
The indenture provides that if any of our subsidiaries is a guarantor or obligor of any of our Funded Debt at any time on or subsequent to the date on which the notes are originally issued, including, without limitation, following any release of the subsidiary from its guarantee as described below, then we will cause the notes to be equally and ratably guaranteed by that subsidiary. Under the terms of the indenture, a guarantor may be released from its guarantee if the guarantor is not a guarantor or obligor of any of our Funded Debt, provided that no default or Event of Default under the indenture has occurred or is continuing. (Sections 1401 and 1402)
Each of the guarantees would be an unsecured obligation of a guarantor and would rank equally with that guarantor's guarantee, if any, under our bank credit agreement and existing and future unsecured debt that is not expressly subordinated to its guarantee.
Each guarantor would be obligated under its guarantee only up to an amount that would not constitute a fraudulent conveyance or fraudulent transfer under federal, state or foreign law.
CONSOLIDATION, MERGER OR ASSET SALE
The indenture generally allows us to consolidate or merge with a domestic
partnership or corporation. It also allows us to sell, lease or transfer all or
substantially all of our property and assets to a domestic partnership or
corporation. If this happens, the remaining or acquiring partnership or
corporation must assume all of our responsibilities and liabilities under the
indenture, including the payment of all amounts due on the notes and performance
of the covenants in the indenture.
However, we will consolidate or merge only with or into any other partnership, corporation or other entity or sell, lease or transfer all or substantially all of our assets according to the terms and conditions of the indenture, which include the following requirements:
- the remaining or acquiring partnership or corporation is organized under the laws of the United States, any state or the District of Columbia;
- the remaining or acquiring partnership or corporation assumes our obligations under the indenture; and
- immediately after giving effect to the transaction no Event of Default, as defined below, exists.
The remaining or acquiring partnership or corporation will be substituted for us in the indenture with the same effect as if it had been an original party to the indenture. Thereafter, the successor may exercise our rights and powers under the indenture, in our name or in its own name. If we sell or transfer all or substantially all of our assets, we will be released from all our liabilities and obligations under any indenture and under the notes. If we lease all or substantially all of our assets, we will not be released from our obligations under the indenture. (Sections 801 and 802)
If, at any time, any of our subsidiaries are required to guaranty the notes, the restriction on our ability to consolidate or merge and to sell, lease or transfer all or substantially all of our property and assets also will apply to that subsidiary.
NOTES EFFECTIVELY SUBORDINATED TO DEBT OF NON-GUARANTOR SUBSIDIARIES
Holders of notes will effectively have a junior position to claims of creditors and holders of preferred securities of our subsidiaries who are not guarantors. Currently, none of our subsidiaries are guarantors, even though some of them have long-term debt. See "Capitalization." This debt and any future debt of our subsidiaries who are not guarantors effectively will be senior to the notes.
MODIFICATION OF THE INDENTURE
Under the indenture, generally we and the trustee may modify our rights and obligations, any guarantors' rights and obligations and the rights of the holders with the consent of the holders of a majority in aggregate principal amount of the outstanding notes of each series affected by the modification. No modification of the principal or interest payment terms, and no modification reducing the percentage required for modifications, for either series of notes is effective against any holder without its consent. In addition, we and the trustee may amend the indenture without the consent of any holder of the notes to make certain technical changes, such as:
- amending the indenture to reopen the applicable series represented by the notes and issue additional notes of that series having the same terms;
- correcting errors;
- providing for a successor trustee; or
- qualifying the indenture under the Trust Indenture Act. (Sections 901 and 902)
EVENTS OF DEFAULT AND REMEDIES
In the indenture, Event of Default will mean with respect to a series of notes any of the following:
- failure to pay the principal of or any premium on any note of that series when due;
- failure to pay interest on any note of that series for 30 days;
- failure to perform any other covenant in the indenture that continues for 60 days after being given written notice; or
- our bankruptcy, insolvency or reorganization. (Section 501)
An Event of Default for a particular series of notes will not necessarily constitute an event of default for any other series or under our other indebtedness or vice versa. The trustee may withhold notice to the holders of notes of any default, except in the payment of principal or interest on such series, if it considers such withholding of notice to be in the best interests of the holders. (Section 602)
If an Event of Default with respect to a series of notes occurs and continues, the trustee or the holders of at least 25% in aggregate principal amount of that series of notes may declare the entire principal of all that series of notes and accrued but unpaid interest to be due and payable immediately. If this happens, subject to certain conditions, the holders of a majority of the aggregate principal amount of the notes of that series can void the declaration. (Section 502)
Other than its duties in case of a default, the trustee is not obligated to exercise any of its rights or powers under the indenture at the request, order or direction of any holders, unless the holders offer the trustee reasonable indemnity. (Section 601) If the holders provide this reasonable indemnity, the holders of a majority in principal amount of any series of notes may direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any power conferred upon the trustee, for the notes of that series. (Section 512)
MINIMUM DENOMINATIONS
The notes will be issued in registered form in amounts of $1,000 each or multiples of $1,000.
NO PERSONAL LIABILITY OF KINDER MORGAN MANAGEMENT, LLC AND DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS
Kinder Morgan Management, LLC, the delegate of our general partner, and the respective directors, officers, employees and shareholders of Kinder Morgan Management and of our general partner will not have any liability for our obligations under the indenture or the notes. Each holder of notes by accepting a note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the notes.
DISCHARGING OUR OBLIGATIONS
We and the guarantors, if any, may choose either to discharge our obligations on the notes of any series in a legal defeasance, or to release ourselves from our covenant restrictions on the notes of any series in a covenant defeasance. We may do so at any time on the 91st day after we deposit with the trustee sufficient cash or government securities to pay the principal, interest, any premium and any other sums due to the stated maturity date or a redemption date of the notes of the series. If we choose this legal defeasance option, the holders of the notes of the series will not be entitled to the benefits of the indenture except for registration of transfer and exchange of notes, replacement of lost, stolen or mutilated notes, conversion or exchange of notes and receipt of principal and interest on the original stated due dates or specified redemption dates. (Section 1302)
We may discharge our obligations under the indenture or release ourselves from covenant restrictions only if we meet certain requirements. Among other things, we must deliver an opinion of our legal counsel that the discharge will not result in holders having to recognize taxable income or loss or subject them to different tax treatment. In the case of legal defeasance, this opinion must be based on either an IRS letter ruling or change in federal tax law. We may not have a default on the notes of the series discharged on the date of deposit. The discharge may not violate any of our agreements. The discharge may not result in our becoming an investment company in violation of the Investment Company Act of 1940, as amended.
THE TRUSTEE
Wachovia Bank, National Association, 12 East 49th Street, 37th Floor, New York, New York 10017 is initially named to act as trustee under the indenture.
The trustee may resign or be removed by us with respect to the notes and a
successor trustee may be appointed to act with respect to the notes. The holders
of a majority in aggregate principal amount of the notes may remove the trustee.
(Section 610)
LIMITATIONS ON TRUSTEE IF IT IS A CREDITOR OF KINDER MORGAN ENERGY PARTNERS
The indenture contains certain limitations on the right of the trustee, in the event that it becomes our creditor, to obtain payment of claims in some cases, or to realize on property received in respect of any such claim, as security or otherwise. (Section 613)
ANNUAL TRUSTEE REPORT TO HOLDERS OF NOTES
The trustee is required to submit an annual report to the holders of the notes regarding, among other things, the trustee's eligibility to so serve, the priority of the trustee's claims regarding certain advances made by it, and any action taken by the trustee materially affecting the notes.
CERTIFICATES AND OPINIONS TO BE FURNISHED TO TRUSTEE
The indenture provides that, in addition to other certificates or opinions that may be specifically required by other provisions of the indenture, every application by us for action by the trustee shall be accompanied by a certificate of our officers and an opinion of counsel, who may be our counsel, stating that, in the opinion of the signers, we have complied with all applicable conditions precedent to the action. (Section 102)
BOOK-ENTRY, DELIVERY AND FORM
Generally, the notes of a series will be issued in the form of global notes registered in the name of The Depository Trust Company or its nominee.
Beneficial interests in the global notes may not be exchanged for notes in certificated form except in the limited circumstances described below. Payment of the principal of and interest on certificated notes is subject to the indenture and will be made at the corporate trust office of the trustee or such other office or agency as may be designated by it for such purpose in New York City. Payment of interest on certificated notes will be made to the person in whose name such note is registered at the close of business on the applicable record date. All other terms of the certificated notes are governed by the indenture.
Except as described below, the global notes may be transferred, in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee.
Initially, the trustee will act as paying agent and registrar for the notes.
DEPOSITARY PROCEDURES
DTC is a limited-purpose trust company created to hold securities for its participating organizations and to facilitate the clearance and settlement of transactions in those securities between participants through electronic book-entry changes in accounts of participants. The participants include securities brokers and dealers (including the initial purchasers), banks, trust companies, clearing corporations and certain other organizations. Access to DTC's system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly. Persons who are not participants may beneficially own securities held by or on behalf of DTC only through the participants or indirect participants. The ownership interest and transfer of ownership interest of each actual purchaser of each security held by or on behalf of DTC are recorded on the records of the participants and indirect participants.
Pursuant to DTC's procedures, (a) upon deposit of the global notes, DTC
will credit the accounts of participants designated by the initial purchasers
with portions of the principal amount of global notes and (b) ownership of such
interests in the global notes will be shown on, and the transfer of ownership
thereof
will be effected only through, records maintained by DTC (with respect to participants) or by participants and the indirect participants (with respect to other owners of beneficial interests in the global notes).
The laws of some states require that certain persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interest in a global note to such persons may be limited to that extent. Because DTC can act only on behalf of participants, which in turn act on behalf of indirect participants and certain banks, the ability of a person having a beneficial interest in a global note to pledge such interest to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of physical certificates evidencing such interest. For certain other restrictions on the transferability of the notes, see "-- Certificated Notes."
Under the terms of the indenture, we and the trustee will treat the persons in whose names the notes, including the global notes, are registered as the owners thereof for the purpose of receiving payments of principal and premium and liquidated damages, if any, and interest and for any and all other purposes whatsoever. Payments in respect of the principal and premium and liquidated damages, if any, and interest on a global note registered in the name of DTC or its nominee will be payable by the trustee to DTC or its nominee in its capacity as the registered holder under the indenture. Consequently, none of us, the trustee nor any of our agents or the trustee's agents has or will have any responsibility or liability for (a) any aspect of DTC's records or any participant's or indirect participant's records relating to or payments made on account of beneficial ownership interests in the global notes, or for maintaining, supervising or reviewing any of DTC's records or any participant's or indirect participant's records relating to the beneficial ownership interests in the global notes or (b) any other matter relating to the actions and practices of DTC or any of its participants or indirect participants.
DTC's current practices for payments of principal, interest, liquidated damages and the like with respect to securities such as the notes are to credit the accounts of the relevant participants with the payment on the payment date, in amounts proportionate to their respective holdings in principal amount of beneficial interests in the relevant security such as the global notes as shown on the records of DTC. Payments by participants and the indirect participants to the beneficial owners of notes will be governed by standing instructions and customary practices and will not be the responsibility of DTC, the trustee or us. Neither we nor the trustee will be liable for any delay by DTC or its participants in identifying the beneficial owners of the notes, and we and the trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee as the registered owner of the notes for all purposes.
The global notes will trade in DTC's Same-Day Funds Settlement System and, therefore, transfers between participants in DTC will be effected in accordance with DTC's procedures, and will be settled in immediately available funds. Transfers between indirect participants who hold an interest through a participant will be effected in accordance with the procedures of such participant but generally will settle in immediately available funds.
DTC will take any action permitted to be taken by a holder of notes only at the direction of one or more participants to whose account interests in the global notes are credited and only in respect of such portion of the aggregate principal amount of the notes to which such participant or participants has or have given direction. However, if there is an event of default under the notes, DTC reserves the right to exchange global notes (without the direction of one or more of its participants) for notes in certificated form, and to distribute such certificated forms of notes to its participants.
Although DTC has agreed to the foregoing procedures to facilitate transfers of interests in the notes among participants, it is under no obligation to perform or to continue to perform such procedures, and such procedures may be discontinued at any time. Neither we nor the trustee shall have any responsibility for the performance by DTC or its participants and indirect participants of their respective obligations under the rules and procedures governing any of their operations.
Certificated Notes. Subject to certain conditions, any person having a beneficial interest in the global note may, upon request to the trustee, exchange such beneficial interest for notes in the form of
certificated notes. Upon any such issuance, the trustee is required to register such certificated notes in the name of, and cause the same to be delivered to, such person or persons (or the nominee of any thereof). In addition, if
- we notify the trustee in writing that DTC is no longer willing or able to act as a depositary and we are unable to locate a qualified successor within 90 days,
- we, at our option, notify the trustee in writing that we elect to cause the issuance of notes in the form of certificated notes under the indenture, or
- DTC will not continue to hold the book-entry interests related to the global notes or is no longer a clearing agency registered under the Exchange Act and we do not replace DTC within 120 days,
then, upon surrender by the global note holder of its global note, notes in such form will be issued to each person that the global note holder and DTC identify as being the beneficial owner of the related notes.
Neither we nor the trustee will be liable for any delay by the Global Note holder or DTC in identifying the beneficial owners of notes and we and the trustee may conclusively rely on, and will be protected in relying on, instructions from the Global Note holder or DTC for all purposes.
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS
The following discussion summarizes the material United States federal income tax consequences relevant to the purchase, ownership and disposition of the notes and reflects the opinion provided by Bracewell & Patterson, L.L.P., our counsel as to these matters. This discussion is for general information only and does not address all aspects of federal income taxation that may be relevant to particular investors in light of their personal investment circumstances, nor does it address the federal income tax consequences which may be relevant to certain types of investors subject to special treatment under the federal income tax laws, such as certain financial institutions, insurance companies, tax-exempt entities, broker-dealers, and taxpayers subject to the alternative minimum tax. In addition, this discussion does not discuss any aspects of state, local, or foreign tax laws. This discussion assumes that investors will hold their notes as "capital assets" (generally, property held for investment), within the meaning of Section 1221 of the Internal Revenue Code, and not as part of an integrated investment, such as a hedge, straddle or conversion transaction.
No ruling from the Internal Revenue Service (the "IRS") will be requested with respect to any of the matters discussed herein. There can be no assurance that the IRS will not take different positions concerning the matters discussed below and that such positions would not be sustained. BECAUSE INDIVIDUAL CIRCUMSTANCES MAY DIFFER, EACH HOLDER OF NOTES SHOULD CONSULT HIS OR HER OWN TAX ADVISOR WITH RESPECT TO HIS OR HER PARTICULAR TAX SITUATION AND AS TO ANY FEDERAL, FOREIGN, STATE, LOCAL OR OTHER TAX CONSIDERATIONS (INCLUDING ANY POSSIBLE CHANGES IN TAX LAW) AFFECTING THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE NOTES.
This discussion is based on the provisions of the Internal Revenue Code, existing and proposed Treasury regulations promulgated thereunder, judicial authority interpreting the Internal Revenue Code, and current administrative rulings and pronouncements of the IRS now in effect, all of which are subject to change at any time by legislative, judicial or administrative action. Any such changes may be retroactively applied in a manner that could result in federal income tax consequences different from those discussed below and could adversely affect a holder of notes.
EXCHANGE OF ORIGINAL NOTES FOR EXCHANGE NOTES
The exchange of original notes for exchange notes of the same series should
not constitute a significant modification of the terms of the original notes,
and, accordingly, will not be treated as a taxable exchange for United States
federal income tax purposes. Consequently, no gain or loss will be recognized by
holders of original notes upon receipt of the exchange notes of the same series.
A holder will have the
same adjusted basis in an exchange note as the holder had in the original note exchanged therefor. In addition, a holder's holding period for an exchange note will include the holding period for the original note exchanged therefor.
The remaining summary of federal income considerations relates to owning and disposing of exchange notes, and also applies to holders of original notes who do not accept the exchange offer.
UNITED STATES FEDERAL INCOME TAXATION OF UNITED STATES HOLDERS
As used herein, the term "United States Holder" means a holder of a note that is for United States federal income tax purposes
- an individual citizen or resident of the United States,
- a corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision thereof,
- an estate the income of which is subject to United States federal income taxation regardless of source, or
- a trust that has validly elected to be treated as a United States person or whose administration is subject to the primary supervision of a United States court and which has one or more United States persons who have the authority to control all substantial decisions of the trust.
Stated Interest. Stated interest on the notes generally will be taxable to a United States Holder as ordinary income from domestic sources at the time it is paid or accrued in accordance with the United States Holder's method of accounting for tax purposes.
Amortizable Bond Premium. If a United States Holder purchases a note for an amount that is greater than the sum of all payments payable on the note after the purchase date, other than qualified stated interest, such United States Holder will be considered to have purchased such note at a premium. A United States Holder may elect to amortize such bond premium over the remaining term of such note (or if it results in a smaller amount of amortizable bond premium, until an earlier call date, and in such case by reference to the amount payable on that date).
If bond premium is amortized, the amount of interest on the note included in the United States Holder's income for each accrual period ending on an interest payment date or on the stated maturity of the note, as the case may be, will be reduced by a portion of the bond premium allocable to such accrual period based on the note's yield to maturity (or earlier call date, if reference to such call date produces a smaller amount of amortizable bond premium). If the amortizable bond premium allocable to such accrual period exceeds the amount of interest allocable to such accrual period, such excess would be allowed as a deduction for such accrual period, but only to the extent of the United States Holder's prior inclusion in income of interest payments on the note. Any excess above such prior interest inclusions is generally carried forward to the next accrual period. A United States Holder who elects to amortize bond premium must reduce such United States Holder's tax basis in the notes as described under "-- Disposition of Notes." If such an election to amortize bond premium is not made, a United States Holder must include the full amount of each interest payment on the note in income in accordance with its regular method of accounting and will receive a tax benefit from the bond premium only in computing such United States Holder's gain or loss upon disposition of the note.
An election to amortize bond premium will apply to all taxable debt obligations then held or subsequently acquired by the electing United States Holder on or after the first day of the first taxable year to which the election applies and may not be revoked without the consent of the IRS. A United States Holder should consult with its tax advisor with respect to the general applicability of the amortizable bond premium rules and whether it should make an election under these rules.
Market Discount. If a United States Holder purchases a note for an amount that is less than its stated redemption price at maturity (i.e., the sum of all payments on the note other than stated interest
payments), the amount of the difference will be treated as "market discount" for federal income tax purposes, unless such difference is less than a de minimis amount as specified by the Internal Revenue Code. Under the market discount rules, a United States Holder will be required to treat any principal payment on, or any gain on the sale, exchange, retirement or other disposition of a note as ordinary income to the extent of the market discount which has not previously been included in income and is treated as having accrued on such note at the time of such payment or disposition. In addition, the United States Holder may be required to defer, until maturity of the note or its earlier disposition in a taxable transaction, the deduction of all or a portion of the interest expense on any indebtedness incurred or maintained to purchase or carry such note.
The notes provide for optional redemption, in whole or in part, prior to maturity. If the notes are redeemed, a United States Holder generally will be required to include in gross income as ordinary income the portion of the gain recognized on the redemption attributable to accrued market discount, if any.
Any market discount will be considered to accrue ratably during the period from the date of acquisition to the maturity date of the notes, unless the United States Holder elects to accrue market discount on a constant interest method. A United States Holder of a note may elect to include market discount in income currently as it accrues (under either a ratable or constant interest method). This election to include currently, once made, applies to all market discount obligations acquired in or after the first taxable year to which the election applies and may not be revoked without the consent of the IRS. If a United States Holder of notes makes such an election, the foregoing rules with respect to the recognition of ordinary income on sales and other dispositions of instruments, and with respect to the deferral of interest deductions incurred or maintained to purchase or carry such notes, would not apply.
Disposition of Notes. Upon the sale, exchange, retirement, redemption or other disposition of a note, a United States Holder will recognize taxable gain or loss equal to the difference between (1) the amount of cash and the fair market value of property received in exchange therefor (except to the extent such amount is attributable to accrued but unpaid interest, which amount will generally be taxable as ordinary income) and (2) the United States Holder's adjusted tax basis in the note. A United States Holder's adjusted tax basis in a note will generally equal the United States Holder's purchase price for such note, increased by any market discount previously included in income by the United States Holder and decreased by any principal payments received by the United States Holder, and any amortizable bond premium deducted over the term of the note. Any gain or loss recognized on the sale, exchange, retirement or other disposition of a note will generally be capital gain or loss (except to the extent of any accrued market discount). Capital gains of individuals derived in respect of capital assets held for more than one year are eligible for reduced rates of taxation which may vary depending upon the holding period of such capital assets. The deduction of capital losses is subject to certain limitations. A United States Holder should consult such United States Holder's tax advisor regarding the treatment of capital gains or losses.
Backup Withholding. Certain non-corporate United States Holders of notes may be subject to backup withholding at the rate of 30% with respect to interest payments on the notes and cash payments received in certain circumstances upon the disposition of such notes. Generally, backup withholding is applied only when the taxpayer
- fails to furnish or certify its correct taxpayer identification number to the payor in the manner required,
- is notified by the IRS that it has failed to report payments of interest and dividends properly, or
- under certain circumstances, fails to certify that it has not been notified by the IRS that it is subject to backup withholding for failure to report interest and dividend payments.
Any amounts withheld under the backup withholding rules will be allowed as a refund or credit against a United States Holder's United States federal income tax liability, provided that such United States Holder furnished the required information to the IRS.
Further, failure to provide the information required on a Substitute Form W-9 may subject the tendering United States Holder, or other payee, to a penalty of $50 imposed by the IRS as well as backup withholding at the 30% rate.
UNITED STATES FEDERAL INCOME TAXATION OF NON-UNITED STATES HOLDERS
This section discusses certain special rules applicable to a holder of notes that is a Non-United States Holder. For purposes of this discussion, a "Non-United States Holder" means a holder of notes that is not a United States Holder.
Receipt of Stated Interest by Non-United States Holder. Subject to the discussion below under "-- Information Reporting Backup Withholding," with respect to any Non-United States Holder of the notes, no United States federal withholding tax under Sections 1441 and 1442 of the Internal Revenue Code will be imposed with respect to any payment of principal, premium, if any, or interest on a note owned by a Non-United States Holder (the "Portfolio Interest Exception") provided that
- the Non-United States Holder or the Financial Institution holding the note on behalf of the Non-United States holder provides a statement, which may be provided on IRS Form W-8BEN, IRS Form W-8EXP or IRS Form W-8IMY, as applicable (an "Owner's Statement") to us, or to the person who would otherwise be required to withhold tax, certifying under penalties of perjury, that such Non-United States Holder is not a United States person and providing the name and address of the Non-United States Holder,
- such interest is treated as not effectively connected with the Non-United States Holder's United States trade or business,
- such interest payments are not made to a Non-United States Holder within a foreign country that the IRS has listed on a list of countries as having provisions deemed inadequate to prevent United States tax evasion,
- interest payable with respect to the notes is not contingent interest within the meaning of Section 871(h)(4) of the Internal Revenue Code,
- such Non-United States Holder does not actually or constructively own ten percent or more of the total combined voting power of all classes of our stock entitled to vote,
- such Non-United States Holder is not a controlled foreign corporation with the meaning of Section 957 of the Internal Revenue Code that is related to us, within the meaning of Section 864(d)(4) of the Internal Revenue Code, and
- such Non-United States Holder is not a bank whose receipt of interest on a note is described in Section 881(c)(3)(A) of the Internal Revenue Code.
As used herein, the term "Financial Institution" means a securities clearing organization, bank or other financial institution that holds customers' securities in the ordinary course of its trade or business.
A Non-United States Holder who does not qualify for the Portfolio Interest Exception would, under current law, generally be subject to United States federal withholding tax at a flat rate of thirty percent (30%) (or lower applicable treaty rate) on interest payments. However, a Non-United States Holder will not be subject to the thirty percent (30%) withholding tax if such Non-United States Holder provides us with a properly executed IRS Form W-8BEN (or other applicable form) claiming an exemption from or reduction in withholding under the provisions of a tax treaty, or a properly executed IRS Form W-8ECI (or substitute form) stating that the interest paid on the notes is not subject to withholding tax because it is effectively connected with the beneficial owner's conduct of a trade or business in the United States.
If a Non-United States Holder is engaged in a trade or business in the
United States and if the interest on a note is effectively connected with the
conduct of such trade or business, the Non-United States Holder, although exempt
from United States federal withholding tax as discussed above, will be subject
to United States federal income tax on such interest on a net income basis in
the same manner as
if the holder were a United States Holder. In addition, if such Non-United States Holder is a foreign corporation, it may be subject to a branch profits tax equal to thirty percent (30%), or applicable lower tax treaty rate, of its effectively connected earnings and profits for the taxable year, subject to adjustments. For this purpose, interest on a note will be included in such foreign corporation's effectively connected earnings and profits.
Gain on Disposition of Notes. In general, a Non-United States Holder will not be subject to United States federal income tax on any amount received (other than amounts in respect of accrued but unpaid interest) upon retirement or disposition of a note unless such Non-United States Holder is an individual present in the United States for 183 days or more in the taxable year of the retirement or disposition and certain other requirements are met, or unless the gain is effectively connected with the conduct of a United States trade or business. In the latter event, Non-United States Holders generally will be subject to United States federal income tax with respect to such gain at regular rates applicable to United States taxpayers. Additionally, in such event, Non-United States Holders that are corporations could be subject to a branch profits tax on such gain.
Information Reporting and Backup Withholding. Under certain circumstances, the Internal Revenue Code requires "information reporting" annually to the IRS and to each holder of notes, and "backup withholding" at a rate of 30% with respect to certain payments made on or with respect to the notes. Backup withholding generally does not apply with respect to certain holders of notes, including corporations.
A Non-United States Holder that provides an IRS Forms W-8ECI, W-8BEN, W-8EXP or W-8IMY, together will all appropriate attachments, signed under penalties of perjury, identifying the Non-United States Holder and stating that the Non-United States Holder is not a United States person for United States federal income tax purposes, will not be subject to IRS reporting requirements and United States backup withholding. IRS Forms W-8BEN will generally be required from the beneficial owners of interests in a Non-United States Holder that is treated as a partnership for United States federal income tax purposes.
The payment of proceeds on the disposition of a note to or through the United States office of a broker generally will be subject to information reporting and backup withholding at a rate of 30% unless the Non-United States Holder either certifies its status as a Non-United States Holder under penalties of perjury on IRS Form W-8BEN (as described above) or otherwise establishes an exemption. The payment of the proceeds on the disposition of a note by a Non-United States Holder to or through a non-United States office of a non-United States broker will not be subject to backup withholding or information reporting unless the non-United States broker is a "United States related person" (as defined below). The payment of proceeds on the disposition of a note by a Non-United States Holder to or through a non-United States office of a United States broker or a United States related person generally will not be subject to backup withholding but will be subject to information reporting unless the Non-United States Holder certifies its status as a Non-United States Holder under penalties of perjury or the broker has certain documentary evidence in its files as to the Non-United States Holder's foreign status and the broker has no actual knowledge to the contrary.
For this purpose, a "United States related person" is
- a "controlled foreign corporation" as specifically defined for United States federal income tax purposes,
- a foreign person 50% or more of whose gross income from all sources for the three-year period ending with the close of its taxable year preceding the payment (or for such part of the period that the broker has been in existence) is derived from activities that are effectively connected with the conduct of a United States trade or business, or
- a foreign partnership if at any time during its tax year one or more of its partners are United States persons who, in the aggregate, hold more than 50% of the income or capital interest of the
partnership or if, at any time during its taxable year, the partnership is engaged in the conduct of a United States trade or business.
Backup withholding is not an additional tax and may be refunded (or credited against the Non-United States Holder's United States federal income tax liability, if any), provided that certain required information is furnished. The information reporting requirements may apply regardless of whether withholding is required. Copies of the information returns reporting such interest and withholding also may be made available to the tax authorities in the country in which a Non-United States Holder is a resident under the provisions of an applicable income tax treaty or agreement.
VALIDITY OF THE EXCHANGE NOTES
The validity of the exchange notes being offered hereby will be passed upon for us by Bracewell & Patterson, L.L.P., Houston, Texas.
EXPERTS
The financial statements of Kinder Morgan Energy Partners, L.P. incorporated in this prospectus by reference to our Annual Report on Form 10-K for the year ended December 31, 2001 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting.
The balance sheet of Kinder Morgan G.P., Inc. incorporated in this prospectus by reference to our Current Report on Form 8-K dated March 11, 2002 has been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other information with the SEC.
The SEC allows us to "incorporate by reference" the information we filed with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference into this prospectus is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information as well as the information included in this prospectus. We incorporate by reference in this prospectus the following documents:
- Annual Report on Form 10-K for the fiscal year ended December 31, 2001;
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 2002 and June 30, 2002; and
- Current Reports on Form 8-K dated March 11, 2002, March 15, 2002, June 19, 2002, July 23, 2002 and August 26, 2002.
We also incorporate by reference any filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended, between the date of this prospectus and the completion of the exchange offers.
Should you want more information regarding Kinder Morgan, Inc. or Kinder Morgan Management, LLC, please refer to the annual, quarterly and special reports and proxy statements, as applicable, filed with the SEC regarding those entities.
You may read and copy any document we file with the SEC at the SEC's public reference room located at:
- 450 Fifth Street, N.W.
Washington, D.C. 20549
Please call the SEC at 1-800-SEC-0330 for further information on the public reference room and its copy charges. Our SEC filings are also available to the public on the SEC's Web site at http://www.sec.gov and through the New York Stock Exchange, 20 Broad Street, New York, New York 10005, on which our common units are listed.
We will provide a copy of any document incorporated by reference into this prospectus and any exhibit specifically incorporated by reference in these documents without charge, by request directed to us at the following address and telephone number:
Kinder Morgan Energy Partners, L.P.
Investor Relations Department
One Allen Center, Suite 1000
500 Dallas Street
Houston, Texas 77002
(713) 369-9000
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated in this prospectus by reference include forward-looking statements. These forward-looking statements are identified as any statement that does not relate strictly to historical or current facts. They use words such as "anticipate," "believe," "intend," "plan," "projection," "forecast," "strategy," "position," "continue," "estimate," "expect," "may," "will," or the negative of those terms or other variations of them or by comparable terminology. In particular, statements, express or implied, concerning future actions, conditions or events, future operating results or the ability to generate sales, income or cash flow or to make distributions are forward-looking statements. Forward-looking statements are not guarantees of performance. They involve risks, uncertainties and assumptions. Future actions, conditions or events and future results of operations may differ materially from those expressed in these forward-looking statements. Many of the factors that will determine these results are beyond our ability to control or predict. Specific factors which could cause actual results to differ from those in the forward-looking statements include:
- price trends and overall demand for natural gas liquids, refined petroleum products, oil, carbon dioxide, natural gas, coal and other bulk materials in the United States; economic activity, weather, alternative energy sources, conservation and technological advances may affect price trends and demand;
- changes in our tariff rates implemented by the Federal Energy Regulatory Commission or the California Public Utilities Commission;
- our ability to integrate any acquired operations into their respective existing operations;
- our ability to acquire new businesses and assets and to make expansions to our facilities;
- difficulties or delays experienced by railroads, barges, trucks, ships or pipelines in delivering products to our bulk terminals;
- our ability to successfully identify and close acquisitions and make cost-saving changes in operations;
- shut-downs or cutbacks at major refineries, petrochemical or chemical plants, utilities, military bases or other businesses that use or supply our services;
- changes in laws or regulations, third party relations and approvals, decisions of courts, regulators and governmental bodies may adversely affect our business or our ability to compete;
- our ability to offer and sell equity securities and debt securities or obtain debt financing in sufficient amounts to implement that portion of our business plan that contemplates growth through acquisitions of operating businesses and assets and expansions of our facilities;
- our indebtedness could make us vulnerable to general adverse economic and industry conditions, limit our ability to borrow additional funds, place us at competitive disadvantages compared to our competitors that have less debt or have other adverse consequences;
- interruptions of electric power supply to facilities due to natural disasters, power shortages, strikes, riots, terrorism, war or other causes;
- acts of sabotage, terrorism or other similar acts causing damage greater than our insurance coverage limits;
- the condition of the capital markets and equity markets in the United States;
- the political and economic stability of the oil producing nations of the world;
- national, international, regional and local economic, competitive and regulatory conditions and developments;
- the ability to achieve cost savings and revenue growth;
- rates of inflation;
- interest rates;
- the pace of deregulation of retail natural gas and electricity;
- the timing and extent of changes in commodity prices for oil, natural gas, electricity and certain agricultural products; and
- the timing and success of business development efforts.
You should not put undue reliance on any forward-looking statements.
When considering forward-looking statements, please review the risk factors described under "Risk Factors" in this prospectus.
ANNEX A
KINDER MORGAN ENERGY PARTNERS, L.P.
LETTER OF TRANSMITTAL
FOR 5.35% NOTES
LETTER OF TRANSMITTAL
TO TENDER FOR EXCHANGE
5.35% SENIOR NOTES DUE 2007
OF
KINDER MORGAN ENERGY PARTNERS, L.P.
PURSUANT TO THE PROSPECTUS DATED , 2002
THIS OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2002
UNLESS EXTENDED BY THE PARTNERSHIP IN ITS SOLE DISCRETION (THE "EXPIRATION
DATE"). TENDERS OF NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION
DATE.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
WACHOVIA BANK, NATIONAL ASSOCIATION
By Mail: By Facsimile: By Hand:
Wachovia Bank, National Association (704) 590-7628 Wachovia Bank, National Association
Customer Information Center Customer Information Center
Corporate Trust Operations -- NC1153 Confirm by Telephone: Corporate Trust Operations -- NC1153
1525 West W.T. Harris Boulevard -- 3C3 (704) 590-7413 1525 West W.T. Harris Boulevard -- 3C3
Charlotte, NC 28288 Charlotte, NC 28262-1153
Attention: Marsha Rice Attention: Marsha Rice
|
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TO A NUMBER OTHER THAN AS LISTED ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE EXCHANGE NOTES PURSUANT TO THE EXCHANGE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR ORIGINAL NOTES TO THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
This Letter of Transmittal is to be used by holders ("Holders") of 5.35% Senior Notes due 2007 (the "Original Notes") of Kinder Morgan Energy Partners, L.P. (the "Partnership") to receive 5.35% Exchange Notes (the "Exchange Notes") if: (i) certificates representing Original Notes are to be physically delivered to the Exchange Agent herewith by such Holders; (ii) tender of Original Notes is to be made by book-entry transfer to the Exchange Agent's account at The Depository Trust Company ("DTC") pursuant to the procedures set forth under the caption "The Exchange Offer -- Procedures for Tendering Original Notes -- Book-Entry Delivery Procedures" in the Prospectus dated , 2002 (the "Prospectus"); or (iii) tender of Original Notes is to be made according to the guaranteed delivery procedures set forth under the caption "The Exchange Offer -- Procedures for Tendering Original Notes -- Guaranteed Delivery" in the Prospectus, and, in each case, instructions are not being transmitted through the DTC Automated Tender Offer Program ("ATOP"). The undersigned hereby acknowledges receipt of the Prospectus. All capitalized terms used herein and not defined shall have the meanings ascribed to them in the Prospectus.
Holders of Original Notes that are tendering by book-entry transfer to the Exchange Agent's account at DTC can execute the tender through ATOP, for which the transaction will be eligible. DTC participants that are accepting the exchange offer as set forth in the Prospectus and this Letter of Transmittal (together, the "Exchange Offer") must transmit their acceptance to DTC which will edit and verify the acceptance and execute a book-entry delivery to the Exchange Agent's account at DTC. DTC will then send an Agent's Message to the Exchange Agent for its acceptance. Delivery of the Agent's Message by DTC will satisfy the terms of the Offer as to execution and delivery
of a Letter of Transmittal by the participant identified in the Agent's Message. DTC participants may also accept the Exchange Offer by submitting a notice of guaranteed delivery through ATOP.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE
AGENT.
If a Holder desires to tender Original Notes pursuant to the Exchange Offer and time will not permit this Letter of Transmittal, certificates representing such Original Notes and all other required documents to reach the Exchange Agent, or the procedures for book-entry transfer cannot be completed, on or prior to the Expiration Date, then such Holder must tender such Original Notes according to the guaranteed delivery procedures set forth under the caption "The Exchange Offer -- Procedures for Tendering Original Notes -- Guaranteed Delivery" in the Prospectus. See Instruction 2.
The undersigned should complete, execute and deliver this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the Exchange Offer.
TENDER OF ORIGINAL NOTES
[ ] CHECK HERE IF TENDERED ORIGINAL NOTES ARE ENCLOSED HEREWITH.
[ ] CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING:
[ ] CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
List below the Original Notes to which this Letter of Transmittal relates. The name(s) and address(es) of the registered Holder(s) should be printed, if not already printed below, exactly as they appear on the Original Notes tendered herewith. The Original Notes and the principal amount of Original Notes that the undersigned wishes to tender should be indicated in the appropriate boxes. If the space provided is inadequate, list the certificate number(s) and principal amount(s) on a separately executed schedule and affix the schedule to this Letter of Transmittal.
-----------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF ORIGINAL NOTES
-----------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES)
OF REGISTERED HOLDER(S) AGGREGATE PRINCIPAL
(PLEASE FILL IN IF BLANK) SEE CERTIFICATE AMOUNT PRINCIPAL AMOUNT
INSTRUCTION 3. NUMBER(S)* REPRESENTED** TENDERED**
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
TOTAL PRINCIPAL
AMOUNT OF ORIGINAL NOTES
-----------------------------------------------------------------------------------------------------------------------------
* Need not be completed by Holders tendering by book-entry transfer.
** Unless otherwise specified, the entire aggregate principal amount represented by the Original Notes described above will
be deemed to be tendered. See Instruction 4.
-----------------------------------------------------------------------------------------------------------------------------
|
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to Kinder Morgan Energy Partners (the "Partnership"), upon the terms and subject to the conditions set forth in its Prospectus dated , 2002 (the "Prospectus"), receipt of which is hereby acknowledged, and in accordance with this Letter of Transmittal (which together constitute the "Exchange Offer"), the principal amount of Original Notes indicated in the foregoing table entitled "Description of Original Notes" under the column heading "Principal Amount Tendered." The undersigned represents that it is duly authorized to tender all of the Original Notes tendered hereby which it holds for the account of beneficial owners of such Original Notes ("Beneficial Owner(s)") and to make the representations and statements set forth herein on behalf of such Beneficial Owner(s).
Subject to, and effective upon, the acceptance for purchase of the principal amount of Original Notes tendered herewith in accordance with the terms and subject to the conditions of the Exchange Offer, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Partnership, all right, title and interest in and to all of the Original Notes tendered hereby. The undersigned hereby irrevocably constitutes and appoints the Exchange Agent the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as the agent of the Partnership) with respect to such Original Notes, with full powers of substitution and revocation (such power of attorney being deemed to be an irrevocable power coupled with an interest) to (i) present such Original Notes and all evidences of transfer and authenticity to, or transfer ownership of, such Original Notes on the account books maintained by DTC to, or upon the order of, the Partnership, (ii) present such Original Notes for transfer of ownership on the books of the Partnership, and (iii) receive all benefits and otherwise exercise all rights of beneficial ownership of such Original Notes, all in accordance with the terms and conditions of the Exchange Offer as described in the Prospectus.
By accepting the Exchange Offer, the undersigned hereby represents and warrants that:
(1) the Exchange Notes to be acquired by the undersigned and any Beneficial Owner(s) in connection with the Exchange Offer are being acquired by the undersigned and any Beneficial Owner(s) in the ordinary course of business of the undersigned and any Beneficial Owner(s),
(2) the undersigned and each Beneficial Owner are not participating, do not intend to participate, and have no arrangement or understanding with any person to participate, in the distribution of the Exchange Notes,
(3) except as indicated below, neither the undersigned nor any Beneficial Owner is an "affiliate," as defined in Rule 405 under the Securities Act of 1933, as amended (together with the rules and regulations promulgated thereunder, the "Securities Act"), of the Partnership, and
(4) the undersigned and each Beneficial Owner acknowledge and agree that (x) any person participating in the Exchange Offer with the intention or for the purpose of distributing the Exchange Notes must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale of the Exchange Notes acquired by such person with a registration statement containing the selling securityholder information required by Item 507 of Regulation S-K of the Securities and Exchange Commission (the "SEC") and cannot rely on the interpretation of the Staff of the SEC set forth in the no-action letters that are noted in the section of the Prospectus entitled "The Exchange Offer -- Registration Rights" and (y) any broker-dealer that pursuant to the Exchange Offer receives Exchange Notes for its own account in exchange for Original Notes which it acquired for its own account as a result of market-making activities or other trading activities must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes.
If the undersigned is a broker-dealer that will receive Exchange Notes for its own account in exchange for Original Notes that were acquired as the result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Notes. By so acknowledging and by
delivering a prospectus, a broker-dealer shall not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
The undersigned understands that tenders of Original Notes may be withdrawn by written notice of withdrawal received by the Exchange Agent at any time prior to the Expiration Date in accordance with the Prospectus. In the event of a termination of the Exchange Offer, the Original Notes tendered pursuant to the Exchange Offer will be returned to the tendering Holders promptly (or, in the case of Original Notes tendered by book-entry transfer, such Original Notes will be credited to the account maintained at DTC from which such Original Notes were delivered). If the Partnership makes a material change in the terms of the Exchange Offer or the information concerning the Exchange Offer or waives a material condition of such Exchange Offer, the Partnership will disseminate additional Exchange Offer materials and extend such Exchange Offer, if and to the extent required by law.
The undersigned understands that the tender of Original Notes pursuant to any of the procedures set forth in the Prospectus and in the instructions hereto will constitute the undersigned's acceptance of the terms and conditions of the Exchange Offer. The Partnership's acceptance for exchange of Original Notes tendered pursuant to any of the procedures described in the Prospectus will constitute a binding agreement between the undersigned and the Partnership in accordance with the terms and subject to the conditions of the Exchange Offer. For purposes of the Exchange Offer, the undersigned understands that validly tendered Original Notes (or defectively tendered Original Notes with respect to which the Partnership has, or has caused to be, waived such defect) will be deemed to have been accepted by the Partnership if, as and when the Partnership gives oral or written notice thereof to the Exchange Agent.
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Original Notes tendered hereby, and that when such tendered Original Notes are accepted for purchase by the Partnership, the Partnership will acquire good title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim or right. The undersigned and each Beneficial Owner will, upon request, execute and deliver any additional documents deemed by the Exchange Agent or by the Partnership to be necessary or desirable to complete the sale, assignment and transfer of the Original Notes tendered hereby.
All authority conferred or agreed to be conferred by this Letter of Transmittal shall not be affected by, and shall survive the death or incapacity of the undersigned and any Beneficial Owner(s), and any obligation of the undersigned or any Beneficial Owner(s) hereunder shall be binding upon the heirs, executors, administrators, trustees in bankruptcy, personal and legal representatives, successors and assigns of the undersigned and such Beneficial Owner(s).
The undersigned understands that the delivery and surrender of any Original Notes is not effective, and the risk of loss of the Original Notes does not pass to the Exchange Agent or the Partnership, until receipt by the Exchange Agent of this Letter of Transmittal, or a manually signed facsimile hereof, properly completed and duly executed, together with all accompanying evidences of authority and any other required documents in form satisfactory to the Partnership. All questions as to form of all documents and the validity (including time of receipt) and acceptance of tenders and withdrawals of Original Notes will be determined by the Partnership, in its sole discretion, which determination shall be final and binding.
Unless otherwise indicated herein under "Special Issuance Instructions," the undersigned hereby requests that any Original Notes representing principal amounts not tendered or not accepted for exchange be issued in the name(s) of the undersigned (and in the case of Original Notes tendered by book-entry transfer, by credit to the account of DTC), and Exchange Notes issued in exchange for Original Notes pursuant to the Exchange Offer be issued to the undersigned. Similarly, unless otherwise indicated herein under "Special Delivery Instructions," the undersigned hereby requests that any Original Notes representing principal amounts not tendered or not accepted for exchange and Exchange Notes issued in exchange for Original Notes pursuant to the Exchange Offer be delivered to the undersigned at the address shown below the undersigned's signature(s). In the event that the "Special Issuance Instructions" box or the "Special Delivery Instructions" box is, or both are, completed, the undersigned hereby requests that any Original Notes representing principal amounts not tendered or not accepted for purchase be issued in the name(s) of, certificates for such Original Notes be delivered to, and Exchange Notes issued in exchange for Original Notes pursuant to the Exchange Offer be issued in the name(s) of, and be delivered to, the person(s) at the
address(es) so indicated, as applicable. The undersigned recognizes that the Partnership has no obligation pursuant to the "Special Issuance Instructions" box or "Special Delivery Instructions" box to transfer any Original Notes from the name of the registered Holder(s) thereof if the Partnership does not accept for exchange any of the principal amount of such Original Notes so tendered.
[ ] CHECK HERE IF YOU OR ANY BENEFICIAL OWNER FOR WHOM YOU HOLD ORIGINAL NOTES IS AN AFFILIATE OF THE PARTNERSHIP.
[ ] CHECK HERE IF YOU OR ANY BENEFICIAL OWNER FOR WHOM YOU HOLD ORIGINAL NOTES TENDERED HEREBY IS A BROKER-DEALER WHO ACQUIRED SUCH NOTES DIRECTLY FROM THE PARTNERSHIP OR AN AFFILIATE OF THE PARTNERSHIP.
[ ] CHECK HERE AND COMPLETE THE LINES BELOW IF YOU OR ANY BENEFICIAL OWNER FOR
WHOM YOU HOLD ORIGINAL NOTES TENDERED HEREBY IS A BROKER-DEALER WHO ACQUIRED
SUCH NOTES IN MARKET-MAKING OR OTHER TRADING ACTIVITIES. IF THIS BOX IS
CHECKED, THE PARTNERSHIP WILL SEND 10 ADDITIONAL COPIES OF THE PROSPECTUS
AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO TO YOU OR SUCH
BENEFICIAL OWNER AT THE ADDRESS SPECIFIED IN THE FOLLOWING LINES.
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Original Notes in a principal amount not tendered or not accepted for exchange are to be issued in the name of, or Exchange Notes are to be issued in the name of, someone other than the person(s) whose signature(s) appear(s) within this Letter of Transmittal or issued to an address different from that shown in the box entitled "Description of Original Notes" within this Letter of Transmittal.
Issue: [ ] Original Notes
[ ] Exchange Notes
(check as applicable)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Original Notes in a principal amount not tendered or not accepted for exchange or Exchange Notes are to be sent to someone other than the person(s) whose signature(s) appear(s) within this Letter of Transmittal or to an address different from that shown in the box entitled "Description of Original Notes" within this Letter of Transmittal.
Issue: [ ] Original Notes
[ ] Exchange Notes
(check as applicable)
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS OF ORIGINAL NOTES
REGARDLESS OF WHETHER ORIGINAL NOTES ARE BEING PHYSICALLY DELIVERED HEREWITH)
This Letter of Transmittal must be signed by the registered Holder(s) exactly as name(s) appear(s) on certificate(s) for Original Notes or, if tendered by a participant in DTC, exactly as such participant's name appears on a security position listing as owner of Original Notes, or by the person(s) authorized to become registered Holder(s) by endorsements and documents transmitted herewith. If signature is by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, please set forth full title and see Instruction 5.
SIGNATURE GUARANTEE
(IF REQUIRED -- SEE INSTRUCTIONS 1 AND 5)
[PLACE SEAL HERE]
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Signature Guarantees. Signatures of this Letter of Transmittal must be
guaranteed by a recognized member of the Medallion Signature Guarantee Program
or by any other "eligible guarantor institution," as such term is defined in
Rule 17Ad-15 promulgated under the Exchange Act (each of the foregoing, an
"Eligible Institution"), unless the Original Notes tendered hereby are tendered
(i) by a registered Holder of Original Notes (or by a participant in DTC whose
name appears on a security position listing as the owner of such Original Notes)
that has not completed either the box entitled "Special Issuance Instructions"
or the box entitled "Special Delivery Instructions" on this Letter of
Transmittal, or (ii) for the account of an Eligible Institution. If the Original
Notes are registered in the name of a person other than the signer of this
Letter of Transmittal, if Original Notes not accepted for exchange or not
tendered are to be returned to a person other than the registered Holder or if
Exchange Notes are to be issued in the name of or sent to a person other than
the registered Holder, then the signatures on this Letter of Transmittal
accompanying the tendered Original Notes must be guaranteed by an Eligible
Institution as described above. See Instruction 5.
2. Delivery of Letter of Transmittal and Original Notes. This Letter of Transmittal is to be completed by Holders if (i) certificates representing Original Notes are to be physically delivered to the Exchange Agent herewith by such Holders; (ii) tender of Original Notes is to be made by book-entry transfer to the Exchange Agent's account at DTC pursuant to the procedures set forth under the caption "The Exchange Offer -- Procedures for Tendering Original Notes -- Book-Entry Delivery Procedures" in the Prospectus; or (iii) tender of Original Notes is to be made according to the guaranteed delivery procedures set forth under the caption "The Exchange Offer -- Procedures for Tendering Original Notes -- Guaranteed Delivery" in the Prospectus. All physically delivered Original Notes, or a confirmation of a book-entry transfer into the Exchange Agent's account at DTC of all Original Notes delivered electronically, as well as a properly completed and duly executed Letter of Transmittal (or manually signed facsimile thereof), any required signature guarantees and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at one of its addresses set forth on the cover page hereto on or prior to the Expiration Date, or the tendering Holder must comply with the guaranteed delivery procedures set forth below. DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
If a Holder desires to tender Original Notes pursuant to the Exchange Offer and time will not permit this Letter of Transmittal, certificates representing such Original Notes and all other required documents to reach the Exchange Agent, or the procedures for book-entry transfer cannot be completed, on or prior to the Expiration Date, such Holder must tender such Original Notes pursuant to the guaranteed delivery procedures set forth under the caption "The Exchange Offer -- Procedures for Tendering Original Notes -- Guaranteed Delivery" in the Prospectus. Pursuant to such procedures, (i) such tender must be made by or through an Eligible Institution; (ii) a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by the Partnership, or an Agent's Message with respect to guaranteed delivery that is accepted by the Partnership, must be received by the Exchange Agent, either by hand delivery, mail, telegram, or facsimile transmission, on or prior to the Expiration Date; and (iii) the certificates for all tendered Original Notes, in proper form for transfer (or confirmation of a book-entry transfer or all Original Notes delivered electronically into the Exchange Agent's account at DTC pursuant to the procedures for such transfer set forth in the Prospectus), together with a properly completed and duly executed Letter of Transmittal (or manually signed facsimile thereof) and any other documents required by this Letter of Transmittal, or in the case of a book-entry transfer, a properly transmitted Agent's Message, must be received by the Exchange Agent within two business days after the date of the execution of the Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE ORIGINAL NOTES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC AND ANY ACCEPTANCE OR AGENT'S MESSAGE DELIVERED THROUGH ATOP, IS AT THE ELECTION AND RISK OF THE TENDERING HOLDER AND, EXCEPT AS OTHERWISE PROVIDED IN THIS INSTRUCTION 2, DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, IT IS SUGGESTED THAT THE HOLDER USE PROPERLY INSURED, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, AND THAT THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE TO PERMIT DELIVERY TO THE EXCHANGE AGENT PRIOR TO SUCH DATE.
No alternative, conditional or contingent tenders will be accepted. All tendering Holders, by execution of this Letter of Transmittal (or a facsimile thereof), waive any right to receive any notice of the acceptance of their Original Notes for exchange.
3. Inadequate Space. If the space provided herein is inadequate, the certificate numbers and/or the principal amount represented by Original Notes should be listed on separate signed schedule attached hereto.
4. Partial Tenders. (Not applicable to Holders who tender by book-entry transfer). If Holders wish to tender less than the entire principal amount evidenced by an Original Note submitted, such Holders must fill in the principal amount that is to be tendered in the column entitled "Principal Amount Tendered." The minimum permitted tender is $1,000 in principal amount of Original Notes. All other tenders must be in integral multiples of $1,000 in principal amount. In the case of a partial tender of Original Notes, as soon as practicable after the Expiration Date, new certificates for the remainder of the Original Notes that were evidenced by such Holder's old certificates will be sent to such Holder, unless otherwise provided in the appropriate box on this Letter of Transmittal. The entire principal amount that is represented by Original Notes delivered to the Exchange Agent will be deemed to have been tendered, unless otherwise indicated.
5. Signatures on Letter of Transmittal, Instruments of Transfer and Endorsements. If this Letter of Transmittal is signed by the registered Holder(s) of the Original Notes tendered hereby, the signatures must correspond with the name(s) as written on the face of the certificate(s) without alteration, enlargement or any change whatsoever. If this Letter of Transmittal is signed by a participant in DTC whose name is shown as the owner of the Original Notes tendered hereby, the signature must correspond with the name shown on the security position listing as the owner of the Original Notes.
If any of the Original Notes tendered hereby are registered in the name of two or more Holders, all such Holders must sign this Letter of Transmittal. If any of the Original Notes tendered hereby are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any Original Note or instrument of transfer is signed by a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to the Partnership of such person's authority to so act must be submitted.
When this Letter of Transmittal is signed by the registered Holder(s) of the Original Notes listed herein and transmitted hereby, no endorsements of Original Notes or separate instruments of transfer are required unless Exchange Notes are to be issued, or Original Notes not tendered or exchanged are to be issued, to a person other than the registered Holder(s), in which case signatures on such Original Notes or instruments of transfer must be guaranteed by an Eligible Institution.
IF THIS LETTER OF TRANSMITTAL IS SIGNED OTHER THAN BY THE REGISTERED HOLDER(S) OF THE ORIGINAL NOTES LISTED HEREIN, THE ORIGINAL NOTES MUST BE ENDORSED OR ACCOMPANIED BY APPROPRIATE INSTRUMENTS OF TRANSFER, IN EITHER CASE SIGNED EXACTLY AS THE NAME(S) OF THE REGISTERED HOLDER(S) APPEAR ON THE ORIGINAL NOTES AND SIGNATURES ON SUCH ORIGINAL NOTES OR INSTRUMENTS OF TRANSFER ARE REQUIRED AND MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION, UNLESS THE SIGNATURE IS THAT OF AN ELIGIBLE INSTITUTION.
6. Special Issuance and Delivery Instructions. If certificates for Exchange Notes or unexchanged or untendered Original Notes are to be issued in the name of a person other than the signer of this Letter of Transmittal, or if Exchange Notes or such Original Notes are to be sent to someone other than the signer of this Letter of Transmittal or to an address other than that shown herein, the appropriate boxes on this Letter of Transmittal should be completed. All Original Notes tendered by book-entry transfer and not accepted for payment will be returned by crediting the account at DTC designated herein as the account for which such Original Notes were delivered.
7. Transfer Taxes. Except as set forth in this Instruction 7, the Partnership will pay or cause to be paid any transfer taxes with respect to the transfer and sale of Original Notes to it, or to its order, pursuant to the Exchange Offer. If Exchange Notes, or Original Notes not tendered or exchanged are to be registered in the name of any persons other than the registered owners, or if tendered Original Notes are registered in the name of any persons
other than the persons signing this Letter of Transmittal, the amount of any transfer taxes (whether imposed on the registered Holder or such other person) payable on account of the transfer to such other person must be paid to the Partnership or the Exchange Agent (unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted) before the Exchange Notes will be issued.
8. Waiver of Conditions. The conditions of the Exchange Offer may be amended or waived by the Partnership, in whole or in part, at any time and from time to time in the Partnership's sole discretion, in the case of any Original Notes tendered.
9. Substitute Form W-9. Each tendering owner of a Note (or other payee) is required to provide the Exchange Agent with a correct taxpayer identification number ("TIN"), generally the owner's social security or federal employer identification number, and with certain other information, on Substitute Form W-9, which is provided hereafter under "Important Tax Information," and to certify that the owner (or other payee) is not subject to backup withholding. Failure to provide the information on the Substitute Form W-9 may subject the tendering owner (or other payee) to a $50 penalty imposed by the Internal Revenue Service and 30% federal income tax withholding. The box in Part 3 of the Substitute Form W-9 may be checked if the tendering owner (or other payee) has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future. If the box in Part 3 is checked and the Exchange Agent is not provided with a TIN within 60 days of the date on the Substitute Form W-9, the Exchange Agent will withhold 30% until a TIN is provided to the Exchange Agent.
10. Broker-dealers Participating in the Exchange Offer. If no broker-dealer checks the last box on page 7 of this Letter of Transmittal, the Partnership has no obligation under the Registration Rights Agreement to allow the use of the Prospectus for resales of the Exchange Notes by broker-dealers or to maintain the effectiveness of the Registration Statement of which the Prospectus is a part after the consummation of the Exchange Offer.
11. Requests for Assistance or Additional Copies. Any questions or requests for assistance or additional copies of the Prospectus, this Letter of Transmittal or the Notice of Guaranteed Delivery may be directed to the Exchange Agent at the telephone numbers and location listed above. A Holder or owner may also contact such Holder's or owner's broker, dealer, commercial bank or trust company or nominee for assistance concerning the Exchange Offer.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE HEREOF), TOGETHER WITH CERTIFICATES REPRESENTING THE ORIGINAL NOTES AND ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY, MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under federal income tax law, an owner of Original Notes whose tendered Original Notes are accepted for exchange is required to provide the Exchange Agent with such owner's current TIN on Substitute Form W-9 below. If such owner is an individual, the TIN is his or her social security number. If the Exchange Agent is not provided with the correct TIN, the owner or other recipient of Exchange Notes may be subject to a $50 penalty imposed by the Internal Revenue Service. In addition, any interest on Exchange Notes paid to such owner or other recipient may be subject to 30% backup withholding tax.
Certain owners of Notes (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, that owner must submit to the Exchange Agent a properly completed Internal Revenue Service Forms W-8ECI, W-8BEN, W-8EXP or W-8IMY (collectively, a "Form W-8"), signed under penalties of perjury, attesting to that individual's exempt status. A Form W-8 can be obtained from the Exchange Agent. Failure to provide the information required by Form W-8 may subject the tendering holder (or other payee) to a $50 penalty imposed by the Internal Revenue Service and 30% federal income tax withholding.
Backup withholding is not an additional tax. Rather, the federal income tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding the owner is required to notify the Exchange Agent of the owner's current TIN (or the TIN of any other payee) by completing the following form, certifying that the TIN provided on Substitute Form W-9 is correct (or that such owner is awaiting a TIN), and that (i) the owner is exempt from withholding, (ii) the owner has not been notified by the Internal Revenue Service that the owner is subject to backup withholding as a result of failure to report all interest or dividends or (iii) the Internal Revenue Service has notified the owner that the owner is no longer subject to backup withholding. See the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for additional instructions.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
The Holder is required to give the Exchange Agent the TIN (e.g., social security number or employer identification number) of the owner of the Original Notes. If the Original Notes are registered in more than one name or are not registered in the name of the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9", for additional guidance on which number to report.
-------------------------------------------------------------------------------------------------------------------------------
PAYEE'S NAME:
-------------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE Social Security Number(s)
FORM W-9 BOX AT THE RIGHT AND CERTIFY BY SIGNING or
AND DATING BELOW. Employer Identification Number(s)
------------------------------
-----------------------------------------------------------------------------------------
DEPARTMENT OF THE TREASURY PART 2 -- Certifications -- Under penalties of perjury, I certify that:
INTERNAL REVENUE SERVICE
(1) The number shown on this form is my correct taxpayer identification number (or I
PAYER'S REQUEST FOR am waiting for a number to be issued to me) and
TAXPAYER IDENTIFICATION
NUMBER ("TIN") (2) I am not subject to backup withholding because: (a) I am exempt from backup
withholding, or (b) I have not been notified by the Internal Revenue Service
("IRS") that I am subject to backup withholding as a result of a failure to
report all interest or dividends, or (c) the IRS has notified me that I am no
longer subject to backup withholding.
(3) I am a U.S. person (including a U.S. resident alien).
CERTIFICATION INSTRUCTIONS -- You must cross out item (2) above if you have been
notified by the IRS that you are currently subject to backup withholding because of
under-reporting interest or dividends on your tax return.
-----------------------------------------------------------------------------------------
Signature ------------------------------ PART 3 --
Awaiting TIN [ ]
Date -----------------------------------
-------------------------------------------------------------------------------------------------------------------------------
|
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50 PENALTY
IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP WITHHOLDING OF 30%.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (1) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (2) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number within 60 days of the date in this form, 30% of all reportable cash payments made to me will be withheld until I provide a taxpayer identification number.
Signature Date
----------------------------------- -----------------
A-13
|
ANNEX B
|
KINDER MORGAN ENERGY PARTNERS, L.P.
LETTER OF TRANSMITTAL
FOR 7.30% NOTES
LETTER OF TRANSMITTAL
TO TENDER FOR EXCHANGE
7.30% SENIOR NOTES DUE 2033
OF
KINDER MORGAN ENERGY PARTNERS, L.P.
PURSUANT TO THE PROSPECTUS DATED , 2002
THIS OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2002
UNLESS EXTENDED BY THE PARTNERSHIP IN ITS SOLE DISCRETION (THE "EXPIRATION
DATE"). TENDERS OF NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION
DATE.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
WACHOVIA BANK, NATIONAL ASSOCIATION
By Mail: By Facsimile: By Hand:
Wachovia Bank, National Association (704) 590-7628 Wachovia Bank, National Association
Customer Information Center Customer Information Center
Corporate Trust Operations -- NC1153 Confirm by Telephone: Corporate Trust Operations -- NC1153
1525 West W.T. Harris Boulevard -- 3C3 (704) 590-7413 1525 West W.T. Harris Boulevard -- 3C3
Charlotte, NC 28288 Charlotte, NC 28262-1153
Attention: Marsha Rice Attention: Marsha Rice
|
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TO A NUMBER OTHER THAN AS LISTED ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE EXCHANGE NOTES PURSUANT TO THE EXCHANGE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR ORIGINAL NOTES TO THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
This Letter of Transmittal is to be used by holders ("Holders") of 7.30% Senior Notes due 2033 (the "Original Notes") of Kinder Morgan Energy Partners, L.P. (the "Partnership") to receive 7.30% Exchange Notes (the "Exchange Notes") if: (i) certificates representing Original Notes are to be physically delivered to the Exchange Agent herewith by such Holders; (ii) tender of Original Notes is to be made by book-entry transfer to the Exchange Agent's account at The Depository Trust Company ("DTC") pursuant to the procedures set forth under the caption "The Exchange Offer -- Procedures for Tendering Original Notes -- Book-Entry Delivery Procedures" in the Prospectus dated , 2002 (the "Prospectus"); or (iii) tender of Original Notes is to be made according to the guaranteed delivery procedures set forth under the caption "The Exchange Offer -- Procedures for Tendering Original Notes -- Guaranteed Delivery" in the Prospectus, and, in each case, instructions are not being transmitted through the DTC Automated Tender Offer Program ("ATOP"). The undersigned hereby acknowledges receipt of the Prospectus. All capitalized terms used herein and not defined shall have the meanings ascribed to them in the Prospectus.
Holders of Original Notes that are tendering by book-entry transfer to the Exchange Agent's account at DTC can execute the tender through ATOP, for which the transaction will be eligible. DTC participants that are accepting the exchange offer as set forth in the Prospectus and this Letter of Transmittal (together, the "Exchange Offer") must transmit their acceptance to DTC which will edit and verify the acceptance and execute a book-entry delivery to the Exchange Agent's account at DTC. DTC will then send an Agent's Message to the Exchange Agent for its
acceptance. Delivery of the Agent's Message by DTC will satisfy the terms of the Offer as to execution and delivery of a Letter of Transmittal by the participant identified in the Agent's Message. DTC participants may also accept the Exchange Offer by submitting a notice of guaranteed delivery through ATOP.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE
AGENT.
If a Holder desires to tender Original Notes pursuant to the Exchange Offer and time will not permit this Letter of Transmittal, certificates representing such Original Notes and all other required documents to reach the Exchange Agent, or the procedures for book-entry transfer cannot be completed, on or prior to the Expiration Date, then such Holder must tender such Original Notes according to the guaranteed delivery procedures set forth under the caption "The Exchange Offer -- Procedures for Tendering Original Notes -- Guaranteed Delivery" in the Prospectus. See Instruction 2.
The undersigned should complete, execute and deliver this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the Exchange Offer.
TENDER OF ORIGINAL NOTES
[ ] CHECK HERE IF TENDERED ORIGINAL NOTES ARE ENCLOSED HEREWITH.
[ ] CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING:
[ ] CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
List below the Original Notes to which this Letter of Transmittal relates. The name(s) and address(es) of the registered Holder(s) should be printed, if not already printed below, exactly as they appear on the Original Notes tendered herewith. The Original Notes and the principal amount of Original Notes that the undersigned wishes to tender should be indicated in the appropriate boxes. If the space provided is inadequate, list the certificate number(s) and principal amount(s) on a separately executed schedule and affix the schedule to this Letter of Transmittal.
-----------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF ORIGINAL NOTES
-----------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES)
OF REGISTERED HOLDER(S) AGGREGATE PRINCIPAL
(PLEASE FILL IN IF BLANK) SEE CERTIFICATE AMOUNT PRINCIPAL AMOUNT
INSTRUCTION 3. NUMBER(S)* REPRESENTED** TENDERED**
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
TOTAL PRINCIPAL
AMOUNT OF ORIGINAL NOTES
-----------------------------------------------------------------------------------------------------------------------------
* Need not be completed by Holders tendering by book-entry transfer.
** Unless otherwise specified, the entire aggregate principal amount represented by the Original Notes described above will
be deemed to be tendered. See Instruction 4.
-----------------------------------------------------------------------------------------------------------------------------
|
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to Kinder Morgan Energy Partners (the "Partnership"), upon the terms and subject to the conditions set forth in its Prospectus dated , 2002 (the "Prospectus"), receipt of which is hereby acknowledged, and in accordance with this Letter of Transmittal (which together constitute the "Exchange Offer"), the principal amount of Original Notes indicated in the foregoing table entitled "Description of Original Notes" under the column heading "Principal Amount Tendered." The undersigned represents that it is duly authorized to tender all of the Original Notes tendered hereby which it holds for the account of beneficial owners of such Original Notes ("Beneficial Owner(s)") and to make the representations and statements set forth herein on behalf of such Beneficial Owner(s).
Subject to, and effective upon, the acceptance for purchase of the principal amount of Original Notes tendered herewith in accordance with the terms and subject to the conditions of the Exchange Offer, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Partnership, all right, title and interest in and to all of the Original Notes tendered hereby. The undersigned hereby irrevocably constitutes and appoints the Exchange Agent the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as the agent of the Partnership) with respect to such Original Notes, with full powers of substitution and revocation (such power of attorney being deemed to be an irrevocable power coupled with an interest) to (i) present such Original Notes and all evidences of transfer and authenticity to, or transfer ownership of, such Original Notes on the account books maintained by DTC to, or upon the order of, the Partnership, (ii) present such Original Notes for transfer of ownership on the books of the Partnership, and (iii) receive all benefits and otherwise exercise all rights of beneficial ownership of such Original Notes, all in accordance with the terms and conditions of the Exchange Offer as described in the Prospectus.
By accepting the Exchange Offer, the undersigned hereby represents and warrants that:
(1) the Exchange Notes to be acquired by the undersigned and any Beneficial Owner(s) in connection with the Exchange Offer are being acquired by the undersigned and any Beneficial Owner(s) in the ordinary course of business of the undersigned and any Beneficial Owner(s),
(2) the undersigned and each Beneficial Owner are not participating, do not intend to participate, and have no arrangement or understanding with any person to participate, in the distribution of the Exchange Notes,
(3) except as indicated below, neither the undersigned nor any Beneficial Owner is an "affiliate," as defined in Rule 405 under the Securities Act of 1933, as amended (together with the rules and regulations promulgated thereunder, the "Securities Act"), of the Partnership, and
(4) the undersigned and each Beneficial Owner acknowledge and agree that (x) any person participating in the Exchange Offer with the intention or for the purpose of distributing the Exchange Notes must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale of the Exchange Notes acquired by such person with a registration statement containing the selling securityholder information required by Item 507 of Regulation S-K of the Securities and Exchange Commission (the "SEC") and cannot rely on the interpretation of the Staff of the SEC set forth in the no-action letters that are noted in the section of the Prospectus entitled "The Exchange Offer -- Registration Rights" and (y) any broker-dealer that pursuant to the Exchange Offer receives Exchange Notes for its own account in exchange for Original Notes which it acquired for its own account as a result of market-making activities or other trading activities must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes.
If the undersigned is a broker-dealer that will receive Exchange Notes for its own account in exchange for Original Notes that were acquired as the result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Notes. By so acknowledging and by
delivering a prospectus, a broker-dealer shall not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
The undersigned understands that tenders of Original Notes may be withdrawn by written notice of withdrawal received by the Exchange Agent at any time prior to the Expiration Date in accordance with the Prospectus. In the event of a termination of the Exchange Offer, the Original Notes tendered pursuant to the Exchange Offer will be returned to the tendering Holders promptly (or, in the case of Original Notes tendered by book-entry transfer, such Original Notes will be credited to the account maintained at DTC from which such Original Notes were delivered). If the Partnership makes a material change in the terms of the Exchange Offer or the information concerning the Exchange Offer or waives a material condition of such Exchange Offer, the Partnership will disseminate additional Exchange Offer materials and extend such Exchange Offer, if and to the extent required by law.
The undersigned understands that the tender of Original Notes pursuant to any of the procedures set forth in the Prospectus and in the instructions hereto will constitute the undersigned's acceptance of the terms and conditions of the Exchange Offer. The Partnership's acceptance for exchange of Original Notes tendered pursuant to any of the procedures described in the Prospectus will constitute a binding agreement between the undersigned and the Partnership in accordance with the terms and subject to the conditions of the Exchange Offer. For purposes of the Exchange Offer, the undersigned understands that validly tendered Original Notes (or defectively tendered Original Notes with respect to which the Partnership has, or has caused to be, waived such defect) will be deemed to have been accepted by the Partnership if, as and when the Partnership gives oral or written notice thereof to the Exchange Agent.
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Original Notes tendered hereby, and that when such tendered Original Notes are accepted for purchase by the Partnership, the Partnership will acquire good title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim or right. The undersigned and each Beneficial Owner will, upon request, execute and deliver any additional documents deemed by the Exchange Agent or by the Partnership to be necessary or desirable to complete the sale, assignment and transfer of the Original Notes tendered hereby.
All authority conferred or agreed to be conferred by this Letter of Transmittal shall not be affected by, and shall survive the death or incapacity of the undersigned and any Beneficial Owner(s), and any obligation of the undersigned or any Beneficial Owner(s) hereunder shall be binding upon the heirs, executors, administrators, trustees in bankruptcy, personal and legal representatives, successors and assigns of the undersigned and such Beneficial Owner(s).
The undersigned understands that the delivery and surrender of any Original Notes is not effective, and the risk of loss of the Original Notes does not pass to the Exchange Agent or the Partnership, until receipt by the Exchange Agent of this Letter of Transmittal, or a manually signed facsimile hereof, properly completed and duly executed, together with all accompanying evidences of authority and any other required documents in form satisfactory to the Partnership. All questions as to form of all documents and the validity (including time of receipt) and acceptance of tenders and withdrawals of Original Notes will be determined by the Partnership, in its sole discretion, which determination shall be final and binding.
Unless otherwise indicated herein under "Special Issuance Instructions," the undersigned hereby requests that any Original Notes representing principal amounts not tendered or not accepted for exchange be issued in the name(s) of the undersigned (and in the case of Original Notes tendered by book-entry transfer, by credit to the account of DTC), and Exchange Notes issued in exchange for Original Notes pursuant to the Exchange Offer be issued to the undersigned. Similarly, unless otherwise indicated herein under "Special Delivery Instructions," the undersigned hereby requests that any Original Notes representing principal amounts not tendered or not accepted for exchange and Exchange Notes issued in exchange for Original Notes pursuant to the Exchange Offer be delivered to the undersigned at the address shown below the undersigned's signature(s). In the event that the "Special Issuance Instructions" box or the "Special Delivery Instructions" box is, or both are, completed, the undersigned hereby requests that any Original Notes representing principal amounts not tendered or not accepted for purchase be issued in the name(s) of, certificates for such Original Notes be delivered to, and Exchange Notes issued in exchange for Original Notes pursuant to the Exchange Offer be issued in the name(s) of, and be delivered to, the person(s) at the
address(es) so indicated, as applicable. The undersigned recognizes that the Partnership has no obligation pursuant to the "Special Issuance Instructions" box or "Special Delivery Instructions" box to transfer any Original Notes from the name of the registered Holder(s) thereof if the Partnership does not accept for exchange any of the principal amount of such Original Notes so tendered.
[ ] CHECK HERE IF YOU OR ANY BENEFICIAL OWNER FOR WHOM YOU HOLD ORIGINAL NOTES IS AN AFFILIATE OF THE PARTNERSHIP.
[ ] CHECK HERE IF YOU OR ANY BENEFICIAL OWNER FOR WHOM YOU HOLD ORIGINAL NOTES TENDERED HEREBY IS A BROKER-DEALER WHO ACQUIRED SUCH NOTES DIRECTLY FROM THE PARTNERSHIP OR AN AFFILIATE OF THE PARTNERSHIP.
[ ] CHECK HERE AND COMPLETE THE LINES BELOW IF YOU OR ANY BENEFICIAL OWNER FOR
WHOM YOU HOLD ORIGINAL NOTES TENDERED HEREBY IS A BROKER-DEALER WHO ACQUIRED
SUCH NOTES IN MARKET-MAKING OR OTHER TRADING ACTIVITIES. IF THIS BOX IS
CHECKED, THE PARTNERSHIP WILL SEND 10 ADDITIONAL COPIES OF THE PROSPECTUS
AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO TO YOU OR SUCH
BENEFICIAL OWNER AT THE ADDRESS SPECIFIED IN THE FOLLOWING LINES.
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Original Notes in a principal amount not tendered or not accepted for exchange are to be issued in the name of, or Exchange Notes are to be issued in the name of, someone other than the person(s) whose signature(s) appear(s) within this Letter of Transmittal or issued to an address different from that shown in the box entitled "Description of Original Notes" within this Letter of Transmittal.
Issue: [ ] Original Notes
[ ] Exchange Notes
(check as applicable)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Original Notes in a principal amount not tendered or not accepted for exchange or Exchange Notes are to be sent to someone other than the person(s) whose signature(s) appear(s) within this Letter of Transmittal or to an address different from that shown in the box entitled "Description of Original Notes" within this Letter of Transmittal.
Issue: [ ] Original Notes
[ ] Exchange Notes
(check as applicable)
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS OF ORIGINAL NOTES
REGARDLESS OF WHETHER ORIGINAL NOTES ARE BEING PHYSICALLY DELIVERED HEREWITH)
This Letter of Transmittal must be signed by the registered Holder(s) exactly as name(s) appear(s) on certificate(s) for Original Notes or, if tendered by a participant in DTC, exactly as such participant's name appears on a security position listing as owner of Original Notes, or by the person(s) authorized to become registered Holder(s) by endorsements and documents transmitted herewith. If signature is by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, please set forth full title and see Instruction 5.
SIGNATURE GUARANTEE
(IF REQUIRED -- SEE INSTRUCTIONS 1 AND 5)
[PLACE SEAL HERE]
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Signature Guarantees. Signatures of this Letter of Transmittal must be
guaranteed by a recognized member of the Medallion Signature Guarantee Program
or by any other "eligible guarantor institution," as such term is defined in
Rule 17Ad-15 promulgated under the Exchange Act (each of the foregoing, an
"Eligible Institution"), unless the Original Notes tendered hereby are tendered
(i) by a registered Holder of Original Notes (or by a participant in DTC whose
name appears on a security position listing as the owner of such Original Notes)
that has not completed either the box entitled "Special Issuance Instructions"
or the box entitled "Special Delivery Instructions" on this Letter of
Transmittal, or (ii) for the account of an Eligible Institution. If the Original
Notes are registered in the name of a person other than the signer of this
Letter of Transmittal, if Original Notes not accepted for exchange or not
tendered are to be returned to a person other than the registered Holder or if
Exchange Notes are to be issued in the name of or sent to a person other than
the registered Holder, then the signatures on this Letter of Transmittal
accompanying the tendered Original Notes must be guaranteed by an Eligible
Institution as described above. See Instruction 5.
2. Delivery of Letter of Transmittal and Original Notes. This Letter of Transmittal is to be completed by Holders if (i) certificates representing Original Notes are to be physically delivered to the Exchange Agent herewith by such Holders; (ii) tender of Original Notes is to be made by book-entry transfer to the Exchange Agent's account at DTC pursuant to the procedures set forth under the caption "The Exchange Offer -- Procedures for Tendering Original Notes -- Book-Entry Delivery Procedures" in the Prospectus; or (iii) tender of Original Notes is to be made according to the guaranteed delivery procedures set forth under the caption "The Exchange Offer -- Procedures for Tendering Original Notes -- Guaranteed Delivery" in the Prospectus. All physically delivered Original Notes, or a confirmation of a book-entry transfer into the Exchange Agent's account at DTC of all Original Notes delivered electronically, as well as a properly completed and duly executed Letter of Transmittal (or manually signed facsimile thereof), any required signature guarantees and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at one of its addresses set forth on the cover page hereto on or prior to the Expiration Date, or the tendering Holder must comply with the guaranteed delivery procedures set forth below. DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
If a Holder desires to tender Original Notes pursuant to the Exchange Offer and time will not permit this Letter of Transmittal, certificates representing such Original Notes and all other required documents to reach the Exchange Agent, or the procedures for book-entry transfer cannot be completed, on or prior to the Expiration Date, such Holder must tender such Original Notes pursuant to the guaranteed delivery procedures set forth under the caption "The Exchange Offer -- Procedures for Tendering Original Notes -- Guaranteed Delivery" in the Prospectus. Pursuant to such procedures, (i) such tender must be made by or through an Eligible Institution; (ii) a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by the Partnership, or an Agent's Message with respect to guaranteed delivery that is accepted by the Partnership, must be received by the Exchange Agent, either by hand delivery, mail, telegram, or facsimile transmission, on or prior to the Expiration Date; and (iii) the certificates for all tendered Original Notes, in proper form for transfer (or confirmation of a book-entry transfer or all Original Notes delivered electronically into the Exchange Agent's account at DTC pursuant to the procedures for such transfer set forth in the Prospectus), together with a properly completed and duly executed Letter of Transmittal (or manually signed facsimile thereof) and any other documents required by this Letter of Transmittal, or in the case of a book-entry transfer, a properly transmitted Agent's Message, must be received by the Exchange Agent within two business days after the date of the execution of the Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE ORIGINAL NOTES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC AND ANY ACCEPTANCE OR AGENT'S MESSAGE DELIVERED THROUGH ATOP, IS AT THE ELECTION AND RISK OF THE TENDERING HOLDER AND, EXCEPT AS OTHERWISE PROVIDED IN THIS INSTRUCTION 2, DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, IT IS SUGGESTED THAT THE HOLDER USE PROPERLY INSURED, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, AND THAT THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE TO PERMIT DELIVERY TO THE EXCHANGE AGENT PRIOR TO SUCH DATE.
No alternative, conditional or contingent tenders will be accepted. All tendering Holders, by execution of this Letter of Transmittal (or a facsimile thereof), waive any right to receive any notice of the acceptance of their Original Notes for exchange.
3. Inadequate Space. If the space provided herein is inadequate, the certificate numbers and/or the principal amount represented by Original Notes should be listed on separate signed schedule attached hereto.
4. Partial Tenders. (Not applicable to Holders who tender by book-entry transfer). If Holders wish to tender less than the entire principal amount evidenced by an Original Note submitted, such Holders must fill in the principal amount that is to be tendered in the column entitled "Principal Amount Tendered." The minimum permitted tender is $1,000 in principal amount of Original Notes. All other tenders must be in integral multiples of $1,000 in principal amount. In the case of a partial tender of Original Notes, as soon as practicable after the Expiration Date, new certificates for the remainder of the Original Notes that were evidenced by such Holder's old certificates will be sent to such Holder, unless otherwise provided in the appropriate box on this Letter of Transmittal. The entire principal amount that is represented by Original Notes delivered to the Exchange Agent will be deemed to have been tendered, unless otherwise indicated.
5. Signatures on Letter of Transmittal, Instruments of Transfer and Endorsements. If this Letter of Transmittal is signed by the registered Holder(s) of the Original Notes tendered hereby, the signatures must correspond with the name(s) as written on the face of the certificate(s) without alteration, enlargement or any change whatsoever. If this Letter of Transmittal is signed by a participant in DTC whose name is shown as the owner of the Original Notes tendered hereby, the signature must correspond with the name shown on the security position listing as the owner of the Original Notes.
If any of the Original Notes tendered hereby are registered in the name of two or more Holders, all such Holders must sign this Letter of Transmittal. If any of the Original Notes tendered hereby are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any Original Note or instrument of transfer is signed by a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to the Partnership of such person's authority to so act must be submitted.
When this Letter of Transmittal is signed by the registered Holder(s) of the Original Notes listed herein and transmitted hereby, no endorsements of Original Notes or separate instruments of transfer are required unless Exchange Notes are to be issued, or Original Notes not tendered or exchanged are to be issued, to a person other than the registered Holder(s), in which case signatures on such Original Notes or instruments of transfer must be guaranteed by an Eligible Institution.
IF THIS LETTER OF TRANSMITTAL IS SIGNED OTHER THAN BY THE REGISTERED HOLDER(S) OF THE ORIGINAL NOTES LISTED HEREIN, THE ORIGINAL NOTES MUST BE ENDORSED OR ACCOMPANIED BY APPROPRIATE INSTRUMENTS OF TRANSFER, IN EITHER CASE SIGNED EXACTLY AS THE NAME(S) OF THE REGISTERED HOLDER(S) APPEAR ON THE ORIGINAL NOTES AND SIGNATURES ON SUCH ORIGINAL NOTES OR INSTRUMENTS OF TRANSFER ARE REQUIRED AND MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION, UNLESS THE SIGNATURE IS THAT OF AN ELIGIBLE INSTITUTION.
6. Special Issuance and Delivery Instructions. If certificates for Exchange Notes or unexchanged or untendered Original Notes are to be issued in the name of a person other than the signer of this Letter of Transmittal, or if Exchange Notes or such Original Notes are to be sent to someone other than the signer of this Letter of Transmittal or to an address other than that shown herein, the appropriate boxes on this Letter of Transmittal should be completed. All Original Notes tendered by book-entry transfer and not accepted for payment will be returned by crediting the account at DTC designated herein as the account for which such Original Notes were delivered.
7. Transfer Taxes. Except as set forth in this Instruction 7, the Partnership will pay or cause to be paid any transfer taxes with respect to the transfer and sale of Original Notes to it, or to its order, pursuant to the Exchange Offer. If Exchange Notes, or Original Notes not tendered or exchanged are to be registered in the name of any persons other than the registered owners, or if tendered Original Notes are registered in the name of any persons
other than the persons signing this Letter of Transmittal, the amount of any transfer taxes (whether imposed on the registered Holder or such other person) payable on account of the transfer to such other person must be paid to the Partnership or the Exchange Agent (unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted) before the Exchange Notes will be issued.
8. Waiver of Conditions. The conditions of the Exchange Offer may be amended or waived by the Partnership, in whole or in part, at any time and from time to time in the Partnership's sole discretion, in the case of any Original Notes tendered.
9. Substitute Form W-9. Each tendering owner of a Note (or other payee) is required to provide the Exchange Agent with a correct taxpayer identification number ("TIN"), generally the owner's social security or federal employer identification number, and with certain other information, on Substitute Form W-9, which is provided hereafter under "Important Tax Information," and to certify that the owner (or other payee) is not subject to backup withholding. Failure to provide the information on the Substitute Form W-9 may subject the tendering owner (or other payee) to a $50 penalty imposed by the Internal Revenue Service and 30% federal income tax withholding. The box in Part 3 of the Substitute Form W-9 may be checked if the tendering owner (or other payee) has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future. If the box in Part 3 is checked and the Exchange Agent is not provided with a TIN within 60 days of the date on the Substitute Form W-9, the Exchange Agent will withhold 30% until a TIN is provided to the Exchange Agent.
10. Broker-dealers Participating in the Exchange Offer. If no broker-dealer checks the last box on page 7 of this Letter of Transmittal, the Partnership has no obligation under the Registration Rights Agreement to allow the use of the Prospectus for resales of the Exchange Notes by broker-dealers or to maintain the effectiveness of the Registration Statement of which the Prospectus is a part after the consummation of the Exchange Offer.
11. Requests for Assistance or Additional Copies. Any questions or requests for assistance or additional copies of the Prospectus, this Letter of Transmittal or the Notice of Guaranteed Delivery may be directed to the Exchange Agent at the telephone numbers and location listed above. A Holder or owner may also contact such Holder's or owner's broker, dealer, commercial bank or trust company or nominee for assistance concerning the Exchange Offer.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE HEREOF), TOGETHER WITH CERTIFICATES REPRESENTING THE ORIGINAL NOTES AND ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY, MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under federal income tax law, an owner of Original Notes whose tendered Original Notes are accepted for exchange is required to provide the Exchange Agent with such owner's current TIN on Substitute Form W-9 below. If such owner is an individual, the TIN is his or her social security number. If the Exchange Agent is not provided with the correct TIN, the owner or other recipient of Exchange Notes may be subject to a $50 penalty imposed by the Internal Revenue Service. In addition, any interest on Exchange Notes paid to such owner or other recipient may be subject to 30% backup withholding tax.
Certain owners of Notes (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, that owner must submit to the Exchange Agent a properly completed Internal Revenue Service Forms W-8ECI, W-8BEN, W-8EXP or W-8IMY (collectively, a "Form W-8"), signed under penalties of perjury, attesting to that individual's exempt status. A Form W-8 can be obtained from the Exchange Agent. Failure to provide the information required by Form W-8 may subject the tendering owner (or other payee) to a $50 penalty imposed by the Internal Revenue Service and 30% federal income tax withholding.
Backup withholding is not an additional tax. Rather, the federal income tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding the owner is required to notify the Exchange Agent of the owner's current TIN (or the TIN of any other payee) by completing the following form, certifying that the TIN provided on Substitute Form W-9 is correct (or that such owner is awaiting a TIN), and that (i) the owner is exempt from withholding, (ii) the owner has not been notified by the Internal Revenue Service that the owner is subject to backup withholding as a result of failure to report all interest or dividends or (iii) the Internal Revenue Service has notified the owner that the owner is no longer subject to backup withholding. See the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9" for additional instructions.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
The Holder is required to give the Exchange Agent the TIN (e.g., social security number or employer identification number) of the owner of the Original Notes. If the Original Notes are registered in more than one name or are not registered in the name of the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9", for additional guidance on which number to report.
-------------------------------------------------------------------------------------------------------------------------------
PAYEE'S NAME:
-------------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE Social Security Number(s)
FORM W-9 BOX AT THE RIGHT AND CERTIFY BY SIGNING or
AND DATING BELOW. Employer Identification Number(s)
------------------------------
-----------------------------------------------------------------------------------------
DEPARTMENT OF THE TREASURY PART 2 -- Certifications -- Under penalties of perjury, I certify that:
INTERNAL REVENUE SERVICE
(1) The number shown on this form is my correct taxpayer identification number (or I
PAYER'S REQUEST FOR am waiting for a number to be issued to me) and
TAXPAYER IDENTIFICATION
NUMBER ("TIN") (2) I am not subject to backup withholding because: (a) I am exempt from backup
withholding, or (b) I have not been notified by the Internal Revenue Service
("IRS") that I am subject to backup withholding as a result of a failure to
report all interest or dividends, or (c) the IRS has notified me that I am no
longer subject to backup withholding.
(3) I am a U.S. person (including a U.S. resident alien).
CERTIFICATION INSTRUCTIONS -- You must cross out item (2) above if you have been
notified by the IRS that you are currently subject to backup withholding because of
under-reporting interest or dividends on your tax return.
-----------------------------------------------------------------------------------------
Signature ------------------------------ PART 3 --
Awaiting TIN [ ]
Date -----------------------------------
-------------------------------------------------------------------------------------------------------------------------------
|
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50 PENALTY
IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP WITHHOLDING OF 30%.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (1) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (2) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number within 60 days of the date in this form, 30% of all reportable cash payments made to me will be withheld until I provide a taxpayer identification number.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
KINDER MORGAN MANAGEMENT, LLC
Section 18-108 of the Delaware Limited Liability Company Act provides that, subject to such standards and restrictions, if any, as are set forth in its limited liability company agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever. The limited liability company agreement of Kinder Morgan Management, LLC (the "Company") provides that the Company will indemnify the members of the board and the officers of the Company from liabilities arising in the course of such persons' service to the Company, provided that the indemnitee acted in good faith and in a manner which such indemnitee believed to be in, or not opposed to, the best interests of the Company and, with respect to any criminal proceeding, had no reasonable cause to believe such indemnitee's conduct was unlawful. Such liabilities include all losses, claims, damages, expenses (including, without limitation, legal fees and expenses), judgments, fines, penalties, interest, settlements and other amounts, provided that with respect to any criminal proceeding, the indemnitee had no reasonable cause to believe the indemnitee's conduct was unlawful. The Company expects to be included within the same coverage available to Kinder Morgan G.P., Inc. for directors' and officers' liability insurance for potential liability under such indemnification. The holders of shares will not be personally liable for such indemnification.
KINDER MORGAN ENERGY PARTNERS, L.P.
Section 17-108 of the Delaware Limited Partnership Act provides that, subject to such standards and restrictions, if any, as are set forth in its partnership agreement, a limited partnership may, and shall have the power to, indemnify and hold harmless any partner or other person from and against any and all claims and demands whatsoever. The Partnership Agreement for Kinder Morgan Energy Partners, L.P. provides that Kinder Morgan Energy Partners, L.P. will indemnify any person who is or was an officer or director of Kinder Morgan G.P., Inc. (the "KM General Partner") or any Departing Partner (as defined in that Partnership Agreement), to the fullest extent permitted by the law. Kinder Morgan Energy Partners, L.P. will also indemnify Kinder Morgan Management, LLC and any person who is or was a manager, officer or director of Kinder Morgan Management, LLC to the same extent as such provisions apply to the KM General Partner and any of the KM General Partner's officers and directors. In addition, Kinder Morgan Energy Partners, L.P. may indemnify, to the extent deemed advisable by the KM General Partner and to the fullest extent permitted by law, any person who is or was an officer or director of an affiliate of the KM General Partner or any Departing Partner or who is or was serving at the request of the KM General Partner or any Departing Partner or any affiliate of the KM General Partner or any Departing Partner as an officer or director of another person. These indemnitees will be indemnified from and against any and all losses, claims, damages, liabilities (joint or several), expenses (including, without limitation, legal fees and expenses), judgments, fines, penalties, interest, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an officer or director or a person serving at the request of Kinder Morgan Energy Partners, L.P. in another entity in a similar capacity, provided that in each case the indemnitee acted in good faith and in a manner which such indemnitee believed to be in, or not opposed to, the best interests of Kinder Morgan Energy Partners, L.P., and, with respect to any criminal proceeding, had no reasonable cause to believe its conduct was unlawful. Any indemnification under these provisions will be only out of the assets of Kinder Morgan Energy Partners, L.P. and the KM General Partner shall not be personally liable for, or have any obligation to contribute or loan funds or assets to Kinder Morgan Energy Partners, L.P. to enable it to effectuate such indemnification. Kinder Morgan Energy Partners, L.P. is authorized to purchase (or to reimburse the KM General Partner or its affiliates for the cost of) insurance against any liability asserted against or expense incurred by such person to indemnify such person against such liabilities under the provisions described above.
II-1
Article XII(c) of the Certificate of Incorporation of the KM General Partner (the "corporation" therein), contains the following provisions relating to indemnification of directors and officers:
"(c) Each director and each officer of the corporation (and his heirs, executors and administrators) shall be indemnified by the corporation against expenses reasonably incurred by him in connection with any claim made against him or any action, suit or proceeding to which he may be made a party, by reason of his being or having been a director or officer of the corporation (whether or not he continues to be a director or officer of the corporation at the time of incurring such expenses), except in cases where the claim made against him shall be admitted by him to be just, and except in cases where such action, suit or proceeding shall be settled prior to adjudication by payment of all or a substantial portion of the amount claimed, and except in cases in which he shall be adjudged in such action, suit or proceeding to be liable or to have been derelict in the performance of his duty as such director or officer. Such right of indemnification shall not be exclusive of other rights to which he may be entitled as a matter of law."
Officers and directors of the KM General Partner who are also officers and directors of Kinder Morgan, Inc. and/or Kinder Morgan Management, LLC are entitled to similar indemnification from Kinder Morgan, Inc. pursuant to Kinder Morgan, Inc.'s articles of incorporation and bylaws and/or Kinder Morgan Management, LLC's limited liability company agreement, as the case may be.
Kinder Morgan Energy Partners, L.P. has purchased liability insurance policies covering the directors and officers of the partnership, including, to provide protection where it cannot legally indemnify a director or officer and where a claim arises under the Employee Retirement Income Security Act of 1974 against a director or officer based on an alleged breach of fiduciary duty or other wrongful act.
ITEM 21. EXHIBITS.
(a) Exhibits
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1* -- Form of Indenture dated August 19, 2002 between Kinder
Morgan Energy Partners and Wachovia Bank, National
Association, as Trustee.
4.2* -- Form of First Supplemental Indenture to Indenture dated
August 19, 2002, dated August 23, 2002 between Kinder Morgan
Energy Partners and Wachovia Bank, National Association, as
Trustee.
4.3* -- Form of 5.35% Note and Form of 7.30% Note (contained in the
Indenture filed as Exhibit 4.1).
4.4* -- Form of Registration Rights Agreement dated August 19, 2002
among Kinder Morgan Energy Partners, Salomon Smith Barney
Inc., J.P. Morgan Securities Inc., Wachovia Securities,
Inc., RBC Dominion Securities Corporation, SunTrust Capital
Markets, Inc., Banc One Capital Markets, Inc., and Credit
Lyonnais Securities (USA) Inc.
4.5* -- Form of Registration Rights Agreement dated August 23, 2002
between Kinder Morgan Energy Partners and J.P. Morgan
Securities Inc.
5* -- Opinion of Bracewell & Patterson, L.L.P. as to the legality
of the notes being offered.
8* -- Opinion of Bracewell & Patterson, L.L.P. as to certain
federal income tax matters.
12* -- Calculation of Earnings to Fixed Charges.
23.1* -- Consent of Bracewell & Patterson, L.L.P. (included in their
opinions filed as Exhibit 5 and Exhibit 8 hereto).
23.2* -- Consent of PricewaterhouseCoopers LLP.
23.3* -- Consent of PricewaterhouseCoopers LLP.
24* -- Powers of attorney.
25* -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Wachovia Bank.
|
* Filed herewith.
II-2
(b) Financial Statement Schedules
All financial statement schedules are omitted because the information is not required, is inapplicable, is not material or is otherwise included in the financial statements or related notes thereto.
(c) Reports, Opinions, and Appraisals
There are no reports, opinions, or appraisals included herein.
ITEM 22. UNDERTAKINGS
(a) Regulation S-K, Item 512 Undertakings
(1) The undersigned registrant hereby undertakes:
(i) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(a) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(b) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
(c) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(ii) That, for the purpose 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.
(iii) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(2) 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 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.
(3) Registration on Form S-4 of Securities Offered for Resale.
(i) The undersigned 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
(ii) The registrant undertakes that every prospectus (a) that is filed pursuant to the paragraph immediately preceding, or (b) that purports to meet the requirements of section 10(a)(3) of the Securities Act of 1933 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 new 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 Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than payment by the registrant of expenses 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 Securities Act and will be governed by the final adjudication of such issue.
(b) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4 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.
(c) The undersigned hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired therein, that was not the subject of and included in the registration statement when it became effective.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this Registration Statement on Form S-4 or amendment thereto to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas on October 4, 2002.
KINDER MORGAN ENERGY PARTNERS, L.P.
(A Delaware Limited Partnership)
By: Kinder Morgan G.P., Inc.,
its general partner
By: Kinder Morgan Management, LLC,
its delegate
By:
/s/ JOSEPH LISTENGART
--------------------------------
Joseph Listengart
Vice President, General Counsel
and Secretary
------------------
|
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-4 or amendment thereto has been signed below by the following persons in the indicated capacities on October 4, 2002.
SIGNATURE TITLE
--------- -----
/s/ RICHARD D. KINDER Director, Chairman of the Board and Chief
----------------------------------------------------- Executive Officer of Kinder Morgan
Richard D. Kinder Management, LLC (Principal Executive
Officer)
/s/ WILLIAM V. MORGAN* Director, Vice Chairman of the Board of
----------------------------------------------------- Kinder Morgan Management, LLC
William V. Morgan
/s/ EDWARD O. GAYLORD* Director of Kinder Morgan Management, LLC
-----------------------------------------------------
Edward O. Gaylord
/s/ GARY L. HULTQUIST* Director of Kinder Morgan Management, LLC
-----------------------------------------------------
Gary L. Hultquist
/s/ PERRY M. WAUGHTAL* Director of Kinder Morgan Management, LLC
-----------------------------------------------------
Perry M. Waughtal
/s/ C. PARK SHAPER Vice President, Treasurer and Chief
----------------------------------------------------- Financial Officer of Kinder Morgan
C. Park Shaper Management LLC (Principal Financial
Officer and Principal Accounting Officer)
Kinder Morgan, Inc. Director of Kinder Morgan Management, LLC
|
By: /s/ JOSEPH LISTENGART
--------------------------------
Joseph Listengart
Vice President,
General Counsel and Secretary
(constituting a majority of the
Board of
Directors of Kinder Morgan
Management, LLC)
*By: /s/ JOSEPH LISTENGART
-------------------------------
Joseph Listengart
Attorney-in-fact for persons
indicated
|
II-5
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
4.1* -- Form of Indenture dated August 19, 2002 between Kinder
Morgan Energy Partners and Wachovia Bank, National
Association, as Trustee.
4.2* -- Form of First Supplemental Indenture to Indenture dated
August 19, 2002, dated August 23, 2002 between Kinder Morgan
Energy Partners and Wachovia Bank, National Association, as
Trustee.
4.3* -- Form of 5.35% Note and Form of 7.30% Note (contained in the
Indenture filed as Exhibit 4.1).
4.4* -- Form of Registration Rights Agreement dated August 19, 2002
among Kinder Morgan Energy Partners, Salomon Smith Barney
Inc., J.P. Morgan Securities Inc., Wachovia Securities,
Inc., RBC Dominion Securities Corporation, SunTrust Capital
Markets, Inc., Banc One Capital Markets, Inc., and Credit
Lyonnais Securities (USA) Inc.
4.5* -- Form of Registration Rights Agreement dated August 23, 2002
between Kinder Morgan Energy Partners and J.P. Morgan
Securities Inc.
5* -- Opinion of Bracewell & Patterson, L.L.P. as to the legality
of the notes being offered.
8* -- Opinion of Bracewell & Patterson, L.L.P. as to certain
federal income tax matters.
12* -- Calculation of Earnings to Fixed Charges.
23.1* -- Consent of Bracewell & Patterson, L.L.P. (included in their
opinions filed as Exhibit 5 and Exhibit 8 hereto).
23.2* -- Consent of PricewaterhouseCoopers LLP.
23.3* -- Consent of PricewaterhouseCoopers LLP.
24* -- Powers of attorney.
25* -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Wachovia Bank.
|
* Filed herewith.
EXHIBIT 4.1
Conformed Copy
KINDER MORGAN
ENERGY PARTNERS, L.P.
ISSUER
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
TRUSTEE
INDENTURE
DATED AS OF AUGUST 19, 2002
$250,000,000 5.35% SENIOR NOTES DUE 2007
$375,000,000 7.30% SENIOR NOTES DUE 2033
KINDER MORGAN ENERGY PARTNERS, L.P.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
Section 310 (a)(1)..................................................................... 609
(a)(2)..................................................................... 609
(a)(3)..................................................................... Not Applicable
(a)(4)..................................................................... Not Applicable
(b)........................................................................ 608; 610
Section 311 (a)........................................................................ 613
(b)........................................................................ 613
Section 312 (a)........................................................................ 701; 702
(b)........................................................................ 702
(c)........................................................................ 702
Section 313 (a)........................................................................ 703
(b)........................................................................ 703
(c)........................................................................ 703
(d)........................................................................ 703
Section 314 (a)........................................................................ 704
(a)(4)..................................................................... 1004
(b)........................................................................ Not Applicable
(c)(1)..................................................................... 102
(c)(2)..................................................................... 102
(c)(3)..................................................................... Not Applicable
(d)........................................................................ Not Applicable
(e)........................................................................ 102
Section 315 (a)........................................................................ 601, 603
(b)........................................................................ 602
(c)........................................................................ 601
(d)........................................................................ 601
(e)........................................................................ 514
Section 316 (a)........................................................................ 101
(a)(1)(A).................................................................. 502; 512
(a)(1)(B).................................................................. 513
(a)(2)..................................................................... Not Applicable
(b)........................................................................ 508
(c)........................................................................ 104
Section 317 (a)(1)..................................................................... 503
(a)(2)..................................................................... 504
(b)........................................................................ 1003
Section 318 (a)........................................................................ 107
|
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions...............................................................................1
Section 102. Compliance Certificates and Opinions.....................................................14
Section 103. Form of Documents Delivered to Trustee...................................................14
Section 104. Acts of Holders; Record Dates............................................................15
Section 105. Notices, Etc., to Trustee and Partnership................................................16
Section 106. Notice to Holders; Waiver................................................................16
Section 107. Conflict with Trust Indenture Act........................................................17
Section 108. Effect of Headings and Table of Contents.................................................17
Section 109. Successors and Assigns...................................................................17
Section 110. Separability Clause......................................................................17
Section 111. Benefits of Indenture....................................................................17
Section 112. Governing Law............................................................................18
Section 113. Legal Holidays...........................................................................18
Section 114. Language of Notices, Etc.................................................................18
ARTICLE II
SECURITY FORMS
Section 201. Forms Generally..........................................................................18
Section 202. Forms of Face of Securities..............................................................19
Section 203. Forms of Reverse of Securities...........................................................20
Section 204. Form of Trustee's Certificate and Authorization..........................................25
ARTICLE III
THE SECURITIES
Section 301. Title and Terms..........................................................................25
Section 302. Denominations............................................................................26
Section 303. Execution, Authentication, Delivery and Dating...........................................26
Section 304. Temporary Securities.....................................................................26
Section 305. Transfer and Exchange....................................................................27
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.........................................40
Section 307. Payment of Interest; Interest Rights Preserved...........................................40
Section 308. Persons Deemed Owners....................................................................41
Section 309. Cancellation.............................................................................42
Section 310. Computation of Interest..................................................................43
Section 311. CUSIP Numbers............................................................................43
|
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture..................................................43
Section 402. Application of Trust Money...............................................................44
ARTICLE V
REMEDIES
Section 501. Events of Default........................................................................44
Section 502. Acceleration of Maturity; Rescission and Annulment.......................................45
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee..........................46
Section 504. Trustee May File Proofs of Claim.........................................................47
Section 505. Trustee May Enforce Claims Without Possession of Securities..............................47
Section 506. Application of Money Collected...........................................................47
Section 507. Limitation on Suits......................................................................48
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest................48
Section 509. Restoration of Rights and Remedies.......................................................48
Section 510. Rights and Remedies Cumulative...........................................................49
Section 511. Delay or Omission Not Waiver.............................................................49
Section 512. Control by Holders.......................................................................49
Section 513. Waiver of Past Defaults..................................................................49
Section 514. Undertaking for Costs....................................................................50
Section 515. Waiver of Usury, Stay or Extension Laws..................................................50
ARTICLE VI
THE TRUSTEE
Section 601. Certain Duties and Responsibilities......................................................50
Section 602. Notice of Defaults.......................................................................52
Section 603. Certain Rights of Trustee................................................................52
Section 604. Not Responsible for Recitals or Issuance of Securities...................................53
Section 605. May Hold Securities......................................................................53
Section 606. Money Held in Trust......................................................................53
Section 607. Compensation and Reimbursement...........................................................53
Section 608. Disqualification; Conflicting Interests..................................................54
Section 609. Corporate Trustee Required; Eligibility..................................................54
Section 610. Resignation and Removal; Appointment of Successor........................................55
Section 611. Acceptance of Appointment by Successor...................................................56
Section 612. Merger, Conversion, Consolidation or Succession to Business..............................56
Section 613. Preferential Collection of Claims Against Partnership....................................56
Section 614. Appointment of Authenticating Agent......................................................57
|
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND PARTNERSHIP
Section 701. Partnership to Furnish Trustee Names and Addresses of Holders............................58
Section 702. Preservation of Information; Communications to Holders...................................58
Section 703. Reports by Trustee.......................................................................59
Section 704. Reports by Partnership...................................................................59
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Partnership and Guarantors May Consolidate, Etc., Only on Certain Terms..................60
Section 802. Successor Substituted....................................................................60
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.......................................61
Section 902. Supplemental Indentures with Consent of Holders..........................................61
Section 903. Execution of Supplemental Indentures.....................................................62
Section 904. Effect of Supplemental Indentures........................................................62
Section 905. Conformity with Trust Indenture Act......................................................63
Section 906. Reference in Securities to Supplemental Indentures.......................................63
ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium and Interest...............................................63
Section 1002. Maintenance of Office or Agency..........................................................63
Section 1003. Money for Securities Payments to Be Held in Trust........................................64
Section 1004. Statement by Officers as to Default......................................................65
Section 1005. Existence................................................................................65
Section 1006. Limitations on Liens.....................................................................65
Section 1007. Restriction of Sale-Leaseback Transaction................................................66
Section 1008. Waiver of Certain Covenants..............................................................67
Section 1009. Officers' Certificate as to Liquidated Damages...........................................67
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101. Optional Redemption......................................................................68
Section 1102. Election to Redeem; Notice to Trustee....................................................68
|
Section 1103. Selection by Trustee of Securities to be Redeemed........................................68
Section 1104. Notice of Redemption.....................................................................69
Section 1105. Deposit of Redemption Price..............................................................69
Section 1106. Securities Payable on Redemption Date....................................................70
Section 1107. Securities Redeemed in Part..............................................................70
ARTICLE XII
NON-RECOURSE
Section 1201. Non-Recourse to the Delegate and the General Partner; No Personal Liability of
Officers, Directors, Employees or Partners............................................70
ARTICLE XIII
DEFEASANCE OF SECURITIES
Section 1301. Legal Defeasance.........................................................................71
Section 1302. Covenant Defeasance......................................................................72
Section 1303. Application by Trustee of Funds Deposited for Payment of Securities......................73
Section 1304. Repayment to Partnership.................................................................74
Section 1305. Reinstatement............................................................................74
ARTICLE XIV
GUARANTY OF SECURITIES
Section 1401. Requirement for Guaranty.................................................................75
Section 1402. Release of Guaranty......................................................................75
Annex A "Guaranty Provisions".............................................................................A-1
Annex B Form of CERTIFICATE OF TRANSFER...................................................................B-1
Annex C FORM OF CERTIFICATE OF EXCHANGE...................................................................C-1
|
INDENTURE dated as of August 19, 2002 between KINDER MORGAN ENERGY PARTNERS, L.P., a Delaware limited partnership (the "Partnership"), having its principal office at One Allen Center, Suite 1000, 500 Dallas Street, Houston, Texas 77002, and the WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee (the "Trustee").
RECITALS OF THE PARTNERSHIP
The Partnership has duly authorized the creation of two series of the Securities (as hereinafter defined), substantially of the tenor and amount hereinafter set forth, and to provide therefor the Partnership has duly authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the Partnership and authenticated and delivered hereunder and duly issued by the Partnership, the valid obligations of the Partnership, and to make this Indenture a valid agreement of the Partnership, in accordance with the terms of this Securities and this Indenture, respectively, have been done.
Upon the issuance of the Exchange Securities or the effectiveness of a registration statement filed in connection with the Exchange Offer, this Indenture will be subject to the provisions of the Trust Indenture Act (as hereinafter defined) that are required to be a part of this Indenture and shall, to the extent applicable, be governed by such provisions. Prior thereto, the provisions of said Trust Indenture Act will apply to this Indenture only to the extent expressly provided herein.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at the date of such computation;
(4) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
(5) the words "Article" and "Section" refer to an Article and Section, respectively, of this Indenture, and the word "Annex" refers to an Annex to this Indenture.
"Act", when used with respect to any Holder, has the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent, co-registrar or co-paying agent.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, the rules and procedures of the Depositary for such Security, or Euroclear and Clearstream, in each case to the extent applicable to such transaction and as in effect from time to time.
"Attributable Indebtedness", when used with respect to any Sale-Leaseback Transaction, means, as of the time of determination, the present value (discounted at the rate set forth or implicit in the terms of the lease included in such transaction) of the total obligations of the lessee for rental payments (other than amounts required to be paid on account of property taxes, maintenance, repairs, insurance, assessments, utilities, operating and labor costs and other items that do not constitute payments for property rights) during the remaining term of the lease included in such Sale-Leaseback Transaction (including any period for which such lease has been extended). In the case of any lease that is terminable by the lessee upon the payment of a penalty or other termination payment, such amount shall be the lesser of the amount determined assuming termination upon the first date such lease may be terminated (in which case the amount shall also include the amount of the penalty or termination payment, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) or the amount determined assuming no such termination.
"Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate the Securities.
"Authorized Agent" has the meaning specified in Section 105 of Annex A.
"Authorized Newspaper" means a newspaper, in the English language, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the Borough of Manhattan, The City of New York.
"Bankruptcy Law" means Title 11, U.S. Code, as amended, or any similar federal or state law for the relief of debtors or the protection of creditors.
"Board of Directors" means the board of directors of the Delegate, or the executive or any other committee of that board duly authorized to act in respect thereof. If the Partnership shall change its form of entity to other than a limited partnership, the references to officers or the Board of Directors of the Delegate shall mean the officers or the board of directors (or other comparable governing body) of the Partnership.
"Board Resolution" means a copy of a resolution certified by the Corporate Secretary of the Delegate, the principal financial officer of the Delegate or any other authorized officer of the Delegate or a Person duly authorized by any of them, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
"Business Day", means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in The City of New York are authorized or obligated by law, executive order or regulation to close.
"Capital Interests" means, with respect to any Person, any and all
shares, interests, participations, rights or other equivalents (however
designated) of such Person's equity, including, without limitation (i) with
respect to partnerships, partnership interests (whether general or limited),
(ii) with respect to limited liability companies, member interests, and (iii)
any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of,
such Person.
"Clearstream" means Clearstream Banking (or any successor securities clearing agency).
"Closing Date" has the meaning specified in the Registration Rights Agreement.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Consolidated Net Tangible Assets" means, at any date of determination, the total amount of assets after deducting therefrom (i) all current liabilities (excluding (A) any current liabilities that by their terms are extendable or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed, and (B) current maturities of long-term debt), and (ii) the value (net of any applicable reserves) of all goodwill, trade names, trademarks, patents and other like intangible assets, all as set forth on the consolidated balance sheet of the Partnership and its consolidated subsidiaries for the Partnership's most recently completed fiscal quarter, prepared in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which at the date hereof is 12 East 49th Street, 37th Floor, New York, New York 10017.
"corporation" includes corporations, associations, partnerships (general or limited), limited liability companies, joint-stock companies and business trusts.
"covenant defeasance" has the meaning specified in Section 1302.
"Custodian" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
"Debt" means any obligation created or assumed by any Person for the repayment of money borrowed, any purchase money obligation created or assumed by such Person and any guarantee of the foregoing.
"Default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to the Securities.
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" has the meaning specified in Section 1301.
"Definitive Security" means a Security other than a Global Security or a temporary Security.
"Delegate" means Kinder Morgan Management, LLC, the delegate of the General Partner to manage and control the Partnership pursuant to the Delegation of Control Agreement among Kinder Morgan Management, LLC, Kinder Morgan G.P., Inc. and Kinder Morgan Energy Partners, L.P. and its operating partnerships, dated as of May 18, 2001.
"Depositary" means a clearing agency registered under the Exchange Act that is designated to act as Depositary for the Securities, until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter shall mean or include each Person which is then a Depositary hereunder, and if at any time there is more than one such Person, shall be a collective reference to such Persons.
"Dollar" or "$" means the coin or currency of the United States as at the time of payment is legal tender for the payment of public and private debts.
"DTC" means The Depository Trust Company.
"Euroclear" means the Euroclear Clearance System (or any successor securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 or any statute successor thereto, in each case as amended from time to time.
"Exchange Offer" has the meaning specified in the Registration Rights Agreement, with respect to either series of Securities.
"Exchange Security" means any Security issued in exchange for an Original Security or Original Securities pursuant to the applicable Exchange Offer or otherwise registered under the Securities Act (which shall be substantially identical to the Original Securities except that the Exchange Securities will have been registered pursuant to an effective registration statement under the Securities Act, will not be subject to transfer restrictions or registration rights and will not be entitled to the benefit of provisions for Liquidated Damages) and any Security with respect to which the next preceding Predecessor Security of such Security was an Exchange Security.
"Funded Debt" means all Debt maturing one year or more from the date of
the creation thereof, all Debt directly or indirectly renewable or extendable,
at the option of the debtor, by its terms or by the terms of any instrument or
agreement relating thereto, to a date one year or more from the date of the
creation thereof, and all Debt under a revolving credit or similar agreement
obligating the lender or lenders to extend credit over a period of one year or
more.
"Funding Guarantor" has the meaning specified in Section 103 of Annex
A.
"General Partner" means Kinder Morgan G.P., Inc., a Delaware corporation.
"Global Securities" means the Restricted Global Securities and the Unrestricted Global Securities, with respect to either series of Securities.
"Global Security Legend" means a legend substantially in the form specified in Section 305(g)(2).
"Guarantor" means (i) each Subsidiary of the Partnership that becomes a guarantor of the Securities pursuant to Section 1401, and (ii) any Subsidiary of the Partnership that is a successor of any Subsidiary of the Partnership referred to in clause (i). The term "Guarantor" shall not include any Subsidiary of the Partnership referred to in clause (i) or (ii) that shall have been (or whose predecessor shall have been) released from its obligations under a Guaranty pursuant to Section 1402.
"Guaranty" means a guaranty of the Securities containing provisions substantially in the form specified in Annex A, and such other provisions, not inconsistent herewith, as are customary in guaranties, executed and delivered by one or more Subsidiaries of the Partnership as required by Section 1401.
"Holder" means a Person in whose name a Security is registered in the Security Register.
"Independent Investment Banker" has the meaning specified in Section 1101.
"Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument, and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively.
"Indirect Participant" means a Person who holds a beneficial interest in a Global Security through a Participant.
"Institutional Accredited Investor" means an institution that is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of the Securities Act.
"interest" includes Liquidated Damages, if any.
"Interest Payment Date" means the Stated Maturity of an installment of interest on the Securities.
"Judgment Currency" has the meaning specified in Section 107 of Annex
A.
"Letter of Transmittal" means the letter of transmittal to be prepared by the Partnership and sent to all Holders of either series of the Securities for use by such Holders in connection with the applicable Exchange Offer.
"Lien" means, as to any entity, any mortgage, lien, pledge, security interest or other encumbrance in or on, or adverse interest or title of any vendor, lessor, lender or other secured party to or of the entity under conditional sale or other title retention agreement or capital lease with respect to, any property or asset of the entity, but excluding agreements to refrain from granting Liens.
"Liquidated Damages", which do not accrue on the Exchange Securities, has the meaning specified in the Forms of Reverse of Security in Section 203. Liquidated Damages, if any, accrued and unpaid on the Restricted Securities shall be payable, as and to the extent provided in the Registration Rights Agreement, in the manner provided for the payment of interest in the Indenture and the Restricted Securities, on each applicable Interest Payment Date.
"Liquidated Damages Event", which does not apply to the Exchange
Securities, has the meaning specified in the Forms of Reverse of Security in
Section 203.
"Make-Whole Premium" with respect to any Security (or portion thereof) to be redeemed will be equal to the excess, if any, of (i) the sum of the present values, calculated as of the Redemption Date, of (a) each interest payment that, but for such redemption, would have been payable on any such Security (or portion thereof) being redeemed on each Interest Payment Date occurring after the Redemption Date (excluding any accrued interest for the period prior to the Redemption Date) and (b) the principal amount that, but for such redemption, would have been payable at the Stated Maturity of the principal of such Security (or portion thereof) being redeemed, over (ii) the principal amount of such Security (or portion thereof) being redeemed. The present value of interest and principal payments referred to in clause (i) will be determined in accordance with generally accepted principles of financial analysis. Such present values will be calculated by discounting the amount of each payment of interest or principal from the date that each such payment would have been payable, but for the redemption, to the Redemption Date at a discount rate equal to the Treasury Yield plus: (A) in the case of the 2007 Securities, 20 basis points (0.20%) and (B) in the case of the 2033 Securities, 30 basis points (0.30%).
"Maturity," when used with respect to a Security, means the date on which the principal of the Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Non-U.S. Guarantor" has the meaning specified in Section 105 of Annex
A.
"Notice of Default" means a written notice of the kind specified in
Section 501(3).
"Officers' Certificate" of a Person means a certificate signed by the
Chairman of the Board, the Vice Chairman, the President or a Vice President, and
by the Treasurer or the Secretary, of the Person, or if such Person is a
partnership, of its general partner (or, in the case of the Partnership, of the
Delegate), and delivered to the Trustee. One of the officers or such other
Persons (as applicable) signing an Officers' Certificate given pursuant to
Section 1004 or 1009 shall be the principal executive, financial or accounting
officer of the Person, or if such Person is a partnership, of its general
partner (or, in the case of the Partnership, of the Delegate).
"Opinion of Counsel" means a written opinion of legal counsel, who may be an employee of or counsel for the Partnership or a Guarantor, which opinion shall comply with the provisions of Sections 102 and 103. Such counsel shall be acceptable to the Trustee, whose acceptance shall not be unreasonably withheld.
"Original Securities" means all Securities other than Exchange Securities.
"Outstanding", when used with respect to Securities of either series, means, as of the date of determination, all Securities of such series theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Partnership) in trust or set aside and segregated in trust by the Partnership (if the Partnership shall act as its own Paying Agent) for Holders of such Securities; provided, however, that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor has been made;
(iii) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Partnership; and
(iv) Securities, except to the extent provided in Sections 1301 and 1302, with respect to which the Partnership has effected defeasance or covenant defeasance as provided in Article XIII;
provided, however, that in determining whether Holders of the requisite principal amount of the Outstanding Securities of a series have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Partnership or any other obligor upon the Securities or any Affiliate of the Partnership or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Partnership or any other obligor upon the Securities or any Affiliate of the Partnership or of such other obligor.
"Pari Passu Debt" means any Debt of the Partnership, whether outstanding on the Closing Date or thereafter created, incurred or assumed, unless, in the case of any particular Debt, the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Debt shall be subordinated in right of payment to the Securities.
"Participant" means, with respect to DTC, a Person who has an account with DTC.
"Partnership" means the Person named as the "Partnership" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Partnership" shall mean such successor Person.
"Partnership Request" or "Partnership Order" means a written request or order signed in the name of the Partnership by the Chairman of the Board, the Vice Chairman, the President or a Vice President of the Delegate, and by the Treasurer or Secretary of the Delegate, and delivered to the Trustee, or if the Partnership shall change its form of entity to other than a limited partnership, by Persons or officers, members, agents and the like positions comparable to those of the foregoing nature, as applicable.
"Paying Agent" means any Person authorized by the Partnership to pay the principal of or any premium or interest on any Securities on behalf of the Partnership.
"Permitted Liens" means (i) Liens upon rights-of-way for pipeline purposes; (ii) any statutory or governmental Lien or Lien arising by operation of law, or any mechanics', repairmen's, materialmen's, supplier's, carrier's, landlord's, warehousemen's or similar Lien incurred in the ordinary course of business which is not yet due or which is being contested in good faith by appropriate proceedings and any undetermined Lien which is incidental to construction, development, improvement or repair; (iii) the right reserved to, or vested in, any municipality or public authority by the terms of any right, power, franchise, grant, license, permit or by any provision of law, to purchase or recapture or to designate a purchaser of, any property; (iv) Liens of taxes and assessments which are (A) for the then current year, (B) not at the time delinquent, or (C) delinquent but the validity of which is being contested at the time by the Partnership or any Subsidiary in good faith; (v) Liens of, or to secure performance of, leases, other than capital leases; (vi) any Lien upon, or deposits of, any assets in favor of any surety company or clerk of court for the purpose of obtaining indemnity or stay of judicial proceedings; (vii) any Lien upon property or assets acquired or sold by the Partnership or any Subsidiary resulting from the exercise of any rights arising out of defaults on receivables; (viii) any Lien incurred in the ordinary course of business in connection with workmen's compensation,
unemployment insurance, temporary disability, social security, retiree health or
similar laws or regulations or to secure obligations imposed by statute or
governmental regulations; (ix) any Lien in favor of the Partnership or any
Subsidiary; (x) any Lien in favor of the United States or any state thereof, or
any department, agency or instrumentality or political subdivision of the United
States or any state thereof, to secure partial, progress, advance, or other
payments pursuant to any contract or statute, or any Debt incurred by the
Partnership or any Subsidiary for the purpose of financing all or any part of
the purchase price of, or the cost of constructing, developing, repairing or
improving, the property or assets subject to such Lien; or (xi) any Lien
securing industrial development, pollution control or similar revenue bonds;
(xii) any Lien securing Debt of the Partnership or any Subsidiary, all or a
portion of the net proceeds of which are used, substantially concurrent with the
funding thereof (and for purposes of determining such "substantial concurrence",
taking into consideration, among other things, required notices to be given to
Holders of Outstanding securities under this Indenture (including the
Securities) in connection with such refunding, refinancing or repurchase, and
the required corresponding durations thereof), to refinance, refund or
repurchase all Outstanding Securities, including the amount of all accrued
interest thereon and reasonable fees and expenses and premium, if any, incurred
by the Partnership or any Subsidiary in connection therewith; (xiii) Liens in
favor of any Person to secure obligations under the provisions of any letters of
credit, bank guarantees, bonds or surety obligations required or requested by
any governmental authority in connection with any contract or statute; or (xiv)
any Lien upon or deposits of any assets to secure performance of bids, trade
contracts, leases or statutory obligations.
"Person" means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, other entity, unincorporated organization or government, or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities, means the office or agency of the Partnership in The City of New York.
"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same Debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same Debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means, whether owned or leased on the date of this Indenture or thereafter acquired, (i) any pipeline assets of the Partnership or any Subsidiary, including any related facilities employed in the transportation, distribution, storage or marketing of refined petroleum products, natural gas liquids and carbon dioxide, that are located in the United States or any territory or political subdivision thereof, and (ii) any processing or manufacturing plant or terminal owned or leased by the Partnership or any Subsidiary that is located in the United States or any territory or political subdivision thereof, except, in the case of either of the foregoing clauses (i) or (ii), (A) any such assets consisting of inventories, furniture, office fixtures and equipment (including data processing equipment), vehicles and equipment used on, or useful with, vehicles, and (B) any such assets, plant or terminal which, in the opinion of the Board of Directors, is not material in relation to the activities of the Partnership or of the Partnership and its Subsidiaries, taken as a whole.
"Purchase Agreement" means the Purchase Agreement, dated as of August 14, 2002, between the Partnership and Salomon Smith Barney Inc., J.P. Morgan Securities Inc., Wachovia Securities, Inc., RBC Dominion Securities Corporation, SunTrust Capital Markets, Inc., Banc One Capital Markets, Inc. and Credit Lyonnais Securities (USA) Inc., as the same shall be amended from time to time.
"Purchasers" means Salomon Smith Barney Inc., J.P. Morgan Securities Inc., Wachovia Securities, Inc., RBC Dominion Securities Corporation, SunTrust Capital Markets, Inc., Banc One Capital Markets, Inc. and Credit Lyonnais Securities (USA) Inc.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Securities" means the Exchange Securities and all other Securities sold or otherwise disposed of pursuant to an effective registration statement under the Securities Act, together with their respective Successor Securities.
"Registrable Securities" has the meaning specified in the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement, dated as of August 19, 2002, between the Partnership and Salomon Smith Barney Inc., J.P. Morgan Securities Inc., Wachovia Securities, Inc., RBC Dominion Securities Corporation, SunTrust Capital Markets, Inc., Banc One Capital Markets, Inc. and Credit Lyonnais Securities (USA) Inc., as the same shall be amended from time to time.
"Regular Record Date" for the interest payable on any Interest Payment Date means February 1st or August 1st of each year (whether or not a Business Day) as the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (or any successor provision), as it may be amended from time to time.
"Regulation S Global Securities" means any Regulation S Securities, with respect to either series of Securities, issued in the form of one or more Global Securities registered in the name of the Depositary, or its nominee and deposited with the Trustee, as custodian for the Depositary.
"Regulation S Permanent Global Security" means a permanent global security, with respect to either series of Securities, in the form of Security described in Sections 202 and 203 hereto bearing the Global Security Legend and the Restricted Securities Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Security upon expiration of the Restricted Period.
"Regulation S Temporary Global Security" means a temporary global security, with respect to either series of Securities, in the form of Security described in Sections 202 and 203 hereto bearing the Global Security Legend, Restricted Securities Legend and Regulation S Temporary Global Security Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Securities initially sold in reliance on Rule 903 of Regulation S.
"Regulation S Temporary Global Security Legend" means a legend substantially in the form of the legend specified in Section 305(g)(3).
"Regulation S Securities" means any Securities, with respect to either
series of Securities, sold by the Purchasers in reliance on Regulation S and any
Successor Securities thereto as long as such Securities are required pursuant to
Section 305(g)(1) to bear the Restricted Securities Legend.
"Restricted Definitive Security" means a Definitive Security, with respect to either series of Securities, bearing the Restricted Securities Legend.
"Restricted Global Securities" has the meaning specified in Section 201.
"Restricted Period" means the period of 41 consecutive days beginning on and including the later of (i) the day on which Securities are first offered to Persons other than distributors (as defined in Regulation S) in reliance on Regulation S and (ii) the original issuance date of the Securities.
"Restricted Securities" means any Regulation S Securities and any Securities sold by the Purchasers in reliance on Rule 144A, in both cases , with respect to either series of Securities, and any Successor Securities thereto as long as such Securities are required pursuant to Section 305(g)(1) to bear any Restricted Securities Legend.
"Restricted Securities Legend" means a legend substantially in the form of the legend specified in Section 305(g)(1).
"Rule 144" means Rule 144 under the Securities Act (or any successor provision), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (or any successor provision), as it may be amended from time to time.
"Rule 144(k) Holding Period" has the meaning specified in the Forms of Reverse of Security in Section 203.
"Sale-Leaseback Transaction" means the sale or transfer by the Partnership or any Subsidiary of any Principal Property to a Person (other than the Partnership or a Subsidiary) and the taking back by the Partnership or any Subsidiary, as the case may be, of a lease of such Principal Property.
"Securities" means, collectively, the 2007 Securities and the 2033 Securities, including the Original Securities and the Exchange Securities. For all purposes of this Indenture, the term
"Securities" shall include, with respect to either series of Securities, any Exchange Securities issued in exchange for Original Securities of the same series pursuant to this Indenture and, for purposes of this Indenture, all Outstanding Original Securities and Exchange Securities of the same series shall vote together as one series of Securities under this Indenture, and, except where otherwise provided herein, all Outstanding Original Securities and Exchange Securities of both series shall vote together as one class of Securities under this Indenture.
"Securities Act" means the Securities Act of 1933 or any statute successor thereto, in each case as amended from time to time.
"Security Custodian" means the Trustee, as custodian with respect to the Securities in global form, or any successor entity thereto.
"Security Register" means a register kept at an office or agency of the Security Registrar in The City of New York in which, subject to reasonable regulations as it may prescribe, the Partnership shall provide for the registration of Securities and of transfers of Securities.
"Security Registrar" means such Person that shall be appointed by the Partnership to maintain the Security Register. The Partnership hereby appoints the Trustee as the initial Security Registrar for purposes of registering Securities and transfers of Securities as herein provided and its corporate trust office which, at the date hereof, is located at 12 East 49th Street, 37th Floor, New York, New York 10017, as the initial office or agency in The City of New York where the Security Register will be maintained. The Partnership may at any time replace such Security Registrar, change such office or agency or act as its own Security Registrar. The Partnership will give prompt written notice to the Trustee of any change of the Security Registrar or of the location of such office or agency. At all reasonable times the Security Register shall be available for inspection by the Trustee.
"Shelf Registration Statement" has the meaning specified in the Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.
"spot rate of exchange" has the meaning specified in Section 107 of Annex A.
"Stated Maturity", when used with respect to the principal of any Security or any installment of interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation, association or other business entity of which more than 50% of the total voting power of the Capital Interests of such Person entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof or, in the case of a partnership, more than 50% of the partners' Capital Interests (considering all partners' Capital Interests as a single class), is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof.
"Successor Security" of any particular Security means every Security issued after, and evidencing all or a portion of the same debt as that evidenced by, such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Treasury Yield" means a rate of interest per annum equal to the weekly average yield to maturity of United States Treasury Notes that have a constant maturity that corresponds to the remaining term to maturity of the Securities of the applicable series, calculated to the nearest 1/12 of a year (the "Remaining Term"). The Treasury Yield will be determined as of the third Business Day immediately preceding the applicable Redemption Date. The weekly average yields of United States Treasury Notes will be determined by reference to the most recent statistical release published by the Federal Reserve Bank of New York and designated "H.15(519) Selected Interest Rates" or any successor release (the "H.15 Statistical Release"). If the H.15 Statistical Release sets forth a weekly average yield for United States Treasury Notes having a constant maturity that is the same as the Remaining Term, then the Treasury Yield will be equal to such weekly average yield. In all other cases, the Treasury Yield will be calculated by interpolation, on a straight-line basis, between the weekly average yields on the United States Treasury Notes that have a constant maturity closest to and greater than the Remaining Term and the United States Treasury Notes that have a constant maturity closest to and less than the Remaining Term (in each case as set forth in the H.15 Statistical Release). Any weekly average yields so calculated by interpolation will be rounded to the nearest 0.01%, with any figure of 0.0050% or above being rounded upward. If weekly average yields for United States Treasury Notes are not available in the H.15 Statistical Release or otherwise, then the Treasury Yield will be calculated by interpolation of comparable rates selected by the Independent Investment Banker.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as otherwise provided in Section 905; provided, however, that if the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean such successor Trustee.
"2007 Securities" means the 5.35% Senior Notes due 2007 of the Partnership.
"2033 Securities" means the 7.30% Senior Notes due 2033 of the Partnership.
"Unrestricted Definitive Securities" means Definitive Securities that do not and are not required to bear the Restricted Securities Legend.
"Unrestricted Global Securities" means Global Securities which do not and are not required to bear the Restricted Securities Legend.
"U.S." and "United States" each means the United States of America.
"U.S. Government Obligations" means securities which are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged, or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, each of which are not callable or redeemable at the option of the issuer thereof.
"U.S. Person" means a U.S. person as defined in Rule 902 under the Securities Act.
"Vice President", when used with respect to the Partnership, means any vice president of the Delegate, or when used with respect to the Trustee, means any vice president of the Trustee.
Section 102. Compliance Certificates and Opinions
Upon any application or request by the Partnership or any Guarantor to the Trustee to take or refrain from taking any action under any provision of this Indenture, the Partnership shall furnish to the Trustee an Officers' Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each such certificate or opinion shall be given in the form of an Officers' Certificate, if to be given by officers of the Delegate or any Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every Officers' Certificate or Opinion of Counsel (except for certificates provided for in Sections 1004 and 1009) shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Partnership, the Delegate or a Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Partnership, the Delegate or such Guarantor stating that the information with respect to such factual matters is in the possession of the Partnership, the Delegate or such Guarantor, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed (either physically or by means of a facsimile or an electronic transmission, provided that such electronic transmission is transmitted through the facilities of a Depositary) by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered (either physically or by means of a facsimile or an electronic transmission, provided that such electronic transmission is transmitted through the facilities of a Depositary) to the Trustee and, where it is hereby expressly required, to the Partnership. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and the Partnership, if made in the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including a Depositary that is a Holder of a Global Security, may make, give or take, by a proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership, principal amount and serial numbers of Securities held by any Person, and the date of commencement of such Person's holding the same, shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other action of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Partnership in reliance thereon, whether or not notation of such action is made upon such Security.
The Partnership may set any day as the record date for the purpose of determining Holders of Outstanding Securities entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders of Securities (other than any such action provided or permitted to be taken under Section 501, 502 or 512), but the Partnership shall have no obligation to do so. Such record date shall be not earlier than the 30th day prior to the first solicitation of any Holder to give or take any such action and not later than the date of such first solicitation. With regard to any record date set pursuant to this paragraph, Holders of Outstanding Securities of the applicable series on such record date (or their duly appointed agents), and only such Persons, shall be entitled to give or take the relevant action, whether or not such Holders remain Holders after such record date. The Partnership shall notify the Trustee in writing of any such record date not later than the date of the first solicitation of any Holder to give or take any action.
Section 105. Notices, Etc., to Trustee and Partnership
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Partnership or any
Guarantor shall be sufficient for every purpose hereunder if made in writing and
actually received by the Trustee at its Corporate Trust Office, Attention:
Corporate Trustee Administration, or at any other address previously furnished
in writing by the Trustee, or
(2) the Partnership or any Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Partnership addressed to it at One Allen Center, Suite 1000, 500 Dallas Street, Houston, Texas 77002, to the attention of the Corporate Secretary, or at any other address previously furnished in writing to the Trustee by the Partnership. Notice to the Partnership shall constitute notice to each Guarantor, if any.
Section 106. Notice to Holders; Waiver
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid (if international mail, by air mail), to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns
All covenants and agreements in this Indenture by the Partnership shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law
This Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New York.
Section 113. Legal Holidays
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 114. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, waiver or Act required or permitted under this Indenture shall be in the English language.
ARTICLE II
SECURITY FORMS
Section 201. Forms Generally
The Securities and the Trustee's certificate of authentication shall be in substantially the forms set forth in this Article, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable securities laws, tax laws or the rules of any securities exchange or automated quotation system on which the Securities may be listed or traded or of the Depositary therefor.
The Definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Upon their original issuance, the Restricted Securities shall be issued in the form of one or more Global Securities registered in the name of DTC, as Depositary, or its nominee and deposited with the Trustee, as custodian for DTC, for credit by DTC to the respective accounts of beneficial owners of the Securities represented thereby (or such other accounts as they may direct), provided that upon such deposit all such Regulation S Global Securities shall be credited to or through accounts maintained at DTC by or on behalf of Euroclear or Clearstream. Such Global Securities, with respect to either series of Securities, together with their Successor Securities which are Global Securities, are collectively herein called the "Restricted Global Securities".
Section 202. Forms of Face of Securities
KINDER MORGAN ENERGY PARTNERS, L.P.
[5.35% SENIOR NOTE DUE 2007] [7.30% SENIOR NOTE DUE 2033]
No. ___________ U.S.$___________________
CUSIP No. [494550AM8](1)
[U49452AD4](2)
[494550AN6](3)
[U49452AE2](4)
|
Kinder Morgan Energy Partners, L.P., a Delaware limited partnership (herein called the "Partnership", which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to _____________________, or registered assigns, the principal sum of ______________________ Dollars on August 15, [2007 (in the case of the 2007 Securities)] [2033 (in the case of the 2033 Securities)], and to pay interest thereon from August 19, 2002 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on February 15 and August 15 in each year (or if any such date is not a Business Day, the next succeeding Business Day), commencing February 15, 2003, at the rate of [5.35% per annum (in the case of the 2007 Securities)] [7.30% per annum (in the case of the 2033 Securities)], until the principal hereof is paid or made available for payment.
The interest so payable [(and Liquidated Damages, if any, provided for
on the reverse hereof)],(5) and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in said Indenture, be paid to the Person
in whose name this [2007] [2033] Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be February 1 or August 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest [(and Liquidated Damages, if any)]5 not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
[2007] [2033] Security (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest [(and Liquidated Damages, if any)]5 to be fixed by the Trustee, notice
whereof shall be given to Holders of [2007] [2033] Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the [2007] [2033] Securities may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and
(1) For 2007 Securities sold in reliance on Rule 144A.
(2) For 2007 Securities sold in reliance on Regulation S.
(3) For 2033 Securities sold in reliance on Rule 144A.
(4) For 2033 Securities sold in reliance on Regulation S.
(5) Omitted from Exchange Securities.
interest [(and Liquidated Damages, if any)](6) on this [2007] [2033] Security will be made at the office or agency of the Partnership maintained for that purpose in The City of New York, New York, in such coin or currency of the United States as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Partnership payment of interest [(and Liquidated Damages, if any)]6 may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register; and provided, further, however, that in case this [2007] [2033] Security is held by a Depositary or its nominee, payments of principal, interest [(and Liquidated Damages, if any)]6 and premium, if any, shall be made by wire transfer of immediately available funds to an account designated by such Depositary.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly executed.
By: Kinder Morgan G.P., Inc.,
Its General Partner
By: Kinder Morgan Management, LLC,
Its Delegate
Title:
Section 203. Forms of Reverse of Securities
This Security is one of a duly authorized issue of securities of the Partnership, limited in initial aggregate principal amount to [$250,000,000 (in the case of the 2007 Securities)] [$375,000,000 (in the case of the 2033 Securities)], issued and to be issued under an Indenture,
(6) Omitted from Exchange Securities.
dated as of August 19, 2002 (herein called the "Indenture"), between the Partnership and Wachovia Bank, National Association, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which the Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Partnership, the Trustee and Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The Securities issued and to be issued under the Indenture consist of $250,000,000 initial aggregate original principal amount of 5.35% Senior Notes due 2007 and $375,000,000 initial aggregate original principal amount of 7.30% Senior Notes due 2033 and are hereinafter collectively called the "Securities"; provided, however, that the Partnership may, so long as no Event of Default has occurred and is continuing, reopen any series of Securities to issue additional Securities of such series, which shall form a single series with the other Securities of such series and shall have the same terms, without the consent of the Holders.
[The Holder of this [2007] [2033] Security is entitled to the benefits of the Registration Rights Agreement. The Partnership agrees to pay liquidated damages (the "Liquidated Damages"), as specified below, upon the occurrence of any of the following events (each such event a "Liquidated Damages Event"): (i) if the Exchange Registration Statement or Shelf Registration Statement with respect to the [2007] [2033] Securities is not filed within 120 days following the Closing Date, then commencing on the 121st day after the Closing Date, Liquidated Damages shall accrue on the [2007] [2033] Securities over and above the otherwise applicable interest rate at a rate of 0.25% per annum, (ii) if the Exchange Registration Statement or the Shelf Registration Statement with respect to the [2007] [2033] Securities is filed and is not declared effective within 210 days following the Closing Date, then commencing on the 211th day after the Closing Date, Liquidated Damages shall accrue on the [2007] [2033] Securities over and above the otherwise applicable interest rate at a rate of 0.25% per annum, or (iii) if either (A) the Partnership has not exchanged Exchange Securities for all [2007] [2033] Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to 45 Business Days after the date on which the Exchange Registration Statement with respect to the [2007] [2033] Securities was declared effective, or (B) the Shelf Registration Statement with respect to the [2007] [2033] Securities has been declared effective but such Shelf Registration Statement ceases to be effective at any time (I) prior to the second anniversary of the Closing Date or, if Rule 144(k) is amended to provide a shorter restrictive period, such shorter period (the "Rule 144(k) Holding Period") and (II) while Registrable [2007] [2033] Securities are Outstanding, then Liquidated Damages shall accrue on the [2007] [2033] Securities over and above the otherwise applicable interest rate at a rate of 0.25% per annum commencing on the (x) 46th Business Day after such effective date, in the case of (A) above, or (y) the day the Shelf Registration Statement with respect to the [2007] [2033] Securities ceases to be effective, in the case of (B) above; provided, however, that the rate at which Liquidated Damages accrue on the Securities shall never exceed 0.25% per annum; and provided, further, that Liquidated Damages shall cease to accrue upon the earlier of (X) when all Liquidated Damages Events with respect to the [2007] [2033] Securities have been cured or (Y) upon the expiration of the Rule 144(k) Holding Period. For purposes of clarifying the foregoing provisions (i) the circumstances under which Liquidated Damages are owed are not cumulative, (ii) in no event will the rate of
Liquidated Damages exceed 0.25% per annum, and (iii) Liquidated Damages shall not accrue at any time when there are no Registrable [2007] [2033] Securities Outstanding.](7)
If an Event of Default with respect to the [2007] [2033] Securities shall occur and be continuing, the principal of all the [2007] [2033] Securities may be declared due and payable in the manner and with the effect provided in the Indenture.
The [2007] [2033] Securities are redeemable, at the option of the
Partnership, at any time in whole or from time to time in part, upon not less
than 30 and not more than 60 days' notice mailed to each Holder of the [2007]
[2033] Securities to be redeemed at the Holder's address appearing in the
Security Register, on any date prior to Maturity at a price equal to (a) 100% of
the principal amount thereof plus accrued interest to the Redemption Date
(subject to the right of holders of record on the relevant Record Date to
receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date) and (b) a Make-Whole Premium, if any (the "Redemption Price").
In no event will the Redemption Price ever be less than 100% of the principal
amount of the Securities being redeemed plus accrued interest to the Redemption
Date. The Make-Whole Premium will be calculated by an independent investment
banking institution of national standing appointed by the Partnership; provided,
that if the Partnership fails to make such appointment at least 30 Business Days
prior to the Redemption Date, or if the institution so appointed is unwilling or
unable to make such calculation, such calculation will be made by Salomon Smith
Barney Inc. or, if such firm is unwilling or unable to make such calculation, by
an independent investment banking institution of national standing appointed by
the Trustee (in any such case, an "Independent Investment Banker").
The Partnership has no obligation to redeem or purchase any Securities pursuant to any sinking fund or analogous requirement, or upon the happening of a specified event, or at the option of a Holder thereof.
The Indenture contains provision for defeasance at any time of (1) the entire indebtedness of this Security or (2) certain covenants contained therein, in each case upon compliance with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Partnership and the rights of Holders of the [2007] [2033] Securities under the Indenture at any time by the Partnership and the Trustee with the consent of a majority in aggregate principal amount of the [2007] [2033] Securities at the time Outstanding. The Indenture also contains provisions permitting Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of Holders of all the Securities, to waive compliance by the Partnership with certain provisions of the Indenture. The Indenture also contains provisions permitting Holders of specified percentages in aggregate principal amount of the [2007] [2033] Securities at the time Outstanding, on behalf of Holders of all the [2007] [2033] Securities, to waive certain past defaults under the Indenture with respect to the [2007] [2033] Securities and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the
(7) Omitted from Exchange Securities
registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of any series will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities of such series, Holders of not less than 25% in principal amount of the Outstanding Securities of such series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from Holders of a majority in principal amount of the Outstanding Securities of such series a direction inconsistent with such request and shall have failed to institute such proceedings within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of or any interest on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall, without the consent of the Holder hereof, alter or impair the obligation of the Partnership, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Partnership in The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Partnership and the Security Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon one or more new Securities of the same series of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof, unless otherwise required by law. As provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of the same series of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Partnership may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Partnership, the Trustee and any agent of the Partnership or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Partnership, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
ASSIGNMENT FORM
and irrevocably appoints __________________________ agent to transfer this Security on the books of the Partnership. The agent may substitute another to act for the agent.
Date:
-----------------
Your signature: NOTICE: The signature(s) on this
assignment must correspond in every
particular with the name(s) of the
registered owner(s) appearing on the face
of the Security.
Signature
Signature Guaranteed by:
---------------------------------------
NOTICE: Signature must be guaranteed by
an "eligible guarantor institution"
meeting the requirements of the
Trustee, which requirements will
include membership or participation in
STAMP or such other signature guaranty
program as may be determined by the
Trustee in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
|
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY(8)
The initial principal amount of this Global Security is $[ ]. The following increases or decreases in this Global Security as a result of exchanges of a part of this Global Security for an interest in another Global Security or Definitive Security, or exchanges of a part of another Global Security or a Definitive Security for an interest in this Global Security have been made:
Amount of
decrease in
Principal Amount Amount of increase in Principal amount of this Signature of authorized
Date of of this Global Principal Amount of Global Security following signatory of Trustee or
Exchange Security this Global Security such decrease or increase Securities Custodian
-------- ---------------- --------------------- ------------------------- -----------------------
|
(8) To be included only on Global Securities.
Section 204. Form of Trustee's Certificate and Authorization
The Trustee's certificates of authentication shall be in substantially the following form:
This is one of the Securities designated therein referred to in the within-mentioned Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION,
As Trustee
ARTICLE III
THE SECURITIES
Section 301. Title and Terms
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is initially limited to $250,000,000, in the case of the 2007 Securities, and $375,000,000, in the case of the 2033 Securities, in each case except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities pursuant to Section 304, 305, 306 or 906; provided, however, that the Partnership may, so long as no Event of Default has occurred and is continuing, reopen the series of Securities represented by the 2007 Securities or by the 2033 Securities to issue additional Securities of such series, which shall form a single series with the other Securities of such series and shall have the same terms, without the consent of the Holders.
The Securities shall be known and designated as the "5.35% Senior Notes due 2007", in the case of the 2007 Securities, and the "7.30% Senior Notes due 2033", in the case of the 2033 Securities, in each case of the Partnership. The Stated Maturity of the 2007 Securities in respect of principal shall be August 15, 2007, and they shall bear interest at the rate of 5.35% per annum, from August 19, 2002 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be, payable semi-annually on each February 15 and August 15, commencing February 15, 2003, until the principal thereof is paid or made available for payment. The Stated Maturity of the 2033 Securities in respect of principal shall be August 15, 2033, and they shall bear interest at the rate of 7.30% per annum, from August 19, 2002 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be, payable semi-annually on each February 15 and August 15, commencing February 15, 2003, until the principal thereof is paid or made available for payment.
The principal of and interest on the Securities shall be payable at the office or agency of the Partnership in The City of New York maintained for such purpose and any other office or agency maintained by the Partnership for such purpose; provided, however, that at the option of the Partnership payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
Section 302. Denominations
The Securities shall be issuable only in registered form without coupons and only denominations of $1,000 and any integral multiple thereof, unless otherwise required by law.
Section 303. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Partnership by the Chairman of the Board, Vice Chairman, Chief Executive Officer, Chief Financial Officer, President or any Vice President of the Delegate and need not be attested. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Delegate shall bind the Partnership, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Partnership may deliver Securities executed by the Partnership to the Trustee or an Authenticating Agent for authentication, together with a Partnership Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Partnership Order shall authenticate and deliver such Securities; provided, however, that Exchange Securities shall be issuable only upon the valid surrender for cancellation of Original Securities of the same series and of a like aggregate principal amount, in accordance with the Exchange Offer.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or any Guaranty or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Partnership, and the Partnership shall deliver such Security to the Trustee for cancellation as provided in Section 309 for all purposes of this Indenture, such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities
Pending the preparation of Definitive Securities, the Partnership may execute, and upon receipt of the documents required by Section 303, together with a Partnership Order, the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the Definitive Securities in lieu of which they are issued.
If temporary Securities are issued, the Partnership will cause Definitive Securities to be prepared without unreasonable delay. After the preparation of Definitive Securities, the
temporary Securities shall be exchangeable for Definitive Securities of the same series upon surrender of the temporary Securities at the office or agency of the Partnership maintained pursuant to Section 1002 for the purpose of exchanges of Securities, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities the Partnership shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more Definitive Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor. Until so exchanged the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as Definitive Securities of such tenor.
Section 305. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. A Global Security may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Securities will be exchanged by the Partnership for Definitive Securities if (i)
the Partnership delivers to the Trustee notice from the Depositary that it is
unwilling or unable to continue to act as Depositary for the Global Securities
or that it is no longer a clearing agency registered under the Exchange Act and,
in either case, a successor Depositary is not appointed by the Partnership
within 90 days after the date of such notice from the Depositary or (ii) the
Partnership in its sole discretion notifies the Trustee in writing that it
elects to cause issuance of the Securities in certificated form; provided, that
in no event shall the Regulation S Temporary Global Security be exchanged by the
Partnership for Definitive Securities prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Security Registrar of any
certificates required pursuant to Rule 903 under the Securities Act or an
Opinion of Counsel to the effect that such certificates are not required
pursuant to Rule 903. Upon the occurrence of either of the preceding events
described in clause (i) or (ii) of the immediately preceding sentence,
Definitive Securities shall be issued in such names as the Depositary shall
instruct the Trustee. If an Event of Default occurs and is continuing, the
Partnership shall, at the request of the Holder thereof, exchange all or part of
a Global Security for one or more Definitive Securities in denominations of
$1,000 or integral multiples thereof. Global Securities also may be exchanged or
replaced, in whole or in part, as provided in Section 306 hereof. Every Security
authenticated and delivered in exchange for, or in lieu of, a Global Security or
any portion thereof, pursuant to this Section 305(a) or Section 306 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Security. A Global Security may not be exchanged for another Security other than
as provided in this Section 305(a), however, beneficial interests in a Global
Security may be transferred and exchanged as provided in Section 305(b), (c) or
(f) hereof. Notwithstanding anything in this Section 305 to the contrary,
neither the Trustee, the Security Registrar nor the Partnership shall be
required (i) to issue, register the transfer of or exchange the Securities
during a period beginning at the opening of business 15 days before the day of
mailing of a notice of redemptions of Securities selected for redemption under
Article XI and ending at the close of business on the day of such mailing, or
(2) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
(b) Transfer and Exchange of Beneficial Interests in the Global Securities. The transfer and exchange of beneficial interests in the Global Securities shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Securities shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Securities also shall require compliance with all the following subparagraphs as are applicable:
(1) Transfer of Beneficial Interests in the Same Global Security. Beneficial interests in any Restricted Global Security may be transferred to Persons who take delivery in the form of a beneficial interest in the same Restricted Global Security in accordance with the transfer restrictions set forth in the Restricted Securities Legend; provided, however, that prior to the expiration of the Restricted Period transfers of beneficial interests in the Regulation S Temporary Global Security may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than a Purchaser). Beneficial interests in any Unrestricted Global Security may be transferred only to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Security. No written orders or instructions shall be required to be delivered to the Security Registrar to effect the transfers described in this Section 305(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global Securities. In connection with all transfers and exchanges of beneficial interests in Global Securities not provided for in Section 305(b)(1), the transferor of such beneficial interest must deliver to the Security Registrar:
(i) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Security in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
(ii) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Security in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Security Registrar containing information regarding the Person in whose name such Definitive Security shall be registered to effect the transfer or exchange referred to in clause (1) of this clause (B), provided, that in no event shall Definitive Securities be issued upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global Security prior to (x) the expiration of the Restricted Period and (y) the receipt by the Security Registrar of any certificates required pursuant to Rule 903 under the Securities Act or an Opinion of Counsel to the effect that such certificates are not required pursuant to Rule 903(b)(3)(ii)(B). In addition, beneficial interests in a Global Security may not be exchanged for Definitive Securities except upon a least 20 days prior written notice given to the Trustee and the Security Registrar by or on behalf of the Depositary in accordance with Applicable Procedures. Upon an Exchange Offer by the Partnership in accordance with Section 305(f) hereof, the requirements of this Section 305(b)(2) shall be deemed to have been satisfied with respect to the exchange of Securities in such Exchange Offer upon receipt by the Security Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Securities. Upon satisfaction
of all of the requirements for transfer or exchange of beneficial interests in Global Securities contained in this Indenture, the Securities and otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Security(s) pursuant to Section 305(h) hereof.
(3) Transfer of Beneficial Interests in a Restricted Global Security. A beneficial interest in any Restricted Global Security may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in the same or a different Restricted Global Security if the transfer complies with the requirements of clause (2) above, if applicable, and the transferor delivers to the Security Registrar a certificate in the form of Annex B hereto.
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Security for Beneficial Interests in an Unrestricted Global Security. A beneficial interest in any Restricted Global Security may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Security or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security if the exchange or transfer complies with the requirements of clause (2) above and:
(i) such exchange or transfer is effected pursuant to the applicable Exchange Offer in accordance with the Registration Rights Agreement;
(ii) any such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement; or
(iii) the Security Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global
Security proposes to exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Security, a certificate from such
holder in the form of Annex C hereto, including the certifications in
Item (1) thereof; (2) if the holder of such beneficial interest in a
Restricted Global Security proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security, a certificate
from such holder in the form of Annex B hereto, including the
certifications in Item (4) thereof; and (3) in each such case set forth
in this subparagraph (iii), an Opinion of Counsel in form reasonably
acceptable to the Partnership to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Restricted
Securities Legend are not required in order to maintain compliance with
the Securities Act.
If any such transfer is effected pursuant to subparagraph (ii)
above or this subparagraph (iii) at a time when an Unrestricted Global
Security has not yet been issued, the Partnership shall issue and, upon
receipt of an authentication order in accordance with Section 303
hereof, the Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the principal
amount of beneficial interests transferred pursuant to subparagraph
(ii) above or this subparagraph (iii). Beneficial interests in an
Unrestricted Global Security cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest
in a Restricted Global Security.
(c) Transfer or Exchange of Beneficial Interests for Definitive Securities.
(1) If any holder of a beneficial interest in a Restricted Global Security proposes to exchange such beneficial interest for a Restricted Definitive Security or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Security, then, upon receipt by the Security Registrar of the following documentation:
(i) if the holder of such beneficial interest in a Restricted Global Security proposes to exchange such beneficial interest for a Restricted Definitive Security, a certificate from such holder in the form of Annex C hereto, including the certifications in Item (5) thereof;
(ii) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (1) thereof;
(iii) if such beneficial interest is being transferred to a non-U.S. Person in an offshore transaction pursuant to Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (2) thereof;
(iv) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (3)(a) thereof;
(v) if such beneficial interest is being transferred pursuant to any other exemption (including a beneficial interest being transferred to an Institutional Accredited Investor) from the registration requirements of the Securities Act, in either case other than those listed in subparagraphs (ii), (iii) and (iv) above, then the transferor must deliver a certificate in the form of Annex B hereto, including the certifications, certificates and any Opinion of Counsel required by Item (3)(d) thereof;
(vi) if such beneficial interest is being transferred to the Partnership or any of its Subsidiaries, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (3)(b) thereof; or
(vii) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (3)(c) thereof,
the Trustee, upon notice of receipt of such documentation by
the Security Registrar, shall cause the aggregate principal amount of
the applicable Global Security to be reduced accordingly pursuant to
Section 305(h) hereof, and the Partnership shall execute and the
Trustee shall authenticate and make available for delivery to the
Person designated in the instructions a Definitive Security in the
appropriate principal amount. Any Definitive Security issued in
exchange for a beneficial interest in a Restricted Global Security
pursuant to this Section 305(c) shall be registered in such name or
names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Security Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall make available for delivery such
Definitive Securities to the Persons in whose names such Securities are
so registered. Any Definitive Security issued in exchange for a
beneficial interest in a Restricted Global Security pursuant to this
Section 305(c)(1) shall bear the Restricted Securities Legend and shall
be subject to all restrictions on transfer contained therein.
(2) Notwithstanding Sections 305(c)(1)(i) and (iii) hereof, a beneficial interest in the Regulation S Temporary Global Security may not be (A) exchanged for a Definitive Security prior to (x) the expiration of the Restricted Period and (y) the receipt by the Security Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act or (B) transferred to a Person who takes delivery thereof in the form of a Definitive Security prior to the conditions set forth in clause (A) above or unless the transfer is pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(3) Notwithstanding Section 305(c)(1) hereof, a holder of a beneficial interest in a Restricted Global Security may exchange such beneficial interest for an Unrestricted Definitive Security or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Security only if:
(i) such exchange or transfer is effected pursuant to the applicable Exchange Offer in accordance with the Registration Rights Agreement;
(ii) any such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement; or
(iii) the Security Registrar receives the following:
(A) if the holder of such beneficial interest in a Restricted Global Security proposes to exchange such beneficial interest for an Unrestricted Definitive Security, a certificate from such holder in the form of Annex C hereto, including the certifications in Item (2) thereof;
(B) if the holder of such beneficial interest in a Restricted Global Security proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Security, a certificate from such holder in the form of Annex B hereto, including the certifications in Item (4) thereof; and
(C) in each such case set forth in this subparagraph (C), an Opinion of Counsel in form reasonably acceptable to the Partnership, to the effect that such exchange or transfer is in compliance with the Securities Act, that the restrictions on transfer contained herein and in the Restricted Securities Legend are not required in order to maintain compliance with the Securities Act, and such beneficial interest in a Restricted Global Security is being exchanged or transferred in compliance with any applicable blue sky securities laws of any State of the United States.
(4) If any holder of a beneficial interest in an Unrestricted Global Security proposes to exchange such beneficial interest for a Definitive Security or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Security, then, upon satisfaction of the conditions set forth in Section 305(b)(2) hereof, the Trustee shall cause the aggregate principal amount of the applicable Global Security to be reduced accordingly pursuant to Section 305(h) hereof, and the Partnership shall execute and the Trustee shall authenticate and make available for delivery to the Person designated in the instructions a Definitive Security in the appropriate principal amount. Any Definitive Security issued in exchange for a beneficial interest pursuant to this Section 305(c)(4) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Security Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall make available for delivery such Definitive Securities to the Persons in whose names such Securities are so registered. Any Definitive Security issued in exchange for a beneficial interest pursuant to this Section 305(c)(4) shall not bear the Restricted Securities Legend. A beneficial interest in an Unrestricted Global Security cannot be exchanged for a Restricted Definitive Security or transferred to a Person who takes delivery thereof in the form of a Restricted Definitive Security.
(d) Transfer and Exchange of Definitive Securities for Beneficial Interests.
(1) If any Holder of a Restricted Definitive Security proposes to exchange such Security for a beneficial interest in a Restricted Global Security or to transfer such Definitive Securities to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Security, then, upon receipt by the Security Registrar of the following documentation:
(i) if the Holder of such Restricted Definitive Security proposes to exchange such Security for a beneficial interest in a Restricted Global Security, a certificate from such Holder in the form of Annex C hereto, including the certifications in Item (6) thereof;
(ii) if such Definitive Security is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (1) thereof;
(iii) if such Definitive Security is being transferred pursuant to Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (2) thereof;
(iv) if such Definitive Security is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (3)(a) thereof;
(v) if such Definitive Security is being transferred to an Institutional Accredited Investor or in reliance on any other exemption from the registration requirements of the Securities Act, in either case, other than those listed in subparagraphs
(ii), (iii) and (iv) above, a certificate in the form of Annex B hereto, including certifications, certificates, and any Opinion of Counsel required by Item (3)(d) thereof;
(vi) if such Definitive Security is being transferred to the Partnership or any of its Subsidiaries, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (3)(b) thereof; or
(vii) if such Definitive Security is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (3)(c) thereof,
the Trustee, upon notice of receipt of such documentation by the Security Registrar, shall cancel the Definitive Security, and increase or cause to be increased the aggregate principal amount of the appropriate Restricted Global Security.
(2) A Holder of a Restricted Definitive Security may exchange such Security for a beneficial interest in an Unrestricted Global Security or transfer such Restricted Definitive Security to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security only if:
(i) such exchange or transfer is effected pursuant to the applicable Exchange Offer in accordance with the Registration Rights Agreement;
(ii) any such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement; or
(iii) the Security Registrar receives the following:
(A) if the Holder of such Restricted Definitive Security proposes to exchange such Security for a beneficial interest in an Unrestricted Global Security, a certificate from such Holder in the form of Annex C hereto, including the certifications in Item (3) thereof;
(B) if the Holder of such Restricted Definitive Security proposes to transfer such Security to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Security, a certificate from such Holder in the form of Annex B hereto, including the certifications in Item (4) thereof; and
(C) in each such case set forth in this subparagraph (iii), an Opinion of Counsel in form reasonably acceptable to the Partnership to the effect that such exchange or transfer is in compliance with the Securities Act, that the restrictions on transfer contained herein and in the Restricted Securities Legend are not required in order to maintain compliance with the Securities Act, and such Restricted Definitive Security is being exchanged or transferred in compliance with any applicable blue sky securities laws of any State of the United States.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 305(d)(2), the Trustee shall cancel the Restricted Definitive Security and
increase or cause to be increased the aggregate principal amount of the appropriate Unrestricted Global Security.
(3) A Holder of an Unrestricted Definitive Security may exchange such Security for a beneficial interest in an Unrestricted Global Security or transfer such Unrestricted Definitive Security to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Security and increase or cause to be increased the aggregate principal amount of the appropriate Unrestricted Global Security.
(4) If any such exchange or transfer from a Definitive
Security to a beneficial interest is effected pursuant to subparagraphs (2)(ii),
(2)(iii) or (3) if this Section 305(d) at a time when an Unrestricted Global
Security has not yet been issued, the Partnership shall issue and, upon receipt
of an authentication order in accordance with Section 303 hereof, the Trustee
shall authenticate one or more Unrestricted Global Securities in an aggregate
principal amount equal to the principal amount of beneficial interests
transferred pursuant to subparagraphs (2)(ii), (2)(iii) or (3) of this Section
305(d).
(e) Transfer and Exchange of Definitive Securities for Definitive Securities. Upon request by a Holder of Definitive Securities and such Holder's compliance with the provisions of this Section 305(e), the Security Registrar shall register the transfer or exchange of Definitive Securities. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Security Registrar the Definitive Securities duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Security Registrar duly executed by such Holder or by his attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, pursuant to the provisions of this Section 305(e).
(1) Restricted Definitive Securities may be transferred to and registered in the name of Persons who take delivery thereof if the Security Registrar receives the following:
(i) if the transfer will be made pursuant to Rule 144A under the Securities Act, then the transferor must deliver a certificate in the form of Annex B hereto, including the certifications in Item (1) thereof;
(ii) if the transfer will be made pursuant to Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (2) thereof;
(iii) if the transfer will be made pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (3)(a) thereof;
(iv) if the transfer will be made to an Institutional Accredited Investor or in reliance on any other exemption from the registration requirements of the Securities Act, in either case, other than those listed in subparagraphs (1)(i), (1)(ii) and (1)(iii) of
this Section 305(e), a certificate in the form of Annex B hereto, including the certifications, certificates any Opinion of Counsel required by Item (3)(d) thereof;
(v) if the transfer will be made to the Partnership or any of its Subsidiaries, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (3)(b) thereof; or
(vi) if the transfer will be made pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Annex B hereto, including the certifications in Item (3)(c) thereof.
(2) Any Restricted Definitive Security may be exchanged by the Holder thereof for an Unrestricted Definitive Security or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Security if:
(i) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement;
(ii) any such transfer is effected pursuant to the Shelf Registration Statement in accordance with the Registration Rights Agreement; or
(iii) the Security Registrar receives the following:
(A) if the Holder of such Restricted Definitive Security proposes to exchange such Security for an Unrestricted Definitive Security, a certificate from such Holder in the form of Annex C hereto, including the certifications in Item (4) thereof;
(B) if the Holder of such Restricted Definitive Security proposes to transfer such Security to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Security, a certificate from such Holder in the form of Annex B hereto, including the certifications in Item (4) thereof; and
(C) in each such case set forth in this subparagraph (iii), an Opinion of Counsel in form reasonably acceptable to the Partnership to the effect that such exchange or transfer is in compliance with the Securities Act, that the restrictions on transfer contained herein and in the Restricted Securities Legend are not required in order to maintain compliance with the Securities Act, and such Restricted Definitive Security is being exchanged or transferred in compliance with any applicable blue sky securities laws of any State of the United States.
(3) A Holder of Unrestricted Definitive Securities may transfer such Securities to a Person who takes delivery thereof in the form of an Unrestricted Definitive Security. Upon receipt of a request for such a transfer, the Security Registrar shall register the Unrestricted Definitive Securities pursuant to the instructions from the Holder thereof. Unrestricted Definitive Securities cannot be exchanged for or transferred to Persons who take delivery thereof in the form of a Restricted Definitive Security.
(f) Exchange Offers. Upon the occurrence of the Exchange Offers in accordance with the Registration Rights Agreement, the Partnership shall issue, with respect to either series of Securities, and, upon receipt of (A) an authentication order in accordance with Section 303 hereof and (B) an Opinion of Counsel opining as to the enforceability of the Exchange Securities of the applicable series, the Trustee shall authenticate, with respect to the applicable series of Securities, (i) one or more Unrestricted Global Securities in an aggregate principal amount equal to the principal amount of the beneficial interests in the Restricted Global Securities tendered in compliance with the Registration Rights Agreement and accepted for exchange in the applicable Exchange Offer and (ii) Unrestricted Definitive Securities in an aggregate principal amount equal to the principal amount of the Restricted Definitive Securities accepted for exchange in the applicable Exchange Offer. Concurrent with the issuance of such Securities of the applicable series, the Trustee shall cause the aggregate principal amount of the applicable Restricted Global Securities to be reduced accordingly, and the Partnership shall execute and the Trustee shall authenticate and make available for delivery to the Persons designated by the Holders of Definitive Securities of such series so accepted Definitive Securities in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all Global Securities and Definitive Securities issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(1) Restricted Securities Legend.
(i) Except as permitted by subparagraph (ii) below, each Global Security and each Definitive Security (and all Securities issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. ACCORDINGLY, THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS, 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 SECURITY IS ISSUED) AND IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT (AN "IAI")), (2) AGREES THAT PRIOR TO THE DATE
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH KINDER
MORGAN ENERGY PARTNERS, L.P. OR ANY AFFILIATE OF
KINDER MORGAN ENERGY PARTNERS, L.P. WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
(THE "RESALE RESTRICTION TERMINATION DATE"), IT WILL
NOT RESELL, OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO KINDER MORGAN ENERGY PARTNERS, L.P. OR
ANY OF ITS AFFILIATES, (B) FOR SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR 904 UNDER THE SECURITIES ACT, (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (E) TO AN IAI, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION, AND ACCOMPANIED BY SUCH CERTIFICATIONS,
OPINIONS OF COUNSEL AND OTHER INFORMATION AS MAY BE
REQUIRED BY THE INDENTURE, AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR
AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "U.S.
PERSONS" AND "UNITED STATES" HAVE THE MEANINGS
ASSIGNED TO THEM IN RULE 902 OF REGULATION S UNDER
THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING."
(ii) Notwithstanding the foregoing, any Global
Security or Definitive Security issued pursuant to subparagraph (b)(4),
(c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 305 (and
all Securities issued in exchange therefor or substitution thereof)
shall not bear the Restricted Securities Legend.
(2) Global Security Legend. Each Global Security shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE EXCHANGED OR TRANSFERRED EXCEPT AS A WHOLE 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 BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("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 SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.
(3) Regulation S Temporary Global Security Legend. The Regulation S Temporary Global Security shall bear a legend in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
(h) Cancellation and/or Adjustment of Global Securities. At such time
as all beneficial interests in a particular Global Security have been exchanged
for Definitive Securities or a particular Global Security has been redeemed,
repurchased or canceled in whole and not in part, each such Global Security
shall be returned to or retained and canceled by the Trustee in accordance with
Section 309 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Security or for Definitive Securities, the principal amount of Securities
represented by such Global Security shall be reduced
accordingly and an endorsement shall be made on such Global Security, by the Trustee, the Security Custodian or the Depositary at the direction of the Trustee, to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security, such other Global Security shall be increased accordingly and an endorsement shall be made on such Global Security, by the Trustee, the Security Custodian or by the Depositary at the direction of the Trustee, to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Partnership shall execute and the Trustee shall authenticate Global Securities and Definitive Securities upon the Partnership's order or at the Security Registrar's request.
(2) No service charge shall be made to a Holder of a beneficial interest in a Global Security or to a Holder of a Definitive Security for any registration of transfer or exchange, but the Partnership may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 304, 906 and 1107 hereof).
(3) The Security Registrar shall not be required to register the transfer or exchange of any Security selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
(4) All Global Securities and Definitive Securities issued upon any registration of transfer or exchange of Global Securities or Definitive Securities shall be the valid obligations of the Partnership, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Securities or Definitive Securities surrendered upon such registration of transfer or exchange.
(5) The Partnership shall not be required
(i) to issue, to register the transfer of or to exchange Securities during a period beginning at the opening of business 15 days before the day of any selection of Securities for redemption under Section 1103 hereof and ending at the close of business on the day of selection,
(ii) to register the transfer of or to exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part or
(iii) to register the transfer of or to exchange a Security between a record date and the next succeeding Interest Payment Date.
(6) Prior to due presentment for the registration of a transfer of any Security, the Trustee, any Agent and the Partnership may deem and treat the Person in whose name any Security is registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Securities and for all other purposes, and none of the Trustee, any Agent or the Partnership shall be affected by notice to the contrary.
(7) The Trustee shall authenticate Global Securities and Definitive Securities in accordance with the provisions of Section 303 hereof.
(8) All certifications, certificates and Opinions of Counsel required to be submitted to the Security Registrar pursuant to this Section 305 to effect a transfer or exchange may be submitted by facsimile.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee, together with such security or indemnity as may be required by the Partnership or the Trustee to save each of them and any agent of either of them harmless, the Partnership shall execute and upon its request the Trustee shall authenticate and deliver in exchange therefor a new Security of like tenor and principal amount and bearing a number not contemporaneously Outstanding.
If there shall be delivered to the Partnership and the Trustee (1) evidence to their satisfaction of the destruction, loss or theft of any Security and (2) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Partnership or the Trustee that such Security has been acquired by a bona fide purchaser, the Partnership shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously Outstanding. If, after the delivery of such new Security, a bona fide purchaser of the original Security in lieu of which such new Security was issued presents for payment or registration such original Security, the Trustee shall be entitled to recover such new Security from the party to whom it was delivered or any party taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Partnership and the Trustee in connection therewith.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Partnership in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Partnership may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security issued pursuant to this Section in exchange for any mutilated Security or in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Partnership, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved
Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Partnership, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Partnership may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Partnership shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and at the same time the Partnership shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Partnership of such Special Record Date and, in the name and at the expense of the Partnership, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of each applicable series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities (or their respective Predecessor Securities) of each applicable series are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Partnership may make payment of any Defaulted Interest on the Securities in any other lawful manner not inconsistent with the requirements of either securities exchange or automated quotation system on which such Securities may be listed or traded, and upon such notice as may be required by such exchange, if, after notice given by the Partnership to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security, shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
The Partnership shall, prior to 10:30 a.m. (New York City time) on each payment date for principal and premium, if any, and interest, if any, deposit with the Trustee money in immediately available funds sufficient to make cash payments due on the applicable payment date.
Section 308. Persons Deemed Owners
Prior to due presentment of a Security for registration of transfer, the Partnership, the Trustee and any agent of the Partnership or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Sections 305 and 307) any interest on such Security and for all other purposes whatsoever, whether or not such Security is overdue, and neither the Partnership, the Trustee nor any agent of the Partnership or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall have any rights under this Indenture with respect to such Global Security, and such Depositary may be treated by the Partnership, the Trustee and any agent of the Partnership or the Trustee as the owner of such Global Security for all purposes whatsoever. None of the Partnership, the Trustee nor any agent of the Partnership or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 309. Cancellation
All Securities surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Partnership may at any time deliver to the Trustee for cancellation any Security previously authenticated and delivered hereunder which the Partnership may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Security previously authenticated hereunder which the Partnership has not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Security held by the Trustee shall be disposed of in accordance with its customary procedures, and the Trustee shall thereafter deliver to the Partnership a certificate with respect to such disposition.
Section 310. Computation of Interest
Interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months and interest on the Securities for any partial period shall be computed on the basis of a 360-day year of twelve 30-day months and the number of days elapsed in any partial month.
Section 311. CUSIP Numbers
The Partnership in issuing the Securities may use "CUSIP" numbers (in addition to the other identification numbers printed on the Securities), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such "CUSIP" numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such "CUSIP" numbers. The Partnership will promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture
This Indenture shall upon Partnership Request cease to be of further effect with respect to Securities (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Partnership, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and delivered (other than (i) such Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, and (ii) such Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Partnership and thereafter repaid to the Partnership or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity in respect of principal within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Partnership,
and the Partnership in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for this purpose an amount in Dollars sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity of the principal thereof, or the Redemption Date, as the case may be;
(2) the Partnership has paid or caused to be paid all other sums payable hereunder by the Partnership with respect to such Securities; and
(3) the Partnership has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities (x) the obligations of the Partnership to the Trustee
under Section 607, the obligations of each Guarantor under Section 101 of its
Guaranty, the obligations of the Trustee to any Authenticating Agent under
Section 614 and the right of the Trustee to resign under Section 610 shall
survive, and (y) if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Partnership
and/or the Trustee under Sections 402, 606, 701 and 1002 and the last paragraph
of Section 1003 shall survive.
Section 402. Application of Trust Money
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Partnership acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
Section 501. Events of Default
"Event of Default", wherever used herein with respect to Securities of a series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of such series when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of such series at its Maturity; or
(3) default in the performance, or breach, of any term, covenant or warranty of the Partnership or any Guarantor in this Indenture or the applicable Guaranty, and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Partnership or such Guarantor by the Trustee or to the Partnership or such Guarantor and the Trustee by Holders of at least 25% in principal amount of the Outstanding Securities of such series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(4) the Partnership pursuant to or within the meaning of any Bankruptcy Law (A) commences a voluntary case, (B) consents to the entry of any order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property, or (D) makes a general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Partnership in an involuntary case, (B) appoints a Custodian of the Partnership or for all or substantially all of its property, or (C) orders the liquidation of the Partnership; and the order or decree remains unstayed and in effect for 90 days.
Section 502. Acceleration of Maturity; Rescission and Annulment
If an Event of Default with respect to Securities of a series at the time Outstanding occurs and is continuing, then in every such case the Trustee or Holders of not less than 25% in principal amount of the Outstanding Securities of such series may declare the principal amount of and accrued but unpaid interest, if any, on all of the Securities of such series to be due and payable immediately, by a notice in writing to the Partnership (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to the Securities of such series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, Holders of a majority in principal amount of the Outstanding Securities of such series, by written notice to the Partnership and the Trustee, may rescind and annul such declaration and its consequences if
(1) the Partnership has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of such series,
(B) the principal of (and premium, if any, on) any Securities of such series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities of such series, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of such series, other than the non-payment of the principal of Securities of such series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee
The Partnership covenants that if
(1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,
the Partnership will, upon demand of the Trustee, pay to it, for the benefit of Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Partnership fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Partnership, any Guarantor, or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Partnership, any Guarantor, or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of a series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of Holders of the Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim
In case of any judicial proceeding relative to the Partnership, any Guarantor, or any other obligor upon the Securities, their property or their creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of Holders of the Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected
Any money or property collected or to be applied by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively; and
THIRD: The balance, if any, to the Partnership.
Section 507. Limitation on Suits
No Holder of any Security of a series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series;
(2) Holders of not less than 25% in principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered and, if requested, provided to the Trustee reasonable security or indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer and, if requested, provision of security or indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by Holders of a majority in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Sections 305 and 307) interest on such Security on the Stated Maturity expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture or any Guaranty and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then in every such case, subject to any determination in such proceeding, the Partnership, the relevant Guarantor, the Trustee and Holders shall be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee and Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by such Holders, as the case may be.
Section 512. Control by Holders
Subject to the provisions of Section 603, Holders of a majority in aggregate principal amount of the Outstanding Securities of a series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided, however, that
(1) such direction shall not be in conflict with any rule of law or with this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 601, the Trustee shall have the right to decline to follow any such directions if the Trustee in good faith shall determine that the proceeding so directed would involve the Trustee in personal liability or would otherwise be contrary to applicable law.
Section 513. Waiver of Past Defaults
Holders of a majority in aggregate principal amount of the Outstanding Securities of a series may on behalf of Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except
(1) a continuing default in the payment of the principal of or any premium or interest on any Security of such series, or
(2) a default in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided, however, that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Trustee, in any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities to which the suit relates, or in any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the Stated Maturity expressed by such Security (or, in the case of redemption or repayment, on or after the Redemption Date).
Section 515. Waiver of Usury, Stay or Extension Laws
The Partnership covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Partnership (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 601. Certain Duties and Responsibilities
(a) Except during the continuance of an Event of Default with respect to the Securities,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to the Securities, and no implied covenants or obligations shall read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with respect to the Securities, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to the Securities of a series has occurred and is continuing, the Trustee shall exercise with respect to the Securities of such series such rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of such Person's own affairs.
(c) No provisions of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a responsible officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of a series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults
If a Default occurs and is continuing with respect to the Securities of a series, the Trustee shall, within 90 days after it occurs, transmit, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, notice of all uncured or unwaived Defaults known to it; provided, however, that, except in the case of a Default in payment on the Securities of any series, the Trustee shall be protected in withholding the notice if and so long as the board of directors, the executive committee or a trust committee of directors or responsible officers of the Trustee determine in good faith that withholding such notice is in the interests of Holders of Securities; provided, further, however, that, in the case of any Default of the character specified in Section 501(3) with respect to the Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence of such Default.
Section 603. Certain Rights of Trustee
Subject to the provisions of Section 601:
(1) the Trustee may rely on and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request, direction, order or demand of the Partnership mentioned herein shall be sufficiently evidenced by a Partnership Request or Partnership Order and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Partnership, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee is not a party to the Registration Rights Agreement and shall be entitled to rely on an Officers' Certificate as to whether Liquidated Damages are owed on the Securities; and
(9) the Trustee may request that the Partnership deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers' Certificate may be signed by any Person authorized to sign an Officers' Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
Section 604. Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Partnership, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. Neither the Trustee nor any Authenticating Agent makes any representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Partnership of the Securities or the proceeds thereof.
Section 605. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Partnership, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Partnership with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Partnership.
Section 607. Compensation and Reimbursement
The Partnership agrees:
(1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder; and
(4) the Trustee shall have a claim prior to the Securities as to all property and funds held by it hereunder for any amounts owing it or any predecessor Trustee pursuant to this Section 607, except to funds held in trust for the benefit of Holders of any Securities.
The obligations of the Partnership under this Section to compensate the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder.
Without limiting any rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(4) or Section 501(5), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any applicable Bankruptcy Law.
The provisions of this Section 607 and the obligations of the Partnership thereunder, shall survive payment in full of the Securities, the satisfaction and discharge of this Indenture and any defeasance of the Securities.
Section 608. Disqualification; Conflicting Interests
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility
There shall at all times be a single Trustee hereunder that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus required by the Trust Indenture Act. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of a supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
The Trustee may resign at any time by giving written notice thereof to the Partnership. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
The Trustee may be removed at any time by Act of Holders of a majority in principal amount of the Outstanding Securities, delivered to the Trustee and to the Partnership. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the removed Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by the Partnership, or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Partnership, or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case (A) the Partnership, by a Board Resolution, may remove the Trustee, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Partnership, by a Board Resolution, shall promptly appoint a successor Trustee and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of Holders of a majority in principal amount of the Outstanding Securities delivered to the Partnership and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee and shall supersede the successor Trustee appointed by the Partnership. If no successor Trustee shall have been so appointed by the Partnership or Holders and accepted appointment in the manner required by 611, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.
The Partnership shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Holders of Securities in the manner provided in Section 106. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor
(1) Every such successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Partnership and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Partnership or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(2) Upon request of any such successor Trustee, the Partnership shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) of this Section.
(3) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Partnership
If and when the Trustee shall be or become a creditor of the Partnership, any Guarantor, or any other obligor upon the Securities, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Partnership, any such Guarantor, or any such other obligor.
Section 614. Appointment of Authenticating Agent
The Trustee (upon notice to the Partnership) may appoint an Authenticating Agent or Agents which shall be authorized to act on behalf of the Trustee to authenticate Securities issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Partnership and shall at all times be a corporation organized and doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate agency or corporate trust business of such Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Partnership. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Partnership. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Partnership and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
Except with respect to an Authenticating Agent appointed at the request of the Partnership, the Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities referred to in the within-mentioned Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION,
As Trustee
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND PARTNERSHIP
Section 701. Partnership to Furnish Trustee Names and Addresses of Holders
The Partnership will furnish or cause to be furnished to the Trustee
(1) not later than each Interest Payment Date in each year in respect of the Securities, a list, in such form as the Trustee may reasonably require, of the names and addresses of Holders of Securities as of the preceding Regular Record Date in respect of the Securities, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Partnership of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Partnership and the Trustee that neither the Partnership nor the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to the names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee
As promptly as practicable after each May 15 beginning with the May 15
following the date of this Indenture, and in any event prior to July 15 in each
year, the Trustee shall mail to each Holder a brief report dated as of May 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b). Prior to delivery to Holders, the Trustee shall deliver to the
Partnership a copy of any report it delivers to Holders pursuant to this Section
703.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Partnership. The Partnership will notify the Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Partnership
The Partnership shall:
(1) file with the Trustee, within 15 days after the Partnership is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Partnership may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Partnership is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the Trustee and the Commission (unless the Commission will not accept such a filing), in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Partnership with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Partnership pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Partnership and Guarantors May Consolidate, Etc., Only on Certain Terms
The Partnership shall not, and shall not permit any Guarantor to, consolidate with or merge into any other Person or sell, lease or transfer its properties and assets as, or substantially as, an entirety to, any Person, unless:
(1) (A) in the case of a merger, the Partnership or such Guarantor, as the case may be, is the surviving entity, or (B) the Person formed by such consolidation or into which the Partnership or such Guarantor is merged or the Person which acquires by sale or transfer, or which leases, the properties and assets of the Partnership or such Guarantor as, or substantially as, an entirety must expressly assume, by an indenture supplemental hereto, or a supplement to the applicable Guaranty, as the case may be, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all of the obligations of the Partnership or such Guarantor, as the case may be, under this Indenture and the Securities, or the applicable Guaranty, as the case may be;
(2) the surviving entity or successor Person is a Person organized and existing under the laws of the United States, any State thereof or the District of Columbia;
(3) immediately after giving effect to such transaction, no Default or Event of Default exists with respect to any series of Securities; and
(4) the Partnership has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, transfer or lease and the supplemental indenture required in connection with such transaction comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 802. Successor Substituted
Upon any consolidation of the Partnership or any Guarantor with, or merger of the Partnership or any Guarantor into, any other Person or any sale, transfer or lease of the properties and assets of the Partnership or any Guarantor as, or substantially as, an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Partnership or such Guarantor is merged or to which such sale, transfer or lease is made shall (and, in the case of a Guarantor, its Guaranty will provide that it shall) succeed to, and be substituted for, and may exercise every right and power of, the Partnership or such Guarantor under this Indenture and the Securities, or the Guaranty of such Guarantor, as the case may be, with the same effect as if such successor Person had been named originally as the Partnership or such Guarantor herein or therein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities, or such Guaranty, as the case may be.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders
Without the consent of any Holders of Securities, the Partnership and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to secure the Securities;
(2) to evidence the succession of another Person to the Partnership under this Indenture and the Securities and the assumption by such successor Person of the obligations of the Partnership hereunder;
(3) to reflect the addition of any Subsidiary of the Partnership as a Guarantor, or to reflect the release of any Guarantor from its Guaranty, in either case in the manner provided by Article XIV of this Indenture;
(4) to add covenants and Events of Default for the benefit of Holders of the Securities or to surrender any right or power conferred by this Indenture upon the Partnership;
(5) to add to, change or eliminate any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form;
(6) to cure any ambiguity or correct any inconsistency in this Indenture;
(7) to amend this Indenture to reopen any series of Securities and issue additional Securities of that series in compliance with Section 301;
(8) to evidence the acceptance of appointment by a successor Trustee;
(9) to qualify this Indenture under the Trust Indenture Act;
(10) to supplement any provisions of this Indenture necessary to permit or facilitate the defeasance and discharge of the Securities, provided that such action does not adversely affect the interests of Holders of Securities; and
(11) to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities may be listed or traded.
Section 902. Supplemental Indentures with Consent of Holders
With the consent of Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, the Partnership and the Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture, or modifying in any manner the rights of Holders of Securities of such series under this Indenture; provided that the Partnership and the Trustee may not, without the consent of the Holder of each Outstanding Security of any series affected thereby,
(1) change the Stated Maturity of the principal of, or of any installment of interest on, any Security of such series, or reduce the principal amount thereof or premium, if any, or the rate of interest thereon, or alter the method of computation of interest;
(2) reduce the percentage in principal amount of the Securities of such series required for any such supplemental indenture or for any waiver provided for in this Indenture;
(3) change the Partnership's obligation to maintain an office or agency for payment of Securities of such series and the other matters specified herein;
(4) impair the right to institute suit for the enforcement of any payment of principal of, premium, if any, or interest on, any Security of such series; or
(5) modify any of the provisions of this Indenture relating to the execution of supplemental indentures with the consent of Holders of Securities of such series which are discussed in this Section or modify any provisions relating to the waiver by Holders of Securities of such series of past defaults and covenants, except to increase any required percentage or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security of such series affected thereby.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Officers' Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures
Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Partnership shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Partnership, to any such supplemental indenture may be prepared and executed by the Partnership and authenticated and delivered by the Trustee in exchange for Outstanding Securities.
ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium and Interest
The Partnership covenants and agrees for the benefit of Holders of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities in accordance with the terms of such Securities and this Indenture.
Section 1002. Maintenance of Office or Agency
The Partnership will maintain in the Place of Payment an office or agency where the Securities may be presented or surrendered for payment, where Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Partnership in respect of the Securities and this Indenture may be served. The Partnership will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Partnership shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Partnership hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Partnership may also from time to time designate one or more other offices or agencies in the City of New York where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Partnership of its obligation to maintain an office or agency in the Place of Payment for such purposes. The Partnership will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
The Partnership hereby permanently designates as the Place of Payment of Securities The City of New York, and initially appoints the Trustee as Paying Agent at its office located at 12
East 49th Street, 37th Floor, New York, New York 10017, as the Partnership's office or agency for such purpose in such city.
Section 1003. Money for Securities Payments to Be Held in Trust
If the Partnership or any of its Subsidiaries shall at any time act as Paying Agent with respect to any series of the Securities, it will, on or before each due date of the principal of or any premium or interest on any of such Securities, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Partnership shall have one or more Paying Agents for any series of the Securities, it will, on or prior to each due date of the principal of or any premium or interest on such Securities, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Partnership will promptly notify the Trustee of its action or failure so to act.
The Partnership will cause the Paying Agent for Securities other than
the Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (1) hold all sums held by it for the
payment of the principal of (and premium, if any) or interest, if any, on
Securities in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Partnership or any Guarantor
(or any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest, if any, on the Securities; and (3)
during the continuance of any such default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of such Securities.
The Partnership may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Partnership Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Partnership, any Guarantor or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Partnership, such Guarantor or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent in trust for the payment of the principal of or any premium or interest on any Security and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the state whose escheat laws control, and the Trustee or such Paying Agent shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the state whose escheat laws control, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Partnership as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such payment, may at the expense of the Partnership cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be paid to the state whose escheat laws control.
Section 1004. Statement by Officers as to Default
The Partnership will deliver to the Trustee, within 150 days after the end of each fiscal year of the Partnership ending after the date hereof, an Officers' Certificate, stating whether or not to the best knowledge of the signers thereof the Partnership or any Guarantor is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Partnership or any Guarantor shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 1005. Existence
Subject to Article VIII, the Partnership will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises and those of each Guarantor; provided, however, that neither the Partnership nor any Guarantor shall be required to preserve any such right or franchise if the Partnership shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Partnership or such Guarantor.
Section 1006. Limitations on Liens
The Partnership will not, nor will it permit any Subsidiary to, create, assume, incur or suffer to exist any Lien upon any Principal Property, or upon any shares of capital stock of any Subsidiary owning or leasing any Principal Property, whether owned or leased on the date of this Indenture or thereafter acquired, to secure any Debt of the Partnership or any other Person (other than the Securities issued hereunder), without in any such case making effective provision whereby all of the Securities Outstanding hereunder shall be secured equally and ratably with, or prior to, such Debt so long as such Debt shall be so secured. This restriction shall not apply to:
(1) Permitted Liens;
(2) any Lien upon any property or assets created at the time of acquisition of such property or assets by the Partnership or any Subsidiary or within one year after such time to secure all or a portion of the purchase price for such property or assets or Debt incurred to finance such purchase price, whether such Debt was incurred prior to, at the time of or within one year after the date of such acquisition;
(3) any Lien upon any property or assets to secure all or part of the cost of construction, development, repair or improvements thereon or to secure Debt incurred prior to, at the time of, or within one year after completion of such construction, development, repair or improvements or the commencement of full operations thereof (whichever is later), to provide funds for any such purpose;
(4) any Lien upon any property or assets existing thereon at the time of the acquisition thereof by the Partnership or any Subsidiary (whether or not the obligations secured thereby are assumed by the Partnership or any Subsidiary); provided, however, that such Lien only encumbers the property or assets so acquired;
(5) any Lien upon any property or assets of a Person existing thereon at the time such Person becomes a Subsidiary by acquisition, merger or otherwise; provided, however, that such Lien only encumbers the property or assets of such Person at the time such Person becomes a Subsidiary;
(6) any Lien upon any property or assets of the Partnership or any Subsidiary in existence on the Closing Date or provided for pursuant to agreements existing on the Closing Date;
(7) Liens imposed by law or order as a result of any proceeding before any court or regulatory body that is being contested in good faith, and Liens which secure a judgment or other court-ordered award or settlement as to which the Partnership or the applicable Subsidiary, as the case may be, has not exhausted its appellate rights;
(8) any extension, renewal, refinancing, refunding or
replacement (or successive extensions, renewals, refinancing, refunding or
replacements) of Liens, in whole or in part, referred to in Clauses (1) through
(7), inclusive, of this Section; provided, however, that any such extension,
renewal, refinancing, refunding or replacement Lien shall be limited to the
property or assets covered by the Lien extended, renewed, refinanced, refunded
or replaced and that the obligations secured by any such extension, renewal,
refinancing, refunding or replacement Lien shall be in an amount not greater
than the amount of the obligations secured by the Lien extended, renewed,
refinanced, refunded or replaced and any expenses of the Partnership and its
Subsidiaries (including any premium) incurred in connection with such extension,
renewal, refinancing, refunding or replacement; or
(9) any Lien resulting from the deposit of moneys or evidence of indebtedness in trust for the purpose of defeasing Debt of the Partnership or any Subsidiary.
Notwithstanding the foregoing provisions of this Section, the
Partnership may, and may permit any Subsidiary to, create, assume, incur or
suffer to exist any Lien upon any Principal Property to secure Debt of the
Partnership or any Person (other than the Securities) that is not excepted by
Clauses (1) through (9), inclusive, of this Section without securing the
Securities issued hereunder, provided that the aggregate principal amount of all
Debt then outstanding secured by such Lien and all similar Liens, together with
all Attributable Indebtedness from Sale-Leaseback Transactions (excluding
Sale-Leaseback Transactions permitted by Clauses (1) through (4), inclusive, of
Section 1007), does not exceed 10% of Consolidated Net Tangible Assets.
Section 1007. Restriction of Sale-Leaseback Transaction
The Partnership will not, and will not permit any Subsidiary to, engage in a Sale-Leaseback Transaction, unless:
(1) such Sale-Leaseback Transaction occurs within one year from the date of completion of the acquisition of the Principal Property subject thereto or the date of the completion of construction, development or substantial repair or improvement, or commencement of full operations on such Principal Property, whichever is later;
(2) the Sale-Leaseback Transaction involves a lease for a period, including renewals, of not more than three years;
(3) the Partnership or such Subsidiary would be entitled to incur Debt secured by a Lien on the Principal Property subject thereto in a principal amount equal to or exceeding the Attributable Indebtedness from such Sale-Leaseback Transaction without equally and ratably securing the Securities; or
(4) the Partnership or such Subsidiary, within a one-year period after such Sale-Leaseback Transaction, applies or causes to be applied an amount not less than the Attributable Indebtedness from such Sale-Leaseback Transaction to (A) the prepayment, repayment, redemption, reduction or retirement of Pari Passu Debt of the Partnership or any Subsidiary, or (B) the expenditure or expenditures for Principal Property used or to be used in the ordinary course of business of the Partnership or its Subsidiaries.
Notwithstanding the foregoing provisions of this Section, the Partnership may, and may permit any Subsidiary to, effect any Sale-Leaseback Transaction that is not excepted by Clauses (1) through (4), inclusive, of this Section, provided that the Attributable Indebtedness from such Sale-Leaseback Transaction, together with the aggregate principal amount of then outstanding Debt (other than the Securities) secured by Liens upon Principal Properties not excepted by Clauses (1) through (9), inclusive, of Section 1006, do not exceed 10% of the Consolidated Net Tangible Assets.
Section 1008. Waiver of Certain Covenants
The Partnership may omit in any particular instance to comply with any term, provision or condition set forth in Section 1005, 1006 or 1007 with respect to the Securities if before the time for such compliance Holders of at least a majority in aggregate principal amount of the Outstanding Securities shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Partnership and the Guarantors and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
Section 1009. Officers' Certificate as to Liquidated Damages
The Partnership shall deliver an Officers' Certificate to the Trustee
within five Business Days after a Liquidated Damages Event occurs which
identifies such Liquidated Damages Event and states the date as of which
Liquidated Damages began accruing or will begin to accrue. Promptly upon (i) a
Liquidated Damages Event having been cured or (ii) the expiration of the Rule
144(k) Holding Period, the Partnership shall deliver to the Trustee an Officers'
Certificate which identifies such Liquidated Damages Event, states that it has
been cured or that the Rule
144(k) Holding Period has expired, as the case may be, and states the date as of which Liquidated Damages ceased accruing or will cease to accrue.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101. Optional Redemption
The Securities of any series will be redeemable, at the option of the Partnership, at any time in whole or from time to time in part, upon not less than 30 and not more than 60 days' notice mailed to each Holder of the Securities of such series to be redeemed at the Holder's address appearing in the Security Register, on any date prior to Maturity at a price equal to (a) 100% of the principal amount thereof plus accrued interest to the Redemption Date (subject to the right of holders of record on the relevant Record Date to receive interest due on an Interest Payment Date that is on or prior to the Redemption Date) and (b) a Make-Whole Premium, if any (the "Redemption Price"). In no event will the Redemption Price ever be less than 100% of the principal amount of the Securities redeemed plus accrued interest to the Redemption Date. The Make-Whole Premium will be calculated by an independent investment banking institution of national standing appointed by the Partnership; provided, that if the Partnership fails to make such appointment at least 30 business days prior to the Redemption Date, or if the institution so appointed is unwilling or unable to make such calculation, such calculation will be made by Salomon Smith Barney Inc. or, if such firm is unwilling or unable to make such calculation, by an independent investment banking institution of national standing appointed by the Trustee (in any such case, an "Independent Investment Banker").
The Partnership has no obligation to redeem or purchase any Securities pursuant to any sinking fund or analogous requirement, or (except as provided in Article V) upon the happening of a specified event, or at the option of a Holder thereof.
Section 1102. Election to Redeem; Notice to Trustee
The election of the Partnership to redeem any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Partnership of less than all the Securities of any series, the Partnership shall, not less than 35 nor more than 60 days prior to the Redemption Date fixed by the Partnership (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of the Securities of such series to be redeemed.
Section 1103. Selection by Trustee of Securities to be Redeemed
If less than all the Securities of any series are to be redeemed, the particular Securities of such series to be redeemed shall be selected not more than 45 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, on a pro rata basis or by any other method which the Trustee deems fair and appropriate and which complies with any securities exchange or other applicable requirements for redemption of portions (equal to the minimum authorized denomination for Securities or any
integral multiple thereof) of the principal amount of Securities of a denomination larger than the minimum authorized denomination for Securities.
The Trustee shall promptly notify the Partnership in writing of the Securities selected for redemption and, in the case of any such Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of the Securities shall relate, in the case of any such Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption
Notice of redemption shall be given by first-class mail (if international mail, by air mail), postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of the Securities to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of such series are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities of such series to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and that interest thereon will cease to accrue on and after said date, and
(5) the place or places where such Securities are to be surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed shall be given by the Partnership or, at the Partnership's request, by the Trustee in the name and at the expense of the Partnership.
Section 1105. Deposit of Redemption Price
On or prior to 10:30 a.m. New York City Time on any Redemption Date, the Partnership shall deposit with the Trustee or with a Paying Agent (or, if the Partnership is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Partnership shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Partnership at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in such Security.
Section 1107. Securities Redeemed in Part
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Partnership or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Partnership and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Partnership shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
NON-RECOURSE
Section 1201. Non-Recourse to the Delegate and the General Partner; No Personal Liability of Officers, Directors, Employees or Partners
Obligations of the Partnership or any Guarantor, as such, under this Indenture, the Securities and any Guaranty are non-recourse to the Delegate, the General Partner, and their respective Affiliates (other than the Partnership and the Guarantors), and payable only out of cash flow and assets of the Partnership and the Guarantors. The Trustee, and each Holder of a Security by its acceptance thereof, will be deemed to have agreed in this Indenture that (1) neither the Delegate, the General Partner nor their assets (nor any of their respective Affiliates other than the Partnership or the Guarantors, nor their respective assets) shall be liable for any of the obligations of the Partnership or the Guarantors under this Indenture, such Securities or any Guaranty, and (2) no director, officer, employee, stockholder, shareholder or unitholder, as such, of the Partnership, the Guarantors, the Trustee, the Delegate, the General Partner or any Affiliate of any of the foregoing entities shall have any personal liability in respect of the obligations of the Partnership or the Guarantors under this Indenture, such Securities or any Guaranty by reason
of his, her or its status. The agreements set forth in this Section 1201 are part of the consideration for the issuance of the Securities and any Guaranty.
ARTICLE XIII
DEFEASANCE OF SECURITIES
Section 1301. Legal Defeasance
In addition to discharge of the Indenture pursuant to Section 401, the Partnership shall be deemed to have paid and discharged the entire indebtedness on all Securities of a series on the 91st day after the date of the deposit referred to in Clause (1) below, and the provisions of this Indenture with respect to such Securities shall no longer be in effect (except as to (i) rights of registration of transfer and exchange of such Securities and the Partnership's right of optional redemption, (ii) substitution of mutilated, destroyed, lost or stolen Securities, (iii) rights of Holders of such Securities to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor or on the specified redemption dates therefor (but not upon acceleration), (iv) the rights, obligations, duties and immunities of the Trustee hereunder, and the Partnership's and Guarantors' obligations in connection therewith (including, but not limited to, Section 607), (v) the rights, if any, to convert or exchange such Securities, (vi) the rights of Holders of such Securities as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them, and (vii) the obligations of the Partnership under Section 1002), and the Trustee, at the expense of the Partnership, shall, upon a Partnership Request, execute proper instruments acknowledging the same, if the conditions set forth below are satisfied (hereinafter, "defeasance"):
(1) The Partnership has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust, for the purposes of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of Holders of such Securities (A) cash in an amount, or (B) U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash, or (C) a combination thereof, certified to be sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal and interest and premium, if any, on all such Securities on each date that such principal, interest or premium, if any, is due and payable or on any Redemption Date established pursuant to Clause (3) below;
(2) The Partnership has delivered to the Trustee an Opinion of Counsel based on the fact that (A) the Partnership has received from, or there has been published by, the Internal Revenue Service a ruling, or (B) since the date hereof, there has been a change in the applicable federal income tax law, in either case to the effect that, and such opinion shall confirm that, Holders of such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred;
(3) If such Securities are to be redeemed prior to Stated Maturity, notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made;
(4) No Event of Default or Default with respect to any series of Securities shall have occurred and be continuing on the date of such deposit;
(5) Such defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all such Securities are in default within the meaning of such Act);
(6) Such defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Partnership is a party or by which it is bound;
(7) Such defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder; and
(8) The Partnership has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this provision have been complied with.
For this purpose, such defeasance means that the Partnership, the Guarantors, and any other obligor upon the Securities shall be deemed to have paid and discharged the entire debt represented by such Securities, which shall thereafter be deemed to be "Outstanding" only for the purposes of Section 1303 and the rights and obligations referred to in Clauses (i) through (vii), inclusive, of the first paragraph of this Section, and to have satisfied all its other obligations under such Securities, this Indenture and the Guaranties insofar as such Securities are concerned.
Section 1302. Covenant Defeasance
The Partnership and any other obligor, including the Guarantors, shall
be released on the 91st day after the date of the deposit referred to in Clause
(1) below from its obligations under Sections 704, 801, 1005, 1006 and 1007 with
respect to the Securities of a series on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and such
Securities shall thereafter be deemed to be not "Outstanding" for the purposes
of any request, demand, authorization, direction, notice, waiver, consent or
declaration or other action or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
Outstanding for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Securities, the Partnership and the
Guarantors may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section, whether directly or
indirectly by reason of any reference elsewhere herein to such Section or by
reason of any reference in such Section to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 501, but, except as specified above, the
remainder
of this Indenture and the Securities shall be unaffected thereby. The following shall be the conditions to application of this Section 1302:
(1) The Partnership has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of Holders of such Securities (A) cash in an amount, or (B) U.S.
Government Obligations, maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay the principal and interest and premium, if any,
on all such Securities on each date that such principal, interest or premium, if
any, is due and payable or on any Redemption Date established pursuant to Clause
(2) below;
(2) If such Securities are to be redeemed prior to Stated Maturity, notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee shall have been made;
(3) No Event of Default or Default with respect to any series of Securities shall have occurred and be continuing on the date of such deposit;
(4) The Partnership has delivered to the Trustee an Opinion of Counsel which shall confirm that Holders of such Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to federal income tax on the same amount and in the same manner and at the same time as would have been the case if such deposit and covenant defeasance had not occurred;
(5) Such covenant defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all such Securities are in default within the meaning of such Act);
(6) Such covenant defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Partnership is a party or by which it is bound;
(7) Such covenant defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder; and
(8) The Partnership has delivered to the Trustee an Officers' Certificate and Opinion of Counsel stating that all conditions precedent provided for relating to the covenant defeasance contemplated by this provision have been complied with.
Section 1303. Application by Trustee of Funds Deposited for Payment of Securities
Subject to the provisions of the last paragraph of Section 1003, all
moneys or U.S. Government Obligations deposited with the Trustee pursuant to
Section 1301 or 1302 (and all
funds earned on such moneys or U.S. Government Obligations) shall be held in trust and applied by it to the payment, either directly or through any Paying Agent (including the Partnership acting as its own Paying Agent), to Holders of such Securities for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law. Subject to Sections 1301 and 1302, the Trustee shall promptly pay to the Partnership upon Partnership Order any moneys held by it at any time, which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification delivered to the Trustee, are in excess of the amounts required to effect the defeasance with respect to the Outstanding Securities in question.
Section 1304. Repayment to Partnership
The Trustee and any Paying Agent promptly shall pay or return to the Partnership upon Partnership Request any money and U.S. Government Obligations held by them at any time that are not required for the payment of the principal of and any interest on such Securities for which money or U.S. Government Obligations have been deposited pursuant to Section 1301 or 1302, which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification delivered to the Trustee, are in excess of the amounts required to effect the defeasance with respect to the Outstanding Securities in question.
The provisions of the last paragraph of Section 1003 shall apply to any money held by the Trustee or any Paying Agent under this Article that remains unclaimed for two years after the Maturity of the Securities for which money or U.S. Government Obligations have been deposited pursuant to Section 1301 or 1302.
Section 1305. Reinstatement
If the Trustee or the Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with this Article by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Partnership and any Guarantor under this Indenture, the applicable Guaranty and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to this Indenture until such time as the Trustee or the Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with this Article; provided, however, that if the Partnership or any Guarantor has made any payment of principal of or interest on any Securities because of the reinstatement of its obligations, the Partnership or such Guarantor shall be subrogated to the rights of Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or the Paying Agent.
ARTICLE XIV
GUARANTY OF SECURITIES
Section 1401. Requirement for Guaranty
(1) If any Subsidiary of the Partnership guarantees or becomes a co-obligor in respect of any Funded Debt of the Partnership other than the Securities at any time subsequent to the Closing Date (including, without limitation, following any release of such Subsidiary pursuant to Section 1402 from any Guaranty previously provided by it under this Article XIV), then the Partnership shall (A) cause the Securities to be equally and ratably guaranteed by such Subsidiary, but only to the extent that the Securities are not already guaranteed by such Subsidiary on reasonably comparable terms and (B) cause such Subsidiary to execute and deliver a Guaranty in accordance with clause (2) below.
(2) Any Person may become a Guarantor by executing and delivering to the Trustee (A) a Guaranty in form and substance satisfactory to the Trustee, which subjects such Person to the provisions (including the representations and warranties) of this Indenture as a Guarantor and (B) an Opinion of Counsel and Officers' Certificate to the effect that such Guaranty has been duly authorized and executed by such Person and constitutes the legal, valid, binding and enforceable obligation of such Person (subject to such customary exceptions concerning creditors' rights and equitable principles as may be acceptable to the Trustee in its discretion).
Section 1402. Release of Guaranty
Notwithstanding anything to the contrary in this Article XIV, in the event that any Guarantor shall no longer be a guarantor of any Funded Debt of the Partnership other than the Securities, and so long as no Default or Event of Default shall have occurred or be continuing, such Guarantor, upon giving written notice to the Trustee to the foregoing effect, shall be deemed to be released from all of its obligations in respect of the Securities and this Indenture without further act or deed and the Guaranty of such Guarantor shall be of no further force or effect. Following the receipt by the Trustee of any such notice, the Partnership shall cause this Indenture to be amended as provided in Section 901; provided, however, that the failure to so amend this Indenture shall not affect the validity of the termination of the Guaranty of such Guarantor.
* * *
This instrument may be executed with counterpart signature pages or in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
KINDER MORGAN ENERGY PARTNERS, L.P.
By: Kinder Morgan G.P., Inc.,
Its General Partner
By: Kinder Morgan Management, LLC,
Its Delegate
By: /s/ Joseph Listengart
--------------------------------------
Name: Joseph Listengart
Title: Vice President, General Counsel
and Secretary
|
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ R. Douglas Milner
--------------------------------------
R. Douglas Milner
Vice President
|
ANNEX A
"GUARANTY PROVISIONS"
Section 101. Unconditional Guaranties
(1) For value received, the undersigned Guarantors, jointly and severally, hereby fully, unconditionally and absolutely guarantee to Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest on the Securities and all other amounts due and payable under the Indenture and the Securities by the Partnership, when and as such principal, premium, if any, and interest shall become due and payable, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, according to the terms of the Securities and the Indenture.
(2) Failing payment when due of any amount guaranteed pursuant to the Guaranties, for whatever reason, each Guarantor will be obligated to pay the same immediately. Each guaranty hereunder is intended to be a general, unsecured, senior obligation of each undersigned Guarantor and will rank pari passu in right of payment with all Debt of each such Guarantor that is not, by its terms, expressly subordinated in right of payment to such guaranty of such Guarantor. Each of the undersigned Guarantors hereby agrees that its obligations hereunder shall be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, this Guaranty or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Partnership, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each of the undersigned Guarantors hereby agrees that in the event of a default in payment of the principal of, or premium, if any, or interest on the Securities, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of Holders or, subject to Section 507 of the Indenture, by Holders, on the terms and conditions set forth in the Indenture, directly against each of the Guarantors to enforce this Guaranty without first proceeding against the Partnership.
(3) The obligations of each undersigned Guarantor under this Guaranty shall be as aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited by any occurrence or condition whatsoever, including, without limitation (A) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Partnership or any Guarantor contained in the Securities, the Indenture or any other Guaranty, (B) any impairment, modification, release or limitation of the liability of the Partnership, any Guarantor or any of their estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (C) the assertion or exercise by the Partnership, any Guarantor or the Trustee of any rights or remedies under the Securities, the Indenture or any other Guaranty or their delay in or failure to assert or exercise any such rights or remedies, (D) the assignment or the purported assignment of any property as security for the Securities, including all or any part of the rights of the Partnership or any Guarantor under the Indenture or any other Guaranty, (E) the extension of
the time for payment by the Partnership or any Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of the Securities, the Indenture or any other Guaranty or of the time for performance by the Partnership or any Guarantor of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (F) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation of the Partnership or any Guarantor set forth in the Indenture or any other Guaranty, (G) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Partnership or any of the Guarantors or any of their respective assets, or the disaffirmance of the Securities, this Guaranty or the Indenture or any other Guaranty in any such proceeding, (H) the release or discharge of the Partnership or any Guarantor from the performance or observance of any agreement, covenant, term or condition contained in any of such instruments by operation of law, (I) the unenforceability of the Securities, this Guaranty, any other Guaranty or the Indenture or (J) any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor.
(4) Each of the undersigned Guarantors hereby (A) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the Partnership or a Guarantor, and all demands whatsoever, (B) acknowledges that this Guaranty may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any Securities without notice to them and (C) covenants that its guaranty hereunder will not be discharged except by complete performance. Each undersigned Guarantor further agrees that if at any time all or any part of any payment hereunder theretofore applied by any Person is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization of the Partnership or such Guarantor, this Guaranty shall, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence notwithstanding such application, and this Guaranty shall continue to be effective or be reinstated, as the case may be, as though such application had not been made.
(5) Each undersigned Guarantor shall be subrogated to all rights of Holders and the Trustee against the Partnership in respect of any amounts paid by such Guarantor pursuant to the provisions of the Indenture or this Guaranty, provided, however, that no Guarantor shall be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities and this Guaranty shall have been paid in full or discharged.
(6) A director, officer, employee or stockholder, as such, of any Guarantor shall not have any liability for any obligations of such Guarantor under the Indenture or this Guaranty, or for any claim based on, in respect of or by reason of such obligations or their creation.
Section 102. Limitation of Guarantor's Liability
Each undersigned Guarantor and by its acceptance hereof each Holder hereby confirms that it is the intention of all such parties that the guarantee by such Guarantor pursuant to this
Guaranty not constitute a fraudulent transfer or conveyance for purposes of any federal, state or foreign law. To effectuate the foregoing intention, Holders and each Guarantor hereby irrevocably agree that the obligations of each Guarantor under this Guaranty shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Guaranty or pursuant to Section 103, result in the obligations of such Guarantor under this Guaranty not constituting a fraudulent conveyance or fraudulent transfer under federal, state or foreign law.
Section 103. Contribution
In order to provide for just and equitable contribution among all Guarantors, the undersigned Guarantors agree, inter se, that in the event any payment or distribution is made by any Guarantor (a "Funding Guarantor") under its Guaranty, such Funding Guarantor shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the Adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by the Funding Guarantor in discharging the Partnership's obligations with respect to the Securities or any other Guarantor's obligations with respect to its Guaranty.
Section 104. Execution and Delivery of Guaranties
To further evidence the guaranty set forth in Section 101, each undersigned Guarantor hereby agrees that a notation relating to such guaranty (in substantially the form hereinbelow set forth) shall be endorsed on each Security authenticated and delivered by the Trustee and executed by either manual or facsimile signature of two officers of the Guarantor.
Each of the undersigned Guarantors hereby agrees that its guaranty set forth in Section 101 shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation relating to such guaranty.
If an officer of a Guarantor whose signature is on this Guaranty or a Security no longer holds that office at the time the Trustee authenticates such Security or at any time thereafter, such Guarantor's Guaranty of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of any Guarantee set forth in this Guaranty on behalf of the Guarantor.
Section 105. Consent to Jurisdiction and Service of Process
Each undersigned Guarantor that is not organized under the laws of the United States (including the States and the District of Columbia) (each a "Non-U.S. Guarantor") hereby appoints the principal office of CT Corporation System in The City of New York which, on the date hereof, is located at 1633 Broadway, New York, New York 10019, as the authorized agent thereof (the "Authorized Agent") upon whom process may be served in any action, suit or proceeding arising out of or based on the Indenture or this Guaranty or the Securities which may be instituted in the Supreme Court of the State of New York or the United States District Court for the Southern District of New York, in either case in The Borough of Manhattan, The City of
New York, by the Holder of any Security, and each Non-United States Guarantor hereby waives any objection which it may now or hereafter have to the laying of venue of any such proceeding and expressly and irrevocably accepts and submits, for the benefit of Holders from time to time of the Securities, to the nonexclusive jurisdiction of any such court in respect of any such action, suit or proceeding, for itself and with respect to its properties, revenues and assets. Such appointment shall be irrevocable unless and until the appointment of a successor authorized agent for such purpose, and such successor's acceptance of such appointment, shall have occurred. Each Non-U.S. Guarantor agrees to take any and all actions, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent with respect to any such action shall be deemed, in every respect, effective service of process upon any such Non-U.S. Guarantor. Notwithstanding the foregoing, any action against any Non-U.S. Guarantor arising out of or based on any Security may also be instituted by the Holder of such Security in any court in the jurisdiction of organization of such Non-U.S. Guarantor, and such Non-U.S. Guarantor expressly accepts the jurisdiction of any such court in any such action. The Partnership shall require the Authorized Agent to agree in writing to accept the foregoing appointment as agent for service of process.
Section 106. Waiver of Immunity
To the extent that any Non-U.S. Guarantor or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any thereof, from set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with the Indenture or this Guaranty or the Securities, such Non-U.S. Guarantor, to the maximum extent permitted by law, hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and consents to such relief and enforcement.
Section 107. Judgment Currency
Each Non-U.S. Guarantor agrees to indemnify the Trustee and each Holder against any loss incurred by it as a result of any judgment or order being given or made and expressed and paid in a currency (the "Judgment Currency") other than Dollars and as a result of any variation as between (A) the rate of exchange at which the Dollar amount is converted into the Judgment Currency for the purpose of such judgment or order and (B) the spot rate of exchange in The City of New York at which the Trustee or such Holder on the date of payment of such judgment or order is able to purchase Dollars with the amount of the Judgment Currency actually received by the Trustee or such Holder. The foregoing indemnity shall constitute a separate and independent obligation of each Non-U.S. Guarantor and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term "spot rate of exchange" shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, Dollars.
Section 108. Definitions
All capitalized terms used herein and not defined herein that are defined in the Indenture are used herein as so defined.
"Adjusted Net Assets" of a Guarantor at any date means the amount by which the fair value of the property of such Guarantor at such date exceeds the total amount of liabilities, including, without limitation, the probable amount of contingent liabilities (after giving effect to all other fixed and contingent liabilities incurred or assumed on such date) of such Guarantor at such date, but excluding liabilities under the Guaranty of such Guarantor.
FORM OF GUARANTY ENDORSEMENT
Each Guarantor (which term includes any successor Person under the
Guaranty, defined below), has fully, unconditionally and absolutely guaranteed,
to the extent set forth in the Indenture and in a certain Guaranty dated
[_____________________] (the "Guaranty"), and subject to the provisions in the
Indenture and the Guaranty, the due and punctual payment of the principal of,
and premium, if any, and interest on the Securities and all other amounts due
and payable under the Indenture and the Securities by the Partnership.
The obligations of the Guarantors to Holders of Securities and to the Trustee pursuant to the Guaranty and the Indenture are expressly set forth in Article XIV of the Indenture and in the Guaranty, and reference is hereby made to the Indenture and the Guaranty for the precise terms of such obligations.
[SIGNATURES]
ANNEX B
FORM OF CERTIFICATE OF TRANSFER
Kinder Morgan Energy Partners, L.P.
One Allen Center, Suite 1000
500 Dallas Street
Houston, Texas 77002
Telecopier No.: (713) 369-9410
Attention: Secretary
Wachovia Bank, National Association,
as Trustee and Security Registrar
12 East 49th Street, 37th Floor
New York, NY 10017
Attention: Corporate Trust Administration
Re: [5.35% Senior Notes due 2007] [7.30% Senior Notes due 2033] of Kinder Morgan Energy Partners, L.P. (the "Securities")
Reference is made to the Indenture, dated as of August 19, 2002 (the "Indenture"), between Kinder Morgan Energy Partners, L.P. (the "Partnership"), and Wachovia Bank, National Association, as Trustee. Terms used herein and defined in the Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933, as amended (the "Securities Act"), are used herein as therein so defined.
The undersigned (the "Transferor") owns and proposes to transfer the Security[ies] or beneficial interest in such Security[ies] specified in Annex A hereto, in the principal amount of $__________ (the "Transfer"), to _______________ (the "Transferee"), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies to the Partnership and the Trustee that:
[CHECK ALL THAT APPLY]
(1) [ ] CHECK IF THE TRANSFER IS PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Security[ies] is being transferred to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Security[ies] for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a "qualified institutional buyer" within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Security[ies] will be subject to the restrictions on transfer enumerated in the Restricted Securities Legend
printed on the appropriate Global Security and/or Definitive Security and in the Indenture and the Securities Act.
(2) [ ] Check if the TransferEE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN A REGULATION S GLOBAL SECURITY OR A DEFINITIVE
SECURITY pursuant to Regulation S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any
Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore
securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(a) or Rule 904(a) of
Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act, and (iv) the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than a
Purchaser). Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Security[ies] will be subject to the restrictions on transfer
enumerated in the Restricted Securities Legend printed on the
appropriate Global Security and/or the Definitive Security and in the
Indenture and the Securities Act.
(3) [ ] Check and complete if Transferee will take delivery of a beneficial interest in a Restricted Global Security or of a Restricted Definitive Security pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Securities and Restricted Definitive Securities and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Partnership or a subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected pursuant to an exemption under the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904 to a Person who is an Institutional Accredited Investor and the Transferor further certifies that the transfer complies with the transfer restrictions applicable to the Restricted Global Securities or the Restricted Definitive Securities bearing the legend set forth in Section 305(g)(1) of the Indenture and the requirements of the exemption claimed, which certification is supported by (i) if such Transfer is in respect of a principal amount of Securities at the time of transfer of $250,000 or more, a certificate executed by the Transferee containing certain representations and agreements relating to the Transfer (the form of which can be obtained from the Trustee), or (ii) if such Transfer is in respect of a principal amount of Securities at the time of Transfer of less than $250,000, (A) the certificate referenced in clause (i) above and (B) an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that (1) such Transfer is in compliance with the Securities Act and (2) such Transfer complies with any applicable blue sky securities laws of any state of the United States;
(4) [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED DEFINITIVE SECURITY.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144.
(i) The Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act and in
compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Restricted
Securities Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or
Security[ies] will no longer be subject to the restrictions on
transfer enumerated in the Restricted Securities Legend
printed on the Restricted Global Securities, on Restricted
Definitive Securities and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION
S. (i) The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act
and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of
any state of the United States, and (ii) the restrictions on
transfer contained in the Indenture and the Restricted
Securities Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or
Security[ies] will no longer be subject to the restrictions on
transfer enumerated in the Restricted Securities Legend
printed on the Restricted Global Securities, on Restricted
Definitive Securities and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States, and (ii) the restrictions on transfer contained in the Indenture and the Restricted Securities Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Security[ies] will not be subject to the restrictions on transfer enumerated in the Restricted Securities Legend printed on the Restricted Global Securities or Restricted Definitive Securities and in the Indenture.
This certificate and the statements contained herein are made for the benefit of the Partnership and the Trustee.
Title:
ANNEX A TO CERTIFICATE OF TRANSFER
The Transferor owns and proposes to transfer the following: [CHECK ONE]
(a) a beneficial interest in:
[ ] a Regulation S Global Security; or
[ ] another Restricted Global Security; or
(b) [ ] a Restricted Definitive Security.
After the Transfer the Transferee will hold: [CHECK ONE]
(a) a beneficial interest in:
[ ] a Regulation S Global Security; or
[ ] another Restricted Global Security; or
[ ] Unrestricted Global Security; or
(b) [ ] a Restricted Definitive Security; or
(c) [ ] an Unrestricted Definitive Security,
in accordance with the terms of the Indenture.
ANNEX C
FORM OF CERTIFICATE OF EXCHANGE
Kinder Morgan Energy Partners, L.P.
One Allen Center, Suite 1000
500 Dallas Street
Houston, Texas 77002
Telecopier No.: (713) 369-9410
Attention: Secretary
Wachovia Bank, National Association,
as Trustee and Security Registrar
12 East 49th Street, 37th Floor
New York, NY 10017
Attention: Corporate Trust Administration
Re: [5.35% Senior Notes due 2007] [7.30% Senior Notes due 2033] of Kinder Morgan Energy Partners, L.P. (the "Securities"
Reference is made to the Indenture, dated as of August 19, 2002 (the "Indenture"), between Kinder Morgan Energy Partners, L.P. (the "Partnership"), and Wachovia Bank, National Association, as Trustee. Terms used herein and defined in the Indenture or in Regulation S or Rule 144 under the U.S. Securities Act of 1933, as amended (the "Securities Act"), are used herein as therein so defined.
The undersigned (the "Owner") owns and proposes to exchange the Security[ies] or beneficial interest in such Security[ies] specified herein, in the principal amount of $__________ (the "Exchange"). In connection with the Exchange, the Owner hereby certifies to the Partnership and the Trustee that:
EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY
(1) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Security for a beneficial interest in an Unrestricted Global Security in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Securities and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on transfer contained in the Indenture and the Restricted Securities Legend are not required in order to maintain
compliance with the Securities Act, and (iv) the beneficial interest in an Unrestricted Global Security is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(2) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Security for an Unrestricted Definitive Security in an equal principal amount, the Owner hereby certifies (i) the Unrestricted Definitive Security is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Securities and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Restricted Securities Legend are not required in order to maintain compliance with the Securities Act, and (iv) the Unrestricted Definitive Security is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(3) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In
connection with the Owner's Exchange of a Restricted Definitive
Security for a beneficial interest in an Unrestricted Global Security
in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive
Securities and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the
Restricted Securities Legend are not required in order to maintain
compliance with the Securities Act, and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(4) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection with the
Owner's Exchange of a Restricted Definitive Security for an
Unrestricted Definitive Security in an equal principal amount, the
Owner hereby certifies (i) the Unrestricted Definitive Security is
being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Securities and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Restricted Securities Legend are not
required in order to maintain compliance with the Securities Act, and
(iv) the Unrestricted Definitive Security is being acquired in
compliance with any applicable blue sky securities laws of any state of
the United States.
EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SECURITIES FOR RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SECURITIES
(5) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO RESTRICTED DEFINITIVE SECURITY. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Security for a Restricted Definitive Security with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Security is being acquired for the Owner's own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Security issued will continue to be subject to the restrictions on transfer enumerated in the Restricted Securities Legend printed on the Restricted Definitive Security and in the Indenture and the Securities Act.
(6) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY. In connection with the Exchange of the Owner's Restricted Definitive Security for a beneficial interest in a Restricted Global Security with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Definitive Securities and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Restricted Securities Legend printed on the relevant Restricted Global Security and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for the benefit of the Partnership and the Trustee.
[Insert Name of Owner]
Title:
KINDER MORGAN
ENERGY PARTNERS, L.P.
ISSUER
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 23, 2002
TO INDENTURE DATED AS OF AUGUST 19, 2002
$125,000,000 7.30% SENIOR NOTES DUE 2033
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of August 23, 2002 (the "Supplemental Indenture"), to the Indenture, dated as of August 19, 2002 (the "Original Indenture" and, as so amended and supplemented by this Supplemental Indenture, the "Indenture"), between KINDER MORGAN ENERGY PARTNERS, L.P., a Delaware limited partnership (the "Partnership"), and WACHOVIA BANK, NATIONAL ASSOCIATION, as trustee (the "Trustee").
RECITALS OF THE PARTNERSHIP
WHEREAS, pursuant to the Original Indenture, the Partnership established and issued a series of its Securities (as defined in the Indenture) designated as its 7.30% Senior Notes due 2033 (the "2033 Securities") in the initial aggregate principal amount of $375,000,000;
WHEREAS, Sections 301 and 901 of the Indenture provide that the Partnership may, so long as no Event of Default has occurred and is continuing, reopen the series represented by the 2033 Securities to issue additional Securities of such series, which shall form a single series with the other 2033 Securities and shall have the same terms, without consent of any Holder;
WHEREAS, the Partnership represents that no Event of Default has occurred and is continuing;
WHEREAS, the Partnership desires to reopen such series and issue $125,000,000 principal amount of additional 2033 Securities which will be part of the same series as the 2033 Securities, have the same CUSIP number and have the same terms as the 2033 Securities;
WHEREAS, the conditions set forth in the Original Indenture for the execution and delivery of this Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Partnership and the Trustee, in accordance with its terms, and a valid amendment of, and supplement to, the Original Indenture have been done.
NOW THEREFORE:
Pursuant to Sections 301 and 901 of the Indenture, the series of 2033 Securities established by the Original Indenture is hereby reopened and there is hereby authorized for issuance, authentication and delivery $125,000,000 principal amount of additional 2033 Securities (the "Additional 2033 Securities") of the same series as the 2033 Securities initially issued under the Original Indenture, and in consideration of the premises and the purchase and acceptance of the Additional 2033 Securities by the Holders thereof, the Partnership mutually covenants and agrees with the Trustee, for the equal and proportionate benefit of all Holders of
the 2033 Securities, that the Original Indenture is hereby supplemented and amended, to the extent and for the purposes expressed herein, as follows:
ARTICLE ONE
SCOPE OF THIS SUPPLEMENTAL INDENTURE
Section 1.1 Changes, Etc. Applicable Only to the 2033 Securities. The changes, modifications and supplements to the Original Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the 2033 Securities (including the Additional 2033 Securities), and shall not apply to the other series of Securities issued under the Indenture unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements.
ARTICLE TWO
AMENDMENTS TO THE ORIGINAL INDENTURE
Section 2.1 Amendments to Original Indenture. The Original Indenture is hereby amended and supplemented as follows:
(a) The series of 2033 Securities established by the Original Indenture is hereby reopened for the issuance of Additional 2033 Securities in an aggregate principal amount of $125,000,000, which shall form a single series with the 2033 Securities, with the same CUSIP number, and shall have the same terms as the 2033 Notes, except that the Additional 2033 Securities will be issued on August 23, 2002. Interest on the Additional 2033 Securities shall accrue from August 19, 2002. A copy of the forms of face and reverse of the 2033 Securities, including the Additional 2033 Securities, are set forth in Sections 202 and 203, respectively, of the Original Indenture.
(b) All references in the Original Indenture and the form of face and reverse of the 2033 Security set forth in the Original Indenture to the 2033 Securities shall be amended, supplemented and deemed to include the Additional 2033 Securities issued hereunder.
(c) Section 101 of the Original Indenture is hereby amended by the deletion of the definition of "Registration Rights Agreement" and the substitution in the lieu thereof of the following:
"Registration Rights Agreement" means, as applicable, the Registration Rights Agreement, dated as of August 19, 2002, between the Partnership and Salomon Smith Barney Inc., J.P. Morgan Securities Inc., Wachovia Securities, Inc., RBC Dominion Securities Corporation, SunTrust Capital Markets, Inc. Banc One Capital Markets,, Inc. and Credit Lyonnais Securities (USA) Inc., as the same shall be amended from time to time, or the Registration Rights Agreement, dated as of August 23, 2002, between the Partnership and J.P. Morgan Securities Inc., as the same shall be amended from time to time.
(d) The Additional 2033 Securities shall be subject to, and be entitled to the benefits of the Original Indenture, as amended hereby.
ARTICLE THREE
MISCELLANEOUS
Section 3.1 Defined Terms. Unless otherwise provided in this Supplemental Indenture, all defined terms used in this Supplemental Indenture shall have the meanings assigned to them in the Original Indenture.
Section 3.2 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Supplemental Indenture, the latter provision shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so modified or excluded, as the case may be.
Section 3.3 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 3.4 Successors and Assigns. All covenants and agreements in this Supplemental Indenture by the Partnership shall bind its successors and assigns, whether so expressed or not.
Section 3.5 Separability Clause. In case any provision in this Supplemental Indenture or in the 2033 Securities (including the Additional 2033 Securities) shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 3.6 Benefits of Supplemental Indenture. Nothing in this Supplemental Indenture or in the 2033 Securities (including the Additional 2033 Securities), express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and Holders of 2033 Securities, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture.
Section 3.7 Governing Law. This Supplemental Indenture and the 2033 Securities (including the Additional 2033 Securities) shall be governed by and construed in accordance with the law of the State of New York.
Section 3.8 Acceptance by Trustee. The Trustee accepts the amendments to the Original Indenture effected by this Supplemental Indenture and agrees to execute the trusts created by the Indenture, but only upon the terms and conditions set forth in the Indenture. Without limiting the generality of the foregoing, the Trustee assumes no responsibility for the correctness of the recitals contained herein, which shall be taken as the statements of the Partnership, and except as provided in the Indenture the Trustee shall not be responsible or accountable in any way whatsoever for or with respect to the validity or execution or sufficiency of this Supplemental Indenture and the Trustee makes no representation with respect thereto.
Section 3.9 Counterparts. This Supplemental Indenture may be executed with counterpart signature pages or in any number of counterparts, each of which so executed shall be an original, but such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the day and year first above written.
KINDER MORGAN ENERGY PARTNERS, L.P.
By: Kinder Morgan G.P., Inc.,
its General Partner,
By: Kinder Morgan Management, LLC,
its Delegate
By: /s/ Joseph Listengart
------------------------------------
Name: Joseph Listengart
Title: Vice President, General Counsel
and Secretary
|
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ R. Douglas Milner
------------------------------------
Name: R. Douglas Milner
Title: Vice President
|
EXHIBIT 4.4
Conformed Copy
KINDER MORGAN ENERGY PARTNERS, L.P.
$250,000,000 5.35% SENIOR NOTES DUE 2007
$375,000,000 7.30% SENIOR NOTES DUE 2033
REGISTRATION RIGHTS AGREEMENT
August 19, 2002
Salomon Smith Barney Inc.
J.P. Morgan Securities Inc.
Wachovia Securities, Inc.
RBC Dominion Securities Corporation
SunTrust Capital Markets, Inc.
Banc One Capital Markets, Inc.
Credit Lyonnais Securities (USA) Inc.
c/o Salomon Smith Barney Inc.
388 Greenwich Street, 34th Floor
New York, New York 10013
Ladies and Gentlemen:
Kinder Morgan Energy Partners, L.P., a Delaware limited partnership (the "Partnership"), proposes to issue and sell to you (the "Purchasers") upon the terms and subject to the conditions set forth in the Purchase Agreement (as defined herein) an aggregate of $250,000,000 principal amount of the Partnership's 5.35% Senior Notes due 2007 (the "2007 Notes") and $375,000,000 principal amount of the Partnership's 7.30% Senior Notes due 2033 (the "2033 Notes" and together with the 2007 Notes, the "Securities"). As an inducement to the Purchasers to enter into the Purchase Agreement and in satisfaction of a condition to the obligations of the Purchasers thereunder, the Partnership agrees with the Purchasers for the benefit of holders (as defined herein) from time to time of the Registrable Securities (as defined herein) as follows:
Section 1. Certain Definitions
For purposes of this Registration Rights Agreement, the following terms shall have the following respective meanings:
"broker-dealer" shall mean any broker or dealer registered with the Commission under the Exchange Act.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law, executive order or regulation to close.
"Closing Date" shall mean the date on which the Securities (as defined herein) are initially issued.
"Commission" shall mean the United States Securities and Exchange Commission, or any other federal agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant statute for the particular purpose.
"Effective Time", in the case of (i) an Exchange Registration, shall mean the time and date as of which the Commission declares the Exchange Registration Statement effective or as of which the Exchange Registration Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean the time and date as of which the Commission declares the Shelf Registration Statement effective or as of which the Shelf Registration Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Partnership in accordance with Section 3(c)(ii) or 3(c)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any successor statute thereto, in each case as amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(b) hereof.
"Exchange Registration Statement" shall have the meaning assigned thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
"holder" shall mean the Purchasers and each other person who acquires Registrable Securities from time to time (including any successors or assigns), in each case for so long as such person owns any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of August 19, 2002, between the Partnership and Wachovia Bank, National Association, as Trustee, as the same shall be amended from time to time.
"Liquidated Damages" shall have the meaning assigned thereto in Section 2(c) hereof.
"Liquidated Damages Event" shall have the meaning assigned thereto in
Section 2(c) hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notice and Questionnaire" means a Notice of Registration Statement and Selling Securityholder Questionnaire substantially in the form of Exhibit A hereto.
"Partnership" shall mean Kinder Morgan Energy Partners, L.P., a Delaware limited partnership.
"person" shall mean any individual, corporation, partnership (whether general or limited), joint venture, limited liability company, association, joint stock company, trust, other entity, unincorporated organization or government or any agency or political subdivision thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of August 14, 2002, between the Partnership and the Purchasers, as the same shall be amended from time to time.
"Purchasers" shall mean Salomon Smith Barney Inc., J.P. Morgan Securities Inc., Wachovia Securities, Inc., RBC Dominion Securities Corporation, SunTrust Capital Markets, Inc., Banc One Capital Markets, Inc. and Credit Lyonnais Securities (USA) Inc.
"Registrable Securities" shall mean each of the Securities of each
series; provided, however, that such Security shall cease to be a Registrable
Security when (i) in the circumstances contemplated by Section 2(a) hereof, the
Security has been exchanged for an Exchange Security of the corresponding series
in an Exchange Offer as contemplated in Section 2(a) hereof (provided, that any
Exchange Security that, pursuant to the last two sentences of Section 2(a)
hereof, is included in a prospectus for use in connection with resales by
broker-dealers shall be deemed to be a Registrable Security until resale of such
Registrable Security has been effected within the 120-day period referred to in
Section 2(a) hereof); (ii) in the circumstances contemplated by Section 2(b)
hereof, a Shelf Registration Statement registering such Security under the
Securities Act has been declared or becomes effective and such Security has been
sold or otherwise transferred by the holder thereof pursuant to and in a manner
contemplated by such effective Shelf Registration Statement; (iii) such Security
is sold pursuant to Rule 144 under circumstances in which any legend borne by
such Security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Partnership or pursuant to the
Indenture; (iv) such Security is eligible to be sold pursuant to paragraph (k)
of Rule 144 (or any similar provision then in effect); or (v) such Security
shall cease to be outstanding.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the Partnership within the meaning of Rule 405 (as defined herein), (ii) a holder who acquires Exchange Securities outside the ordinary course of such holder's business, (iii) a holder who has arrangements or understandings with any person to participate in the Exchange Offer for the purpose of distributing Exchange Securities and (iv) a holder that is a broker-dealer, but only with respect to Exchange Securities received by such broker-dealer pursuant to the Exchange Offer in exchange for Registrable Securities acquired by the broker-dealer directly from the Partnership.
"Rule 144(k) Holding Period" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Rule 144", "Rule 405" and "Rule 415" shall mean, in each case, such rule promulgated under the Securities Act (or any successor provision), as the same shall be amended from time to time.
"Securities Act" shall mean the Securities Act of 1933, or any successor statute thereto, as the same shall be amended from time to time.
"Securities" shall mean the 2007 Notes and the 2033 Notes to be issued and sold to the Purchasers.
"Shelf Registration" shall have the meaning assigned thereto in Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto in Section 2(b) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or any successor statute thereto, and the rules, regulations and forms promulgated thereunder, all as the same shall be amended from time to time.
"2007 Notes" shall mean an aggregate of $250,000,000 principal amount of the Partnership's 5.35% Senior Notes due 2007.
"2033 Notes" shall mean an aggregate of $375,000,000 principal amount of the Partnership's 7.30% Senior Notes due 2033.
Unless the context otherwise requires, any reference herein to a "Section" or "clause" refers to a Section or clause, as the case may be, of this Registration Rights Agreement, and the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Registration Rights Agreement as a whole and not to any particular Section or other subdivision.
Section 2. Registration Under the Securities Act
(a) Except as set forth in Section 2(b) below, the Partnership agrees
to use its reasonable efforts to file under the Securities Act, as soon as
practicable, but no later than 120 days after the Closing Date, a single
registration statement relating to an offer to exchange (such registration
statement, the "Exchange Registration Statement" and, such offer with respect to
each series of Securities, an "Exchange Offer") any and all of the Securities of
such series for a like aggregate principal amount of debt securities issued by
the Partnership, which debt securities will be substantially identical to such
Securities of such series tendered by the holders (and will be entitled to the
benefits of a trust indenture that will be substantially identical to the
Indenture or is the Indenture and that will be qualified under the Trust
Indenture Act), except that such new debt securities will have been registered
pursuant to an effective registration statement under the Securities Act, will
not be subject to transfer restrictions or registration rights and will not be
entitled to the benefit of provisions for the Liquidated Damages contemplated in
Section 2(c) below (such new debt securities hereinafter called "Exchange
Securities"). The Partnership agrees to use its reasonable efforts to cause the
Exchange Registration Statement to become effective under the Securities Act as
soon as practicable, but no later than 210 days after the Closing Date. Each
Exchange Offer will be registered under the Securities Act on the appropriate
form and will comply with all applicable tender offer rules and regulations
under the Exchange Act. The Partnership further agrees to use its reasonable
efforts to commence and complete each Exchange Offer promptly, but no later than
45 Business Days after the date on which such Exchange Registration Statement
has become effective, to hold each Exchange Offer
open for at least 30 days and to exchange the Exchange Securities of each series for all Registrable Securities of the corresponding series that have been properly tendered and not withdrawn on or prior to the expiration of the applicable Exchange Offer. Each Exchange Offer shall be deemed to have been completed upon the earlier to occur of (i) the Partnership having exchanged Exchange Securities of the applicable series for all outstanding Registrable Securities of the corresponding series that are properly tendered and not withdrawn pursuant to the Exchange Offer and (ii) the Partnership having exchanged, pursuant to the applicable Exchange Offer, Exchange Securities of the applicable series for all Registrable Securities of the corresponding series that have been properly tendered and not withdrawn before the expiration of the Exchange Offer, which shall be on a date that is at least 30 days following the commencement of the applicable Exchange Offer. The Partnership agrees (x) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period (the "Resale Period") beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration of the 120th day after the Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 5(a), (c), (d) and (e) hereof.
(b) If (i) the Partnership determines that the Exchange Registration
Statement is not available or the Exchange Offers may not be consummated because
they would violate applicable law or the applicable interpretations of the staff
of the Commission, (ii) the Exchange Offers have not been completed within 210
days plus 45 Business Days following the Closing Date or (iii) in the opinion of
counsel for the Purchasers, under applicable law or the applicable
interpretations of the staff of the Commission, the Purchasers are not entitled
to tender Securities in the Exchange Offers or must comply with the registration
and prospectus delivery requirements of the Securities Act in connection with
any offering or sale of Registrable Securities, the Partnership shall, in lieu
of conducting the Exchange Offers contemplated by Section 2(a) hereof, use its
reasonable efforts to file under the Securities Act, as soon as practicable
after the time such obligation to file arises, a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed basis
by the holders of, all of the Registrable Securities, pursuant to Rule 415 or
any similar rule that may be adopted by the Commission (such filing, the "Shelf
Registration" and, such registration statement, the "Shelf Registration
Statement"). The Partnership agrees to use its reasonable efforts to cause the
Shelf Registration Statement to become or be declared effective and to keep such
Shelf Registration Statement continuously effective for a period ending on the
earlier of the second anniversary of the Closing Date or, if Rule 144(k) is
amended to provide a shorter restrictive period, such shorter period (the "Rule
144(k) Holding Period") or such time as there are no longer any Registrable
Securities outstanding; provided, however, that no holder shall be entitled to
be named as a selling securityholder in the Shelf Registration Statement or to
use the prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and furnishes to the Partnership in
writing, within 20 days after receipt of a request therefor, such information
with respect to such Electing Holder required under Regulation S-K under the Act
as the Partnership may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary prospectus included therein.
No Electing Holder shall be entitled to Liquidated Damages pursuant to Section
2(c) hereof unless and until
such Electing Holder shall have used its reasonable efforts to provide all such reasonably requested information. Each Electing Holder as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the Partnership all information required to be disclosed in order to make the information previously furnished to the Partnership by such Electing Holder not materially misleading. The Partnership further agrees to supplement or make amendments to the Shelf Registration Statement, as and when required by the rules, regulations or instructions applicable to the registration form used by the Partnership for such Shelf Registration Statement or by the Securities Act or rules and regulations thereunder for shelf registration, and the Partnership agrees to furnish to each Electing Holder copies of any such supplement or amendment promptly after its being used following its filing with the Commission.
(c) The Partnership agrees to pay liquidated damages (the "Liquidated Damages") upon the occurrence of any of the following events (each such event, a "Liquidated Damages Event"):
(i) if the Exchange Registration Statement or Shelf Registration Statement is not filed within 120 days following the Closing Date, then commencing on the 121st day after the Closing Date, Liquidated Damages shall accrue on the Securities of each series over and above the otherwise applicable interest rate at a rate of 0.25% per year; or
(ii) if an Exchange Registration Statement or Shelf Registration Statement is filed and is not declared effective within 210 days following the Closing Date, then commencing on the 211th day after the Closing Date, Liquidated Damages shall accrue on the Securities of each series over and above the otherwise applicable interest rate at a rate of 0.25% per year; or
(iii) if either (A) the Partnership has not exchanged Exchange
Securities of a series for all Securities of the corresponding series validly
tendered in accordance with the terms of the applicable Exchange Offer on or
prior to 45 Business Days after the date on which the Exchange Registration
Statement was declared effective, or (B) the Shelf Registration Statement has
been declared effective, but such Shelf Registration Statement ceases to be
effective at any time (I) prior to the expiration of the Rule 144(k) Holding
Period and (II) while Registrable Securities are outstanding, then Liquidated
Damages shall accrue on the Securities of such series over and above the
otherwise applicable interest rate at a rate of 0.25% per year commencing on the
(x) 46th Business Day after such effective date, in the case of (A) above, or
(y) the day the Shelf Registration Statement ceases to be effective, in the case
of (B) above;
provided, however, that the circumstances under which the Partnership may be required to pay Liquidated Damages are not cumulative and the rate at which Liquidated Damages accrues on the Securities shall never exceed 0.25% per year; and, provided further, that Liquidated Damages on the Securities shall cease to accrue upon the earlier of (i) when all Liquidated Damages Events have been cured or (ii) upon the expiration of the Rule 144(k) Holding Period. For purposes of clarifying the foregoing provisions, Liquidated Damages shall not accrue at any time that there are no Registrable Securities outstanding.
All accrued Liquidated Damages shall be payable, in the manner provided for the payment of interest in the Indenture and the Securities, on each applicable Interest Payment Date (as defined in the Indenture).
(d) The Partnership shall take all actions reasonably necessary to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated.
(e) Any reference herein to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Section 3. Registration Procedures
If the Partnership files a registration statement pursuant to Section 2(a) or Section 2(b) hereof, the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Registration or the Shelf Registration, as the case may be, the Partnership shall qualify the Indenture under the Trust Indenture Act.
(b) In connection with the Partnership's obligations with respect to the registration of Exchange Securities as contemplated by Section 2(a) hereof (the "Exchange Registration"), if applicable, the Partnership shall, as soon as practicable (or as otherwise specified):
(i) use its reasonable efforts to prepare and file with the Commission, as soon as practicable, but no later than 120 days after the Closing Date, an Exchange Registration Statement on any form that may be utilized by the Partnership and that shall permit the Exchange Offers and resales of Exchange Securities by broker-dealers during the Resale Period to be effected as contemplated by Section 2(a) hereof, and use its reasonable efforts to cause such Exchange Registration Statement to become effective as soon as practicable thereafter, but no later than 210 days following the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Exchange
Registration Statement for the periods and purposes contemplated in
Section 2(a) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the
form of such Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of copies of
the prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer
reasonably may request prior to the expiration of the Resale Period,
for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or received copies of the prospectus included in such registration statement and, if requested by such broker-dealer, confirm such advice in writing, (A) when such Exchange Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Exchange Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission for amendments or supplements to such Exchange Registration Statement or prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Exchange Registration Statement or the initiation or threatening of any proceedings for that purpose, (D) of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, or (E) if at any time during the Resale Period when a prospectus is required to be delivered under the Securities Act, that such Exchange Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(iv) in the event that the Partnership would be required, pursuant to Section 3(b)(iii)(E) above, to notify any broker-dealers holding Exchange Securities, it will use its reasonable efforts to prepare and furnish to each such holder a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of such Exchange Securities during the Resale Period, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. Each broker-dealer agrees that upon receipt of any notice from the Partnership pursuant to Section 3(b)(iii)(E) hereof, such broker-dealer shall forthwith discontinue the disposition of Exchange Securities pursuant to the Exchange Registration Statement applicable to such Exchange Securities until such broker-dealer shall have received copies of such amended or supplemented prospectus and, if so directed by the Partnership, such broker-dealer shall deliver to the Partnership (at the Partnership's expense) all copies of the prospectus covering such Exchange Securities then in such broker-dealers' possession for the purpose of making offers of Exchange Securities;
(v) use its reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Exchange Registration Statement or any post-effective amendment thereto at the earliest practicable date;
(vi) use its reasonable efforts to (A) register or qualify the Exchange Securities under the securities laws or blue sky laws of such jurisdictions as any holder of Exchange
Securities shall reasonably request in writing no later than the commencement of the Exchange Offers, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions until the expiration of the Resale Period and (C) take any and all other actions as may be reasonably necessary to enable each broker-dealer holding Exchange Securities to consummate the disposition thereof in such jurisdictions under the securities laws or blue sky laws of such jurisdictions; provided, however, that the Partnership shall not be required for any such purpose to (1) qualify as a foreign partnership or as a dealer in securities in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Agreement, (2) consent to general service of process in any such jurisdiction or subject itself to taxation in any such jurisdiction if it is not already so subject or (3) make any changes to its certificate of limited partnership or its agreement of limited partnership or any agreement between it and its unitholders;
(vii) use its reasonable efforts to obtain the consent or approval of each governmental agency or authority, whether federal, state or local, that may be required to effect the Exchange Registration, the Exchange Offers and the offering and sale of Exchange Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for the Exchange Securities, not later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the Commission, and make generally available to its securityholders as soon as practicable, but no later than 18 months after the effective date of such Exchange Registration Statement, an earnings statement of the Partnership and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Partnership, Rule 158 thereunder).
As a condition to its participation in the Exchange Offers pursuant to
the terms of this Agreement, each holder shall furnish, upon the request of the
Partnership, prior to the consummation thereof, a written representation to the
Partnership (which may be contained in the letter of transmittal contemplated by
the Exchange Registration) to the effect that (A) it is not an affiliate of the
Partnership, (B) it is not engaged in, and does not intend to engage in, and has
no arrangement or understanding with any person to participate in, a
distribution of the Exchange Securities to be issued in the Exchange Offers and
(C) it is acquiring the Exchange Securities in its ordinary course of business.
In addition, although holders shall otherwise cooperate in the Partnership's
preparation for the Exchange Offers, each holder hereby acknowledges and agrees
that any broker-dealer who purchases the Securities from the Partnership to
resell pursuant to Rule 144A or any other available exemption under the
Securities Act or any holder who is an affiliate of the Partnership or who
intends to use the Exchange Offers to participate in a distribution of the
Exchange Securities to be acquired in the Exchange Offers (1) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Morgan Stanley and Co., Inc. (available
June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988),
as interpreted in the Commission's letter to Shearman & Sterling dated July 2,
1993, and similar no-action letters, (2) will not be entitled to tender
Securities in the Exchange Offers, and (3) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
sale or transfer
of the Securities unless such sale or transfer is made pursuant to any exemption from such requirements.
(c) In connection with the Partnership's obligations with respect to the Shelf Registration, if applicable, the Partnership shall, as soon as practicable (or as otherwise specified):
(i) use its reasonable efforts to prepare and file with the Commission a Shelf Registration Statement on any form that may be utilized by the Partnership and that shall register all of the Registrable Securities for resale by the holders thereof in accordance with such method or methods of disposition as may be specified by such of the holders as, from time to time, may be Electing Holders and use its reasonable efforts to cause such Shelf Registration Statement to become effective;
(ii) not less than 30 days prior to the Effective Time of the Shelf Registration Statement, mail the Notice and Questionnaire to the holders of Registrable Securities; no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement as of the Effective Time, and no holder shall be entitled to use the prospectus forming a part thereof for resales of Registrable Securities at any time, unless such holder has returned a completed and signed Notice and Questionnaire to the Partnership by the deadline for response set forth therein; provided, however, holders of Registrable Securities shall have at least 20 days from the date on which the Notice and Questionnaire is first mailed to such holders to return a completed and signed Notice and Questionnaire to the Partnership;
(iii) after the Effective Time of the Shelf Registration Statement, upon the request of any holder of Registrable Securities that is not then an Electing Holder, promptly send a Notice and Questionnaire to such holder; provided, that the Partnership shall not be required to take any action to name such holder as a selling securityholder in the Shelf Registration Statement or to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities until such holder has returned a completed and signed Notice and Questionnaire to the Partnership; and, provided further, that the Partnership shall not be required to file an amendment to such Shelf Registration Statement for the sole reason of naming such holder as a selling securityholder in the Shelf Registration Statement;
(iv) as soon as practicable prepare and file with the Commission such amendments and supplements to such Shelf Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period specified in Section 2(b) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Shelf Registration Statement, and furnish to the Electing Holders copies of any such supplement or amendment simultaneously with or prior to its being used or filed with the Commission;
(v) comply with the provisions of the Securities Act with respect to the disposition of all of the Registrable Securities covered by such Shelf Registration
Statement in accordance with the intended methods of disposition by the Electing Holders provided for in such Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Registration Rights Agreement, shall
include a person deemed to be an underwriter within the meaning of
Section 2(a)(11) of the Securities Act), if any, thereof, (C) any sales
or placement agent therefor, (D) counsel for any such underwriter or
agent and (E) not more than one counsel for all the Electing Holders
the opportunity to participate in the preparation of such Shelf
Registration Statement, each prospectus included therein or filed with
the Commission and each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the period specified in
Section 2(b) hereof, make available at reasonable times at the
Partnership's principal place of business or such other reasonable
place for inspection by the persons referred to in Section 3(c)(vi)
hereof who shall certify to the Partnership that they have a current
intention to sell the Registrable Securities pursuant to the Shelf
Registration such financial and other information and books and records
of the Partnership, and reasonably cause the officers, employees,
counsel and independent certified public accountants of the Partnership
to respond to such inquiries, as shall be reasonably necessary to
conduct a reasonable investigation within the meaning of Section 11 of
the Securities Act; provided, however, that each such party shall be
required to maintain in confidence and not to disclose to any other
person any information or records considered by the Partnership in good
faith as being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its inclusion
in such Shelf Registration Statement or otherwise), or (B) such person
shall be required so to disclose such information pursuant to a
subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirements of
such order, and only after such person shall have given the Partnership
prompt prior written notice of such requirement), or (C) such
information is required, as determined by the Partnership in good faith
and its counsel, to be set forth in such Shelf Registration Statement
or the prospectus included therein or in an amendment to such Shelf
Registration Statement or an amendment or supplement to such prospectus
in order that such Shelf Registration Statement, prospectus, amendment
or supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and
regulations of the Commission thereunder and does not contain an untrue
statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(viii) promptly notify each of the Electing Holders, any sales or placement agent therefor and any underwriter thereof (which notification may be made through any managing underwriter that is a representative of such underwriter for such purpose) and, if requested by such Holders, agents or underwriters, confirm such advice in writing, (A) when such Shelf Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Shelf Registration Statement or any post-effective amendment, when
the same has become effective, (B) of any request by the Commission for amendments or supplements to such Shelf Registration Statement or prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation or threatening of any proceedings for that purpose, (D) of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, or (E) if at any time when a prospectus is required to be delivered under the Securities Act, that such Shelf Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(ix) use its reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Shelf Registration Statement or any post-effective amendment thereto at the earliest practicable date;
(x) if requested by any managing underwriter or underwriters, any placement or sales agent or any Electing Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as is required by the applicable rules and regulations of the Commission and as such managing underwriter or underwriters, such agent or such Electing Holder may reasonably propose should be included therein relating to the terms of the sale of such Registrable Securities, including information with respect to the principal amount of Registrable Securities being sold by such Electing Holder or agent or to any underwriters, the name and description of such Electing Holder, agent or underwriter, the offering price of such Registrable Securities and any discount, commission or other compensation payable in respect thereof, the purchase price being paid therefor by such underwriters and with respect to any other terms of the offering of the Registrable Securities to be sold by such Electing Holder or agent or to such underwriters; and make all required filings of such prospectus supplement or post-effective amendment promptly after notification of the matters to be incorporated in such prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales agent, if any, therefor, each underwriter, if any, thereof and the respective counsel referred to in Section 3(c)(vi), a copy of such Shelf Registration Statement, each such amendment and supplement thereto (in each case including all exhibits thereto (in the case of an Electing Holder of Registrable Securities, upon request) and documents incorporated by reference therein) and such number of copies of such Shelf Registration Statement (excluding exhibits thereto and documents incorporated by reference therein unless specifically so requested by such Electing Holder, agent or underwriter, as the case may be) and of the prospectus included in such Shelf Registration Statement (including each preliminary prospectus and any summary prospectus), in conformity in all material respects with the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder, and such other documents as such
Electing Holder, agent, if any, and underwriter, if any, may reasonably request in order to facilitate the offering and disposition of the Registrable Securities owned by such Electing Holder, offered or sold by such agent or underwritten by such underwriter and to permit such Electing Holder, agent and underwriter to satisfy the prospectus delivery requirements of the Securities Act; and the Partnership hereby consents to the use of such prospectus (including such preliminary and summary prospectus) and any amendment or supplement thereto by each such Electing Holder and by any such agent and underwriter, in each case in the form most recently provided to such person by the Partnership, in connection with the offering and sale of the Registrable Securities covered by the prospectus (including such preliminary and summary prospectus) or any supplement or amendment thereto;
(xii) use reasonable efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any Electing Holder and each placement or sales agent,
if any, therefor and underwriter, if any, thereof shall reasonably
request in writing, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective under
Section 2(b) above, and (C) take any and all other actions as may be
reasonably necessary to enable each such Electing Holder, agent, if
any, and underwriter, if any, to consummate the disposition in such
jurisdictions under the securities laws or blue sky laws of such
jurisdictions; provided, however, that the Partnership shall not be
required for any such purpose to (1) qualify as a foreign partnership
or as a dealer in securities in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this
Agreement, (2) consent to general service of process in any such
jurisdiction or subject itself to taxation in any such jurisdiction if
it is not already so subject, or (3) make any changes to its
certificate of limited partnership or its agreement of limited
partnership or any agreement between it and its unitholders;
(xiii) use its reasonable efforts to obtain the consent or approval of each governmental agency or authority, whether federal, state or local, that may be required to effect the Shelf Registration or the offering or sale in connection therewith or to enable the selling holder or holders to offer, or to consummate the disposition of, their Registrable Securities;
(xiv) unless any Registrable Securities shall be in book-entry only form, cooperate with the Electing Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, which certificates, if so required by any securities exchange upon which any Registrable Securities are listed, shall be penned, lithographed or engraved, or produced by any combination of such methods, on steel engraved borders, and which certificates shall not bear any restrictive legends; and, in the case of an underwritten offering, enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may reasonably request at least two Business Days prior to any sale of the Registrable Securities;
(xv) provide a CUSIP number for the Registrable Securities, not later than the applicable Effective Time;
(xvi) in connection with an underwritten offering of Registrable Securities, enter into one or more customary underwriting agreements, engagement letters, agency agreements, "best efforts" underwriting agreements or similar agreements, as appropriate, including customary provisions relating to indemnification and contribution, and take such other actions in connection therewith as any Electing Holders aggregating at least a majority in aggregate principal amount of the Registrable Securities at the time outstanding (it being understood for purposes of this Agreement that all holders of the Registrable Securities shall vote on this and any other matter as a single class) shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(xvii) in connection with any underwritten offering of
Registrable Securities pursuant to a Shelf Registration, to the extent
requested by the underwriters thereof, (A) make such representations
and warranties to the Electing Holders and the underwriters thereof in
form, substance and scope as are customarily made in primary
underwritten offerings of debt securities and covering matters
including, but not limited to those set forth in the Purchase
Agreement; (B) obtain an opinion of counsel to the Partnership in
customary form and covering such matters of the type customarily
covered by such an opinion in primary offerings of debt securities as
the underwriters thereof may reasonably request, addressed to such
underwriters thereof and dated the effective date of such Shelf
Registration Statement and the date of the closing under the
underwriting agreement relating thereto) covering the matters
customarily covered in opinions requested in primary underwritten
offerings of debt securities (it being agreed that the matters to be
covered by such opinion may be subject to customary qualifications and
exceptions and it being understood that opinions that are substantially
the same as those called for by the Purchase Agreement will be
satisfactory for these purposes); (C) obtain a "cold comfort" letter or
"cold comfort" letters from the independent certified public
accountants of the Partnership addressed to the underwriters thereof,
dated (i) the effective date of such Shelf Registration Statement and
(ii) the effective date of any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective
amendment to such Shelf Registration Statement that includes unaudited
or audited financial statements as of a date or for a period subsequent
to that of the latest such statements included in such prospectus (and,
if such Shelf Registration Statement contemplates an underwritten
offering pursuant to any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective
amendment to such Shelf Registration Statement that includes unaudited
or audited financial statements as of a date or for a period subsequent
to that of the latest such statements included in such prospectus,
dated the date of the closing under the underwriting agreement relating
thereto), such letter or letters to be in customary form and covering
such matters of the type customarily covered by letters of such type;
(D) deliver such customary documents and certificates, including
officers' certificates, as may be reasonably requested by the
underwriters thereof to evidence the accuracy of the representations
and warranties made pursuant to clause (A) above and the compliance
with or satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by
the Partnership; and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in
Section 5 hereof;
(xviii) notify in writing each holder of Registrable Securities of any proposal of any amendment or waiver effected pursuant to Section 8(h) hereof, each of which notices shall contain the text of the amendment or waiver proposed or effected, as the case may be; and
(xix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable, but in any event not later than 18 months after the
effective date of such Shelf Registration Statement, an earnings
statement of the Partnership and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option of the
Partnership, Rule 158 thereunder).
(d) In the event that the Partnership would be required, pursuant to
Section 3(c)(viii)(E) above, to notify the Electing Holders, the placement or
sales agent, if any, therefor and the managing underwriters, if any, thereof,
the Partnership shall without any unreasonable delay prepare and furnish to each
of the Electing Holders, to each placement or sales agent, if any, and to each
such underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and shall not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing. Each Electing Holder agrees that
upon receipt of any notice from the Partnership pursuant to Section
3(c)(viii)(E) hereof, such Electing Holder shall forthwith discontinue the
disposition of Registrable Securities pursuant to the Shelf Registration
Statement applicable to such Registrable Securities until such Electing Holder
shall have received copies of such amended or supplemented prospectus, and if so
directed by the Partnership, such Electing Holder shall deliver to the
Partnership (at the Partnership's expense) all copies of the prospectus covering
such Registrable Securities then in such Electing Holder's possession for the
purpose of making offers of the Registrable Securities.
(e) In the event of a Shelf Registration, in addition to the information required to be provided by each Electing Holder in its Notice and Questionnaire, the Partnership may require such Electing Holder to furnish to the Partnership such additional information regarding such Electing Holder and such Electing Holder's intended method of distribution of Registrable Securities as may be required in order to comply with the Securities Act. Each such Electing Holder agrees to notify the Partnership as promptly as practicable of any inaccuracy or change in information previously furnished by such Electing Holder to the Partnership or of the occurrence of any event in either case as a result of which any prospectus relating to such Shelf Registration contains or would contain an untrue statement of a material fact regarding such Electing Holder or such Electing Holder's intended method of disposition of such Registrable Securities or omits to state any material fact regarding such Electing Holder or such Electing Holder's intended method of disposition of such Registrable Securities required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly to furnish to the Partnership any additional information required to correct and update
any previously furnished information or required so that such prospectus shall not contain, with respect to such Electing Holder or the disposition of such Registrable Securities, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing.
(f) Until the expiration of the Rule 144(k) Holding Period, the Partnership will not, and will use its reasonable efforts to cause its "affiliates" (as defined in Rule 144) not to, resell any of the Securities that have been reacquired by any of them except pursuant to an effective registration statement under the Securities Act.
Section 4. Registration Expenses
The Partnership agrees to bear and to pay or cause to be paid promptly
all reasonable expenses incident to the Partnership's performance of or
compliance with this Registration Rights Agreement, including (a) all Commission
and any applicable National Association of Securities Dealers, Inc. ("NASD")
registration, filing and review fees and expenses, including fees and
disbursements of one counsel for the placement or sales agent or underwriters as
a group in connection with such NASD registration, filing and review, (b) all
fees and expenses in connection with the qualification of the Securities for
offering and sale under the state securities and blue sky laws referred to in
Section 3(c)(xii) hereof and determination of their eligibility for investment
under the laws of such jurisdictions as any managing underwriters or the
Electing Holders may reasonably designate, but not the fees and disbursements of
counsel for the Electing Holders or underwriters as a group in connection with
such qualification and determination, (c) all expenses relating to the
preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing any required underwriting
agreements, agreements among underwriters, selling agreements and blue sky or
legal investment memoranda and all other documents in connection with the
offering, sale or delivery of Securities to be disposed of (including
certificates representing the Securities), (d) messenger, telephone and delivery
expenses incurred by the Partnership, its counsel and auditors relating to the
offering, sale or delivery of Securities and the preparation of documents
referred in clause (c) above, (e) fees and expenses of the Trustee under the
Indenture, any agent of the Trustee and any counsel for the Trustee and of any
collateral agent or custodian, (f) internal expenses (including all salaries and
expenses of the Partnership's officers and employees performing legal or
accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Partnership (including the
expenses of any opinions or "cold comfort" letters required by or incident to
such performance and compliance), (h) fees, disbursements and expenses of one
counsel for the Electing Holders retained in connection with a Shelf
Registration, as selected by the Electing Holders of at least a majority in
aggregate principal amount of the Registrable Securities held by Electing
Holders (which counsel shall be reasonably satisfactory to the Partnership), (i)
any fees charged by securities rating services for rating the Securities, and
(j) fees, expenses and disbursements of any other persons, including special
experts, retained by the Partnership in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are reasonably incurred, assumed or paid by any holder of Registrable
Securities or
any placement or sales agent therefor or underwriter thereof, the Partnership shall reimburse such person for the full amount of the Registration Expenses so incurred, assumed or paid promptly after receipt of a request therefor. Notwithstanding the foregoing, the holders of the Registrable Securities being registered shall pay all agency fees and commissions, transfer taxes, if any, and underwriting discounts and commissions attributable to the sale of such Registrable Securities and the fees and disbursements of any counsel or other advisors or experts retained by such holders (severally or jointly), other than the counsel and experts specifically referred to above.
Section 5. Indemnification
(a) Indemnification by the Partnership. The Partnership will indemnify
and hold harmless each of the holders of Registrable Securities included in an
Exchange Registration Statement, each of the Electing Holders of Registrable
Securities included in a Shelf Registration Statement and each person who
participates as a placement or sales agent or as an underwriter in any offering
or sale of such Registrable Securities against any losses, claims, damages or
liabilities, joint or several, to which such holder, agent or underwriter may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Exchange Registration Statement or Shelf Registration
Statement, as the case may be, under which such Registrable Securities were
registered under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Partnership to any such holder,
Electing Holder, agent or underwriter, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such holder, such Electing
Holder, such agent and such underwriter for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Partnership shall not be liable to any such person in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement or amendment or supplement thereto,
in reliance upon and in conformity with written information furnished to the
Partnership by such person expressly for use therein; and, provided further,
that the Partnership shall not be liable to any such person, to the extent that
any such losses, claims, damages or liabilities arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact or omission
or alleged omission if either (A)(i) such person was required by law to send or
deliver, and failed to send or deliver, a copy of the prospectus with or prior
to delivery of written confirmation of the sale by such person to the person
asserting the claims from which such losses, claims, damages or liabilities
arise and (ii) the prospectus previously delivered by the Partnership to such
person would have corrected such untrue statement or alleged untrue statement or
omission or alleged omission, (B)(i) such untrue statement or alleged untrue
statement or omission or alleged omission is corrected in an amendment to the
prospectus and (ii) having been previously furnished by or on behalf of the
Partnership with copies of the prospectus as so amended or supplemented, such
person failed to send or deliver a copy of such amendment to the prospectus with
or prior to the delivery of written confirmation of the sale of a Registrable
Security to the person asserting the claim from which such losses, claims,
damages or liabilities arise or (C)(i) such person disposed of Registrable
Securities to the person asserting the claim from which such losses, claims,
damages or liabilities arise pursuant to an Exchange Registration Statement or
Shelf Registration Statement and sent or delivered, or was required by law to
send or deliver, a prospectus to such person in connection with such
disposition, (ii) such person received a suspension notice as provided in
Sections 3(b)(iii)(C) through (E) and 3(c)(viii)(C) through (E) hereof in
writing at least one Business Day prior to the date of such disposition and
(iii) such untrue statement or alleged untrue statement or omission or alleged
omission was the reason for such suspension notice.
(b) Indemnification by the Holders and any Agents and Underwriters. In the case of a Shelf Registration pursuant to Section 2(b) hereof, each Electing Holder and each underwriter who participates as an underwriter in any offering or sale of Registrable Securities to the Registrable Securities, severally and not jointly, will (i) indemnify and hold harmless the Partnership, and all other holders of Registrable Securities, against any losses, claims, damages or liabilities to which the Partnership or such other holders of Registrable Securities may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary, final or summary prospectus contained therein or furnished by the Partnership to any such Electing Holder, agent or underwriter, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but 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 Partnership by such Electing Holder or underwriter expressly for use therein, and (ii) reimburse the Partnership for any legal or other expenses reasonably incurred by the Partnership in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that no such Electing Holder shall be required to undertake liability to any person under this Section 5(b) for any amounts in excess of the dollar amount of the proceeds to be received by such Electing Holder from the sale of such Electing Holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party under subsection (a) or (b) above of written notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party pursuant to the indemnification provisions of or contemplated by this Section 5, notify such indemnifying party in writing of the commencement of such action; but the omission so to notify the indemnifying party shall not relieve it from any liability that it may have to any indemnified party otherwise than under the indemnification provisions of or contemplated by Section 5(a) or 5(b) hereof. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 5(a) or Section 5(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 5(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them 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 this Section 5(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages that such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 5(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of the Partnership under this Section 5 shall be in addition to any liability that the Partnership may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any such holder, Electing Holder, sales agent or underwriter participating in the sale of Registrable Securities within the meaning of the Securities Act; and the obligations of the Electing Holders and any agents or underwriters contemplated by this Section 5 shall be in addition to any liability that the respective Electing Holder, agent or underwriter may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Partnership, its general partner or the delegate of its general partner (including any person who, with his consent, is named in any registration statement as about to become a director of the Partnership, its general partner or the delegate of
its general partner) and to each person, if any, who controls the Partnership, its general partner or the delegate of its general partner within the meaning of the Securities Act.
Section 6. Underwritten Offerings
(a) Selection of Underwriters. If any of the Registrable Securities covered by the Shelf Registration are to be sold pursuant to an underwritten offering, the managing underwriter or underwriters thereof shall be designated by Electing Holders holding at least a majority in aggregate principal amount of the Registrable Securities to be included in such offering, provided, that such designated managing underwriter or underwriters is or are reasonably acceptable to the Partnership.
(b) Participation by Holders. Each holder of Registrable Securities hereby agrees with each other such holder that no such holder may participate in any underwritten offering hereunder unless such holder (i) agrees to sell such holder's Registrable Securities on the basis provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.
Section 7. Rule 144
The Partnership covenants to the holders of Registrable Securities that to the extent it shall be required to do so under the Exchange Act, the Partnership shall timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Section 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities Act), all to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar or successor rule or regulation hereafter adopted by the Commission. Upon the request of any holder of Registrable Securities in connection with that holder's sale pursuant to Rule 144, the Partnership shall advise such holder in writing as to whether the Partnership has complied with such requirements.
Section 8. Miscellaneous
(a) No Inconsistent Agreements. The Partnership represents, warrants, covenants and agrees that, except pursuant to the Partnership Agreement relating to the Partnership and granted in connection with the acquisition of certain assets, it has not granted, and shall not grant, registration rights with respect to Registrable Securities or any other securities that would be inconsistent with the terms contained in this Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there would be no adequate remedy at law if the Partnership fails to perform any of its obligations hereunder and that the Purchasers and the holders from time to time of the Registrable Securities may be irreparably harmed by any such failure, and accordingly agree that the Purchasers and such holders, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to compel specific performance of the obligations of the Partnership under this
Registration Rights Agreement in accordance with the terms and conditions of
this Registration Rights Agreement, in any court of the United States or any
state thereof having jurisdiction; provided, that, in the case of any terms of
this Registration Rights Agreement for which Liquidated Damages pursuant to
Section 2(c) hereof is expressly provided as a remedy of a violation of such
terms, such Liquidated Damages shall be the sole monetary damages for such
violation.
(c) Notices. All notices, requests, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand, if delivered personally or by courier, or three days after being deposited in the mail (registered or certified mail, postage prepaid, return receipt requested), or telecopied (when receipt is acknowledged) as follows: if to the Partnership, One Allen Center, Suite 1000, 500 Dallas Street, Houston, Texas 77002, Attention: Park Shaper, telecopier number (713) 495-2782 (with a copy to the General Counsel), and, if to a holder, to the address of such holder set forth in the security register or other records of the Partnership, or to such other address as the Partnership or any such holder may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Registration Rights Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and the holders from time to time of the Registrable Securities and the respective successors and assigns of the parties hereto and such holders; provided, however, that nothing herein shall be deemed to permit any transfer of Registrable Securities in violation of this Agreement, the Indenture or applicable law. In the event that any transferee of any holder of Registrable Securities shall acquire Registrable Securities, in any manner, whether by gift, bequest, purchase, operation of law or otherwise, such transferee shall, without any further writing or action of any kind, be deemed a beneficiary hereof for all purposes and such Registrable Securities shall be held subject to all of the terms of this Registration Rights Agreement, and by taking and holding such Registrable Securities such transferee shall be entitled to receive the benefits of, and be conclusively deemed to have agreed to be bound by all of the applicable terms and provisions of this Registration Rights Agreement. If the Partnership shall so request, any such successor, assign or transferee shall agree in writing to acquire and hold the Registrable Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations, warranties and each other provision set forth in this Registration Rights Agreement or made pursuant hereto shall remain in full force and effect regardless of any investigation (or statement as to the results thereof) made by or on behalf of any holder of Registrable Securities, any director, officer or partner of such holder, any agent or underwriter or any director, officer or partner thereof, or any controlling person of any of the foregoing, and shall survive delivery of and payment for the Registrable Securities pursuant to the Purchase Agreement and the transfer and registration of Registrable Securities by such holder and the consummation of an Exchange Offer.
(f) Governing Law. This Registration Rights Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(g) Headings. The descriptive headings of the several Sections and paragraphs of this Registration Rights Agreement are inserted for convenience only, do not constitute a part of this Registration Rights Agreement and shall not affect in any way the meaning or interpretation of this Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Registration Rights Agreement and the other writings referred to herein (including the Indenture and the form of Securities) or delivered pursuant hereto that form a part hereof contain the entire understanding of the parties with respect to its subject matter. This Registration Rights Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter. This Registration Rights Agreement may be amended and the observance of any term of this Registration Rights Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a written instrument duly executed by the Partnership and the holders of at least a majority in aggregate principal amount of the Registrable Securities at the time outstanding (except with respect to Section 2(c) hereof, which may be amended only with the consent of each holder of Registrable Securities at the time outstanding). Each holder of any Registrable Securities at the time or thereafter outstanding shall be bound by any amendment or waiver effected pursuant to this Section 8(h), whether or not any notice, writing or marking indicating such amendment or waiver appears on such Registrable Securities or is delivered to such holder.
(i) 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 provisions in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
(j) Counterparts. This agreement may be executed by the parties in counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and return to us four counterparts hereof, being one for the Partnership, one for the Purchasers and one for each counsel, and upon the acceptance hereof by you, this letter and such acceptance hereof shall constitute a binding agreement between the Purchasers and the Partnership.
Very truly yours,
KINDER MORGAN ENERGY PARTNERS, L.P.
By: Kinder Morgan G.P., Inc.,
its general partner
By: Kinder Morgan Management, LLC,
its delegate
By: /s/ Joseph Listengart
-------------------------
Name: Joseph Listengart
Title: Vice President,
General Counsel and
Secretary
|
Accepted as of the date hereof:
SALOMON SMITH BARNEY INC.
J.P. MORGAN SECURITIES INC.
WACHOVIA SECURITIES, INC.
RBC DOMINION SECURITIES CORPORATION
SUNTRUST CAPITAL MARKETS, INC.
BANC ONE CAPITAL MARKETS, INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
By: Salomon Smith Barney Inc.
By: /s/ Jean Pierre Buyze
------------------------
Name: Jean Pierre Buyze
Title: Vice President
|
EXHIBIT A
KINDER MORGAN ENERGY PARTNERS, L.P.
INSTRUCTION TO DTC PARTICIPANTS
[DATE OF MAILING]
URGENT -- IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]*
The Depository Trust Company ("DTC") has identified you as a DTC Participant through which beneficial interests in the 5.35% Senior Notes due 2007 (the "2007 Notes") and 7.30% Senior Notes due 2033 (the "2033 Notes" and together with the 2007 Notes, the "Securities") of Kinder Morgan Energy Partners, L.P. (the "Partnership") are held.
The Partnership is in the process of registering the Securities under the Securities Act of 1933 for resale by the beneficial owners thereof. In order to have their Securities included in the registration statement, beneficial owners must complete and return the enclosed Notice of Registration Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the enclosed materials as soon as possible as their rights to have the Securities included in the registration statement depend upon their returning the Notice and Questionnaire by [Deadline For Response]. Please forward a copy of the enclosed documents to each beneficial owner that holds interests in the Securities through you. If you require more copies of the enclosed materials or have any questions pertaining to this matter, please contact Kinder Morgan Energy Partners, L.P., One Allen Center, Suite 1000, 500 Dallas Street, Houston, Texas 77002, Attention: General Counsel.
* Not less than 20 calendar days from date of mailing.
KINDER MORGAN ENERGY PARTNERS, L.P.
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITYHOLDER QUESTIONNAIRE
[DATE]
Reference is hereby made to the Registration Rights Agreement (the "Registration Rights Agreement") between Kinder Morgan Energy Partners, L.P. (the "Partnership"), and the Purchasers named therein. Pursuant to the Registration Rights Agreement, the Partnership has filed with the United States Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (the "Shelf Registration Statement") for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"), of the Partnership's 5.35% Senior Notes due 2007 (the "2007 Notes") and the Partnership's 7.30% Senior Notes due 2033 (the "2033 Notes" and together with the 2007 Notes, the "Securities"). A copy of the Registration Rights Agreement is attached hereto. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled to have the Registrable Securities beneficially owned by it included in the Shelf Registration Statement. In order to have Registrable Securities included in the Shelf Registration Statement, this Notice of Registration Statement and Selling Securityholder Questionnaire (the "Notice and Questionnaire") must be completed, executed and delivered to the Partnership's counsel at the address set forth herein for receipt ON OR BEFORE [Deadline for Response]. Beneficial owners of Registrable Securities who do not complete, execute and return this Notice and Questionnaire by such date (i) will not be named as selling securityholders in the Shelf Registration Statement and (ii) may not use the prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in the Shelf Registration Statement and related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling securityholder in the Shelf Registration Statement and related prospectus.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities hereby elects to include in the Shelf Registration Statement the Registrable Securities beneficially owned by it and listed below in Item (3). The undersigned, by signing and returning this Notice and Questionnaire, agrees to be bound with respect to such Registrable Securities by the terms and conditions of this Notice and Questionnaire and the Registration Rights Agreement, including, without limitation, Section 6 of the Registration Rights Agreement, as if the undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration Statement, the Selling Securityholder will be required to deliver to the Partnership and Trustee the Notice of Transfer set forth in Appendix A to the prospectus and as Exhibit B to the Registration Rights Agreement. The Selling Securityholder hereby provides the following information to the Partnership and represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same as (b) above) Through Which Registrable Securities Listed in Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
Title and CUSIP No(s). of such Registrable Securities:
(b) Principal amount of Securities other than Registrable
Securities beneficially owned:
Title and CUSIP No(s). of such other Securities:
(c) Principal amount of Registrable Securities that the undersigned wishes to be included in the Shelf Registration Statement:
(d) Title and CUSIP No(s). of such Registrable Securities to be included in the Shelf Registration Statement:
(4) Beneficial ownership of Other Securities of the Partnership:
Except as set forth below in this Item (4), the undersigned Selling Securityholder is not the beneficial or registered owner of any other securities of the Partnership, other than the Securities listed above in Item (3).
State any exceptions here:
(5) Relationships with the Partnership:
Except as set forth below, neither the Selling Securityholder nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office
or has had any other material relationship with the Partnership (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, broker-dealers
or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholder may also
sell Registrable Securities short and deliver Registrable Securities to
close out such short positions, or loan or pledge Registrable
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands its obligation to comply, and agrees that it will comply, with the provisions of the Exchange Act and the rules and regulations thereunder, particularly Regulation M. In the event that the Selling Securityholder transfers all or any portion of the Registrable Securities listed in Item (3) above after the date on which such information is provided to the Partnership, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer of its rights and obligations under this Notice and Questionnaire and the Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through
(6) above and the inclusion of such information in the Shelf
Registration Statement and related prospectus. The Selling
Securityholder understands that such information will be relied upon by
the Partnership in connection with the preparation of the Shelf
Registration Statement and related prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(e) of the Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf
Registration Statement, the Selling Securityholder agrees to promptly
notify the Partnership of any inaccuracies or changes in the
information
provided herein that may occur subsequent to the date hereof at any time while the Shelf Registration Statement remains in effect. All notices hereunder and pursuant to the Registration Rights Agreement shall be made in writing, by hand-delivery, first-class mail or air courier guaranteeing overnight delivery as follows:
(i) To the Partnership: Park Shaper, Chief Financial Officer Kinder Morgan Energy Partners, L.P.
One Allen Center
500 Dallas Street, Suite 1000
Houston, Texas 77002
(ii) With a copy to: Gary Orloff Bracewell & Patterson, L.L.P.
South Tower Pennzoil Place
711 Louisiana, Suite 2900
Houston, Texas 77002-2718
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Partnership's counsel, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives and assigns of the
Partnership and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above). This Agreement shall be governed in all respects by the laws of the
State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.
Dated:
Selling Securityholder (Print/type full legal name of beneficial owner of Registrable Securities)
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE PARTNERSHIP'S COUNSEL AT:
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO
REGISTRATION STATEMENT
Kinder Morgan Energy Partners, L.P.
c/o Wachovia Bank, National Association
12 East 49th Street, 37th Floor
New York, NY 10017
Attention: Corporate Trust Department
Re: Kinder Morgan Energy Partners, L.P. (the "Partnership") 5.35% Senior Notes due 2007 7.30% Senior Notes due 2033 Dear Sirs:
Please be advised that ________________ has transferred an aggregate of $_________ principal amount of the above-referenced 5.35% Senior Notes due 2007 and $_________ principal amount of the above-referenced 7.30% Senior Notes due 2033 pursuant to an effective Registration Statement on Form S-3 (File No. 333-________) filed by the Partnership.
We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933, as amended, have been satisfied and that the above-named beneficial owner of the Securities is named as a "Selling Holder" in the prospectus dated [date] or in supplements thereto, and that the aggregate principal amount of the Securities transferred are the Securities listed in such prospectus opposite such owner's name.
Dated:
Very truly yours,
(Name)
By:
(Authorized Signature)
EXHIBIT 4.5
Conformed Copy
KINDER MORGAN ENERGY PARTNERS, L.P.
$125,000,000 7.30% SENIOR NOTES DUE 2033
REGISTRATION RIGHTS AGREEMENT
August 23, 2002
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Kinder Morgan Energy Partners, L.P., a Delaware limited partnership (the "Partnership"), proposes to issue and sell to you (the "Purchaser") upon the terms and subject to the conditions set forth in the Purchase Agreement (as defined herein) an aggregate of $125,000,000 principal amount of the Partnership's 7.30% Senior Notes due 2033 issued on the date hereof (the "Securities"), which shall constitute an additional issuance to, form a single series with, and have the same CUSIP number and the same terms as, the aggregate $375,000,000 million principal amount of 7.30% Senior Notes due 2033 issued by the Partnership on August 19, 2002. As an inducement to the Purchaser to enter into the Purchase Agreement and in satisfaction of a condition to the obligations of the Purchaser thereunder, the Partnership agrees with the Purchaser for the benefit of holders (as defined herein) from time to time of the Registrable Securities (as defined herein) as follows:
Section 1. Certain Definitions
For purposes of this Registration Rights Agreement, the following terms shall have the following respective meanings:
"broker-dealer" shall mean any broker or dealer registered with the Commission under the Exchange Act.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law, executive order or regulation to close.
"Closing Date" shall mean the date on which the 7.30% Senior Notes due 2033 were initially issued, which was August 19, 2002.
"Commission" shall mean the United States Securities and Exchange Commission, or any other federal agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant statute for the particular purpose.
"Effective Time", in the case of (i) an Exchange Registration, shall mean the time and date as of which the Commission declares the Exchange Registration Statement effective or as of
which the Exchange Registration Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean the time and date as of which the Commission declares the Shelf Registration Statement effective or as of which the Shelf Registration Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Partnership in accordance with Section 3(c)(ii) or 3(c)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any successor statute thereto, in each case as amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in
Section 2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(b) hereof.
"Exchange Registration Statement" shall have the meaning assigned thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
"holder" shall mean the Purchaser and each other person who acquires Registrable Securities from time to time (including any successors or assigns), in each case for so long as such person owns any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of August 19, 2002, between the Partnership and Wachovia Bank, National Association, as Trustee, as amended by the First Supplemental Indenture thereto, dated as of August 23, 2002, as the same shall be further amended from time to time.
"Liquidated Damages" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Liquidated Damages Event" shall have the meaning assigned thereto in
Section 2(c) hereof.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notice and Questionnaire" means a Notice of Registration Statement and Selling Securityholder Questionnaire substantially in the form of Exhibit A hereto.
"Partnership" shall mean Kinder Morgan Energy Partners, L.P., a Delaware limited partnership.
"person" shall mean any individual, corporation, partnership (whether general or limited), joint venture, limited liability company, association, joint stock company, trust, other entity, unincorporated organization or government or any agency or political subdivision thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of August 20, 2002, between the Partnership and the Purchaser, as the same shall be amended from time to time.
"Purchaser" shall mean J.P. Morgan Securities Inc.
"Registrable Securities" shall mean each of the Securities; provided,
however, that such Security shall cease to be a Registrable Security when (i) in
the circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in the Exchange Offer as contemplated in
Section 2(a) hereof (provided, that any Exchange Security that, pursuant to the
last two sentences of Section 2(a) hereof, is included in a prospectus for use
in connection with resales by broker-dealers shall be deemed to be a Registrable
Security until resale of such Registrable Security has been effected within the
120-day period referred to in Section 2(a) hereof); (ii) in the circumstances
contemplated by Section 2(b) hereof, a Shelf Registration Statement registering
such Security under the Securities Act has been declared or becomes effective
and such Security has been sold or otherwise transferred by the holder thereof
pursuant to and in a manner contemplated by such effective Shelf Registration
Statement; (iii) such Security is sold pursuant to Rule 144 under circumstances
in which any legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is removed by
the Partnership or pursuant to the Indenture; (iv) such Security is eligible to
be sold pursuant to paragraph (k) of Rule 144 (or any similar provision then in
effect); or (v) such Security shall cease to be outstanding.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the Partnership within the meaning of Rule 405 (as defined herein), (ii) a holder who acquires Exchange Securities outside the ordinary course of such holder's business, (iii) a holder who has arrangements or understandings with any person to participate in the Exchange Offer for the purpose of distributing Exchange Securities and (iv) a holder that is a broker-dealer, but only with respect to Exchange Securities received by such broker-dealer pursuant to the Exchange Offer in exchange for Registrable Securities acquired by the broker-dealer directly from the Partnership.
"Rule 144(k) Holding Period" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Rule 144", "Rule 405" and "Rule 415" shall mean, in each case, such rule promulgated under the Securities Act (or any successor provision), as the same shall be amended from time to time.
"Securities Act" shall mean the Securities Act of 1933, or any successor statute thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto in Section 2(b) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or any successor statute thereto, and the rules, regulations and forms promulgated thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section" or "clause" refers to a Section or clause, as the case may be, of this Registration Rights Agreement, and the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Registration Rights Agreement as a whole and not to any particular Section or other subdivision.
Section 2. Registration Under the Securities Act
(a) Except as set forth in Section 2(b) below, the Partnership agrees
to use its reasonable efforts to file under the Securities Act, as soon as
practicable, but no later than 120 days after the Closing Date, a single
registration statement relating to an offer to exchange (such registration
statement, the "Exchange Registration Statement" and, such offer, an "Exchange
Offer") any and all of the Securities for a like aggregate principal amount of
debt securities issued by the Partnership, which debt securities will be
substantially identical to such Securities tendered by the holders (and will be
entitled to the benefits of a trust indenture that will be substantially
identical to the Indenture or is the Indenture and that will be qualified under
the Trust Indenture Act), except that such new debt securities will have been
registered pursuant to an effective registration statement under the Securities
Act, will not be subject to transfer restrictions or registration rights and
will not be entitled to the benefit of provisions for the Liquidated Damages
contemplated in Section 2(c) below (such new debt securities hereinafter called
"Exchange Securities"). The Partnership agrees to use its reasonable efforts to
cause the Exchange Registration Statement to become effective under the
Securities Act as soon as practicable, but no later than 210 days after the
Closing Date. The Exchange Offer will be registered under the Securities Act on
the appropriate form and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Partnership further agrees to use its
reasonable efforts to commence and complete the Exchange Offer promptly, but no
later than 45 Business Days after the date on which such Exchange Registration
Statement has become effective, to hold the Exchange Offer open for at least 30
days and to exchange the Exchange Securities of for all Registrable Securities
that have been properly tendered and not withdrawn on or prior to the expiration
of the Exchange Offer. The Exchange Offer shall be deemed to have been completed
upon the earlier to occur of (i) the Partnership having exchanged Exchange
Securities for all outstanding Registrable Securities that are properly tendered
and not withdrawn pursuant to the Exchange Offer and (ii) the Partnership having
exchanged, pursuant to the Exchange Offer, Exchange Securities for all
Registrable Securities that have been properly tendered and not withdrawn before
the expiration of the Exchange Offer, which shall be on a date that is at least
30 days following the commencement of the Exchange Offer. The Partnership agrees
(x) to include in the Exchange Registration Statement a prospectus for use in
any resales by any holder of Exchange Securities that is a broker-dealer and (y)
to keep such Exchange Registration Statement effective for a period (the "Resale
Period") beginning when Exchange Securities are first issued in the Exchange
Offer and ending upon the earlier of the expiration of the 120th day after the
Exchange Offer has been completed or such time as such broker-dealers no longer
own any Registrable Securities. With respect to such Exchange Registration
Statement, such holders shall have the benefit of the rights of indemnification
and contribution set forth in Sections 5(a), (c), (d) and (e) hereof.
(b) If (i) the Partnership determines that the Exchange Registration
Statement is not available or the Exchange Offer may not be consummated because
it would violate applicable law or the applicable interpretations of the staff
of the Commission, (ii) the Exchange Offer has not been completed within 210
days plus 45 Business Days following the Closing Date or (iii) in the opinion of
counsel for the Purchaser, under applicable law or the applicable
interpretations of the staff of the Commission, the Purchaser is not entitled to
tender Securities in the Exchange Offer or must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
offering or sale of Registrable Securities, the Partnership shall, in lieu of
conducting the Exchange Offer contemplated by Section 2(a) hereof, use its
reasonable efforts to file under the Securities Act, as soon as practicable
after the time such obligation to file arises, a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed basis
by the holders of, all of the Registrable Securities, pursuant to Rule 415 or
any similar rule that may be adopted by the Commission (such filing, the "Shelf
Registration" and, such registration statement, the "Shelf Registration
Statement"). The Partnership agrees to use its reasonable efforts to cause the
Shelf Registration Statement to become or be declared effective and to keep such
Shelf Registration Statement continuously effective for a period ending on the
earlier of the second anniversary of August 23, 2002 or, if Rule 144(k) is
amended to provide a shorter restrictive period, such shorter period (the "Rule
144(k) Holding Period") or such time as there are no longer any Registrable
Securities outstanding; provided, however, that no holder shall be entitled to
be named as a selling securityholder in the Shelf Registration Statement or to
use the prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and furnishes to the Partnership in
writing, within 20 days after receipt of a request therefor, such information
with respect to such Electing Holder required under Regulation S-K under the Act
as the Partnership may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary prospectus included therein.
No Electing Holder shall be entitled to Liquidated Damages pursuant to Section
2(c) hereof unless and until such Electing Holder shall have used its reasonable
efforts to provide all such reasonably requested information. Each Electing
Holder as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Partnership all information required to be disclosed in
order to make the information previously furnished to the Partnership by such
Electing Holder not materially misleading. The Partnership further agrees to
supplement or make amendments to the Shelf Registration Statement, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Partnership for such Shelf Registration Statement
or by the Securities Act or rules and regulations thereunder for shelf
registration, and the Partnership agrees to furnish to each Electing Holder
copies of any such supplement or amendment promptly after its being used
following its filing with the Commission.
(c) The Partnership agrees to pay liquidated damages (the "Liquidated Damages") upon the occurrence of any of the following events (each such event, a "Liquidated Damages Event"):
(i) if the Exchange Registration Statement or Shelf Registration Statement is not filed within 120 days following the Closing Date, then commencing on the 121st day after the Closing Date, Liquidated Damages shall accrue on the Securities over and above the otherwise applicable interest rate at a rate of 0.25% per year; or
(ii) if an Exchange Registration Statement or Shelf Registration Statement is filed and is not declared effective within 210 days following the Closing Date, then commencing on the 211th day after the Closing Date, Liquidated Damages shall accrue on the Securities over and above the otherwise applicable interest rate at a rate of 0.25% per year; or
(iii) if either (A) the Partnership has not exchanged Exchange Securities for all Securities validly tendered in accordance with the terms of the Exchange Offer on or prior to 45 Business Days after the date on which the Exchange Registration Statement was declared effective, or (B) the Shelf Registration Statement has been declared effective, but such Shelf Registration Statement ceases to be effective at any time (I) prior to the expiration of the Rule 144(k) Holding Period and (II) while Registrable Securities are outstanding, then Liquidated Damages shall accrue on the Securities over and above the otherwise applicable interest rate at a rate of 0.25% per year commencing on the (x) 46th Business Day after such effective date, in the case of (A) above, or (y) the day the Shelf Registration Statement ceases to be effective, in the case of (B) above;
provided, however, that the circumstances under which the Partnership may be required to pay Liquidated Damages are not cumulative and the rate at which Liquidated Damages accrues on the Securities shall never exceed 0.25% per year; and, provided further, that Liquidated Damages on the Securities shall cease to accrue upon the earlier of (i) when all Liquidated Damages Events have been cured or (ii) upon the expiration of the Rule 144(k) Holding Period. For purposes of clarifying the foregoing provisions, Liquidated Damages shall not accrue at any time that there are no Registrable Securities outstanding.
All accrued Liquidated Damages shall be payable, in the manner provided for the payment of interest in the Indenture and the Securities, on each applicable Interest Payment Date (as defined in the Indenture).
(d) The Partnership shall take all actions reasonably necessary to be taken by it to ensure that the transactions contemplated herein are effected as so contemplated.
(e) Any reference herein to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.
Section 3. Registration Procedures
If the Partnership files a registration statement pursuant to Section 2(a) or Section 2(b) hereof, the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Registration or the Shelf Registration, as the case may be, the Partnership shall qualify the Indenture under the Trust Indenture Act.
(b) In connection with the Partnership's obligations with respect to the registration of Exchange Securities as contemplated by Section 2(a) hereof (the "Exchange Registration"), if applicable, the Partnership shall, as soon as practicable (or as otherwise specified):
(i) use its reasonable efforts to prepare and file with the Commission, as soon as practicable, but no later than 120 days after the Closing Date, an Exchange Registration Statement on any form that may be utilized by the Partnership and that shall permit the Exchange Offer and resales of Exchange Securities by broker-dealers during the Resale Period to be effected as contemplated by Section 2(a) hereof, and use its reasonable efforts to cause such Exchange Registration Statement to become effective as soon as practicable thereafter, but no later than 210 days following the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Exchange
Registration Statement for the periods and purposes contemplated in
Section 2(a) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the
form of such Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of copies of
the prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer
reasonably may request prior to the expiration of the Resale Period,
for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or received copies of the prospectus included in such registration statement and, if requested by such broker-dealer, confirm such advice in writing, (A) when such Exchange Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Exchange Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission for amendments or supplements to such Exchange Registration Statement or prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Exchange Registration Statement or the initiation or threatening of any proceedings for that purpose, (D) of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, or (E) if at any time during the Resale Period when a prospectus is required to be delivered under the Securities Act, that such Exchange Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(iv) in the event that the Partnership would be required, pursuant to Section 3(b)(iii)(E) above, to notify any broker-dealers holding Exchange Securities, it will use its reasonable efforts to prepare and furnish to each such holder a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of such Exchange Securities during the Resale Period, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. Each broker-dealer agrees that upon receipt of any notice from the Partnership pursuant to Section 3(b)(iii)(E) hereof, such broker-dealer shall forthwith discontinue the disposition of Exchange Securities pursuant to the Exchange Registration Statement until such broker-dealer shall have received copies of such amended or supplemented prospectus and, if so directed by the Partnership, such broker-dealer shall deliver to the Partnership (at the Partnership's expense) all copies of the prospectus covering such Exchange Securities then in such broker-dealers' possession for the purpose of making offers of Exchange Securities;
(v) use its reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Exchange Registration Statement or any post-effective amendment thereto at the earliest practicable date;
(vi) use its reasonable efforts to (A) register or qualify the Exchange Securities under the securities laws or blue sky laws of such jurisdictions as any holder of Exchange Securities shall reasonably request in writing no later than the commencement of the Exchange Offer, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions until the expiration of the Resale Period and (C) take any and all other actions as may be reasonably necessary to enable each broker-dealer holding Exchange Securities to consummate the disposition thereof in such jurisdictions under the securities laws or blue sky laws of such jurisdictions; provided, however, that the Partnership shall not be required for any such purpose to (1) qualify as a foreign partnership or as a dealer in securities in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Agreement, (2) consent to general service of process in any such jurisdiction or subject itself to taxation in any such jurisdiction if it is not already so subject or (3) make any changes to its certificate of limited partnership or its agreement of limited partnership or any agreement between it and its unitholders;
(vii) use its reasonable efforts to obtain the consent or approval of each governmental agency or authority, whether federal, state or local, that may be required to effect the Exchange Registration, the Exchange Offer and the offering and sale of Exchange Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for the Exchange Securities, not later than the Effective Time; and
(ix) comply with all applicable rules and regulations of the Commission, and make generally available to its securityholders as soon as practicable, but no later than 18 months after the effective date of such Exchange Registration Statement, an earnings statement of the Partnership and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Partnership, Rule 158 thereunder).
As a condition to its participation in the Exchange Offer pursuant to
the terms of this Agreement, each holder shall furnish, upon the request of the
Partnership, prior to the consummation thereof, a written representation to the
Partnership (which may be contained in the letter of transmittal contemplated by
the Exchange Registration) to the effect that (A) it is not an affiliate of the
Partnership, (B) it is not engaged in, and does not intend to engage in, and has
no arrangement or understanding with any person to participate in, a
distribution of the Exchange Securities to be issued in the Exchange Offer and
(C) it is acquiring the Exchange Securities in its ordinary course of business.
In addition, although holders shall otherwise cooperate in the Partnership's
preparation for the Exchange Offer, each holder hereby acknowledges and agrees
that any broker-dealer who purchases the Securities from the Partnership to
resell pursuant to Rule 144A or any other available exemption under the
Securities Act or any holder who is an affiliate of the Partnership or who
intends to use the Exchange Offer to participate in a distribution of the
Exchange Securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Morgan Stanley and Co., Inc. (available
June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988),
as interpreted in the Commission's letter to Shearman & Sterling dated July 2,
1993, and similar no-action letters, (2) will not be entitled to tender
Securities in the Exchange Offer, and (3) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
sale or transfer of the Securities unless such sale or transfer is made pursuant
to any exemption from such requirements.
(c) In connection with the Partnership's obligations with respect to the Shelf Registration, if applicable, the Partnership shall, as soon as practicable (or as otherwise specified):
(i) use its reasonable efforts to prepare and file with the Commission a Shelf Registration Statement on any form that may be utilized by the Partnership and that shall register all of the Registrable Securities for resale by the holders thereof in accordance with such method or methods of disposition as may be specified by such of the holders as, from time to time, may be Electing Holders and use its reasonable efforts to cause such Shelf Registration Statement to become effective;
(ii) not less than 30 days prior to the Effective Time of the Shelf Registration Statement, mail the Notice and Questionnaire to the holders of Registrable Securities; no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement as of the Effective Time, and no holder shall be entitled to use the prospectus forming a part thereof for resales of Registrable Securities at any time, unless such holder has returned a completed and signed Notice and Questionnaire to the Partnership by the deadline for response set forth therein; provided, however, holders of Registrable Securities shall have at least 20 days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a completed and signed Notice and Questionnaire to the Partnership;
(iii) after the Effective Time of the Shelf Registration Statement, upon the request of any holder of Registrable Securities that is not then an Electing Holder, promptly send a Notice and Questionnaire to such holder; provided, that the Partnership shall not be required to take any action to name such holder as a selling securityholder in the Shelf Registration Statement or to enable such holder to use the prospectus forming a part thereof for resales of Registrable Securities until such holder has returned a completed and signed Notice and Questionnaire to the Partnership; and, provided further, that the Partnership shall not be required to file an amendment to such Shelf Registration Statement for the sole reason of naming such holder as a selling securityholder in the Shelf Registration Statement;
(iv) as soon as practicable prepare and file with the Commission such amendments and supplements to such Shelf Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Shelf Registration Statement for the period specified in Section 2(b) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Shelf Registration Statement, and furnish to the Electing Holders copies of any such supplement or amendment simultaneously with or prior to its being used or filed with the Commission;
(v) comply with the provisions of the Securities Act with respect to the disposition of all of the Registrable Securities covered by such Shelf Registration Statement in accordance with the intended methods of disposition by the Electing Holders provided for in such Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Registration Rights Agreement, shall
include a person deemed to be an underwriter within the meaning of
Section 2(a)(11) of the Securities Act), if any, thereof, (C) any sales
or placement agent therefor, (D) counsel for any such underwriter or
agent and (E) not more than one counsel for all the Electing Holders
the opportunity to participate in the preparation of such Shelf
Registration Statement, each prospectus included therein or filed with
the Commission and each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the period specified in
Section 2(b) hereof, make available at reasonable times at the
Partnership's principal place of business or such other reasonable
place for inspection by the persons referred to in Section 3(c)(vi)
hereof who shall certify to the Partnership that they have a current
intention to sell the Registrable Securities pursuant to the Shelf
Registration such financial and other information and books and records
of the Partnership, and reasonably cause the officers, employees,
counsel and independent certified public accountants of the Partnership
to respond to such inquiries, as shall be reasonably necessary to
conduct a reasonable investigation within the meaning of Section 11 of
the Securities Act; provided, however, that each such party shall be
required to maintain in confidence and not to disclose to any other person any information or records considered by the Partnership in good faith as being confidential, until such time as (A) such information becomes a matter of public record (whether by virtue of its inclusion in such Shelf Registration Statement or otherwise), or (B) such person shall be required so to disclose such information pursuant to a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter (subject to the requirements of such order, and only after such person shall have given the Partnership prompt prior written notice of such requirement), or (C) such information is required, as determined by the Partnership in good faith and its counsel, to be set forth in such Shelf Registration Statement or the prospectus included therein or in an amendment to such Shelf Registration Statement or an amendment or supplement to such prospectus in order that such Shelf Registration Statement, prospectus, amendment or supplement, as the case may be, complies with applicable requirements of the federal securities laws and the rules and regulations of the Commission thereunder and does not contain an untrue statement of a material fact or omit to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(viii) promptly notify each of the Electing Holders, any sales or placement agent therefor and any underwriter thereof (which notification may be made through any managing underwriter that is a representative of such underwriter for such purpose) and, if requested by such Holders, agents or underwriters, confirm such advice in writing, (A) when such Shelf Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Shelf Registration Statement or any post-effective amendment, when the same has become effective, (B) of any request by the Commission for amendments or supplements to such Shelf Registration Statement or prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Shelf Registration Statement or the initiation or threatening of any proceedings for that purpose, (D) of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, or (E) if at any time when a prospectus is required to be delivered under the Securities Act, that such Shelf Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(ix) use its reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Shelf Registration Statement or any post-effective amendment thereto at the earliest practicable date;
(x) if requested by any managing underwriter or underwriters, any placement or sales agent or any Electing Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or underwriters, such agent or such Electing Holder may reasonably propose should be included therein relating to the terms of the sale of such Registrable Securities, including information with respect to the principal amount of Registrable Securities being sold by such Electing Holder or agent or to any underwriters, the name and description of such Electing Holder, agent or underwriter, the offering price of such Registrable Securities and any discount, commission or other compensation payable in respect thereof, the purchase price being paid therefor by such underwriters and with respect to any other terms of the offering of the Registrable Securities to be sold by such Electing Holder or agent or to such underwriters; and make all required filings of such prospectus supplement or post-effective amendment promptly after notification of the matters to be incorporated in such prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales agent, if any, therefor, each underwriter, if any, thereof and the respective counsel referred to in Section 3(c)(vi), a copy of such Shelf Registration Statement, each such amendment and supplement thereto (in each case including all exhibits thereto (in the case of an Electing Holder of Registrable Securities, upon request) and documents incorporated by reference therein) and such number of copies of such Shelf Registration Statement (excluding exhibits thereto and documents incorporated by reference therein unless specifically so requested by such Electing Holder, agent or underwriter, as the case may be) and of the prospectus included in such Shelf Registration Statement (including each preliminary prospectus and any summary prospectus), in conformity in all material respects with the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder, and such other documents as such Electing Holder, agent, if any, and underwriter, if any, may reasonably request in order to facilitate the offering and disposition of the Registrable Securities owned by such Electing Holder, offered or sold by such agent or underwritten by such underwriter and to permit such Electing Holder, agent and underwriter to satisfy the prospectus delivery requirements of the Securities Act; and the Partnership hereby consents to the use of such prospectus (including such preliminary and summary prospectus) and any amendment or supplement thereto by each such Electing Holder and by any such agent and underwriter, in each case in the form most recently provided to such person by the Partnership, in connection with the offering and sale of the Registrable Securities covered by the prospectus (including such preliminary and summary prospectus) or any supplement or amendment thereto;
(xii) use reasonable efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any Electing Holder and each placement or sales agent,
if any, therefor and underwriter, if any, thereof shall reasonably
request in writing, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during the
period the Shelf Registration is required to remain effective under
Section 2(b) above, and (C) take any and all other actions as may be
reasonably necessary to enable each such Electing Holder, agent, if
any, and underwriter, if any, to consummate the disposition in such
jurisdictions under the securities laws or blue sky laws of such
jurisdictions;
provided, however, that the Partnership shall not be required for any such purpose to (1) qualify as a foreign partnership or as a dealer in securities in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Agreement, (2) consent to general service of process in any such jurisdiction or subject itself to taxation in any such jurisdiction if it is not already so subject, or (3) make any changes to its certificate of limited partnership or its agreement of limited partnership or any agreement between it and its unitholders;
(xiii) use its reasonable efforts to obtain the consent or approval of each governmental agency or authority, whether federal, state or local, that may be required to effect the Shelf Registration or the offering or sale in connection therewith or to enable the selling holder or holders to offer, or to consummate the disposition of, their Registrable Securities;
(xiv) unless any Registrable Securities shall be in book-entry only form, cooperate with the Electing Holders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, which certificates, if so required by any securities exchange upon which any Registrable Securities are listed, shall be penned, lithographed or engraved, or produced by any combination of such methods, on steel engraved borders, and which certificates shall not bear any restrictive legends; and, in the case of an underwritten offering, enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may reasonably request at least two Business Days prior to any sale of the Registrable Securities;
(xv) provide a CUSIP number for the Registrable Securities, not later than the applicable Effective Time;
(xvi) in connection with an underwritten offering of Registrable Securities, enter into one or more customary underwriting agreements, engagement letters, agency agreements, "best efforts" underwriting agreements or similar agreements, as appropriate, including customary provisions relating to indemnification and contribution, and take such other actions in connection therewith as any Electing Holders aggregating at least a majority in aggregate principal amount of the Registrable Securities at the time outstanding (it being understood for purposes of this Agreement that all holders of the Registrable Securities shall vote on this and any other matter as a single class) shall reasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(xvii) in connection with any underwritten offering of Registrable Securities pursuant to a Shelf Registration, to the extent requested by the underwriters thereof, (A) make such representations and warranties to the Electing Holders and the underwriters thereof in form, substance and scope as are customarily made in primary underwritten offerings of debt securities and covering matters including, but not limited to those set forth in the Purchase Agreement; (B) obtain an opinion of counsel to the Partnership in customary form and covering such matters of the type customarily covered by such an opinion in primary offerings of debt securities as the underwriters thereof may
reasonably request, addressed to such underwriters thereof and dated the effective date of such Shelf Registration Statement and the date of the closing under the underwriting agreement relating thereto) covering the matters customarily covered in opinions requested in primary underwritten offerings of debt securities (it being agreed that the matters to be covered by such opinion may be subject to customary qualifications and exceptions and it being understood that opinions that are substantially the same as those called for by the Purchase Agreement will be satisfactory for these purposes); (C) obtain a "cold comfort" letter or "cold comfort" letters from the independent certified public accountants of the Partnership addressed to the underwriters thereof, dated (i) the effective date of such Shelf Registration Statement and (ii) the effective date of any prospectus supplement to the prospectus included in such Shelf Registration Statement or post-effective amendment to such Shelf Registration Statement that includes unaudited or audited financial statements as of a date or for a period subsequent to that of the latest such statements included in such prospectus (and, if such Shelf Registration Statement contemplates an underwritten offering pursuant to any prospectus supplement to the prospectus included in such Shelf Registration Statement or post-effective amendment to such Shelf Registration Statement that includes unaudited or audited financial statements as of a date or for a period subsequent to that of the latest such statements included in such prospectus, dated the date of the closing under the underwriting agreement relating thereto), such letter or letters to be in customary form and covering such matters of the type customarily covered by letters of such type; (D) deliver such customary documents and certificates, including officers' certificates, as may be reasonably requested by the underwriters thereof to evidence the accuracy of the representations and warranties made pursuant to clause (A) above and the compliance with or satisfaction of any agreements or conditions contained in the underwriting agreement or other agreement entered into by the Partnership; and (E) undertake such obligations relating to expense reimbursement, indemnification and contribution as are provided in Section 5 hereof;
(xviii) notify in writing each holder of Registrable Securities of any proposal of any amendment or waiver effected pursuant to Section 8(h) hereof, each of which notices shall contain the text of the amendment or waiver proposed or effected, as the case may be; and
(xix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable, but in any event not later than 18 months after the
effective date of such Shelf Registration Statement, an earnings
statement of the Partnership and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option of the
Partnership, Rule 158 thereunder).
(d) In the event that the Partnership would be required, pursuant to
Section 3(c)(viii)(E) above, to notify the Electing Holders, the placement or
sales agent, if any, therefor and the managing underwriters, if any, thereof,
the Partnership shall without any unreasonable delay prepare and furnish to each
of the Electing Holders, to each placement or sales agent, if any, and to each
such underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the
Commission thereunder and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing. Each Electing Holder agrees that upon receipt of any notice from the Partnership pursuant to Section 3(c)(viii)(E) hereof, such Electing Holder shall forthwith discontinue the disposition of Registrable Securities pursuant to the Shelf Registration Statement applicable to such Registrable Securities until such Electing Holder shall have received copies of such amended or supplemented prospectus, and if so directed by the Partnership, such Electing Holder shall deliver to the Partnership (at the Partnership's expense) all copies of the prospectus covering such Registrable Securities then in such Electing Holder's possession for the purpose of making offers of the Registrable Securities.
(e) In the event of a Shelf Registration, in addition to the information required to be provided by each Electing Holder in its Notice and Questionnaire, the Partnership may require such Electing Holder to furnish to the Partnership such additional information regarding such Electing Holder and such Electing Holder's intended method of distribution of Registrable Securities as may be required in order to comply with the Securities Act. Each such Electing Holder agrees to notify the Partnership as promptly as practicable of any inaccuracy or change in information previously furnished by such Electing Holder to the Partnership or of the occurrence of any event in either case as a result of which any prospectus relating to such Shelf Registration contains or would contain an untrue statement of a material fact regarding such Electing Holder or such Electing Holder's intended method of disposition of such Registrable Securities or omits to state any material fact regarding such Electing Holder or such Electing Holder's intended method of disposition of such Registrable Securities required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and promptly to furnish to the Partnership any additional information required to correct and update any previously furnished information or required so that such prospectus shall not contain, with respect to such Electing Holder or the disposition of such Registrable Securities, an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing.
(f) Until the expiration of the Rule 144(k) Holding Period, the Partnership will not, and will use its reasonable efforts to cause its "affiliates" (as defined in Rule 144) not to, resell any of the Securities that have been reacquired by any of them except pursuant to an effective registration statement under the Securities Act.
Section 4. Registration Expenses
The Partnership agrees to bear and to pay or cause to be paid promptly
all reasonable expenses incident to the Partnership's performance of or
compliance with this Registration Rights Agreement, including (a) all Commission
and any applicable National Association of Securities Dealers, Inc. ("NASD")
registration, filing and review fees and expenses, including fees and
disbursements of one counsel for the placement or sales agent or underwriters as
a group in connection with such NASD registration, filing and review, (b) all
fees and expenses in connection with the qualification of the Securities for
offering and sale under the state securities and blue sky laws referred to in
Section 3(c)(xii) hereof and determination of their eligibility for investment
under the laws of such jurisdictions as any managing underwriters or the
Electing
Holders may reasonably designate, but not the fees and disbursements of counsel
for the Electing Holders or underwriters as a group in connection with such
qualification and determination, (c) all expenses relating to the preparation,
printing, production, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the expenses of preparing the Securities for delivery and the
expenses of printing or producing any required underwriting agreements,
agreements among underwriters, selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the offering,
sale or delivery of Securities to be disposed of (including certificates
representing the Securities), (d) messenger, telephone and delivery expenses
incurred by the Partnership, its counsel and auditors relating to the offering,
sale or delivery of Securities and the preparation of documents referred in
clause (c) above, (e) fees and expenses of the Trustee under the Indenture, any
agent of the Trustee and any counsel for the Trustee and of any collateral agent
or custodian, (f) internal expenses (including all salaries and expenses of the
Partnership's officers and employees performing legal or accounting duties), (g)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Partnership (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance),
(h) fees, disbursements and expenses of one counsel for the Electing Holders
retained in connection with a Shelf Registration, as selected by the Electing
Holders of at least a majority in aggregate principal amount of the Registrable
Securities held by Electing Holders (which counsel shall be reasonably
satisfactory to the Partnership), (i) any fees charged by securities rating
services for rating the Securities, and (j) fees, expenses and disbursements of
any other persons, including special experts, retained by the Partnership in
connection with such registration (collectively, the "Registration Expenses").
To the extent that any Registration Expenses are reasonably incurred, assumed or
paid by any holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof, the Partnership shall reimburse such person for
the full amount of the Registration Expenses so incurred, assumed or paid
promptly after receipt of a request therefor. Notwithstanding the foregoing, the
holders of the Registrable Securities being registered shall pay all agency fees
and commissions, transfer taxes, if any, and underwriting discounts and
commissions attributable to the sale of such Registrable Securities and the fees
and disbursements of any counsel or other advisors or experts retained by such
holders (severally or jointly), other than the counsel and experts specifically
referred to above.
Section 5. Indemnification
(a) Indemnification by the Partnership. The Partnership will indemnify and hold harmless each of the holders of Registrable Securities included in an Exchange Registration Statement, each of the Electing Holders of Registrable Securities included in a Shelf Registration Statement and each person who participates as a placement or sales agent or as an underwriter in any offering or sale of such Registrable Securities against any losses, claims, damages or liabilities, joint or several, to which such holder, agent or underwriter may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Exchange Registration Statement or Shelf Registration Statement, as the case may be, under which such Registrable Securities were registered under the Securities Act, or any preliminary, final or summary prospectus contained therein or furnished by the Partnership to any such holder, Electing Holder, agent or underwriter, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse such
holder, such Electing Holder, such agent and such underwriter for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Partnership shall not be liable to any such person in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement or amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Partnership by such person expressly for use therein; and, provided
further, that the Partnership shall not be liable to any such person, to the
extent that any such losses, claims, damages or liabilities arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact or
omission or alleged omission if either (A)(i) such person was required by law to
send or deliver, and failed to send or deliver, a copy of the prospectus with or
prior to delivery of written confirmation of the sale by such person to the
person asserting the claims from which such losses, claims, damages or
liabilities arise and (ii) the prospectus previously delivered by the
Partnership to such person would have corrected such untrue statement or alleged
untrue statement or omission or alleged omission, (B)(i) such untrue statement
or alleged untrue statement or omission or alleged omission is corrected in an
amendment to the prospectus and (ii) having been previously furnished by or on
behalf of the Partnership with copies of the prospectus as so amended or
supplemented, such person failed to send or deliver a copy of such amendment to
the prospectus with or prior to the delivery of written confirmation of the sale
of a Registrable Security to the person asserting the claim from which such
losses, claims, damages or liabilities arise or (C)(i) such person disposed of
Registrable Securities to the person asserting the claim from which such losses,
claims, damages or liabilities arise pursuant to an Exchange Registration
Statement or Shelf Registration Statement and sent or delivered, or was required
by law to send or deliver, a prospectus to such person in connection with such
disposition, (ii) such person received a suspension notice as provided in
Sections 3(b)(iii)(C) through (E) and 3(c)(viii)(C) through (E) hereof in
writing at least one Business Day prior to the date of such disposition and
(iii) such untrue statement or alleged untrue statement or omission or alleged
omission was the reason for such suspension notice.
(b) Indemnification by the Holders and any Agents and Underwriters. In the case of a Shelf Registration pursuant to Section 2(b) hereof, each Electing Holder and each underwriter who participates as an underwriter in any offering or sale of Registrable Securities, severally and not jointly, will (i) indemnify and hold harmless the Partnership, and all other holders of Registrable Securities, against any losses, claims, damages or liabilities to which the Partnership or such other holders of Registrable Securities may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in such registration statement, or any preliminary, final or summary prospectus contained therein or furnished by the Partnership to any such Electing Holder, agent or underwriter, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but 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 Partnership by such Electing Holder or underwriter expressly for use therein, and (ii) reimburse the Partnership for any legal or other expenses reasonably incurred by the Partnership in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that no such Electing Holder shall be required to undertake liability to any person under this Section 5(b) for any amounts in excess of the dollar amount of the proceeds to be received by such Electing Holder from the sale of such Electing Holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party under subsection (a) or (b) above of written notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party pursuant to the indemnification provisions of or contemplated by this Section 5, notify such indemnifying party in writing of the commencement of such action; but the omission so to notify the indemnifying party shall not relieve it from any liability that it may have to any indemnified party otherwise than under the indemnification provisions of or contemplated by Section 5(a) or 5(b) hereof. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions contemplated by Section 5(a) or Section 5(b) are unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or by such indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 5(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them 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 this Section 5(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages that such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 5(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of the Partnership under this Section 5 shall be in addition to any liability that the Partnership may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any such holder, Electing Holder, sales agent or underwriter participating in the sale of Registrable Securities within the meaning of the Securities Act; and the obligations of the Electing Holders and any agents or underwriters contemplated by this Section 5 shall be in addition to any liability that the respective Electing Holder, agent or underwriter may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Partnership, its general partner or the delegate of its general partner (including any person who, with his consent, is named in any registration statement as about to become a director of the Partnership, its general partner or the delegate of its general partner) and to each person, if any, who controls the Partnership, its general partner or the delegate of its general partner within the meaning of the Securities Act.
Section 6. Underwritten Offerings
(a) Selection of Underwriters. If any of the Registrable Securities covered by the Shelf Registration are to be sold pursuant to an underwritten offering, the managing underwriter or underwriters thereof shall be designated by Electing Holders holding at least a majority in aggregate principal amount of the Registrable Securities to be included in such offering, provided, that such designated managing underwriter or underwriters is or are reasonably acceptable to the Partnership.
(b) Participation by Holders. Each holder of Registrable Securities hereby agrees with each other such holder that no such holder may participate in any underwritten offering hereunder unless such holder (i) agrees to sell such holder's Registrable Securities on the basis provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.
Section 7. Rule 144
The Partnership covenants to the holders of Registrable Securities that to the extent it shall be required to do so under the Exchange Act, the Partnership shall timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Section 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities Act), all to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar or successor rule or regulation hereafter adopted by the Commission. Upon the request of any holder of Registrable Securities in connection with that holder's sale pursuant to Rule 144, the Partnership shall advise such holder in writing as to whether the Partnership has complied with such requirements.
Section 8. Miscellaneous
(a) No Inconsistent Agreements. The Partnership represents, warrants, covenants and agrees that, except pursuant to the Partnership Agreement relating to the Partnership and granted in connection with the acquisition of certain assets, it has not granted, and shall not grant, registration rights with respect to Registrable Securities or any other securities that would be inconsistent with the terms contained in this Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there would be no adequate remedy at law if the Partnership fails to perform any of its obligations hereunder and that the Purchaser and the holders from time to time of the Registrable Securities may be irreparably harmed by any such failure, and accordingly agree that the Purchaser and such holders, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to compel specific performance of the obligations of the Partnership under this Registration Rights Agreement in accordance with the terms and conditions of this Registration Rights Agreement, in any court of the United States or any state thereof having jurisdiction; provided, that, in the case of any terms of this Registration Rights Agreement for which Liquidated Damages pursuant to Section 2(c) hereof is expressly provided as a remedy of a violation of such terms, such Liquidated Damages shall be the sole monetary damages for such violation.
(c) Notices. All notices, requests, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand, if delivered personally or by courier, or three days after being deposited in the mail (registered or certified mail, postage prepaid, return receipt requested), or telecopied (when
receipt is acknowledged) as follows: if to the Partnership, One Allen Center, Suite 1000, 500 Dallas Street, Houston, Texas 77002, Attention: Park Shaper, telecopier number (713) 495-2782 (with a copy to the General Counsel), and, if to a holder, to the address of such holder set forth in the security register or other records of the Partnership, or to such other address as the Partnership or any such holder may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Registration Rights Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and the holders from time to time of the Registrable Securities and the respective successors and assigns of the parties hereto and such holders; provided, however, that nothing herein shall be deemed to permit any transfer of Registrable Securities in violation of this Agreement, the Indenture or applicable law. In the event that any transferee of any holder of Registrable Securities shall acquire Registrable Securities, in any manner, whether by gift, bequest, purchase, operation of law or otherwise, such transferee shall, without any further writing or action of any kind, be deemed a beneficiary hereof for all purposes and such Registrable Securities shall be held subject to all of the terms of this Registration Rights Agreement, and by taking and holding such Registrable Securities such transferee shall be entitled to receive the benefits of, and be conclusively deemed to have agreed to be bound by all of the applicable terms and provisions of this Registration Rights Agreement. If the Partnership shall so request, any such successor, assign or transferee shall agree in writing to acquire and hold the Registrable Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations, warranties and each other provision set forth in this Registration Rights Agreement or made pursuant hereto shall remain in full force and effect regardless of any investigation (or statement as to the results thereof) made by or on behalf of any holder of Registrable Securities, any director, officer or partner of such holder, any agent or underwriter or any director, officer or partner thereof, or any controlling person of any of the foregoing, and shall survive delivery of and payment for the Registrable Securities pursuant to the Purchase Agreement and the transfer and registration of Registrable Securities by such holder and the consummation of an Exchange Offer.
(f) Governing Law. This Registration Rights Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(g) Headings. The descriptive headings of the several Sections and paragraphs of this Registration Rights Agreement are inserted for convenience only, do not constitute a part of this Registration Rights Agreement and shall not affect in any way the meaning or interpretation of this Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Registration Rights Agreement and the other writings referred to herein (including the Indenture and the form of Securities) or delivered pursuant hereto that form a part hereof contain the entire understanding of the parties with respect to its subject matter. This Registration Rights Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter; provided, however, it is understood that the substantially similar Registration Rights Agreement, dated as of August 19, 2002, relating to the 7.30% Senior Notes due 2033 and 5.35% Senior Notes due 2007 issued on
such date is unaffected by this Registration Rights Agreement and shall remain in full force and effect with respect thereto. Such Registration Rights Agreement and this Registration Rights Agreement are intended to be interpreted in a consistent manner to facilitate the orderly implementation of the rights granted hereunder and thereunder with respect to the 7.30% Senior Notes due 2033. This Registration Rights Agreement may be amended and the observance of any term of this Registration Rights Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a written instrument duly executed by the Partnership and the holders of at least a majority in aggregate principal amount of the Registrable Securities at the time outstanding (except with respect to Section 2(c) hereof, which may be amended only with the consent of each holder of Registrable Securities at the time outstanding). Each holder of any Registrable Securities at the time or thereafter outstanding shall be bound by any amendment or waiver effected pursuant to this Section 8(h), whether or not any notice, writing or marking indicating such amendment or waiver appears on such Registrable Securities or is delivered to such holder.
(i) 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 provisions in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
(j) Counterparts. This agreement may be executed by the parties in counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and return to us four counterparts hereof, being one for the Partnership, one for the Purchaser and one for each counsel, and upon the acceptance hereof by you, this letter and such acceptance hereof shall constitute a binding agreement between the Purchaser and the Partnership.
Very truly yours,
KINDER MORGAN ENERGY PARTNERS, L.P.
By: Kinder Morgan G.P., Inc.,
its general partner
By: Kinder Morgan Management, LLC,
its delegate
By: /s/ Joseph Listengart
--------------------------------
Name: Joseph Listengart
Title: Vice President, General
Counsel and Secretary
|
Accepted as of the date hereof:
J.P. MORGAN SECURITIES INC.
By: /s/ Carl J. Mehldau Jr.
--------------------------
Name: Carl J. Mehldau Jr.
Title: Vice President
|
EXHIBIT A
KINDER MORGAN ENERGY PARTNERS, L.P.
INSTRUCTION TO DTC PARTICIPANTS
[DATE OF MAILING]
URGENT -- IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]*
The Depository Trust Company ("DTC") has identified you as a DTC Participant through which beneficial interests in the 7.30% Senior Notes due 2033 (the "Securities") of Kinder Morgan Energy Partners, L.P. (the "Partnership") are held.
The Partnership is in the process of registering the Securities under the Securities Act of 1933 for resale by the beneficial owners thereof. In order to have their Securities included in the registration statement, beneficial owners must complete and return the enclosed Notice of Registration Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the enclosed materials as soon as possible as their rights to have the Securities included in the registration statement depend upon their returning the Notice and Questionnaire by [Deadline For Response]. Please forward a copy of the enclosed documents to each beneficial owner that holds interests in the Securities through you. If you require more copies of the enclosed materials or have any questions pertaining to this matter, please contact Kinder Morgan Energy Partners, L.P., One Allen Center, Suite 1000, 500 Dallas Street, Houston, Texas 77002, Attention: General Counsel.
KINDER MORGAN ENERGY PARTNERS, L.P.
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITYHOLDER QUESTIONNAIRE
[DATE]
Reference is hereby made to the Registration Rights Agreement (the "Registration Rights Agreement") between Kinder Morgan Energy Partners, L.P. (the "Partnership"), and the Purchaser named therein. Pursuant to the Registration Rights Agreement, the Partnership has filed with the United States Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (the "Shelf Registration Statement") for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"), of the Partnership's 7.30% Senior Notes due 2033 (the "Securities"). A copy of the Registration Rights Agreement is attached hereto. All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled to have the Registrable Securities beneficially owned by it included in the Shelf Registration Statement. In order to have Registrable Securities included in the Shelf Registration Statement, this Notice of Registration Statement and Selling Securityholder Questionnaire (the "Notice and Questionnaire") must be completed, executed and delivered to the Partnership's counsel at the address set forth herein for receipt ON OR BEFORE [Deadline for Response]. Beneficial owners of Registrable Securities who do not complete, execute and return this Notice and Questionnaire by such date (i) will not be named as selling securityholders in the Shelf Registration Statement and (ii) may not use the prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in the Shelf Registration Statement and related prospectus. Accordingly, holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or not being named as a selling securityholder in the Shelf Registration Statement and related prospectus.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities hereby elects to include in the Shelf Registration Statement the Registrable Securities beneficially owned by it and listed below in Item (3). The undersigned, by signing and returning this Notice and Questionnaire, agrees to be bound with respect to such Registrable Securities by the terms and conditions of this Notice and Questionnaire and the Registration Rights Agreement, including, without limitation, Section 6 of the Registration Rights Agreement, as if the undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration Statement, the Selling Securityholder will be required to deliver to the Partnership and Trustee the Notice of Transfer set forth in Appendix A to the prospectus and as Exhibit B to the Registration Rights Agreement. The Selling Securityholder hereby provides the following information to the Partnership and represents and warrants that such information is accurate and complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same as (b) above) Through Which Registrable Securities Listed in Item (3) below are Held:
(2) Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
Title and CUSIP No(s). of such Registrable Securities:
(b) Principal amount of Securities other than Registrable
Securities beneficially owned:
Title and CUSIP No(s). of such other Securities:
(c) Principal amount of Registrable Securities that the undersigned wishes to be included in the Shelf Registration Statement:
(d) Title and CUSIP No(s). of such Registrable Securities to be included in the Shelf Registration Statement:
(4) Beneficial ownership of Other Securities of the Partnership:
Except as set forth below in this Item (4), the undersigned Selling Securityholder is not the beneficial or registered owner of any other securities of the Partnership, other than the Securities listed above in Item (3).
State any exceptions here:
(5) Relationships with the Partnership:
Except as set forth below, neither the Selling Securityholder nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Partnership (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, broker-dealers
or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholder may also
sell Registrable Securities short and deliver Registrable Securities to
close out such short positions, or loan or pledge Registrable
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands its obligation to comply, and agrees that it will comply, with the provisions of the Exchange Act and the rules and regulations thereunder, particularly Regulation M. In the event that the Selling Securityholder transfers all or any portion of the Registrable Securities listed in Item (3) above after the date on which such information is provided to the Partnership, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer of its rights and obligations under this Notice and Questionnaire and the Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through
(6) above and the inclusion of such information in the Shelf
Registration Statement and related prospectus. The Selling
Securityholder understands that such information will be relied upon by
the Partnership in connection with the preparation of the Shelf
Registration Statement and related prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(e) of the Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf
Registration Statement, the Selling Securityholder agrees to promptly
notify the Partnership of any inaccuracies or changes in the
information provided herein that may occur subsequent to the date
hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the
Registration Rights Agreement shall be made in writing, by hand-delivery, first-class mail or air courier guaranteeing overnight delivery as follows:
(i) To the Partnership: Park Shaper, Chief Financial Officer Kinder Morgan Energy Partners, L.P.
One Allen Center
500 Dallas Street, Suite 1000
Houston, Texas 77002
(ii) With a copy to: Gary Orloff Bracewell & Patterson, L.L.P.
South Tower Pennzoil Place
711 Louisiana, Suite 2900
Houston, Texas 77002-2718
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Partnership's counsel, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives and assigns of the
Partnership and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above). This Agreement shall be governed in all respects by the laws of the
State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.
Dated:
Selling Securityholder (Print/type full legal name of beneficial owner of Registrable Securities)
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE PARTNERSHIP'S COUNSEL AT:
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO
REGISTRATION STATEMENT
Kinder Morgan Energy Partners, L.P.
c/o Wachovia Bank, National Association
12 East 49th Street, 37th Floor
New York, NY 10017
Attention: Corporate Trust Department
Re: Kinder Morgan Energy Partners, L.P. (the "Partnership") 7.30% Senior Notes due 2033
Dear Sirs:
Please be advised that ________________ has transferred an aggregate of $_________ principal amount of the above-referenced 7.30% Senior Notes due 2033 pursuant to an effective Registration Statement on Form S-3 (File No. 333-________) filed by the Partnership.
We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933, as amended, have been satisfied and that the above-named beneficial owner of the Securities is named as a "Selling Holder" in the prospectus dated [date] or in supplements thereto, and that the aggregate principal amount of the Securities transferred are the Securities listed in such prospectus opposite such owner's name.
Dated:
Very truly yours,
(Name)
EXHIBIT 5
October 4, 2002
Kinder Morgan Energy Partners, L.P.
One Allen Center, Suite 1000
500 Dallas Street
Houston, Texas 77002
Ladies and Gentlemen:
We have acted as counsel to Kinder Morgan Energy Partners, L.P. (the "Partnership"), a Delaware limited partnership, in connection with the offers by the Partnership to exchange $1,000 principal amount of its 5.35% Senior Exchange Notes due 2007 and its 7.30% Senior Exchange Notes due 2033 (collectively, the "Exchange Notes") for each $1,000 principal amount, respectively, of its 5.35% Senior Notes due 2007 and its 7.30% Senior Notes due 2033 (collectively, the "Original Notes"), of which an aggregate of $250,000,000 and $500,000,000 principal amount, respectively, of Original Notes is outstanding (the "Exchange Offers"). The Partnership has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-4 with respect to the Exchange Offers (the "Registration Statement"), under the Securities Act of 1933, as amended (the "Securities Act").
We have examined originals or copies certified by officers of Kinder Morgan Management, LLC (the "Company"), the delegate of Kinder Morgan G.P., Inc., the general partner of the Partnership, of (a) the Indenture, dated as of August 19, 2002, by and between the Partnership and Wachovia Bank, National Association, as Trustee (the "Trustee"), as amended by the First Supplemental Indenture thereto, dated August 23, 2002 (the "Indenture"), pursuant to which the Original Notes were issued and the Exchange Notes will be issued, (b) the Certificate of Limited Partnership of the Partnership, (c) the Third Amended and Restated Agreement of the Partnership, as amended to date, (d) certified copies of certain resolutions adopted by the Board of Directors of the Company, and (e) such other documents and records as we have deemed necessary and relevant for the purposes hereof. In addition, we have relied on certificates of officers of the Company and of public officials and others as to certain matters of fact relating to this opinion and have made such investigations of law as we have deemed
Kinder Morgan Energy Partners, L.P.
October 4, 2002
necessary and relevant as a basis hereof. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents and records submitted to us as copies, the conformity to authentic original documents and records of all documents and records submitted to us as copies, and the truthfulness of all statements of fact contained therein. We have also assumed the due execution and delivery of the Indenture by a duly authorized officer of the Trustee.
Based on the foregoing, subject to the limitations, assumptions and qualifications set forth herein, and having due regard for such legal considerations as we deem relevant, we are of the opinion that:
1. the Partnership is a limited partnership, validly existing and in good standing under the laws of the State of Delaware; and
2. the Original Notes and the Exchange Notes have been validly authorized and issued, and (subject to the Registration Statement becoming effective, the Indenture being qualified under the Trust Indenture Act of 1939 and any state securities or Blue Sky laws being complied with) when (i) the Exchange Notes have been duly executed on behalf of the Partnership by duly authorized officers of the Company, (ii) the Exchange Notes have been duly authenticated by the Trustee under the Indenture, and (iii) the Original Notes have been validly tendered and not withdrawn and have been received and accepted by the Partnership, all in accordance with the terms of the Exchange Offers as set forth in the Registration Statement, the Exchange Notes issued in exchange for the Original Notes of each series in accordance with the terms of the Exchange Offer to which each series of Exchange Notes relate will be validly issued and legally binding obligations of the Partnership entitled to the benefits of the Indenture.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5 to the Registration Statement and to the references to our firm under the heading "Validity of the Exchange Notes" in the Prospectus included in the Registration Statement. By giving such consent, we do not admit that we are experts with respect to any part of the Registration Statement, including this Exhibit, within the meaning of the term "expert" as used in the Securities Act or the rules and regulations thereunder.
Very truly yours,
/s/ Bracewell & Patterson, L.L.P. Bracewell & Patterson, L.L.P. |
EXHIBIT 8
October 4, 2002
Kinder Morgan Energy Partners, L.P.
One Allen Center, Suite 1000
500 Dallas Street
Houston, Texas 77002
Ladies and Gentlemen:
We have acted as counsel to Kinder Morgan Energy Partners, L.P. (the "Partnership"), a Delaware limited partnership, in connection with the offers by the Partnership to exchange up to $250,000,000 aggregate principal amount of its 5.35% Exchange Senior Notes due 2007 (the "2007 Exchange Notes") for its 5.35% Senior Notes due 2007 (the "2007 Original Notes") and to exchange up to $500,000,000 aggregate principal amount of its 7.30% Exchange Senior Notes due 2033 (the "2033 Exchange Notes") for its 7.30% Senior Notes due 2033 (the "2033 Original Notes). The exchange offers are collectively referred to herein as the "Exchange Offers." The 2007 Exchange Notes and 2033 Exchange Notes and the 2007 Original Notes and 2033 Original Notes are referred to herein collectively as the "Notes." The Partnership has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-4 with respect to the Exchange Offers (the "Registration Statement"), under the Securities Act of 1933, as amended (the "Securities Act").
We have examined originals or copies of the Registration Statement and such other documents and records as we have deemed necessary and relevant for the purposes hereof. In addition, we have relied on certificates of officers of Kinder Morgan Management, LLC, the delegate of Kinder Morgan G.P., Inc., the general partner of the Partnership, and of public officials and others as to certain matters of fact relating to this opinion and have made such investigations of law as we have deemed necessary and relevant as a basis hereof. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents and records submitted to us as copies, the conformity to authentic original documents and records of all documents and records submitted to us as copies, and the truthfulness of all statements of fact contained therein.
On the basis of the foregoing and upon consideration of applicable law, we are of the opinion that, subject to the qualifications stated therein, the discussion as to the United States federal income tax matters set forth under the caption "Material Federal Income Tax Considerations" in the Prospectus contained in the Registration Statement summarizes the material United States federal income tax consequences relevant to the Exchange Offers and to the purchase, ownership and disposition of the Notes.
We hereby consent to the filing of this opinion with the Commission as Exhibit 8 to the Registration Statement and to the references to our firm under the heading "Material Federal Income Tax Considerations" in the Prospectus included in the Registration Statement. By giving such consent, we do not admit that we are experts with respect to any part of the Registration Statement, including this Exhibit, within the meaning of the term "expert" as used in the Securities Act or the rules and regulations thereunder.
Very truly yours,
/s/ Bracewell & Patterson, L.L.P. Bracewell & Patterson, L.L.P. |
EXHIBIT 12
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The historical ratios of earnings to fixed charges of Kinder Morgan Energy Partners, L.P. and our consolidated subsidiaries for the periods indicated are as follows:
SIX MONTHS YEAR ENDED DECEMBER 31,
ENDED ----------------------------------------------------
JUNE 30, 2002 2001 2000 1999 1998 1997
------------- -------- -------- -------- -------- --------
(Dollars in Thousands)
Earnings:
Pre-tax Income from Continuing Operations
Before Extraordinary Item and Before
Adjustment For Minority Interest(1) and
Equity Earnings per Statement of Income $255,702 $394,333 $236,861 $158,950 $ 94,042 $11,452
Add:
Fixed Charges 86,980 179,708 100,120 56,747 42,728 12,710
Amortization of capitalized interest 231 201 131 76 34
Distributed Income of Equity Investees 37,259 68,832 47,512 33,686 19,670 9,588
Less:
Interest Capitalized from Continuing Operations 2,697 3,134 2,506 1,887 1,500 27
-------- -------- -------- -------- -------- -------
Earnings as Adjusted $377,475 $639,940 $382,118 $247,572 $154,974 $33,723
-------- -------- -------- -------- -------- -------
Fixed Charges:
Interest and Debt Expense, Net per Statements
of Income (Includes Amortization of Debt
Discount, Premium and Expense) $ 83,773 $175,930 $ 97,102 $ 54,336 $ 40,856 $12,605
Add:
Interest Capitalized from Continuing Operations 2,697 3,134 2,506 1,887 1,500 27
Portion of Rents Representative of
the Interest Factor 510 644 512 524 372 78
-------- -------- -------- -------- -------- -------
Fixed Charges $ 86,980 $179,708 $100,120 $ 56,747 $ 42,728 $12,710
-------- -------- -------- -------- -------- -------
Ratio of Earnings to Fixed Charges 4.34 3.56 3.82 4.36 3.63 2.65
======== ======== ======== ======== ======== =======
|
(1) Assumes $750,000 incremental debt at 6.65% and retirement of (i) $743,011 at 2.1% (commercial paper outstanding at 6/30/02).
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-4 of Kinder Morgan Energy Partners, L.P. of our report dated February 15, 2002 relating to the financial statements and financial statement schedule, which appear in Kinder Morgan Energy Partners, L.P.'s Annual Report on Form 10-K for the year ended December 31, 2001. We also consent to the reference to us under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP Houston, Texas October 4, 2002 |
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-4 of Kinder Morgan Energy Partners, L.P. of our report dated February 15, 2002 relating to the balance sheet of Kinder Morgan G.P., Inc., which appears in the Current Report on Form 8-K of Kinder Morgan Energy Partners, L.P. dated March 11, 2002. We also consent to the reference to us under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP Houston, Texas October 4, 2002 |
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of Kinder Morgan Management, LLC, a Delaware limited liability company and the delegate of Kinder Morgan G.P., Inc., a Delaware corporation, which is the general partner of Kinder Morgan Energy Partners, L.P., a Delaware limited partnership (the "Partnership"), hereby constitutes and appoints Joseph Listengart and C. Park Shaper, and each of them (with full power to each of them to act alone), the undersigned's true and lawful attorney-in-fact and agent, for the undersigned and on the undersigned's behalf and in the undersigned's name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission the Partnership's Registration Statement on Form S-4 (or other appropriate form), together with all amendments thereto, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as the undersigned might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of attorney this 30th day of September, 2002.
/s/ William V. Morgan ----------------------------------- William V. Morgan |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of Kinder Morgan Management, LLC, a Delaware limited liability company and the delegate of Kinder Morgan G.P., Inc., a Delaware corporation, which is the general partner of Kinder Morgan Energy Partners, L.P., a Delaware limited partnership (the "Partnership"), hereby constitutes and appoints Joseph Listengart and C. Park Shaper, and each of them (with full power to each of them to act alone), the undersigned's true and lawful attorney-in-fact and agent, for the undersigned and on the undersigned's behalf and in the undersigned's name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission the Partnership's Registration Statement on Form S-4 (or other appropriate form), together with all amendments thereto, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as the undersigned might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of attorney this 30th day of September, 2002.
/s/ Gary L. Hultquist ----------------------------------- Gary L. Hultquist |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of Kinder Morgan Management, LLC, a Delaware limited liability company and the delegate of Kinder Morgan G.P., Inc., a Delaware corporation, which is the general partner of Kinder Morgan Energy Partners, L.P., a Delaware limited partnership (the "Partnership"), hereby constitutes and appoints Joseph Listengart and C. Park Shaper, and each of them (with full power to each of them to act alone), the undersigned's true and lawful attorney-in-fact and agent, for the undersigned and on the undersigned's behalf and in the undersigned's name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission the Partnership's Registration Statement on Form S-4 (or other appropriate form), together with all amendments thereto, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as the undersigned might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of attorney this 30th day of September, 2002.
/s/ Perry M. Waughtal ----------------------------------- Perry M. Waughtal |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer or director of Kinder Morgan Management, LLC, a Delaware limited liability company and the delegate of Kinder Morgan G.P., Inc., a Delaware corporation, which is the general partner of Kinder Morgan Energy Partners, L.P., a Delaware limited partnership (the "Partnership"), hereby constitutes and appoints Joseph Listengart and C. Park Shaper, and each of them (with full power to each of them to act alone), the undersigned's true and lawful attorney-in-fact and agent, for the undersigned and on the undersigned's behalf and in the undersigned's name, place and stead, in any and all capacities, to sign, execute and file with the Securities and Exchange Commission the Partnership's Registration Statement on Form S-4 (or other appropriate form), together with all amendments thereto, with all exhibits and any and all documents required to be filed with respect thereto with any regulatory authority, granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as the undersigned might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, may lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has hereto signed this power of attorney this 30th day of September, 2002.
/s/ Edward O. Gaylord ----------------------------------- Edward O. Gaylord |
EXHIBIT 25
Registration No. 333-___
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)
Wachovia Bank, National Association
(Exact name of trustee as specified in its charter)
United States of America
(Jurisdiction of incorporation or organization if not a U.S. national bank)
22-1147033
(I.R.S. Employer Identification Number)
One Wachovia Center
301 South College Street
Charlotte, North Carolina
(Address of principal executive offices)
28288
(Zip code)
R. Douglas Milner
Wachovia Bank, National Association
5847 San Felipe, Suite 1050
Houston, Texas 77057
(713)278-4321
(Name, address and telephone number of agent for service)
Kinder Morgan Energy Partners, L.P.
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
76-0380342
(I.R.S. Employer Identification No.)
One Allen Center, Suite 1000
500 Dallas Street
Houston, Texas
(Address of principal executive offices)
77002
(Zip code)
5.35% Senior Notes due 2007
7.30% Senior Notes due 2033
(Title of the indenture securities)
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.
NAME ADDRESS
Board of Governors of the Federal Washington, D.C.
Reserve System
Comptroller of the Currency Washington, D.C.
Federal Deposit Insurance Washington, D.C.
Corporation
|
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 1 on page 6.)
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
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.
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.
Item 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS. If the trustee or any of the directors or executive officers of
the trustee is a director, officer,
partner, employee, appointee, or representative of the obligor of any underwriter for the obligor, identify each such person having any such connection and state the nature of each such connection.
Not Applicable - see answer 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.
COL. D
COL. C PERCENTAGE OF VOTING SECURITIES
COL. A COL. B AMOUNT OWNED REPRESENTED BY AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
|
Not Applicable - see answer to Item 13.
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:
COL. D
COL. C PERCENTAGE OF VOTING SECURITIES
COL. A COL. B AMOUNT OWNED REPRESENTED BY AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
|
Not Applicable - see answer to Item 13.
Item 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE. Furnish the
following information as to securities of the obligor owned beneficially or held
as collateral security for obligations in default by the trustee:
COL. C
AMOUNT OWNED COL. D
COL. B BENEFICIALLY OR PERCENT OF CLASS
WHETHER THE SECURITIES HELD AS COLLATERAL REPRESENTED BY
COL. A ARE VOTING OR SECURITY FOR AMOUNT GIVEN
TITLE OF CLASS NONVOTING SECURITIES OBLIGATIONS IN DEFAULT IN COL. C
|
Not Applicable - see answer to Item 13.
Item 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE. If the trustee
owns beneficially or hold 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:
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
|
Not Applicable - see answer 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 percent 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:
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
|
Not Applicable - see answer to Item 13.
Item 11. Ownership or holdings by the trustee of any securities of a person
owning 50 percent 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
percent or more of the voting securities of the obligor, furnish the following
information as to each class of securities of such person any of which are so
owned or held by the trustee:
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
|
Not Applicable - See answer to Item 13.
COL. A COL. B COL. C NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE |
Not Applicable - See answer 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.
None.
b. 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, 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.
None.
Item 14. AFFILIATIONS WITH THE UNDERWRITERS. If any underwriter is an affiliate
of the trustee, describe each such affiliation.
Not Applicable.
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 a part of this
statement of eligibility.
1. Articles of Association of Wachovia Bank, National Association as now in effect.*
2. Certificate of Authority of the trustee to commence business.*
3. Copy of the authorization of the trustee to exercise corporate trust powers.*
4. Existing bylaws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
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.
* Previously filed with the Securities and Exchange Commission as an Exhibit to Form T-1 in connection with Registration Statement Number 033-54465 incorporated herein by reference.
** This report is available over the Internet at the website of the Federal Deposit Insurance Corporation and this report as therein contained is incorporated herein by reference. This website is located at http://www3.fdic.gov/idasp/main.asp. ONCE AT THAT ADDRESS, TYPE IN "WACHOVIA CORPORATION" AT THE FIELD ENTITLED "INSTITUTION NAME" THEN CLICK ON THE "FIND" FIELD ABOVE WHERE THE NAME OF THE BANK HAS BEEN TYPED IN THEN CLICK ON THE CERTIFICATE NUMBER FOR WACHOVIA CORPORATION (1073551) THEN CLICK ON THE "GENERATE REPORT" FIELD.
NOTES:
Note 1: The trustee is a subsidiary of Wachovia Corporation, a bank
holding company; all of the voting securities of the trustee are held by
Wachovia Corporation.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, Wachovia 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 duly authorized, all in the city of Houston , and State of Texas , on the 20th day of September , 2002.
WACHOVIA BANK, NATIONAL ASSOCIATION
(Trustee)
By: /s/ R. Douglas Milner
------------------------------------
R. Douglas Milner, Vice President
(Name and Title)
|
EXHIBIT 6
Wachovia Bank, National Association, pursuant to the requirements of
Section 321(b) of the Trust Indenture Act of 1939, as amended (the "Act") in
connection with the proposed issuance by Kinder Morgan Energy Partners 5.35%
Senior Notes due 2007 and Kinder Morgan Energy Partners 7.30% Senior Notes due
2033, consents that reports of examination by federal, state, territorial, or
district authorities may be furnished by such authorities to the Securities and
Exchange Commission upon request therefor, as contemplated by Section 321(b) of
the Act.
Dated: September 20, 2002
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ R. Douglas Milner
-------------------------------------
R. Douglas Milner, Vice President
|