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Exhibit 4.8
DECLARATION OF TRUST
OF
K N CAPITAL TRUST II
THIS DECLARATION OF TRUST is made as of January 15, 1998 (this
"Declaration of Trust"), by and between K N Energy, Inc., a Kansas corporation,
as sponsor (the "Sponsor"), and Wilmington Trust Company, a Delaware banking
corporation, as trustee (the "Trustee"). The Sponsor and the Trustee hereby
agree as follows:
1. The trust created shall be known as "K N Capital Trust II" (the
"Trust"), in which name the Trustee or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate. It
is the intention of the parties hereto that the Trust created hereby constitute
a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
section 3801, et seq. (the "Business Trust Act"), and that this document
constitute the governing instrument of the Trust. The Trustee is hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in such form as the Trustee may approve.
3. The Sponsor and the Trustee will enter into an amended and restated
Declaration of Trust satisfactory to each such party to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities referred to therein. Prior to the execution and delivery of
such amended and restated Declaration of Trust, the Trustee shall not have any
duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustee may take
all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in its
discretion (i) to prepare one or more offering memoranda in preliminary and
final form relating to the offering and sale of Preferred Securities of the
Trust in a transaction exempt from the registration requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and such forms or filings
as may be required by the 1933 Act, the Securities Exchange Act of 1934, as
amended, or the Trust Indenture Act of 1939, as amended, in each case relating
to the Preferred Securities of the Trust; (ii) to file and execute on behalf of
the Trust, such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
that shall be necessary or desirable to register or establish the exemption from
registration of the Preferred Securities of the Trust under the securities or
"Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust,
may deem necessary or desirable; (iii) to execute and file an application, and
all other applications, statements, certificates, agreements and other
instruments that shall be necessary or desirable, to the Private Offerings,
Resales and Trading through Automated Linkages ("PORTAL") Market; (iv) to
execute and deliver letters or
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documents to, or instruments for filing with, a depository relating to the
Preferred Securities of the Trust; and (v) to execute, deliver and perform on
behalf of the Trust one or more purchase agreements, dealer/manager agreements,
escrow agreements, registration rights agreements and other related agreements
providing for or relating to the sale of the Preferred Securities of the Trust.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Securities and Exchange Commission (the
"Commission"), PORTAL or state securities or "Blue Sky" laws to be executed on
behalf of the Trust by the Trustee, the Trustee, in its capacity as trustee of
the Trust, is hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustee, in its capacity as trustee of the Trust, shall not be required to join
in any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, PORTAL or state
securities or "Blue Sky" laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Sponsor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
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IN WITNESS WHEREOF, of the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
K N ENERGY, INC.,
as Sponsor
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and
General Counsel
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as trustee of the Trust
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
