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Exhibit 4.8
DECLARATION OF TRUST
OF
K N CAPITAL TRUST III
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 hereby shall be known as "K N Capital
Trust III" (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 and substantially
in the form to be included as an exhibit to the 1933 Registration Statement (as
herein defined), or in such other form as the parties thereto may approve, 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, (ii) to file with the Securities and Exchange Commission (the
"Commission") and to execute, in the case of the 1933 Act Registration Statement
and 1934 Act Registration Statement (as herein defined), on behalf of the Trust,
(a) a Registration Statement (the "1933 Act Registration Statement"), including
all pre-effective or post-effective amendments thereto, relating to the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of
the Preferred Securities of the Trust, (b) any preliminary prospectus or
prospectus or supplement thereto relating to the Preferred Securities required
to be filed pursuant to the 1933 Act, and (c) a Registration Statement on Form
8-A or other appropriate form (the "1934 Act Registration Statement"), including
all pre-effective and post-effective amendments thereto, relating to the
registration of the Preferred Securities of the Trust under the Securities
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Act of 1934, as amended; (ii) to file with the New York Stock Exchange or other
exchange, or the National Association of Securities Dealers ("NASD"), and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
Stock Exchange or such other exchange, or the NASD's Nasdaq National Market;
(iii) 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 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; (iv) to execute and deliver letters or documents to, or
instruments for filing with, a depositary relating to the Preferred Securities
of the Trust; and (v) to execute, deliver and perform on behalf of the Trust an
underwriting agreement with one or more underwriters relating to the offering 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 Commission, the New York Stock
Exchange or other exchange, NASD, 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, the New York
Stock Exchange or other exchange, NASD, 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, 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
Name: Xxxxxx X. Xxxxxx
Title: Vice President &
General Counsel
WILMINGTON TRUST COMPANY.
not in its individual capacity
but solely as trustee of the Trust
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
