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EXHIBIT 99.3
FORM OF EXCHANGE AGENCY AGREEMENT
, 1997
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Wilmington Trust Company
0000 X. Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
K N Energy, Inc., a Kansas corporation, as Sponsor (the
"Corporation"), and K N Capital Trust I, a Delaware statutory business trust
(the "Trust"), hereby appoint Wilmington Trust Company ("Wilmington Trust") to
act as exchange agent (the "Exchange Agent") in connection with an exchange
offer by the Corporation and the Trust to exchange up to $100,000,000 aggregate
Liquidation Amount of the Trust's 8.56% Series B Capital Trust Pass-through
SecuritiesSM (the "Exchange Capital Securities"), which have been registered
under the Securities Act of 1933, as amended (the "Securities Act"), for a like
aggregate Liquidation Amount of the Trust's 8.56% Series A Capital Trust
Pass-through SecuritiesSM (the "Old Capital Securities" and together with the
Exchange Capital Securities, the "Capital Securities"). The terms and
conditions of the exchange offer are set forth in a Prospectus dated
______________, 1997 (as the same may be amended or supplemented from time to
time, the "Prospectus") and in the related Letter of Transmittal, which
together constitute the "Exchange Offer." The registered holders of the Old
Capital Securities or the Exchange Capital Securities, as applicable, are
hereinafter referred to as "Holders." Capitalized terms used herein and not
defined shall have the respective meanings described thereto in the Prospectus.
On the basis of the representations, warranties and agreements of the
Corporation, the Trust and Wilmington Trust contained herein and subject to the
terms and conditions hereof, the following sets forth the agreement among the
Corporation, the Trust and Wilmington Trust as Exchange Agent with respect to
the Exchange Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
a. The Corporation and the Trust hereby appoint Wilmington Trust
to act as Exchange Agent in connection with the Exchange Offer and Wilmington
Trust agrees to act as Exchange Agent in connection with the Exchange Offer.
As Exchange Agent, Wilmington Trust will perform those services as are outlined
herein, including, but not limited to, accepting tenders of Old Capital
Securities and communicating generally regarding the Exchange Offer with
brokers, dealers, commercial banks, trust companies and other persons,
including Holders of the Old Capital Securities.
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b. The Corporation and the Trust acknowledge and agree that
Wilmington Trust has been retained pursuant to this Agreement to act solely as
Exchange Agent in connection with the Exchange Offer, and in such capacity
Wilmington Trust shall perform such duties in good faith as are outlined
herein.
c. Wilmington Trust will examine each of the Letters of
Transmittal and certificates for Old Capital Securities and any other documents
delivered or mailed to Wilmington Trust by or for Holders of the Old Capital
Securities, and any Book-Entry Confirmations (as defined in the Prospectus)
received by Wilmington Trust with respect to the Old Capital Securities, to
ascertain whether: (i) the Letters of Transmittal and such other documents are
duly executed and properly completed in accordance with the instructions set
forth therein and that such Book-Entry Confirmations are in due and proper form
and contain the information required to be set forth therein, (ii) the Old
Capital Securities have otherwise been properly tendered, (iii) Old Capital
Securities tendered in part are tendered in Liquidation Amounts of $100,000
(100 Capital Securities) and integral multiples of $1,000 in excess thereof and
that if any Old Capital Securities are tendered for exchange in part, the
untendered Liquidation Amount thereof is $100,000 (100 Capital Securities) or
any integral multiple of $1,000 in excess thereof, and (iv) Holders have
provided their correct Tax Identification Number and required certification.
Determination of all questions as to validity, form, eligibility and acceptance
for exchange of any Old Capital Securities shall be made by the Corporation or
the Trust, whose determination shall be final and binding. In each case where
the Letters of Transmittal or any other document has been improperly completed
or executed or where a Book-Entry Confirmation is not in due and proper form or
omits certain information, or any certificate for Old Capital Securities is not
in proper form for transfer or some other irregularity or deficiency in
connection with the tender or acceptance of the Old Capital Securities exists,
Wilmington Trust will endeavor to advise the tendering Holder of Old Capital
Securities of the irregularity or the deficiency in the tender and to take any
other action as the Corporation or the Trust may request to cause such
irregularity or deficiency to be corrected. Notwithstanding the above,
Wilmington Trust shall not be under any duty to give any notification of any
irregularities or deficiency in tenders or incur any liability for failure to
give any such notification.
d. With the approval of the President, any Vice President or the
Treasurer or any Assistant Treasurer of the Corporation (such approval, if
given orally, to be confirmed in writing), Wilmington Trust is authorized to
waive any irregularities or other deficiency in connection with any tender of
Old Capital Securities pursuant to the Exchange Offer.
e. Tenders of Old Capital Securities may be made only as set
forth in the Letters of Transmittal and in the section of the Prospectus
captioned "The Exchange Offer" and Old Capital Securities shall be considered
properly tendered only when tendered in accordance with the procedures set
forth therein.
f. Wilmington Trust shall advise the Corporation and the Trust of
the aggregate Liquidation Amount of Old Capital Securities received by it as
soon as possible after 5:00 p.m., New York City time, on the Expiration Date
and accept the Corporation's or the Trust's instructions with respect to the
disposition of such Old Capital Securities.
g. Wilmington Trust shall deliver certificates for Old Capital
Securities tendered in part to the transfer agent for split-up and shall return
any untendered Old Capital Securities and all Old Capital Securities which have
not been accepted by the Corporation and the Trust to the Holders thereof
promptly after the expiration or termination of the Exchange Offer.
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h. Upon acceptance by the Corporation and the Trust of any Old
Capital Securities duly tendered pursuant to the Exchange Offer (such
acceptance, if given orally, to be confirmed in writing), the Corporation and
the Trust will cause Exchange Capital Securities in exchange therefor to be
issued as promptly as possible and Wilmington Trust will deliver such Exchange
Capital Securities on behalf of the Corporation and the Trust at the rate of
$100,000 (100 Capital Securities) Liquidation Amount of Exchange Capital
Securities for each $100,000 Liquidation Amount of Old Capital Securities
tendered as promptly as possible after acceptance by the Corporation and the
Trust of the Old Capital Securities for exchange and notice (such notice, if
given orally, to be confirmed in writing) of such acceptance by the Corporation
and the Trust. Unless otherwise instructed by the Corporation or the Trust,
Wilmington Trust shall issue Exchange Capital Securities only in denominations
of $100,000 (100 Capital Securities) Liquidation Amount or any integral
multiple of $1,000 in excess thereof.
i. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and the conditions set forth in the Prospectus and
the Letter of Transmittal, Old Capital Securities tendered pursuant to the
Exchange Offer may be withdrawn at any time prior to 5:00 p.m., New York City
time, on the Expiration Date in accordance with the terms of the Exchange
Offer.
j. Notice of any decision by the Corporation and the Trust not to
exchange any Old Capital Securities tendered shall be given by the Corporation
or the Trust to Wilmington Trust either orally (if given orally, to be
confirmed in writing) or in a written notice.
k. If, pursuant to the Exchange Offer, the Corporation and the
Trust do not accept for exchange all or part of the Old Capital Securities
tendered because of an invalid tender, the occurrence of certain other events
set forth in the Prospectus under the caption "The Exchange Offer -- Conditions
to the Exchange Offer" or otherwise, Wilmington Trust shall, upon notice from
the Corporation and the Trust (such notice, if given orally, to be confirmed in
writing), promptly after the expiration or termination of the Exchange Offer
return the certificates for unaccepted Old Capital Securities (or effect
appropriate book - entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in
Wilmington Trust's possession, to the persons who deposited such certificates.
l. Certificates, if issued in definitive form, for reissued Old
Capital Securities, unaccepted Old Capital Securities or Exchange Capital
Securities shall be forwarded (a) by first-class certified mail, return receipt
requested, under a blanket surety bond obtained by Wilmington Trust protecting
Wilmington Trust, the Corporation and the Trust from loss or liability arising
out of the non-receipt or non-delivery of such certificates or (b) by
registered mail insured by Wilmington Trust separately for the replacement
value of each such certificate.
m. Wilmington Trust is not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, commercial
bank, trust company or other nominee or to engage or use any person to solicit
tenders.
n. As Exchange Agent, Wilmington Trust:
(i) shall have no duties or obligations other
than those specifically set forth herein or as may be subsequently
agreed to in writing;
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(ii) will make no representations and will have no
responsibilities as to the validity, value or genuineness of any of
the certificates for the Old Capital Securities deposited pursuant to
the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the
Exchange Offer;
(iii) shall not be obligated to take any legal
action hereunder which might in Wilmington Trust's reasonable judgment
involve any expense or liability, unless Wilmington Trust shall have
been furnished with indemnity satisfactory to it and additional fees
for the taking of such action;
(iv) may conclusively rely on and shall be
protected in acting in reliance upon any certificate, instrument,
opinion, notice, letter, telegram or other document or security
delivered to Wilmington Trust and reasonably believed by Wilmington
Trust to be genuine and to have been signed by the proper party or
parties;
(v) may conclusively act upon any tender,
statement, request, comment, agreement or other instrument whatsoever
(not only as to the due execution and validity and effectiveness of
its provisions, but also as to the truth and accuracy of any
information contained therein) which Wilmington Trust believes in good
faith to be genuine and to have been signed or made by a proper person
or persons;
(vi) may conclusively rely on and shall be fully
protected in acting upon written or oral instructions from the
President, any Vice President, the Treasurer or any Assistant
Treasurer of the Corporation (such instruction, if given orally, to be
confirmed in writing);
(vii) may consult with its own counsel with respect
to any questions relating to Wilmington Trust's duties and
responsibilities and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by Wilmington Trust hereunder in good
faith and in accordance with the advice of such counsel;
(viii) shall not advise any person tendering Old
Capital Securities pursuant to the Exchange Offer as to whether to
tender or refrain from tendering all or any portion of its Old Capital
Securities or as to the market value, decline or appreciation in
market value of any Old Capital Securities that may or may not occur
as a result of the Exchange Offer or as to the market value of the
Exchange Capital Securities; and
(ix) shall take such action as may from time to
time be requested by the Corporation or the Trust to furnish copies of
the Prospectus, the Letter of Transmittal, the Notice of Guaranteed
Delivery or such other forms as may be approved from time to time by
the Corporation and the Trust to all persons requesting such documents
and to accept and comply with telephone requests for information
relating to the Exchange Offer. The Corporation and the Trust will
furnish Wilmington Trust with copies of such documents at its request,
and Wilmington Trust will furnish from its own inventory the
Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
o. Wilmington Trust shall advise orally and promptly thereafter
confirm in writing to the Corporation and the Trust and such other person or
persons as the Corporation and the Trust may
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request, daily (and more frequently during the week immediately preceding the
Expiration Date and if otherwise reasonably requested) up to and including the
Expiration Date, the aggregate Liquidation Amount of Old Capital Securities
which have been tendered pursuant to the terms of the Exchange Offer and the
items received by Wilmington Trust pursuant to the Exchange Offer and this
Agreement. In addition, Wilmington Trust will also provide, and cooperate in
making available to the Corporation and the Trust or any such other person or
persons as the Corporation and the Trust may request from time to time, such
other information in its possession as the Corporation, the Trust or any such
other person or persons as the Corporation and the Trust may designate may
reasonably request (such request if made orally, to be confirmed in writing).
Such cooperation shall include, without limitation, the granting by Wilmington
Trust to the Corporation and the Trust, and such person or persons as the
Corporation and the Trust may request, access to those persons on Wilmington
Trust's staff who are responsible for receiving tenders, in order to ensure
that immediately prior to the Expiration Date the Corporation and the Trust
shall have received adequate information in sufficient detail to enable the
Corporation and the Trust to decide whether to extend the Exchange Offer.
Wilmington Trust shall prepare a final list of all persons whose tenders were
accepted, the aggregate Liquidation Amount of Old Capital Securities tendered
and the aggregate Liquidation Amount of Old Capital Securities accepted and
deliver said list to the Corporation and the Trust.
p. Letters of Transmittal, Book-Entry Confirmations and Notices
of Guaranteed Delivery shall be stamped by Wilmington Trust as to the date and
the time of receipt thereof and shall be preserved by Wilmington Trust for a
period of time at least equal to the period of time Wilmington Trust preserves
other records pertaining to the transfer of securities, or one year, whichever
is longer, and thereafter shall be delivered by Wilmington Trust to the
Corporation and the Trust. Wilmington Trust shall dispose of unused Letters of
Transmittal and other surplus materials by returning them to the Corporation or
the Trust.
2. COMPENSATION.
A fee of $3,000.00 will be payable by the Corporation to Wilmington
Trust in its capacity as Exchange Agent; provided, however, that Wilmington
Trust reserves the right to receive reimbursement from the Corporation for any
reasonable out-of-pocket expenses incurred as Exchange Agent in performing the
services described herein. The obligations of the Corporation hereunder shall
survive the termination of this Agreement.
3. INDEMNIFICATION.
a. The Corporation and the Trust hereby agree to protect, defend,
indemnify and hold harmless Wilmington Trust and its officers, directors,
employees and agents from and against any and all costs, losses, liabilities,
expenses (including reasonable counsel fees and disbursements) and claims
imposed upon or asserted against Wilmington Trust on account of any action
taken or omitted to be taken by Wilmington Trust in connection with its
acceptance of or performance of its duties under this Agreement and the
documents related hereto and to reimburse Wilmington Trust upon demand for the
reasonable costs and expenses of defending itself against any claim or
liability arising out of or relating to this Agreement and the documents
related hereto. This indemnification shall survive the release, discharge,
termination and/or satisfaction of this Agreement. Anything in this Agreement
to the contrary notwithstanding, neither the Corporation nor the Trust shall be
liable for indemnification or otherwise for any loss, liability, cost or
expense to the extent arising out of Wilmington Trust's bad faith, gross
negligence or willful misconduct. In no case shall the
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Corporation or the Trust be liable under this indemnification agreement with
respect to any claim against Wilmington Trust until the Corporation and the
Trust shall be notified by Wilmington Trust, by letter of the written assertion
of a claim against Wilmington Trust or of any other action commenced against
Wilmington Trust. Such notice shall be delivered promptly after Wilmington
Trust shall have received any such written assertion or shall have been served
with a summons in connection therewith, provided, that, Wilmington Trust's
failure to give such notice shall not excuse the Corporation or the Trust from
its obligations hereunder (except to the extent the Corporation or the Trust is
prejudiced by such delay). The Corporation and the Trust shall be entitled to
participate at their own expense in the defense of any such claim or other
action, and, if the Corporation and the Trust so elect, the Corporation and the
Trust may assume the defense of any pending or threatened action against
Wilmington Trust in respect of which indemnification may be sought hereunder
with counsel reasonably acceptable to Wilmington Trust, in which case the
Corporation and the Trust shall not thereafter be responsible for the fees and
disbursements of legal counsel for Wilmington Trust under this paragraph;
provided, however, that the Corporation and the Trust shall not be entitled to
assume the defense of any such action if the named parties to such action
include the Corporation or the Trust and Wilmington Trust and representation of
the parties by the same legal counsel would, in the written opinion of counsel
for Wilmington Trust, be inappropriate due to actual or potential conflicting
interests between them. It is understood that the Corporation and the Trust
shall not be liable under this paragraph for the fees and disbursements of more
than one legal counsel for Wilmington Trust. In the event that the Corporation
and the Trust shall assume the defense of any such suit with counsel reasonably
acceptable to Wilmington Trust, neither the Corporation nor the Trust shall
thereafter be liable for the fees and expenses of any counsel retained by
Wilmington Trust subsequent to such assumption of defense by the Corporation or
the Trust.
b. Wilmington Trust agrees that, without the prior written
consent of the Corporation and the Trust (which consent shall not be
unreasonably withheld), it will not settle, compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding in
respect of which indemnification could be sought in accordance with the
indemnification provisions of this Agreement (whether or not Wilmington Trust,
the Corporation, the Trust or any of their respective directors, officers and
controlling persons is an actual or potential party to such claim, action or
proceeding).
c. The Corporation agrees to indemnify and hold harmless the
Trust from and against any and all losses, claims, damages and liabilities
whatsoever, which are due from the Trust under this Section.
4. TAX INFORMATION.
The Corporation and the Trust shall arrange to comply with all
requirements under the tax laws of the United States, including those relating
to missing Tax Identification Numbers, and shall file any appropriate reports
with the Internal Revenue Service. The Corporation and the Trust understand
that they are required, in certain instances, to deduct 31% with respect to
Distributions paid on the Exchange Capital Securities and proceeds from the
sale, exchange, redemption or retirement of the Exchange Capital Securities
from Holders of Exchange Capital Securities who have not supplied their
Taxpayer Identification Number or required certification. Such funds will be
turned over to the Internal Revenue Service. Wilmington Trust shall notify the
Corporation and the Trust of any Holder of Exchange Capital Securities who has
failed to supply such Taxpayer Identification Number or certification.
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5. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware applicable to contracts executed in and to be
performed in that State.
6. NOTICES.
Except as otherwise provided herein, any communication or notice
provided for hereunder shall be in writing and shall be given (and shall be
deemed to have been given upon receipt) by delivery in person, facsimile or
overnight delivery or by registered or certified mail (postage prepaid, return
receipt requested) to the applicable party at the addresses indicated below:
If to the Corporation:
K N Energy, Inc.
000 Xxx Xxxxxx Xxxxxx
P.O. Box 281304
Lakewood, Colorado 80228-8304
Attention: Chief Financial Officer
Fax No.: (000) 000-0000
If to the Trust:
K N Capital Trust I
c/o K N Energy, Inc.
000 Xxx Xxxxxx Xxxxxx
P.O. Box 281304
Lakewood, Colorado 80228-8304
Attention: Chief Financial Officer
Fax No.: (000) 000-0000
If to Wilmington Trust Company:
Wilmington Trust Company
0000 X. Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Corporate Trust Administration
Attention:
Fax No.:
(000) 000-0000
or, as to each party, at such other address as shall be designated by such
party in a written notice complying as to delivery with the terms of this
Section.
7. PARTIES IN INTEREST.
This Agreement shall be binding upon and inure solely to the benefit
of each party hereto and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person
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any right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement. Without limitation of the foregoing, the parties hereto
expressly agree that no Holder of Old Capital Securities or Exchange Capital
Securities shall have any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
8. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, and by
different parties hereto on separate counterparts, each of which when so
executed shall be deemed an original, and all of such counterparts shall
together constitute one and the same agreement.
9. CAPTIONS.
The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
10. ENTIRE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire understanding of the parties
hereto with respect to the subject matter hereof. This Agreement may not be
amended or modified nor may any provision hereof be waived except in writing
signed by each party to be bound thereby.
11. TERMINATION.
This Agreement shall terminate upon the earliest of (a) the 90th day
following the expiration, withdrawal or termination of the Exchange Offer, (b)
the close of business on the date of actual receipt of written notice by
Wilmington Trust from the Corporation and the Trust stating that this Agreement
is terminated, (c) one year following the date of this Agreement, and (d) the
time and date on which this Agreement shall be terminated by mutual consent of
the parties hereto.
12. MISCELLANEOUS.
Wilmington Trust hereby acknowledges receipt of the Prospectus and the
forms of the Letter of Transmittal and the Notice of Guaranteed Delivery and
further acknowledges that it has examined each of them. Any inconsistency
between this Agreement, on the one hand, and the Prospectus and the forms of
the Letter of Transmittal and the Notice of Guaranteed Delivery (as they may be
amended or supplemented from time to time), on the other hand, shall be
resolved in favor of the latter three documents, except with respect to the
duties, liabilities, rights, powers and indemnification of Wilmington Trust as
Exchange Agent, which shall be controlled by this Agreement.
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Kindly indicate your willingness to act as Exchange Agent and your
acceptance of the foregoing provisions by signing in the space provided below
for that purpose and returning to the Corporation a copy of this Agreement so
signed, whereupon this Agreement and Wilmington Trust's acceptance shall
constitute a binding agreement among Wilmington Trust, the Corporation and the
Trust.
Very truly yours,
K N ENERGY, INC.
By:
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Name:
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Title:
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K N CAPITAL TRUST I
By:
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Name:
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Title: Administrative Trustee
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Accepted and agreed to as of
the date first written above:
WILMINGTON TRUST COMPANY,
as Exchange Agent
By:
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Name:
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Title:
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