<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
March 28, 2000
(Date of earliest event reported)
KINDER MORGAN ENERGY PARTNERS, L.P.
(Exact name of registrant as specified in its charter)
DELAWARE 1-11234 76-0380342
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
1301 McKinney, Suite 3400
Houston, Texas 77010
(Address of principal executive offices, including zip code)
713-844-9500
(Registrant's telephone number, including area code)
<PAGE> 2
ITEM 5. OTHER EVENTS.
On April 3, 2000, Kinder Morgan Energy Partners, L.P. issued 4,500,000
common units representing limited partner interests in an underwritten public
offering. We received net proceeds of approximately $171 million from this
offering, after paying underwriting discounts and commissions and offering
expenses. We plan to use these proceeds to partially fund our acquisition of
Shell CO2 Company expected to close in April 2000, to reduce borrowings under
our commercial paper program and for other general partnership purposes.
The underwriting agreement under which we sold the units is filed as
an exhibit to this report. This exhibit is incorporated by reference into this
description.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
The following material is filed as an exhibit to this Current
Report on Form 8-K.
Exhibit
Number Description
1.1 Underwriting Agreement dated as of
March 28, 2000, among Kinder Morgan
Energy Partners, L.P. and the
underwriters named therein.
-2-
<PAGE> 3
S I G N A T U R E
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
KINDER MORGAN ENERGY PARTNERS, L.P.
(A Delaware Limited Partnership)
By: KINDER MORGAN G.P., INC.,
its general partner
Dated: April 3, 2000 By: /s/ Joseph Listengart
-------------------------------------------
Joseph Listengart
Vice President, General Counsel and
Secretary
-3-
<PAGE> 4
Exhibit Index
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<S> <C>
1.1 Underwriting Agreement dated as of
March 28, 2000, among Kinder Morgan
Energy Partners, L.P. and the
underwriters named therein.
</TABLE>
-4-
<PAGE> 1
EXHIBIT 1.1
Kinder Morgan Energy Partners, L.P.
Common Units Representing Limited Partner Interests
Underwriting Agreement
March 28, 2000
Goldman, Sachs & Co.
PaineWebber Incorporated
Salomon Smith Barney Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
From time to time Kinder Morgan Energy Partners, L.P., a Delaware
limited partnership (the "Partnership"), proposes to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue and sell
to the firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its common units (the "Common Units")
representing limited partner interests in the Partnership specified in Schedule
II to such Pricing Agreement (with respect to such Pricing Agreement, the "Firm
Units"). If specified in such Pricing Agreement, the Partnership may grant to
the Underwriters the right to purchase at their election an additional number of
units, specified in such Pricing Agreement as provided in Section 3 hereof (the
"Optional Units"). The Firm Units and the Optional Units, if any, which the
Underwriters elect to purchase pursuant to Section 3 hereof are collectively
called the "Designated Units."
The Partnership, Kinder Morgan Operating L.P. "A," a Delaware limited
partnership ("OLP- A"), Kinder Morgan Operating L.P. "B," a Delaware limited
partnership ("OLP-B"), Kinder Morgan Operating L.P. "C," a Delaware limited
partnership ("OLP-C"), Kinder Morgan Operating L.P. "D," a Delaware limited
partnership ("OLP-D" and, together with OLP-A, OLP-B and OLP-C, the "Operating
Partnerships"), SFPP, L.P., a Delaware limited partnership ("SFPP"), Kinder
Morgan Bulk Terminals, Inc., a Louisiana corporation ("KMBT"), Kinder Morgan
CO2, LLC, a Delaware limited liability company ("KM-LLC"), Shell CO2 Company,
Ltd., a Texas limited partnership ("Shell CO2"), Plantation Pipe Line Company, a
Delaware and Virginia corporation ("PPLC"), Kinder Morgan Interstate Gas
Transmission LLC, a Colorado single-member limited liability company ("KMIG"),
Kinder Morgan Trailblazer, LLC, a Delaware single-member limited liability
company ("KM Trailblazer"), CGT Trailblazer, L.L.C., a Delaware single-member
limited liability
<PAGE> 2
company ("CGT"), Trailblazer Pipeline Company, an Illinois general partnership
("Trailblazer Pipeline"), Red Cedar Gathering Company, a general partnership
("RCG"), and Kinder Morgan G.P., Inc., a Delaware corporation (the "General
Partner"), in its individual capacity and in its capacity as the general partner
of the Partnership and each of the Operating Partnerships, are collectively
referred to herein as the "Kinder Morgan Entities."
The terms and rights of any particular issuance of Designated Units
shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Units may be made from time to time
to the Underwriters of such Common Units, for whom the firms designated as
representatives of the Underwriters of such Common Units in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to an Underwriter or Underwriters who act
without any firm being designated as its or their representatives. This
Underwriting Agreement (this "Agreement") shall not be construed as an
obligation of the Partnership to sell any of the Common Units or as an
obligation of any of the Underwriters to purchase the Common Units. The
obligation of the Partnership to issue and sell any of the Common Units and the
obligation of any of the Underwriters to purchase any of the Common Units shall
be evidenced by the Pricing Agreement with respect to the Designated Units
specified therein. Each Pricing Agreement shall specify the aggregate number of
Firm Units, the maximum number of Optional Units, if any, the initial public
offering price of such Firm and Optional Units or the manner of determining such
price, the purchase price to the Underwriters of such Designated Units, the
names of the Underwriters of such Designated Units, the names of the
Representatives of such Underwriters and the principal amount of such Designated
Units to be purchased by each Underwriter and shall set forth the date, time and
manner of delivery of such Firm and Optional Units and payment therefor. The
Pricing Agreement shall also specify (to the extent not set forth in the
registration statement and prospectus with respect thereto) the terms of such
Designated Units. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Partnership represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-66931
(01-07)) (the "Initial Registration Statement") in respect of the Common Units
has been filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment thereto
(each in the form heretofore delivered or to be delivered to the
Representatives, excluding exhibits to the Initial Registration Statement, but
including all documents incorporated by reference in the prospectus contained
therein) have been declared effective by the Commission in such form; other than
a registration statement, if any, increasing the size of the
2
<PAGE> 3
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to the Representatives);
and no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus included
in the Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) under the Act, is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement, any post-effective
amendment thereto and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time such part
of the Initial Registration Statement became effective, each as amended at the
time such part of the Initial Registration Statement became effective or such
part of the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Common Units, in the form in which it
has most recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment to the Initial Registration
Statement shall be deemed to refer to and include any annual report of the
Partnership filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after
the effective date of the Initial Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Units in the form in which
it is filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
3
<PAGE> 4
with the Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will 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, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Partnership by an Underwriter of Designated Units through
Goldman, Sachs & Co. expressly for use in the Prospectus as amended or
supplemented relating to such Common Units;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, 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; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Partnership by an Underwriter of Designated Units through Goldman, Sachs &
Co. expressly for use in the Prospectus as amended or supplemented relating to
such Common Units;
(d) None of the Kinder Morgan Entities has sustained since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change in the
capitalization or long-term debt of the Kinder Morgan Entities or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position,
unitholders' equity or results of operations of the Kinder Morgan Entities,
taken as a whole, otherwise than as set forth or contemplated in the Prospectus;
(e) Each of the Kinder Morgan Entities (in the case of Shell
CO2 and RCG, to the Partnership's knowledge) has good and marketable title (or
indefeasible title in the State of Texas) in fee simple to all real property and
good and marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the value of
such property and do not materially interfere with the use made and proposed to
be made of such property by the Kinder Morgan Entities; and any real property
and buildings held under lease by a Kinder Morgan Entity (in the case of Shell
CO2 and RCG, to the Partnership's knowledge) is held under valid, subsisting and
enforceable
4
<PAGE> 5
leases with such exceptions as are not material and do not materially interfere
with the use made and proposed to be made of such property and buildings by the
Kinder Morgan Entities;
(f) The Partnership is, and at each Time of Delivery (as
defined in Section 4 hereof) will be, a limited partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware. The
Partnership has, and at each Time of Delivery will have, all necessary
partnership power and authority to conduct the activities conducted by it, to
own or lease all the assets owned or leased by it and to conduct its business as
described in the Registration Statement and the Prospectus. The Partnership is,
and at each Time of Delivery will be, duly licensed or qualified to do business
and in good standing as a foreign limited partnership in all jurisdictions in
which the nature of the activities conducted by it or the character of the
assets owned or leased by it makes such licensing or qualification necessary
(except where the failure to be so licensed or qualified would not have a
material adverse effect on the financial condition, results of operations or
business of the Kinder Morgan Entities, taken as a whole, or subject the
Partnership or the limited partners of the Partnership to any material liability
or disability). Complete and correct copies of the Certificate of Limited
Partnership of the Partnership, and all amendments thereto, and of the Agreement
of Limited Partnership of the Partnership, as amended and restated (the
"Partnership Agreement"), have been delivered to the Underwriters;
(g) Each of the Operating Partnerships is, and at the
applicable Time of Delivery will be, a limited partnership duly formed, validly
existing and in good standing under the laws of the State of Delaware. Each of
the Operating Partnerships has, and at the applicable Time of Delivery will
have, all necessary partnership power and authority to conduct the activities
conducted by it, to own or lease all the assets owned or leased by it and to
conduct its business as described in the Registration Statement and the
Prospectus. Each of the Operating Partnerships is, and at the applicable Time of
Delivery will be, duly licensed or qualified to do business and in good standing
as a foreign limited partnership in all jurisdictions in which the nature of the
activities conducted by it or the character of the assets owned or leased by it
makes such licensing or qualification necessary (except where the failure to be
so licensed or qualified would not have a material adverse effect on the
financial condition, results of operations or business of the Kinder Morgan
Entities, taken as a whole, or subject the Partnership or the limited partners
of the Partnership to any material liability or disability). Complete and
correct copies of the Certificate of Limited Partnership of each of the
Operating Partnerships, and all amendments thereto, and of the Agreement of
Limited Partnership of OLP-A, as amended and restated (the "OLP-A Agreement"),
the Agreement of Limited Partnership of OLP-B, as amended and restated (the
"OLP-B Agreement"), the Agreement of Limited Partnership of OLP-C, as amended
and restated (the "OLP-C Agreement"), and the Agreement of Limited Partnership
of OLP-D, as amended and restated (the "OLP-D Agreement" and, together with the
OLP-A Agreement, the OLP-B Agreement and the OLP-C Agreement, the "Operating
Partnership Agreements"), have been delivered to the Underwriters;
(h) SFPP is, and at the applicable Time of Delivery will be, a
limited partnership duly formed, validly existing and in good standing under the
laws of the State of Delaware. SFPP has, and at the applicable Time of Delivery
will have, all necessary partnership power and authority
5
<PAGE> 6
to conduct the activities conducted by it, to own or lease all the assets owned
or leased by it and to conduct its business as described in the Registration
Statement and the Prospectus. SFPP is, and at the applicable Time of Delivery
will be, duly licensed or qualified to do business and in good standing as a
foreign limited partnership in all jurisdictions in which the nature of the
activities conducted by it or the character of the assets owned or leased by it
makes such licensing or qualification necessary (except where the failure to be
so licensed or qualified would not have a material adverse effect on the
financial condition, results of operations or business of the Kinder Morgan
Entities, taken as a whole, or subject the Partnership or the limited partners
of the Partnership to any material liability or disability). Complete and
correct copies of the Certificate of Limited Partnership of SFPP and of the
Agreement of Limited Partnership of SFPP, as amended and restated (the "SFPP
Agreement"), and all amendments thereto have been delivered to the Underwriters;
(i) The General Partner is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Each of KM-LLC, CGT and KM Trailblazer is a limited liability company duly
formed, validly existing and in good standing under the laws of the State of
Delaware. KMBT is a corporation duly organized, validly existing and in good
standing under the laws of the State of Louisiana. KMIG is a single-member
limited liability company duly formed, validly existing and in good standing
under the laws of the State of Colorado. Each of the General Partner, KM
Trailblazer, KM-LLC, KMBT, CGT and KMIG has all necessary corporate or limited
liability company power and authority, as the case may be, to conduct all the
activities conducted by it, to own or lease all the assets owned or leased by it
and to conduct its business as described in the Registration Statement and the
Prospectus. Each of the General Partner, KM Trailblazer, KM-LLC, KMBT, CGT and
KMIG is duly licensed or qualified to do business and is in good standing as a
foreign corporation or foreign limited liability company, as the case may be, in
all jurisdictions in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such licensing or
qualification necessary (except where the failure to be so licensed or qualified
would not have a material adverse effect on the financial condition, results of
operations or business of the Kinder Morgan Entities, taken as a whole, or
subject the Partnership or the limited partners of the Partnership to any
material liability or disability). Complete and correct copies of the
certificate of incorporation and of the by-laws of the General Partner and KMBT
and the limited liability company agreements of KM-LLC, CGT, KM Trailblazer and
KMIG and all amendments to such documents have been delivered to the
Underwriters;
(j) To the knowledge of the Partnership, Heartland Company
("Heartland") is a general partnership duly formed and validly existing under
the laws of the State of Texas. Shell CO2 is a limited partnership duly formed,
validly existing and in good standing under the laws of the State of Texas. PPLC
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. To the knowledge of the Partnership, Shell CO2
and Heartland each has all necessary partnership power and authority to conduct
the activities conducted by it, to own or lease all the assets owned or leased
by it and to conduct its business as described in the Registration Statement and
the Prospectus, except as would not have a material adverse effect on the
financial condition, results of operations or business of the Kinder Morgan
Entities, taken as a whole,
6
<PAGE> 7
or subject the Partnership or the limited partners of the Partnership to any
material liability or disability. To the knowledge of the Partnership, Shell CO2
and Heartland each is duly licensed or qualified to do business and is in good
standing as a foreign partnership in all jurisdictions in which the nature of
the activities conducted by it or the character of the assets owned or leased by
it makes such licensing or qualification necessary (except where the failure to
be so licensed or qualified would not have a material adverse effect on the
financial condition, results of operations or business of the Kinder Morgan
Entities, taken as a whole, or subject the Partnership or the limited partners
of the Partnership to any material liability or disability);
(k) RCG is a general partnership duly formed and validly
existing. Trailblazer Pipeline is a general partnership duly formed and in good
standing under the laws of the State of Illinois. RCG and Trailblazer Pipeline
each has all necessary partnership power and authority to conduct the activities
conducted by it, to own or lease all the assets owned or leased by it and to
conduct its business as described in the Registration Statement and the
Prospectus. RCG and Trailblazer Pipeline each is duly licensed or qualified to
do business and is in good standing as a foreign general partnership in all
jurisdictions in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such licensing or
qualification necessary (except where the failure to be so licensed or qualified
would not have a material adverse effect on the financial condition, results of
operations or business of the Kinder Morgan Entities, taken as a whole, or
subject the Partnership or the limited partners of the Partnership to any
material liability or disability); complete and correct copies of the
Certificates of General Partnership of RCG and Trailblazer Pipeline and of the
Agreement of General Partnership of RCG, as amended and restated, and the
Agreement of General Partnership of Trailblazer Pipeline, as amended and
restated, and all amendments thereto have been delivered to the Underwriters;
(l) The only subsidiaries (as such term is defined in the
rules and regulations of the Commission under the Act and the Exchange Act) of
the Partnership or other entities in which the Partnership, the General Partner,
any of the Operating Partnerships or SFPP has an equity ownership interest of
50% or more and that own assets or conduct business are those listed on Schedule
III hereto;
(m) The General Partner is the sole general partner of the
Partnership with a 1% general partner interest in the Partnership; such general
partner interest is duly authorized by the Partnership Agreement and was validly
issued to the General Partner; and, the General Partner owns such general
partner interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims (except for such liens, encumbrances, security
interests, equities, charges or claims as are not, individually or in the
aggregate, material to such ownership or as described in the Registration
Statement or the Prospectus);
(n) The General Partner is the sole general partner of each of
the Operating Partnerships with a 1.0101% general partner interest in each of
the Operating Partnerships; such general partner interests are duly authorized
by the respective Operating Partnership Agreement, and were validly issued to
the General Partner; and the General Partner owns such general partner
7
<PAGE> 8
interests free and clear of all liens, encumbrances, security interests,
equities, charges or claims (except for such liens, encumbrances, security
interests, equities, charges or claims as would not, individually or in the
aggregate, be material to such ownership or as described in the Registration
Statement or the Prospectus);
(o) The Partnership is the sole limited partner of each of the
Operating Partnerships with a 98.9899% limited partner interest in each of the
Operating Partnerships; such limited partner interests, in each of such
Operating Partnerships, are duly authorized by the respective Operating
Partnership Agreement, and were validly issued to the Partnership and are fully
paid and nonassessable (except as nonassessability may be affected by certain
provisions of the Delaware Revised Uniform Limited Partnership Act (the
"Delaware Act")); and the Partnership owns such limited partner interests free
and clear of all liens, encumbrances, security interests, equities, charges or
claims (except for such liens, encumbrances, security interests, equities,
charges or claims as would not, individually or in the aggregate, be material to
such ownership or as described in the Registration Statement or the Prospectus);
(p) OLP-A owns, and at the applicable Time of Delivery will
own, all of the issued and outstanding member interests of KM-LLC, KMIG, KM
Trailblazer and CGT; all of such member interests are duly authorized, validly
issued, fully paid and non-assessable; OLP-C owns all of the issued and
outstanding capital stock of KMBT; all of such capital stock is duly authorized,
validly issued, fully paid and non-assessable. OLP-A and OLP-C own all of the
equity interests described in this clause (p), in each case, free and clear of
all liens, encumbrances, security interests, equities, charges or claims (except
for such liens, encumbrances, security interests, equities, charges or claims as
would not, individually or in the aggregate, be material to such ownership or as
described in the Registration Statement or the Prospectus);
(q) OLP-D is the sole general partner of SFPP with a 99.5%
general partner interest; such general partner interest is duly authorized by
the SFPP Agreement, and was validly issued to OLP-D; and OLP-D owns such general
partner interest free and clear of all liens, encumbrances, security interests,
equities, charges or claims (except for such liens, encumbrances, security
interests, equities, charges or claims as would not, individually or in the
aggregate, be material or as described in the Registration Statement or the
Prospectus); Santa Fe Pacific Pipelines, Inc. (the "SF Limited Partner") is the
sole limited partner of SFPP with a 0.5% non-voting, limited partner interest;
such limited partner interest is duly authorized by the SFPP Agreement, and
validly issued to the SF Limited Partner and fully paid and nonassessable
(except as nonassessability may be affected by certain provisions of the
Delaware Act);
(r) OLP-A is a general partner of Heartland with a 50% general
partner interest in Heartland and is an owner of PPLC with a 51% interest in
PPLC. KM-LLC is a limited partner of Shell CO2 with a 20% limited partner
interest in Shell CO2 (and, upon consummation of the acquisition described in
the Registration Statement or the Prospectus, KM-LLC will own, directly or
indirectly, 100% of the partner interest in Shell CO2); such general partner
interests and such limited partner interests are duly authorized by the
respective partnership agreements of Heartland
8
<PAGE> 9
and Shell CO2, and were validly issued by each of Heartland and Shell CO2,
respectively, and, in the case of such limited partner interests, are fully paid
and non-assessable (except as such non-assessability may be affected by certain
provisions of the Delaware Act); and OLP-A and owns such general partner
interest in Heartland and KM-LLC owns such limited partner interest in Shell CO2
free and clear of all liens, encumbrances, security interests, equities, charges
or claims (except for such liens, encumbrances, security interests, equities,
charges or claims as would not, individually or in the aggregate, be material to
such ownership or as described in the Registration Statement or the Prospectus);
(s) KM Trailblazer and CGT each own a 33 1/3% general partner
interest in Trailblazer Pipeline; all of such general partner interests are duly
authorized, validly issued, fully paid and non-assessable; KM Trailblazer and
CGT own all of such general partner interests in Trailblazer Pipeline free and
clear of all liens, encumbrances, security interests, equities, charges or
claims (except for such liens, encumbrances, security interests, equities,
charges or claims as would not, individually or in the aggregate, be material to
such ownership or as described in the Registration Statement or the Prospectus);
(t) OLP-A owns a 49% general partner interest in RCG; such
general partner interest is duly authorized by the RCG Agreement, was validly
issued to OLP-A and is fully paid and non-assessable; and OLP-A owns such
general partner interest free and clear of all liens, encumbrances, security
interests, equities, charges or claims (except for such liens, encumbrances,
security interests, equities, charges or claims as would not, individually or in
the aggregate, be material to such ownership or as described in the Registration
Statement or the Prospectus);
(u) At the Time of Delivery after giving effect to the
issuance of the Firm Units, the Common Units (other than the Designated Units)
will be the only limited partner interests of the Partnership that are issued
and outstanding at the applicable Time of Delivery all of the issued and
outstanding Common Units of the Partnership have been duly and validly
authorized and issued, and are fully paid and nonassessable (except as
nonassessability may be affected by certain provisions of the Delaware Act) and
substantially conform to the description of the Common Units incorporated by
reference into the Prospectus; and the unissued Designated Units to be issued
and sold by the Partnership to the Underwriters hereunder will be duly and
validly authorized, and when issued against payment therefor as provided herein
and in the applicable Pricing Agreement, will be duly and validly authorized
and, fully paid and nonassessable (except as nonassessability may be affected by
certain provisions of the Delaware Act) and will substantially conform to the
description of the Common Units incorporated by reference into the Prospectus;
(v) The Partnership has all necessary partnership power and
authority to enter into this Agreement and any Pricing Agreement. This Agreement
and the applicable Pricing Agreement each has been duly authorized, executed and
delivered by the Partnership and constitutes a valid and binding agreement of
the Partnership and is enforceable against the Partnership in accordance with
the terms hereof, subject, as to enforcement, (i) to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights, (ii) to general equity principles
9
<PAGE> 10
and (iii) as the rights to indemnification or contribution thereunder may be
limited by federal or state securities laws;
(w) The issue and sale of the Designated Units to be sold by
the Partnership hereunder, the compliance by the Kinder Morgan Entities with all
of the provisions of this Agreement and any Pricing Agreement, the consummation
of the transactions contemplated herein and the application by the Partnership
of the net proceeds from the offering and sale of the Designated Units in the
manner set forth in the Prospectus under "Use of Proceeds" will not conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which any of the Kinder Morgan
Entities is a party or by which any of the Kinder Morgan Entities is bound or to
which any of the property or assets of the Kinder Morgan Entities are subject,
nor will such action result in any violation of the provisions of the
certificate of incorporation, by-laws, partnership agreement, the limited
liability company agreement or other organizational documents, as the case may
be, of any of the Kinder Morgan Entities, or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
any of the Kinder Morgan Entities or any of the properties of any such entities,
except where any such foregoing occurrence in this clause (w) will not prevent
the consummation of the transactions contemplated herein and would not have a
material adverse effect on the financial condition, results of operations or
business of the Kinder Morgan Entities, taken as a whole, or subject the
Partnership or the limited partners of the Partnership to any material liability
or disability; and no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body having
jurisdiction over any of the Kinder Morgan Entities or any of the properties of
such entities is required for the issuance and sale of the Designated Units or
the consummation by the Kinder Morgan Entities of the transactions contemplated
by this Agreement and any Pricing Agreement relating to the Designated Units,
except the registration under the Act of the Designated Units and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Units by the Underwriters;
(x) None of the Kinder Morgan Entities (in the case of Shell
CO2, to the Partnership's knowledge) is (a) in violation of its Certificate of
Incorporation, By-laws, Partnership Agreement, the limited liability company
agreement or other organizational documents, as the case may be, or (b) in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, except for such violations and
defaults as would not have a material adverse effect on the financial condition,
results of operations or business of the Kinder Morgan Entities, taken as a
whole, or subject the Partnership or the limited partners of the Partnership to
any material liability or disability;
(y) The statements set forth in the Prospectus under the
captions "Description of Common Units," "Material Federal Income Tax
Considerations" and "Recent Tax Developments,"
10
<PAGE> 11
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all material respects;
(z) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which any of the Kinder Morgan
Entities is a party or of which any property of any Kinder Morgan Entity is the
subject which, if determined adversely to the respective Kinder Morgan Entity,
would individually or in the aggregate have a material adverse effect on the
financial condition, results of operations or business of the Kinder Morgan
Entities, taken as a whole, or subject the Partnership or the limited partners
of the Partnership to any material liability or disability; and, to the
knowledge of the Partnership, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(aa) Each of the Partnership and the General Partner is, and
after giving effect to the offering and sale of the Designated Units, will be,
exempt from regulation as (i) a "holding company" or a "subsidiary company" of a
"holding company" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended, or (ii) an "investment company," a person
"controlled by" an "investment company" or an "affiliated person" of or
"promoter" or "principal underwriter" for an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(bb) PriceWaterhouseCoopers LLP and Arthur Andersen LLP (the
"Accountants"), who have certified certain financial statements of the Kinder
Morgan Entities, are each independent accountants as required by the Act and the
rules and regulations of the Commission thereunder;
(cc) There are no preemptive rights or other rights to
subscribe for or to purchase, nor any restrictions upon the voting or transfer
of, any partnership interests or shares of stock of any of the Kinder Morgan
Entities pursuant to any partnership agreement, any articles or certificates of
incorporation or other governing documents or any agreement or other instrument
to which any of the Kinder Morgan Entities is a party or by which any of such
entities may be bound (other than (a) the General Partner's preemptive right
contained in the Partnership Agreement, (b) in the partnership agreements of
PPLC, Trailblazer Pipeline and RCG, and (c) as set forth in or incorporated by
reference into the Prospectus). The offering and sale of Common Units as
contemplated by this Agreement does not give rise to any rights, other than
those which have been waived or satisfied, for or relating to the registration
of any Partnership interests or other securities of the Partnership. Except for
certain grants made under the Partnership's Executive Compensation Plan and the
Partnership Common Unit Option Plan, there are no outstanding options or
warrants to purchase any Common Units or other securities of any of the Kinder
Morgan Entities. There are no rights entitling any holder of partnership
interests of the Partnership to cause the Partnership to register any of such
interests (other than pursuant to (x) this Agreement and (y) the Registration
Rights Agreement, dated February 1, 2000, among the Partnership and the former
shareholders of Milwaukee Bulk Terminals, Inc.).
11
<PAGE> 12
(dd) The financial statements and schedules included or
incorporated by reference in the Registration Statement or the Prospectus
present fairly the consolidated financial condition of the Partnership, as of
the respective dates thereof and the consolidated results of operations and cash
flows of the Partnership for the respective periods covered thereby, all in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the entire period involved, except as otherwise disclosed in
the Prospectus. No other financial statements or schedules of the Partnership
are required by the Act, the Exchange Act or the rules and regulations of the
Commission under such acts to be included in the Registration Statement or the
Prospectus. The statements included in the Registration Statement with respect
to the Accountants pursuant to Rule 509 of Regulation S-K of the Rules and
Regulations are true and correct in all material respects;
(ee) The pro forma financial statements included in or
incorporated by reference in the Registration Statement and the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act, the Exchange Act and the rules and regulations of the
Commission under such acts, have been prepared on a basis consistent with the
historical consolidated financial statements of the Partnership and give effect
to the assumptions used in the preparation thereof on a reasonable basis and in
good faith; and the historical financial statements of each of KMIG, KM
Trailblazer and RCG for the year ended December 31, 1999 upon which the pro
forma financial statements included in the Registration Statement and the
Prospectus are based present fairly the consolidated results of operations of
such entities for the period covered thereby, all in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
entire period involved; and
(ff) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act and the rules and regulations of the Commission
thereunder, and did 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, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Partnership by an
Underwriter through the Representatives expressly for use therein.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Units and authorization by the Representatives of the release of such
Designated Units, the several Underwriters propose to offer the Firm Units for
sale upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
The Partnership may specify in the Pricing Agreement applicable to any
Designated Units that the Partnership thereby grants to the Underwriters the
right (an "Over-allotment Option") to purchase at their election up to the
number of Optional Units set forth in such Pricing Agreement, on the terms set
forth in the paragraph above, for the sole purpose of covering over-allotments
in the sale of the Firm Units. Any such election to purchase Optional Units may
be exercised by written
12
<PAGE> 13
notice from the Representatives to the Partnership, given within a period
specified in the Pricing Agreement, setting forth the aggregate number of
Optional Units to be purchased and the date on which such Optional Units are to
be delivered, as determined by the Representatives but in no event earlier than
the First Time of Delivery (as defined in Section 4 hereof) or, unless the
Representatives and the Partnership otherwise agree in writing, earlier than or
later than the respective number of business days after the date of such notice
set forth in such Pricing Agreement.
The number of Optional Units to be added to the number of Firm Units to
be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Units shall be, in each case, the number
of Optional Units which the Partnership has been advised by the Representatives
have been attributed to such Underwriter; provided that, if the Partnership has
not been so advised, the number of Optional Units to be so added shall be, in
each case, that proportion of Optional Units which the number of Firm Units to
be purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Units (rounded as the Representatives may determine to
the nearest 100 Common Units). The total number of Designated Units to be
purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Units set forth in Schedule I to such Pricing
Agreement plus the aggregate number of Optional Units which the Underwriters
elect to purchase.
4. Certificates for the Firm Units and the Optional Units to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Partnership, shall be
delivered by or on behalf of the Partnership to Goldman, Sachs & Co. for the
account of such Underwriter, against payment by such Underwriter or on its
behalf of the purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Partnership to Goldman, Sachs & Co. at
least forty-eight hours in advance, (i) with respect to the Firm Units, all in
the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Partnership may agree upon in writing, such time and date being herein
called the "First Time of Delivery" and (ii) with respect to the Optional Units,
if any, in the manner and at the time and date specified by the Representatives
in the written notice given by the Representatives of the Underwriters' election
to purchase such Optional Units, or at such other time and date as the
Representatives and the Partnership may agree upon in writing, such time and
date, if not the First Time of Delivery, herein called the "Second Time of
Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Partnership agrees with each of the Underwriters of any
Designated Units:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Units in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating to the
applicable Designated Units or, if applicable, such earlier time as may be
required by Rule 424(b);
13
<PAGE> 14
to make no further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing Agreement
relating to such Common Units and prior to the Time of Delivery for such Common
Units which shall be disapproved by the Representatives for such Common Units
promptly after reasonable notice thereof; to advise the Representatives promptly
of any such amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Partnership with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Common Units, and during such same
period to advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended Prospectus
has been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any prospectus
relating to the Common Units, of the suspension of the qualification of such
Common Units for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any such stop order or of any such order preventing or suspending the use of any
prospectus relating to the Common Units or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated Units for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of such Designated Units, provided
that in connection therewith the Partnership and the General Partner shall not
be required to qualify as a foreign partnership or corporation, as applicable,
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of each Pricing Agreement and from time to
time, to furnish the Underwriters with copies of the Prospectus for the
applicable Designated Units in New York City as amended or supplemented in such
quantities as the Representatives may reasonably request, and, if the delivery
of a prospectus is required at any time in connection with the offering or sale
of the Designated Units and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act or
the Exchange Act, to notify the Representatives and upon their request to file
such document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as
14
<PAGE> 15
many copies as the Representatives may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Partnership and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Partnership, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the Prospectus
(i) not to directly or indirectly, offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder any securities of the Partnership that
are substantially similar to the Common Units, including but not limited to any
securities that are convertible into or exercisable or exchangeable for, or that
represent the right to receive, Common Units or any such substantially similar
securities (other than as contemplated by the Prospectus (A) in connection with
the acquisition of assets, businesses or the capital stock or other ownership
interests of businesses by any of the Kinder Morgan Entities in exchange for
securities of the Partnership that are substantially similar to the Common
Units, if the recipient(s) of such securities agree(s) not to offer, sell,
contract to sell, or otherwise dispose of during such lock- up period any such
securities received in connection with such acquisition(s) and (B) pursuant to
employee stock option plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement), without your prior written consent, it being expressly agreed that
the foregoing restriction shall preclude the Partnership from engaging in any
hedging or other transaction which is designed to or reasonably expected to lead
to or result in a sale or disposition of the Common Units even if such Common
Units would be disposed of by someone other than the Partnership, including,
without limitation, any short sale or any purchase, sale or grant of any right
(including, without limitation, any put or call option) with respect to any of
the Common Units or with respect to any security that includes, relates to, or
derives any significant part of its value from such Common Units; and (ii) not
to waive the provisions set forth in Section 5.10 of the Contribution Agreement,
dated as of December 30, 1999, as amended, among the Partnership, Kinder Morgan,
Inc., a Delaware corporation ("KMI"), Natural Gas Pipeline Company of America,
ILN Gas Gathering, Inc. and the General Partner, prohibiting KMI from, directly
or indirectly, offering, selling, contracting to sell or disposing of, any
Common Units issued to KMI and its affiliates thereunder; and
(f) If the Partnership elects to rely upon Rule 462(b), the
Partnership shall file a Rule 462(b) Registration Statement with the Commission
in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date
of the applicable Pricing Agreement, and the Partnership shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Act.
15
<PAGE> 16
6. The Partnership covenants and agrees with the several Underwriters
that the Partnership will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Partnership's counsel and accountants in
connection with the registration of the Designated Units under the Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Common Units;
(iii) any filing fees and expenses in connection with the qualification of the
Common Units for offering and sale under state securities laws as provided in
Section 5(b) hereof, but not including the fees and disbursements of counsel for
the Underwriters in connection with such qualification or with any Blue Sky and
legal investment memoranda; (iv) any filing fees incident to any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Designated Units; (v) the cost of preparing certificates representing the
Designated Units; and (vi) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Common Units by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Units under
the Pricing Agreement relating to such Designated Units shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Partnership in or incorporated by
reference in the Pricing Agreement relating to such Designated Units are, at and
as of the Time of Delivery for such Designated Units, true and correct, the
condition that the Partnership shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Units shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Partnership has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of the applicable Pricing Agreement; no stop
order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Andrews & Kurth L.L.P., counsel for the Underwriters,
shall have furnished to the Representatives such written opinion or opinions,
dated the Time of Delivery for such Designated Units, with respect to the
matters covered in paragraphs (i) (insofar as it relates to the
16
<PAGE> 17
due formation and good standing of the Partnership in Delaware and the
Partnership's power and authority to conduct its business as described in the
Registration Statement and the Prospectus, as amended or supplemented), (xv),
(xvii) (insofar as it relates to the statements set forth in the Prospectus
under the caption "Underwriting"), and (xxi) (insofar as it relates to the
Registration Statement and the Prospectus) of subsection (c) below and a letter
substantially similar to the letter required to be delivered by Bracewell &
Patterson, L.L.P. pursuant to subsection (c) below as well as such other related
matters as the Representatives may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Bracewell & Patterson, L.L.P., counsel for the
Partnership, shall have furnished to the Representatives its written opinion,
dated the Time of Delivery for such Designated Units, in form and substance
satisfactory to the Representatives, to the effect that:
(i) Each of the Partnership, the General Partner,
OLP-A, OLP-B, OLP-C, OLP-D, SFPP, KMIG, CGT and KM Trailblazer has been
duly formed and is validly existing and in good standing under the laws
of its jurisdiction of formation or incorporation and each entity has
the partnership or corporate power and authority, as the case may be,
to conduct its business as described in the Registration Statement and
the Prospectus, as amended or supplemented. To the knowledge of such
counsel after due inquiry, each of such entities is duly qualified to
do business and is in good standing as a foreign corporation or foreign
limited partnership, as the case may be, in all jurisdictions in which
the nature of the activities conducted by it or the character of the
assets owned or leased by it makes such licensing or qualification
necessary, except in the case where the failure to be so qualified
would not reasonably be expected to have a material adverse effect on
the financial condition, results of operations or business of the
Kinder Morgan Entities, taken as a whole, or subject the Partnership or
the limited partners of the Partnership to any material liability or
disability;
(ii) The General Partner is the sole general partner
of the Partnership with a 1% general partner interest in the
Partnership; such general partner interest is duly authorized by the
Partnership Agreement and was validly issued to the General Partner;
and, to the knowledge of such counsel after due inquiry, the General
Partner owns such general partner interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims (except
for such liens, encumbrances, security interests, equities, charges or
claims as would not, individually or in the aggregate, reasonably be
expected to be material to such ownership or as described in the
Registration Statement or the Prospectus, as amended or supplemented);
(iii) The General Partner is the sole general partner
of each of the Operating Partnerships with a 1.0101% general partner
interest in each of the Operating Partnerships; such general partner
interests are duly authorized by the respective Operating Partnership
Agreements and were validly issued to the General Partner; and to the
knowledge
17
<PAGE> 18
of such counsel, after due inquiry, the General Partner owns such
general partner interests free and clear of all liens, encumbrances,
security interests, equities, charges or claims (except for such liens,
encumbrances, security interests, equities, charges or claims as would
not, individually or in the aggregate, reasonably be expected to be
material to such ownership or as described in the Registration
Statement or the Prospectus, as amended or supplemented, and except as
provided in the Operating Partnership Agreements);
(iv) OLP-D is the sole general partner of SFPP with a
99.5% general partner interest in SFPP; such general partner interest
is duly authorized by the SFPP Agreement and was validly issued to
OLP-D; and to the knowledge of such counsel after due inquiry, OLP-D
owns such general partner interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims (except
for such liens, encumbrances, security interests, equities, charges or
claims as would not, individually or in the aggregate, reasonably be
expected to be material to such ownership or as described in the
Registration Statement or the Prospectus, as amended or supplemented,
or the OLP-D Agreement); the SF Limited Partner is the sole limited
partner of SFPP with a 0.5% non-voting, limited partner interest in
SFPP; and such limited partner interest is duly authorized by the SFPP
Agreement and was validly issued to the SF Limited Partner;
(v) At the Time of Delivery after giving effect to
the issuance of the Firm Units, to the knowledge of such counsel after
due inquiry, the capitalization of the Partnership will consist of
64,212,109 Common Units (64,887,109 Common Units if all of the Optional
Units are issued); to the knowledge of such counsel after due inquiry,
such Common Units will be the only limited partner interests of the
Partnership that are issued and outstanding at the applicable Time of
Delivery; all of such Common Units of the Partnership (including the
Common Units being delivered at such Time of Delivery) have been duly
and validly authorized and issued and are fully paid and non-assessable
(except as such nonassessability may be affected by certain provisions
of the Delaware Act, and the Common Units conform in all material
respects to the description thereof incorporated by reference in the
Prospectus as amended or supplemented;
(vi) The Partnership is the sole limited partner of
each of the Operating Partnerships with a 98.9899% limited partner
interest in each of the Operating Partnerships; such limited
partnership interests, in the case of each of the Operating
Partnerships, are duly authorized by the respective Operating
Partnership Agreements, were validly issued to the Partnership and are
fully paid and non-assessable (except as nonassessability may be
affected by certain provisions of the Delaware Act); and, to the
knowledge of such counsel after due inquiry, the Partnership owns such
limited partner interests free and clear of all liens, encumbrances,
security interests, equities, charges or claims (except for such liens,
encumbrances, security interests, equities, charges or claims (i) as
would not, individually or in the aggregate, reasonably be expected to
be material to such ownership or (ii) as described in the Registration
Statement or the Prospectus, as amended or supplemented;
18
<PAGE> 19
(vii) OLP-A owns all of the issued and outstanding
member interests of KM Trailblazer, KMIG and CGT; all of the member
interests of KM Trailblazer and KMIG, and to such counsel's knowledge,
CGT, are duly authorized, validly issued, fully paid and
non-assessable; and, to the knowledge of such counsel after due
inquiry, OLP-A owns all of such member interests of KM Trailblazer,
KMIG and CGT, in each case, free and clear of all liens, encumbrances,
security interests, equities, charges or claims (except for such liens,
encumbrances, security interests, equities, charges or claims as would
not, individually or in the aggregate, reasonably be expected to be
material to such ownership or as described in the Registration
Statement or the Prospectus, as amended or supplemented);
(viii) OLP-A owns a 49% general partner interest in
RCG; such general partner interest is duly authorized by the RCG
Agreement; and, to the knowledge of such counsel after due inquiry,
OLP-A owns such general partner interest free and clear of all liens,
encumbrances, security interests, equities, charges or claims (except
for such liens, encumbrances, security interests, equities, charges or
claims as would not, individually or in the aggregate, be material to
such ownership or as described in the Registration Statement or the
Prospectus);
(ix) None of the Common Units, when paid for by the
Underwriters in accordance with the terms of this Agreement, will be
subject to any preemptive or similar right under (i) the Delaware Act,
(ii) the Partnership Agreement (except for the General Partner's
preemptive right contained in Section 4.5 of the Partnership Agreement,
which has been waived with respect to the issuance and sale of the
Common Units to the Underwriters) or (iii) any instrument, document,
contract or agreement filed as an exhibit to or incorporated by
reference in the Registration Statement. Except as (i) described in the
Registration Statement or the Prospectus, (ii) the Partnership's
Executive Compensation Plan, and (iii) the Partnership's Common Unit
Option Plan, to the knowledge of such counsel after due inquiry, there
is no commitment or arrangement to issue, and there are no outstanding
options, warrants or other rights calling for the issuance of, any
Common Units or any partnership interest or share of capital stock of
any of the Kinder Morgan Entities to any person or any security or
other instrument that by its terms is convertible into, exercisable for
and exchangeable into Common Units. To the knowledge of such counsel
after due inquiry, there are no rights entitling any holder of
partnership interests of the Partnership to cause the Partnership to
register any of such interests (other than pursuant to (x) this
Agreement and (y) the Registration Rights Agreement, dated February 1,
2000, among the Partnership and the former shareholders of Milwaukee
Bulk Terminals, Inc.).
(x) No consent, approval, authorization, order,
registration or qualification of or with any federal, Delaware or Texas
court or governmental agency or body is required under federal or Texas
law or the Delaware Act for the issue and sale of the Designated Units
being delivered at such Time of Delivery or the consummation by the
Partnership of the transactions contemplated by this Agreement, except
(A) such as have been obtained under the Act and such consents,
approvals, authorizations, registrations or qualifications as may
19
<PAGE> 20
be required under state securities or Blue Sky laws or by the Bylaws
and rules of the National Association of Securities Dealers, Inc. in
connection with the purchase and distribution of the Designated Units
by the Underwriters and (B) such as the failure to obtain would not
reasonably be expected, individually or in the aggregate, to have a
material adverse effect on the current or future consolidated financial
position, unitholder's equity or results of operations of the Kinder
Morgan Entities;
(xi) To the knowledge of such counsel after due
inquiry, any instrument, document, lease, license or other agreement
required to be described or referred to in the Registration Statement
or the Prospectus, as amended or supplemented, has been described or
referred to therein and any such instrument, document, lease, license
or other agreement required to be filed as an exhibit to the
Registration Statement has been filed as an exhibit thereto or has been
incorporated as an exhibit by reference in the Registration Statement;
(xii) To the knowledge of such counsel after due
inquiry, except as disclosed in the Registration Statement or the
Prospectus, as amended or supplemented, no person or entity has the
right to require the registration under the Act of Common Units or
other securities of the Partnership by reason of the filing or
effectiveness of the Registration Statement, which has not been waived;
(xiii) Upon delivery of the certificates evidencing
the Common Units against payment therefor as provided in this Agreement
and any applicable Pricing Agreement, the Underwriters will acquire the
Common Units free of all adverse claims (as such term is defined in
Section 8-302 of the Uniform Commercial Code as in effect in the State
of Delaware (the "UCC"), assuming (i) the Underwriters are acting in
good faith, (ii) the Underwriters have no notice of any adverse claim
(as such term is used in Section 8-302 of the UCC) and (iii) the
certificates evidencing the Common Units are registered in the names of
the Underwriters or endorsed to the Underwriters or nominees of the
Underwriters;
(xiv) To the knowledge of such counsel after due
inquiry and other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Kinder Morgan
Entities is a party or of which any property of the Kinder Morgan
Entities is the subject which, if determined adversely to the Kinder
Morgan Entities, would individually or in the aggregate reasonably be
expected to have a material adverse effect on the current or future
consolidated financial position, unitholders' equity or results of
operations of the Kinder Morgan Entities, except such counsel need not
express an opinion with respect to Shell CO2; and, to the knowledge of
such counsel after due inquiry, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xv) This Agreement and the Pricing Agreement have
been duly authorized, executed and delivered by the Partnership;
20
<PAGE> 21
(xvi) The issue and sale of the Designated Units
being delivered at such Time of Delivery and the compliance by the
Partnership with all of the provisions of this Agreement and the
consummation of the transactions herein and therein contemplated
(including the use of proceeds of the sale of the Designated Units as
described under the caption "Use of Proceeds" in the Registration
Statement and the Prospectus) will not (a) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument filed or incorporated by reference as
an exhibit to Partnership's Annual Report on Form 10-K for the year
ended December 31, 1999 (the "1999 Form 10- K"), (b) result in any
violation of the provisions of the partnership agreement, certificate
of incorporation, by-laws or other formation document, as applicable,
of any of the Kinder Morgan Entities, except such counsel need not
express any opinion with respect to Shell CO2, (c) breach or otherwise
violate an existing obligation of any of the Kinder Morgan Entities
under any existing court or administrative order, judgment or decree of
which such counsel has knowledge after due inquiry, except such counsel
need not express any opinion with respect to Shell CO2, or (d) violate
any applicable provisions of the federal laws of the United States, the
laws of the State of Texas or the Delaware Act;
(xvii) The statements set forth in the Prospectus
under the captions "Description of Common Units," "Material Federal
Income Tax Considerations" and "Recent Tax Developments," insofar as
they purport to constitute a summary of the terms of the Designated
Units or describe the provisions of federal law, the Delaware General
Corporation Law ("DGCL") and the Delaware Act and documents referred to
therein, in each case, are accurate, complete and fair in all material
respects;
(xviii) The Designated Units have been approved for
listing on the New York Stock Exchange, subject only to official notice
of issuance;
(xix) Each of the Partnership and the General Partner
is exempt from regulation as (a) a "holding company" or a "subsidiary
company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or (b) an "investment
company" or an entity "controlled by" an "investment company," as such
terms are defined in the Investment Company Act;
(xx) The Registration Statement was declared
effective under the Act by the Commission and to the knowledge of such
counsel after due inquiry, no order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or is pending, threatened or contemplated.
Any required filing of the Prospectus relating to the sale of the
Designated Units pursuant to Rule 424(b) under the Act has been made in
the manner and within the time period required by such rule; and
(xxi) The Registration Statement and the Prospectus
(including any documents incorporated by reference in the Prospectus,
when such documents became
21
<PAGE> 22
effective or were filed with the Commission), as amended or
supplemented, appear on their face to comply as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
(other than the financial statements and related schedules and other
financial data contained therein, as to which such counsel need express
no opinion).
Such counsel shall also deliver a letter to the effect that they have
participated in conferences with officers and other representatives of the
Partnership, representatives of the Partnership's accountants, representatives
of the Underwriters and counsel for the Underwriters, at which conferences the
contents of the Registration Statement and Prospectus and related matters were
discussed and, based upon such participation and review, and relying as to
materiality, in part upon the factual statements of the officers and other
representatives of the Partnership and others, no facts have come to such
counsel's attention that have caused them to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made by the
Partnership prior to such Time of Delivery (other than the financial statements
and related schedules and other financial data contained therein, as to which
such counsel need not comment) contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; or that, as of its date, the
Prospectus as amended or supplemented or any further amendment or supplement
thereto made by the Partnership prior to such Time of Delivery (other than the
financial statements and related schedules and other financial data contained
therein, as to which such counsel need not comment) contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Partnership to such Time of
Delivery (other than the financial statements and related schedules and other
financial data contained therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and such counsel have
no reason to believe that the 1999 Form 10-K (other than the financial
statements and related schedules and other financial data contained therein and
the exhibits thereto, as to which such counsel need express no opinion) or any
subsequent documents incorporated by reference in the Prospectus, when such
documents became effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or, in the case of the 1999 Form 10-K (other than the financial statements and
related schedules and other financial data contained therein and the exhibits
thereto, as to which such counsel need express no opinion) and any subsequent
documents which were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents were so filed,
not misleading; and they do not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required
22
<PAGE> 23
to be described in the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or described as
required. Such letter may state that, because the primary purpose of such
counsel's engagement was not to establish or confirm factual matters or
financial matters and because of the wholly or partially non-legal character of
many of the statements contained in the Registration Statement and the
Prospectus, such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus (except to the extent
expressly set forth in paragraph (xvii) of this Section 7(c)), and they have not
independently verified the accuracy, completeness or fairness of such statements
(except as aforesaid); and that, without limiting the foregoing, they assume no
responsibility for, have not independently verified and have not been asked to
comment on the accuracy, completeness or fairness of the financial statements
and related schedules included in the Registration Statement and the Prospectus,
and they have not examined the financial or other records from which such
financial statements and related schedules and other financial data contained
therein were derived.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than federal law, Texas law,
the Colorado Limited Liability Company Act, the DGCL and the Delaware Act.
(d) On the date of the Pricing Agreement for such Designated
Units at a time prior to the execution of the Pricing Agreement with respect to
such Designated Units and at each Time of Delivery for such Designated Units,
the independent accountants of the Partnership who have certified the financial
statements of the Partnership and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the latest of the effective date of the
Registration Statement, the date of the most recent report filed with the
Commission containing financial statements and incorporated by reference in the
Registration Statement or the date of the Pricing Agreement, and a letter dated
such Time of Delivery, respectively, to the effect set forth in Annex II hereto,
and with respect to such letter dated such Time of Delivery, as to such other
matters as the Representatives may reasonably request and in form and substance
satisfactory to the Representatives (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement and as of each Time of
Delivery is attached as Annex I(b) hereto);
(e) (i) None of the Kinder Morgan Entities shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Units any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus
as amended prior to the date of the Pricing Agreement relating to the Designated
Units, and (ii) since the respective dates as of which information is given in
the Prospectus as amended prior to the date of the Pricing Agreement relating to
the Designated Units there shall not have been any change in the partners'
capital or capital stock,
23
<PAGE> 24
as applicable, or long-term debt of the Partnership (or any of the other Kinder
Morgan Entities) or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
unitholders' equity or results of operations of the Partnership (or any of the
other Kinder Morgan Entities), otherwise than as set forth or contemplated in
the Prospectus as amended prior to the date of the Pricing Agreement relating to
the Designated Units, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Units on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented relating to the
Designated Units;
(f) On or after the date of the Pricing Agreement relating to
the Designated Units (i) no downgrading shall have occurred in the rating
accorded any of the Partnership's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the
Partnership's debt securities or preferred stock;
(g) On or after the date of the Pricing Agreement relating to
the Designated Units, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a suspension or material limitation in trading in the
Partnership's securities on the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities declared by either Federal or New
York or Texas State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war, if the effect of any such event specified in
this clause (iv) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Designated Units on the terms and in the manner contemplated in the Prospectus
as first amended or supplemented relating to the Designated Units;
(h) The Partnership has obtained and delivered to the
Underwriters executed copies of an agreement from each of Richard D. Kinder,
William V. Morgan and Dixon B. Betz and each other executive officer or director
of the General Partner, from Mr. Roy N. Cook and from the General Partner,
substantially to the effect set forth in subsection 5(e)(i) hereof in form and
substance satisfactory to you; except that, with respect to the General Partner,
such letter may be subject to an exception if and to the extent the board of
directors of the General Partner, shall have determined in good faith that the
disposal of Common Units held by the General Partner is in the best interests of
the stockholders of Kinder Morgan, Inc., a Delaware corporation; provided,
however, that the General Partner shall have so advised the Underwriters at
least two Business Days prior to any such disposition;
(i) The Partnership shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on the
Business Day next succeeding the date of the Pricing Agreement relating to the
Designated Units;
24
<PAGE> 25
(j) Prior to commencement of the offering of the Designated
Units, the Designated Units shall have been listed, subject to notice of
issuance, on the New York Stock Exchange; and
(k) The Partnership shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the Designated
Units a certificate or certificates of officers of the General Partner
satisfactory to the Representatives as to the accuracy of the representations
and warranties of the Partnership herein at and as of such Time of Delivery, as
to the performance by the Partnership of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (e) of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Partnership will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the 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 Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Designated
Units, 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 each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter 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 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
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Designated Units, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Partnership by any Underwriter of Designated Units through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Designated Units.
(b) Each Underwriter will indemnify and hold harmless the
Partnership against any losses, claims, damages or liabilities to which the
Partnership may become subject, under the 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 Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Units, 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 any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the
25
<PAGE> 26
Prospectus as amended or supplemented and any other prospectus relating to the
Designated Units, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Partnership by such
Underwriter through the Representatives expressly for use therein; and will
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.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the 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 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, the indemnifying party shall
not be liable to such indemnified party under such subsection 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) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above 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 benefits received by the Partnership on the one hand and the
Underwriters of the Designated Units on the other from the offering of the
Designated Units to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Partnership on the one
hand and the Underwriters of the Designated Units on the other in
26
<PAGE> 27
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Partnership on the one hand and such Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Partnership bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Partnership on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Partnership and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (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 in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Units underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which 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 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Units in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Designated Units and not joint.
(e) The obligations of the Partnership under this Section 8
shall be in addition to any liability which the Partnership may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the General Partner
and to each person, if any, who controls the Partnership within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Units or Optional Units which it has agreed to purchase under the
Pricing Agreement relating to such Designated Units, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Units on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Firm Units or Optional Units, as the case
may be, then the Partnership shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory
27
<PAGE> 28
to the Representatives to purchase such Designated Units on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Partnership that they have so arranged for the purchase of such Designated
Units, or the Partnership notifies the Representatives that it has so arranged
for the purchase of such Designated Units, the Representatives or the
Partnership shall have the right to postpone the Time of Delivery for such
Designated Units for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Partnership agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the opinion
of the Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Units.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Units or Optional Units, as the case may be, of a
defaulting Underwriter or Underwriters by the Representatives and the
Partnership as provided in subsection (a) above, the aggregate number of such
Designated Units which remains unpurchased does not exceed one-eleventh of the
aggregate number of the Firm Units or Optional Units, then the Partnership shall
have the right to require each non-defaulting Underwriter to purchase the number
of Firm Units or Optional Units which such Underwriter agreed to purchase under
the Pricing Agreement relating to such Designated Units and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the number of Firm Units or Optional Units which such Underwriter agreed to
purchase under such Pricing Agreement) of the Firm Units or Optional Units of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Units of a defaulting Underwriter or Underwriters by
the Representatives and the Partnership as provided in subsection (a) above, the
aggregate principal amount of Firm Units or Optional Units, as the case may be,
which remains unpurchased exceeds one-eleventh of the aggregate number of the
Firm Units or Optional Units, as the case may be, as referred to in subsection
(b) above, or if the Partnership shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase Firm
Units or Optional Units, as the case may be, of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Firm Units or the
Over-allotment Option relating to such Optional Units, as the case may be,
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Partnership, except for the expenses to be borne by the
Partnership and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Partnership and the several Underwriters, as set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and
28
<PAGE> 29
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, the Partnership, or any officer or director or controlling
person of the Partnership, and shall survive delivery of and payment for the
Designated Units.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, or if the Underwriters elect not to
purchase the Designated Securities hereunder solely because one or more of the
conditions in section 7(b), 7(g)(i), 7(g)(iii) or 7(g)(iv) have not been
satisfied, the Partnership shall not then be under any liability to any
Underwriter with respect to the Designated Units covered by such Pricing
Agreement except as provided in Sections 6 and 8 hereof; but, if for any other
reason Designated Units are not delivered by or on behalf of the Partnership as
provided herein, the Partnership will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Units, but the Partnership shall then be under no
further liability to any Underwriter with respect to such Designated Units
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Units shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Partnership shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Partnership set forth in
the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Partnership by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Partnership and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the General Partner and each person who controls the Partnership or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any of
the Common Units from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
29
<PAGE> 30
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "Business Day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
30
<PAGE> 31
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Partnership and for each of the Representatives
plus one for each counsel counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters and
the Partnership. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Partnership for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
KINDER MORGAN ENERGY
PARTNERS, L.P.
By: Kinder Morgan G.P., Inc.,
its general partner
By: /s/ Michael C. Morgan
--------------------------------------
Name: Michael C. Morgan
Title: Vice President Investor
Relations and Strategy
Accepted as of the date hereof:
Goldman, Sachs & Co.
PaineWebber Incorporated
Salomon Smith Barney Inc.
By: /s/ Goldman, Sachs & Co.
---------------------------
(Goldman, Sachs & Co.)
<PAGE> 32
ANNEX I
PRICING AGREEMENT
Goldman, Sachs & Co.
PaineWebber Incorporated
Salomon Smith Barney Inc.
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
March 28, 2000
Ladies and Gentlemen:
Kinder Morgan Energy Partners, L.P., a Delaware limited partnership
(the "Partnership"), proposes, subject to the terms and conditions stated herein
and in the Underwriting Agreement, dated March 28, 2000 (the "Underwriting
Agreement"), among the Partnership (as defined in the Underwriting Agreement) on
the one hand and Goldman, Sachs & Co., PaineWebber Incorporated and Salomon
Smith Barney Inc. on the other hand, to issue and sell to the Underwriters named
in Schedule I hereto (the "Underwriters") the Common Units specified in Schedule
II hereto (the "Designated Units"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein; and each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated Units
which are the subject of this Pricing Agreement, unless such representation or
warranty is as of a specified date or is updated on schedules to this Pricing
Agreement. Each reference to the Representatives herein and in the provisions of
the Underwriting Agreement so incorporated by reference shall be deemed to refer
to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Units pursuant to Section 12 of the Underwriting Agreement and
the address of the Representatives referred to in such Section 12 are set forth
at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Units, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Annex I-1
<PAGE> 33
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Partnership
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the
Partnership, at the time and place and at the purchase price to the Underwriters
set forth in Schedule II hereto, the number of Firm Units set forth opposite the
name of such Underwriter in Schedule I hereto and, (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase Optional
Units, as provided below, the Partnership agrees to issue and sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Partnership at the purchase price to the
Underwriters set forth in Schedule II hereto that portion of the number of
Optional Units as to which such election shall have been exercised.
The Partnership hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Units set forth opposite
the name of such Underwriter in Schedule I hereto on the terms referred to in
the paragraph above for the sole purpose of covering over-allotments in the sale
of the Firm Units. Any such election to purchase Optional Units may be exercised
by written notice from the Representatives to the Partnership given within a
period of 30 calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Units to be purchased and the date on
which such Optional Units are to be delivered, as determined by the
Representatives, but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Partnership otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.
Annex I-2
<PAGE> 34
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Partnership and each of the Representatives plus
one for each counsel counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Partnership. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is or will be pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Partnership for examination upon request, but without warranty
on the part of the Representatives as to the authority of the signers thereof.
Very truly yours,
KINDER MORGAN ENERGY
PARTNERS, L.P.
By: Kinder Morgan G.P., Inc.,
its general partner
By:
--------------------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
PaineWebber Incorporated
Salomon Smith Barney Inc.
By:
-------------------------------
(Goldman, Sachs & Co.)
Annex I-3
<PAGE> 35
SCHEDULE I
<TABLE>
<CAPTION>
MAXIMUM
NUMBER OF
NUMBER OF FIRM OPTIONAL UNITS
UNITS TO BE WHICH MAY BE
UNDERWRITER PURCHASED PURCHASED
- ------------------------------------------------------------------- -------------- --------------
<S> <C> <C>
Goldman, Sachs & Co............................................... 1,350,000 202,500
PaineWebber Incorporated.......................................... 1,350,000 202,500
Salomon Smith Barney Inc.......................................... 1,350,000 202,500
A.G. Edwards & Sons, Inc. ........................................ 150,000 22,500
First Union Securities, Inc. ..................................... 150,000 22,500
Sanders Morris Harris Inc. ....................................... 150,000 22,500
--------- -------
Total.................................................... 4,500,000 675,000
========= =======
</TABLE>
Annex I-4
<PAGE> 36
SCHEDULE II
TITLE OF DESIGNATED UNITS:
Common Units Representing Limited Partner Interests
NUMBER OF DESIGNATED UNITS:
Number of Firm Units: 4,500,000
Maximum Number of Optional Units: 675,000
INITIAL OFFERING PRICE TO PUBLIC:
$39.75 per Unit
PURCHASE PRICE BY UNDERWRITERS:
$38.06 per Unit
COMMISSION PAYABLE TO UNDERWRITERS:
$1.69 per Unit (Federal (same day) Funds)
FORM OF DESIGNATED UNITS:
Definitive form to be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery at the office of The
Depository Trust Company or its designated custodian
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
DESCRIBE ANY BLACKOUT PROVISIONS WITH RESPECT TO THE DESIGNATED UNITS:
See Section 5(e) of Underwriting Agreement.
TIME OF DELIVERY:
10:00 a.m. (New York City time), April 3, 2000
Annex I-5
<PAGE> 37
DEFEASANCE PROVISIONS:
Not applicable
CLOSING LOCATION:
Houston, Texas
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Goldman, Sachs & Co., PaineWebber
Incorporated and Salomon Smith
Barney Inc.
Address for Notices, etc.: c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
OTHER TERMS* :
See "Description of Common Units" and "Material Federal Income Tax
Considerations" in Prospectus dated January 26, 1999.
- --------
* A description of particular tax, accounting or other unusual features (such as
the addition of event risk provisions) of the Designated Units should be set
forth, or referenced to an attached and accompanying description, if necessary,
to ensure agreement as to the terms of the Designated Units to be purchased and
sold. Such a description might appropriately be in the form in which such
features will be described in the Prospectus Supplement for the offering.
Annex I-6
<PAGE> 38
SCHEDULE III
List of subsidiaries (as such term is defined in the rules and
regulations of the Commission under the Act and the Exchange Act) of the
Partnership or other entities in which the Partnership, the General Partner, any
of the Operating Partnerships or SFPP has an equity ownership interest of at
least 50% and which owns assets or conducts business:
CGT Trailblazer, L.L.C.
Heartland Company
Kinder Morgan Interstate Gas Transmission LLC
Kinder Morgan CO2, LLC
Kinder Morgan Bulk Terminals, Inc.
Kinder Morgan Operating L.P. "A"
Kinder Morgan Operating L.P. "B"
Kinder Morgan Operating L.P. "C"
Kinder Morgan Operating L.P. "D"
Plantation Pipe Line Company
River Consulting, Inc.
SFPP, L.P.
Kinder Morgan Trailblazer, LLC
Trailblazer Pipeline Company
Western Plant Services, Inc.
Annex I-7
<PAGE> 39
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants
with respect to the Partnership and its subsidiaries within the meaning
of the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements and
any supplementary financial information and schedules audited (and, if
applicable pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations thereunder;
and, if applicable, they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of the
consolidated interim financial statements, selected financial data, pro
forma financial information, and/or condensed financial statements
derived from audited financial statements of the Partnership for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been [separately] furnished to the
representative or representatives of the Underwriters (the
"Representatives") such term to include an Underwriter or Underwriters
who act without any firm being designated as its or their
representatives [and are attached hereto];
(iii) They have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus and/or included in the Partnership's
quarterly report on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of which [have
been separately furnished to the Representatives][are attached hereto];
and on the basis of specified procedures including inquiries of
officials of the Partnership who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (v)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations;
(iv) The unaudited selected financial information
with respect to the consolidated results of operations and financial
position of the Partnership for the five most recent fiscal years
included in the Prospectus and included or incorporated by reference in
Item 6 of the Partnership's Annual Report on Form 10-K for the most
recent fiscal year
Annex II-1
<PAGE> 40
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Partnership's Annual Reports on Form 10-K for such fiscal years;
(v) On the basis of limited procedures, not
constituting an examination in accordance with generally accepted
auditing standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Partnership and
its subsidiaries, inspection of the minute books of the Partnership and
its subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Partnership and its subsidiaries
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Partnership's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made
to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus or included in the
Partnership's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Partnership's Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Partnership's Annual Report
on Form 10-K for the most recent fiscal year;
Annex II-2
<PAGE> 41
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated partners' capital (other than issuances of
capital stock upon exercise of options and unit appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Partnership
and its subsidiaries, or any decreases in consolidated net
current assets or unitholders' equity or other items specified
by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per unit amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vi) In addition to the audit referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (v) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records
of the Partnership and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by
the Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
Annex II-3
<PAGE> 42
accounting records of the Partnership and its subsidiaries and have
found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
Annex II-4
