Current Report — Form 8-K Filing Table of Contents
1: 8-K Form 8-K Current Report Dated August 7, 1997 3 9K
2: EX-1 Underwriting Agreement 34 120K
3: EX-10.1 Agreement to Purchase Units 4 16K
4: EX-10.2 Amended and Restated Agreement to Purchase Units 4 16K
AGREEMENT TO PURCHASE UNITS
This Agreement to Purchase Units is entered into as of August 7, 1997
among Kinder Morgan Energy Partners, L.P., a Delaware limited partnership (the
"Issuer"), and the persons listed on Schedule A hereto (the "Purchasers").
R E C I T A L S
Issuer desires to sell, and Purchasers desire to purchase 150,000 of
the Issuer's Common Units on the terms and conditions contained in this
The parties hereby agree as follows:
1. Issuer agrees to sell to Purchasers, effective upon receipt by
Issuer of the purchase price therefor, as provided by paragraph 3 below, a total
of 150,000 of its Common Units at a purchase price of $65.50 per Unit for an
aggregate purchase price of $9,825,000 (the "Purchase Price"). The number of
Common Units to be purchased by each Purchaser is set forth on Schedule A.
Purchasers agree to purchase the Units for the Purchase Price.
2. Purchasers acknowledge receipt of the Issuer's Prospectus dated June26, 1997 (the "Prospectus") relating to the sale of the Common Units and Issuer
acknowledges and agrees that Purchasers are relying on the information contained
3. Issuer shall promptly apply for listing of the 150,000 Common Units
on the New York Stock Exchange. Upon receipt by Issuer of approval from the New
York Stock Exchange of such application, Issuer shall immediately give written
notice to Conseco Capital Management, Inc. ("CCM") on behalf of the Purchasers
of such approval (the "Approval Notice") and instruct First Chicago Trust
Company of New York, its transfer agent, to issue promptly a Common Unit
certificate to each Purchaser for the number of Common Units set forth opposite
such Purchaser's name and to deliver such Common Units to Conseco Capital
Management, Inc., 11825 North Pennsylvania Street, Carmel, Indiana46032,
Attention: Thomas Pence or as otherwise provided on Schedule A. Upon receipt of
the Certificates, Purchasers shall immediately wire transfer the Purchase Price
to Issuer at the following account: First Union National Bank of North Carolina
for the account of Kinder Morgan Energy Partners, L.P., account number
2000001098637, ABA routing number 053000219. If CCM has not received the
Approval Notice within 10 business days from the date hereof, CCM shall have the
right, at any time and from time to time prior to CCM's receipt of the Approval
Notice, to terminate this Agreement on behalf of any or all of the Purchasers
and thereafter neither Issuer nor the terminating Purchasers shall have any
further rights, obligations or liabilities to each other under this Agreement.
4. Each Purchaser hereby agrees to become a Limited Partner of Issuer
and to be bound by all of the terms and conditions of the Amended and Restated
Agreement of Limited Partnership of Issuer, as amended (the "Partnership
Agreement"), including without limitation the granting to the General Partner of
Issuer the power of attorney provided for in Section 1.4 of the Partnership
5. Issuer represents and warrants to each Purchaser and their
respective successors and assigns that (a) (prior to the purchase and sale
contemplated hereunder) 6,510,000 Common Units of the Issuer are outstanding,
(b) when purchased by the Purchasers as provided herein, the 150,000 Common
Units shall be (i) duly and validly issued, (ii) on the assumption that the
Purchasers take no part in the control of Issuer's business and otherwise act in
conformity with the provisions of the Issuer's Amended and Restated Agreement of
Limited Partnership regarding control and management of the Issuer (Articles VI
and VII), fully paid and nonassessable and (iii) free from any liens or
encumbrances or rights of others (other than any liens, encumbrances or rights
created by the Purchasers), (c) the Common Units to be purchased by the
Purchasers have been registered under the Securities Act of 1933, as amended,
pursuant to the Issuer's Registration Statement on Form S-3 (File No.
333-25997), which was declared effective on June 26, 1997 and (d) no
registrations under any state securities laws are required in connection with
the transactions contemplated by this Agreement.
6. Each Purchaser agrees that, except for offers, sales or dispositions
to affiliates of such Purchaser, for a period of 90 days from the date of this
Agreement, it will not, without the Issuer's prior written consent, offer, sell,
contract to sell, or otherwise dispose of, any of the Common Units purchased
pursuant to this Agreement. After the expiration of such 90 day period and prior
to August 7, 1998, each Purchaser agrees that, except for offers, sales or
dispositions to affiliates of such Purchaser, it will not, without the Issuer's
prior written consent, offer, sell, contract to sell, or otherwise dispose of,
on any trading day more than that number of Common Units equal to one-third of
the average daily trading volume of the Common Units on the New York Stock
Exchange for the 30 trading days preceding such trading day. Any such transferee
affiliate shall agree to be bound by the terms of this paragraph 6 as if it were
a Purchaser hereunder.
7. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their successors and assigns.
8. This Agreement shall be governed by the laws of the State of Texas,
without giving effect to the principles of conflict of laws of such State.
9. Each person executing this Agreement represents that it has the
power and authority to execute this Agreement.
10. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by Issuer and CCM on behalf of the Purchasers. No agreements or
representations, oral or otherwise, expressed or implied, with respect to the
subject matter of this Agreement have been made by either party that are not set
forth expressly in this Agreement or the Prospectus.
11. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be executed as of the date specified above.
KINDER MORGAN ENERGY PARTNERS, L.P.
By: Kinder Morgan G.P., Inc.
Its General Partner
By: /s/ Thomas B. King
Name: Thomas B. King
Title: President & CEO
CONSECO CAPITAL MANAGEMENT, INC.
Attorney-in-fact for each of the Purchasers
listed on Schedule A
By: /s/ Thomas J. Pence
Name: Thomas J. Pence
Title: V.P. Investments
Salkeld & Co. Seigler & Co.
FBO: Conseco Series Trust- FBO: National City Bank
Common Stock, 99848 Cleveland, BS71927-03
Bankers Trust Company Chase Manhattan Bank
16 Wall Street 4 NY Plaza
4th Floor, Window 62 Ground Floor, Receiving
Tax ID#: 136065491 Window
90,600 shares, net amount of Tax ID#: 13-3641527
$5,934,300 17,450 shares, net amount
Salkeld & Co. Hare & Co.
FBO: Conseco Series Trust- FBO: Indianapolis Symphony
Asset Allocation, 99849 Orchestra, 2835622615
Bankers Trust Company Bank of New York
16 Wall Street One Wall Street
4th Floor, Window 62 3rd Floor, Window A
Tax ID#: 136065491 FAO: Bank One Trust Co.
6,200 shares, net amount 016084
$406,100 Tax ID#: 136062916
2,750 shares, net amount
Hare & Co. Hare & Co.
FBO: Conseco Fund Group- FBO: Conseco Fund Group-
Equity, 069171 Asset Allocation, 069170
Bank of New York Bank of New York
One Wall Street One Wall Street
3rd Floor, Window A 3rd Floor, Window A
Tax ID#: 136062916 Tax ID#: 136062916
29,800 shares, net amount 3,200 shares, net amount