Exhibit 4.9
COMMON SECURITIES GUARANTEE AGREEMENT
LACLEDE CAPITAL TRUST I
Dated as of _________, 2002
CONTENTS
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Page
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ARTICLE I. DEFINITIONS AND INTERPRETATION..............................1
SECTION 1.1 Definitions and Interpretations.................1
ARTICLE II. GUARANTEE...................................................3
SECTION 2.1 Guarantee.......................................3
SECTION 2.2 Waiver of Notice and Demand.....................3
SECTION 2.3 Obligations Not Affected........................3
SECTION 2.4 Rights of Holders...............................4
SECTION 2.5 Guarantee of Payment............................4
SECTION 2.6 Subrogation.....................................4
SECTION 2.7 Independent Obligations.........................4
ARTICLE III. LIMITATION OF TRANSACTIONS; SUBORDINATION...................5
SECTION 3.1 Limitation of Transactions......................5
SECTION 3.2 Ranking.........................................5
ARTICLE IV. TERMINATION.................................................5
SECTION 4.1 Termination.....................................5
ARTICLE V. MISCELLANEOUS...............................................6
SECTION 5.1 Successors and Assigns..........................6
SECTION 5.2 Amendments......................................6
SECTION 5.3 Notices.........................................6
SECTION 5.4 Benefit.........................................7
SECTION 5.5 Governing Law...................................7
COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Common Securities Guarantee"), dated
as of _____________, 2002, is executed and delivered by The Laclede Group,
Inc., a Missouri corporation (the "Guarantor"), for the benefit of the
Holders (as defined herein) from time to time of the Common Securities (as
defined herein) of Laclede Capital Trust I, a Delaware statutory business
trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of ___________, 2002, among the trustees of
the Issuer named therein, the Guarantor, as sponsor, and the holders from
time to time of undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof _________ common securities, having
an aggregate stated liquidation amount of $_____________ designated the
_____% Trust Originated Common Securities (the "Common Securities"); and
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires to irrevocably and unconditionally agree,
to the extent set forth in this Common Securities Guarantee, to pay to the
Holders of the Common Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth
herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Preferred Securities Guarantee") in substantially identical
terms to this Common Securities Guarantee for the benefit of the holders of
the Preferred Securities (as defined herein), except that if an Event of
Default (as defined in the Indenture), has occurred and is continuing, the
rights of Holders of the Common Securities to receive Guarantee Payments
under this Common Securities Guarantee are subordinated to the rights of
holders of Preferred Securities to receive Guarantee Payments under the
Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Common Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Common Securities
Guarantee for the benefit of the Holders.
ARTICLE I. DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Common Securities Guarantee, unless the context otherwise
requires:
(a) capitalized terms used in this Common Securities Guarantee
but not defined in the preamble above shall have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Declaration as of the date of
execution of this Common Securities Guarantee shall have the same meaning
when used in this Common Securities Guarantee unless otherwise defined in
this Common Securities Guarantee;
(c) a term defined anywhere in this Common Securities
Guarantee has the same meaning throughout;
(d) all references to "the Common Securities Guarantee" or
"this Common Securities Guarantee" are to this Common Securities Guarantee
as modified, supplemented or amended from time to time;
(e) all references in this Common Securities Guarantee to
Articles and Sections are to Articles and Sections of this Common Securities
Guarantee unless otherwise specified; and
(f) a reference to the singular includes the plural and vice
versa.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Common Securities,
to the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions (as defined in the Declaration) that are required to be paid
on such Common Securities to the extent the Issuer shall have funds
available therefor, (ii) the redemption price, including all accrued and
unpaid Distributions to the date of redemption (the "Redemption Price") to
the extent the Issuer has funds available therefor, with respect to any
Common Securities called for redemption by the Issuer, (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the
Issuer (other than in connection with the distribution of Debentures to the
Holders in exchange for Common Securities as provided in the Declaration),
the lesser of (a) the aggregate of the liquidation amount and all accrued
and unpaid Distributions on the Common Securities to the date of payment, to
the extent the Issuer shall have funds available therefor, and (b) the
amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution"), and (iv) all obligations of the Issuer under the
Declaration. If an Event of Default (as defined in the Indenture) has
occurred and is continuing, the rights of Holders of the Common Securities
to receive Guarantee Payments under this Common Securities Guarantee are
subordinated to the rights of holders of Preferred Securities to receive
Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Common Securities.
"Preferred Securities" shall mean the securities representing
preferred undivided beneficial interests in the assets of the Issuer.
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ARTICLE II. GUARANTEE
SECTION 2.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Trustee and the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by the Issuer), as and when due, regardless of
any defense, right of set-off or counterclaim which the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
SECTION 2.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Common
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 2.3 Obligations Not Affected
Except as otherwise provided herein, the obligations, covenants,
agreements and duties of the Guarantor under this Common Securities
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Common Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Common
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Common
Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that results
from the extension of any interest payment period on the Debentures or any
extension of the maturity date of the Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the Common
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors,
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reorganization, arrangement, composition or readjustment of debt of, or
other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Common
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 2.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the occurrence of any of
the foregoing.
SECTION 2.4 Rights of Holders
The Guarantor expressly acknowledges that any Holder of Common
Securities may institute a legal proceeding directly against the Guarantor
to enforce its rights under this Common Securities Guarantee, without first
instituting a legal proceeding against the Issuer or any other Person.
SECTION 2.5 Guarantee of Payment
This Common Securities Guarantee creates a guarantee of payment and
not of collection.
SECTION 2.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Common Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Common Securities
Guarantee; provided, however, that the Guarantor shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Common Securities Guarantee, if, at the time of any such
payment, any amounts are due and unpaid under this Common Securities
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 2.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Common
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant
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to the terms of this Common Securities Guarantee notwithstanding the
occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 2.3 hereof.
ARTILE III. LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1 Limitation of Transactions
So long as any Common Securities remain outstanding, if (i) the
Guarantor shall be in default with respect to its Guarantee Payments or
other obligations hereunder, or (ii) there shall have occurred any Event of
Default under the Indenture or an event of default under the Declaration,
then (a) the Guarantor shall not declare or pay any dividend on, or make any
distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock, (b) the
Guarantor shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities (including
guarantees) issued by the Guarantor that rank pari passu with or junior to
the Debentures or (c) the Guarantor shall not make any guarantee payments
with respect to the foregoing (other than, with respect to clauses (a), (b)
and (c), (i) dividends or distributions in shares of, common stock of the
Guarantor; (ii) any declaration of a dividend in connection with the
implementation of a shareholder rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto; (iii) payments under the Preferred Securities
Guarantee Agreement; (iv) as a direct result of, and only to the extent
required in order to avoid the issuance of fractional shares of capital
stock, following a reclassification of the Guarantor's capital stock or the
exchange or conversion of one class or series of the Guarantor's capital
stock for another class or series of the Guarantor's capital stock; and (v)
the purchase of fractional interests in shares of the Guarantor's capital
stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged).
SECTION 3.2 Ranking
This Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in
right of payment to all other liabilities of the Guarantor, (ii) pari passu
with the most senior preferred or preference stock now or hereafter issued
by the Guarantor and with any guarantee now or hereafter entered into by the
Guarantor in respect of any preferred or preference stock of any Affiliate
of the Guarantor, and (iii) senior to the Guarantor's common stock.
ARTICLE IV. TERMINATION
SECTION 4.1 Termination
This Common Securities Guarantee shall terminate (i) upon full
payment of the Redemption Price of all Common Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Common
Securities, or (iii) upon full payment of the amounts payable in accordance
with the Declaration upon liquidation of the Issuer.
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Notwithstanding the foregoing, this Common Securities Guarantee will
continue to be effective or will be reinstated, as the case may be, if at
any time any Holder of Common Securities must restore payment of any sums
paid under the Common Securities or under this Common Securities Guarantee.
ARTICLE V. MISCELLANEOUS
SECTION 5.1 Successors and Assigns
All guarantees and agreements contained in this Common Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the
Holders of the Common Securities then outstanding.
SECTION 5.2 Amendments
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required),
this Common Securities Guarantee may only be amended with the prior approval
of the Holders of at least a majority in liquidation amount of all the
outstanding Common Securities. The provisions of Section 12.2 of the
Declaration with respect to meetings of Holders of the Securities apply to
the giving of such approval.
SECTION 5.3 Notices
All notices provided for in this Common Securities Guarantee shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Issuer, in care of the Regular Trustees at
the Issuer's mailing address set forth below (or such
other address as the Issuer may give notice of to the
Holders of the Common Securities):
Laclede Capital Trust I
c/o The Laclede Group, Inc.
000 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Treasurer
Facsimile: 000-000-0000
(b) if given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the
Guarantor may give notice of to the Holders of the Common
Securities):
The Laclede Group, Inc.
000 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
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Attention: General Counsel
Facsimile: 000-000-0000
(c) if given to any Holder of Common Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 5.4 Benefit
This Common Securities Guarantee is solely for the benefit of the
Holders of the Common Securities and is not separately transferable from the
Common Securities.
SECTION 5.5 Governing Law
This Common Securities Guarantee shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New
York.
THIS COMMON SECURITIES GUARANTEE is executed as of the day and year
first above written.
THE LACLEDE GROUP, INC., as
Guarantor
By:
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Name:
--------------------------
Title:
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