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Exhibit 4.14
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FORM OF COMMON SECURITIES GUARANTEE AGREEMENT
K N Capital Trust II
Dated as of _____ __, ____
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TABLE OF CONTENTS
Page
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ARTICLE I.
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation................... 2
ARTICLE II.
GUARANTEE
SECTION 2.1. Guarantee........................................ 3
SECTION 2.2. Subordination.................................... 3
SECTION 2.3. Waiver of Notice and Demand...................... 3
SECTION 2.4. Obligations Not Affected......................... 4
SECTION 2.5. Rights of Holders................................ 4
SECTION 2.6. Guarantee of Payment............................. 5
SECTION 2.7. Subrogation...................................... 5
SECTION 2.8. Independent Obligations.......................... 5
ARTICLE III.
LIMITATION OF TRANSACTIONS; RANKING
SECTION 3.1. Limitation of Transactions....................... 5
SECTION 3.2. Ranking.......................................... 6
ARTICLE IV.
TERMINATION
SECTION 4.1. Termination...................................... 6
ARTICLE V.
MISCELLANEOUS
SECTION 5.1. Successors and Assigns........................... 6
SECTION 5.2. Amendments....................................... 7
SECTION 5.3. Notices.......................................... 7
SECTION 5.4. Benefit.......................................... 7
SECTION 5.5. Governing Law.................................... 7
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FORM OF COMMON SECURITIES GUARANTEE AGREEMENT
This FORM OF COMMON SECURITIES GUARANTEE AGREEMENT (the
"Common Securities Guarantee"), dated as of _____ __, ____, is executed and
delivered by K N Energy, Inc., a Kansas corporation (the "Guarantor"), for the
benefit of the Holders (as defined herein) from time to time of the Common
Securities (as defined herein) of K N Capital Trust II, a Delaware statutory
business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of the date hereof, among the trustees and
administrators 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 liquidation amount of $_________, designated the ____% Common
Securities (collectively the "Common Securities");
WHEREAS, the Common Securities are being issued by the Issuer and
the proceeds thereof, together with the proceeds from the issuance of the
Issuer's Capital Securities (as defined in the Declaration), will be used to
purchase the Debentures (as defined in the Declaration) of the Guarantor, which
will be deposited with Wilmington Trust Company, as Institutional Trustee under
the Declaration, as trust assets;
WHEREAS, as an 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, as of the date hereof, the Guarantor is also executing and
delivering a guarantee agreement (the "Capital Securities Guarantee") with
substantially identical terms to this Common Securities Guarantee for the
benefit of the holders of the Capital Securities (as defined in the
Declaration), except that if an Event of Default (as defined in the
Declaration), 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 Capital Securities to
receive Guarantee Payments under the Capital 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
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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 have the respective meanings assigned to them
in this Section 1.1;
(b) terms defined in the Declaration as at the date of execution of
this Common Securities Guarantee 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.
"Capital Securities Guarantee" has the meaning set forth in the
recitals.
"Common Securities" has the meaning set forth in the recitals.
"Debentures" has the meaning set forth in the recitals.
"Declaration" has the meaning set forth in the recitals.
"Guarantee Payments" means 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 accumulated and unpaid distributions that
are required to be paid on such Common Securities to the extent the Issuer shall
have funds available therefor, (ii) the redemption price (the "Redemption
Price"), plus all accumulated and unpaid distributions to the date of redemption
with respect to any Common Securities called for redemption by the Issuer, to
the extent the Issuer has funds available therefor and (iii) upon a voluntary or
involuntary liquidation, dissolution, winding-up or termination of the Issuer
(other than in connection with a distribution of the Debentures to the Holders
or the redemption of all the Common Securities), the lesser of (a) the aggregate
of liquidation amount and all accumulated and unpaid distributions on the Common
Securities to the date of payment, to the extent the Issuer has 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"). If an Event of Default has occurred and is
continuing, the rights of Holders of the Common Securities to receive Guarantee
Payments under this Common
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Securities Guarantee are subordinated to the rights of holders of Capital
Securities to receive guarantee payments under the Capital Securities Guarantee.
"Guarantor" has the meaning set forth in the recitals.
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Common Securities.
"Issuer" has the meaning set forth in the recitals.
"Majority in Liquidation Amount" of the Common Securities means,
except as provided in the terms of the Common Securities, a vote by Holder(s),
voting separately as a class, of more than 50% of the liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all Common Securities.
"Trust Securities" means the Common Securities and the Capital
Securities.
ARTICLE II.
GUARANTEE
SECTION 2.1. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to 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 that 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. Subordination. If an Event of Default has occurred and
is continuing, the rights of the Holders of the Common Securities to receive
Guarantee Payments under this Common Securities Guarantee are subordinated to
the rights of the Holders of the Capital Securities to receive guarantee
payments under the Capital Securities Guarantee.
SECTION 2.3. 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 2.4. Obligations Not Affected. 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:
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(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, the Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on 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, 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 2.4 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 happening of any of the
foregoing.
SECTION 2.5. 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 2.6. Guarantee of Payment. This Common Securities Guarantee
creates a guarantee of payment and not of collection.
SECTION 2.7. 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, that the Guarantor shall not (except to the
extent required by mandatory provisions of law) be entitled
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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. If an Event of Default 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 Capital Securities to receive Guarantee Payments under
the Capital Securities Guarantee.
SECTION 2.8. 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 to the
terms of this Common Securities Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 2.4
hereof.
ARTICLE III.
LIMITATION OF TRANSACTIONS; RANKING
SECTION 3.1. Limitation of Transactions. So long as any Capital
Securities remain outstanding, if (i) the Guarantor has exercised its option to
defer interest payments on the Debentures by extending the interest payment
period and such extension shall be continuing, (ii) the Guarantor shall be in
default with respect to its Guarantee Payments or other obligations under this
Common Securities Guarantee or (iii) there shall have occurred and be continuing
any event that, with the giving of notice, would constitute an Event of Default
then the Guarantor (a) shall not declare or pay any dividend on, make
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of its common stock in connection with the
satisfaction by the Guarantor or any of its subsidiaries of their respective
obligations under any benefit plans for directors, officers, agents or employees
or the Guarantor's dividend reinvestment or director, officer, agent or employee
stock purchase plans, (ii) as a result of a reclassification of its capital
stock or the exchange or conversion of one class or series of its capital stock
for another class or series of its capital stock, (iii) the purchase of
fractional interests in shares of its capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted or
exchanged for capital stock, (iv) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of capital stock
of the Guarantor or (v) any declaration of a dividend in connection with the
implementation or extension of a stockholders' rights plan, or the issuance of
stock under any such plan (including such existing plan) in the future or the
redemption or repurchase or any such rights pursuant thereto)), (b) shall not
make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities issued by the Guarantor which rank pari
passu with or junior to the Debentures and (c) shall not make any guarantee
payments with respect to any guarantee by the Guarantor of
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any securities of any subsidiary of the Guarantor if such guarantee ranks pari
passu with or junior in right of payment to the Debentures.
SECTION 3.2. Ranking. This Common Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank pari passu in
right of payment to all other senior unsecured obligations of the Guarantor.
ARTICLE IV.
TERMINATION
SECTION 4.1. Termination. This Common Securities Guarantee shall
terminate as to each Holder upon (i) full payment of the Redemption Price and
accrued and unpaid distributions with respect to all Common Securities, (ii) the
distribution of the Debentures held by the Issuer to the Holders of the Common
Securities or (iii) dissolution of the Issuer and will terminate completely upon
full payment of the amounts payable in accordance with the Declaration.
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.
Except in connection with any permitted merger or consolidation of the Guarantor
with or into another entity or any permitted sale, transfer or lease of the
Guarantor's assets to another entity (as described in Article 7 of the
Indenture), the Guarantor may not assign its rights or delegate its obligations
under the Guarantee without the prior approval of the Holders of at least a
Majority in Liquidation Amount of the Common Securities then outstanding.
SECTION 5.2. Amendments. Except with respect to any changes that do
not materially 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 the Common Securities. The provisions of Section 12.02 of
the Declaration with respect to meetings of Holders of the Trust 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 first class mail, as
follows:
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(a) 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):
K N Energy, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(b) 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 IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
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THIS COMMON SECURITIES GUARANTEE AGREEMENT is executed as of the day
and year first above written.
K N ENERGY, INC.
By:___________________________________
Name:
Title:
