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COMMON SECURITIES GUARANTEE AGREEMENT
CENTRAL PARKING CORPORATION
Dated as of March 18, 1998
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation............................... 2
ARTICLE II
GUARANTEE
SECTION 2.1. Guarantee.................................................... 4
SECTION 2.2. Subordination................................................ 4
SECTION 2.3. Waiver of Notice and Demand.................................. 4
SECTION 2.4. Obligations Not Affected..................................... 5
SECTION 2.5. Rights of Holders............................................ 6
SECTION 2.6. Guarantee of Payment......................................... 6
SECTION 2.7. Subrogation.................................................. 6
SECTION 2.8. Independent Obligations...................................... 7
SECTION 2.9. Acknowledgment by Guarantor.................................. 7
ARTICLE III
LIMITATION OF TRANSACTIONS; RANKING
SECTION 3.1. Limitation of Transactions................................... 7
SECTION 3.2. Ranking...................................................... 8
ARTICLE IV
TERMINATION
SECTION 4.1. Termination.................................................. 8
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Successors and Assigns....................................... 9
SECTION 5.2. Amendments................................................... 9
SECTION 5.3. Notices...................................................... 9
SECTION 5.4. Benefit...................................................... 10
SECTION 5.5. Governing Law................................................ 10
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COMMON SECURITIES GUARANTEE AGREEMENT
This COMMON SECURITIES GUARANTEE AGREEMENT (the "Common
Securities Guarantee"), dated as of March 18, 1998, is executed and delivered by
Central Parking Corporation, a Tennessee corporation (the "Guarantor"), for the
benefit of the Holders (as defined herein) from time to time of the Common
Securities (as defined herein) of Central Parking Finance Trust, a Delaware
statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Trust Agreement"), dated as of March 18, 1998, among the trustees of
the Trust named therein, the Guarantor, as sponsor, and the Holders from time to
time of undivided beneficial interests in the assets of the Trust, the Trust is
issuing on the date hereof 123,711 common securities, having an aggregate stated
liquidation amount of $25 per Common Security, designated the 5 1/4% Trust
Issued Common Securities (the "Common Securities") (plus up to an additional
12,371 Common Securities, having a liquidation amount of $25 per Common Security
to meet capital requirements of the Trust in the event of an issuance of
Additional Preferred Securities (as defined in the Trust Agreement)), designated
the 5 1/4% Convertible Common Securities;
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Common Securities Guarantee, to guarantee the
obligations of the Trust to the Holders on the terms and conditions set forth
herein;
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 to receive Guarantee Payments (as defined herein) under this
Common Securities Guarantee shall be subordinated to the rights of holders of
Preferred Securities to receive Guarantee Payments (as defined in the Preferred
Securities Guarantee) under the Preferred Securities Guarantee; and
NOW, THEREFORE, in consideration of the purchase by each
Holder, 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.
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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 have the respective
meanings assigned to them in this Section 1.1;
(b) terms defined in the Trust Agreement as at the date
hereof have the same meaning when used in this Common Securities
Guarantee unless otherwise defined in the 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;
(f) a term defined in the Trust Indenture Act of 1939, as
amended, has the same meaning when used in this Common Securities
Guarantee, unless otherwise defined in this Common Securities Guarantee
or unless the context otherwise requires;
(g) a reference to the singular includes the plural and
vice versa;
(h) a reference to any Person shall include its
successors and assigns;
(i) a reference to any agreement or instrument shall mean
such agreement or instrument as supplemented, modified, amended, or
amended and restated, and in effect from time to time; and
(j) a reference to any statute, law, rule or regulation,
shall include any amendments thereto applicable to the relevant Person,
and any successor statute, law, rule or regulation.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Common
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Securities, to the extent not paid or made by the Trust: (i) any accrued and
unpaid Distributions (as defined in the Trust Agreement) that are required to be
paid on the Common Securities to the extent the Trust has funds available
therefor, (ii) the redemption price, with respect to any Common Securities
called for redemption by the Trust (the "Redemption Price"), to the extent the
Trust has funds available therefor, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection
with the distribution of Convertible Debentures to the Holders or the redemption
of all the Common Securities (as provided in the Trust Agreement)), 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
Trust has funds available therefor and (b) the amount of assets of the Trust
remaining available for distribution to Holders upon the liquidation of the
Trust (in either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Trust, of any Common Securities.
"Indenture" means the Indenture dated as of March 18, 1998
among the Guarantor and Chase Bank of Texas, National Association, a Texas
banking corporation, as trustee, pursuant to which the Convertible Debentures
are to be issued to the Property Trustee (as defined in the Indenture) of the
Trust.
"Indenture Event of Default" means an event of default as
defined in the Indenture.
"Preferred Securities" means the securities representing
preferred undivided beneficial interests in the assets of the Trust.
ARTICLE II
GUARANTEE
SECTION 2.1. Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders (except to the extent paid by the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim that the Trust may
have or assert, the Guarantee Payments, without duplication. 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 Trust to pay
such amounts to the Holders.
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SECTION 2.2. Subordination
Upon the occurrence and during the continuation of an Event of
Default under the Indenture, holders of Preferred Securities shall have priority
over Holders with respect to distributions and payments on liquidation,
redemption and otherwise.
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 Trust 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:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Trust of any express
or implied agreement, covenant, term or condition relating to the
Common Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust 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 Convertible Debentures or any extension of the maturity date of
the Convertible 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 Trust
granting indulgence or extension of any kind;
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(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 Trust or any of the assets of the Trust;
(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 or any other
Persons 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 may
directly institute a legal proceeding against the Guarantor to enforce the
obligations of the Guarantor under this Common Securities Guarantee without
first instituting a legal proceeding against the Trust, the Guarantee Trustee or
any other Person or entity.
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 against the Trust 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 rights 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.
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SECTION 2.8. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust 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.
SECTION 2.9. Acknowledgment by Guarantor
The Guarantor acknowledges its obligation to issue and deliver
common stock upon the conversion of the Common Securities.
ARTICLE III
LIMITATION OF TRANSACTIONS; RANKING
SECTION 3.1. Limitation of Transactions
So long as any Common Securities remain outstanding, if (i)
the Company has exercised its option to defer interest payments on the
Convertible Debentures by extending the interest payment period and such
extension shall be continuing, (ii) if there shall have occurred any Event of
Default under this Common Securities Guarantee, or (iii) there shall have
occurred and be continuing any event that, with the giving of notice or the
lapse of time or both, would constitute an Indenture Event of Default, then the
Guarantor has agreed (a) not to declare or pay dividends on, make a
distribution with respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock (other than (i) purchases or
acquisitions of shares of common stock in connection with the satisfaction by
the Guarantor of its obligations under any employee benefit plans or the
satisfaction by the Guarantor of its obligations pursuant to any contract or
security requiring the Guarantor to purchase shares of common stock, (ii) as a
result of 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 or (iii) 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 (or make any guarantee payments with respect to the
foregoing), (b) not to make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities of the Company that
rank pari passu with or junior to the Convertible Debentures (except by
conversion into or exchange for shares of its capital stock), and
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(c) not to make any guarantee payments with respect to the foregoing (other than
pursuant to this Common Securities Guarantee).
SECTION 3.2. Ranking
(a) This Common Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
to all other liabilities of the Guarantor except any liabilities that may be
pari passu expressly by their terms, (ii) pari passu with the most senior
preferred stock issued from time to time by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock or preferred securities of any affiliate of the Guarantor and
(iii) senior to the Guarantor's common stock.
(b) The holders of any obligations of the Guarantor that
are senior in priority to the obligations under this Common Securities Guarantee
will be entitled to all of the rights inuring to the holders of "Senior
Indebtedness" under Article 12 of the Indenture, and the holders of the
Preferred Securities will be subject to all of the terms and conditions of such
Article 12 with respect to any claims or rights hereunder with the same effect
as though fully set forth herein.
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ARTICLE IV
TERMINATION
SECTION 4.1. Termination
This Common Securities Guarantee will terminate as to each
Holder upon (i) full payment of the Redemption Price of the Common
Securities;(ii) the distribution of the Guarantor's common stock to the Holders
in respect of the conversion of the Preferred Securities into the Guarantor's
common stock or the distribution of the Convertible Debentures (as defined in
the Trust Agreement) to the Holders of all of the Common Securities; or (iii)
full payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Trust. 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 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 materially
adversely affect the rights of Holders (in which case no vote will be required),
this Common Securities Guarantee may be amended only 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 11.2 of the Trust Agreement 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, sent by facsimile or mailed by registered or certified mail, as
follows:
(a) if given to the Trust, in care of the Administrative
Trustees at the Trust's mailing address set forth below (or
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such other address as the Trust may give notice of to the Holders):
c/o Central Parking Corporation
0000 00xx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Monroe J. Carell, Jr
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxxxx
(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):
c/o Central Parking Corporation
0000 00xx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
(c) if given to any Holder, at the address set forth on
the books and records of the Trust.
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 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
AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAWS.
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THIS COMMON SECURITIES GUARANTEE AGREEMENT is executed as of
the day and year first above written.
Central Parking Corporation,
as Guarantor
By:
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Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer
and Chairman of the Board
