EXHIBIT 4.13
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COMMON SECURITIES GUARANTEE AGREEMENT
DELIVERED BY
CARRIAGE SERVICES, INC.
FOR THE BENEFIT OF THE HOLDERS OF COMMON SECURITIES OF
CARRIAGE SERVICES CAPITAL TRUST
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This COMMON SECURITIES GUARANTEE AGREEMENT (the "Common Securities
Guarantee"), dated as of June 3, 1999, is executed and delivered by Carriage
Services, Inc., a Delaware corporation (the "Guarantor"), for the benefit of the
Holders (as defined herein) from time to time of the Common Securities (as
defined in the Declaration (as defined herein)) of Carriage Services Capital
Trust, a Delaware business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of June 3, 1999, among the trustees of the Issuer named
therein, 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
1,875,000 7% Preferred Securities (as defined in the Declaration), having an
aggregate liquidation amount of $93,750,000; and
WHEREAS, pursuant to the Declaration, the Issuer is issuing on the date
hereof 57,992 Common Securities, having an aggregate stated liquidation amount
of $2,899,600 designated the 7% Convertible Common Securities (liquidation
amount $50 per each of the 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 pay on a subordinated basis 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 in substantially identical terms to this Common Securities Guarantee
for the benefit of the holders of the Preferred Securities (the "Guarantee")
except that if a Debenture Event of Default or a Declaration Event of Default
(each as defined herein) (or an event that, with passage of time, would become a
Debenture Event of Default) shall have occurred and be 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 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
SECTION 1.01 In this Common Securities Guarantee, unless the context
otherwise requires, the terms set forth below shall have the following meanings.
(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 1.01 or the
Guarantee;
(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 or in the 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.
"DEBENTURE EVENT OF DEFAULT" means an Event of Default under the
Indenture.
"DECLARATION EVENT OF DEFAULT" means an Event of Default under the
Declaration.
"GUARANTEE EVENT OF DEFAULT" means a default by the Guarantor on any of
its payment or other obligations under the Common Securities Guarantee.
"GUARANTEE PAYMENTS" means the following payments or distributions,
without duplication, with respect to the Common Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accrued and unpaid
Distributions which are required to be paid on such Common Securities, to the
extent that the Issuer shall have funds on hand available therefor at such time,
(ii) the applicable Redemption Price (as defined in the Indenture) with respect
to any Common Securities called for redemption by the Issuer, to the extent that
the Issuer has funds on hand available therefor at such time, and (iii) upon a
voluntary or involuntary dissolution, winding up or liquidation of the Issuer
(other than in connection with the distribution of Debentures to the Holders or
the redemption of all the Common Securities), the lesser of (a) the aggregate
liquidation amount thereof plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution") to the extent
the Issuer has funds available therefor and (b) the amount of assets of the
Issuer remaining available for distribution to Holders upon liquidation of the
Issuer after satisfaction of liabilities to creditors of the Issuer as required
by applicable law.
"HOLDER" means any holder, as registered on the books and records of the
Issuer, of any outstanding Common Securities.
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"SENIOR DEBT" shall have the meaning set forth in the Indenture.
ARTICLE II
SECTION 2.01 The Guarantor irrevocably and unconditionally agrees to pay
in full on a subordinated basis to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by or on behalf of the Issuer), as and
when due, in coin or currency of the United States of America which at the time
of payment is legal tender for payment of public and private debt regardless of
any defense, right of set-off or counterclaim which the Issuer may have or
assert other than the defense of payment. 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 2.02 If a Debenture Event of Default or a Declaration Event of
Default (or an event that, with passage of time, would become a Debenture Event
of Default) shall have occurred and be 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 Guarantee.
SECTION 2.03 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 2.04 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, the amount payable upon redemption, or the
amount payable upon liquidation of the Issuer 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, 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
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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 2.04 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 Person to give
notice to, or obtain consent of, the Guarantor with respect to the happening of
any of the foregoing.
SECTION 2.05 The Guarantor expressly acknowledges that any Holder 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 2.06 This Common Securities Guarantee creates a guarantee of
payment and not of collection. This Common Securities Guarantee will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer) or upon distribution of
Debentures to Holders as provided in the Declaration.
SECTION 2.07 The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Issuer in respect of any amounts paid to such Holders by
the Guarantor under this Common Securities Guarantee and shall have right to
waive payment by the Issuer pursuant to Section 2.01; 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 which 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 2.08 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
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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 2.04 hereof.
SECTION 2.09 The Guarantor acknowledges its obligation to issue and
deliver common stock upon the conversion of the Common Securities.
SECTION 2.10 The Holders of a majority in liquidation amount of Common
Securities may be vote, on behalf of the Holders of all of the Common
Securities, waive any past Guarantee Event of Default and its consequences. Upon
such waiver, any such Guarantee Event of Default shall cease to exist, and any
Guarantee Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Common Securities Guarantee, but no such waiver shall
extend to any subsequent or other default or Guarantee Event of Default or
impair any right consequent thereon.
ARTICLE III
SECTION 3.01 So long as any Common Securities remain outstanding, if (i)
there shall have occurred and be continuing a Debenture Event of Default, a
Declaration Event of Default or an event that, with the giving of notice or the
lapse of time or both, would constitute a Debenture Event of Default or a
Declaration Event of Default or (ii) a selection by the Guarantor of a Deferral
Period as provided in the Indenture and such period, or any extension thereof,
shall be continuing, 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
(other than stock dividends paid by the Guarantor which consist of the stock of
the same class as that on which the dividend is being paid), (b) the Guarantor
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 in interest to the Debentures and (c) shall not
make any guarantee payments with respect to any guarantee by the Guarantor of
the debt securities of any subsidiary of the Guarantor if such guarantee ranks
PARI PASSU with or junior in interest to the Debentures (in each case, other
than (A) dividends or distributions in Common Stock, (B) any declaration of a
dividend in connection with the implementation of a stockholders' 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, (C) payments under the
Guarantee, (D) purchases or acquisitions of shares of the Class A Common Stock
in connection with the satisfaction by the Guarantor of its obligations under
any employee benefit plan or any other contractual obligation of the Guarantor
(other than a contractual obligation ranking pari passu with or junior in
interest to the Debentures), (E) 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 (F) 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).
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SECTION 3.02 This Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank subordinate to all Senior Debt of the
Guarantor to the same extent that the Debentures (as defined in the Indenture)
are subordinated pursuant to the Indenture.
ARTICLE IV
SECTION 4.01 This Common Securities Guarantee shall terminate upon (i)
full payment of the amount payable upon redemption of the Common Securities,
(ii) the distribution of the Guarantor's common stock to the Holders in respect
of the conversion of the Common Securities into the Guarantor's common stock,
(iii) the distribution of the Debentures to the Holders in exchange for all of
the Common Securities or (iv) full payment of the amounts payable in accordance
with the Declaration upon liquidation of the Issuer. 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
SECTION 5.01 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.
SECTION 5.02 Except with respect to any changes which 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 a majority in liquidation amount of the outstanding
Common Securities. The provisions of Section 12.02 of the Declaration with
respect to meetings of Holders of the Securities apply to the giving of such
approval.
SECTION 5.03 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):
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▇▇▇▇ ▇. ▇▇▇▇▇▇
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Carriage Services Capital Trust
c/o Carriage Services, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
(b) if given to the Guarantor, at the Guarantor's mailing address
set forth be low (or such other address as the Guarantor may give notice of to
the Holders of the Common
Securities):
Carriage Services, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
(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 5.04 This Common Securities Guarantee is solely for the benefit of
the Holders and is not separately transferable from the Common Securities.
SECTION 5.05 THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
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THIS COMMON SECURITIES GUARANTEE is executed as of the day and year first
above written.
CARRIAGE SERVICES, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial
Officer
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