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EXHIBIT 99.3
Execution Copy
AGREEMENT AND SECOND AMENDMENT
TO
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT (FACILITY A)
THIS AGREEMENT AND SECOND AMENDMENT TO COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT (FACILITY A) (this "Amendment") dated as of
June 25, 1999 is among:
(a) SERVICE CORPORATION INTERNATIONAL, a Texas corporation (the
"Company");
(b) the banks and other financial institutions listed under the caption
"Continuing Bank" on the signature pages hereof, (collectively, the "Continuing
Banks");
(c) the banks listed under the caption "Retiring Bank" on the signature
pages hereof (collectively, the "Retiring Banks");
(d) the banks listed under the caption "New Bank" on the signature
pages hereof (collectively, the "New Banks") and together with the Continuing
Banks collectively, the "Banks");
(e) THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Banks (in such capacity, the "Administrative
Agent"); and
(d) BANK OF AMERICA NT & SA, CITIBANK, N.A., ROYAL BANK OF CANADA,
SOCIETE GENERALE, SOUTHWEST AGENCY and UBS AG, STAMFORD BRANCH (collectively,
the "Co-Agents").
PRELIMINARY STATEMENT
The Company, the Administrative Agent and the Co-Agents, the Continuing
Banks and the Retiring Banks have entered into a Competitive Advance and
Revolving Credit Facility Agreement (Facility A) dated as of June 27, 1997, as
amended pursuant to an Agreement and First Amendment to Competitive Advance and
Revolving Credit Facility Agreement (Facility A) dated as of June 26, 1998 (said
Competitive Advance and Revolving Credit Facility Agreement (Facility A), as so
amended, being the "Credit Agreement"). All capitalized terms defined in the
Credit Agreement and not otherwise defined herein shall have the same meanings
herein as in the Credit Agreement. The Company, the Banks, the Retiring Banks
(as only to Section 11(b) hereof), the Administrative Agent and the Co-Agents
have agreed, upon the terms and conditions specified herein, to amend the Credit
Agreement as hereinafter set forth:
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NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Company, the Banks, the Retiring Banks,
the Administrative Agent and the Co-Agents hereby agree as follows:
SECTION 1. Amendments to Section 1.01 of the Credit Agreement.
(a) The definition of the term "Commitment" contained in Section 1.01
of the Credit Agreement is hereby amended in its entirety to read as follows:
"'Commitment' means, (a) with respect to each Bank, the amount
specified for such Bank on such Bank's signature page to the Second Amendment
and (b) with respect to each Person who becomes a Bank after the Second
Amendment Execution Date, the amount specified for such Person on the signature
page of the Assignment and Acceptance, to which it is a party, in each case, as
such amount may be permanently terminated or reduced from time to time pursuant
to Section 2.12, Section 2.14, Section 2.15 or Section 9.11, and as such amount
may be increased from time to time pursuant to Section 2.14, Section 2.15 or
Section 9.11. The Commitment of each Bank shall automatically and permanently
terminate on the Maturity Date.".
(b) The definition of the term "Original Termination Date" contained in
Section 1.01 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"'Original Termination Date' means June 23, 2000.".
(c) The following defined terms are hereby added to Section 1.01 of the
Credit Agreement:
(i) "Second Amendment" means the Agreement and Second Amendment to
Competitive Advance and Revolving Credit Facility Agreement (Facility A)
dated as of June 25, 1999 among the Company, the Banks party thereto, the
Administrative Agent, the Co- Agents and the Retiring Banks (as defined
therein).
(ii) "Second Amendment Execution Date" means the date the Second
Amendment has been executed by all the parties thereto.
(iii) "Utilization Fees" has the meaning specified in Section 2.07.
SECTION 2. Amendment to Section 2.07 of the Credit Agreement. Section
2.07 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"SECTION 2.07. Fees.
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(a) The Company agrees to pay to each Bank, through the
Administrative Agent, (i) on each March 31, June 30, September 30 and
December 31 from the Execution Date to the date on which the Commitment
of such Bank has been terminated and (ii) on the Maturity Date and on
any other date on which the Commitment of such Bank has been
terminated, facility fees (such facility fees being the 'Facility
Fees'), in immediately available funds, at a rate per annum equal to
.125 of 1% of the amount of the Commitment of such Bank from time to
time outstanding, whether used, deemed used or unused, during the
preceding quarter (or shorter period commencing with the Execution Date
and/or ending with the Maturity Date).
(b) The Company agrees to pay to each Bank, through the
Administrative Agent a utilization fee (the 'Utilization Fee'), which
shall accrue at a rate per annum equal to .125 of 1% of each Bank's
Commitment for (i) each day during the period from and including the
Second Amendment Execution Date to but excluding the Termination Date
on which the outstanding Committed Loans of such Bank exceed 25% of
such Bank's Commitment, and (ii) each day on and after the Termination
Date on which the outstanding Committed Loans of such Bank exceed 25%
of such Bank's Commitment on the day immediately preceding the
Termination Date. All Utilization Fees shall be payable in arrears on
each September 30, December 31, March 31 and June 30 during the period
from and including the Second Amendment Effective Date to, but
excluding, the date the Committed Loans are paid in full.
(c) All Facility Fees and Utilization Fees shall be computed
by the Administrative Agent on the basis of the actual number of days
elapsed in a year of 360 days, and such computations, made in good
faith, shall create a rebuttable presumption that they are accurate.
The Facility Fees due to each Bank shall commence to accrue on the
Execution Date and shall cease to accrue on the earlier of the Maturity
Date and the termination of the Commitment of such Bank as provided
herein. The Utilization Fees due to each Bank shall commence to accrue
on the Second Amendment Execution Date and shall cease to accrue on the
earlier of the Maturity Date and the termination of the Commitment of
such Bank as provided herein.
(d) The Facility Fees and the Utilization Fees due under this
Section 2.07 shall be paid on the date due, in immediately available
funds, to the Administrative Agent for distribution among the Banks.
(e) The Company agrees to pay to the Administrative Agent the
fees as provided in the Agent's Fee Letter.
(f) Notwithstanding the foregoing, in no event shall any Bank
be permitted to receive any compensation hereunder constituting
interest in excess of the Highest Lawful Rate.".
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SECTION 3. Amendment to Section 2.09(a) of the Credit Agreement.
Section 2.09(a) of the Credit Agreement is hereby amended in its entirety to
read as follows:
"(a) Subject to the provisions of Section 2.09(d) and Section 2.10,
the Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of
360 days) at a rate per annum equal to (i) in the case of each Eurodollar
Committed Loan, the lesser of (A) the IBO Rate for the Interest Period in
effect for such Borrowing plus .375 of 1% and (B) the Highest Lawful Rate,
and (ii) in the case of each Eurodollar Competitive Loan, the lesser of (A)
the IBO Rate for the Interest Period in effect for such Borrowing plus the
Margin offered by the Bank making such Loan and accepted by a Borrower
pursuant to Section 2.03 and (B) the Highest Lawful Rate.".
SECTION 4. Conditions of Effectiveness. This Amendment shall become
effective when, and only when the following conditions shall have been
fulfilled:
(a) the Company, the Administrative Agent, the Co-Agents, each Bank
and each Retiring Bank shall have executed a counterpart hereof and
delivered the same to the Administrative Agent or, in the case of any Bank
or Retiring Bank as to which an executed counterpart hereof shall not have
been so delivered, the Administrative Agent shall have received written
confirmation by telecopy or other similar writing from such Bank or
Retiring Bank of execution of a counterpart hereof by such Bank or Retiring
Bank; and
(b) the Administrative Agent shall have received from the Company a
certificate of the Secretary or Assistant Secretary of the Company
certifying that attached thereto is (i) a true and complete copy of the
general borrowing resolutions of the Board of Directors of the Company
authorizing the execution, delivery and performance of the Credit
Agreement, as amended hereby, and (ii) the incumbency and specimen
signature of each officer of the Company executing this Amendment.
SECTION 5. Representations and Warranties True; No Default or Event of
Default. The Company hereby represents and warrants to the Administrative Agent,
the Co-Agents and the Banks and the Retiring Banks that after giving effect to
the execution and delivery of this Amendment: (a) the representations and
warranties set forth in the Credit Agreement are true and correct on the date
hereof as though made on and as of such date; provided, however, that for
purposes of this Section 5, the reference in the first sentence of Section 4.07
to the Company Financials shall be a reference to the consolidated financial
statements of the Company and its Subsidiaries most recently delivered to the
Administrative Agent and the Banks by the Company pursuant to Section 5.01(a)(i)
or 5.01(a)(ii), as the case may be, and (b) no event has occurred and is
continuing that constitutes either a Default or an Event of Default.
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SECTION 6. Reference to the Credit Agreement and Effect on the Notes
and Other Documents Executed Pursuant to the Credit Agreement.
(a) Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement," "hereunder," "herein," "hereof" or words
of like import shall mean and be a reference to the Credit Agreement, as amended
hereby.
(b) Upon the effectiveness of this Amendment, each reference in the
documents and agreements delivered or to be delivered pursuant to the Credit
Agreement shall mean and be a reference to the Credit Agreement, as amended
hereby.
(c) Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "Commitment" and "Termination Date" shall mean and be a
reference to each such term as amended hereby.
(d) The Credit Agreement and other documents and agreements delivered
pursuant to the Credit Agreement, and modified by the amendments referred to
above, shall remain in full force and effect and are hereby ratified and
confirmed.
SECTION 7. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 8. GOVERNING LAW; BINDING EFFECT. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND
APPLICABLE FEDERAL LAW AND SHALL BE BINDING UPON THE COMPANY, THE ADMINISTRATIVE
AGENT, THE CO-AGENTS, THE BANKS AND THE RETIRING BANKS AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
SECTION 9. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
SECTION 10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT (INCLUDING THE
EXHIBITS AND SCHEDULES HERETO), AS AMENDED HEREBY, THE BORROWING SUBSIDIARY
COUNTERPARTS, IF ANY, THE ASSIGNMENT AND ACCEPTANCES, IF ANY, AND THE AGENT'S
FEE LETTER EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE COMPANY, THE
ADMINISTRATIVE AGENT, THE CO-AGENTS, THE BANKS AND THE RETIRING BANKS RELATING
TO THE SUBJECT MATTER HEREOF AND THEREOF AND
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SUPERSEDE ALL PRIOR PROPOSALS, AGREEMENTS AND UNDERSTANDINGS RELATING TO SUCH
SUBJECT MATTER.
SECTION 11. Execution by Retiring Banks. (a) Each of the Banks (as
defined in the Credit Agreement) is either a Continuing Bank or a Retiring Bank.
(b) Each of the Retiring Banks is executing this Amendment solely for
the purpose of acknowledging and agreeing that upon the effectiveness of this
Amendment and the payment to it of all principal, interest, fees and any other
amounts due and owing to it under the Credit Agreement and any related document
or instrument, such Retiring Bank shall not have any commitment or obligation to
the Company under the Credit Agreement or any related document or instrument and
shall cease to be a Bank thereunder, and the Company shall have no obligation to
any Retiring Bank under the Credit Agreement or this Amendment, except as
provided in Sections 2.14, 2.15, 2.16, 2.20, 9.04 and 9.05 of the Credit
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed effective as of the date first stated herein, by their respective
officers thereunto duly authorized.
SERVICE CORPORATION INTERNATIONAL
By:
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Xxxx X. Xxxxxxxx
Vice President and Treasurer
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THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
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Name:
Title:
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CO-AGENTS:
BANK OF AMERICA NT & SA,
as Co-Agent
By:
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Name:
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Title:
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CITIBANK, N.A., as Co-Agent
By:
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Name:
-----------------------------
Title:
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00
XXXXX XXXX XX XXXXXX,
as Co-Agent
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
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SOCIETE GENERALE, SOUTHWEST AGENCY,
as Co-Agent
By:
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Name:
-----------------------------
Title:
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UBS AG, STAMFORD BRANCH,
as Co-Agent
By:
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Name:
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Title:
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CONTINUING BANK:
ABN AMRO BANK N.V.
By:
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Name:
-----------------------------
Title:
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By:
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Name:
-----------------------------
Title:
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Commitment: $15,000,000
FACILITY A
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CONTINUING BANK:
BANK OF AMERICA NT & SA
By:
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Name:
-----------------------------
Title:
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Commitment: $30,000,000
FACILITY A
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CONTINUING BANK:
THE BANK OF NEW YORK
By:
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Name:
-----------------------------
Title:
----------------------------
Commitment: $15,000,000
FACILITY A
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NEW BANK:
BANK ONE, TEXAS, N.A.
By:
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Name:
-----------------------------
Title:
----------------------------
Commitment: $20,000,000
FACILITY A
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CONTINUING BANK:
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By:
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Name:
-----------------------------
Title:
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Commitment: $9,000,000
FACILITY A
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CONTINUING BANK:
CHASE BANK OF TEXAS
NATIONAL ASSOCATION
By:
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Name:
-----------------------------
Title:
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Commitment: $44,000,000
FACILITY A
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RETIRING BANK:
CIBC, INC.
By:
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Name:
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Title:
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FACILITY A
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CONTINUING BANK:
CITIBANK, N.A.
By:
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Name:
-----------------------------
Title:
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Commitment: $25,500,000
FACILITY A
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CONTINUING BANK:
COMMERZBANK AKTIENGESELLSHAFT,
ATLANTA AGENCY
By:
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Name:
-----------------------------
Title:
----------------------------
By:
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Name:
-----------------------------
Title:
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Commitment: $21,000,000
FACILITY A
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CONTINUING BANK:
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
-----------------------------
Title:
----------------------------
Commitment: $20,000,000
FACILITY A
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RETIRING BANK:
THE FUJI BANK, LIMITED
By:
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Name:
-----------------------------
Title:
----------------------------
FACILITY A
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RETIRING BANK:
ISTITUTO BANCARIO SAN PAOLO DI
TORINO ISTITUTO MOBILIARE XXXXXX SPA
By:
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Name:
-----------------------------
Title:
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By:
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Name:
-----------------------------
Title:
----------------------------
FACILITY A
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CONTINUING BANK:
ROYAL BANK OF CANADA
By:
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Name:
-----------------------------
Title:
----------------------------
Commitment: $25,500,000
FACILITY A
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CONTINUING BANK:
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
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Name:
-----------------------------
Title:
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Commitment: $25,500,000
FACILITY A
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CONTINUING BANK:
SUNTRUST BANK, ATLANTA
By:
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Name:
-----------------------------
Title:
----------------------------
By:
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Name:
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Title:
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Commitment: $15,000,000
FACILITY A
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CONTINUING BANK:
UBS AG, STAMFORD BRANCH
By:
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Name:
-----------------------------
Title:
----------------------------
By:
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Name:
-----------------------------
Title:
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Commitment: $25,500,000
FACILITY A
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CONTINUING BANK:
WESTPAC BANKING CORPORATION
By:
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Name:
-----------------------------
Title:
----------------------------
Commitment: $9,000,000
FACILITY A
