EXHIBIT 10.1
AMENDMENT NO. 2
This Amendment No. 2 dated as of September 16, 1998 ("Agreement"), is
among Carriage Services, Inc., a Delaware corporation (the "Borrower"), the
lenders signatory to the Credit Agreement described below (the "Lenders"), and
NationsBank, N.A., successor in interest by merger to NationsBank of Texas,
N.A., as agent (the "Agent") for the Lenders.
INTRODUCTION
Reference is made to the Credit Agreement dated as of September 9, 1997
(as modified, the "Credit Agreement") among the Borrower, the Lenders, and the
Agent. The Borrower, the Lenders, and the Agent have agreed to increase the
amount of the Commitments under the Credit Agreement to $225,000,000 and make
other amendments to the Credit Agreement as set forth herein in connection
therewith.
THEREFORE, in connection with the foregoing and for other good and
valuable consideration, the Borrower, the Agent and the Lenders hereby agree as
follows:
Section 1. DEFINITIONS; REFERENCES. Unless otherwise defined in this
Agreement, each term used in this Agreement which is defined in the Credit
Agreement has the meaning assigned to such term in the Credit Agreement.
Section 2. AMENDMENT.
(a) The Lenders which are parties to the Credit Agreement prior to the
execution of this Agreement are retaining or increasing their respective
existing Commitments, and each of Chase Bank Texas, N.A., Xxxxx Fargo Bank
(Texas), National Association, and Paribas are committing to respective
Commitments such that upon the effectiveness of this Agreement, the Commitments
of each Lender shall be those set forth for such Lender on the signature pages
of this Agreement, and the aggregate amount of such Commitments shall be
$225,000,000. The effective date for this increase shall be the date of this
Agreement, and following the effectiveness of this Agreement and as of such
date, (a) the Agent shall record the new Commitments in the Register, (b) the
Agent shall reallocate all outstanding Advances and all participation interests
in Letters of Credit, if any, so that the Lenders hold such Advances and
participation interests in Letters of Credit ratably in accordance with their
Commitments, and (c) each of Chase Bank Texas, N.A., Xxxxx Fargo Bank (Texas),
National Association, and Paribas shall be a party to the Credit Agreement for
all purposes and have all of the rights and obligations of a Lender thereunder.
(b) A new definition of "Amendment No. 2" is added to Section 1.1 of the
Credit Agreement in the appropriate alphabetical order as set forth below:
"AMENDMENT NO. 2" means the Amendment No. 2 dated as of September
16, 1998, among the Borrower, the Agent, and the Lenders amending the
terms of this Agreement.
(c) Section 2.01 of the Credit Agreement is amended by deleting the first
sentence thereof in its entirety and replacing it with the following:
Section 2.01 COMMITMENT TO MAKE ADVANCES. Each Lender severally agrees, on
the terms and conditions set forth in this Agreement, to make Advances to
the Borrower from time-to-time on any Business Day during the period from
the date of this Agreement until the Maturity Date in an aggregate amount
not to exceed at any time outstanding (a) the amount set opposite such
Lender's name on the signature pages of the Amendment No. 2 as its
Commitment, or if such Lender has entered into any Assignment and
Acceptance, the amount set forth for such Lender as its Commitment in the
Register maintained by the Agent pursuant to Section 9.06(c), as such
amount may be reduced pursuant to Section 2.05 (such Lender's
"Commitment") LESS (b) such Lender's Pro Rata Share of the Letter of
Credit Exposure at such time LESS (c) such Lender's Pro Rata Share of the
Swing Line Loan at such time.
(d) Section 2.02(c)(i) of the Credit Agreement is amended by deleting such
section in its entirety and replacing it with the following:
(c) CERTAIN LIMITATIONS. Notwithstanding anything in paragraphs (a)
and (b) above:
(i) at no time shall there be more than ten Interest Periods
applicable to outstanding Eurodollar Rate Advances;
(e) Section 7.01(k) of the Credit Agreement is amended by deleting such
section in its entirety and replacing it with the following:
(k) CERTIFICATES; OPINION. The Borrower shall fail to deliver to the
Agent within 30 days after the date of Amendment No. 2 any of the
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following items: (i) certificates of good standing, existence and
authority for each Subsidiary formed or acquired by the Borrower after the
date of this Agreement (but on or prior to the date of Amendment No. 2),
or (ii) a supplemental, favorable opinion of Xxxxx & Xxxxx, a Professional
Corporation, counsel to the Borrower and its Subsidiaries, dated as of the
date of Amendment No. 2, regarding the existence, good standing, and
authority of each of the foregoing Subsidiaries of the Borrower, in form
and substance reasonably satisfactory to the Agent.
(f) Article IV of the Credit Agreement is amended by adding thereto, in
appropriate numerical order, the following Section 4.21:
Section 4.21. YEAR 2000.
(a) The Borrower (i) has begun analyzing the operations of the
Borrower and its Subsidiaries and Affiliates that could be adversely
affected by failure to become Year 2000 compliant (that is, that computer
applications, imbedded microchips and other systems will be able to
perform date-sensitive functions prior to and after December 31, 1999);
and (ii) is developing a plan for becoming Year 2000 compliant in a timely
manner. The Borrower reasonably believes that it will become Year 2000
compliant for its operations and those of its Subsidiaries and Affiliates
on a timely basis except to the extent that a failure to do so could not
reasonably be expected to cause a Material Adverse Change.
(b) The Borrower reasonably believes any suppliers and vendors that
are material to the operations of the Borrower or its Subsidiaries and
Affiliates will be Year 2000 compliant for their own computer applications
except to the extent that a failure to do so could not reasonably be
expected to cause a Material Adverse Change.
(c) The Borrower will promptly notify the Agent in the event the
Borrower determines that any computer application which is material to the
operations of the Borrower, its Subsidiaries, or any of its material
vendors or suppliers will not be fully Year 2000 compliant on a timely
basis, except to the extent that such failure could not reasonably be
expected to cause a Material Adverse Change.
(g) The Schedules to the Credit Agreement are amended by replacing
SCHEDULE
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1 to the Credit Agreement with SCHEDULE 1 attached to this Agreement.
Section 3. EFFECTIVENESS. The effectiveness of the amendments in Section 2
of this Agreement are subject to the satisfaction of the condition precedent
that the Borrower shall have delivered or shall have caused to be delivered the
documents and other items (other than the items indicated as post-closing
documents) listed on the Closing Documents List dated as of even date with this
Agreement, each in form and with substance satisfactory to the Agent and where
applicable executed by the appropriate parties thereto.
Section 4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants that (a) the execution, delivery and performance of this Agreement are
within the corporate power and authority of the Borrower and have been duly
authorized by appropriate proceedings, (b) this Agreement constitutes legal,
valid, and binding obligation of the Borrower enforceable against the Borrower
in accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the rights of
creditors generally and general principles of equity, and (c) upon the
effectiveness of this Agreement and the amendment of the Credit Documents as
provided for herein, no Event of Default shall exist under the Credit Documents
and there shall have occurred no event which with notice or lapse of time would
become an Event of Default under the Credit Documents, as amended.
Section 5. EFFECT ON CREDIT DOCUMENTS. Except as amended herein, the
Credit Agreement and all other Credit Documents remain in full force and effect
as originally executed. Nothing herein shall act as a waiver of the Agent's or
any Lender's rights under the Credit Documents as amended, including the waiver
of any default or event of default, however denominated. The Borrower must
continue to comply with the terms of the Credit Documents, as amended. This
Agreement is a Credit Document for the purposes of the provisions of the other
Credit Documents. Without limiting the foregoing, any breach of representations,
warranties, and covenants under this Agreement may be a default or event of
default under the other Credit Documents.
Section 6. EFFECTIVENESS. This Agreement shall become effective and the
Credit Agreement shall be amended as provided in this Agreement effective on the
date first set forth above when the Agent shall have received duly and validly
executed counterparts hereof signed by the Borrower, the Agent, and the Lenders.
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Section 7. MISCELLANEOUS. The miscellaneous provisions of the Credit
Agreement apply to this Agreement. This Agreement may be signed in any number
of counterparts, each of which shall be an original, and may be executed and
delivered by telecopier.
THIS WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS, AS DEFINED IN THIS
AGREEMENT, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED as of the date first above written.
BORROWER:
CARRIAGE SERVICES, INC.
By: _______________________________________
Xxxxxx X. Xxxxxxxxx, Executive Vice
President and Chief Financial Officer
AGENT:
NATIONSBANK, N.A., successor in interest
by merger to NationsBank of Texas, N.A.,
as Agent
By: _______________________________________
Xxxxxx X. Xxxxx
Vice President
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LENDERS:
NATIONSBANK, N.A., successor in interest by
merger to NationsBank of Texas, N.A.
Commitment: $40,000,000 By:__________________________________
Xxxxxx X. Xxxxx
Vice President
PROVIDENT SERVICES, INC.
Commitment: $50,000,000 By: __________________________________
Xxxxxx X. Xxxxx
Vice President
BANK ONE, TEXAS, NA
Commitment: $30,000,000 By: __________________________________
Name: ________________________________
Title: _______________________________
CIBC INC.
Commitment: $15,000,000 By:___________________________________
Name: ________________________________
Title: _______________________________
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FIRST UNION NATIONAL BANK, successor in
interest by merger to Corestates Bank, N.A.
Commitment: $20,000,000 By: __________________________________
Name: ________________________________
Title: _______________________________
TORONTO DOMINION (TEXAS), INC.
Commitment: $20,000,000 By: __________________________________
Name: ________________________________
Title: _______________________________
CHASE BANK TEXAS, N.A.
Commitment: $20,000,000 By: __________________________________
Name: ________________________________
Title: _______________________________
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
Commitment: $15,000,000 By: ___________________________________
Name: ________________________________
Title: _______________________________
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XXXXXXX
Commitment: $15,000,000 By: __________________________________
Name: ________________________________
Title: _______________________________
By: __________________________________
Name: ________________________________
Title: _______________________________
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