EXHIBIT 10.1
AMENDMENT NO. 1
This Amendment No. 1 dated as of July 1, 1999 ("Agreement"), is among
Carriage Services, Inc., a Delaware corporation (the "Borrower"), the lenders
signatory to the Credit Agreement described below (the "Lenders"), and Bank of
America, N.A., as administrative agent (the "Administrative Agent") for the
Lenders.
INTRODUCTION
Reference is made to the Credit Agreement dated as of June 14, 1999 (as
modified, the "Credit Agreement"), among the Borrower, the Lenders, and
NationsBank, N.A. d/b/a Bank of America, N.A., predecessor in interest to the
Administrative Agent. The Borrower, the Lenders, and the Administrative Agent
have agreed to make certain modifications to the Credit Agreement in connection
with the Borrower's execution of the Note Purchase Agreement dated as of July 1,
1999 (the "Note Purchase Agreement"), among the Borrower and the note purchasers
signatories thereto pursuant to which the Borrower is issuing notes, referred to
as Senior Notes under the Credit Agreement, and to 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 Administrative 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) Section 1.01 is amended by replacing the definition of "Material
Adverse Change" in its entirety with the following:
"MATERIAL ADVERSE CHANGE" shall mean (a) a material adverse change on the
business, operations, affairs, financial condition, assets, or properties
of the Borrower and its Subsidiaries, taken as a whole, (b) the occurrence
and continuance of any event or circumstance which could reasonably be
expected to have a material adverse effect on the Borrower's ability to
perform its obligations under this Agreement, any Note, or any other
Credit
Document, or (c) a material adverse change on the validity or
enforceability of this Agreement, any Note, or any other Credit Document.
(b) Section 1.01 is amended by inserting the following definition for
"Carriage Business Development Program" in the appropriate alphabetical order:
"CARRIAGE BUSINESS DEVELOPMENT PROGRAM" shall mean a program of the
Borrower whereby not more than 20 former owners of funeral homes or
cemeteries receive preferred securities of a Subsidiary pursuant to which
the holder is entitled to receive up to 10% of such Subsidiary's cash flow
in excess of a predetermined level. Not more than ten Subsidiaries will
participate in the program and the recipients of the preferred securities
are individuals whose funeral homes or cemeteries were acquired by the
Borrower or a Subsidiary. The preferred securities entitle the holders to
receive in the aggregate up to 10% of the aggregate excess cash flow of
the participating Subsidiaries as and when earned, do not constitute a
claim on the assets of any Subsidiary, and are subject to mandatory
redemption by the applicable Subsidiary at maturity (not to exceed ten
years) at a redemption price expressed as a multiple of such excess cash
flow.
(c) Section 6.11 is amended by replacing such section in its entirety with
the following:
Section 6.11. MAINTENANCE OF OWNERSHIP OF SUBSIDIARIES. Except as
permitted by Sections 5.03 and 6.04, the Borrower will not, and will not
permit any of its Subsidiaries to, sell or otherwise dispose of any shares
of capital stock of any of its Subsidiaries or permit any of its
Subsidiaries to issue, sell or otherwise dispose of any shares of its
capital stock or the capital stock of any of its Subsidiaries, except
that, (a) where required by applicable law, up to 20% of the outstanding
stock of any of the Borrower's Subsidiaries may be issued to and held by
employees of the Borrower or any such Subsidiary who are licensed funeral
directors, (b) the Trust Subsidiary may issue the Trust Preferred Stock,
and (c) in connection with Carriage Business Development Program not more
than ten Subsidiaries may issue preferred securities to not more than 20
individuals in the aggregate.
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(d) Section 7.01 is amended by replacing subsection (e) in its entirety
with the following:
(e) INSOLVENCY. (i) The Borrower or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; (ii) any proceeding shall be
instituted by or against the Borrower or any of its Subsidiaries seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee or other
similar official for it or for any substantial part of its property and,
in the case of any such proceeding instituted against the Borrower or any
such Subsidiary, either such proceeding shall remain undismissed for a
period of 60 days or any of the actions sought in such proceeding shall
occur; or (iii) the Borrower or any of its Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
paragraph (e);
Section 3. 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 4. 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
Administrative 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.
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Section 5. 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 Administrative Agent shall have received
duly and validly executed counterparts hereof signed by the Borrower, the
Administrative Agent, and the Majority Lenders.
Section 6. 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
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ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.
By:_________________________________________
Xxxxx X. Xxxx
Senior Vice President
LENDERS:
BANK OF AMERICA, N.A.
By:_________________________________________
Xxxxx X. Xxxx
Senior Vice President
PROVIDENT SERVICES, INC.
By:_________________________________________
Xxxxxx X. Xxxxx
Vice President
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XXXX XXX, XXXXX, NA
By:_________________________________________
Name:_______________________________________
Title:______________________________________
FIRST UNION NATIONAL BANK
By:_________________________________________
Name:_______________________________________
Title:______________________________________
CHASE BANK TEXAS, N.A.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:_________________________________________
Name:_______________________________________
Title:______________________________________
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
SUNTRUST BANK, ATLANTA
By:_________________________________________
Name:_______________________________________
Title:______________________________________
By:_________________________________________
Name:_______________________________________
Title:______________________________________
SOUTHWEST BANK OF TEXAS, N.A.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
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