SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM 10-Q
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ______ TO ________
COMMISSION FILE NUMBER: 1-11961
-------------------------
CARRIAGE SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0423828
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1300 POST OAK BLVD., SUITE 1500, HOUSTON, TX 77056
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (281) 556-7400
------------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No__
The number of shares of the Registrant's Class A Common Stock, $.01 par value
per share, and Class B Common Stock, $.01 par value per share, outstanding as of
July 30, 1999 was 12,358,327 and 3,549,741 respectively.
<PAGE>
CARRIAGE SERVICES, INC.
INDEX
PAGE
----
PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
Consolidated Balance Sheets as of
December 31, 1998 and June 30, 1999 ............................. 3
Consolidated Statements of Operations for the
Three Months Ended June 30, 1998 and 1999 and the
Six Months Ended June 30, 1998 and 1999 ......................... 4
Consolidated Statements of Cash Flows for the
Six Months Ended June 30, 1998 and 1999 ......................... 5
Notes to Consolidated Financial Statements ......................... 6
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS ................ 9
ITEM 3 - QUANTITATIVE AND QUALITATIVE DISCLOSURES OF MARKET RISK ...... 15
PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS .......... 16
ITEM 5. OTHER INFORMATION ............................................ 16
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K ............................. 18
Signature ................................................................ 19
2
<PAGE>
CARRIAGE SERVICES, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
1998 1999
------------ ------------
(UNAUDITED)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents ........................ $ 2,892 $ 3,949
Accounts receivable --
Trade, net of allowance for doubtful accounts
of $3,435 in 1998 and $ 4,848 in 1999 ......... 17,835 20,506
Other ............................................ 3,696 4,695
------------ ------------
21,531 25,201
Inventories and other current assets ............. 7,457 10,134
------------ ------------
Total current assets ................. 31,880 39,284
Property, plant and equipment, at cost, net of
accumulated depreciation of $11,363 in 1998
and $14,147 in 1999 .............................. 131,144 148,157
Cemetery property, at cost .......................... 63,409 66,773
Names and reputations, net of accumulated
amortization of $8,428 in 1998 and $11,226
in 1999 .......................................... 211,183 221,507
Deferred charges and other noncurrent assets ........ 28,528 37,974
------------ ------------
$ 466,144 $ 513,695
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable .................................. $ 4,754 $ 4,644
Accrued liabilities ............................... 9,168 11,524
Current portion of long-term debt and
obligations under capital leases ................ 6,394 5,191
------------ ------------
Total current liabilities ............. 20,316 21,359
Preneed liabilities, net ............................. 11,106 10,647
Long-term debt, net of current portion ............... 212,972 160,586
Obligations under capital leases, net of current
portion .............................................. 3,209 3,902
Deferred income taxes ................................ 16,474 16,962
------------ ------------
Total liabilities ..................... 264,077 213,456
------------ ------------
Commitments and contingencies
Redeemable preferred stock ........................... 1,673 1,172
Company-obligated mandatorily redeemable
convertible preferred securities of Carriage
Services Capital Trust .......................... -- 90,300
Stockholders' equity:
Class A Common Stock, $.01 par value;
40,000,000 shares authorized; 12,028,000
and 12,337,000 issued and outstanding
at December 31, 1998 and June 30, 1999,
respectively .................................... 120 123
Class B Common Stock, $.01 par value;
10,000,000 shares authorized; 3,779,000
and 3,547,000 issued and outstanding
at December 31, 1998 and June 30, 1999,
respectively .................................... 38 35
Contributed capital ............................... 194,911 197,982
Retained earnings ................................. 5,325 10,627
------------ ------------
Total stockholders' equity ............ 200,394 208,767
------------ ------------
$ 466,144 $ 513,695
============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
<PAGE>
CARRIAGE SERVICES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED AND IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
------------------- -------------------
1998 1999 1998 1999
------- -------- ------- --------
<S> <C> <C> <C> <C>
Revenues, net
Funeral ............................................................... $20,370 $ 30,816 $43,613 $ 64,328
Cemetery .............................................................. 4,844 11,655 9,719 20,013
------- -------- ------- --------
25,214 42,471 53,332 84,341
Costs and expenses
Funeral ............................................................... 14,493 22,212 30,326 44,170
Cemetery .............................................................. 3,723 8,549 7,221 14,878
------- -------- ------- --------
18,216 30,761 37,547 59,048
------- -------- ------- --------
Gross profit .......................................................... 6,998 11,710 15,785 25,293
General and administrative expenses ....................................... 1,751 2,275 3,620 4,712
------- -------- ------- --------
Operating income ...................................................... 5,247 9,435 12,165 20,581
Interest expense, net ..................................................... 2,044 3,494 4,151 6,960
Financing cost of company-obligated securities of Carriage
Services Capital Trust .................................................... -- 510 -- 510
------- -------- ------- --------
Total interest and financing expense ................................ 2,044 4,004 4,151 7,470
Income before income taxes and
extraordinary item .................................................... 3,203 5,431 8,014 13,111
Provision for income taxes ................................................ 1,400 2,335 3,565 5,637
------- -------- ------- --------
Income before extraordinary item ...................................... 1,803 3,096 4,449 7,474
Extraordinary item:
Loss on early extinguishment of debt, net of
income tax benefit of $151 ............................................ -- (200) -- (200)
------- -------- ------- --------
Net income ................................................................ 1,803 2,896 4,449 7,274
Preferred stock dividend requirements ..................................... 151 28 301 56
------- -------- ------- --------
Net income available to common stockholders ........................... $ 1,652 $ 2,868 $ 4,148 $ 7,218
======= ======== ======= ========
Basic earnings per share:
Net income before extraordinary item .................................. $ .13 $ 0.19 $ .35 $ 0.47
Extraordinary item .................................................... $ - $ (0.01) $ -- $ (0.01)
------- -------- ------- --------
Net income ............................................................ $ .13 $ 0.18 $ .35 $ 0.46
======= ======== ======= ========
Diluted earnings per share:
Net income before extraordinary item .................................. $ .13 $ 0.19 $ .34 $ 0.45
Extraordinary item .................................................... $ -- $ (0.01) $ -- $ (0.01)
------- -------- ------- --------
Net income ............................................................ $ .13 $ 0.18 $ .34 $ 0.44
======= ======== ======= ========
Weighted average number of common and common equivalent shares outstanding:
Basic ................................................................. 12,393 15,877 11,775 15,843
======= ======== ======= ========
Diluted ............................................................... 12,881 16,335 12,874 16,981
======= ======== ======= ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
4
<PAGE>
CARRIAGE SERVICES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED AND IN THOUSANDS)
FOR THE SIX MONTHS
ENDED JUNE 30,
---------------------
1998 1999
-------- --------
Cash flows from operating activities:
Net income ......................................... $ 4,449 $ 7,274
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization ..................... 4,844 7,789
Loss on early extinguishment of debt, net of
income taxes .................................... -- 200
Provision for losses on accounts receivable ....... 868 2,821
Deferred income taxes ............................. 1,118 424
Other, net ........................................ (38) --
-------- --------
Net cash provided by operating activities
before changes in assets and liabilities ........ 11,241 18,508
Changes in assets and liabilities, net of effects
from acquisitions:
(Increase) in accounts receivables .................. (4,075) (6,818)
(Increase) in inventories and other current assets .. (378) (2,358)
(Increase) in deferred charges and other ............ (2,458) (3,025)
(Decrease) in accounts payable ...................... (569) (1,022)
Increase in accrued liabilities ..................... 1,061 1,984
(Decrease) in preneed liabilities ................... (553) (412)
-------- --------
Net cash provided by operating activities .. 4,269 6,857
Cash flows from investing activities:
Acquisitions, net of cash acquired .................. (24,401) (31,908)
Capital expenditures ................................ (8,555) (9,351)
-------- --------
Net cash used in investing activities ...... (32,956) (41,259)
Cash flows from financing activities:
Proceeds from long-term debt ....................... 8,200 21,970
Payments on long-term debt and obligations under
capital leases .................................... (51,938) (77,411)
Proceeds from issuance of common stock ............. 68,495 656
Proceeds from issuance of company-obligated
mandatorily redeemable convertible preferred
securities ........................................ -- 90,300
Payment of preferred stock dividends ............... (301) (56)
Other, net ......................................... 131 --
-------- --------
Net cash provided by financing activities .. 24,587 35,459
Net increase (decrease) in cash and cash equivalents . (4,100) 1,057
Cash and cash equivalents at beginning of period ..... 6,126 2,892
-------- --------
Cash and cash equivalents at end of period ........... $ 2,026 $ 3,949
======== ========
Supplemental disclosure of cash flow information:
Cash paid for interest .............................. $ 4,548 $ 9,042
======== ========
Cash paid for income taxes .......................... $ 3,195 $ 7,132
======== ========
Non-cash consideration for acquisitions ............. $ 3,144 $ 1,648
======== ========
The accompanying notes are an integral part of these financial statements.
5
<PAGE>
CARRIAGE SERVICES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
(a) The Company
Carriage Services, Inc., (the "Company") is the fourth largest
publicly-traded provider of products and services in the death care industry in
the United States. As of June 30, 1999, the Company owned and operated 179
funeral homes and 38 cemeteries in 31 states.
(b) Principles of Consolidation
The accompanying consolidated financial statements include the Company and
its subsidiaries. All significant intercompany balances and transactions have
been eliminated.
(c) Interim Disclosures
The information for the three and six months ended June 30, 1998 and 1999 is
unaudited, but in the opinion of management, reflects all adjustments which are
of a normal, recurring nature necessary for a fair presentation of financial
position and results of operations for the interim periods. The accompanying
consolidated financial statements have been prepared consistent with the
accounting policies described in the Company's report on Form 10-K for the year
ended December 31, 1998, and should be read in conjunction therewith. Certain
prior period amounts in the consolidated financial statements have been
reclassified to conform with current period presentation.
(d) Use of Estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
2. ACQUISITIONS
During the six months ended June 30, 1999, the Company purchased 13 funeral
homes and 11 cemeteries. Eleven funeral homes and one cemetery were acquired
during the six months ended June 30, 1998. These acquisitions have been
accounted for by the purchase method, and their results of operations are
included in the accompanying consolidated financial statements from the dates of
acquisition.
6
<PAGE>
The effect of the above acquisitions on the Consolidated Balance Sheets was
as follows:
JUNE 30,
-----------------------
1998 1999
-------- --------
(IN THOUSANDS)
Current assets, net of cash acquired ............. $ 888 $ 6,645
Cemetery property ................................ 2,305 3,740
Property, plant and equipment .................... 6,017 11,455
Deferred charges and other noncurrent assets ..... 352 757
Names and reputations ............................ 18,478 13,246
Current liabilities .............................. (255) (1,438)
Other liabilities ................................ (240) (849)
-------- --------
Total acquisitions .......................... 27,545 33,556
Consideration:
Debt ............................................. 3,144 1,648
Common stock issued .............................. -- --
-------- --------
Cash used for acquisitions .................. $ 24,401 $ 31,908
======== ========
The following table represents, on an unaudited pro forma basis, the combined
operations of the Company and the above noted acquisitions, as if such
acquisitions had occurred as of January 1, 1998. Appropriate adjustments have
been made to reflect the accounting basis used in recording these acquisitions,
however, these unaudited pro forma results are based on the acquired businesses'
historical financial results and do not assume any additional profitability
resulting from the application of the Company's revenue enhancement measures or
cost reduction programs to the historical results of the acquired businesses.
These pro forma results have been prepared for comparative purposes only and do
not purport to be indicative of the results of operations that would have
resulted had the combinations been in effect on the dates indicated, that have
resulted since the dates of acquisition or that may result in the future.
SIX MONTHS ENDED JUNE 30,
--------------------------
1998 1999
------------ ------------
(IN THOUSANDS, EXCEPT PER
SHARE DATA)
Revenues, net ...................................... $80,218 $88,545
Net income before income taxes ..................... 6,557 13,465
Net income available to common stockholders ........ 3,305 7,390
Earnings per common share:
Basic ......................................... 0.28 0.47
Diluted ....................................... 0.26 0.44
7
<PAGE>
3. MAJOR SEGMENTS OF BUSINESS
Carriage conducts funeral and cemetery operations only in the United States.
<TABLE>
<CAPTION>
(IN THOUSANDS) FUNERAL CEMETERY CORPORATE CONSOLIDATED
-------- -------- --------- ------------
<S> <C> <C> <C> <C>
External revenues:
Six months ended June 30, 1999 $ 64,328 $ 20,013 -- $ 84,341
Six months ended June 30, 1998 43,613 9,719 -- 53,332
Profit and Loss:
Six months ended June 30, 1999 $ 19,812 $ 6,092 $(18,630) $ 7,274
Six months ended June 30, 1998 12,709 3,494 (11,754) 4,449
Total Assets:
June 30, 1999 ................ $378,344 $123,074 $ 13,500 $ 514,918
June 30, 1998 ................ 241,713 61,726 7,689 311,128
</TABLE>
4. LONG TERM DEBT
During June 1999, the Company replaced and increased its existing credit
facility with a new $250 million line of credit. The new credit facility is
unsecured, is for a term of five years and contains customary restrictive
covenants, including a restriction on the payment of dividends on common
stock, and requires the Company to maintain certain financial ratios.
Interest under the new credit facility is provided at both LIBOR and prime
rate options.
5. SUBSEQUENT EVENT
Subsequent to June 30, 1999, the Company issued $110 million in senior debt
notes and used the proceeds to reduce the amount outstanding under the
Company's revolving line of credit. The notes are unsecured, mature in
tranches of five, seven and nine years and bear interest at the fixed rates
of 7.73%, 7.96% and 8.06%, respectively.
8
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
The Company is a leading provider of death care services and products in the
United States. The Company's focus is on growth through acquisitions and
enhancements at facilities currently owned to increase revenues and gross
profit. That focus has resulted in a successful track record of internal growth
from attractive acquisition opportunities; high standards of service,
operational and financial performance; and an infrastructure containing
measurement and management systems. The operating focus for 1999 includes
institutionalized internal training, internal growth, and making quality
initiatives introduced in 1998 an integral part of the culture.
Income from operations, which the Company defines as earnings before interest
and income taxes, increased, as a percentage of net revenues, from 20.8% for the
second quarter of 1998 to 22.8% for the second quarter of 1999. This improvement
was due largely to the increased gross profits at the individual cemetery
locations. Gross margins for the funeral homes decreased from 28.9% in the
second quarter of 1998 to 27.9% in the second quarter of 1999, on an increase in
revenue of 51%. As a percentage of cemetery net revenues, cemetery gross profit
was 26.6% in the second quarter of 1999 compared to 23.1% in the second quarter
in 1998. Revenues and gross profits from cemeteries increased 141% and 177%,
respectively, in the second quarter of 1999 compared to the same period in 1998.
A one cent per share extraordinary item included in the current year quarter
resulted from the early extinguishment of the Company's bank credit facility,
which was replaced and expanded during the quarter.
The Company has experienced significant growth through acquisitions.
Forty-four funeral homes and ten cemeteries were acquired during 1997 for
approximately $118 million. During 1998, the Company acquired 48 funeral homes
and seven cemeteries for an aggregate consideration of approximately $159
million. These acquisitions were funded through cash flow from operations,
additional borrowings under the Company's credit facilities and issuance of
preferred and common stock. In addition, as of July 30, 1999, the Company has
either acquired or has letters of intent to acquire 18 funeral homes and 14
cemeteries for an aggregate consideration of approximately $46 million. The
Company believes its increased recognition in the death care industry as an
established operator and purchaser of funeral homes and cemeteries, as well as
favorable conditions in the acquisition marketplace, has improved its ability to
attract potential acquisitions that are larger, strategic and accretive.
RESULTS OF OPERATIONS
The following is a discussion of the Company's results of operations for the
three and six month periods ended June 30, 1998 and 1999. For purposes of this
discussion, funeral homes and cemeteries owned and operated for the entirety of
each period being compared are referred to as "existing operations." Operations
acquired or opened during either period being compared are referred to as
"acquired operations."
FUNERAL HOME SEGMENT. The following table sets forth certain information
regarding the net revenues and gross profit of the Company from its funeral home
operations for the three and six months ended June 30, 1998 compared to the
three and six months ended June 30, 1999.
9
<PAGE>
THREE MONTHS ENDED JUNE 30, 1998 COMPARED TO THREE MONTHS ENDED JUNE 30, 1999.
THREE MONTHS ENDED
JUNE 30, CHANGE
------------------ ------------------
1998 1999 AMOUNT PERCENT
------- ------- ------- -------
(DOLLARS IN THOUSANDS)
Net revenues:
Existing operations ...... $19,332 $21,003 $ 1,671 8.6%
Acquired operations ...... 1,038 9,813 8,775 *
------- ------- -------
Total net revenues .. $20,370 $30,816 $10,446 51.3%
======= ======= =======
Gross profit:
Existing operations ...... $ 5,326 $ 5,850 $ 524 9.8%
Acquired operations ...... 551 2,754 2,203 *
------- ------- -------
Total gross profit .. $ 5,877 $ 8,604 $ 2,727 46.4%
======= ======= =======
SIX MONTHS ENDED JUNE 30, 1998 COMPARED TO SIX MONTHS ENDED JUNE 30, 1999.
SIX MONTHS ENDED
JUNE 30, CHANGE
------------------ ------------------
1998 1999 AMOUNT PERCENT
------- ------- ------- -------
(DOLLARS IN THOUSANDS)
Net revenues:
Existing operations ...... $41,098 $43,820 $ 2,722 6.6%
Acquired operations ...... 2,515 20,508 17,993 *
------- ------- -------
Total net revenues .. $43,613 $64,328 $20,715 47.5%
======= ======= =======
Gross profit:
Existing operations ...... $12,085 $13,632 $ 1,547 12.8%
Acquired operations ...... 1,202 6,526 5,324 *
------- ------- -------
Total gross profit .. $13,287 $20,158 $ 6,871 51.7%
======= ======= =======
- ---------
* Not meaningful.
Due to the rapid growth of the Company, existing operations represented 68%
of the total funeral revenues and the total funeral gross profit for the three
months ended June 30, 1999, as well as 68% of the total funeral revenues and the
total funeral gross profit for the six months ended June 30, 1999. Total funeral
net revenues for the three months ended June 30, 1999 increased $10.4 million or
51.3% over the three months ended June 30, 1998. The higher net revenues reflect
an increase of $8.8 million in net revenues from acquired operations and an
increase in net revenues of $1.7 million from existing operations. Total funeral
net revenues for the six months ended June 30, 1999 increased $20.7 million or
47.5% over the six months ended June 30, 1998. The higher net revenues reflect
an increase of $18 million in net revenues from acquired operations and an
increase in net revenues of $2.7 million from existing operations.
Total funeral gross profit for the three months ended June 30, 1999 increased
$2.7 million or 46.4% over the comparable three months of 1998. The higher total
gross profit reflected an increase of $2.2 million from acquired operations and
an increase of $ 0.5 million from existing operations. Total funeral gross
profit for the six months ended June 30, 1999 increased $6.9 million or 51.7%
over the comparable six months of 1998. The higher total gross profit reflected
an increase of $5.3 million from acquired
10
<PAGE>
operations and an increase of $1.5 million from existing operations. Gross
profit for existing operations increased for both periods due to the
efficiencies gained by consolidation, cost savings, improved collections
experience and the increasing effectiveness of the Company's training
initiatives. Total gross margin decreased from 28.9% for the second quarter of
1998 to 27.9% for the second quarter of 1999 and increased from 30.5% for the
first six months of 1998 to 31.3% for the first six months of 1999.
CEMETERY SEGMENT. The following table sets forth certain information
regarding the net revenues and gross profit of the Company from its cemetery
operations for the three and six months ended June 30, 1998 compared to the
three and six months ended June 30, 1999.
THREE MONTHS ENDED JUNE 30, 1998 COMPARED TO THREE MONTHS ENDED JUNE 30, 1999.
THREE MONTHS ENDED
JUNE 30, CHANGE
----------------- ----------------------
1998 1999 AMOUNT PERCENT
------ ------- -------- ----------
(DOLLARS IN THOUSANDS)
Net revenues:
Existing operations ....... $4,844 $ 5,608 $ 764 15.8%
Acquired operations ....... -- 6,047 6,047 *
------ ------- --------
Total net revenues ... $4,844 $11,655 $ 6,811 140.6%
====== ======= ========
Gross profit:
Existing operations ....... $1,121 $ 1,327 $ 206 18.4%
Acquired operations ....... -- 1,779 1,779 *
------ ------- --------
Total gross profit .. $1,121 $ 3,106 $ 1,985 177.1%
====== ======= ========
- ---------
* Not meaningful.
SIX MONTHS ENDED JUNE 30, 1998 COMPARED TO SIX MONTHS ENDED JUNE 30, 1999.
SIX MONTHS ENDED
JUNE 30, CHANGE
----------------- ----------------------
1998 1999 AMOUNT PERCENT
------ ------- -------- ----------
(DOLLARS IN THOUSANDS)
Net revenues:
Existing operations ....... $9,425 $10,298 $ 873 9.3%
Acquired operations ....... 294 9,715 9,421 *
------ ------- --------
Total net revenues .. $9,719 $20,013 $ 10,294 105.9%
====== ======= ========
Gross profit:
Existing operations ....... $2,421 $ 2,413 $ (8) (0.3)%
Acquired operations ....... 77 2,722 2,645 *
------ ------- --------
Total gross profit .. $2,498 $ 5,135 $ 2,637 105.6%
====== ======= ========
- ---------
* Not meaningful.
Due to the acquisition of relatively significant cemetery properties during
the third quarter of 1998 and at the end of the first quarter of 1999, existing
operations represented only 48% of cemetery revenues and only 43% of cemetery
gross profit for the three months ended June 30, 1999 and only 51% of cemetery
revenues and 47% of cemetery gross profit for the six months ended June 30,
1999.
11
<PAGE>
Total cemetery net revenues for the three months ended June 30, 1999
increased $6.8 million over the three months ended June 30, 1998 and total
cemetery gross profit increased $2.0 million over the comparable three months of
1998. The higher net revenues reflect an increase of $6.0 million in net
revenues from acquired operations and an increase of $0.8 million in revenues
from existing operations. Total cemetery net revenues for the six months ended
June 30, 1999 increased $10.3 million over the six months ended June 30, 1998,
and total cemetery gross profit increased $2.6 million over the comparable six
months of 1998. Total gross margin increased from 23.1% for the three months
ended June 30, 1998 to 26.6% for the three months ended June 30, 1999. These
increases were due primarily to the Company's recently acquired cemeteries, as
well as increased preneed marketing efforts. Total gross margin remained
constant at 25.7% for the six months ended June 30, 1999 and for the six months
ended June 30, 1998.
OTHER.
General and administrative expenses for the six months ended June 30, 1999
increased $1.1 million or 30.2% over the first six months of 1998 due primarily
to the increased personnel expense necessary to support the Company's growth and
acquisition activity. However, as a percentage of net revenues, these expenses
decreased from 6.8% for the six months ended June 30, 1998, to 5.6% for the six
months ended June 30, 1999, as the expenses were spread over a larger volume of
revenue.
Interest expense and other financing costs for the six months ended June 30,
1999, increased $3.3 million over the first six months of 1998, principally due
to increased borrowings for acquisitions.
Preferred stock dividends of $56,000 were subtracted from the $7.3 million of
net income in computing the net income available to common stockholders of $7.2
million for the six months ended June 30, 1999. The reduction in preferred stock
dividends from 1998 to 1999 was due to conversions of the preferred stock to
common stock.
For the six months ended June 30, 1999, the Company provided for income taxes
on income before income taxes at a combined state and federal rate of 43%
compared with 44.5% for the same period in 1998.
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents totaled $3.9 million at June 30, 1999, representing
an increase of $1.1 million from December 31, 1998. For the six months ended
June 30, 1999, cash provided by operations was $6.9 million as compared to cash
provided by operations of $4.3 million for the six months ended June 30, 1998.
The increase in net cash provided by operating activities was principally due to
the increases in net income as adjusted for non-cash charges, which was
partially offset by a net increase in the working capital accounts. The net
increase in the working capital accounts was primarily related to working
capital requirements of recent acquisitions. Cash used in investing activities
was $41.3 million for the six months ended June 30, 1999 compared to $33.0
million for the first six months of 1998, due primarily to an increase in
amounts paid in connection with acquisitions.
In the first six months of 1999, cash flow provided by financing activities
amounted to approximately $35.5 million, primarily due to the net proceeds
generated from the Company's sale of mandatorily redeemable convertible
preferred securities and repayments of long-term debt, during the second quarter
of 1999. On June 3, 1999, the Company's subsidiary, Carriage Services Capital
Trust, completed the sale of 1,875,000 units of 7% convertible preferred
securities, resulting in approximately $90 million in net proceeds to the
Company, of which $77.4 million was used to repay outstanding indebtedness under
the
12
<PAGE>
Company's credit facility, with the remaining $12.6 million used general
corporate purposes. The convertible preferred securities have a liquidation
amount of $50 per unit, are convertible into the Company's Class A Common Stock
at the equivalent conversion price of $20.4375 per share of Class A Common
Stock, mature in 2029, and are guaranteed, on a subordinated basis, by the
Company. Distributions are payable quarterly, but may be deferred at the
Company's option.
Historically, the Company has financed its acquisitions with proceeds from
debt and the issuance of common and preferred stock. As of June 30, 1998, the
Company had 1,682,500 shares of Series D Preferred Stock issued and outstanding.
The Series D Preferred Stock is convertible into Class B Common Stock. The
holders of Series D Preferred Stock are entitled to receive cash dividends at an
annual rate of $.06-$.07 per share depending upon the date such shares were
issued. The Company may, at its option, redeem all or any portion of the shares
of Series D Preferred Stock outstanding at a redemption price of $1.00 per
share, together with all accrued and unpaid dividends. Such redemption is
subject to the right of each holder of Series D Preferred Stock to convert such
holder's shares into shares of Class B Common Stock. On December 31, 2001, the
Company must redeem all shares of Series D Preferred Stock then outstanding at a
redemption price of $1.00 per share, together with all accrued and unpaid
dividends. During the six months ended June 30, 1999, holders of Series D
Preferred Stock converted a total of 500,000 shares into 35,238 shares of Class
B Common Stock, and then converted those Class B shares into 35,238 shares of
Class A Common Stock
As of June 30, 1998, the Company had 12,278,285 shares of Series F Preferred
Stock issued and outstanding. The Series F Preferred Stock paid cash dividends
as the annual rate of $.042 per share. On December 31, 1998, all of the Series F
Preferred Stock was converted into an aggregate of 722,250 shares of Class A
Common Stock at the exercise price of $17 per share.
As of June 30, 1998, the Company had a credit facility with a group of banks
for a $150 million revolving line of credit. During September 1998, the Company
increased the bank credit facility to $225 million. During June 1999, the
Company entered into a new credit facility for a $250 million revolving line of
credit. The credit facility has a five year term, is unsecured and contains
customary restrictive covenants, including a restriction on the payment of
dividends on common stock, and requires the Company to maintain certain
financial ratios. Interest under the credit facility is provided at both LIBOR
and prime rate options. The Company has the ability under the credit facility to
increase its total debt outstanding to as much as 60 percent of its total
capitalization. As of June 30, 1999, $140.5 million was outstanding under the
credit facility and the Company's debt to total capitalization was 36 percent.
The Company expects to continue to aggressively pursue additional
acquisitions of funeral homes and cemeteries to take advantage of the trend
toward consolidation occurring in the industry which will require significant
levels of funding from various sources. During the six months ended June 30,
1999, the Company incurred approximately $9.4 million in capital expenditures,
primarily related to funeral home improvements. In addition, the Company
currently expects to incur capitalizable costs in the range of $5 million to $7
million during the second half of 1999 related to upgrading funeral home
facilities. The Company believes that cash flow from operations, borrowings
under the new credit facility and its ability to issue additional debt and
equity securities should be sufficient to fund acquisitions and its anticipated
capital expenditures and other operating requirements. In March 1997, the
Company filed a shelf registration statement relating to 2,000,000 shares of
Class A Common Stock to be used to fund acquisitions of which approximately
1,057,000 shares remain available at June 30, 1999. The Company has recently
revised its estimate for acquisition spending for 1999 from $155 million to $115
million. As of July 30, 1999, the Company has spent $33 million and has signed
non-binding letters of intent for acquisitions totaling $13 million. Because
future cash flows and the availability of financing are subject to a number of
variables, such as the number and size of acquisitions made by the Company,
there can be
13
<PAGE>
no assurance that the Company's capital resources will be sufficient to fund its
capital needs. Additional debt and equity financings may be required to continue
the Company's acquisition program. The availability and terms of these capital
sources will depend on prevailing market conditions and interest rates and the
then-existing financial condition of the Company.
SEASONALITY
The Company's business can be affected by seasonal fluctuations in the death
rate. Generally, death rates are higher during the winter months. In addition
the quarterly results of the Company may fluctuate depending on the magnitude
and timing of acquisitions.
INFLATION
Inflation has not had a significant impact on the results of operations of
the Company.
YEAR 2000
Our information systems management group is continually reviewing the
management and accounting software packages for internal accounting and
information requirements to keep pace with our continued growth and to achieve
Year 2000 compliance. To address the Year 2000 issue, our program which
encompasses performing an inventory of our information technology and
non-information technology systems, assessing the potential problem areas,
testing the systems for year 2000 readiness, and modifying systems that are not
Year 2000 ready.
To date, inventory and assessment have been completed for all of our core
systems that are essential for business operations. All of these core systems
are believed to be Year 2000 compliant except for a portion of the
record-keeping system for certain cemetery operations, for which the
modifications have been completed, tested and certified as Year 2000 compliant.
As of June 30, 1999, management estimated that we had completed more than ninety
percent of the work involved in modifying, replacing and testing the
non-compliant hardware and software. The inventory and assessment phases for
newly acquired businesses is performed during the acquisition process as part of
our due diligence analysis.
We are also communicating with vendors, trustees and other third parties with
which we conduct business to determine the extent to which those companies are
addressing their Year 2000 compliance. To date, no significant third parties
have informed us that any Year 2000 issue exists which will have a material
effect on us.
Although we expect to be ready to continue our business activities without
interruption by a Year 2000 problem, we recognize the general uncertainty
inherent in the Year 2000 issue, in part because of the uncertainty about the
Year 2000 readiness of third parties. Under a "most likely worst case Year 2000
scenario," it may be necessary for us to replace some suppliers, rearrange some
work plans or even temporarily interrupt some normal business activities or
operations. We believe that such circumstances would be isolated and would not
result in a material adverse impact to our operations or pose a material
financial risk to us. We have begun, but not yet completed, developing a
contingency plan to deal with the "most likely worst case Year 2000 scenario."
The contingency plan is expected to be completed during the third quarter of
1999.
Based on the current assessment, our total costs of becoming Year 2000
compliant are not expected to be significant to our financial position, results
of operations or cash flows. As of June 30, 1999, we have
14
<PAGE>
spent approximately $70,000 related to Year 2000 compliance. The total remaining
costs for addressing the Year 2000 issue are presently estimated to be less than
$80,000.
The estimated costs of the projects are forward-looking statements based
on our best estimates, which were derived utilizing numerous assumptions of
future events. While we believe all necessary work will be completed in a timely
fashion, there can be no assurance that these estimates will be achieved and
actual results could differ materially from those anticipated. Some of the
factors that might cause such material differences include failure by third
parties to adequately solve Year 2000 problems, the cooperation of third parties
and the ability to identify and correct potential problems.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES OF MARKET RISK
There has been no material change in the Company's position regarding
quantitative and qualitative disclosures of market risk from that disclosed in
the Company's 1998 Form 10-K.
15
<PAGE>
PART II -- OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company's 1999 annual meeting of shareholders was held on May 11, 1999.
All director nominees were elected. The voting tabulation was as follows:
NAME OF NOMINEE NUMBER OF VOTES FOR NUMBER OF VOTES WITHHELD
- -------------------------- --------------------- --------------------------
Stuart W. Stedman 43,398,361 103,498
Ronald A. Erickson 43,391,124 110,735
Mark F. Wilson 43,398,361 103,498
The terms of the following other directors continue after the meeting: Mark
W. Duffey, Barry K. Fingerhut, Greg M. Brudnicki, Melvin C. Payne, Robert D.
Larrabee, and C. Byron Snyder.
Other matters voted upon at the meeting were as follows:
NUMBER OF NUMBER OF NUMBER OF
VOTES VOTES VOTES
FOR AGAINST ABSTAINING
---------- --------- -------------
Amendment to 1995 Stock Incentive Plan ... 38,549,176 2,525,104 185,937
Amendment to 1996 Stock Option Plan ...... 39,840,394 1,217,240 202,683
Amendments to 1996 Directors'
Stock Option Plan ..................... 39,943,685 906,847 409,685
Selection of Arthur Andersen LLP
as auditors for 1999 .................. 43,460,705 2,636 38,518
ITEM 5. OTHER INFORMATION
FORWARD-LOOKING STATEMENTS
Certain statements made herein or elsewhere by, or on behalf of, the Company
that are not historical facts are intended to be forward-looking statements
within the meaning of the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. These statements are based on assumptions that
the Company believes are reasonable; however, many important factors could cause
the Company's actual results in the future to differ materially from the
forward-looking statements made herein and in any other documents or oral
presentations made by, or on behalf of, the Company.
CAUTIONARY STATEMENTS
The Company cautions readers that the following important factors, among
others, in some cases have affected, and in the future could affect, the
Company's actual consolidated results and could cause the Company's actual
consolidated results in the future to differ materially from the goals and
expectations expressed herein and in any other forward-looking statements made
by or on behalf of the Company.
(1) Achieving revenue growth depends in part upon sustaining the level of
acquisition activity experienced by the Company in the last three fiscal years.
Higher levels of acquisition activity will
16
<PAGE>
increase anticipated revenues, and lower levels will decrease anticipated
revenues. The level of acquisition activity depends not only on the number of
properties acquired, but also on the size of the acquisitions; for example, one
large acquisition could increase substantially the level of acquisition activity
and, consequently, revenues. Several important factors, among others, affect the
Company's ability to consummate acquisitions:
(a) The Company may be unable to find a sufficient number of
businesses for sale at prices that are favorable to the Company
and the Company is willing to pay.
(b) In most of its existing markets and in certain new markets that
the Company desires to enter, the Company competes for
acquisitions with other publicly-traded and privately
owned death care firms. These competitors, and others, may
be willing to pay higher prices for businesses than the
Company or may cause the Company to pay more to acquire a
business than the Company would otherwise have pay in the
absence of such competition. Thus, the aggressiveness of
the Company's competitors in pricing acquisitions affects
the Company's ability to complete acquisitions at prices
it finds attractive.
(2) Achieving the Company's revenue goals also is affected by the volume and
prices of the properties, products and services sold. The annual sales targets
set by the Company are aggressive, and the inability of the Company to achieve
planned increases in volume or prices could cause the Company not to meet
anticipated levels of revenue. The ability of the Company to achieve volume or
price increases at any location depends on numerous factors, including the local
economy, the local death rate and competition.
(3) Future revenue also is affected by the level of prearranged sales in
prior periods. The level of prearranged sales may be adversely affected by
numerous factors, including deterioration in the economy, which causes
individual to have less discretionary income.
(4) In addition to the factors discussed above, earnings per share may be
affected by other important factors, including the following:
(a) The ability of the Company to successfully integrate acquisitions
into the Company's business and to realize expected revenue
projections and cost savings in connection with the acquisitions.
(b) Whether acquired businesses perform at pro forma levels used by
management in the valuation process and whether, and the
rate at which management is able to increase the
profitability of acquired businesses.
(c) The ability of the Company to manage its growth in terms of
implementing internal controls and information gathering
systems, and retaining or attracting key personnel, among
other things.
(d) The amount and rate of growth in the Company's general and
administrative expenses.
(e) Changes in interest rates, which can increase or decrease the
amount the Company pays on borrowings with variable rates of
interest.
(f) The Company's debt-to-equity ratio, the number of shares of
common stock outstanding and the portion of the Company's debt
that has fixed or variable interest rates.
(g) The impact on the Company's financial statements of nonrecurring
accounting charges that may result from the Company's ongoing
evaluation of its business strategies, asset valuations and
organizational structures.
(h) Changes in government regulation, including tax rates and their
effects on corporate structure.
(i) Changes in inflation and other general economic conditions
domestically, affecting financial markets (e.g. marketable
security values).
17
<PAGE>
(j) Unanticipated legal proceedings and unanticipated outcomes of
legal proceedings.
(k) Changes in accounting policies and practices adopted voluntarily
or required to be adopted by generally accepted accounting
principles, such as amortization periods for long-lived
intangible assets.
(l) The ability of the Company and its significant vendors, financial
institutions and insurers to achieve Year 2000 compliance on a
timely basis.
The Company also cautions readers that it assumes no obligation to update or
publicly release any revisions to forward-looking statements made herein or any
other forward-looking statements made by, or on behalf of, the Company.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
*4.1 - Certificate of Elimination of Series F Preferred Stock
+4.2 - Certificate of Trust of Carriage Services Capital Trust. (4.6)
+4.3 - Amended and Restated Declaration of Trust of Carriage Services
Capital Trust, dated as of June 3, 1999, among Carriage Services,
Inc. as Sponsor, Wilmington Trust Company as Property Trustee,
Wilmington Trust Company as Delaware Trustee, and Mark W. Duffey,
Thomas C. Livengood and Terry E. Sanford as Administrative
Trustees. (4.7)
+4.4 - Indenture for the Convertible Junior Subordinated Debentures due
2029, dated as of June 3, 1999, amount Carriage Services, Inc. as
Issuer, and Wilmington Trust Company as Indenture Trustee. (4.8)
+4.5 - Form of Carriage Services Capital Trust 7% Convertible Preferred
Securities. (4.10)
+4.6 - Form of Carriage Services, Inc., Convertible Junior Subordinated
Debentures due 2029. (4.11)
+4.7 - Preferred Securities Guarantee, dated as of June 3, 1999, between
Carriage Services Inc., As Guarantor, and Wilmington Trust Company
as Guarantee Trustee. (4.12)
+4.8 - Common Securities Guarantee, dated as of June 3, 1999, by Carriage
Services, Inc. as Guarantor. (4.13)
+4.9 - Amendment No.1 to Amended and Restated Declaration of Trust of
Carriage Services Capital Trust. (4.l4)
*10.1 - Credit Agreement by and among the Company and Bank of America
dated June 14, 1999
+10.2 - Registration Rights Agreement, dated June 3, 1999, by and among
Carriage Services Capital Trust, Carriage Services, Inc., and
Credit Suisse First Boston Corporation. (10.1)
*11.1 - Statement regarding computation of per share earnings.
*12 - Calculation of Ratio of Earnings to Fixed Charges
*27.1 - Financial Data Schedule.
- --------------
(*) Filed herewith.
(+) Incorporated by reference to the Exhibit number shown in parentheses to
the registrant's Form S-3 Registration Statement No. 333-84141.
(b) Reports on Form 8-K
1) The Company filed a Form 8-K on June 1, 1999, reporting, under "Item 5.
Other Events," the news release dated June 1, 1999 announcing the sale
of convertible preferred securities.
2) The Company filed a Form 8-K/A on June 11, 1999 with respect to its
acquisition of all the operating assets of nine cemeteries and five
funeral homes from Service Corporation International, Inc. on
March 30, 1999.
18
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CARRIAGE SERVICES, INC.
[AUGUST 13, 1999] /s/ Thomas C. Livengood
- ------------------ -------------------------
Date Thomas C. Livengood,
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer and
Duly Authorized Officer)
19
Exhibit 4.1
CERTIFICATE OF ELIMINATION
OF
SERIES F PREFERRED STOCK
OF
CARRIAGE SERVICES, INC.
* * * * * * *
Pursuant to Section 151 of the General Corporation Law of the State
of Delaware, CARRIAGE SERVICES, INC., a corporation organized and existing under
the General Corporation Law of the State of Delaware (herein referred to as the
"Corporation"), DOES HEREBY CERTIFY:
That pursuant to authority granted to the Board of Directors of the
Corporation by the Amended and Restated Certificate of Incorporation of the
Corporation, and pursuant to the provisions of Section 151 of the General
Corporation Law of the State of Delaware, such Board of Directors at a meeting
duly held on May 11, 1999, adopted a resolution providing for the elimination of
a designation of a series of preferred stock of the Corporation, which
resolution is as follows:
WHEREAS, the Corporation has previously established and designated a
series of Preferred Stock, $.01 par value, designated as its Series F
Preferred Stock ("Series F Preferred Stock"), originally consisting of up
to 20,000,000 shares, pursuant to the Certificate of Designation,
Preferences, Rights and Limitations filed with the Secretary of State of
Delaware on November 6, 1996, as amended on December 17, 1996 and May 9,
1997 (as so amended and restated, the "Series F Certificate of
Designation"); and
WHEREAS, no such shares of Series F Preferred Stock are currently
issued or outstanding, and none will be issued;
NOW, THEREFORE, BE IT RESOLVED, that no shares of Series F
Preferred Stock are issued or outstanding, and none will be issued,
and therefore pursuant to the authority expressly granted and vested
in the Board of Directors of the Corporation in accordance with the
provisions of the Amended and Restated Certificate of Incorporation
of the Corporation and Section 151(g) of the General Corporation Law
of the State of Delaware, the Series F Certificate of Designation is
hereby withdrawn and eliminated.
<PAGE>
IN WITNESS WHEREOF, CARRIAGE SERVICES, INC. has caused this
Certificate of Elimination to be signed by Melvin C. Payne, its Chairman of
the Board and Chief Executive Officer, as of the 19th day of July, 1999.
CARRIAGE SERVICES, INC.
BY: /s/ Melvin C. Payne
-------------------------------------
MELVIN C. PAYNE, Chairman of the Board
and Chief Executive Officer
-2-
EXHIBIT 10.1
[Execution Version]
$250,000,000
CREDIT AGREEMENT
Dated as of June 14, 1999
Among
CARRIAGE SERVICES, INC.
AS BORROWER,
THE LENDERS NAMED IN THIS CREDIT AGREEMENT
AS LENDERS,
NATIONSBANK, N.A. d/b/a BANK OF AMERICA, N.A.
AS ADMINISTRATIVE AGENT,
BANC OF AMERICA SECURITIES LLC
AS LEAD ARRANGER AND BOOK MANAGER,
PROVIDENT SERVICES, INC.
AS SYNDICATION AGENT,
BANK ONE, TEXAS, N.A.
AS DOCUMENTATION AGENT, and
CHASE BANK TEXAS, N.A.
AS CO-AGENT
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING
TERMS
Section 1.01 Certain Defined Terms........................................1
Section 1.02 Computation of Time Periods.................................16
Section 1.03 Accounting Terms; Changes in GAAP...........................16
Section 1.04 Types of Advances...........................................16
Section 1.05 Miscellaneous...............................................16
ARTICLE II THE CREDIT FACILITIES AND
THE LETTERS OF CREDIT
Section 2.01 Commitment to Make Advances.................................17
Section 2.02 Method of Advancing.........................................17
Section 2.03 Swing Line Facility.........................................20
Section 2.04 Fees........................................................22
Section 2.05 Reduction of the Commitments................................22
Section 2.06 Repayment...................................................22
Section 2.07 Interest....................................................22
Section 2.08 Prepayments.................................................24
Section 2.09 Breakage Costs..............................................25
Section 2.10 Increased Costs.............................................26
Section 2.11 Payments and Computations...................................27
Section 2.12 Taxes.......................................................29
Section 2.13 Sharing of Payments, Etc....................................31
Section 2.14 Letters of Credit...........................................31
Section 2.15 Notice of Increased Costs; Lender Replacement...............34
ARTICLE III CONDITIONS OF LENDING
Section 3.01 Conditions Precedent to Initial Borrowings
and Issuance of Letters of Credit...........................35
Section 3.02 Conditions Precedent to Each Borrowing......................36
ARTICLE IV REPRESENTATIONS AND
WARRANTIES
Section 4.01 Corporate Existence; Subsidiaries...........................37
Section 4.02 Corporate Power.............................................37
-i-
<PAGE>
Section 4.03 Authorization and Approvals.................................38
Section 4.04 Enforceable Obligations.....................................38
Section 4.05 Historical Financial Statements.............................38
Section 4.06 True and Complete Disclosure................................38
Section 4.07 Litigation..................................................39
Section 4.08 Use of Proceeds.............................................39
Section 4.09 Investment Company Act......................................39
Section 4.10 Public Utility Holding Company Act..........................39
Section 4.11 Taxes.......................................................39
Section 4.12 Pension Plans...............................................40
Section 4.13 Condition of Property; Casualties...........................40
Section 4.14 Insurance...................................................40
Section 4.15 No Burdensome Restrictions; No Defaults.....................40
Section 4.16 Environmental Condition.....................................41
Section 4.17 Permits, Licenses, etc......................................41
Section 4.18 Total Funded Debt; Liens....................................42
Section 4.19 Direct Benefit From Borrowings..............................42
Section 4.20 Chief Executive Office......................................42
Section 4.21 Year 2000...................................................42
ARTICLE V AFFIRMATIVE COVENANTS
Section 5.01 Compliance with Laws, Etc...................................43
Section 5.02 Maintenance of Insurance....................................43
Section 5.03 Preservation of Corporate Existence, Etc....................43
Section 5.04 Payment of Taxes, Etc.......................................43
Section 5.05 Visitation Rights...........................................44
Section 5.06 Reporting Requirements......................................44
Section 5.07 Maintenance of Property.....................................47
Section 5.08 New Subsidiaries............................................47
Section 5.09 Maintenance of Trust Reserves and Trust Accounts............47
Section 5.10 Maintenance of Trust Balance................................48
Section 5.11 Hazardous Substances........................................48
ARTICLE VI NEGATIVE COVENANTS
Section 6.01 Liens, Etc..................................................48
Section 6.02 Debts, Guaranties and Other Obligations.....................50
Section 6.03 Agreements Restricting Liens and Distributions..............51
Section 6.04 Merger or Consolidation; Asset Sales........................51
Section 6.05 Restricted Payments; Issuance of Preferred Stock............51
Section 6.06 Investments; Lines of Business..............................52
Section 6.07 Acquisitions................................................53
Section 6.08 Capital Expenditures........................................53
-ii-
<PAGE>
Section 6.09 Affiliate Transactions......................................54
Section 6.10 Compliance with ERISA.......................................54
Section 6.11 Maintenance of Ownership of Subsidiaries....................54
Section 6.12 Trust Funds.................................................54
Section 6.13 Settlement of Litigation....................................54
Section 6.14 Fixed Charge Coverage Ratio.................................55
Section 6.15 ............................................................55
Section 6.16 Net Worth...................................................55
ARTICLE VII REMEDIES
Section 7.01 Events of Default...........................................55
Section 7.02 Optional Acceleration of Maturity...........................58
Section 7.03 Automatic Acceleration of Maturity..........................59
Section 7.04 Cash Collateral Account.....................................59
Section 7.05 Non-exclusivity of Remedies.................................60
Section 7.06 Right of Set-off............................................60
ARTICLE VIII THE ADMINISTRATIVE AGENT
AND THE ISSUING LENDER
Section 8.01 Authorization and Action....................................61
Section 8.02 Administrative Agent's Reliance, Etc........................61
Section 8.03 The Administrative Agent and Its Affiliates.................61
Section 8.04 Lender Credit Decision......................................62
Section 8.05 Indemnification.............................................62
Section 8.06 Successor Administrative Agent and Issuing Lender...........63
ARTICLE IX MISCELLANEOUS
Section 9.01 Amendments, Etc.............................................64
Section 9.02 Notices, Etc................................................64
Section 9.03 No Waiver; Remedies.........................................65
Section 9.04 Costs and Expenses..........................................65
Section 9.05 Binding Effect..............................................65
Section 9.06 Lender Assignments and Participations.......................66
Section 9.07 Indemnification.............................................68
Section 9.08 Execution in Counterparts...................................69
Section 9.09 Survival of Representations, etc............................69
Section 9.10 Severability................................................69
Section 9.11 Business Loans..............................................69
Section 9.12 Usury Not Intended..........................................70
Section 9.13 Governing Law...............................................70
Section 9.14 Amendment and Restatement...................................70
-iii-
<PAGE>
EXHIBITS:
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Guaranty
Exhibit C - Form of Note
Exhibit D - Form of Notice of Borrowing
Exhibit E - Form of Notice of Conversion or Continuation
Exhibit F - Form of NationsBank Letter of Credit Application
Exhibit G - Form of Borrower's and Subsidiaries' Counsel Opinion
Exhibit H - Form of Compliance Certificate
Exhibit I - Form of Joinder Agreement
SCHEDULES:
Schedule 1 - Notice Information for Lenders
Schedule 2 - Existing Preferred Stock
Schedule 4.01 - Subsidiaries
Schedule 4.16(b) - Environmental Condition
Schedule 6.06 - Certain Permitted Investments
-iv-
<PAGE>
CREDIT AGREEMENT
This Credit Agreement dated as of June 14, 1999 is among Carriage
Services, Inc., a Delaware corporation (the "Borrower"), the Lenders (as defined
below), and NationsBank, N.A. d/b/a Bank of America, N.A., as Administrative
Agent for the Lenders, and has been arranged by Banc of America Securities LLC,
as lead arranger and book manager.
The Borrower, the Lenders, and the Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the term
"Borrower" shall have the meaning set forth above and the following terms shall
have the following meanings (unless otherwise indicated, such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"ACQUISITION" means the direct or indirect acquisition, whether in one or
more related transactions and whether by purchase, assignment, merger,
consolidation, share exchange, or other acquisition transaction, of any Person,
any group of Persons, or any related group of assets, liabilities, or securities
of any Person or any group of Persons.
"ADJUSTED BASE RATE" means, for any day, the fluctuating rate per annum of
interest equal to the greater of (a) the Base Rate in effect on such day or (b)
the Federal Funds Rate in effect on such day plus 1/2%.
"ADMINISTRATIVE AGENT" means NationsBank, N.A. d/b/a Bank of America,
N.A., in its capacity as agent pursuant to Article VIII, and includes any
successor agent pursuant to Section 8.06.
"ADVANCE" means any advance (other than an advance by the Swing Line
Lender under the line of credit created by the Swing Line Note) by a Lender to
the Borrower as part of a Borrowing and refers to a Base Rate Advance or a
Eurodollar Rate Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person, or any Subsidiary of such Person. The
term "control" (including the terms "controlled by" or "under common control
with") means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through
ownership of a Control Percentage, by contract or otherwise.
"AGREEMENT" means this Credit Agreement dated as of June 14, 1999 among
the Borrower,
<PAGE>
the Lenders, and the Administrative Agent, as it may be amended, restated,
modified or supplemented from time-to-time.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means, at any time, the following percentages
applicable during the periods described below determined as a function of the
ratio of the Borrower's (a) Total Funded Debt (excluding the Trust Notes) to (b)
Total Capital as of the last day of the immediately preceding fiscal quarter as
follows:
<TABLE>
<CAPTION>
RATIO RATIO RATIO
EQUAL TO OR EQUAL TO OR EQUAL TO OR
GREATER THAN GREATER THAN GREATER THAN RATIO
RATIO LESS 30% BUT LESS 40% BUT LESS 50% BUT LESS GREATER THAN
THAN 30% THAN 40% THAN 50% THAN 55% OR EQUAL TO 55%
------------- ------------- ------------- ------------- ---------------
<S> <C> <C> <C> <C> <C>
Eurodollar Rate ......... 1.000% 1.250% 1.500% 1.750% 2.000%
Advance
Base Rate ............... 0.000% 0.000% 0.000% 0.250% 0.500%
Advance
Commitment .............. 0.250% 0.250% 0.300% 0.375% 0.500%
Fee
</TABLE>
The foregoing ratio shall be deemed to be equal to or greater than 30%,
but less than 40% from the date of this Agreement until redetermination by the
Administrative Agent. The Administrative Agent shall thereafter calculate the
foregoing ratio and the resulting Applicable Margin based upon the most recent
financial statements dated as of the end of a fiscal quarter delivered to the
Administrative Agent pursuant to Section 5.06(c). Any adjustments to the
Applicable Margin shall become effective on the first day of the month following
the month during which such financial statements are required to be delivered to
the Administrative Agent, but not before, provided, however, that if such
financial statements are not delivered when required hereunder, the foregoing
ratio shall be deemed to be greater than 55% and the Applicable Margin shall
increase to the maximum percentage amount set forth in the table above from the
date when such financial statements are due until three days after the date such
financial statements are actually delivered, when the Administrative Agent shall
recalculate the foregoing ratio, based upon such delivered financial statements,
and the resulting Applicable Margin and the same shall become effective.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Administrative
Agent, in substantially the form of the attached Exhibit A.
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"BANK" means any Lender that is subject to regulation by the Federal
Reserve Board of the United States or the equivalent Governmental Authority of
any Lender organized in any jurisdiction outside the United States.
"BASE RATE" means a fluctuating interest rate per annum as shall be in
effect from time-to-time equal to the rate of interest publicly announced by
NationsBank as its prime, whether or not the Borrower has notice thereof.
"BASE RATE ADVANCE" means an Advance which bears interest as provided in
Section 2.07(a).
"BORROWING" means a borrowing consisting of simultaneous Advances of the
same Type made by each Lender pursuant to the revolving credit facility created
in Section 2.01 or Converted by each Lender to Advances of a different Type
pursuant to Section 2.02(b).
"BUSINESS DAY" means any Monday through Friday during which commercial
banks are open for business in Houston, Texas, and Dallas, Texas, and, if the
applicable Business Day relates to any Eurodollar Rate Advances, a day of the
year on which dealings in U.S. Dollars are carried on in the London interbank
market.
"CAPITAL LEASES" means, as applied to any Person, any lease of any
Property by such Person as lessee which would, in accordance with GAAP, be
required to be classified and accounted for as a capital lease on the balance
sheet of such Person.
"CASH COLLATERAL ACCOUNT" means a special interest bearing cash collateral
account containing cash deposited pursuant to Sections 2.14(a), 7.02(b) or
7.03(b) to be maintained at the Administrative Agent's office in accordance with
Section 7.04.
"CERCLA" means the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, state and local analogs, and all rules and
regulations and requirements thereunder in each case as now or hereafter in
effect.
"CODE" means the Internal Revenue Code of 1986, as amended, and any
successor statute.
"COMMITMENT" as to any Lender, has the meaning set forth in Section 2.01.
"COMMON STOCK" means the shares from time to time issued and outstanding
of any class or classes of Common Stock, $.01 par value per share, of the
Borrower.
"COMPLIANCE CERTIFICATE" means a Compliance Certificate in the form of the
attached Exhibit H.
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"CONTROL PERCENTAGE" means, with respect to any Person, the percentage of
the outstanding capital stock of such Person having ordinary voting power which
gives the direct or indirect holder of such stock the power to elect a majority
of the Board of Directors of such Person.
"CONTROLLED GROUP" means all members of a controlled group of corporations
filing a consolidated federal income tax return with the Borrower.
"CONVERT", "CONVERSION", and "CONVERTED" each refers to a conversion of
Advances of one Type into Advances of another Type pursuant to Section 2.02(b).
"CORE ACQUISITION" means any Acquisition of a funeral home, cemetery, or
related business.
"CREDIT DOCUMENTS" means this Agreement, the Notes, the Swing Line Note,
the Guaranty, and each other agreement, instrument or document executed at any
time in connection with this Agreement.
"DEBT," for any Person, means without duplication (a) indebtedness of such
Person for borrowed money, including, without limitation, obligations under
letters of credit and agreements relating to the issuance of letters of credit
or acceptance financing; (b) obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments; (c) obligations of such Person
to pay the deferred purchase price of Property or services (other than trade
obligations incurred in the ordinary course of business) including (without
limitation) Deferred Purchase Price; (d) obligations of such Person as lessee
under Capital Leases; (e) obligations of such Person under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) of such
Person to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others of the kinds
referred to in the immediately preceding clauses (a) through (d) above; (f)
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (e) secured by any Lien on or in respect of any Property of such Person,
up to (but not exceeding) the value of such Property; (g) all liabilities of
such Person in respect of unfunded vested benefits under any Plan; and (h)
Pre-need Obligations, except to the extent that Pre-need Obligations are trusted
or covered by insurance.
"DEFAULT" means (a) an Event of Default or (b) any event or condition
which with notice or lapse of time or both would, unless cured or waived, become
an Event of Default.
"DEFERRED PURCHASE PRICE" means any purchase price or other consideration,
including payments under agreements not to compete, payable to the sellers in an
Acquisition (whether consummated before or after the date of this Agreement)
after consummation of such Acquisition, whether evidenced by notes, debentures
or the contractual promise to pay on a deferred basis.
"DOLLAR EQUIVALENT" means for all purposes of this Agreement, the
equivalent in another currency of an amount in Dollars to be determined by
reference to the rate of exchange quoted by NationsBank, at 10:00 a.m. (Houston,
Texas time) on the date of determination, for the spot purchase in the foreign
exchange market of such amount of Dollars with such other currency.
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"DOLLARS" and "$" means lawful money of the United States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the office of
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule 1 or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Administrative Agent.
"EBITDA" means, with respect to the Borrower and for any period of
determination, (a) Net Income for such period PLUS (b) to the extent deducted in
determining Net Income, without duplication, Interest Expense, income taxes and
other taxes measured by Net Income, depreciation and amortization and payments
by the Borrower in respect of Deferred Purchase Price, in each case, for such
period.
"ELIGIBLE ASSIGNEE" means (a) a commercial bank organized under the laws
of the United States, or any State thereof, and having primary capital of not
less than $500,000,000 and approved by the Administrative Agent and, so long as
no Default exists, the Borrower, which approval by the Administrative Agent and
the Borrower will not be unreasonably withheld; (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development and having primary capital (or its
equivalent) of not less than $500,000,000 (or its Dollar Equivalent) and
approved by the Administrative Agent and, so long as no Default exists, the
Borrower, which approval by the Administrative Agent and the Borrower will not
be unreasonably withheld; and (c) Provident or Southwest Bank of Texas, N.A., in
each case, if approved by the Administrative Agent, and so long as no Default
exists, the Borrower, which approval by the Administrative Agent and the
Borrower shall not be unreasonably withheld.
"ENVIRONMENT" or "ENVIRONMENTAL" shall have the meanings set forth in 42
U.S.C. ss. 9601(8) (1988).
"ENVIRONMENTAL CLAIM" means any action, lawsuit, claim, demand, regulatory
action or proceeding, order, decree, consent agreement or notice of potential or
actual responsibility or violation (including claims or proceedings under the
Occupational Safety and Health Acts or similar laws or requirements relating to
health or safety of employees) brought by a Governmental Authority which seeks
to impose a material liability under any Environmental Law.
"ENVIRONMENTAL LAW" means all Legal Requirements arising from, relating
to, or in connection with the Environment, health, or safety, including without
limitation CERCLA, relating to (a) pollution, contamination, injury,
destruction, loss, protection, cleanup, reclamation or restoration of the air,
surface water, groundwater, land surface or subsurface strata, or other natural
resources; (b) solid, gaseous or liquid waste generation, treatment, processing,
recycling, reclamation, cleanup, storage, disposal or transportation; (c)
exposure to pollutants, contaminants, hazardous, medical, infectious, or toxic
substances, materials or wastes; (d) the safety or health of
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employees; or (e) the manufacture, processing, handling, transportation,
distribution in commerce, use, storage or disposal of hazardous, medical,
infectious, or toxic substances, materials or wastes.
"ENVIRONMENTAL PERMIT" means any permit, license, order, approval or other
authorization under Environmental Law material to the Business of the Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time-to-time.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board (or any successor), as in effect from
time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, the office
of such Lender specified as its "Eurodollar Lending Office" opposite its name on
Schedule 1 (or, if no such office is specified, its Domestic Lending Office) or
such other office of such Lender as such Lender may from time to time specify to
the Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Eurodollar Rate Advance for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as
the London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such
rate is not available, the term "Eurodollar Rate" shall mean, for any Eurodollar
Rate Advance for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBO Page (or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period; PROVIDED, HOWEVER, if more than one rate is specified on
Reuters Screen LIBO Page (or any successor page), the applicable rate shall be
the arithmetic mean of all such rates.
"EURODOLLAR RATE ADVANCE" means an Advance which bears interest as
provided in Section 2.07(b).
"EURODOLLAR RATE RESERVE PERCENTAGE" of any Lender for the Interest Period
for any Eurodollar Rate Advance means the reserve percentage applicable during
such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from time-to-time by the Federal Reserve Board (or other
similar Governmental Authority) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for such Lender with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal to such
Interest Period.
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"EVENT OF DEFAULT" has the meaning specified in Section 7.01.
"EXCLUDED CAPITAL STOCK" means, with respect to the Borrower, any class of
capital stock that is subject to mandatory dividend accrual or payment or
mandatory redemption, repurchase, repayment, refunding, or similar provisions or
arrangements, including preferred stock to the extent it does not constitute
Qualified Preferred Stock.
"EXISTING CREDIT AGREEMENT" has the meaning specified in Section 9.14.
"EXISTING PREFERRED STOCK" means the preferred stock of the Borrower which
is outstanding on the date of this Agreement and listed on Schedule 2.
"EXPIRATION DATE" means, with respect to any Letter of Credit, the date on
which such Letter of Credit will expire or terminate in accordance with its
terms.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for any such day on
such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System or any of its successors.
"FINANCIAL OFFICER" means the Borrower's Chief Financial Officer,
Controller, Treasurer, or Assistant Treasurer.
"FIXED CHARGE COVERAGE RATIO" means, with respect to the Borrower and for
any period of determination, the ratio of (i) EBITDA for such period MINUS the
Borrower's cash taxes paid during such period to (ii) the sum of (A) Interest
Expense during such period, PLUS (B) scheduled and required principal payments
during such period in respect of Total Funded Debt PLUS, (C) to the extent not
included in clause (A) or (B) above in this definition, scheduled and required
payments made by the Borrower in respect of Deferred Purchase Price for such
period.
"FUND," "TRUST FUND," or "SUPERFUND" means the Hazardous Substance
Response Trust Fund, established pursuant to 42 U.S.C. ss. 9631 (1988) and the
Post-closure Liability Trust Fund, established pursuant to 42 U.S.C. ss. 9641
(1988), which statutory provisions have been amended or repealed by the
Superfunds Amendments and Reauthorization Act of 1986, and the "Fund," "Trust
Fund," or "Superfund" that are now maintained pursuant to ss. 9507 of the Code.
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"GAAP" means United States generally accepted accounting principles as in
effect from time-to-time, applied on a basis consistent with the requirements of
Section 1.03.
"GOVERNMENTAL AUTHORITY" means any foreign governmental authority, the
United States of America, any state of the United States of America and any
subdivision of any of the foregoing, and any agency, department, commission,
board, authority or instrumentality, bureau or court having jurisdiction over
any Lender, the Borrower, or the Borrower's Subsidiaries or any of their
respective Properties.
"GUARANTY" means the guaranty in the form of the attached Exhibit B
executed by the Subsidiaries of the Borrower, as the same may be amended,
restated, modified, or supplemented from time to time.
"HAZARDOUS SUBSTANCE" means the substances identified as such pursuant to
CERCLA and those regulated under any other Environmental Law, including without
limitation pollutants, contaminants, petroleum, petroleum products,
radionuclides, radioactive materials, and medical and infectious waste.
"HAZARDOUS WASTE" means the substances regulated as such pursuant to any
Environmental Law.
"HISTORICAL FINANCIAL STATEMENTS" means (i) the consolidated balance
sheets of the Borrower and its Subsidiaries at December 31, 1997 and 1998 and
the related consolidated statements of operations, changes in stockholders'
equity and cash flows for the years then ended, together with the audit report
thereon of Arthur Andersen LLP, and (ii) the unaudited consolidated balance
sheet of the Borrower and its Subsidiaries at March 31, 1999, and the related
unaudited consolidated statements of operations, changes in stockholders' equity
and cash flows for the three-month period then ended.
"INTEREST EXPENSE" means, with respect to the Borrower and for any period
of determination, the interest expense of the Borrower for such period, whether
paid or accrued (including that attributable to obligations which have been or
should be, in accordance with GAAP, recorded as Capital Leases), including,
without limitation, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing and net
costs under any interest hedge, rate swap, cap, or similar arrangement providing
for the exchange of nominal interest obligations or a cap of the interest rates
applicable to Debt of the Borrower, all as determined in accordance with GAAP;
PROVIDED that interest accruing on the Trust Notes following an interest payment
deferment by the Borrower in accordance with the terms thereof shall be excluded
from Interest Expense for the duration of such deferral. Interest Expense for a
period also includes the aggregate amount of Restricted Payments declared or
paid by the Borrower during such period, exclusive of any Restricted Payments
with respect to the Trust Preferred Stock to the extent the inclusion thereof
would be duplicative with any interest expense attributable to the Trust Notes.
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"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such Advance or the
date of the Conversion of any Base Rate Advance into such an Advance and ending
on the last day of the period selected by the Borrower pursuant to the
provisions below and Section 2.02 and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the Borrower pursuant to the
provisions below and Section 2.02. The duration of each such Interest Period
shall be one, two, three, or six months, in each case as the Borrower may, upon
notice received by the Administrative Agent not later than 10:00 a.m. (Houston,
Texas time) on the third Business Day prior to the first day of such Interest
Period, select; PROVIDED, HOWEVER, that:
(a) the Borrower may not select any Interest Period for any Advance which
ends after the Maturity Date;
(b) Interest Periods commencing on the same date for Advances comprising
part of the same Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period would otherwise occur on
a day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day, PROVIDED that if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(d) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month in which it would have ended if there were a
numerically corresponding day in such calendar month.
"ISSUING LENDER" means, with respect to all Letters of Credit, NationsBank
and any successor issuing Lender pursuant to Section 8.06.
"JOINDER AGREEMENT" means a joinder agreement in the form of the attached
Exhibit I executed by any Subsidiary of the Borrower.
"KNOWLEDGE" means, with respect to the Borrower, the actual knowledge of
any member of the Borrower's executive officers, and does not include
constructive knowledge.
"LEGAL REQUIREMENT" means any law, statute, ordinance, decree,
requirement, order, judgment, rule, regulation (or official interpretation of
any of the foregoing) of, and the terms of any license or permit issued by, any
Governmental Authority, including, but not limited to, Regulations T, U and X.
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"LENDERS" means the lenders listed on the signature pages of this
Agreement and each Eligible Assignee that shall become a party to this Agreement
pursuant to Section 9.06.
"LETTER OF CREDIT" means, individually, any letter of credit issued by the
Issuing Lender which is subject to this Agreement, and "LETTERS OF CREDIT"
collectively means all such letters of credit.
"LETTER OF CREDIT DOCUMENTS" means, with respect to any Letter of Credit,
such Letter of Credit and any agreements, documents, and instruments entered
into in connection with or relating to such Letter of Credit.
"LETTER OF CREDIT EXPOSURE" means, at any time, without duplication, the
sum of (a) the aggregate undrawn maximum face amount of each Letter of Credit
outstanding at such time and (b) the aggregate unpaid amount of all
Reimbursement Obligations at such time.
"LETTER OF CREDIT OBLIGATIONS" means any obligations of the Borrower under
this Agreement and the Letter of Credit Documents in connection with the Letters
of Credit.
"LIEN" means any mortgage, lien, pledge, charge, deed of trust, security
interest, or encumbrance to secure or provide for the payment of any obligation
of any Person, whether arising by contract, operation of law or otherwise
(including, without limitation, the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement).
"LIQUID INVESTMENTS" means (a) direct or indirect obligations of, or
obligations the principal of and interest on which are unconditionally
guaranteed by, the United States; (b) mutual funds investing in securities
issued by the United States, (c) (i) negotiable or nonnegotiable certificates of
deposit, time deposits, or other similar banking arrangements maturing within
180 days from the date of acquisition thereof ("bank debt securities"), issued
by (A) any Lender or (B) any other bank or trust company which has either (I)
obtained insurance from the Federal Depositor's Insurance Corporation supporting
such bank's or trust company's obligation to repay the bank debt securities or
(II) a combined capital surplus and undivided profit of not less than
$250,000,000 or the Dollar Equivalent thereof, if at the time of deposit or
purchase, such bank debt securities are rated not less than "A" (or the then
equivalent) by the rating service of Standard & Poor's Corporation or of Moody's
Investors Service, Inc., and (ii) commercial paper issued by (A) any Lender or
(B) any other Person if at the time of purchase such commercial paper is rated
not less than "A-2" (or the then equivalent) by the rating service of Standard &
Poor's Corporation or not less than "P-2" (or the then equivalent) by the rating
service of Moody's Investors Service, Inc., or upon the discontinuance of both
of such services, such other nationally recognized rating service or services,
as the case may be, as shall be selected by the Borrower with the consent of the
Majority Lenders; (d) repurchase agreements relating to investments described in
clauses (a) and (c) above with a market value at least equal to the
consideration paid in connection therewith, with any Person who regularly
engages in the business of entering into repurchase agreements and has a
combined capital surplus and undivided profit of not less than $250,000,000 or
the Dollar Equivalent thereof, if at the time of entering into such agreement
the debt securities of such Person are rated not less than "BBB" (or the
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then equivalent) by the rating service of Standard & Poor's Corporation or of
Moody's Investors Service, Inc.; and (e) such other investments as the Borrower
may request and the Administrative Agent may approve in writing, which approval
will not be unreasonably withheld.
"MAJORITY LENDERS" means, at any time, Lenders holding at least 51%
(without arithmetic rounding up) of the then aggregate unpaid principal amount
of the Notes held by the Lenders and the Letter of Credit Exposure of the
Lenders at such time, or, if no such principal amount and Letter of Credit
Exposure is then outstanding, Lenders having at least 51% (without arithmetic
rounding up) of the aggregate amount of the Commitments at such time.
"MATERIAL ADVERSE CHANGE" shall mean (a) a material adverse change in the
business, financial condition, or results of operations of the Borrower and its
Subsidiaries, taken as a whole, or (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.
"MATURITY DATE" means the earlier of (a) June 1, 2004, and (b) the earlier
termination in whole of the Commitments pursuant to Section 2.05 or Article VII.
"MAXIMUM RATE" means the maximum nonusurious interest rate under
applicable law.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any member of the Controlled Group
is making or accruing an obligation to make contributions.
"NATIONSBANK" means NationsBank, N.A. d/b/a Bank of America, N.A.
"NET INCOME" means, with respect to the Borrower and for any period of
determination, the net income of the Borrower for such period, as determined in
accordance with GAAP, excluding, however, extraordinary items, such as (i) any
net gain or loss during such period arising from the sale, exchange, or other
disposition of capital assets (such term to include all fixed assets and all
securities) other than in the ordinary course of business and (ii) any write-up
of assets.
"NET WORTH" means, with respect to the Borrower and for any time of
determination, the sum of (a) the par value (or value stated on the books of the
Borrower) of all classes of capital stock of the Borrower other than Excluded
Capital Stock, (b) the additional paid-in capital of the Borrower allocable to
all classes of capital stock of the Borrower other than Excluded Capital Stock,
(c) to the extent not already included in (a) or (b), the par value (or value
stated on the books of the Trust Subsidiary), and the additional paid-in
capital, of the Trust Preferred Stock, and (d) the amount of the surplus and
retained earnings, whether capital or earned, of the Borrower, all determined in
accordance with GAAP.
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"NOTE" means a promissory note of the Borrower (other than the Swing Line
Note) payable to the order of a Lender, in substantially the form of the
attached Exhibit C, evidencing indebtedness of the Borrower to such Lender
resulting from Advances owing to such Lender, as the same may be amended,
restated, modified or supplemented from time to time.
"NOTICE OF BORROWING" means a notice of borrowing in the form of the
attached Exhibit D signed by a Responsible Officer of the Borrower or the
written designee thereof.
"NOTICE OF CONVERSION OR CONTINUATION" means a notice of conversion or
continuation in the form of the attached Exhibit E signed by a Responsible
Officer of the Borrower or the written designee thereof.
"OBLIGATIONS" means, as of any date, all principal, interest, fees,
reimbursements, indemnifications, cash collateral obligations, and other amounts
payable or owed by the Borrower to the Administrative Agent and the Lenders
under this Agreement, the Notes, the Swing Line Note, the Letter of Credit
Documents, and the other Credit Documents and any increases, extensions, and
rearrangements of those obligations under any amendments, supplements, and other
modifications of the documents and agreements creating those obligations.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERMITTED LIENS" means the Liens permitted to exist pursuant to Section
6.01.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, limited liability corporation, limited
liability partnership, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof or any
trustee, receiver, custodian or similar official.
"PLAN" means an employee benefit plan (other than a Multiemployer Plan)
maintained for employees of the Borrower or any member of the Controlled Group
and covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code.
"PRE-NEED OBLIGATIONS" means the liabilities and obligations of the
Borrower and its Subsidiaries to perform funeral or cemetery related services or
provide funeral or cemetery property, merchandise or inventory pursuant to
written contracts with their customers.
"PROPERTY" of any Person means any property or assets (whether real,
personal, or mixed, tangible or intangible) of such Person.
"PROVIDENT" means Provident Services, Inc., a Delaware corporation.
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"PRO RATA SHARE" means, with respect to any Lender, either (a) the ratio
(expressed as a percentage) of such Lender's Commitments at such time to the
aggregate Commitments at such time or (b) if the Commitments have been
terminated, the ratio (expressed as a percentage) of such Lender's aggregate
outstanding Advances and Letter of Credit Exposure at such time to the aggregate
outstanding Advances and Letter of Credit Exposure of all the Lenders at such
time.
"QUALIFIED PREFERRED STOCK" means:
(a) Trust Preferred Stock; and
(b) Redeemable Preferred Stock issued after August 13, 1996, that
provides (i) for its mandatory redemption on a date, if at all, that is on or
after the first anniversary of the Maturity Date, as the same may be extended
from time to time, and (ii) that no holder of such shares will be entitled to
retain or receive Restricted Payments in respect of such shares for a period of
not less than 180 days after receipt by such holder of written notice from any
Lender or the Borrower that an Event of Default hereunder has occurred and is
then continuing and that such payments should be blocked, and indefinitely, for
so long as there shall exist any default in the payment of any Obligations,
whether by maturity, acceleration, or otherwise, all such provisions to be in
form and content reasonably acceptable to the Administrative Agent.
"REDEEMABLE PREFERRED STOCK" means shares of Borrower's preferred stock
which by its terms requires or permits Borrower to redeem such shares.
"REGISTER" has the meaning set forth in paragraph (c) of Section 9.06.
"REGULATIONS T, U AND X" mean Regulations T, U and X of the Federal
Reserve Board, as the same is from time-to-time in effect, and all official
rulings and interpretations thereunder or thereof.
"REIMBURSEMENT OBLIGATIONS" means all of the obligations of the Borrower
set forth in paragraph (c) of Section 2.14.
"RELEASE" shall have the meaning set forth in CERCLA or under any other
Environmental Law.
"RESPONSE" shall have the meaning set forth in CERCLA or under any other
Environmental Law.
"RESPONSIBLE OFFICER" means the Borrower's Chief Executive Officer,
President, Chief Financial Officer, Controller, Treasurer, or Assistant
Treasurer.
"RESTRICTED PAYMENT" means the declaration or making by any Person of any
dividends or other distributions (in cash, property, or otherwise) on, or any
payment for the purchase, redemption
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or other acquisition of, any shares of any capital stock of such Person, other
than any such dividends, distributions, and payments payable in such Person's
common stock.
"SENIOR NOTES" means the unsecured senior notes proposed to be issued by
the Borrower, in one or more series and pursuant to one or more issuances
(together with the unsecured guaranties thereof executed by the Restricted
Subsidiaries (as defined in the documents governing the Senior Notes) of the
Borrower), in an aggregate maximum principal amount not to exceed the sum of (a)
$165,000,000 plus (b) an amount equal to 100% of cash raised from equity
issuance after the date of this Agreement, that (i) do not have any stated
maturity before the latest maturity of any of the Obligations, (ii) have terms
that are no more restrictive than the terms of the Credit Documents, and (iii)
have payment and other terms satisfactory to the Majority Lenders in their sole
discretion.
"SUBORDINATED DEBT" means, with respect to the Borrower and as of any date
of its issuance, any unsecured indebtedness for borrowed money for which the
Borrower is directly and primarily obligated that is expressly subordinated to
the Obligations and is approved by the Majority Lenders in their sole discretion
that (a) arises after the date of this Agreement, (b) does not have any stated
maturity before the latest maturity of any of the Obligations, (c) has terms
that are no more restrictive than the terms of the Credit Documents, and (d) has
payment and other terms satisfactory to the Majority Lenders in their sole
discretion.
"SUBSIDIARY" means, with respect to any Person, any other Person, a
majority of whose outstanding Voting Securities (other than director's
qualifying shares) shall at any time be owned by such Person or one or more
Subsidiaries of such Person.
"SWING LINE LENDER" means NationsBank.
"SWING LINE LOAN" means the aggregate outstanding principal amount of the
advances made under the Swing Line Note.
"SWING LINE NOTE" means the promissory note of the Borrower in the
principal amount of $10,000,000 payable to the order of the Swing Line Lender
evidencing the indebtedness of the Borrower to the Swing Line Lender resulting
from advances to the Borrower under the line of credit created thereunder.
"TERMINATION EVENT" means (a) a Reportable Event described in Section 4043
of ERISA and the regulations issued thereunder (other than a Reportable Event
not subject to the provision for 30-day notice to the PBGC under such
regulations), (b) the withdrawal of the Borrower or any of its Affiliates from a
Plan during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, (c) the filing of a notice of intent to terminate a
Plan or the treatment of a Plan amendment as a termination under Section 4041 of
ERISA, (d) the institution of proceedings to terminate a Plan by the PBGC, or
(e) any other event or condition which constitutes grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Plan.
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"TOTAL CAPITAL" means, with respect to the Borrower and for any date of
determination, the sum of the Borrower's Net Worth PLUS Excluded Capital Stock
PLUS Total Funded Debt MINUS, to the extent that the Trust Preferred Stock
remains included in the Borrower's Net Worth, the Trust Notes, all as of such
date.
"TOTAL FUNDED DEBT" means, with respect to the Borrower and as of the date
of determination, without duplication, the Debt of the Borrower plus (to the
extent not already constituting Debt) the Letter of Credit Exposure.
"TRUST ACCOUNTS" means, collectively, those certain perpetual care trust,
pre-need trust, pre-construction trust or other trust arrangements established
by the Borrower as required to be established and maintained in accordance with
applicable Legal Requirements.
"TRUST GUARANTIES" means, collectively, Borrower's guaranties of the
obligations of the Trust Subsidiary in respect of the Trust Preferred Stock, the
common securities of the Trust Subsidiary, and the expenses of the Trust
Subsidiary incurred in connection with the foregoing.
"TRUST NOTES" means the Convertible Junior Subordinated Debentures Due
2029 issued by the Borrower in the original principal amount of the Trust
Preferred Stock.
"TRUST PREFERRED STOCK" means the 7% Convertible Preferred Securities,
Term Income Deferrable Equity Securities issued by the Trust Subsidiary.
"TRUST RESERVES" means, at the time of any determination thereof, in
connection with the Trust Accounts, the aggregate of all amounts required by
applicable Legal Requirements to be set aside in reserve, trust, escrow or any
similar arrangement, and in respect to any jurisdiction in which the applicable
Legal Requirements do not require the trusting of any such funds, then 100% of
the funds received pursuant to each Trust Account.
"TRUST SUBSIDIARY" means Carriage Services Capital Trust, a statutory
business trust formed under the laws of the state of Delaware.
"TYPE" has the meaning set forth in Section 1.04.
"VOTING SECURITIES" means (a) with respect to any corporation, capital
stock of the corporation having general voting power under ordinary
circumstances to elect directors of such corporation (irrespective of whether at
the time stock of any other class or classes shall have or might have special
voting power or rights by reason of the happening of any contingency), (b) with
respect to any partnership, any partnership interest or other ownership interest
having general voting power to elect the general partner or other management of
the partnership, (c) with respect to any limited liability company, membership
certificates or interests having general voting power under ordinary
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circumstances to elect the managers of such limited liability company, and (d)
with respect to the Trust Subsidiary, its common securities, liquidation amount
$50 per common security.
Section 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
Section 1.03. ACCOUNTING TERMS; CHANGES IN GAAP.
(a All accounting terms and expense estimates not specifically defined in
this Agreement shall be construed in accordance with GAAP applied on a basis
consistent with those applied in the preparation of the Historical Financial
Statements, subject to any changes in accounting standards (i) which are
required to conform to GAAP, (ii) which do not have a material impact on
Borrower's consolidated financial position, results of operations or cash flows
(unless in the absence of such change, however immaterial, Borrower would not be
in compliance with this Agreement), or (iii) which the Administrative Agent
approves, such approval not to be unreasonably withheld; provided, however, that
the Administrative Agent's failure to approve any such change or changes shall
not be deemed for purposes of this Agreement to be unreasonably withheld to the
extent that, absent such change or changes, the Borrower would not be in
compliance with this Agreement.
(b Unless otherwise indicated, all financial statements of the Borrower,
all calculations for compliance with covenants in this Agreement, all
determinations of the Applicable Margin, the commitment fees required by Section
2.04, and all calculations of any amounts to be calculated under the definitions
in Section 1.01 shall be based upon the consolidated accounts of the Borrower
and its Subsidiaries in accordance with GAAP applied as set forth in paragraph
(a) above.
Section 1.04. TYPES OF ADVANCES. Advances are distinguished by "Type." The
"Type" of an Advance refers to the determination whether such Advance is a
Eurodollar Rate Advance or Base Rate Advance.
Section 1.05. MISCELLANEOUS. Article, Section, Schedule and Exhibit
references are to Articles and Sections of and Schedules and Exhibits to this
Agreement, unless otherwise specified.
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ARTICLE II
THE CREDIT FACILITIES AND THE LETTERS OF CREDIT
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 hereof 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 Administrative 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. Each Borrowing shall, in the case of Borrowings
consisting of Base Rate Advances or of Eurodollar Rate Advances, be in an
aggregate amount not less than $5,000,000 and in integral multiples of
$1,000,000 in excess thereof (including additions thereto by a continuation or
Conversion pursuant to Section 2.02(b)), and in each case shall consist of
Advances of the same Type made (or continued or Converted pursuant to Section
2.02(b), as applicable) on the same day by the Lenders ratably according to
their respective Commitments. Within the limits of each Lender's Commitment and
subject to the other terms and conditions of this Agreement, the Borrower may
from time to time borrow, prepay pursuant to Section 2.08 and reborrow under
this Section 2.01.
Section 2.02. METHOD OF ADVANCING.
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(a NOTICE. Each Borrowing shall be made pursuant to a Notice of Borrowing
(or by telephone notice promptly confirmed in writing by a Notice of Borrowing),
given not later than (i) 10:00 a.m. (Houston, Texas time) on the third Business
Day before the date of the proposed Borrowing, in the case of a Eurodollar Rate
Advance or (ii) 9:00 a.m. (Houston, Texas time) on the Business Day of the date
of the proposed Borrowing, in the case of a Base Rate Advance, by the Borrower
to the Administrative Agent, and, in the case of a Base Rate Advance, with a
simultaneous provision of such notice to Provident, and the Administrative Agent
shall give to each Lender prompt notice of such proposed Borrowing by telecopy
or telex. In order to be an effective Notice of Borrowing, each Notice of a
Borrowing shall be by telecopy or telex, followed immediately by delivery of the
original executed Notice of Borrowing, specifying the requested (i) date of such
Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate
amount of such Borrowing, and (iv) if such Borrowing is to be comprised of
Eurodollar Rate Advances, the Interest Period for each such Advance. In the case
of a proposed Borrowing comprised of Eurodollar Rate Advances, the
Administrative Agent shall promptly notify each Lender of the applicable
interest rate under Section 2.07(b). Each Lender shall, before 12:00 p.m.
(Houston, Texas time) on the date of such Borrowing, in the case of a Eurodollar
Rate Advance or before 2:00 p.m. (Houston, Texas time) on the date of such
Borrowing, in the case of a Base Rate Advance, make available for the account of
its Applicable Lending Office to the Administrative Agent at its address
referred to in Section 9.02, or such other location as the Administrative Agent
may specify by notice to the Lenders, in same day funds, such Lender's Pro Rata
Share of such Borrowing. After the Administrative Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower at its
account with the Administrative Agent.
(b CONVERSIONS AND CONTINUATIONS OF ADVANCES. In order to elect to Convert
or continue an Advance under this Section, the Borrower shall deliver an
irrevocable Notice of Conversion or Continuation to the Administrative Agent at
the Administrative Agent's office no later than 10:00 a.m. (Houston, Texas time)
(i) on the Business Day of the proposed Conversion date in the case of a
Conversion to a Base Rate Advance and (ii) on the date which is at least three
Business Days in advance of the proposed Conversion or continuation date in the
case of a Conversion to, or a continuation of, a Eurodollar Rate Advance. In
order to be an effective Notice of Conversion or Continuation, each such Notice
of Conversion or Continuation shall be in writing or by telex or telecopy
followed immediately by delivery of the original executed Notice of Conversion
or Continuation, specifying (i) the requested Conversion or continuation date
(which shall be a Business Day), (ii) the amount and Type of the Advance to be
Converted or continued, (iii) whether a Conversion or continuation is requested,
and if a Conversion, into what Type of Advance, and (iv) in the case of a
Conversion to, or a continuation of, a Eurodollar Rate Advance, the requested
Interest Period. Promptly after receipt of a Notice of Conversion or
Continuation under this Section, the Administrative Agent shall provide each
Lender with a copy thereof and, in the case of a Conversion to or a Continuation
of a Eurodollar Rate Advance, notify each Lender of the applicable interest rate
under Section 2.07(b).
(c CERTAIN LIMITATIONS. Notwithstanding anything in paragraphs (a) and (b)
above:
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(i) at no time shall there be more than ten Interest Periods
applicable to outstanding Eurodollar Rate Advances;
(ii) if any Lender shall, at least one Business Day before the date
of any requested Borrowing, notify the Administrative Agent that the
introduction of any new law or regulation or any change in or in the
interpretation of any existing law or regulation makes it unlawful, or
that any central bank or other Governmental Authority asserts that it is
unlawful, for such Lender or its Eurodollar Lending Office to perform its
obligations under this Agreement to make Eurodollar Rate Advances or to
fund or maintain Eurodollar Rate Advances, the right of the Borrower to
select Eurodollar Rate Advances for such Borrowing or for any subsequent
Borrowing shall be suspended until such Lender shall notify the
Administrative Agent that the circumstances causing such suspension no
longer exist (which notice such Lender agrees to promptly provide), and
each Advance comprising such Borrowing shall be a Base Rate Advance;
(iii) if the Administrative Agent is, in good faith after reasonable
efforts, unable to determine the Eurodollar Rate for Eurodollar Rate
Advances comprising any requested Borrowing, the Administrative Agent
shall give written notice to the Borrower stating the reason for such
determination and, after the giving of such notice, the right of the
Borrower to select Eurodollar Rate Advances for such Borrowing or for any
subsequent Borrowing shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing
such suspension no longer exist, and each Advance comprising such
Borrowing shall be a Base Rate Advance;
(iv) if the Majority Lenders shall in good faith, at least one
Business Day before the date of any requested Borrowing, notify the
Administrative Agent that the Eurodollar Rate for Eurodollar Rate Advances
comprising such Borrowing will not adequately reflect the cost to such
Lenders of making or funding their respective Eurodollar Rate Advances, as
the case may be, for such Borrowing, the right of the Borrower to select
Eurodollar Rate Advances for such Borrowing or for any subsequent
Borrowing shall be suspended (and such notice shall also include the
rationale for such suspension) until the Majority Lenders (through the
Administrative Agent) shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist (which notice shall
be promptly provided), and each Advance comprising such Borrowing shall be
a Base Rate Advance; and
(v) if the Borrower shall fail to select the duration or
continuation of any Interest Period for any Eurodollar Rate Advances in
accordance with the provisions contained in the definition of "Interest
Period" in Section 1.01 and paragraph (b) above, the Administrative Agent
will forthwith so notify the Borrower and the Lenders and such Advances
will be made available to the Borrower on the date of such Borrowing as
Base Rate Advances or, if an existing Advance, Convert into Base Rate
Advances.
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(d NOTICES IRREVOCABLE. Each Notice of Borrowing and Notice of Conversion
or Continuation shall be irrevocable and binding on the Borrower. In the case of
any Borrowing which the related Notice of Borrowing specifies is to be comprised
of Eurodollar Rate Advances, the Borrower shall indemnify each Lender against
any loss, reasonable out-of-pocket cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in such Notice
of Borrowing for such Borrowing the applicable conditions set forth in Article
III, unless and to the extent the Eurodollar Rate Advance specified in such
Notice of Borrowing is made notwithstanding such failure, such indemnified
losses to include, without limitation, any loss (including any loss of
anticipated profits), cost or expense reasonably incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund the Advance to be made by such Lender as part of such Borrowing when
such Advance, as a result of such failure, is not made on such date.
(e ADMINISTRATIVE AGENT RELIANCE. Unless the Administrative Agent shall
have received notice from a Lender before the date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's Pro
Rata Share of such Borrowing, the Administrative Agent may assume that such
Lender has made its Pro Rata Share of such Borrowing available to the
Administrative Agent on the date of such Borrowing in accordance with paragraph
(a) of this Section 2.02, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made its Pro
Rata Share of such Borrowing available to the Administrative Agent, such Lender
and the Borrower severally agree to immediately repay to the Administrative
Agent on demand such corresponding amount, together with interest on such
amount, for each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Administrative Agent at (i) in the
case of the Borrower, the interest rate applicable on such day to Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate for such day. If such Lender shall repay to the Administrative Agent such
corresponding amount and interest as provided above, such corresponding amount
so repaid shall constitute such Lender's Advance as part of such Borrowing for
purposes of this Agreement even though not made on the same day as the other
Advances comprising such Borrowing.
(f LENDER OBLIGATIONS SEVERAL. The failure of any Lender to make the
Advance to be made by it as part of any Borrowing shall not relieve any other
Lender of its obligation, if any, to make its Advance on the date of such
Borrowing. No Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on the date of any Borrowing.
(g) NOTES. The indebtedness of the Borrower to each Lender resulting from
Advances owing to such Lender shall be evidenced by the Note of the Borrower
payable to the order of such Lender in substantially the form of Exhibit C.
Section 2.03 SWING LINE FACILITY.
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(a) COMMITMENT. The Swing Line Lender agrees, on the terms and
conditions set forth in the Swing Line Note, to make advances to the Borrower
under the Swing Line Note. No Lender shall have any rights thereunder (but each
Lender shall have the obligation to make a Base Rate Advance to the Borrower in
order to reimburse the Swing Line Lender as set forth in paragraph (b) below).
The indebtedness of the Borrower to the Swing Line Lender resulting from the
advances under the Swing Line Note made by the Swing Line Lender shall be
evidenced by the Swing Line Note made by the Borrower. Within the limits of, and
subject to the other terms and conditions of, the Swing Line Note, the Borrower
may from time to time borrow, prepay pursuant to Section 2.08, and reborrow
under the Swing Line Note.
(b) REIMBURSEMENTS FOR SWING LINE LOAN OBLIGATIONS. With respect to
the Swing Line Loan and the interest, premium, fees, and other amounts owed by
the Borrower to the Swing Line Lender in connection with the Swing Line Note,
and in accordance with the terms of the Swing Line Note, the Borrower agrees to
pay to the Swing Line Lender such amounts when due and payable to the Swing Line
Lender under the Swing Line Note. If the Borrower does not pay to the Swing Line
Lender any such amounts when due and payable to the Swing Line Lender under the
Swing Line Note, in addition to any rights the Swing Line Lender may have under
such Swing Line Note, the Swing Line Lender may upon written notice to the
Administrative Agent request the satisfaction of such obligation by the making
of a Borrowing in the amount of any such amounts not paid when due and payable.
Upon such request, the Borrower shall be deemed to have requested the making of
a Borrowing in the amount of such obligation and the transfer of the proceeds
thereof to the Swing Line Lender. Such Borrowing shall be comprised of Base Rate
Advances. The Administrative Agent shall promptly forward notice of such
Borrowing to the Borrower and the Lenders, and each Lender shall, in accordance
with the procedures of Section 2.01 and 2.02(a), other than limitations on the
size of Borrowings, and notwithstanding the failure of any conditions precedent,
make available such Lender's ratable share of such Borrowing to the
Administrative Agent, and the Administrative Agent shall promptly deliver the
proceeds thereof to the Swing Line Lender for application to such amounts owed
to the Swing Line Lender. The Borrower hereby unconditionally and irrevocably
authorizes, empowers, and directs the Swing Line Lender to make such requests
for Borrowings on behalf of the Borrower, and the Lenders to make Advances to
the Administrative Agent for the benefit of the Swing Line Lender in
satisfaction of such obligations. The Administrative Agent and each Lender may
record and otherwise treat the making of such Borrowings as the making of a
Borrowing to the Borrower under this Agreement as if requested by the Borrower.
Nothing herein is intended to release the Borrower's obligations under the Swing
Line Note, but only to provide an additional method of payment therefor. The
making of any Borrowing under this Section 2.03 shall not constitute a cure or
waiver of any Default or Event of Default caused by the Borrower's failure to
comply with the provisions of this Agreement or the Swing Line Note.
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Section 2.04. FEES.
(a COMMITMENT FEES. The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a commitment fee on the average daily amount by
which such Lender's Commitment exceeds the sum of such Lender's outstanding
Advances and Pro Rata Share of the Letter of Credit Exposure from the date of
this Agreement until the Maturity Date at a per annum rate equal to the
Applicable Margin for commitment fees. The fee payable pursuant to this clause
(a) shall be due and payable quarterly in arrears on the first day of each
January, April, July, and October commencing July 1, 1999, and on the Maturity
Date.
(b FACILITY AND ADMINISTRATIVE AGENT FEES. The Borrower agrees to pay to
the Administrative Agent the facility and agent's fees described in the letter
agreement dated March 4, 1999, between the Administrative Agent and the
Borrower, together with any other upfront fees agreed to by the Borrower, the
Administrative Agent, and each Lender.
(c LETTER OF CREDIT FEES. For each Letter of Credit issued by the Issuing
Lender, the Borrower shall pay to the Administrative Agent for the ratable
benefit of the Lenders a letter of credit fee equal to the Applicable Margin for
Eurodollar Rate Advances per annum on the face amount of such Letter of Credit
for the period such Letter of Credit is outstanding, with a minimum fee of $500.
In addition, for each Letter of Credit issued by the Issuing Lender, the
Borrower shall pay to the Administrative Agent for the benefit of the Issuing
Lender a fronting fee of 0.125% per annum on the face amount of such Letter of
Credit for the stated term of such Letter of Credit, with a minimum fee of $500
and a maximum fee of $750. The Borrower shall pay such letter of credit fees for
each Letter of Credit quarterly in arrears within ten days after the Borrower's
receipt of the invoice therefor from the Issuing Lender.
Section 2.05. REDUCTION OF THE COMMITMENTS. The Borrower shall have the
right, upon at least three Business Days' irrevocable notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the unused
portion of the Commitments; PROVIDED that each partial reduction shall be in the
aggregate amount of $5,000,000 or in integral multiples of $5,000,000 in excess
thereof. Any reduction or termination of the Commitments pursuant to this
Section 2.05 shall be permanent, with no obligation of the Lenders to reinstate
such Commitments and the commitment fees provided for in Section 2.04(a) shall
thereafter be computed on the basis of the Commitments, as so reduced.
Section 2.06. REPAYMENT. The Borrower shall repay the outstanding
principal amount of each Advance on the Maturity Date; PROVIDED that, the
principal amount of any outstanding Advance may be prepaid in accordance with
the terms of Section 2.08.
Section 2.07. INTEREST. The Borrower shall pay interest on the unpaid
principal amount of each Advance made by each Lender from the date of such
Advance until such principal amount shall be paid in full, at the following
rates per annum:
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(a BASE RATE ADVANCES. If such Advance is a Base Rate Advance, a rate per
annum equal at all times to the lesser of (i) the Adjusted Base Rate in effect
from time to time PLUS the Applicable Margin on Base Rate Advances in effect
from time to time, or (ii) the Maximum Rate, payable in arrears on the first day
of each January, April, July, and October and on the date such Base Rate Advance
shall be paid in full, PROVIDED that any amount of principal of a Base Rate
Advance which is not paid when due (whether at stated maturity, by acceleration
or otherwise) shall bear interest from the date on which such amount is due
until such amount is paid in full, payable on demand, at a rate per annum equal
at all times to the lesser of (i) the Adjusted Base Rate in effect from time to
time PLUS the Applicable Margin on Base Rate Advances in effect from time to
time PLUS 2% or (ii) the Maximum Rate.
(b EURODOLLAR RATE ADVANCES. If such Advance is a Eurodollar Rate Advance,
a rate per annum equal at all times during the Interest Period for such Advance
to the lesser of (i) the Eurodollar Rate for such Interest Period PLUS the
Applicable Margin on Eurodollar Rate Advances in effect from time to time, or
(ii) the Maximum Rate, payable on the last day of such Interest Period, and, in
the case of six-month Interest Periods, on the day which occurs during such
Interest Period three months from the first day of such Interest Period;
provided that any amount of principal of a Eurodollar Rate Advance which is not
paid when due (whether at stated maturity, by acceleration or otherwise) shall
bear interest from the date on which such amount is due until such amount is
paid in full, payable on demand, at a rate per annum equal at all times to the
lesser of (i) the rate required to be paid on such Advance immediately prior to
the date on which such amount became due PLUS 2% or (ii) the Maximum Rate;
PROVIDED FURTHER that, if such overdue amount has not been paid within three
Business Days of the date due, such rate of interest under the immediately
preceding clause (i) shall be increased to the greater of (x) the Adjusted Base
Rate in effect from time to time PLUS the Applicable Margin on Base Rate
Advances in effect from time to time PLUS 2% and (y) the rate required to be
paid on such Advance immediately prior to the date on which such amount became
due PLUS 2%.
(c ADDITIONAL INTEREST ON EURODOLLAR RATE ADVANCES. The Borrower shall pay
to each Lender, so long as any such Lender shall be required under regulations
of the Federal Reserve Board to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities, additional interest
on the unpaid principal amount of each Eurodollar Rate Advance of such Lender,
from the date of the Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder obtained by
subtracting (A) the Eurodollar Rate for the Interest Period for such Advance
from (B) the rate obtained by dividing such Eurodollar Rate by a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for
such Interest Period, payable on each date on which interest is payable on such
Advance. Such additional interest payable to any Lender shall be determined by
such Lender and notified to the Borrower through the Administrative Agent (such
notice to include the calculation of such additional interest, which calculation
shall be conclusive in the absence of manifest error, and be accompanied by any
evidence indicating the need for such additional interest as the Borrower may
reasonably request).
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(d USURY RECAPTURE. In the event the rate of interest chargeable under
this Agreement or the Notes at any time is greater than the Maximum Rate, the
unpaid principal amount of the Notes shall bear interest at the Maximum Rate
until the total amount of interest paid or accrued on the Notes equals the
amount of interest which would have been paid or accrued on the Notes if the
stated rates of interest set forth in this Agreement had at all times been in
effect.
In the event, upon payment in full of the Notes, the total amount of
interest paid or accrued under the terms of this Agreement and the Notes is less
than the total amount of interest which would have been paid or accrued if the
rates of interest set forth in this Agreement had, at all times, been in effect,
then the Borrower shall, to the extent permitted by applicable law, pay the
Administrative Agent for the account of the Lenders an amount equal to the
difference between (i) the lesser of (A) the amount of interest which would have
been charged on the Notes if the Maximum Rate had, at all times, been in effect
or (B) the amount of interest which would have accrued on the Notes if the rates
of interest set forth in this Agreement had at all times been in effect and (ii)
the amount of interest actually paid or accrued under this Agreement on the
Notes.
In the event the Lenders ever receive, collect or apply as interest
any sum in excess of the Maximum Rate, such excess amount shall, to the extent
permitted by law, be applied to the reduction of the principal balance of the
Notes, and if no such principal is then outstanding, such excess or part thereof
remaining shall be paid to the Borrower.
Section 2.08. PREPAYMENTS.
(a RIGHT TO PREPAY. The Borrower shall have the right to prepay the
Advances in whole or in part, at any time or from time to time, subject to the
provisions of this Section 2.08. Except as provided in this Section 2.08, the
Borrower shall have no right to prepay any principal amount of any Advance.
(b OPTIONAL. The Borrower may elect to prepay any of the Advances, after
giving by 10:00 a.m. (Houston, Texas time) (i) in the case of Eurodollar Rate
Advances, at least two Business Days' or (ii) in case of Base Rate Advances,
same Business Day's prior written notice to the Administrative Agent stating the
proposed date and aggregate principal amount of such prepayment. If any such
notice is given, the Borrower shall prepay Advances comprising part of the same
Borrowing in whole or ratably in part in an aggregate principal amount equal to
the amount specified in such notice, together with accrued interest to the date
of such prepayment on the principal amount prepaid and amounts, if any, required
to be paid pursuant to Section 2.09 as a result of such prepayment being made on
such date; PROVIDED, however, that each partial prepayment shall be in an
aggregate principal amount not less than $1,000,000.
(c MANDATORY. On the date of each reduction of the aggregate Commitments
pursuant to Section 2.05, the Borrower agrees to make a prepayment in respect of
the outstanding amount of Advances to the extent, if any, that the aggregate
unpaid principal amount of all Advances, Letter of Credit Exposure, and the
Swing Line Loan exceeds the Commitments, as so reduced. Each
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prepayment pursuant to this Section 2.08(c) shall be accompanied by accrued
interest on the amount prepaid to the date of such prepayment and amounts, if
any, required to be paid pursuant to Section 2.09 as a result of such prepayment
being made on such date.
(d ILLEGALITY. If any Lender shall notify the Administrative Agent and the
Borrower that the introduction of any new law or regulation or any change in or
in the interpretation of any existing law or regulation by the Governmental
Authority charged with the administration or interpretation thereof makes it
unlawful, or that any central bank or other Governmental Authority asserts that
it is unlawful, for such Lender or its Eurodollar Lending Office to perform its
obligations under this Agreement to maintain any Eurodollar Rate Advances of
such Lender then outstanding hereunder, (i) the Borrower shall, no later than
10:00 a.m. (Houston, Texas time) (A) if not prohibited by law, on the last day
of the Interest Period for each outstanding Eurodollar Rate Advance or (B) if
required by such notice, on the second Business Day following its receipt of
such notice, prepay all of the Eurodollar Rate Advances of all of the Lenders
then outstanding, together with accrued interest on the principal amount prepaid
to the date of such prepayment and amounts, if any, required to be paid pursuant
to Section 2.09 as a result of such prepayment being made on such date, (ii)
each Lender shall simultaneously make a Base Rate Advance to the Borrower on
such date in an amount equal to the aggregate principal amount of the Eurodollar
Rate Advances prepaid to such Lender, and (iii) the right of the Borrower to
select Eurodollar Rate Advances for any subsequent Borrowing shall be suspended
until the Lender which gave notice referred to above shall notify the
Administrative Agent that the circumstances causing such suspension no longer
exist.
(e RATABLE PAYMENTS; EFFECT OF NOTICE. Each payment of any Advance
pursuant to this Section 2.08 or any other provision of this Agreement shall be
made in a manner such that all Advances comprising part of the same Borrowing
are paid in whole or ratably in part. All notices given pursuant to this Section
2.08 shall be irrevocable and binding upon the Borrower.
Section 2.09. BREAKAGE COSTS. If (a) any payment of principal on or any
conversion of any Eurodollar Rate Advance is made on any date other than the
last day of the Interest Period for such Eurodollar Rate Advance, whether as a
result of any voluntary or mandatory prepayment, any acceleration of maturity,
or any other cause (other than Section 2.08(d) above), (b) any payment of
principal on any Eurodollar Rate Advance is not made when due, or (c) any
Eurodollar Rate Advance is not borrowed, converted, or prepaid in accordance
with the respective notice thereof provided by the Borrower to the
Administrative Agent, whether as a result of any failure to meet any applicable
conditions precedent for borrowing, conversion, or prepayment, the permitted
cancellation of any request for borrowing, conversion, or prepayment, the
failure of the Borrower to provide the respective notice of borrowing,
conversion, or prepayment, or any other cause not specified above which is
created by the Borrower, the Borrower shall, within 10 days of any written
demand sent to the Borrower through the Administrative Agent by any Lender
having made such Eurodollar Rate Advance, pay to the Administrative Agent for
the account of such Lender any amounts required to compensate such Lender for
any additional losses, reasonable out-of-pocket costs or expenses which it may
reasonably incur as a result of such payment or nonpayment, including, without
limitation, any loss (including loss of anticipated profits, other than any loss
of anticipated profits attributable
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solely to the Applicable Margin for Eurodollar Rate Advances), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any such Lender reasonably necessary to fund or maintain such
Advance.
Section 2.10. INCREASED COSTS.
(a EURODOLLAR RATE ADVANCES. If, due to either (i) the introduction of any
new law or regulation or any change (other than any change by way of imposition
or increase of reserve requirements included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any existing law or regulation or
(ii) the compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances, then the Borrower shall from time to time,
upon demand by such Lender (with a copy of such demand to the Administrative
Agent), immediately pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost and
detailing the calculation of such cost submitted to the Borrower and the
Administrative Agent by such Lender shall be conclusive and binding for all
purposes, absent manifest error, and shall be accompanied with any evidence of
such increased cost as the Borrower may reasonably request.
(b CAPITAL ADEQUACY. If any Lender (if a Bank) or the Issuing Lender (if a
Bank) determines in good faith that the introduction of any new law or
regulation or any change in or in the interpretation of any existing law or
regulation affects or would affect the amount of capital required or expected to
be maintained by such Lender or the Issuing Lender or any corporation
controlling such Lender or the Issuing Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend or the Issuing Lender's commitment to issue the Letters of Credit and
other commitments of this type, then, upon 30 days' prior written notice by such
Lender or the Issuing Lender (with a copy of any such demand to the
Administrative Agent), the Borrower shall immediately pay to the Administrative
Agent for the account of such Lender or to the Issuing Lender, as the case may
be, from time to time as specified by such Lender or the Issuing Lender,
additional amounts sufficient to compensate such Lender or the Issuing Lender,
in light of such circumstances, (i) with respect to such Lender, to the extent
that such Lender reasonably determines such increase in capital to be allocable
to the existence of such Lender's commitment to lend under this Agreement and
(ii) with respect to the Issuing Lender, to the extent that the Issuing Lender
reasonably determines such increase in capital to be allocable to the issuance
or maintenance of the Letters of Credit. A certificate as to such amounts and
detailing the calculation of such amounts submitted to the Borrower by such
Lender or the Issuing Lender shall be conclusive and binding for all purposes,
absent manifest error, and shall be accompanied with any evidence of the need
for maintenance of such increased capital as the Borrower may reasonably
request.
(c LETTERS OF CREDIT. With respect to any Issuing Lender which is a Bank,
if any change in any existing law or regulation or in the interpretation thereof
by any court or administrative or Governmental Authority charged with the
administration thereof shall either (i) impose, modify, or
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deem applicable any reserve, special deposit, or similar requirement against
letters of credit issued by, or assets held by, or deposits in or for the
account of, the Issuing Lender or (ii) impose on the Issuing Lender any other
condition regarding the provisions of this Agreement relating to the Letters of
Credit or any Letter of Credit Obligations, and the result of any event referred
to in the preceding clause (i) or (ii) shall be to increase the cost to the
Issuing Lender of issuing or maintaining any Letter of Credit (which increase in
cost shall be determined by the Issuing Lender's reasonable allocation of the
aggregate of such cost increases resulting from such event), then, upon demand
by the Issuing Lender, the Borrower shall pay to the Issuing Lender, from time
to time as specified by the Issuing Lender, additional amounts which shall be
sufficient to compensate the Issuing Lender for such increased cost. A
certificate as to such increased cost incurred by the Issuing Lender, as a
result of any event mentioned in clause (i) or (ii) above, and detailing the
calculation of such increased costs submitted by the Issuing Lender to the
Borrower, shall be conclusive and binding for all purposes, absent manifest
error, and shall be accompanied with any evidence of such increased cost as the
Borrower may reasonably request.
Section 2.11. PAYMENTS AND COMPUTATIONS.
(a PAYMENT PROCEDURES. The Borrower shall make each payment under this
Agreement and under the Notes not later than 10:00 a.m. (Houston, Texas time) on
the day when due in Dollars to the Administrative Agent at the location referred
to in the Notes (or such other location in the United States as the
Administrative Agent shall designate in writing to the Borrower) in same day
funds without deduction, setoff, or counterclaim of any kind (except as
otherwise provided in Section 2.12(d)). The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal, interest or fees ratably (other than amounts payable solely to the
Administrative Agent, the Issuing Lender, or a specific Lender pursuant to
Section 2.04(b), 2.04(c), 2.07(c), 2.09, 2.10, or 2.12, but after taking into
account payments effected pursuant to Section 9.04) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender or the Issuing Lender
to such Lender for the account of its Applicable Lending Office, in each case to
be applied in accordance with the terms of this Agreement. If and to the extent
that the Administrative Agent receives any payment or prepayment from the
Borrower and fails to distribute such payment or prepayment to the Lenders
ratably on the basis of their respective Pro Rata Shares on the day the
Administrative Agent receives such payment or prepayment (if received prior to
10:00 a.m. (Houston, Texas time) on such day) or the next Business Day (if
received after 10:00 a.m. (Houston, Texas time) on such day), then the
Administrative Agent shall pay to each Lender such Lender's Pro Rata Share of
such payment or prepayment together with interest thereon at the Federal Funds
Rate for each day from the date such amount should have been distributed by the
Administrative Agent until such payment or prepayment is actually distributed to
the Lenders.
(b COMPUTATIONS. All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate, the Federal Funds Rate, and of fees shall be made by the Administrative
Agent, on the basis of a year of 360 days, in each case for the actual
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number of days (including the first day, but excluding the last day) occurring
in the period for which such interest or fees are payable. Each determination by
the Administrative Agent of an interest rate shall be conclusive and binding for
all purposes, absent manifest error.
(c NON-BUSINESS DAY PAYMENTS. Whenever any payment shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be;
PROVIDED, however, that if such extension would cause payment of interest on or
principal of Eurodollar Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
(d ADMINISTRATIVE AGENT RELIANCE. Unless the Administrative Agent shall
have received written notice from the Borrower prior to the date on which any
payment is due to the Lenders that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such date an amount equal to the amount then due such Lender. If and
to the extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender, together with
interest, for each day from the date such amount is distributed to such Lender
until the date such Lender repays such amount to the Administrative Agent, at
the Federal Funds Rate for such day.
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Section 2.12. TAXES.
(a NO DEDUCTION FOR CERTAIN TAXES. Any and all payments by the Borrower
shall be made, in accordance with Section 2.11, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings (except as otherwise provided in Section 2.12(d)), and
all liabilities with respect thereto, excluding, in the case of each Lender, the
Issuing Lender, and the Administrative Agent, any franchise taxes or taxes on
the net income, net worth or shareholders' capital of such Person (and taxes
imposed in lieu of any such taxes) imposed on such Person by the jurisdiction
under the laws of which it is organized or in which is located its Applicable
Lending Office or any political subdivision or taxing authority thereof or
therein (all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable to any Lender, the Issuing Lender, or the Administrative Agent (i)
the sum payable shall be increased as may be necessary so that, after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.12), such Person receives an amount equal to the sum it
would have received had no such deductions been made; PROVIDED, however, that if
the Borrower's obligation to deduct or withhold Taxes is caused solely by such
Person's failure or inability to comply with the provisions of paragraph (d) of
this Section 2.12, no such increase shall be required; (ii) the Borrower shall
make such deductions; and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law and provide to the Administrative Agent a receipt or a copy of a
payment voucher from such relevant taxation authority or other authority
evidencing such payment.
(b OTHER TAXES. In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Notes, or the other Credit Documents (hereinafter referred to as "Other Taxes").
(c INDEMNIFICATION. THE BORROWER INDEMNIFIES EACH LENDER, THE ISSUING
LENDER, AND THE ADMINISTRATIVE AGENT FOR THE FULL AMOUNT OF ALL TAXES (AS
DEFINED IN SECTION 2.12(A) ABOVE) AND OTHER TAXES (AS DEFINED IN SECTION 2.12(B)
ABOVE) IMPOSED BY ANY JURISDICTION ON AMOUNTS PAYABLE UNDER THIS SECTION 2.12
PAID BY SUCH LENDER, THE ISSUING LENDER, OR THE ADMINISTRATIVE AGENT (AS THE
CASE MAY BE) AND ANY LIABILITY (INCLUDING INTEREST, PENALTIES AND EXPENSES
(OTHER THAN INTEREST, PENALTIES AND EXPENSES ARISING SOLELY FROM THE FAILURE OR
INABILITY OF THE ADMINISTRATIVE AGENT, THE ISSUING LENDER, OR ANY LENDER TO
PROVIDE THE FORMS DESCRIBED IN PARAGRAPH (D) OF THIS SECTION 2.12)) ARISING
THEREFROM OR WITH RESPECT THERETO, WHETHER OR NOT SUCH TAXES (AS DEFINED IN
SECTION 2.12(A) ABOVE) OR OTHER TAXES (AS DEFINED IN SECTION 2.12(B) ABOVE) WERE
CORRECTLY OR LEGALLY ASSERTED. EACH PAYMENT REQUIRED TO BE MADE BY THE
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BORROWER IN RESPECT OF THIS INDEMNIFICATION SHALL BE MADE TO THE ADMINISTRATIVE
AGENT FOR THE BENEFIT OF ANY LENDER CLAIMING SUCH INDEMNIFICATION WITHIN 30 DAYS
FROM THE DATE THE BORROWER RECEIVES WRITTEN DEMAND THEREFOR FROM THE
ADMINISTRATIVE AGENT ON BEHALF OF ITSELF AS ADMINISTRATIVE AGENT, THE ISSUING
LENDER, OR ANY SUCH LENDER. IF ANY LENDER, THE ADMINISTRATIVE AGENT, OR THE
ISSUING LENDER RECEIVES A REFUND OR TAX CREDIT IN RESPECT OF ANY TAXES (AS
DEFINED IN SECTION 2.12(A) ABOVE) PAID BY THE BORROWER UNDER THIS PARAGRAPH (C),
SUCH LENDER, THE ADMINISTRATIVE AGENT, OR THE ISSUING LENDER, AS THE CASE MAY
BE, SHALL PROMPTLY PAY TO THE BORROWER THE BORROWER'S SHARE OF SUCH REFUND OR
TAX CREDIT.
(d FOREIGN LENDER WITHHOLDING EXEMPTION. Each Lender and Issuing Lender
that is not incorporated under the laws of the United States of America or a
state thereof agrees that it will deliver to the Borrower and the Administrative
Agent (i) two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224 or successor applicable form, as the case may be, certifying
in each case that such Lender is entitled to receive payments under this
Agreement and the Notes payable to it, without deduction or withholding of any
United States federal income taxes, (ii) if applicable, an Internal Revenue
Service Form W-8 or W-9 or successor applicable form, as the case may be, to
establish an exemption from United States backup withholding tax, and (iii) any
other governmental forms which are necessary or required under an applicable tax
treaty or otherwise by law to reduce or eliminate any withholding tax, which
have been reasonably requested by the Borrower. Each Lender which delivers to
the Borrower and the Administrative Agent a Form 1001 or 4224 and Form W-8 or
W-9 pursuant to the next preceding sentence further undertakes to deliver to the
Borrower and the Administrative Agent two further copies of the said letter and
Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms, or other
manner of certification, as the case may be, on or before the date that any such
letter or form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent letter and form previously delivered by it
to the Borrower and the Administrative Agent, and such extensions or renewals
thereof as may reasonably be requested by the Borrower and the Administrative
Agent certifying in the case of a Form 1001 or 4224 that such Lender is entitled
to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes. If an event (including without limitation
any change in treaty, law or regulation) has occurred prior to the date on which
any delivery required by the preceding sentence would otherwise be required
which renders all such forms inapplicable or which would prevent any Lender from
duly completing and delivering any such letter or form with respect to it and
such Lender advises the Borrower and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax, and in the case of a Form W-8 or W-9, establishing an
exemption from United States backup withholding tax, such Lender shall not be
required to deliver such letter or forms. The Borrower shall withhold tax at the
rate and in the manner required by the laws of the United States with respect to
payments made to a Lender failing to timely provide the requisite Internal
Revenue Service forms.
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Section 2.13. SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off or otherwise) on account of the Advances or Letter of Credit Obligations
made by it in excess of its Pro Rata Share of payments on account of the
Advances or Letter of Credit Obligations obtained by all the Lenders, such
Lender shall notify the Administrative Agent and forthwith purchase from the
other Lenders such participations in the Advances made by them or Letter of
Credit Obligations held by them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; PROVIDED, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such Lender's ratable share (according to the proportion of (a) the
amount of the participation sold by such Lender to the purchasing Lender as a
result of such excess payment to (b) the total amount of such excess payment) of
such recovery, together with an amount equal to such Lender's ratable share
(according to the proportion of (a) the amount of such Lender's required
repayment to the purchasing Lender to (b) the total amount of all such required
repayments to the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.13 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
Section 2.14. LETTERS OF CREDIT.
(a ISSUANCE. From time-to-time from the date of this Agreement until the
Maturity Date, at the request of the Borrower, the Issuing Lender shall, on the
terms and conditions hereinafter set forth, issue, increase, or extend the
expiration date of Letters of Credit for the account of the Borrower on any
Business Day. No Letter of Credit will be issued, increased, or extended (i)
unless such issuance, increase, or extension would not cause (A) the Letter of
Credit Exposure to exceed the lesser of (1) $10,000,000 or (2) the aggregate
Commitments LESS the aggregate outstanding principal amount of all Advances LESS
the outstanding principal amount of the Swing Line Loan; (ii) unless such Letter
of Credit has an Expiration Date not later than the earlier of (A) 13 months
after the date of issuance thereof (or, if extendable beyond such period, unless
such Letter of Credit is cancelable upon 120 days' notice given by the Issuing
Lender to the beneficiary of such Letter of Credit) and (B) the Maturity Date;
(iii) unless such Letter of Credit is in form and substance acceptable to the
Issuing Lender in its sole discretion; (iv) unless such Letter of Credit is a
standby letter of credit not supporting the repayment of indebtedness for
borrowed money of any Person; and (v) unless the Borrower has delivered to the
Issuing Lender a completed and executed letter of credit application on the
Issuing Lender's standard form, which application for the initial Issuing Lender
is in the form of the attached Exhibit F. Notwithstanding the foregoing, if the
Administrative Agent and the Lenders permit the Expiration Date of any Letter of
Credit to extend beyond the Maturity Date, the Borrower shall either (i) deposit
with the Administrative Agent into the Cash Collateral Account on the Maturity
Date an amount of cash equal to the outstanding Letter of Credit Exposure as
security for the Obligations to the extent the Letter of Credit Obligations are
not otherwise paid
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at such time, or (ii) cause to be issued to the Issuing Lender, as beneficiary,
a standby letter of credit in the face amount of the Letter of Credit Exposure,
as security for the Letter of Credit Obligations, issued by a commercial bank
meeting the criteria of an Eligible Assignee, in form and content reasonably
acceptable to the Issuing Lender.
(b PARTICIPATIONS. Upon the date of the issuance or increase of a Letter
of Credit, the Issuing Lender shall be deemed to have sold to each other Lender
and each other Lender shall have been deemed to have purchased from the Issuing
Lender a participation in the related Letter of Credit Obligations equal to such
Lender's Pro Rata Share at such date and such sale and purchase shall otherwise
be in accordance with the terms of this Agreement. The Issuing Lender shall
promptly notify each such participant Lender by telex, telephone, or telecopy of
each Letter of Credit issued or increased and the actual dollar amount of such
Lender's participation in such Letter of Credit.
(c REIMBURSEMENT. The Borrower hereby agrees to pay on demand to the
Issuing Lender for the benefit of the Lenders in respect of each Letter of
Credit, or as a Base Rate Advance as hereafter provided, an amount equal to any
draw paid by the Issuing Lender under or in respect of such Letter of Credit. In
the event the Issuing Lender makes a payment pursuant to a request for draw
presented under a Letter of Credit and such payment is not promptly reimbursed
by the Borrower upon demand, the Issuing Lender shall give notice of such
payment to the Administrative Agent and the Lenders, and each Lender shall
promptly reimburse the Issuing Lender for such Lender's Pro Rata Share of such
payment, and such reimbursement shall be deemed for all purposes of this
Agreement to constitute a Base Rate Advance to the Borrower from such Lender. If
such reimbursement is not made by any Lender to the Issuing Lender on the same
day on which the Issuing Lender shall have made payment on any such draw, such
Lender shall pay interest thereon to the Issuing Lender at a rate per annum
equal to the Federal Funds Rate. The Borrower hereby unconditionally and
irrevocably authorizes, empowers, and directs the Administrative Agent and the
Lenders to record and otherwise treat such payment under a Letter of Credit not
immediately reimbursed by the Borrower as a Borrowing comprised of Base Rate
Advances to the Borrower.
(d OBLIGATIONS UNCONDITIONAL. The obligations of the Borrower under this
Agreement in respect of each Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of any Letter of Credit
Documents;
(ii) any amendment or waiver of, or any consent to departure from,
any Letter of Credit Documents;
(iii) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against any beneficiary or
transferee of such Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Lender or
any other person or entity, whether in connection with this Agreement, the
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transactions contemplated in this Agreement or in any Letter of Credit
Documents or any unrelated transaction;
(iv) any statement or any other document presented under such Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect
to the extent the Issuing Lender would not be liable therefor pursuant to
the following paragraph (e);
(v) payment by the Issuing Lender under such Letter of Credit
against presentment of a draft or certificate which does not comply with
the terms of such Letter of Credit (unless such failure to comply is
evident on the face of such draft or certificate and such payment would
constitute gross negligence or willful misconduct by the Issuing Lender);
or
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing;
PROVIDED, HOWEVER, that nothing contained in this paragraph (d) shall be deemed
to constitute a waiver of any remedies of the Borrower against the Issuing
Lender in connection with the Letters of Credit.
(e) LIABILITY OF ISSUING LENDER. Except as otherwise provided herein, the
Borrower assumes all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such Letter of
Credit. Neither the Issuing Lender nor any of its officers or directors shall be
liable or responsible for:
(i) the use which may be made of any Letter of Credit or any acts
or omissions of any beneficiary or transferee in connection therewith;
(ii) the validity, sufficiency or genuineness of documents, or of
any endorsement thereon, even if such documents should prove to be in any
or all respects invalid, insufficient, fraudulent or forged;
(iii) payment by the Issuing Lender against presentment of documents
which do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to
the relevant Letter of Credit (unless such failure to comply is evident on
the face of the draft or certificate and such payment would constitute
negligence or willful misconduct by the Issuing Lender); or
(iv) any other circumstances whatsoever in making or failing to
make payment under any Letter of Credit (including the Issuing Lender's
own negligence).
EXCEPT that the Borrower shall have a claim against the Issuing Lender, and the
Issuing Lender shall be liable to the Borrower, to the extent of any direct, as
opposed to consequential, damages suffered by the Borrower which the Borrower
proves were caused by (A) the Issuing Lender's willful
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misconduct or gross negligence in determining whether documents presented under
a Letter of Credit comply with the terms of such Letter of Credit or (B) the
Issuing Lender's willful failure to make lawful payment under any Letter of
Credit after the presentment to it of a draft and certificate strictly complying
with the terms and conditions of such Letter of Credit.
In furtherance and not in limitation of the foregoing, the Issuing Lender may
accept documents that appear on their face to comply with the terms of the
applicable Letter of Credit, without responsibility for further investigation,
regardless of any notice or information to the contrary.
Section 2.15. NOTICE OF INCREASED COSTS; LENDER REPLACEMENT. Each Lender
seeking compensation pursuant to Sections 2.07(c), 2.08(d), 2.10(a), 2.10(b),
2.10(c) or 2.12 shall deliver the notices required by such Sections as promptly
as practicable, and in any event within 90 days after it becomes aware thereof
and determines to request compensation provided that, except as set forth in the
immediately succeeding sentence of this Section 2.15, the failure on the part of
any Lender to demand compensation under such Sections shall not constitute a
waiver of such Lender's rights under such Sections. Notwithstanding the
provisions of Sections 2.07(c), 2.08(d), 2.10(a), 2.10(b), 2.10(c) or 2.12 of
this Agreement and the other provisions of this Section 2.15, the Borrower shall
have no obligation to pay to any Lender (including the Issuing Lender and the
Administrative Agent) any compensation described in such Sections to the extent
any such compensation relates to any period which is more than 90 days prior to
the date such Lender delivers to the Borrower the notice or notices required by
any such Section or Sections, unless reasonably promptly following the date such
Lender became aware of the event or occurrence which results in such Lender's
right to receive such compensation under such Section or Sections of this
Agreement such Lender gave written notice thereof to the Borrower. To the extent
requested by Borrower and not inconsistent with the Lender requesting
compensation, such Lender shall use reasonable efforts and take such actions as
are reasonably appropriate if as a result thereof the additional moneys which
would otherwise be required to be paid to such Lender pursuant to such Sections
would be materially reduced, or the illegality or other adverse circumstances
which would otherwise require a Conversion would cease to exist, and in each
case if, as determined by such Lender in its sole discretion, the taking of such
actions would not have any cost to such Lender and would not adversely affect
the Advances made by such Lender. In the event any Lender shall give any notice
to the Borrower or the Administrative Agent pursuant to Sections 2.01(b),
2.07(c), 2.08(d), 2.10(a), 2.10(b), 2.10(c) or 2.12, the Borrower may give
notice to such Lender (with a copy to the Administrative Agent) that it wishes
to seek one or more Eligible Assignees (which may be one or more of the Lenders)
to assume the Commitment of such Lender and to purchase its Pro Rata Share of
the Obligations and its Note. Each Lender delivering a notice pursuant to the
foregoing Sections agrees to sell, without recourse, its Commitment, and its Pro
Rata Share of the Obligations and its Note to any such Eligible Assignee for an
amount equal to the sum of the outstanding principal amount of and accrued
interest on the Advances owing to such Lender plus all fees and other amounts
owing to such Lender under the Credit Documents (including, without limitation,
any compensation owing to such Lender pursuant to the foregoing Sections) until
the date such Commitment, Note and amounts are purchased, whereupon such Lender
shall have no further Commitment or other obligation to the
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Borrower under this Agreement or any other Credit Document and such Eligible
Assignee shall thereupon be substituted in its place as a "Lender" hereunder.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. CONDITIONS PRECEDENT TO INITIAL BORROWINGS AND ISSUANCE OF
LETTERS OF CREDIT. The obligation of each Lender to make its initial Advance as
part of the initial Borrowing and of the Issuing Lender to issue the initial
Letters of Credit is subject to the conditions precedent that:
(a) DOCUMENTATION. On or before the day on which the initial Borrowing is
made or the initial Letters of Credit are issued, the Administrative Agent shall
have received the following, duly executed by all the parties thereto, in form
and substance satisfactory to the Administrative Agent and the Lenders, and
(except for the Notes and unless otherwise indicated) in sufficient copies for
each Lender:
(i) this Agreement and all attached Exhibits and Schedules, and the
Notes payable to the order of each of the Lenders, respectively;
(ii) a Guaranty executed by each of the Borrower's Subsidiaries;
(iii) the Swing Line Note payable to the order of the Swing Line
Lender;
(iv) the letter agreement regarding fees dated as of March 4, 1999,
between the Borrower and the Administrative Agent (such letter agreement
to be delivered only to the Administrative Agent);
(v) (A) certified copies of (I) the resolutions of the Board of
Directors or Managers, as applicable, of the Borrower and each of its
Subsidiaries (other than the Trust Subsidiary) approving this Agreement,
the Notes and the other Credit Documents, (II) the articles or certificate
of incorporation and bylaws of the Borrower and each of its Subsidiaries,
and (III) all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement, the Notes
and the other Credit Documents, and (B) certificates of good standing,
existence and authority for the Borrower (one copy only);
(vi) a certificate of the Secretary or an Assistant Secretary of the
Borrower and each of its Subsidiaries dated as of the date of this
Agreement certifying the names and true signatures of those officers of
the Borrower and each of its Subsidiaries (other than the Trust
Subsidiary) who are authorized to sign this Agreement, the Notes, Notices
of Borrowing, Notices of Conversion or Continuation and the other Credit
Documents (one copy only); and
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(vii) a favorable opinion of Snell & Smith, A Professional
Corporation, counsel to the Borrower and its Subsidiaries, dated as of the
date of this Agreement and substantially in the form of the attached
Exhibit G.
(b) NO MATERIAL ADVERSE CHANGE. No event or events which, individually or
in the aggregate has had or is reasonably likely to cause a Material Adverse
Change, shall have occurred.
(c) PAYMENT OF FEES. On the date of this Agreement, the Borrower shall
have paid the fees required by paragraph (b) of Section 2.04 which are payable
as of such date and all costs and expenses which have been invoiced and are
payable pursuant to Section 9.04.
(d) NO DEFAULT. No Default shall have occurred and be continuing or would
result from such Borrowing or from the application of the proceeds therefrom or
from the issuance, increase or extension of such Letters of Credit.
(e) REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Article IV hereof and in the Guaranty shall be true and correct in
all material respects on and as of the date of this Agreement and before and
after giving effect to the initial Borrowing and to the application of the
proceeds from such Borrowing or to the issuance, increase or extension of the
initial Letters of Credit, as though made on and as of such date.
(f) NO MATERIAL LITIGATION. No legal or regulatory action or proceeding
shall have commenced and then be continuing against the Borrower or any of its
Subsidiaries since the date of this Agreement which could reasonably be expected
to cause a Material Adverse Change.
Section 3.02. CONDITIONS PRECEDENT TO EACH BORROWING. The obligation of
each Lender to make an Advance on the occasion of each Borrowing (including the
initial Borrowing) and of the Issuing Lender to issue, increase, or extend any
Letter of Credit shall be subject to the further conditions precedent that on
the date of such Borrowing or the issuance, increase, or extension of such
Letter of Credit:
(a) the following statements shall be true (and each of the giving of the
applicable Notice of Borrowing and the acceptance by the Borrower of the
proceeds of such Borrowing or the issuance, increase, or extension of such
Letter of Credit shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing or the issuance, increase, or extension of
such Letter of Credit such statements are true):
(i) the representations and warranties contained in Article IV and
in the Guaranty are correct in all material respects on and as of the date
of such Borrowing or the issuance, increase, or extension of such Letter
of Credit, before and after giving effect to such Borrowing or to the
issuance, increase, or extension of such Letter of Credit and to the
application of the proceeds from such Borrowing, as though made on and as
of such date, except for such representations and warranties which, by
their nature, are made as of a
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specific date, which shall continue to be correct in all material respects
as of such specific date; and
(ii) no Default has occurred and is continuing or would result from
such Borrowing or from the application of the proceeds therefrom or from
the issuance, increase or extension of such Letter of Credit; and
(b) the Administrative Agent shall have received such other approvals or
documents deemed necessary by any Lender as a result of circumstances beyond the
control of such Lender occurring after the date of this Agreement, as any Lender
through the Administrative Agent may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as follows:
Section 4.01. CORPORATE EXISTENCE; SUBSIDIARIES. The Borrower is a
corporation duly organized, validly existing, and in good standing under the
laws of Delaware and in good standing and qualified to do business in each
jurisdiction where its ownership or lease of property or conduct of its business
requires such qualification and where a failure to be qualified could reasonably
be expected to cause a Material Adverse Change. Each Subsidiary of the Borrower
is a corporation, limited liability company, or business trust, as applicable,
duly organized, validly existing, and in good standing under the laws of its
jurisdiction of incorporation or organization and (where applicable) in good
standing and qualified to do business in each jurisdiction where its ownership
or lease of property or conduct of its business requires such qualification and
where a failure to be qualified could reasonably be expected to cause a Material
Adverse Change. The Borrower has no Subsidiaries on the date of this Agreement
other than the Subsidiaries listed on the attached Schedule 4.01, and Schedule
4.01 lists the jurisdiction of incorporation or organization and the address of
the principal office of each such Subsidiary existing on the date of this
Agreement.
Section 4.02. CORPORATE POWER. The execution, delivery, and performance by
the Borrower of this Agreement, the Notes, and the other Credit Documents to
which it is a party, and by the Subsidiaries of the Borrower (other than the
Trust Subsidiary) of the Guaranty and the consummation of the transactions
contemplated hereby and thereby (a) are within the Borrower's and such
Subsidiaries' respective corporate powers, (b) have been duly authorized by all
necessary corporate action required on their part, (c) do not contravene (i) the
Borrower's or such Subsidiaries' certificate or articles, as the case may be, of
incorporation or by-laws or other organizational documents, as applicable, or
(ii) any law or any contractual restriction binding on or affecting the Borrower
or such Subsidiaries, and (d) will not result in or require the creation or
imposition of any Lien prohibited by this Agreement. At the time of each
Borrowing, such Borrowing and the use of
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the proceeds of such Borrowing will be within the Borrower's corporate powers,
will have been duly authorized by all necessary corporate action, (a) will not
contravene (i) the Borrower's certificate of incorporation or by-laws or (ii)
any law or any contractual restriction binding on or affecting the Borrower and
(b) will not result in or require the creation or imposition of any Lien
prohibited by this Agreement.
Section 4.03. AUTHORIZATION AND APPROVALS. No authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority is
required for the due execution, delivery and performance by the Borrower of this
Agreement, the Notes, or the other Credit Documents to which the Borrower is a
party or by each of the Subsidiaries of the Borrower (other than the Trust
Subsidiary) of its Guaranty or the consummation of the transactions contemplated
thereby. At the time of each Borrowing, no further authorization or approval or
other action by, and no notice to or filing with, any Governmental Authority
will be required for such Borrowing or the use of the proceeds of such
Borrowing.
Section 4.04. ENFORCEABLE OBLIGATIONS. This Agreement, the Notes, and the
other Credit Documents to which the Borrower is a party have been duly executed
and delivered by the Borrower and the Guaranty has been duly executed and
delivered by the Subsidiaries of the Borrower (other than the Trust Subsidiary).
Each Credit Document is the legal, valid, and binding obligation of the Borrower
and each such Subsidiary which is a party to it, enforceable against the
Borrower and each such Subsidiary in accordance with its terms, except as such
enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium, or similar law affecting creditors' rights generally
and by general principles of equity.
Section 4.05. HISTORICAL FINANCIAL STATEMENTS. The Historical Financial
Statements, copies of which have been furnished to each Lender, fairly present,
in all material respects (a) the consolidated financial condition of the
Borrower and its Subsidiaries at December 31, 1997 and 1998 and March 31, 1999,
and (b) the consolidated results of their operations, changes in stockholders'
equity, and their cash flows for the periods covered thereby, in each case in
conformity with GAAP (subject, in the case of the financial statements at, and
for the three-month period ended March 31, 1999, to normal year-end adjustments
and the absence of footnotes). Since December 31, 1998, no Material Adverse
Change has occurred.
Section 4.06. TRUE AND COMPLETE DISCLOSURE. All factual information
(excluding projections, estimates and pro forma financial information)
heretofore or contemporaneously furnished by the Borrower or any of its
Subsidiaries in writing to the Administrative Agent for purposes of or in
connection with this Agreement, any other Credit Document or any transaction
contemplated hereby or thereby is (taken as a whole) true and accurate in all
material respects on the date as of which such information is dated or certified
and does not contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements contained therein not
misleading as of the date of this Agreement. All projections, estimates, and pro
forma financial information furnished by the Borrower were prepared on the basis
of assumptions, data, information,
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tests, or conditions believed to be reasonable at the time such projections,
estimates, and pro forma financial information were furnished.
Section 4.07. LITIGATION. There is no pending or, to the Knowledge of the
Borrower, threatened action or proceeding affecting the Borrower or any of its
Subsidiaries before any court, Governmental Agency or arbitrator, which could
reasonably be expected to cause a Material Adverse Change or which purports to
affect the legality, validity, binding effect or enforceability of this
Agreement, any Note, or any other Credit Document.
Section 4.08. USE OF PROCEEDS. The proceeds of Advances and the Letters of
Credit will be used by the Borrower for general corporate purposes including,
but not limited to, Acquisitions. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U). No proceeds of any Advance will be used to
purchase or carry any margin stock in violation of Regulation T, U or X.
Section 4.09. INVESTMENT COMPANY ACT. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
Section 4.10. PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor
any of its Subsidiaries is a "holding company", or a "Subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "Subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
Section 4.11. TAXES. Proper and accurate (in all material respects)
federal, state, local and foreign tax returns, reports and statements required
to be filed (after giving effect to any extension granted in the time for
filing) by the Borrower, its Subsidiaries or any member of the Controlled Group
(hereafter collectively called the "Tax Group") have been filed with the
appropriate governmental agencies in all jurisdictions in which such returns,
reports and statements are required to be filed and where the failure to file
would cause a Material Adverse Change, and all taxes (which are material in
amount) and other impositions due and payable have been timely paid prior to the
date on which any fine, penalty, interest, late charge or loss may be added
thereto for non-payment thereof except where contested in good faith and by
appropriate proceedings. Neither the Borrower nor any member of the Tax Group
has given, or been requested to give, a waiver of the statute of limitations
relating to the payment of any federal, state, local or foreign taxes or other
impositions. Proper and accurate amounts have been withheld by the Borrower and
all other members of the Tax Group from their employees for all periods to
comply in all material respects with the tax, social security and unemployment
withholding provisions of applicable federal, state, local and foreign law.
Timely payment of all material sales and use taxes required by applicable law
have been made by the Borrower and all other members of the Tax Group. The
amounts shown on all tax returns to be due and payable have been paid in full or
adequate provision therefor is included on the books of the appropriate member
of the Tax Group.
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Section 4.12. PENSION PLANS. All Plans are in compliance in all material
respects with all applicable provisions of ERISA. No Termination Event has
occurred with respect to any Plan, and each Plan has complied with and been
administered in all material respects with applicable provisions of ERISA and
the Code. No "accumulated funding deficiency" (as defined in Section 302 of
ERISA) has occurred and there has been no excise tax imposed under Section 4971
of the Code. Neither the Borrower nor any of its Subsidiaries has any
Multiemployer Plans. The present value of all benefits vested under each Plan
(based on the assumptions used to fund such Plan) did not, as of the last annual
valuation date applicable thereto, exceed the value of the assets of such Plan
allocable to such vested benefits. Based upon GAAP existing as of the date of
this Agreement and current factual circumstances, the Borrower has no reason to
believe that the annual cost during the term of this Agreement to the Borrower
or any member of the Controlled Group for post-retirement benefits to be
provided to the current and former employees of the Borrower or any member of
the Controlled Group under Plans that are welfare benefit plans (as defined in
Section 3(a) of ERISA) could, in the aggregate, reasonably be expected to cause
a Material Adverse Change.
Section 4.13. CONDITION OF PROPERTY; CASUALTIES. The material Properties
used or to be used in the continuing operations of the Borrower and each of its
Subsidiaries are in the condition required to adequately service the function
for which such Properties are used. Since December 31, 1998, neither the
business nor the material Properties of the Borrower and each of its
Subsidiaries, taken as a whole, has been materially and adversely affected as a
result of any fire, explosion, earthquake, flood, drought, windstorm, accident,
strike or other labor disturbance, embargo, requisition or taking of property or
cancellation of contracts, permits or concessions by a Governmental Authority,
riot, activities of armed forces or acts of God or of any public enemy.
Section 4.14. INSURANCE. The Borrower and each of its Subsidiaries carry
insurance with reputable insurers in respect of such of their respective
Properties, in such amounts and against such risks as is customarily maintained
by other Persons of similar size engaged in similar businesses.
Section 4.15. NO BURDENSOME RESTRICTIONS; NO DEFAULTS. Neither the
Borrower nor any of its Subsidiaries is a party to any indenture, loan or credit
agreement or any lease or other agreement or instrument or subject to any
charter or corporate restriction or provision of applicable law or governmental
regulation which could reasonably be expected to cause a Material Adverse
Change. Neither the Borrower nor any of its Subsidiaries is in default or has
received a notice of default under or with respect to any contract, agreement,
lease or other instrument to which the Borrower or any of its Subsidiaries is a
party and which could reasonably be expected to cause a Material Adverse Change.
No Default has occurred and is continuing.
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Section 4.16. ENVIRONMENTAL CONDITION.
(a) PERMITS, ETC. The Borrower and its Subsidiaries (i) have obtained all
Environmental Permits required by Governmental Authorities necessary for the
ownership and operation of their respective Properties and the conduct of their
respective businesses; (ii) to the Borrower's Knowledge, have been and are in
compliance with all terms and conditions of such Environmental Permits, if any,
and with all other material requirements of applicable Environmental Laws; (iii)
have not received notice of any violation or alleged violation of any
Environmental Law or Environmental Permit; and (iv) are not subject to any
actual or contingent Environmental Claim.
(b) CERTAIN LIABILITIES. Except as set forth on Schedule 4.16(b), to the
Borrower's Knowledge, none of the present or previously owned or operated
Properties of the Borrower or of any of its present or former Subsidiaries,
wherever located, (i) has been placed on or proposed to be placed on the
National Priorities List, the Comprehensive Environmental Response Compensation
Liability Information System list, or their state or local analogs, or have been
otherwise investigated, designated, listed, or identified as a potential site
for removal, remediation, cleanup, closure, restoration, reclamation, or other
response activity under any Environmental Laws, except for any such Property
with respect to which the Borrower or the applicable Subsidiary has received a
closure letter or other official written approval from the applicable
Governmental Authority stating that all applicable legal and regulatory
standards have been met with respect to all conditions identified with respect
to such Property; (ii) is subject to a Lien, arising under or in connection with
any Environmental Laws, that attaches to any revenues or to any Property owned
or operated by the Borrower or any of its Subsidiaries, wherever located, which
could reasonably be expected to have a Material Adverse Change; or (iii) has
been the site of any Release of Hazardous Substances or Hazardous Wastes from
present or past operations which has caused at the site or at any third party
site any condition that has resulted in or could reasonably be expected to
result in the need for Response that would cause a Material Adverse Change.
(c) CERTAIN ACTIONS. Without limiting the foregoing, (i) all necessary
notices have been properly filed, and no further action is required under
current Environmental Law as to each Response or other restoration or remedial
project taken by the Borrower, or its present or former Subsidiaries on any of
their presently or formerly owned or operated Properties and (ii) the present
and, to the Borrower's Knowledge, future liability, if any, of the Borrower and
its Subsidiaries which could reasonably be expected to arise in connection with
requirements under Environmental Laws will not result in a Material Adverse
Change.
Section 4.17. PERMITS, LICENSES, ETC. The Borrower and its Subsidiaries
possess all permits, licenses, patents, patent rights or licenses, trademarks,
trademark rights, trade names rights and copyrights which are necessary and
material to the conduct of their businesses. To the Borrower's Knowledge, the
Borrower and its Subsidiaries manage and operate their business in all material
respects in accordance with all applicable Legal Requirements and standard
industry practices.
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Section 4.18. TOTAL FUNDED DEBT; LIENS. As of the date hereof, neither
Borrower nor any of its Subsidiaries is subject to any Total Funded Debt, except
for (a) Total Funded Debt disclosed on the Borrower's consolidated balance sheet
at March 31, 1999, included within the Historical Financial Statements, (b)
Total Funded Debt incurred under the Existing Credit Agreement since the date of
such balance sheet, (c) obligations under the Trust Notes and the Trust
Guaranties, and (d) obligations under agreements not to compete and for Deferred
Purchase Price of Acquisitions closed after March 31, 1999. As of the date
hereof, none of the respective assets or Properties of the Borrower or any of
its Subsidiaries is subject to any Liens, other than those which would
constitute Permitted Liens under Section 6.01.
Section 4.19. DIRECT BENEFIT FROM BORROWINGS. The Borrower and each of its
Subsidiaries (other than the Trust Subsidiary) has received, or, upon the
execution and funding thereof, will receive (i) direct benefit from the making
and execution of this Agreement and the other Credit Documents to which each of
them is a party, and (ii) fair and independent consideration for the entry into,
and performance of, this Agreement and the other Credit Documents to which each
of them is a party.
Section 4.20. CHIEF EXECUTIVE OFFICE. As of the date of this Agreement,
the chief executive office of the Borrower is the address set forth in SECTION
9.02 hereof.
Section 4.21. YEAR 2000.
(a) The Borrower (i) has analyzed 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) has implemented 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, or that any
such supplier or vendor can be replaced by one that is so compliant, except in
either event 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 Administrative 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.
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ARTICLE V
AFFIRMATIVE COVENANTS
So long as any Note or any amount under any Credit Document shall remain
unpaid, any Letter of Credit shall remain outstanding, or any Lender shall have
any Commitment hereunder, the Borrower agrees, unless the Majority Lenders shall
otherwise consent in writing, to comply with the following covenants.
Section 5.01. COMPLIANCE WITH LAWS, ETC. The Borrower will comply, and
cause each of its Subsidiaries to comply, in all material respects with all
Legal Requirements. Without limiting the generality and coverage of the
foregoing, the Borrower shall comply, and shall cause each of its Subsidiaries
to comply, in all material respects, with all Environmental Laws and all laws,
regulations, or directives with respect to equal employment opportunity and
employee safety in all jurisdictions in which the Borrower, or any of its
Subsidiaries do business; PROVIDED, however, that this Section 5.01 shall not
prevent the Borrower, or any of its Subsidiaries from, in good faith and with
reasonable diligence, contesting the validity or application of any such laws or
regulations by appropriate legal proceedings.
Section 5.02. MAINTENANCE OF INSURANCE. The Borrower will maintain, and
cause each of its Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and covering such
risks as are usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Borrower or any
such Subsidiary operates.
Section 5.03. PRESERVATION OF CORPORATE EXISTENCE, ETC. The Borrower will
preserve and maintain, and cause each of its Subsidiaries to preserve and
maintain, its corporate or other applicable existence, rights, franchises and
privileges in the jurisdiction of its incorporation or organization, and qualify
and remain qualified, and cause each such Subsidiary to qualify and remain
qualified, as a foreign corporation or other entity in each jurisdiction in
which qualification is necessary or desirable in view of its business and
operations or the ownership of its properties, and, in each case, where failure
to qualify or preserve and maintain its rights and franchises could reasonably
be expected to cause a Material Adverse Change; PROVIDED, HOWEVER, that nothing
herein contained shall prevent (i) any transaction permitted by Section 6.04 or
6.05(a)(iii), or (ii) the dissolution, liquidation or termination of existence
of any Subsidiary of Borrower, provided that all of the Property of any such
Subsidiary is transferred to Borrower or another Subsidiary of Borrower.
Section 5.04. PAYMENT OF TAXES, ETC. The Borrower will pay and discharge,
and cause each of its Subsidiaries to pay and discharge, before the same shall
become delinquent, (a) all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or Property that are material in
amount prior to the date on which penalties attach thereto and (b) all lawful
claims that are material in amount which, if unpaid, might by law become a Lien
upon its Property; PROVIDED, HOWEVER, that neither the Borrower nor any such
Subsidiary shall be required to
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pay or discharge any such tax, assessment, charge, levy, or claim which is being
contested in good faith and by appropriate proceedings, and with respect to
which reserves in conformity with GAAP have been provided.
Section 5.05. VISITATION RIGHTS. At any reasonable time and from
time-to-time, upon reasonable notice, the Borrower will, and will cause its
Subsidiaries to, permit the Administrative Agent and any Lender or any of its
agents or representatives thereof, to (a) examine and make copies of and
abstracts from the records and books of account of, and visit and inspect at its
reasonable discretion the properties of, the Borrower and any such Subsidiary,
and (b) discuss the affairs, finances and accounts of the Borrower and any such
Subsidiary with any of their respective officers or directors. The Borrower
shall pay all reasonable expenses in connection with such visits and
inspections; PROVIDED, HOWEVER, that, the Borrower shall not be obligated to pay
travel and hotel expenses incurred by representatives of the Administrative
Agent or any Lender in connection with inspections or visits made before the
occurrence of an Event of Default.
Section 5.06. REPORTING REQUIREMENTS. The Borrower will furnish to the
Administrative Agent and each Lender:
(a) DEFAULTS. As soon as possible and in any event within 5 days after the
occurrence of each Default known to a Responsible Officer of the Borrower which
is continuing on the date of such statement, a written statement of a Financial
Officer of the Borrower setting forth the details of such Default and the
actions which the Borrower has taken and proposes to take with respect thereto;
(b) OTHER DEFAULTS. As soon as possible and in any event within 15 days
after the occurrence of each material default known to a Responsible Officer of
the Borrower which is continuing on the date of such statement, a written
statement of a Financial Officer of the Borrower setting forth the details of
any material default under or with respect to any contract, agreement, lease or
other instrument to which the Borrower or any of its Subsidiaries is a party and
which requires the payment by the Borrower or any of its Subsidiaries of an
aggregate amount equal to or exceeding $1,000,000 and the actions which the
Borrower has taken and proposes to take with respect thereto;
(c) QUARTERLY FINANCIALS. As soon as available and in any event not later
than 45 days after the end of each of the fiscal quarters of the Borrower, the
consolidated balance sheets of Borrower and its Subsidiaries as of the end of
such quarter and the consolidated statements of income, retained earnings and
cash flows of the Borrower and its Subsidiaries for the period commencing at the
end of the previous year and ending with the end of such quarter, all in
reasonable detail and duly certified with respect to such consolidated
statements (subject to year-end audit adjustments and the absence of footnotes)
by a Financial Officer of the Borrower on behalf of the Borrower as having been
prepared in accordance with GAAP, together with a Compliance Certificate
executed by a Financial Officer of the Borrower;
(d) ANNUAL FINANCIALS. As soon as available and in any event not later
than 90 days after the end of each fiscal year of the Borrower, a copy of the
annual audit report for such year for the
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Borrower and its Subsidiaries, including therein consolidated balance sheets of
the Borrower and its Subsidiaries as of the end of such fiscal year and
consolidated statements of income, retained earnings and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each case certified by
Arthur Andersen LLP or other independent certified public accountants of
recognized standing reasonably acceptable to the Administrative Agent, together
with (i) an unqualified opinion and a certificate of such accounting firm to the
Lenders stating that, in the course of the regular audit of the business of the
Borrower and its Subsidiaries, which audit was conducted by such accounting firm
in accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge that a Default has occurred and is continuing, or if,
in the opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, (ii) a Compliance Certificate
executed by a Financial Officer of the Borrower, and (iii) a listing of all
Subsidiaries of the Borrower as of the date of such annual audit report,
certified by a Responsible Officer of the Borrower;
(e) SECURITIES LAW FILINGS. Promptly and in any event within 15 days after
the sending or filing thereof, copies of all proxy material, reports and other
information which the Borrower sends to its stockholders generally;
(f) TERMINATION EVENTS. As soon as possible and in any event within 10
days after the Borrower or any of its Affiliates knows or has reason to know
that any Termination Event with respect to any Plan has occurred, a statement of
the Chief Financial Officer of the Borrower describing such Termination Event
and the action, if any, which the Borrower or such Affiliate proposes to take
with respect thereto;
(g) TERMINATION OF PLANS. Promptly and in any event within 5 Business Days
after receipt thereof by the Borrower or any member of the Controlled Group from
the PBGC, copies of each notice received by the Borrower or any such member of
the Controlled Group of the PBGC's intention to terminate any Plan or to have a
trustee appointed to administer any Plan;
(h) OTHER ERISA NOTICES. Promptly and in any event within 5 Business Days
after receipt thereof by the Borrower or any member of the Controlled Group from
a Multiemployer Plan sponsor, a copy of each notice received by the Borrower or
any member of the Controlled Group concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA;
(i) ENVIRONMENTAL NOTICES. A copy of any form of written notice, summons
or citation, promptly upon the receipt thereof by the Borrower or any of its
Subsidiaries, if received from the Environmental Protection Agency or any other
Governmental Authority or, upon a Responsible Officer having Knowledge of the
receipt thereof by the Borrower or any of its Subsidiaries, if received from any
other Person, concerning (i) violations or alleged violations of Environmental
Laws, which seeks to impose any liability therefor, (ii) any action or omission
on the part of the Borrower or any of its present or former Subsidiaries in
connection with Hazardous Waste or Hazardous Substances which could reasonably
result in the imposition of any liability therefor, including without limitation
any notice of potential responsibility under CERCLA, or
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(iii) concerning the filing of a Lien upon, against or in connection with the
Borrower, its present or former Subsidiaries, or any of their leased or owned
Property, wherever located;
(j) OTHER GOVERNMENTAL NOTICES. Promptly and in any event within 5
Business Days after receipt thereof by the Borrower or any Subsidiary, a copy of
any notice, summons, citation, or proceeding seeking to modify in any material
respect, revoke, or suspend any material contract, license, or Agreement with
any Governmental Authority;
(k) MATERIAL CHANGES. Prompt written notice of any condition or event of
which the Borrower has Knowledge, which condition or event has resulted or may
reasonably be expected to result in (i) a Material Adverse Change or (ii) a
breach of or noncompliance with any material term, condition, or covenant of any
contract to which the Borrower or any of its Subsidiaries is a party or by which
they or their properties may be bound and which is material to the business of
the Borrower and its Subsidiaries, taken as a whole;
(l) PENDING OR THREATENED LITIGATION. Prompt written notice of any pending
or, to the Knowledge of the Borrower, threatened action or proceeding affecting
the Borrower or any of its Subsidiaries before any court, Governmental Agency or
arbitrator, if the amount asserted in such action or proceeding against the
Borrower or any of its Subsidiaries equals or exceeds $2,000,000, or if no
amount is asserted, the Borrower reasonably believes, after any consultation
with its attorneys or other advisors, as the Borrower deems appropriate, to
involve an amount against the Borrower or any of its Subsidiaries equal to or
exceeding $2,000,000 and, contemporaneously with the delivery by the Borrower of
its financial statements pursuant to Section 5.06(c) for each fiscal quarter of
the Borrower, a list of each pending or, to the Knowledge of the Borrower,
threatened action or proceeding affecting the Borrower or any of its
Subsidiaries before any court, Governmental Agency or arbitrator as of the last
day of such fiscal quarter, if the amounts asserted in such action or proceeding
exceeds $1,000,000 or, if no amount is asserted, the Borrower reasonably
believes, after consultation with its attorneys or other advisors, as the
Borrower deems appropriate, to involve an amount against the Borrower or any of
its Subsidiaries in excess of $1,000,000;
(m) DISPUTES, ETC. Prompt written notice of any claims, proceedings, or
disputes, or to the Knowledge of the Borrower threatened, or affecting the
Borrower, or any of its Subsidiaries which could reasonably be expected to cause
a Material Adverse Change, or any material labor controversy of which the
Borrower has Knowledge resulting in or reasonably considered to be likely to
result in a general labor strike against the Borrower or any of its
Subsidiaries;
(n) QUALIFIED PREFERRED STOCKHOLDERS. Promptly following each issuance of
Qualified Preferred Stock, a list of the names, addresses, fax numbers (if
available) and number of shares of Qualified Preferred Stock acquired by each
Person in such issuance;
(o) TRUST NOTES OR SENIOR NOTES DEFAULTS. As soon as possible and in any
event within 5 days after the receipt thereof, a copy of any notice of default
received by the Borrower in
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connection with the Trust Notes, the Trust Guaranties, or the Senior Notes,
together with a written statement of a Financial Officer of the Borrower setting
forth the details of such default and the actions which the Borrower has taken
and proposes to take with respect thereto; and
(p) OTHER INFORMATION. Such other information respecting the business or
Properties, or the condition or operations, financial or otherwise, of the
Borrower, or any of its Subsidiaries, as any Lender through the Administrative
Agent may from time-to-time reasonably request.
Section 5.07. MAINTENANCE OF PROPERTY. Borrower shall, and shall cause
each of its Subsidiaries to, maintain their owned, leased, or operated Property,
equipment, buildings and fixtures necessary for the operation of their business
in good condition (ordinary wear and tear excepted) and shall make all repairs
necessary to maintain such condition; and shall abstain, and cause each of its
Subsidiaries to abstain from and not knowingly or willfully permit the
commission of waste or other injury, destruction or loss of natural resources,
or the occurrence of pollution, contamination or any other condition in, on or
about the owned or operated Property involving the Environment that could
reasonably be expected to result in Response activities, the costs of which
would substantially exceed the accrual established by Borrower or by any of its
Subsidiaries for those purposes.
Section 5.08. NEW SUBSIDIARIES. Upon Borrower's formation or acquisition
of any new Subsidiary, other than the Trust Subsidiary, the Borrower shall cause
such Subsidiary to promptly execute and deliver to the Administrative Agent a
Joinder Agreement with such modifications thereto as the Administrative Agent
may reasonably request for the purpose of joining such Subsidiary as a party to
the Guaranty. In connection therewith, the Borrower shall provide,
contemporaneously with the delivery of its financial statements pursuant to
Section 5.06(c), corporate documentation and, if requested by the Administrative
Agent, opinion letters reasonably satisfactory to the Administrative Agent
reflecting the corporate status of such Subsidiary and the enforceability of
such Joinder Agreement; PROVIDED, that upon the Administrative Agent's written
request, the Borrower shall promptly provide such corporate documentation with
respect to any previously formed or acquired Subsidiary for which such items
have not previously been provided, and shall thereafter provide such corporate
documentation contemporaneously with the execution and delivery of each Joinder
Agreement in connection with any subsequent formation or acquisition of any new
Subsidiary. With respect to the Trust Subsidiary, the Borrower shall provide to
the Administrative Agent corporate and other related documentation as requested
by the Administrative Agent.
Section 5.09. MAINTENANCE OF TRUST RESERVES AND TRUST ACCOUNTS. The
Borrower shall set aside, and shall cause its Subsidiaries to set aside, where
appropriate, in the appropriate Trust Accounts, all applicable Trust Reserves at
the time such funds are received by the Borrower or any of its Subsidiaries, and
Borrower shall, and shall cause its Subsidiaries to, establish and maintain all
of the funding obligations of each of the Trust Accounts in accordance with
applicable Legal Requirements and the provisions set forth herein and in the
other Credit Documents.
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Section 5.10. MAINTENANCE OF TRUST BALANCE. Borrower shall comply, and
shall cause its Subsidiaries to comply, with all merchandise, perpetual care and
other trusting requirements imposed on the Borrower or any of its Subsidiaries
by any and all applicable states having jurisdiction thereof, as in effect on
the date hereof ("EXISTING TRUSTING LAWS"). If, however, the monetary trusting
provisions of the laws of the applicable state are amended during the term of
this Agreement ("AMENDED TRUSTING LAWS"), the Borrower agrees that it will trust
or cause to be trusted, and will cause its Subsidiaries to trust or cause to be
trusted, in accordance with the provisions of Existing Trusting Laws or the
Amended Trusting Laws, whichever requires the Borrower or any such Subsidiary to
place greater amounts in trust, unless otherwise agreed to by the Majority
Lenders.
Section 5.11. HAZARDOUS SUBSTANCES. (a) The Borrower shall keep and
maintain, and shall cause its Subsidiaries to keep and maintain, the Properties
owned or leased by them in compliance in all material respects with, and shall
not cause or permit any of the Properties owned or leased by them to be in
violation of, any Environmental Law on, under or about their Properties,
including but not limited to soil and ground water conditions. Neither the
Borrower nor any of its Subsidiaries shall, except in compliance in all material
respects with Environmental Law, use, generate, manufacture, store or dispose
of, on, under or about its properties or transport to or from their properties
any Hazardous Substances.
(b) The Borrower shall remove, and shall cause its Subsidiaries to remove
any Hazardous Substances from any of their Properties in accordance with
applicable Legal Requirements (or if removal is prohibited by law, to take
whatever action is required by applicable Requirements) within 60 days after
discovery or generation thereof, at the sole expense of the Borrower and its
Subsidiaries. The Borrower will establish and implement, and will cause its
Subsidiaries to establish and implement, such procedures as may be necessary to
determine and assure that all of their Properties and operations thereof and
thereon are in material compliance with Environmental Law. The Borrower will
promptly notify the Administrative Agent and each Lender in writing of any
existing, pending or threatened action, investigation or inquiry by any
governmental authority in connection with any Environmental Law.
ARTICLE VI
NEGATIVE COVENANTS
So long as any Note or any amount under any Credit Document shall remain
unpaid, any Letter of Credit remain outstanding, or any Lender shall have any
Commitment, the Borrower agrees, unless the Majority Lenders otherwise consent
in writing, to comply with the following covenants.
Section 6.01. LIENS, ETC. The Borrower will not create, assume, incur or
suffer to exist, or permit any of its Subsidiaries to create, assume, incur, or
suffer to exist, any Lien on or in respect of any of its Property whether now
owned or hereafter acquired, or assign any right to receive income, except that
the Borrower and its Subsidiaries may create, incur, assume or suffer to exist
Liens:
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(a) securing the Obligations;
(b) for taxes, assessments or governmental charges or levies on Property
of the Borrower or any of its Subsidiaries to the extent not required to be paid
pursuant to Sections 5.01 and 5.04;
(c) imposed by law, such as landlords', carriers', warehousemen's and
mechanics' liens and other similar Liens arising in the ordinary course of
business securing obligations which are not overdue for a period of more than 30
days and which are being contested in good faith and by appropriate proceedings
if adequate reserves with respect thereto are maintained on the books of the
Borrower and its Subsidiaries in accordance with GAAP;
(d) arising in the ordinary course of business out of pledges or deposits
under workers' compensation laws, unemployment insurance, old age pensions or
other social security or retirement benefits, or similar legislation or to
secure public or statutory obligations of the Borrower or any of its
Subsidiaries;
(e) existing on Property acquired by the Borrower or any of its
Subsidiaries prior to its acquisition of such Property or existing on Property
of a newly acquired Subsidiary prior to the Borrower's or any other Subsidiary's
acquisition of stock of such newly acquired Subsidiary; PROVIDED, HOWEVER, that
the aggregate outstanding principal amount of the indebtedness secured by the
Liens permitted by this paragraph (e) shall not, when combined with the
aggregate outstanding principal amount of indebtedness secured by Liens
permitted by paragraph (f) of this Section 6.01, exceed 10% of the Borrower's
Net Worth at any time on or after the date on which such Lien is created,
assumed or incurred;
(f) purchase money liens or purchase money security interests upon or in
any Property acquired or held by the Borrower or any of its Subsidiaries to
secure the purchase price of such Property or to secure indebtedness incurred
solely for the purpose of financing the acquisition of such Property, PROVIDED
that the aggregate outstanding principal amount of the indebtedness secured by
the Liens permitted by this paragraph (f) shall not, when combined with the
aggregate outstanding principal amount of indebtedness secured by Liens
permitted by paragraph (e) of this Section 6.01, exceed 10% of the Borrower's
Net Worth at any time on or after the date on which such Lien is created,
assumed or incurred; and
(g) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business and encumbrances consisting of
zoning restrictions, easements, licenses, restrictions on the use of Property or
minor imperfections in title thereto which, in the aggregate, are not material
in amount, and which do not in any case materially detract from the value of the
Property subject thereto or interfere with the ordinary conduct of the business
of the Borrower and its Subsidiaries.
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Section 6.02. DEBTS, GUARANTIES AND OTHER OBLIGATIONS. (a) The Borrower
will not, and will not permit any of its Subsidiaries to, create, assume, suffer
to exist or in any manner become or be liable in respect of any Debt except:
(i) Debt of the Borrower and its Subsidiaries under the Credit Documents;
(ii) intercompany indebtedness owed between any Subsidiary of the
Borrower and the Borrower, PROVIDED that the payment of such
indebtedness is subordinate to the payment of the Obligations
pursuant to Section 3.2 of the Guaranty or otherwise in a manner
satisfactory to the Administrative Agent;
(iii) the Trust Notes and the Senior Notes;
(iv) Subordinated Debt; and
(v) Debt of the Borrower or any of its Subsidiaries (in addition to Debt
described in paragraphs (i) through (iv) above), provided that the
aggregate outstanding principal amount of such Debt does not exceed
25% of the Borrower's Net Worth at any time on or after the date on
which such Debt is created, assumed or incurred.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
create, assume, suffer to exist, or in any manner become or be liable in respect
of any trade payables or other current operating liabilities more than 90 days
past due, except for such trade payables or other current operating liabilities
which (i) are being contested in good faith by appropriate proceedings and
adequate reserves therefor have been established and reflected in the financial
statements of such Person in accordance with GAAP, or (ii) do not exceed
$200,000 in the aggregate outstanding at any time.
(c) The Borrower will not, and will not permit any of its Subsidiaries to,
create, assume, suffer to exist, or in any manner become or be liable in respect
of obligations with respect to any swap, hedge, cap, collar, or similar
arrangement providing for the exchange of risks related to price changes in any
commodity ("Derivatives"), including money, other than Derivatives used by such
Person in such Person's business operations in aggregate notional quantities not
to exceed the reasonably anticipated consumption of such Person of the
underlying commodity for the relevant period, but no Derivatives which are
speculative in nature.
(d) The Borrower will not, and will not permit any of its Subsidiaries to,
create, assume, suffer to exist, or in any manner become or be liable in respect
of any obligations with respect to guaranties or like assurances of payment or
performance other than (i) those incurred in the ordinary course of business or
(ii) those described in clause (e) of the definition of Debt; PROVIDED, HOWEVER,
that (A) the Borrower or any of its Subsidiaries shall be permitted to create,
assume, suffer to exist, or in any manner become or be liable in respect of any
obligations with respect to guaranties or like assurances of payment or
performance in respect of any of the
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obligations or liabilities of any of the Subsidiaries permitted hereunder, (B)
any of the Subsidiaries shall be permitted to create, assume, suffer to exist,
or in any manner become or be liable in respect of any obligations with respect
to guaranties or like assurances of payment or performance in respect of any of
the obligations and liabilities of the Borrower permitted hereunder, including
the Senior Notes, and (C) the Borrower shall be permitted to execute, deliver,
and perform the Trust Guaranties.
Section 6.03. AGREEMENTS RESTRICTING LIENS AND DISTRIBUTIONS. The Borrower
will not, nor will it permit any of its Subsidiaries to, enter into any
agreement (other than a Credit Document) which (a) except (i) with respect to
specific Property encumbered to secure payment of Debt related to such Property
or (ii) as provided in the documents governing the Senior Notes, imposes
restrictions upon the creation or assumption of any Lien upon its other
Properties, revenues or assets, whether now owned or hereafter acquired or (b)
limits Restricted Payments to or any advance by any of the Borrower's
Subsidiaries to the Borrower.
Section 6.04. MERGER OR CONSOLIDATION; ASSET SALES. The Borrower will not,
and will not permit any of its Subsidiaries to:
(a) merge or consolidate with or into any other Person, except (i) that
the Borrower may merge with any of its Subsidiaries and any of the Borrower's
Subsidiaries may merge with another of the Borrower's Subsidiaries, PROVIDED
that immediately after giving effect to any such proposed transaction no Default
would exist and in the case of any such merger to which the Borrower is a party,
the Borrower is the surviving corporation and (ii) for mergers and
consolidations consummated in connection with Acquisitions permitted under
Section 6.07 hereof, provided that the surviving corporation is the Borrower or
one of its Subsidiaries (or, contemporaneously with such consummation, will
become one of its Subsidiaries), or in connection with the disposition of the
Borrower's Subsidiaries that, if structured as the disposition of Property,
would be permitted under paragraph (b) below; or
(b) sell, lease, transfer, or otherwise dispose of any of its Property,
except for (i) sales of funeral merchandise, cemetery property, mausoleum spaces
and related merchandise and other inventory, (ii) sales in the ordinary course
of business of inventory and Property of the Borrower and its Subsidiaries not
included in clause (i) of this paragraph (b), (iii) sales of funeral homes,
cemeteries, and other businesses acquired by the Borrower or a Subsidiary, to
the extent that the same would not reasonably be expected to cause a Material
Adverse Change, (iv) sales of assets outside the ordinary course of business in
an aggregate amount for any fiscal year not to exceed $2,000,000, and (v) sales,
leases, transfers and dispositions between the Borrower and its Subsidiaries or
between or among one or more Subsidiaries of the Borrower.
Section 6.05. RESTRICTED PAYMENTS; ISSUANCE OF PREFERRED STOCK.
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(a) The Borrower will not make or pay (or, in the case of the Trust
Preferred Stock, permit any making or payment of) any Restricted Payment other
than (i) payments of dividends on and redemptions of Existing Preferred Stock,
(ii) payments of dividends on Qualified Preferred Stock, (iii) distribution of
the Trust Notes to the holders of the Trust Preferred Stock in connection with
the dissolution of the Trust Subsidiary, (iv) repurchases of Common Stock in an
aggregate amount not to exceed (A) for the period beginning on June 14, 1999 and
ending on December 31, 2000, $10,000,000 and (B) for each fiscal year of the
Borrower thereafter, 25% of the Borrower's Net Income for the prior fiscal year,
and (v) with respect to shares of Common Stock purchased from the Borrower by
employees or former employees of the Borrower or any of its Subsidiaries in
connection with the exercise of stock options granted by the Borrower, the
purchase by the Borrower of a number of such shares, in an aggregate amount not
to exceed $5,000,000 in any fiscal year of the Borrower. In no event shall
Borrower make or declare any Restricted Payment during the existence of an Event
of Default or if the making of such Restricted Payment would cause an Event of
Default.
(b) The Borrower will not issue or have outstanding any Redeemable
Preferred Stock, other than (i) Existing Preferred Stock or (ii) Qualified
Preferred Stock.
Section 6.06. INVESTMENTS; LINES OF BUSINESS. (a) The Borrower will not,
and will not permit any of its Subsidiaries to, make or permit to exist any
loans, advances or capital contributions to, or make any investment in, or
purchase or commit to purchase any stock or other securities or evidences of
indebtedness of or interests in any Person, except the following:
(i) as shown on the attached Schedule 6.06;
(ii) the purchase of Liquid Investments or the making of
Acquisitions permitted by Section 6.07;
(iii) trade and customer accounts receivable which are for goods
furnished or services rendered in the ordinary course of
business and are payable in accordance with customary trade
terms;
(iv) Borrower's investment in the Trust Subsidiary, and ordinary
course of business contributions, loans or advances to, or
investments in, (A) a direct or indirect Subsidiary of the
Borrower, or (B) the Borrower;
(v) investments not covered by clauses (i) through (iv) above in
an aggregate amount not to exceed at any time $5,000,000;
(vi) investments in or by any perpetual care trust, merchandise
trust, preneed trust, preconstruction trust or other trust
arrangements established by the Borrower or any of its
Subsidiaries in accordance with applicable laws, regulations
and interpretations; and
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(vii) investments in less than 50% of the outstanding Voting
Securities of corporations or other business entities that own
or operate funeral homes or cemeteries in jurisdictions which
prohibit ownership of 50% or more of such Voting Securities by
the Borrower or a Subsidiary of the Borrower and in which the
cost of each such investment does not exceed $10,000.
(b) The Borrower will not, and will not permit its Subsidiaries, taken as
a whole together with the Borrower, to, change the character of the business
(other than to a type of business reasonably related to the business) as
conducted by the Borrower and its Subsidiaries, taken as a whole, on the date of
this Agreement or engage in any type of business not reasonably related to such
business as presently and normally conducted.
Section 6.07. ACQUISITIONS. The Borrower will not, and will not permit any
of its Subsidiaries to, make an Acquisition in a transaction or related series
of transactions unless:
(a) such Acquisition would not, after giving effect thereto, result in a
Default;
(b) such Acquisition is a Core Acquisition;
(c) the amount of the consideration paid or contributed for such
Acquisition (including all cash paid and Property contributed for such
Acquisition, the amount of any liabilities (including unfunded Pre-need
Obligations) assumed, and Deferred Purchase Price, but excluding the value of
any Common Stock or any preferred stock (including, but not limited to,
Redeemable Preferred Stock) that is not prohibited by Section 6.05 of this
Agreement, of the Borrower or its Subsidiaries transferred or issued as
consideration for such Acquisition), does not, at the time of the making of such
Acquisition, exceed 20% of the Borrower's Net Worth as reflected on (i) the most
recent financial statements of the Borrower delivered to the Lenders pursuant to
Section 5.06(c) or (ii) any certificate delivered by the Borrower to the
Administrative Agent setting forth, in reasonable detail, a calculation of the
Borrower's Net Worth as of time of making such Acquisition; and
(d) the Property to be acquired in connection with such Acquisition is in
compliance with Environmental Law and the Borrower, at its expense, shall have
conducted such affirmative due diligence concerning the environmental condition
of such Property (which may include environmental questionnaires or independent
site assessments) as shall be warranted by such Property.
Section 6.08. CAPITAL EXPENDITURES. Neither Borrower nor any of its
Subsidiaries will make or commit to make any expenditure in respect of the
purchase or construction or other acquisition (excluding any deemed purchases
allocable to Acquisitions) of fixed or capital assets that would cause the
aggregate amount of all such expenditures during the four fiscal quarters then
most recently ended to exceed 10% of the Borrower's Net Worth as of the last day
of such four quarter period.
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Section 6.09. AFFILIATE TRANSACTIONS. Except as expressly permitted
elsewhere in this Agreement, the Borrower will not, and will not permit any of
its Subsidiaries to, make, directly or indirectly: (a) any investment in any
Affiliate (other than a Subsidiary of the Borrower); (b) any transfer, sale,
lease, assignment or other disposal of any assets to any such Affiliate or any
purchase or acquisition of assets from any such Affiliate; or (c) any
arrangement or other transaction directly or indirectly with or for the benefit
of an such Affiliate (including without limitation, guaranties and assumptions
of obligations of an Affiliate); PROVIDED, HOWEVER, that the Borrower and its
Subsidiaries may enter into any arrangement or other transaction with any such
Affiliate providing for the leasing of property, the making of Acquisitions
permitted under Section 6.07 hereof, the rendering or receipt of services or the
purchase or sale of inventory and other assets in the ordinary course of
business if the monetary or business consideration arising therefrom would be
substantially as advantageous to the Borrower and its Subsidiaries as the
monetary or business consideration which it would obtain in a comparable arm's
length transaction with a Person not such an Affiliate.
Section 6.10. COMPLIANCE WITH ERISA. The Borrower will not, and will not
permit any of its Subsidiaries to, (a) terminate any Plan so as to result in any
material (in the opinion of the Majority Lenders) liability of the Borrower or
any of its Subsidiaries to the PBGC, unless the Plan was in effect prior to
consummation of an Acquisition permitted under Section 6.07 hereof to which the
Plan relates, the Borrower or applicable Subsidiary has been fully indemnified
in respect of any such liability and the Borrower has reasonably assured itself
of adequate capital, offset or security for such indemnity or (b) permit to
exist any occurrence of any Reportable Event (as defined in Title IV of ERISA),
or any other event or condition, which presents a material (in the opinion of
the Majority Lenders) risk of such a termination by the PBGC of any Plan.
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, and (b) the Trust Subsidiary may issue the
Trust Preferred Stock.
Section 6.12. TRUST FUNDS. Without the prior written consent of the
Majority Lenders or as otherwise required by applicable Legal Requirement,
Borrower will not withdraw or otherwise remove, and will cause all of its
Subsidiaries not to withdraw or otherwise remove, any monies or other assets
(whether principal, interest or other earnings) from any merchandise, service or
other trust fund or trust account except for the purpose of providing the
merchandise or services which are intended to be provided out of such trust fund
or trust account.
Section 6.13. SETTLEMENT OF LITIGATION. Without prior written notice to
the Lenders, Borrower will not, and will cause all of its Subsidiaries not to,
settle or compromise, during any fiscal year of the Borrower, any threatened
action or proceeding affecting the Borrower or any of its
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Subsidiaries before any court, Governmental Agency or arbitrator, if the amount
of the proposed settlement or compromise required to be paid by the Borrower or
any of its Subsidiaries (excluding any amounts to be paid or to be reimbursed to
the Borrower or any of its Subsidiaries from any insurance proceeds), together
with the amount of all settlements and compromises (excluding any amounts paid
or to be reimbursed to the Borrower or any of its Subsidiaries from any
insurance proceeds) previously paid by the Borrower or any of its Subsidiaries
during such fiscal year of the Borrower, exceeds $2,000,000.
Section 6.14. FIXED CHARGE COVERAGE RATIO. As of the last day of each
fiscal quarter , the Borrower will not permit its Fixed Charge Coverage Ratio
for the four fiscal quarters then ended to be less than 1.70 to 1.00.
Section 6.15. TOTAL FUNDED DEBT TO TOTAL CAPITAL RATIO. The Borrower will
not permit at any time the ratio of its Total Funded Debt (excluding the Trust
Notes) to its Total Capital to be greater than .60 to 1.00.
Section 6.16. NET WORTH. The Borrower will not permit at any time its Net
Worth to be less than an amount equal to the sum of (a) $275,000,000, PLUS (b)
50% of the Borrower's Net Income for each fiscal quarter ending on or after June
30, 1999, during which Borrower had positive Net Income PLUS (c) 100% of the
increases in Net Worth from any sale or issuance of any equity securities,
including Qualified Preferred Stock (other than the Trust Preferred Stock), of,
or any other additions to capital by, the Borrower or its Subsidiaries during
each fiscal quarter ending on or after March 31, 1999.
ARTICLE VII
REMEDIES
Section 7.01. EVENTS OF DEFAULT. The occurrence of any of the following
events shall constitute an "Event of Default" under any Credit Document:
(a) PAYMENT. The Borrower shall fail to pay (i) any principal of any Note,
the Swing Line Note or any Reimbursement Obligation when the same becomes due
and payable, or (ii) any interest on any Note or the Swing Line Note, or any fee
or other amount payable hereunder or under any other Credit Document, within 5
Business Days after the same becomes due and payable;
(b) REPRESENTATION AND WARRANTIES. Any representation or warranty made or
deemed to be made (i) by the Borrower in this Agreement or in any other Credit
Document, (ii) by the Borrower (or any of its Responsible Officers) in
connection with this Agreement or any other Credit Document, or (iii) by any of
the Borrower's Subsidiaries in any Credit Document shall prove to have been
incorrect in any material respect when made or deemed to be made;
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(c) COVENANT BREACHES. (i) The Borrower shall (A) fail to perform or
observe any covenant contained in Section 5.05, 5.06(a) or (b), or Article VI of
this Agreement or (B) fail to perform or observe any other term or covenant set
forth in this Agreement or in any other Credit Document which is not covered by
clause (i)(A) above or any other provision of this Section 7.01 if such failure
shall remain unremedied for 30 days after the earlier of written notice of such
failure shall have been given to the Borrower by the Administrative Agent or any
Lender or the Borrower's Knowledge of such failure or (ii) any of the Borrower's
Subsidiaries (other than the Trust Subsidiary) shall fail to perform or observe
any covenant contained in the Guaranty (after any applicable grace period);
(d) CROSS-DEFAULTS. (i) The Borrower or any its Subsidiaries shall fail to
pay any principal of or premium or interest on its Debt (but excluding Debt
constituting Obligations under the Credit Documents) which is outstanding in an
amount of at least (A) with respect to Debt which constitutes Deferred Purchase
Price, $2,000,000 individually or $5,000,000 when aggregated with all other Debt
of the Borrower or its Subsidiaries which constitutes Deferred Purchase Price
and is so in default; or (B) with respect to any other Debt, $1,000,000
individually or when aggregated with all such other Debt of the Borrower or its
Subsidiaries so in default, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any, specified
in the agreement or instrument relating to such Debt; (ii) any other event shall
occur or condition shall exist under any agreement or instrument relating to the
Debt specified in clause (i)(A) or (B) of this paragraph (d) and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate the
maturity of such Debt; or (iii) any Debt specified in clause (i)(A) or (B) of
this paragraph (d) shall properly be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required prepayment), prior
to the stated maturity thereof; and in any such event, if (in the case of Debt
constituting Deferred Purchase Price only) such default is not cured in full
within ten (10) Business Days thereafter;
(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), except
for any of the foregoing events affecting any of the Borrower's Subsidiaries
which is not reasonably likely to cause a Material Adverse Change;
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(f) JUDGMENTS. One or more judgments or orders for the payment of money in
excess of $2,000,000 in the aggregate (after giving effect to insurance
proceeds, if any, received or to be received by the Borrower or any of its
Subsidiaries) shall be rendered against the Borrower or any of its Subsidiaries
and either (A) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (B) there shall be any period of 60 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect;
(g) TERMINATION EVENTS. Any Termination Event with respect to a Plan shall
have occurred, and, 30 days after notice thereof shall have been given to the
Borrower by the Administrative Agent, (i) such Termination Event shall not have
been corrected and (ii) the then present value of such Plan's vested benefits
exceeds the then current value of assets accumulated in such Plan by more than
the amount of $500,000 (or in the case of a Termination Event involving the
withdrawal of a "substantial employer" (as defined in Section 4001(a)(2) of
ERISA), the withdrawing employer's proportionate share of such excess shall
exceed such amount);
(h) PLAN WITHDRAWALS. The Borrower or any member of the Controlled Group
as employer under a Multiemployer Plan shall have made a complete or partial
withdrawal from such Multiemployer Plan and the plan sponsor of such
Multiemployer Plan shall have notified such withdrawing employer that such
employer has incurred a withdrawal liability in an annual amount exceeding
$500,000;
(i) GUARANTY. Any material provision of the Guaranty shall for any reason
cease to be valid and binding on any applicable Subsidiary of the Borrower or
the applicable Subsidiary of the Borrower shall so state in writing;
(j) CHANGE OF CONTROL. (i) As a result of one or more transactions after
the date of this Agreement, any "person" or related persons constituting a
"group" of persons shall have "beneficial ownership" of more than 20% of the
total voting power of all classes then outstanding of Voting Securities of the
Borrower (all within the meaning of Section 13(d) or 14(d), as applicable, of
the Securities Exchange Act of 1934, as amended, and the applicable rules and
regulations thereunder), provided that the relationships among the respective
shareholders of the Borrower on the date of this Agreement shall not be deemed
to constitute all or any combination of them as a "group" or (ii) individuals
who, at the beginning of any period of 12 consecutive months, constitute the
Borrower's board of directors (together with any new director whose election by
the Borrower's board of directors or whose nomination for election by the
Borrower's stockholders entitled to vote thereon was approved by a vote of at
least a majority of the directors then still in office who either were directors
at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason (other than death or disability) to
constitute a majority of the Borrower's board of directors then in office; or
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(k) OTHER OBLIGATIONS. The Borrower shall fail to pay or cause to be paid
any principal of or premium, make-whole amount, or interest on the Trust
Preferred Stock, Trust Notes, Trust Guaranties, or Senior Notes, when the same
becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreements, instruments, and
documents governing the Trust Preferred Stock, Trust Notes, Trust Guaranties, or
Senior Notes (collectively, the "Debt Documents"), subject to any valid exercise
of any deferral rights contained therein, (ii) any other event shall occur or
condition shall exist under any Debt Document and shall continue after the
applicable grace period, if any, specified in such Debt Document, if the effect
of such event or condition is to accelerate the maturity of the Trust Preferred
Stock, Trust Notes, or Senior Notes, as applicable; (iii) without the prior
written consent of the Majority Lenders, any modification shall be made to any
Debt Document which (A) renders the subordination provisions thereof more
favorable to the holders of the Trust Preferred Stock, Trust Notes, or Senior
Notes, as applicable, or less favorable to the Lenders, or (B) renders the
economic terms of the Trust Preferred Stock, Trust Notes, or Senior Notes, as
applicable, materially more favorable to the holders of the Trust Preferred
Stock, Trust Notes, or Senior Notes, as applicable, or materially less favorable
to the Borrower or the applicable Subsidiary, or (iv) any event shall occur
under any Debt Document that would permit the holders thereof to require the
redemption or mandatory prepayment thereof.
Section 7.02. OPTIONAL ACCELERATION OF MATURITY. If any Event of Default
(other than an Event of Default pursuant to paragraph (e) of Section 7.01) shall
have occurred and be continuing, then, and in any such event:
(a) the Administrative Agent (i) shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances and the obligation of the Issuing
Lender to issue Letters of Credit to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the consent, of
the Majority Lenders, by notice to the Borrower, declare the Notes, all interest
thereon, the Letter of Credit Obligations, and all other Obligations payable
under this Agreement to be forthwith due and payable, whereupon the Notes, all
such interest, all such Letter of Credit Obligations and all such other
Obligations shall become and be forthwith due and payable in full, without
presentment, demand, protest or further notice of any kind (including, without
limitation, any notice of intent to accelerate or notice of acceleration), all
of which are (unless otherwise provided for herein) hereby expressly waived by
the Borrower; and
(b) the Borrower shall, on demand of the Administrative Agent at the
request or with the consent of the Majority Lenders, either deposit with the
Administrative Agent into the Cash Collateral Account an amount of cash equal to
the outstanding Letter of Credit Exposure as security for the Obligations to the
extent the Letter of Credit Obligations are not otherwise paid at such time, or
cause to be issued and delivered to the Issuing Lender a standby letter of
credit of the type described in Section 2.13(a).
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Section 7.03. AUTOMATIC ACCELERATION OF MATURITY. If any Event of Default
pursuant to paragraph (e) of Section 7.01 shall occur,
(a) the obligation of each Lender to make Advances, the obligation of the
Issuing Lender to issue, increase, or extend Letters of Credit, and all other
commitments of the Lender under the Credit Documents shall immediately and
automatically be terminated and the Notes, all interest on the Notes, all Letter
of Credit Obligations, and all other Obligations shall immediately and
automatically become and be due and payable in full, without presentment,
demand, protest or any notice of any kind (including, without limitation, any
notice of intent to accelerate or notice of acceleration), all of which are
(unless otherwise provided for herein) hereby expressly waived by the Borrower
and
(b) the Borrower shall either deposit with the Administrative Agent into
the Cash Collateral Account an amount of cash equal to the outstanding Letter of
Credit Exposure as security for the Obligations to the extent the Letter of
Credit Obligations are not otherwise paid at such time, or cause to be issued
and delivered to the Issuing Lender a standby letter of credit of the type
described in Section 2.13(a).
Section 7.04. CASH COLLATERAL ACCOUNT.
(a) If at any time the Borrower is required to deposit funds in the Cash
Collateral Account and the same has not been administratively established, the
Borrower and the Administrative Agent shall establish the Cash Collateral
Account and the Borrower shall execute any documents and agreements, including
the Administrative Agent's standard form assignment of deposit accounts, that
the Administrative Agent requests in connection therewith to establish the Cash
Collateral Account and confirm the Administrative Agent a first priority
security interest in such account and the funds therein. The Borrower hereby
pledges to the Administrative Agent and grants the Administrative Agent a
security interest in the Cash Collateral Account, whenever established, all
funds held in the Cash Collateral Account from time to time, and all proceeds
thereof as security for the payment of the Obligations.
(b) During the existence of any Event of Default, funds held in the Cash
Collateral Account shall be held as cash collateral for Obligations with respect
to Letters of Credit and promptly applied by the Administrative Agent to any
reimbursement or other Obligations arising under the Letter of Credit Documents.
To the extent that any surplus funds are held in the Cash Collateral Account
above the Letter of Credit Exposure, the Administrative Agent may (A) hold such
surplus funds in the Cash Collateral Account as cash collateral for the
Obligations or (B) apply such surplus funds to any Obligations. Upon cure of all
Events of Default, the Administrative Agent shall release to the Borrower at the
Borrower's written request any funds held in the Cash Collateral Account.
(c) Funds held in the Cash Collateral Account shall be invested in money
market funds of the Administrative Agent or in another investment if mutually
agreed upon by the Borrower and the Administrative Agent, but the Administrative
Agent shall have no other obligation to make any other
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investment of the funds therein. The Administrative Agent shall exercise
reasonable care in the custody and preservation of any funds held in the Cash
Collateral Account and shall be deemed to have exercised such care if such funds
are accorded treatment substantially equivalent to that which the Administrative
Agent accords its own property, it being understood that the Administrative
Agent shall not have any responsibility for taking any necessary steps to
preserve rights against any parties with respect to any such funds.
Section 7.05. NON-EXCLUSIVITY OF REMEDIES. No remedy conferred upon the
Administrative Agent is intended to be exclusive of any other remedy, and each
remedy shall be cumulative of all other remedies existing by contract, at law,
in equity, by statute or otherwise.
Section 7.06. RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, the Administrative Agent and each Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by the Administrative Agent or such Lender to or for the credit
or the account of the Borrower (other than deposits specifically maintained to
support Pre-need Obligations) against any and all of the Obligations of the
Borrower now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made any demand, and although
such obligations may be unmatured. The Administrative Agent and each Lender
agrees to promptly notify the Borrower after any such set-off and application
made by the Administrative Agent or such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of the Administrative Agent and each Lender under this Section are in
addition to any other rights and remedies (including, without limitation, other
rights of set-off) which the Administrative Agent or such Lender may have.
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ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE ISSUING LENDER
Section 8.01. AUTHORIZATION AND ACTION. Each Lender hereby appoints and
authorizes the Administrative Agent to take such action as agent on behalf of
such Lender and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof and of the other Credit Documents,
together with such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement or any other Credit
Document (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Lenders (or all the Lenders where
unanimity is required), and such instructions shall be binding upon all Lenders
and all holders of the Notes; PROVIDED, HOWEVER, that the Administrative Agent
shall not be required to take any action which exposes the Administrative Agent
to personal liability or which is contrary to this Agreement, any other Credit
Document, or applicable law.
Section 8.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither the
Administrative Agent nor any of the Administrative Agent's directors, officers,
agents or employees shall be liable for any action taken or omitted to be taken
(including the Administrative Agent's own negligence) by it or them under or in
connection with this Agreement or the other Credit Documents, except for its or
their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Administrative Agent: (a) may treat the payee
of any Note as the holder thereof until the Administrative Agent receives
written notice of the assignment or transfer thereof signed by such payee and in
form satisfactory to the Administrative Agent; (b) may consult with legal
counsel (including counsel for the Borrower), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (c) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements, warranties
or representations made in or in connection with this Agreement or the other
Credit Documents; (d) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
this Agreement or any other Credit Document on the part of the Borrower or its
Subsidiaries or to inspect the property (including the books and records) of the
Borrower or its Subsidiaries; (e) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Credit Document; and (f) shall incur no
liability under or in respect of this Agreement or any other Credit Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopy, telegram, cable or telex) reasonably believed by it
to be genuine and signed or sent by the proper party or parties.
Section 8.03. THE ADMINISTRATIVE AGENT AND ITS AFFILIATES. With respect to
its Commitment, the Advances made by it and the Note issued to it, the
Administrative Agent shall have the same rights and powers under this Agreement
as any other Lender and may exercise the same as though
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it were not an Administrative Agent hereunder. The term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include the Administrative Agent in
its individual capacity. The Administrative Agent and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower or any of its Subsidiaries,
and any Person who may do business with or own securities of the Borrower or any
such Subsidiary, all as if the Administrative Agent were not an agent hereunder
and without any duty to account therefor to the Lenders.
Section 8.04. LENDER CREDIT DECISION. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the financial statements referred to in Section 4.05
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
Section 8.05. INDEMNIFICATION. THE LENDERS SEVERALLY AGREE TO INDEMNIFY
THE ADMINISTRATIVE AGENT AND THE ISSUING LENDER AND EACH AFFILIATE THEREOF AND
THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (TO THE EXTENT NOT
REIMBURSED BY THE BORROWER), ACCORDING TO THEIR RESPECTIVE PRO RATA SHARES FROM
AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND OR
NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST THE
ADMINISTRATIVE AGENT AND THE ISSUING LENDER IN ANY WAY RELATING TO OR ARISING
OUT OF THIS AGREEMENT OR ANY ACTION TAKEN OR OMITTED BY THE ADMINISTRATIVE AGENT
OR THE ISSUING LENDER UNDER THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
(INCLUDING THE ADMINISTRATIVE AGENT'S AND THE ISSUING LENDER'S OWN NEGLIGENCE),
PROVIDED THAT NO LENDER SHALL BE LIABLE FOR ANY PORTION OF SUCH LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES OR DISBURSEMENTS RESULTING FROM THE ADMINISTRATIVE AGENT'S OR THE
ISSUING LENDER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. WITHOUT LIMITATION OF
THE FOREGOING, EACH LENDER AGREES TO REIMBURSE THE ADMINISTRATIVE AGENT PROMPTLY
UPON DEMAND FOR ITS RATABLE SHARE OF ANY OUT-OF-POCKET EXPENSES (INCLUDING
COUNSEL FEES) INCURRED BY THE ADMINISTRATIVE AGENT IN CONNECTION WITH THE
PREPARATION, EXECUTION, DELIVERY, ADMINISTRATION, MODIFICATION, AMENDMENT OR
ENFORCEMENT (WHETHER THROUGH NEGOTIATIONS, LEGAL PROCEEDINGS OR OTHERWISE) OF,
OR LEGAL ADVICE IN RESPECT OF RIGHTS OR RESPONSIBILITIES UNDER, THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT, TO THE EXTENT THAT THE
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ADMINISTRATIVE AGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY THE BORROWER.
Section 8.06. SUCCESSOR ADMINISTRATIVE AGENT AND ISSUING LENDER. The
Administrative Agent or the Issuing Lender may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at any
time with cause by the Majority Lenders upon receipt of written notice from the
Majority Lenders to such effect. Upon receipt of notice of any such resignation
or removal, the Majority Lenders shall have the right to appoint a successor
Administrative Agent or Issuing Lender with, if no Default exists, the consent
of the Borrower, which consent shall not be unreasonably withheld. If no
successor Administrative Agent or Issuing Lender shall have been so appointed by
the Majority Lenders with the consent of the Borrower, if required, and shall
have accepted such appointment, within 30 days after the retiring Administrative
Agent's or Issuing Lender's giving of notice of resignation or the Majority
Lenders' removal of the retiring Administrative Agent or Issuing Lender, then
the retiring Administrative Agent or Issuing Lender may, on behalf of the
Lenders and the Borrower, appoint a successor Administrative Agent or Issuing
Lender, which shall be a commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $500,000,000 and, in the case of the Issuing Lender, a
Lender. Upon the acceptance of any appointment as Administrative Agent or
Issuing Lender by a successor Administrative Agent or Issuing Lender, such
successor Administrative Agent or Issuing Lender shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent or Issuing Lender, and the retiring Administrative Agent or
Issuing Lender shall be discharged from its duties and obligations under this
Agreement and the other Credit Documents, except that the retiring Issuing
Lender shall remain the Issuing Lender with respect to any Letters of Credit
outstanding on the effective date of its resignation or removal and the
provisions affecting the Issuing Lender with respect to such Letters of Credit
shall inure to the benefit of the retiring Issuing Lender until the termination
of all such Letters of Credit. After any retiring Administrative Agent's or
Issuing Lender's resignation or removal hereunder as Administrative Agent or
Issuing Lender, the provisions of this Article VIII shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent or Issuing Lender under this Agreement and the other Credit Documents.
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ARTICLE IX
MISCELLANEOUS
Section 9.01. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement, the Notes, or any other Credit Document, nor consent to any
departure by the Borrower or any of its Subsidiaries therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Majority Lenders and the Borrower, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; PROVIDED, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01 or 3.02, (b) increase the Commitments
of the Lenders, (c) reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder or under any other Credit Document, (d)
postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, (e) amend Section 2.01,
Section 2.13, Section 2.14(a) or this Section 9.01, (f) release the Guaranty or
any guarantor thereunder (other than the release of a guarantor which is one of
the Borrower's Subsidiaries in connection with the sale or transfer thereof,
whether by sale of stock, merger, consolidation or otherwise, to the extent
permitted under this Agreement), or (g) amend the definitions of "Majority
Lenders" and "Maturity Date"; and PROVIDED, further, that no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent or
the Issuing Lender in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent or the Issuing
Lender, as the case may be, under this Agreement or any other Credit Document.
Section 9.02. NOTICES, ETC. All notices and other communications shall be
in writing (including telecopy, telegraphic or telex) and mailed, telecopied,
telegraphed, telexed, hand delivered or delivered by a nationally recognized
overnight courier, if to the Borrower, at its address at 1300 Post Oak Blvd.,
Suite 1500, Houston, Texas 77056, Attention: Chief Financial Officer (telecopy:
(281) 556-7401; telephone: (281) 556-7400), with a copy to: Mr. W. Christopher
Schaeper, Snell & Smith, A Professional Corporation, 1000 Louisiana, Suite 1200,
Houston, Texas 77002 (telecopy: (713) 651-8010; telephone (713) 652-3300; if to
any Lender at its Domestic Lending Office specified opposite its name on
Schedule 1 or pursuant to Section 2.10(b); and if to the Administrative Agent or
the Issuing Lender, at its address at 700 Louisiana, 7th Floor, Houston, Texas
77002, Attention: Mr. Craig S. Wall (telecopy: (713) 247-7748; telephone: (713)
247-6559); or, as to each party, at such other address or teletransmission
number as shall be designated by such party in a written notice to the other
parties. All such notices and communications shall, when mailed, telecopied,
telegraphed, telexed, hand delivered or delivered, be effective three days after
deposited in the mails, telecopy transmission is completed, delivered to the
telegraph company, confirmed by telex answer-back or, if hand delivered or
delivered by a courier, when received, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II or VIII shall
not be effective until received by the Administrative Agent.
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<PAGE>
Section 9.03. NO WAIVER; REMEDIES. No failure on the part of any Lender,
the Administrative Agent, or the Issuing Lender to exercise, and no delay in
exercising, any right hereunder or under any Credit Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 9.04. COSTS AND EXPENSES. The Borrower agrees to pay on demand all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including the reasonable fees and expenses of its legal counsel) in connection
with the preparation, execution, delivery, administration, modification and
amendment of this Agreement, the Notes and the other Credit Documents including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and with respect to advising the Administrative
Agent as to its rights and responsibilities under this Agreement, and all
reasonable out-of-pocket costs and expenses, if any, of the Administrative
Agent, the Issuing Lender, and each Lender (including, without limitation,
reasonable counsel fees and expenses of the Administrative Agent, the Issuing
Lender, and each Lender) in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other Credit Documents.
Section 9.05. BINDING EFFECT. This Agreement shall become effective when
it shall have been executed by the Borrower and the Administrative Agent, and
when the Administrative Agent shall have, as to each Lender, either received a
counterpart hereof executed by such Lender or been notified by such Lender that
such Lender has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent, the Issuing Lender, and
each Lender and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights or delegate its duties
under this Agreement or any interest in this Agreement without the prior written
consent of each Lender.
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Section 9.06. LENDER ASSIGNMENTS AND PARTICIPATIONS.
(a) ASSIGNMENTS. Any Lender may assign to one or more Eligible Assignees
all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it, the Note held by it, and the participation interest in the Letter
of Credit Obligations held by it); PROVIDED, HOWEVER, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all of such
Lender's rights and obligations under this Agreement, (ii) the amount of the
Commitment, Advances, and Letter of Credit Exposure of such Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall be, if to an
entity other than a Lender, not less than $5,000,000 and, unless such assignment
is an assignment of 100% of such Lender's rights and obligations hereunder,
shall be an integral multiple of $1,000,000, (iii) each such assignment shall be
to an Eligible Assignee, (iv) the parties to each such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with the Note subject to such
assignment, and (v) each Eligible Assignee (other than the Eligible Assignee of
the Administrative Agent) shall pay to the Administrative Agent a $3,500
administrative fee. Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each Assignment and Acceptance,
which effective date shall be at least three Business Days after the execution
thereof, (A) the assignee thereunder shall be a party hereto for all purposes
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (B) such Lender thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of such Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
but all indemnification provisions contained herein shall continue to inure for
the benefit of such departing Lender with respect to matters arising during the
period such Lender was a party hereto).
(b) TERM OF ASSIGNMENTS. By executing and delivering an Assignment and
Acceptance, the Lender thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency of
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or its
Subsidiaries or the performance or observance by the Borrower or its
Subsidiaries of any of their obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.05 (or its most recently furnished
financial statements pursuant to Section 5.06) and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment
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<PAGE>
and Acceptance; (iv) such assignee will, independently and without reliance upon
the Administrative Agent, such Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
(c) THE REGISTER. The Administrative Agent shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitments of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Administrative Agent, the Issuing Lender,
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) PROCEDURES. Upon its receipt of an Assignment and Acceptance executed
by a Lender and an Eligible Assignee, together with the Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of the attached Exhibit A,
(i) accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register, and (iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, with
its own attorney's fees being its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Notes a new Note to the
order of such Eligible Assignee in an amount equal to the Commitment assumed by
it pursuant to such Assignment and Acceptance and, if such Lender has retained
any Commitment hereunder, a new Note to the order of such Lender in an amount
equal to the Commitment retained by it hereunder. Such new Notes shall be dated
the effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of the attached Exhibit C.
(e) PARTICIPATIONS. Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitments, the Advances owing to it, its participation interest in the Letter
of Credit Obligations, and the Notes held by it); PROVIDED, HOWEVER, that (i)
such Lender's obligations under this Agreement (including, without limitation,
its Commitments to the Borrower hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any such Notes for all purposes of this Agreement, (iv) the Borrower, the
Administrative Agent, and the Issuing Lender and the other Lenders shall
continue to deal solely and directly with such
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Lender in connection with such Lender's rights and obligations under this
Agreement, and (v) such Lender shall not require the participant's consent to
any matter under this Agreement, except for change in the principal amount of
the Notes, reductions in fees or interest, or extending the Maturity Date. The
Borrower hereby agrees that participants shall have the same rights under
Sections 2.09, 2.10, 2.12(c), and 9.07 as a Lender to the extent of their
respective participations.
(f) CONFIDENTIALITY. Each Lender may furnish any information concerning
the Borrower and its Subsidiaries in the possession of such Lender from
time-to-time to assignees and participants (including prospective assignees and
participants); PROVIDED that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree in writing to
preserve the confidentiality of any confidential information relating to the
Borrower and its Subsidiaries received by it from such Lender. Such Lender
shall, upon the Borrower's request, deliver a signed copy of any such
confidentiality agreement to the Borrower.
Section 9.07. INDEMNIFICATION. THE BORROWER SHALL INDEMNIFY THE
ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUING LENDER, AND EACH AFFILIATE
THEREOF AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
(COLLECTIVELY, THE "RELATED PARTIES") FROM, AND DISCHARGE, RELEASE, AND HOLD
EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS OR
DAMAGES TO WHICH ANY OF THEM MAY BECOME SUBJECT, INSOFAR AS SUCH LOSSES,
LIABILITIES, CLAIMS OR DAMAGES ARISE OUT OF OR RESULT FROM (I) ANY ACTUAL OR
PROPOSED USE BY THE BORROWER OR ANY AFFILIATE OF THE BORROWER OF THE PROCEEDS OF
ANY ADVANCE, (II) ANY BREACH BY THE BORROWER OF ANY PROVISION OF THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT, (III) ANY INVESTIGATION, LITIGATION OR OTHER
PROCEEDING (INCLUDING ANY THREATENED INVESTIGATION OR PROCEEDING) RELATING TO
THE FOREGOING, OR (IV) ANY ENVIRONMENTAL CLAIM OR REQUIREMENT OF ENVIRONMENTAL
LAWS CONCERNING OR RELATING TO THE PRESENT OR PREVIOUSLY OWNED OR OPERATED
PROPERTIES, OR THE OPERATIONS OR BUSINESS, OF THE BORROWER OR ANY OF ITS
SUBSIDIARIES, INCLUDING WITHOUT LIMITATION THOSE MATTERS SET FORTH IN SCHEDULES
4.16(A) AND (B), AND THE BORROWER SHALL REIMBURSE THE ADMINISTRATIVE AGENT, THE
ISSUING LENDER, AND EACH LENDER, AND EACH OF THEIR RESPECTIVE RELATED PARTIES,
UPON DEMAND FOR ANY REASONABLE OUT-OF-POCKET EXPENSES (INCLUDING LEGAL FEES)
INCURRED IN CONNECTION WITH ANY SUCH INVESTIGATION, LITIGATION OR OTHER
PROCEEDING; AND EXPRESSLY INCLUDING ANY SUCH LOSSES, LIABILITIES, CLAIMS,
DAMAGES, OR EXPENSE INCURRED BY REASON OF THE PERSON BEING INDEMNIFIED'S OWN
NEGLIGENCE, BUT EXCLUDING ANY SUCH LOSSES, LIABILITIES, CLAIMS, DAMAGES OR
EXPENSES INCURRED BY REASON OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
PERSON TO BE INDEMNIFIED.
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Section 9.08. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Section 9.09. SURVIVAL OF REPRESENTATIONS, ETC. All representations and
warranties contained in this Agreement or made in writing by or on behalf of the
Borrower in connection herewith shall survive the execution and delivery of this
Agreement and the Credit Documents, the making of the Advances and any
investigation made by or on behalf of the Lenders, none of which investigations
shall diminish any Lender's right to rely on such representations and
warranties. All obligations of the Borrower provided for in Sections 2.09, 2.10,
2.12(c), and 9.07 shall survive any termination of this Agreement and repayment
in full of the Obligations.
Section 9.10. SEVERABILITY. In case one or more provisions of this
Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable in any respect under any applicable law, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
not be affected or impaired thereby.
Section 9.11. BUSINESS LOANS. The Borrower warrants and represents that
the Loans evidenced by the Notes and the Swing Line Note are and shall be for
business, commercial, investment or other similar purposes and not primarily for
personal, family, household or agricultural use, as such terms are used in
Chapter 303 of the Texas Finance Code and Chapter 1D of the Texas Credit Title.
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Section 9.12. USURY NOT INTENDED. It is the intent of the Borrower and
each Lender in the execution and performance of this Agreement and the other
Credit Documents to contract in strict compliance with applicable usury laws,
including conflicts of law concepts, governing the Advances of each Lender
including such applicable laws of the State of Texas and the United States of
America from time to time in effect. In furtherance thereof, each Lender and the
Borrower stipulate and agree that none of the terms and provisions contained in
this Agreement or the other Credit Documents shall ever be construed to create a
contract to pay, as consideration for the use, forbearance or detention of
money, interest at a rate in excess of the Maximum Rate applicable to such
Lender and that for purposes hereof "interest" shall include the aggregate of
all charges which constitute interest under such laws that are contracted for,
charged or received under this Agreement; and in the event that, notwithstanding
the foregoing, under any circumstances the aggregate amounts taken, reserved,
charged, received or paid on the Advances, include amounts which by applicable
law are deemed interest which would exceed the Maximum Rate applicable to such
Lender, then such excess shall be deemed to be a mistake and such Lender shall
credit the same on the principal of its Note (or if such Note shall have been
paid in full, refund said excess to the Borrower). In the event that the
maturity of the Notes are accelerated by reason of any election of the Majority
Lenders resulting from any Event of Default under this Agreement or otherwise,
or in the event of any required or permitted prepayment, then such consideration
to any Lender that constitutes interest may never include more than the Maximum
Rate for such Lender and excess interest, if any, provided for in this Agreement
or otherwise shall be canceled automatically as of the date of such acceleration
or prepayment and, if theretofore paid, shall be credited by such Lender on its
Note (or, if its Note shall have been paid in full, refunded to the Borrower of
such interest). The provisions of this Section shall control over all other
provisions of this Agreement or the other Credit Documents which may be in
apparent conflict herewith. In determining whether or not the interest paid or
payable under any specific contingencies exceeds the Maximum Rate applicable to
a Lender, the Borrower and such Lender shall to the maximum extent permitted
under applicable law give effect to Section 2.07(d) and amortize, prorate,
allocate and spread in equal parts during the period of the full stated term of
its Note all amounts considered to be interest under applicable law at any time
contracted for, charged, received or reserved in connection with the
Obligations.
Section 9.13. GOVERNING LAW. This Agreement, the Notes and the other
Credit Documents shall be governed by, and construed and enforced in accordance
with, the laws of the State of Texas. Borrower and each Lender agree that the
provisions of Chapter 346 of the Texas Finance Code, as amended (regulating
certain revolving credit loans and revolving tri-party accounts) shall not apply
to the Credit Documents.
Section 9.14 AMENDMENT AND RESTATEMENT. This Agreement represents a full
and complete amendment and restatement of the Credit Agreement dated as of
September 9, 1997 (as amended, the "Existing Credit Agreement"), among the
Borrower, NationsBank of Texas, N.A., predecessor in interest to the
Administrative Agent, as administrative agent, and the Lenders named therein,
which amended and restated the Credit Agreement dated as of August 13, 1996,
among the
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Borrower, NationsBank of Texas, N.A., as administrative agent, Provident, as
documentation agent, and the Lenders named therein. The Existing Credit
Agreement is deemed replaced hereby as of the effectiveness of this Agreement.
The indebtedness under such prior version of this Agreement continues under this
Agreement (as reallocated among the Lenders in connection with the effectiveness
of this Agreement) and the execution of this Agreement does not indicate a
payment, satisfaction, novation, or discharge thereof. All support for the
indebtedness under the prior version of this Agreement continues to support the
indebtedness hereunder. Upon the effectiveness of this Agreement, all
outstanding Advances shall be reallocated among the Lenders ratably in
accordance with their Commitments. Amounts payable under the prior version of
this Agreement shall accrue thereunder until the effectiveness of this Agreement
and the Administrative Agent shall arrange with the Borrower and the Lenders to
prorate and ratably distribute to the Administrative Agent and the Lenders all
amounts payable under the prior version of this Agreement for the periods prior
to the effectiveness of this Agreement.
THE BORROWER, THE LENDERS, THE ISSUING LENDER AND THE ADMINISTRATIVE AGENT
HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN RESPECT OF ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER CREDIT
DOCUMENT, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
PURSUANT TO SECTION 26.02 OF THE TEXAS BUSINESS AND COMMERCE CODE, A
CREDIT AGREEMENT IN WHICH THE AMOUNT INVOLVED IN THE CREDIT AGREEMENT EXCEEDS
$50,000 IN VALUE IS NOT ENFORCEABLE UNLESS THE LOAN AGREEMENT IS IN WRITING AND
SIGNED BY THE PARTY TO BE BOUND OR THAT PARTY'S AUTHORIZED REPRESENTATIVE.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO AN AGREEMENT SUBJECT TO THE
PRECEDING PARAGRAPH SHALL BE DETERMINED SOLELY FROM THE WRITTEN CREDIT
AGREEMENT, AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY
AND MERGED INTO THE CREDIT AGREEMENT. THIS WRITTEN AGREEMENT AND THE CREDIT
DOCUMENTS, AS DEFINED IN THIS AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG 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 AMONG THE PARTIES.
EXECUTED as of the date first above written.
BORROWER:
CARRIAGE SERVICES, INC.
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By:
--------------------------------------
Thomas C. Livengood, Executive Vice
President and Chief Financial Officer
ADMINISTRATIVE AGENT:
NATIONSBANK, N.A. d/b/a
BANK OF AMERICA, N.A.
By:
--------------------------------------
Craig S. Wall
Senior Vice President
COMMITMENT: LENDERS:
NATIONSBANK, N.A. d/b/a
BANK OF AMERICA, N.A.
Commitment: $40,000,000 By:
--------------------------------------
Craig S. Wall
Senior Vice President
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PROVIDENT SERVICES, INC.
Commitment: $50,000,000 By:
--------------------------------------
Daniel M. Chong
Vice President
<PAGE>
BANK ONE, TEXAS, NA
Commitment: $40,000,000 By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
<PAGE>
FIRST UNION NATIONAL BANK
Commitment: $20,000,000 By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
<PAGE>
CHASE BANK TEXAS, N.A.
Commitment: $35,000,000 By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
<PAGE>
WELLS FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
Commitment: $15,000,000 By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
<PAGE>
UNION BANK OF CALIFORNIA, N.A.
Commitment: $15,000,000 By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
<PAGE>
SUNTRUST BANK, ATLANTA
Commitment: $25,000,000 By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
<PAGE>
SOUTHWEST BANK OF TEXAS, N.A.
Commitment: $10,000,000 By:
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
EXHIBIT 11.1
CARRIAGE SERVICES, INC.
COMPUTATION OF PER SHARE EARNINGS
(UNAUDITED AND IN THOUSANDS, EXCEPT PER SHARE DATA)
Earnings per share for the three and six month periods ended June 30, 1999
and 1998 is calculated based on the weighted average number of common and common
equivalent shares outstanding during the period as prescribed by SFAS 128. The
following table sets forth the computation of the basic and diluted earnings per
share for the three and six month periods ended June 30, 1998 and 1999:
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS
ENDED JUNE 30, ENDED JUNE 30,
------------------- -------------------
1998 1999 1998 1999
------- -------- ------- --------
<S> <C> <C> <C> <C>
Net income before extraordinary item ................................. $ 1,803 $ 3,096 $ 4,449 $ 7,474
Extraordinary item ................................................... -- (200) -- (200)
------- -------- ------- --------
Net income ........................................................... 1,803 2,896 4,449 7,274
Preferred stock dividends ............................................ 151 28 301 56
------- -------- ------- --------
Net income available to common stockholders for basic EPS computation 1,652 2,868 4,148 7,218
Effect of dilutive securities ........................................ -- -- 243 291
------- -------- ------- --------
Net income available to common stockholders for diluted EPS
computation ..................................................... $ 1,652 $ 2,868 $ 4,391 $ 7,509
======= ======== ======= ========
Weighted average number of common shares outstanding for basic EPS
computation ..................................................... 12,393 15,877 11,775 15,843
Effect of dilutive securities:
Stock options ................................................... 488 458 377 424
Assumed conversion of preferred stock ........................... -- -- 722 714
------- -------- ------- --------
Weighted average number of common and common equivalent shares
outstanding for diluted EPS computation ......................... 12,881 16,335 12,874 16,981
======= ======== ======= ========
Basic earnings per share:
Net income before extraordinary item ............................ $ .13 $ .19 $ .35 $ .47
Extraordinary item .............................................. -- (.01) -- (.01)
------- -------- ------- --------
Net income ...................................................... $ .13 $ .18 $ .35 $ .46
======= ======== ======= ========
Diluted earnings per share:
Net income before extraordinary item ............................ $ .13 $ .19 $ .35 $ .45
Extraordinary item .............................................. -- (.01) -- (.01)
------- -------- ------- --------
Net income ...................................................... $ .13 $ .18 $ .35 $ .44
======= ======== ======= ========
</TABLE>
EXHIBIT 12
CARRIAGE SERVICES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(UNAUDITED AND IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30,
--------------
1994* 1995* 1996* 1997 1998 1999
------- ------- ------ ------- ------- --------------
<S> <C> <C> <C> <C> <C> <C>
Fixed charges:
Interest expense ................................... $ 2,671 $ 3,684 $4,347 $5,889 $ 9,720 $ 7,470
Amortization of
capitalized expenses
related to debt .................................. 30 50 150 200 150 64
Rental expense ..................................... 245 317 308 629 720 415
------- ------- ------ ------- ------- --------------
Total fixed charges before
capitalized interest and
preferred stock dividends .......................... 2,946 4,051 4,805 6,718 10,590 7,949
Capitalized interest ..................................... 100 175 250 450 600 216
------- ------- ------ ------- ------- --------------
Total fixed charges .............................. 3,046 4,226 5,055 7,168 11,190 8,165
Preferred stock dividends ................................ -- -- 1,037 1,627 1,082 98
------- ------- ------ ------- ------- --------------
Total fixed charges
plus preferred dividends ......................... 3,046 4,226 6,092 8,795 12,272 8,263
------- ------- ------ ------- ------- --------------
Earnings available for fixed
charges: ........................................... (923) (1,800) 345 8,217 17,023 13,111
Add fixed charges before
capitalized interest and
preferred stock dividends .......................... 2,946 4,051 4,805 6,718 10,590 7,949
------- ------- ------ ------- ------- --------------
Total earnings available
For fixed charges .................................. $ 2,023 $ 2,251 $5,150 $14,935 $27,613 $ 21,060
======= ======= ====== ======= ======= ==============
Ratio of earnings to
fixed charges (1) .................................. 0.66 0.53 1.02 2.08 2.47 2.58
======= ======= ====== ======= ======= ==============
Ratio of earnings to fixed
charges plus dividends (1) ......................... 0.66 0.53 0.85 1.70 2.25 2.55
======= ======= ====== ======= ======= ==============
</TABLE>
(1) For purposes of computing the ratios of earnings to fixed charges and
earnings to fixed charges plus dividends: (i) earnings consist of income before
provision for income taxes plus fixed charges (excluding capitalized interest)
and (ii) "fixed charges" consist of interest expensed and capitalized,
amortization of debt discount and expense relating to indebtedness and the
portion of rental expense representative of the interest factor attributable to
leases for rental property. There were no dividends paid or accrued on the
Company's Common Stock during the periods presented above.
* Earnings were inadequate to cover fixed charges. The coverage deficiency was
$1,023,000, $1,975,000 and $942,000 for 1994, 1995 and 1996 respectively.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE FINANCIAL DATA SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED
FROM 10-Q FOR THE SIX MONTHS ENDED JUNE 30, 1999 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCES TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<CASH> 3,949
<SECURITIES> 0
<RECEIVABLES> 30,049
<ALLOWANCES> 4,848
<INVENTORY> 6,160
<CURRENT-ASSETS> 36,558
<PP&E> 162,304
<DEPRECIATION> 14,147
<TOTAL-ASSETS> 514,918
<CURRENT-LIABILITIES> 22,582
<BONDS> 160,586
90,547
1,172
<COMMON> 158
<OTHER-SE> 208,362
<TOTAL-LIABILITY-AND-EQUITY> 514,918
<SALES> 84,341
<TOTAL-REVENUES> 84,341
<CGS> 59,048
<TOTAL-COSTS> 59,048
<OTHER-EXPENSES> 4,712
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,470
<INCOME-PRETAX> 13,111
<INCOME-TAX> 5,637
<INCOME-CONTINUING> 7,474
<DISCONTINUED> 0
<EXTRAORDINARY> (200)
<CHANGES> 0
<NET-INCOME> 2,274
<EPS-BASIC> .47
<EPS-DILUTED> .45
</TABLE>
