<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 23, 1997.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------
STEWART ENTERPRISES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
LOUISIANA 110 VETERANS MEMORIAL 72-0693290
BOULEVARD (I.R.S. EMPLOYER
(STATE OR OTHER METAIRIE, LOUISIANA 70005 IDENTIFICATION NUMBER)
JURISDICTION OF (504) 837-5880
INCORPORATION OR
ORGANIZATION) (ADDRESS, INCLUDING ZIP
CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES)
JOSEPH P. HENICAN, III
CHIEF EXECUTIVE OFFICER AND
VICE CHAIRMAN OF THE BOARD
STEWART ENTERPRISES, INC.
P. O. BOX 19925
NEW ORLEANS, LOUISIANA 70179
(504) 837-5880
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
L. R. MCMILLAN, II RONALD J. FRAPPIER
JONES, WALKER, WAECHTER, JENKENS & GILCHRIST
POITEVENT, CARRERE & DENEGRE, L.L.P. A PROFESSIONAL CORPORATION
201 ST. CHARLES AVENUE 1445 ROSS AVENUE, SUITE 3200
NEW ORLEANS, LOUISIANA 70170-5100 DALLAS, TEXAS 75202-2711
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
----------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF MAXIMUM AGGREGATE AMOUNT OF
SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
- -----------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
5,462,500
Class A Common Stock.... shares $36.6875 $200,405,469 $60,729
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</TABLE>
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(1) Includes 712,500 shares subject to the Underwriters' over-allotment option
granted by the Company. See "Underwriting."
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based on the average of the high and low price
per share of the Class A Common Stock on May 16, 1997.
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THAT THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MAY 23, 1997
PROSPECTUS
4,750,000 SHARES
LOGO
STEWART ENTERPRISES, INC.
CLASS A COMMON STOCK
Of the 4,750,000 shares of Class A Common Stock being offered hereby,
4,250,000 shares are being sold by the Company and 500,000 shares are being
sold by the Selling Shareholder. See "Selling Shareholder." The Company will
not receive any of the proceeds from the sale of the shares by the Selling
Shareholder. See "Use of Proceeds." The last reported sale price of the Class A
Common Stock (symbol "STEI") on the Nasdaq National Market on May 21, 1997 was
$37.00 per share. See "Price Range of Common Stock and Dividend Policy."
The Company has two classes of common stock outstanding, Class A and Class B,
the rights of the holders of which are essentially identical, except that
holders of Class A Common Stock are entitled to one vote per share and holders
of Class B Common Stock are entitled to 10 votes per share. The Class B Common
Stock may be transferred only to certain transferees but is freely convertible
into an equal number of shares of Class A Common Stock. The Class A Common
Stock is freely transferable and non-convertible. Upon completion of the
offering, assuming that the over-allotment option described below is not
exercised, Frank B. Stewart, Jr., the Chairman of the Board of the Company and
the Selling Shareholder, will own beneficially shares of Class A and Class B
Common Stock having approximately 34.6% of the total voting power of the
Company.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
UNDERWRITING PROCEEDS TO
PRICE TO DISCOUNTS AND PROCEEDS TO SELLING
PUBLIC COMMISSIONS(1) COMPANY(2) SHAREHOLDER(2)
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<S> <C> <C> <C> <C>
Per Share............. $ $ $ $
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Total(3).............. $ $ $ $
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</TABLE>
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(1) The Company and the Selling Shareholder have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Underwriting."
(2) Before deducting expenses of the offering, estimated at $269,441 payable by
the Company and $5,559 payable by the Selling Shareholder.
(3) The Company has granted the Underwriters a 30-day option to purchase up to
712,500 additional shares of Class A Common Stock on the same terms and
conditions as set forth above solely to cover over-allotments, if any. If
such option is exercised in full, the total Price to Public, Underwriting
Discounts and Commissions, Proceeds to Company and Proceeds to Selling
Shareholder will be $ , $ , $ and $ , respectively. See
"Underwriting."
-----------
The shares of Class A Common Stock are offered subject to prior sale when, as
and if delivered to and accepted by the Underwriters, and subject to certain
other conditions. The Underwriters reserve the right to withdraw, cancel or
modify such offer and to reject orders in whole or in part. It is expected that
delivery of the Class A Common Stock will be made on or about June , 1997 at
the offices of Bear, Stearns & Co. Inc., 245 Park Avenue, New York, New York
10167.
-----------
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
ABN AMRO CHICAGO CORPORATION
JOHNSON RICE & COMPANY L.L.C.
June , 1997
<PAGE>
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE CLASS A COMMON
STOCK INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS
AND THE IMPOSITION OF PENALTY BIDS. SEE "UNDERWRITING."
THE REPRESENTATIVES HAVE ADVISED THE COMPANY AND THE SELLING SHAREHOLDER
THAT EACH OF THE REPRESENTATIVES CURRENTLY ACTS AS A MARKET MAKER FOR THE
CLASS A COMMON STOCK AND CURRENTLY INTENDS TO CONTINUE TO ACT AS A MARKET
MAKER FOLLOWING THIS OFFERING. SINCE THE AVERAGE DAILY TRADING VOLUME OF THE
CLASS A COMMON STOCK EXCEEDS $1 MILLION AND THE COMPANY'S PUBLIC FLOAT EXCEEDS
$150 MILLION, THE PROVISIONS OF REGULATION M PERMIT SUCH REPRESENTATIVES TO
CONTINUE MARKET MAKING ACTIVITIES DURING THE PERIOD OF THE OFFERING. HOWEVER,
THE REPRESENTATIVES ARE NOT OBLIGATED TO DO SO AND MAY DISCONTINUE ANY MARKET
MAKING AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following Regional Offices of the
Commission: New York Regional Office, Seven World Trade Center, Suite 1300,
New York, New York 10048, and Chicago Regional Office, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material may also
be obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
maintains an Internet Web site containing reports, proxy statements and other
information regarding registrants that file electronically with the Commission
(http://www.sec.gov). Such reports, proxy statements and other information may
also be inspected at the National Association of Securities Dealers, Inc. at
1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a registration statement on Form
S-3 (together with all amendments and exhibits, the "Registration Statement"),
under the Securities Act of 1933, as amended (the "Securities Act") with
respect to the shares of Class A Common Stock offered by this Prospectus. This
Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information with
respect to the Company and the Class A Common Stock offered hereunder,
reference is made to the Registration Statement. Statements contained in this
Prospectus as to the contents of any contract or other document referred to
herein are not necessarily complete and, where such contract or other document
is an exhibit to the Registration Statement, each such statement is qualified
in all respects by the provisions of such exhibit, to which reference is
hereby made for a full statement of the provisions thereof.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission are hereby
incorporated by reference into this Prospectus (the Company's Exchange Act
file number is 0-19508): (i) the Company's Annual Report on Form 10-K for the
fiscal year ended October 31, 1996, filed January 24, 1997; (ii) the
description of the Company's Class A Common Stock set forth in its
Registration Statement under the Exchange Act dated September 5, 1991; (iii)
the Company's Quarterly Report on Form 10-Q for the quarter ended January 31,
1997, filed March 17, 1997; and (iv) the Company's Current Report on Form 8-K,
dated March 10, 1997, filed March 11, 1997.
All reports and other documents subsequently filed by the Company pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Prospectus and prior to the termination of this offering shall be deemed
to be incorporated by reference herein and to be a part hereof from the date
of filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
to the extent that a statement contained herein or in any other document
subsequently filed which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus has been delivered, upon written or
oral request, a copy of any or all of the documents incorporated herein by
reference (other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents). Requests should
be directed to Stewart Enterprises, Inc., Attention: Kenneth C. Budde, Senior
Vice President-Finance, 110 Veterans Memorial Boulevard, Metairie, Louisiana,
70005, telephone (504) 837-5880.
2
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements appearing elsewhere or incorporated by
reference in this Prospectus. Unless otherwise indicated, the information in
this Prospectus assumes that the over-allotment option granted to the
Underwriters will not be exercised. Share and per share amounts in this
Prospectus for fiscal years 1992 and 1993 have been adjusted to reflect the
Company's three-for-two stock split in the form of a 50% stock dividend
effected December 1, 1993. Additionally, share and per share amounts for fiscal
years 1992 through 1996 have been adjusted to reflect the Company's three-for-
two stock split in the form of a 50% stock dividend effected June 21, 1996.
THE COMPANY
Stewart Enterprises, Inc. (the "Company") is the third largest provider of
products and services in the death care industry in North America. The Company
is a leader in the industry's movement toward consolidation, the integration of
funeral home and cemetery operations, the establishment of combined facilities,
and complete death care planning and delivery. Through its subsidiaries, the
Company operates 345 funeral homes and 124 cemeteries in 23 states, Puerto
Rico, Mexico, Australia, New Zealand, Canada and Spain. During fiscal year
1996, the Company acquired 134 funeral homes and 15 cemeteries for an aggregate
purchase price of $179.0 million. During fiscal year 1997, as of May 20, 1997,
the Company has acquired 47 funeral homes and five cemeteries for an aggregate
purchase price of $111.4 million and has entered into agreements in principle
or letters of intent to acquire 22 funeral homes and two cemeteries for an
aggregate purchase price of approximately $32.5 million.
The Company's strategy is to build market share in its existing markets
through extensive marketing, the sale of prearranged products and services and
the development of new funeral homes, and to expand in existing and new markets
through selective acquisitions. In each market in which it wishes to expand,
the Company's strategy is to acquire one or more premier facilities to serve as
a centerpiece for a group or cluster of other properties that may be acquired
subsequently in the same metropolitan area. The Company considers a funeral
home or cemetery to be a "premier" facility if, when measured by such factors
as tradition, heritage, reputation, physical size, volume of business,
available inventory, name recognition, aesthetics and potential for development
or expansion, it is one of the most highly regarded facilities in its market
area. Where feasible, the Company enters markets with, or subsequently
develops, combined operations in which a funeral home is located at and is
operated in conjunction with a Company-owned cemetery. The continued
acquisition and development of combined operations is a key component of the
Company's expansion plan.
The Company is a leader in the industry trend toward prearranged death care
planning. The Company believes that extensive marketing of death care
prearrangements assures a backlog of future business and builds current and
future market share. The Company markets a complete range of death care
products and services on a prearranged basis through a staff of approximately
3,000 commission sales counselors.
The Company believes that it is distinguishable from its competitors by the
quality of its funeral homes and cemeteries, the depth and experience of its
management team, its decentralized management structure and the quality and
value of its products and services.
The Company retains key managers of acquired companies and gives them
significant operational authority in order to assure the continuation of high
quality services and the maintenance of the acquired firm's reputation and
goodwill. The Company's 11 executive officers, five of whom joined the Company
through acquisitions, have an average of more than 24 years of experience in
the death care industry.
The Company is a Louisiana corporation, and the mailing address of its
executive offices is P.O. Box 19925, New Orleans, Louisiana 70179. Its
telephone number is (504) 837-5880.
3
<PAGE>
THE OFFERING
Securities Offered.......... 4,750,000 shares of Class A Common Stock, of
which 4,250,000 shares are being offered by the
Company and 500,000 shares are being offered by
the Selling Shareholder. See "Use of Proceeds"
and "Selling Shareholder."
Common Stock Outstanding
Prior to the Offering......
40,499,320 shares of Class A Common Stock
1,777,510 shares of Class B Common Stock
Common Stock to be
Outstanding After the
Offering................... 44,749,320 shares of Class A Common Stock
1,777,510 shares of Class B Common Stock
Rights of Holders of Class
A and Class B Common
Stock......................
The rights of holders of Class A Common Stock and
Class B Common Stock are essentially identical,
except that holders of Class A Common Stock are
entitled to one vote per share and holders of
Class B Common Stock are entitled to 10 votes per
share. The Class B Common Stock may be
transferred only to certain transferees but is
freely convertible into an equal number of shares
of Class A Common Stock. The Class A Common Stock
is freely transferable and non-convertible.
Upon completion of the offering, Frank B.
Stewart, Jr., Chairman of the Board of the
Company and the Selling Shareholder, will own
beneficially approximately 8.7% of the Company's
outstanding Class A Common Stock and 100% of the
Company's outstanding Class B Common Stock.
Because holders of the Class B Common Stock are
entitled to 10 votes per share, Mr. Stewart will
own beneficially shares of Class A and Class B
Common Stock having approximately 34.6% of the
total voting power of the Company.
Use of Proceeds............. The Company intends to use the net proceeds from
the sale of the Class A Common Stock offered
hereby to fund acquisitions and for general
corporate purposes. Pending use for such
purposes, the net proceeds will be used to repay
outstanding indebtedness. See "Use of Proceeds."
Nasdaq National Market
Symbol..................... STEI
4
<PAGE>
SUMMARY FINANCIAL AND OPERATING DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED OCTOBER 31, JANUARY 31,
------------------------------------------------------ ----------------------
1992 1993 1994 1995 1996 1996 1997
-------- -------- -------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF EARNINGS
DATA:
Revenues:
Funeral................ $ 61,493 $ 75,348 $116,266 $ 188,991 $ 225,461 $ 53,087 $ 68,906
Cemetery(1)............ 83,338 107,315 138,092 179,831 207,926 49,670 53,756
-------- -------- -------- ---------- ---------- ---------- ----------
Total revenues......... 144,831 182,663 254,358 368,822 433,387 102,757 122,662
Gross profit:
Funeral................ 17,227 22,398 31,785 55,309 72,239 16,718 22,501
Cemetery(1)............ 14,446 19,032 25,812 34,434 45,879 11,881 13,369
-------- -------- -------- ---------- ---------- ---------- ----------
Total gross profit..... 31,673 41,430 57,597 89,743 118,118 28,599 35,870
Corporate general and
administrative......... (5,030) (7,223) (8,157) (11,113) (14,096) (2,950) (3,855)
-------- -------- -------- ---------- ---------- ---------- ----------
Operating earnings
before performance-
based stock options.... 26,643 34,207 49,440 78,630 104,022 25,649 32,015
Performance-based stock
options................ -- -- -- (17,252) -- -- --
-------- -------- -------- ---------- ---------- ---------- ----------
Operating earnings...... 26,643 34,207 49,440 61,378 104,022 25,649 32,015
Interest expense........ (5,414) (6,540) (8,877) (22,815) (26,051) (6,204) (8,962)
Investment and other
income................. 1,221 1,902 1,635 2,937 4,104 551 785
Distributions to prior
ITI shareholders(2).... (1,508) -- -- -- -- -- --
-------- -------- -------- ---------- ---------- ---------- ----------
Earnings from continuing
operations before
income taxes........... $ 20,942 $ 29,569 $ 42,198 $ 41,500(3) $ 82,075 $ 19,996 $ 23,838
======== ======== ======== ========== ========== ========== ==========
Earnings from continuing
operations............. $ 14,195 $ 18,839 $ 27,253 $ 26,145(3) $ 51,297 $ 12,498 $ 15,376
======== ======== ======== ========== ========== ========== ==========
Earnings per common
share from continuing
operations(4).......... $ .64 $ .71 $ .85 $ .72(3) $ 1.24 $ .30 $ .37
======== ======== ======== ========== ========== ========== ==========
Weighted average common
shares outstanding (in
thousands)(4).......... 22,239 26,535 31,910 36,386 41,410 41,031 41,853
======== ======== ======== ========== ========== ========== ==========
Dividends declared per
common share(4)........ $ .005 $ .018 $ .027 $ .033 $ .066 $ .013 $ .02
======== ======== ======== ========== ========== ========== ==========
<CAPTION>
OCTOBER 31, JANUARY 31, 1997
------------------------------------------------------ ----------------------
AS
1992 1993 1994 1995 1996 ACTUAL ADJUSTED(5)
-------- -------- -------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Assets................. $299,996 $455,942 $759,390 $1,072,435 $1,372,588 $1,413,727 $1,413,727
Long-term debt, less
current maturities.... 82,740 122,517 260,913 317,451 515,901 545,655 395,777
Shareholders' equity... 143,134 232,006 325,671 483,978 547,447 557,877 707,755
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED OCTOBER 31, JANUARY 31,
------------------------------------------------------ ----------------------
1992 1993 1994 1995 1996 1996 1997
-------- -------- -------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING DATA:
Funeral homes in
operation at end of
period................ 48 76 105 161 298 167 310
At-need funerals
performed............. 12,365 14,588 23,539 37,263 38,351 9,034 13,241
Prearranged funerals
performed............. 5,449 6,320 7,571 9,225 15,422 4,070 4,548
-------- -------- -------- ---------- ---------- ---------- ----------
Total funerals
performed........... 17,814 20,908 31,110 46,488 53,773 13,104 17,789
Prearranged funerals
sold.................. 15,250 17,859 26,637 33,787 37,545 8,434 9,057
Backlog of prearranged
funerals at end of
period................ 112,801 130,610 183,886 222,532 294,829 229,571 296,014
Cemeteries in
operation at end of
period................ 35 57 90 105 120 109 120
Interments performed... 22,107 26,557 33,118 42,480 46,007 11,685 13,997
</TABLE>
5
<PAGE>
- --------
(1) Includes the Company's construction and sales operations, which previously
were classified as a separate industry segment.
(2) Investors Trust, Inc. ("ITI"), which generally administers the Company's
trust funds and escrow accounts, was acquired by the Company on November 1,
1992.
(3) Includes a non-recurring, non-cash charge of $17.3 million ($10.9 million,
or $.30 per share, after-tax) recorded during the third quarter of fiscal
year 1995 in connection with the vesting of the Company's performance-based
stock options. Excluding that charge, earnings from continuing operations
before income taxes, earnings from continuing operations, and earnings per
common share from continuing operations for fiscal year 1995 were $58.8
million, $37.0 million and $1.02, respectively.
(4) Fiscal years 1992 and 1993 reflect the Company's three-for-two split of its
Class A and Class B Common Stock effected December 1, 1993 by means of a
50% stock dividend. Additionally, fiscal years 1992 through 1996 reflect
the Company's three-for-two split effected June 21, 1996 by means of a 50%
stock dividend.
(5) Adjusted to reflect the sale of the Class A Common Stock offered hereby and
the application of the net proceeds from such sale, based on an estimated
offering price of $37.00 per share. See "Use of Proceeds" and
"Capitalization."
6
<PAGE>
USE OF PROCEEDS
The net proceeds to the Company from the sale of the 4,250,000 shares of
Class A Common Stock offered by it hereby are estimated to be approximately
$149.9 million ($175.1 million if the Underwriters' over-allotment option is
exercised in full), based on an estimated offering price of $37.00 per share
and after deducting estimated underwriting discounts and commissions and
expenses of the offering payable by the Company. The Company will not receive
any proceeds from the sale of Class A Common Stock by the Selling Shareholder.
The Company's growth strategy depends largely on its ability to consummate
acquisitions, and the availability of substantial financial resources is
important to its ability to compete effectively for acquisition opportunities.
The purpose of this offering is to further strengthen the Company's financial
position and to provide it with the financial flexibility necessary to take
advantage of acquisition opportunities as they arise. The Company initially
will use substantially all of the net proceeds to reduce the balances
outstanding on its revolving credit facilities, which amounts will then become
available to the Company to fund its continuing acquisition program and for
general corporate purposes. As of May 19, 1997, $418 million was outstanding
under the Company's $600 million revolving line of credit and no amount was
outstanding under the Company's $10 million revolving line of credit. The $600
million revolving line of credit bears interest at the lead lending bank's
prime rate, or at certain optional rates at the Company's election (a weighted
average rate of approximately 6.23% at May 19, 1997), contains a facility fee
of 12.5 basis points, and matures on April 30, 2002.
Under the most restrictive of its credit agreements, the Company is required
to maintain a debt-to-equity ratio of not more than 1.25 to 1.0. After
application of the net proceeds of this offering, the Company's additional
borrowing capacity would be approximately $400.8 million under this ratio.
Of the funds drawn by the Company on its revolving lines of credit in the 12
months ended April 30, 1997, approximately 80% was used to fund acquisitions,
and the remainder was used for additions to property and equipment, including
new funeral home construction, and general corporate purposes.
As of May 20, 1997, pending acquisitions consisted of 22 funeral homes and
two cemeteries for an aggregate purchase price of approximately $32.5 million.
7
<PAGE>
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
The Company's Class A Common Stock is traded on the Nasdaq National Market
under the Symbol STEI. The following table sets forth, for the periods
indicated, the range of high and low bid prices, as reported by the Nasdaq
National Market. Prices for fiscal year 1995 and for the first three quarters
of fiscal year 1996 have been adjusted to reflect a three-for-two stock split
effected in the form of a 50% stock dividend on June 21, 1996.
<TABLE>
<CAPTION>
HIGH LOW
---- ---
<S> <C> <C>
Fiscal Year 1997
Third Quarter (through May 21, 1997)................ 37 32 1/2
Second Quarter...................................... 37 1/2 32 1/4
First Quarter....................................... 38 3/4 32 3/4
Fiscal Year 1996
Fourth Quarter...................................... 36 26 3/4
Third Quarter....................................... 32 11/64 24 1/2
Second Quarter...................................... 31 24 43/64
First Quarter....................................... 26 11/64 21 11/64
Fiscal Year 1995
Fourth Quarter...................................... 24 20 11/64
Third Quarter....................................... 22 43/64 18 1/2
Second Quarter...................................... 18 21/64 15 53/64
First Quarter....................................... 16 1/2 15 1/2
</TABLE>
The Company declared quarterly cash dividends of $.007 per share on its
Class A and Class B Common Stock during the first three quarters of fiscal
year 1995, $.013 per share during the fourth quarter of fiscal year 1995 and
the first two quarters of fiscal year 1996, and $.02 per share thereafter. The
Company intends to continue its current policy of declaring quarterly cash
dividends on the Class A and Class B Common Stock in the amount of $.02 per
share. The declaration and payment of dividends is at the discretion of the
Board of Directors and will depend on the Company's results of operations,
financial condition, cash requirements, future prospects and other factors
deemed relevant by the Board of Directors. The most restrictive of the
Company's credit agreements restricts the declaration and payment of cash
dividends on the capital stock of the Company within any period of four
consecutive quarters to 50% or less of the Company's consolidated net earnings
for those four quarters. Additionally, the credit agreement limits the
purchase, redemption, or retirement of any shares of the Company's capital
stock to 5% or less of its consolidated net worth on the payment date.
8
<PAGE>
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
January 31, 1997, and such capitalization as adjusted to reflect the sale by
the Company of the 4,250,000 shares of Class A Common Stock offered hereby,
assuming no exercise of the Underwriters' over-allotment option (based upon an
estimated offering price of $37.00 per share and after deducting estimated
underwriting discounts and commissions and expenses of the offering payable by
the Company).
<TABLE>
<CAPTION>
JANUARY 31, 1997
--------------------------
ACTUAL AS ADJUSTED(1)
---------- --------------
(IN THOUSANDS)
<S> <C> <C>
Current maturities of long-term debt................ $ 11,589 $ 11,589
========== ==========
Long-term debt, excluding current maturities(2)
Revolving lines of credit......................... $ 316,611 $ 166,733
Senior notes...................................... 117,857 117,857
6.70% Notes due 2003.............................. 100,000 100,000
Other, principally seller financing of acquired
operations or assumption upon acquisition........ 11,187 11,187
---------- ----------
Total long-term debt............................ 545,655 395,777
---------- ----------
Preferred stock, $1.00 par value, 5,000,000 shares
authorized; none outstanding....................... -- --
Shareholders' equity:
Class A Common Stock, no par value, $1.00 stated
value, 150,000,000 shares authorized; 40,272,178
shares issued and outstanding; 44,522,178 shares
as adjusted...................................... 40,272 44,522
Class B Common Stock, no par value, $1.00 stated
value, 5,000,000 shares authorized; 1,777,510
shares issued and outstanding.................... 1,778 1,778
Additional paid-in capital........................ 306,155 451,783
Retained earnings................................. 229,851 229,851
Cumulative foreign translation adjustment......... (22,380) (22,380)
Unrealized appreciation of investments............ 2,201 2,201
---------- ----------
Total shareholders' equity...................... 557,877 707,755
---------- ----------
Total capitalization............................ $1,103,532 $1,103,532
========== ==========
</TABLE>
- --------
(1) Adjusted to reflect the sale of the Class A Common Stock offered hereby
and the application of the net proceeds of approximately $149.9 million
therefrom to repay a portion of the balance outstanding under the
Company's revolving lines of credit, which amount will then become
available to the Company to fund its continuing acquisition program and
for general corporate purposes.
(2) Long-term debt outstanding at January 31, 1997, excluding current
maturities, included $316.6 million under three revolving lines of credit.
Subsequent to January 31, 1997, the Company replaced these revolving lines
of credit with a $600 million revolving line of credit which matures on
April 30, 2002. The revolving line of credit contains a facility fee of
12.5 basis points, and borrowings bear interest at the lead lending bank's
prime rate, or certain optional rates at the Company's election. As of May
19, 1997, borrowings under the revolving line of credit totalled $418
million and had a weighted average interest rate of approximately 6.23%.
The Company also has available a $10 million revolving line of credit that
is used for interim cash advances in amounts less than $5 million, which
are cumulated periodically and replaced with cash advances under the $600
million revolving line of credit. As of May 19, 1997, no amounts were
outstanding under the $10 million revolving line of credit. Long-term debt
outstanding at January 31, 1997, excluding current maturities, also
included (i) $42.9 million of senior notes, bearing interest at 6.04% and
maturing on November 30, 2003, with principal payments of $7.143 million
due each year, with the next payment due on November 30, 1998; (ii) $75
million of senior notes with an average maturity of seven years, a
weighted average interest rate of 8.44%, and principal payments of $15
million due May 1, 1998, $16.7 million due on each of November 1, 2000 and
2001, $16.6 million due November 1, 2002 and $10 million due on November
1, 2006; and (iii) $100 million senior debt securities, bearing interest
at 6.70% due 2003. All of the Company's debt is unsecured, except for
approximately $2 million as of April 30, 1997, which was incurred
principally in connection with acquisitions.
9
<PAGE>
BUSINESS
THE COMPANY
The Company is the third largest provider of products and services in the
death care industry in North America. The Company is a leader in the
industry's movement toward consolidation, the integration of funeral home and
cemetery operations, the establishment of combined facilities, and complete
death care planning and delivery. Through its subsidiaries, the Company
operates 345 funeral homes and 124 cemeteries in 23 states, Puerto Rico,
Mexico, Australia, New Zealand, Canada and Spain. During fiscal year 1996, the
Company acquired 134 funeral homes and 15 cemeteries for an aggregate purchase
price of $179.0 million. During fiscal year 1997, as of May 20, 1997, the
Company has acquired 47 funeral homes and five cemeteries for an aggregate
purchase price of $111.4 million and has entered into agreements in principle
or letters of intent to acquire 22 funeral homes and two cemeteries for an
aggregate purchase price of approximately $32.5 million.
The Company believes that it is distinguishable from its competitors by the
quality of its funeral homes and cemeteries, the depth and experience of its
management team, its decentralized management structure, and the quality and
value of its products and services. The Company believes that it owns and
operates one or more of the premier death care facilities in each of its
principal markets, which serve as a centerpiece for a group or cluster of
other properties in the same metropolitan area. The Company considers a
funeral home or cemetery to be a "premier" facility if, when measured by such
factors as tradition, heritage, reputation, physical size, volume of business,
available inventory, name recognition, aesthetics and potential for
development or expansion, it is one of the most highly regarded facilities in
its market area.
The Company retains key managers of acquired companies and gives them
significant operational authority in order to assure the continuation of high
quality services and the maintenance of the acquired firm's reputation and
goodwill. The Company's 11 executive officers, five of whom joined the Company
through acquisitions, have an average of more than 24 years of experience in
the death care industry.
OPERATING STRATEGY
The Company's operating strategy is to build market share and increase
profit margins by marketing and providing, both prior to and at the time of
need, a complete range of death care products and services at competitive
prices. In order to achieve those objectives, the Company has acquired or
developed in most of its markets one or more premier facilities to serve as a
centerpiece for a cluster of other properties in the same area. Such
clustering provides certain economies of scale by, for example, enabling the
Company's facilities to share vehicles and employees, to reduce administrative
expenses, to centralize embalming services and to pool inventories of caskets
and other merchandise. Further, where feasible, the Company acquires, or
subsequently develops, combined operations in which a funeral home is located
at and is operated in conjunction with a Company-owned cemetery. Although
profit margins of cemetery operations are traditionally lower than those of
funeral homes, the Company's experience with combined operations has
demonstrated that the combination of a cemetery with a funeral home can
increase significantly the market share of the cemetery and funeral home and
provide cost savings through the sharing of facilities and other resources,
thereby increasing the overall profitability of both.
The Company's operating strategy also emphasizes a decentralized management
structure under which funeral home and cemetery operations are managed by four
regional division presidents, each of whom is an experienced death care
industry executive who has responsibility for all operations in his geographic
region. Although certain financial management and policy matters are
centralized, division presidents, local funeral home directors and cemetery
managers have substantial autonomy in the manner in which their products and
services are marketed and delivered and their funeral homes and cemeteries are
managed. The Company believes that this strategy permits each local firm to
maintain its unique style of operation and to capitalize on its reputation and
goodwill, while maintaining centralized supervisory controls and providing
specialized services at the corporate level.
10
<PAGE>
Effective January 1, 1997, the Company expanded its two North American
operating divisions to four. The new Western Division includes the Company's
operations in Canada and on the West Coast, which previously were part of the
Central Division. The new Southern Division includes the Company's operations
in Florida, Puerto Rico and Mexico, which previously were part of the Eastern
Division. These changes should enable the Company to more efficiently meet the
demands of future growth and support the Company's philosophy of decentralized
management.
The Company is a leader in the industry trend toward prearranged funeral
planning. The Company believes that extensive marketing of death care
prearrangements assures a backlog of future business and builds current and
future market share. The Company markets a complete range of death care
products and services on a prearranged basis through a staff of approximately
3,000 commission sales counselors. Prearranged plans are generally funded
through trust, escrow or insurance arrangements.
ACQUISITION STRATEGY
The Company's acquisition strategy is to expand in existing and new markets
by acquiring premier funeral homes and cemeteries that have the potential to
serve as a centerpiece for a group or cluster of other properties that may be
acquired subsequently in the same metropolitan area. From the Company's
initial public offering in October 1991 through May 20, 1997, it has acquired
295 funeral homes and 96 cemeteries and has entered 17 states, Puerto Rico and
five foreign countries.
The following table sets forth certain information with respect to the
Company's completed and pending acquisition activity.
<TABLE>
<CAPTION>
NUMBER OF AGGREGATE
FUNERAL HOMES PURCHASE PRICE
AND CEMETERIES (IN MILLIONS)
-------------- --------------
<S> <C> <C>
Properties owned at October 31, 1991........ 72 $ --
Acquisitions(1):
Fiscal year 1992.......................... 11 30.0
Fiscal year 1993.......................... 49 94.6
Fiscal year 1994.......................... 60 177.6
Fiscal year 1995.......................... 70 154.4
Fiscal year 1996.......................... 149 179.0
November 1, 1996--May 20, 1997............ 52 111.4
Pending acquisitions as of May 20, 1997... 24 32.5
</TABLE>
- --------
(1) Excludes funeral homes constructed by the Company.
----------------
The Company's acquisition strategy reflects a trend in the United States
death care industry of transition from small, family-owned firms to large,
professionally-managed, integrated, multiple-facility firms. Opportunities for
growth through the construction of new cemeteries and funeral homes are
limited because of a lack in many communities of available or reasonably
priced land with appropriate zoning and the existence of an adequate number of
funeral homes already serving a mature market. Accordingly, companies in the
death care industry can achieve significant growth only by increasing market
share through such means as acquisitions, extensive marketing of prearranged
products and services, and the development of combined operations.
In evaluating a potential acquisition, the Company also considers factors
such as the size of the community the property serves, the size and reputation
of the property in the community, the proximity of the property to other of
the Company's funeral homes or cemeteries, the opportunities for additional
acquisitions and growth in
11
<PAGE>
the community, and the potential for increasing the cemetery's profitability
through increasing prearranged marketing efforts. In keeping with the quality
of its existing properties, the Company is particularly careful about the
quality of the properties it seeks to acquire.
The Company believes that the consolidation trend that began in the United
States a number of years ago has now begun to evolve in other countries,
particularly in Europe, Canada, Australia, New Zealand and Mexico. The Company
has acquired a total of 149 funeral homes and cemeteries in Mexico, Australia,
New Zealand, Canada and Spain since it first entered foreign markets in the
fourth quarter of fiscal year 1994, and it believes that attractive expansion
opportunities exist in those and other foreign countries. During the first
half of fiscal year 1997, the Company entered the European market through the
acquisition of one of the largest independent funeral homes in Spain, and
expanded its presence in New Zealand and Australia with the acquisition of
another 12 funeral homes there. The Company will continue to explore expansion
opportunities in foreign countries, although it expects most of its expansion
to continue to occur domestically, with its primary focus on the midwestern
and western United States.
Because combined operations and individual funeral homes typically produce
higher profit margins and cash flow than individual cemetery operations, the
Company seeks primarily to acquire combined operations, premier cemeteries on
or adjacent to which it can build and operate a funeral home, or individual
funeral homes and cemeteries that form the basis for or strengthen a cluster
of death care facilities. Of the Company's 124 cemeteries, 52 are combined
operations.
OPERATIONS
Funeral Operations. The Company's funeral homes offer a complete range of
services to meet families' funeral needs, including prearrangement, family
consultation, the sale of caskets and related funeral products, the removal
and preparation of remains, the use of funeral home facilities for visitation
and worship, and transportation services. Most of the Company's funeral homes
have a non-denominational chapel on the premises, thereby permitting family
visitation and religious services to take place at one location, which reduces
transportation costs to the Company and inconvenience to the family.
In addition to traditional services, substantially all of the Company's
funeral homes offer cremation, which has become more common in the United
States in recent years. For the year ended October 31, 1996, cremations
accounted for approximately 21% of funeral services performed by the Company
in the United States. In Australia, New Zealand and Mexico, cremations
accounted for 63%, 71% and 46%, respectively, of funeral services performed by
the Company for the year ended October 31, 1996. In the fourth quarter of
fiscal year 1996, the Company entered two Canadian markets with the
acquisition of the Urgel Bourgie firm; historically, cremations have accounted
for approximately 50% of the funeral services performed by Urgel Bourgie. In
the second quarter of fiscal year 1997, the Company entered the European
market through the acquisition of one of the largest independent funeral homes
in Spain; historically, cremations have accounted for approximately 14% of the
funeral services performed by that funeral home. While cremations within the
United States often result in lower average revenue when compared to
traditional funeral services, they generally produce higher gross profit
margins than traditional funeral services. In the Company's foreign markets,
cremations generally produce revenues comparable to those of traditional
funeral services in those markets.
In addition to at-need sales, the Company markets funeral merchandise and
services as well as cemetery property and merchandise on a prearranged basis
through a staff of approximately 3,000 commission sales counselors.
Prearranged funeral plans enable families to establish in advance the type of
service to be performed, the products to be used and the cost of such products
and services in accordance with prices prevailing at the time the agreement is
signed rather than when the products and services are delivered. Prearranged
funeral plans permit families to eliminate the emotional strain of making death
care plans at the time of need. The Company believes that extensive marketing of
prearranged products and services produces a backlog of future business and
builds current and future market share. The Company sold 37,545 prearranged
funeral services during the fiscal year ended October 31, 1996 and 9,057 during
the first quarter of fiscal year 1997. At January 31, 1997, the Company had a
backlog of 296,014 prearranged funeral services expected to be delivered some
time in the future.
12
<PAGE>
Prearranged funeral plans generally are financed either through trust funds
or escrow accounts established by the Company, or through insurance. The
Company's selection of trust funds, escrow accounts or insurance depends
primarily on the regulatory requirements of each jurisdiction in which it
operates. In the case of trust- or escrow-funded plans, local law or contracts
with customers often require that all or a portion of the payments received by
the Company for prearranged funeral plans be placed in trust funds or escrow
accounts established by the Company. In certain jurisdictions where trust or
escrow arrangements are neither statutorily nor contractually required, the
Company typically deposits on a voluntary basis a portion of the payments
received into escrow accounts to fund the future delivery of prearranged
funeral plans.
Prearranged funeral trust funds and escrow accounts, which amounted to
approximately $363.1 million at January 31, 1997, are designed to provide
funding for the future delivery of prearranged funeral services sold by the
Company. When a prearranged funeral is funded through a trust fund or escrow
account, generally a percentage of the sale price, which is often paid in
installments, is retained by the Company to defray costs related to the sale,
and the remainder is placed in a trust fund or escrow account. The percentage
of the sale price placed in trust funds or in escrow accounts varies among the
different jurisdictions in which the Company operates.
The Company does not recognize revenue from the sale of prearranged funeral
services until delivery. The Company does not recognize revenue from sales of
prearranged funeral merchandise until delivery in jurisdictions where such
sales are revocable by the customer; where such sales are not revocable,
revenue is recognized currently. The Company recognizes as revenue on a
current basis all dividends and interest earned, and net capital gains
realized, by all prearranged funeral trust funds and escrow accounts except in
those jurisdictions where earnings revert to the customer if a prearranged
funeral service contract is canceled. Principal and earnings are withdrawn
only as funeral services are delivered or contracts are canceled, except in
jurisdictions that permit earnings to be withdrawn currently and in
unregulated jurisdictions where escrow accounts are used.
Funeral operations accounted for approximately 52% of the Company's revenues
during the fiscal year ended October 31, 1996 and 56% during the three months
ended January 31, 1997.
Cemetery Operations. The Company's cemetery operations involve the sale of
cemetery property and related cemetery merchandise, which includes lots, lawn
crypts, family and community mausoleums, monuments, memorials and burial
vaults, and interment services. Cemetery property and merchandise sales are
made at the time of need or on a prearranged basis. Prearranged sales
generally are financed by the Company through installment sale contracts, the
terms of which generally range from one to seven years. Prearranged sales
represented approximately 61% of cemetery revenue during the fiscal year ended
October 31, 1996.
Prearranged cemetery merchandise trust funds and escrow accounts, which
amounted to approximately $119.2 million at January 31, 1997, are designed to
provide funding for the future delivery of the prearranged merchandise sold by
the Company and are established in most of the jurisdictions in which the
Company operates. In certain jurisdictions, local law or contracts with
customers generally require that a portion of the sale price received be
placed in trust funds or escrow accounts; however, in other jurisdictions
where trust or escrow arrangements are neither statutorily nor contractually
required, the Company typically makes deposits on a voluntary basis into
escrow accounts. The Company recognizes as revenue on a current basis all
dividends and interest earned, and net capital gains realized, by prearranged
merchandise trust funds or escrow accounts. At the same time, the liability
for the estimated cost to deliver merchandise is adjusted through a charge to
earnings to reflect inflationary merchandise cost increases. The principal and
earnings are withdrawn only as the merchandise is delivered or contracts are
canceled.
13
<PAGE>
The Company also provides maintenance of cemetery grounds pursuant to
perpetual care contracts and laws, or on a voluntary basis where trust or
escrow arrangements are neither contractually nor statutorily required, by
placing a portion, generally 10%, of the proceeds from cemetery property sales
into perpetual care trust funds or escrow accounts. The income from these
funds, which have been established in most jurisdictions in which the Company
operates cemeteries, is used for maintenance of those cemeteries, but
principal, including in some jurisdictions net realized capital gains,
generally must be held in perpetuity. The Company recognizes and withdraws
currently all dividend and interest income earned and, where permitted, net
capital gains realized by perpetual care funds. Perpetual care trust funds and
escrow accounts amounted to $147.9 million at January 31, 1997.
Cemetery operations accounted for 48% of the Company's revenues during the
fiscal year ended October 31, 1996 and 44% during the three months ended
January 31, 1997.
Combined Funeral and Cemetery Operations. Of the Company's 124 cemeteries,
52 are combined operations, including eight developed by the Company from
October 1991 through May 1997 through the construction of funeral homes on the
grounds of Company-owned cemeteries. Many of these facilities are in the
Company's key markets, including New Orleans, Louisiana; Dallas, Fort Worth
and Houston, Texas; Miami, Orlando, Tampa and St. Petersburg, Florida;
Nashville and Knoxville, Tennessee; Mobile, Alabama; Baltimore, Maryland;
Philadelphia, Pennsylvania; Portland, Oregon; Los Angeles and San Francisco,
California; Santa Fe, New Mexico; and Washington, D.C.
The Company began to develop and acquire combined facilities in 1979 because
it believed that the operation of such facilities would permit it to increase
market share through the delivery of better and more convenient services at
competitive prices. Although profit margins of cemetery operations typically
are lower than those of funeral homes, the Company's experience with combined
operations has demonstrated that the combination of a cemetery with a funeral
home can increase significantly the market share of the cemetery and funeral
home, thereby increasing the overall profitability of both. The enhanced
purchasing power, more sophisticated management systems and sharing of
facilities, personnel and equipment made possible by integration and combined
facilities results in lower average operating costs to the Company and allows
the Company to offer families the convenience of complete funeral home and
cemetery planning and services from a single supplier at a competitive price.
Foreign Operations. Since the Company first entered foreign markets in the
fourth quarter of fiscal year 1994, the Company has acquired a total of 149
funeral homes and cemeteries in Mexico, Australia, New Zealand, Canada and
Spain. The Company's foreign operations generated approximately 10% of total
revenues during the year ended October 31, 1996 and 14% during the first
quarter of fiscal year 1997. In addition, foreign operations accounted for
approximately 34% of the Company's funeral homes and cemetery locations and
approximately 18% of consolidated total assets as of October 31, 1996. See
Note 13 to the consolidated financial statements included in Item 8 of the
Company's Form 10-K for the year ended October 31, 1996.
In addition to the risks generally associated with foreign operations,
fluctuations in the value of the foreign currency of the country in which the
Company operates relative to the U.S. dollar can affect the value, in U.S.
dollar terms, of the earnings derived from the foreign operations and can
result in foreign currency translation adjustments that affect the Company's
shareholders' equity or, in the case of operations in highly inflationary
economies, net earnings. Based on the three-year cumulative inflation rate in
Mexico as of October 31, 1996, the Company was required, during the first
quarter of fiscal year 1997, to change its method of reporting foreign
currency translation adjustments for its Mexican operations to the method
prescribed for highly inflationary economies. As a result, foreign currency
translation adjustments for the Company's Mexican operations for the first
quarter of fiscal year 1997 were reflected in results of operations, instead
of in shareholders' equity. Management does not expect this change to have a
material effect on the Company's results of operations for fiscal year 1997.
There can be no assurance that expansion into foreign markets will yield
results comparable to those realized as a result of the Company's expansion in
the United States.
14
<PAGE>
FORWARD-LOOKING STATEMENTS
Certain statements made herein 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. The Company's actual
results could differ materially due to several important factors including the
following: the Company's ability to sustain recent levels of acquisition
activity and enter new markets; the economy, death rate and competition in the
Company's markets; financial market conditions, including stock and bond
prices and interest rates; the Company's ability to achieve economies of scale
and manage growth; and the performance of acquired businesses. Such factors,
and others, are more fully described in Item 5 of the Company's Form 10-Q for
the quarter ended January 31, 1997.
SELLING SHAREHOLDER
Of the 4,750,000 shares of Class A Common Stock offered hereby, 4,250,000
are being sold by the Company and 500,000 shares are being sold by Frank B.
Stewart, Jr., the Chairman of the Board of the Company. At May 21, 1997, Mr.
Stewart beneficially owned 4,372,148 shares of Class A Common Stock, or
approximately 10.8% of the Class A Common Stock outstanding, and after
completion of the offering, Mr. Stewart will own 3,872,148 shares of Class A
Common Stock, or approximately 8.7% of the Class A Common Stock outstanding.
Additionally, Mr. Stewart owns all of the 1,777,510 shares of Class B Common
Stock outstanding and will continue to own such shares after completion of the
offering. By virtue of his ownership of Class A and Class B Common Stock, at
May 21, 1997, Mr. Stewart held approximately 38.0% of the total voting power
of the Company. Mr. Stewart will continue to hold approximately 34.6% of such
voting power after completion of this offering.
15
<PAGE>
UNDERWRITING
The Underwriters of the offering of the Class A Common Stock (the
"Underwriters"), for whom Bear, Stearns & Co. Inc., Goldman, Sachs & Co., ABN
AMRO Chicago Corporation, and Johnson Rice & Company L.L.C. are acting as
representatives (collectively, the "Representatives"), have severally agreed,
subject to the terms and conditions of the Underwriting Agreement, to purchase
from the Company the number of shares of Class A Common Stock set forth
opposite their respective names below:
<TABLE>
<CAPTION>
NUMBER
UNDERWRITER OF SHARES
----------- ---------
<S> <C>
Bear, Stearns & Co. Inc.........................................
Goldman, Sachs & Co.............................................
ABN AMRO Chicago Corporation....................................
Johnson Rice & Company L.L.C....................................
---------
Total......................................................... 4,750,000
=========
</TABLE>
The Underwriting Agreement provides that the obligations of the Underwriters
are subject to certain conditions precedent and that, if any of the foregoing
shares of Class A Common Stock are purchased by the Underwriters pursuant to
the Underwriting Agreement, all such shares must be so purchased. The Company
and the Selling Shareholder have agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act, or to
contribute to payments that the Underwriters may be required to make in respect
thereof.
The Company has been advised that the Underwriters propose to offer the
shares of Class A Common Stock to the public initially at the public offering
price set forth on the cover page of this Prospectus and to certain selected
dealers (who may include the Underwriters) at such public offering price less a
concession not to exceed $ per share. The selected dealers may reallow a
concession to certain other dealers not to exceed $ per share. After the
initial offering to the public, the public offering price, the concession to
selected dealers and the reallowance to other dealers may be changed by the
Representatives.
The Company has granted to the Underwriters an option to purchase up to
712,500 additional shares of Class A Common Stock at the public offering price
less the underwriting discounts and commissions set forth on the cover page of
this Prospectus, solely for the purpose of covering over-allotments, if any.
Such option may be exercised at any time until 30 days after the date of this
Prospectus. To the extent that the Underwriters exercise such option, each of
the Underwriters will be committed, subject to certain conditions, to purchase
a number of additional shares proportionate to such Underwriter's initial
commitment as indicated in the preceding table.
In order to facilitate the offering, certain persons participating in the
offering may engage in transactions that stabilize, maintain or otherwise
affect the price of the Class A Common Stock during and after the offering.
Specifically, the Underwriters may over-allot or otherwise create a short
position in the Class A Common Stock for their own account by selling more
shares of Class A Common Stock than have been sold to them by the Company and
the Selling Shareholder. The Underwriters may elect to cover any such short
position by purchasing shares of Class A Common Stock in the open market or by
exercising the over-allotment option granted to the Underwriters by the
Company. In addition, such persons may stabilize or maintain the price of the
Class A Common Stock by bidding for or purchasing shares of Class A Common
Stock in the open market and may impose penalty bids, under which selling
concessions allowed to syndicate members or other broker-dealers participating
in the offering are reclaimed, if shares of Class A Common Stock previously
distributed in the
16
<PAGE>
offering are repurchased in connection with stabilization transactions or
otherwise. The effect of these transactions may be to stabilize or maintain
the market price of the Class A Common Stock at a level above that which might
otherwise prevail in the open market. The imposition of a penalty bid may also
affect the price of the Class A Common Stock to the extent that it discourages
resales thereof. No representation is made as to the magnitude or effect of
any such stabilization or other transactions. Such transactions may be
effected on the Nasdaq National Market or otherwise and, if commenced, may be
discontinued at any time.
The Representatives have advised the Company and the Selling Shareholder
that each of the Representatives currently acts as a market maker for the
Class A Common Stock and currently intends to continue to act as a market
maker following this offering. Since the average daily trading volume of the
Class A Common Stock exceeds $1 million and the Company's public float exceeds
$150 million, the provisions of Regulation M permit such Representatives to
continue market making activities during the period of the offering. However,
the Representatives are not obligated to do so and may discontinue any market
making at any time.
In connection with the offering, the Company and its directors and executive
officers, beneficially owning in the aggregate approximately 14.8% of the
Class A Common Stock and 100% of the Class B Common Stock, have agreed that
they will not sell, contract to sell or otherwise dispose of any shares of
capital stock of the Company for a period of 90 days after the date of this
Prospectus without the prior written consent of the Underwriters, except for
the shares offered hereby, issuances or sales by the Company upon the exercise
of outstanding stock options, grants of employee stock options, or issuances
or sales by the Company in connection with acquisitions.
Michael O. Read, a director of the Company, is a brother-in-law of a partner
of Johnson Rice & Company L.L.C., one of the Underwriters. Johnson Rice &
Company L.L.C. will be paid a portion of the underwriting discounts and
commissions in connection with this offering. Certain of the Underwriters have
engaged in transactions with and performed various investment banking and
other services for the Company in the past, and may do so from time to time in
the future.
ABN AMRO Chicago Corporation is an affiliate of ABN AMRO Bank, N.V. ("ABN
AMRO"), which is a lender to the Company under the $600 million revolving line
of credit. ABN AMRO will receive its proportionate share of any repayment by
the Company of amounts outstanding under such line of credit from the proceeds
of the offering of the Class A Common Stock offered hereby by the Company. In
addition, ABN AMRO or its affiliates participate from time to time in various
general financing and banking transactions for the Company and its affiliates.
LEGAL MATTERS
The validity of the Class A Common Stock offered hereby will be passed upon
for the Company by Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P., New Orleans, Louisiana. Certain legal matters in connection with this
offering will be passed upon for the Underwriters by Jenkens & Gilchrist, a
Professional Corporation, Dallas, Texas.
INDEPENDENT ACCOUNTANTS
The audited consolidated financial statements and financial statement
schedule of the Company incorporated by reference in this Registration
Statement have been audited by Coopers & Lybrand L.L.P., independent
accountants, as stated in their reports with respect thereto, and are
incorporated by reference herein in reliance upon the authority of such firm
as experts in accounting and auditing.
17
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, THE SELLING SHARE-
HOLDER OR ANY OF THE UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE SHARES BY ANYONE IN ANY JURIS-
DICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE
PERSON MAKING THE OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. UNDER NO CIR-
CUMSTANCES SHALL THE DELIVERY OF THIS PROSPECTUS OR ANY SALE MADE PURSUANT TO
THIS PROSPECTUS CREATE ANY IMPLICATION THAT INFORMATION CONTAINED IN THIS PRO-
SPECTUS IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF THIS PROSPECTUS.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 2
Documents Incorporated by Reference........................................ 2
Prospectus Summary......................................................... 3
Use of Proceeds............................................................ 7
Price Range of Common Stock and Dividend Policy............................ 8
Capitalization............................................................. 9
Business................................................................... 10
Selling Shareholder........................................................ 15
Underwriting............................................................... 16
Legal Matters.............................................................. 17
Independent Accountants.................................................... 17
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
4,750,000 SHARES
LOGO
[LOGO OF STEWART ENTERPRISES APPEARS HERE]
STEWART
ENTERPRISES,
INC.
CLASS A
COMMON STOCK
---------------
PROSPECTUS
---------------
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
ABN AMRO CHICAGO CORPORATION
JOHNSON RICE & COMPANY L.L.C.
June , 1997
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated fees and expenses payable by the Company and the Selling
Shareholder in connection with the issuance and distribution of the Class A
Common Stock registered hereunder are as follows:
<TABLE>
<S> <C>
Registration Fee................................................ $ 60,729
Nasdaq Listing Fee.............................................. 17,500
Printing and Engraving.......................................... 25,000
Legal Fees and Expenses......................................... 100,000
Accounting Fees and Expenses.................................... 45,000
Blue Sky Fees and Expenses...................................... 5,000
Transfer Agent.................................................. 1,500
Miscellaneous................................................... 20,271
--------
Total......................................................... $275,000
========
</TABLE>
The Selling Shareholder will pay approximately $5,559 of the total estimated
expenses.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 83 of the Louisiana Business Corporation Law gives Louisiana
corporations broad powers to indemnify their present and former directors and
officers and those of affiliated corporations against expenses incurred in the
defense of any lawsuit to which they are made parties by reason of being or
having been such directors or officers; subject to specific conditions and
exclusions gives a director or officer who successfully defends an action the
right to be so indemnified; and authorizes Louisiana corporations to buy
directors' and officers' liability insurance. Such indemnification is not
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, authorization of shareholders or otherwise.
The Company's By-laws make mandatory the indemnification of directors and
officers permitted by the Louisiana Business Corporation Law. The standard to
be applied in evaluating any claim for indemnification (excluding claims for
expenses incurred in connection with the successful defense of any proceeding
or matter therein for which indemnification is mandatory without reference to
any such standard) is whether the claimant acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
corporation. With respect to any criminal action or proceeding, the standard
is that the claimant had no reasonable cause to believe the conduct was
unlawful. No indemnification is permitted in respect of any claim, issue or
matter as to which a director or officer shall have been adjudged by a court
of competent jurisdiction to be liable for willful or intentional misconduct
or to have obtained an improper personal benefit, unless, and only to the
extent that the court shall determine upon application that, in view of all
the circumstances of the case, he is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
The Company has in effect a directors' and officers' liability insurance
policy that provides for indemnification of its officers and directors against
losses arising from claims asserted against them in their capacities as
officers and directors, subject to limitations and conditions set forth in
such policy.
The Company has entered into indemnity agreements with each of its directors
and executive officers, pursuant to which the Company has agreed under certain
circumstances to purchase and maintain directors' and officers' liability
insurance, unless such insurance is not reasonably available or, in the
reasonable judgment of the Board of Directors, there is insufficient benefit
to the Company from such insurance. The agreements also provide that the
Company will indemnify each director and executive officer against any costs
and expenses, judgments, settlements and fines incurred in connection with any
claim involving him by reason of his position as director or officer that are
in excess of the coverage provided by any such insurance, provided that he
meets certain standards of conduct.
II-1
<PAGE>
The Underwriters have also agreed to indemnify the directors and certain of
the Company's officers against certain liabilities under the Securities Act of
1933, as amended, or to contribute to payments that such directors and
officers may be required to make in respect thereof.
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
1 --Form of Underwriting Agreement.
4.1 --Specimen of Class A Common Stock certificate (incorporated by
reference to Exhibit 4.2 to Amendment No. 3 to the Company's
Registration Statement on Form S-1 (Registration No. 33-42336) filed
with the Commission on October 7, 1991).
4.2 --Credit Agreement by and among the Company, its subsidiaries and
Citicorp USA, Inc., Bank of America Illinois, and NationsBank of Texas,
N.A. dated April 14, 1997.
5 --Opinion of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P.
23.1 --Consent of Coopers & Lybrand L.L.P.
23.2 --Consent of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P. (included in Exhibit 5).
24 --Power of Attorney (included in the signature pages to this
Registration Statement).
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New Orleans, State of Louisiana, on May 20, 1997.
STEWART ENTERPRISES, INC.
By: /s/ Joseph P. Henican, III
__________________________________
Joseph P. Henican, III
Chief Executive Officer and
Vice Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints Frank B. Stewart, Jr., Joseph P.
Henican, III, William E. Rowe and Ronald H. Patron, or any one of them, his
true and lawful attorney-in-fact and agent, with full power of substitution,
for him and in his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement, including any registration statement relating to the
same offering filed pursuant to Rule 462(b) under the Securities Act of 1933,
and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Frank B. Stewart, Jr. Chairman of the Board May 20, 1997
____________________________________
Frank B. Stewart, Jr.
/s/ Joseph P. Henican, III Chief Executive Officer and May 20, 1997
____________________________________ Vice Chairman of the Board
Joseph P. Henican, III (Principal Executive
Officer)
/s/ William E. Rowe President, Chief Operating May 20, 1997
____________________________________ Officer and Director
William E. Rowe
/s/ Ronald H. Patron Chief Financial Officer, May 20, 1997
____________________________________ President--Corporate
Ronald H. Patron Division, Executive Vice
President and Director
(Principal Financial
Officer)
/s/ Kenneth C. Budde Senior Vice President-- May 20, 1997
____________________________________ Finance, Secretary and
Kenneth C. Budde Treasurer (Principal
Accounting Officer)
</TABLE>
S-1
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Darwin C. Fenner Director May 20, 1997
____________________________________
Darwin C. Fenner
Director May , 1997
____________________________________
John P. Laborde
Director May , 1997
____________________________________
James W. McFarland
/s/ Michael O. Read Director May 20, 1997
____________________________________
Michael O. Read
</TABLE>
S-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
1 --Form of Underwriting Agreement.
4.1 --Specimen of Class A Common Stock certificate (incorporated by
reference to Exhibit 4.2 to Amendment No. 3 to the Company's
Registration Statement on Form S-1 (Registration No. 33-42336)
filed with the Commission on October 7, 1991).
4.2 --Credit Agreement by and among the Company, its subsidiaries and
Citicorp USA, Inc., Bank of America Illinois, and NationsBank of
Texas, N.A. dated April 14, 1997.
5 --Opinion of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P.
23.1 --Consent of Coopers & Lybrand L.L.P.
23.2 --Consent of Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P. (included in Exhibit 5).
24 --Power of Attorney (included in the signature pages to this
Registration Statement).
</TABLE>
<PAGE>
EXHIBIT 1.1
4,750,000 Shares of Class A Common Stock
STEWART ENTERPRISES, INC.
UNDERWRITING AGREEMENT
----------------------
June __, 1997
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
ABN AMRO CHICAGO CORPORATION
JOHNSON RICE & COMPANY L.L.C.
As Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Dear Sirs:
Stewart Enterprises, Inc., a Louisiana corporation (the "Company"),
proposes to issue and sell to the Underwriters named in SCHEDULE I hereto (the
"Underwriters") 4,250,000 shares of Class A Common Stock, no par value per
share, of the Company (the "Class A Common Stock") and Frank B. Stewart, Jr.
(the "Selling Shareholder"), proposes to sell to the Underwriters an additional
500,000 shares of Class A Common Stock, which aggregate of 4,750,000 shares of
Class A Common Stock is herein referred to as the "Firm Shares." In addition,
for the sole purpose of covering over-allotments in connection with the sale of
the Firm Shares, the Company proposes to issue and sell to the Underwriters, at
the option of the Underwriters, up to an additional 712,500 shares of Class A
Common Stock (the "Additional Shares"). The Firm Shares and any Additional
Shares purchased by the Underwriters are herein referred to as the "Shares."
The Shares are more fully described in the Registration Statement referred to
below.
I. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SHAREHOLDER.
A. The Company represents and warrants to, and agrees with, the
several Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, and may have filed an
amendment or amendments thereto, on Form S-3 (No. 333-______), for the
registration of the Shares under the Securities Act of 1933, as amended
(the "Act"). The Company will not, without your prior consent, file any
other amendment thereto or make any change in the form of final prospectus
included therein prior to the time it is first filed pursuant to Rule
424(b) of the General Rules and Regulations of the Commission under the Act
(the "Regulations"). Such registration statement, including the prospectus,
financial statements, schedules, exhibits and all other documents filed as
a part thereof, as amended, when it shall become effective, is herein
called the "Registration Statement" and shall include information with
respect to the Shares and the offering permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A or
Rule 434 of the Regulations; and the prospectus, in the form
<PAGE>
included as part of the Registration Statement, or, if different, in the
form first filed with the Commission pursuant to Rule 424(b) of the
Regulations, is herein called the "Prospectus." The term "preliminary
prospectus" as used herein means each prospectus included in the
Registration Statement or any amendments thereto, before it became
effective under the Act and any prospectus filed with the Commission
pursuant to Rule 424(a) of the Regulations. Any reference herein to the
Registration Statement, any preliminary prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3, which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the effective date of the Registration Statement, the date of such
preliminary prospectus or the date of the Prospectus, as the case may be,
and any reference herein to the terms "amend", "amendment", or "supplement"
with respect to the Registration Statement, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include (i) the filing of
any document under the Exchange Act after the effective date of the
Registration Statement, the date of such preliminary prospectus or the date
of the Prospectus, as the case may be, which is incorporated therein by
reference and (ii) any such document so filed.
(b) When the Registration Statement shall become effective, when any
amendment to the Registration Statement becomes effective, when the
Prospectus is first filed with the Commission pursuant to Rule 424(b) of
the Regulations, when any supplement to or amendment of the Prospectus is
filed with the Commission, when any document filed under the Exchange Act
is filed, and at all times subsequent thereto and including the Closing
Date and the Additional Closing Date, if any (as hereinafter respectively
defined), and during such longer period as the Prospectus may be required
to be delivered in connection with sales by the Underwriters or a dealer,
the Registration Statement and the Prospectus and any amendments thereof
and supplements thereto complied or will comply in all material respects
with the applicable provisions of the Act and the Exchange Act and the
respective rules and regulations thereunder and will contain all statements
that are required to be stated therein in accordance with the Act and the
Regulations, and does not or will not contain an untrue statement of a
material fact and will not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and no event will have occurred that should have been set forth
in an amendment or supplement to the Registration Statement or Prospectus
that has not then been set forth in such an amendment or supplement. When
any related preliminary prospectus was first filed with the Commission
(whether filed as part of the registration statement for the registration
of the Shares or any amendment thereto or pursuant to Rule 424(a) of the
Regulations) and when any amendment thereof or supplement thereto was first
filed with the Commission, such preliminary prospectus and any amendments
thereof and supplements thereto complied in all material respects with the
applicable provisions of the Act and the Exchange Act and the respective
rules and regulations thereunder and did not contain an untrue statement of
a material fact and did not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. No representation and warranty is made in this subsection (b),
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related preliminary
prospectus or any amendment thereof or supplement thereto in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through you as herein stated, or by or on
behalf of the Selling Shareholder insofar as it relates to such Selling
Shareholder, in each case expressly for use in connection with the
preparation thereof. The documents incorporated by reference in the
Registration Statement and the Prospectus, when they were first filed with
the Commission, complied in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of the
Commission thereunder.
(c) Neither the Commission nor the Blue Sky or securities authority
of any jurisdiction has issued a stop order suspending the effectiveness of
the Registration Statement, preventing or suspending the use of any
preliminary prospectus, the Prospectus, the Registration Statement, or any
amendment or supplement thereto, refusing to permit the effectiveness of
the Registration Statement, or suspending the registration or qualification
of the Shares, nor, to the knowledge of the Company, has any of such
authorities instituted or threatened to institute any proceedings with
respect to a stop order.
(d) To the best knowledge of the Company, Coopers & Lybrand L.L.P.,
who have certified the financial statements and supporting schedules, if
any, included in the Registration Statement or incorporated by reference,
are independent public accountants with regard to the Company as required
by the Act and the Regulations.
-2-
<PAGE>
(e) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth
in the Registration Statement and the Prospectus, there has not been any
material adverse change or any development involving a material adverse
change, in the business, properties, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a
whole, whether or not arising from transactions in the ordinary course of
business, and since the date of the latest balance sheet presented or
incorporated by reference in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has incurred or undertaken
any liabilities or obligations, direct or contingent, which are material to
the Company and its subsidiaries taken as a whole, except for liabilities
or obligations that were incurred or undertaken in the ordinary course of
business or are reflected in the Registration Statement and the Prospectus.
(f) The Company has all necessary corporate power and authority to
execute and deliver this Agreement and perform its obligations hereunder;
this Agreement and the transactions contemplated herein have been duly and
validly authorized, executed and delivered by the Company and is a valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that rights to indemnity
hereunder may be limited by federal or state securities laws or the public
policy underlying such laws and except to the extent that enforcement may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and subject to general principles of
equity.
(g) The execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated hereby will not (i)
conflict with or result in a breach of any of the terms and provisions of,
or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) or require consent under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries, pursuant to
the terms of any agreement, instrument, franchise, license or permit to
which the Company or any of its subsidiaries is a party or by which any of
such corporations or their respective properties or assets may be bound, or
(ii) violate or conflict with any provision of the Articles of
Incorporation or Bylaws of the Company or any of its subsidiaries or any
judgment, decree, order, statute, rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their respective
properties or assets. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any court
or any public, governmental or regulatory agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets is required for the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, including the issuance, sale and delivery of the
Shares to be issued, sold and delivered by the Company hereunder, except
the registration under the Act of the Shares and such consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses
and permits as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
(h) All of the outstanding shares of capital stock of the Company are
duly and validly authorized and issued, are fully paid and nonassessable
and were not issued in violation of or subject to any preemptive rights.
The Company had, at January 31, 1997, an authorized and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus. The Shares to be sold by the Company, when delivered and sold
in accordance with this Agreement will be duly and validly issued and
outstanding, fully paid and nonassessable, and will not have been issued in
violation of or subject to any preemptive rights. None of such Shares when
delivered will be subject to any lien, claim, encumbrance, restriction or
any other claim of any third party. The Class A Common Stock, the Firm
Shares and the Additional Shares conform to the descriptions thereof
contained or incorporated by reference in the Registration Statement and
the Prospectus.
(i) Each of the Company and its subsidiaries has been duly organized
and is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation. Each of the Company and its subsidiaries
is duly qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its properties (owned,
leased or licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified or in
good standing which will not in the aggregate have a material adverse
effect on the business, properties, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a
whole. Each of the Company and its subsidiaries has all requisite power and
authority, and all necessary consents, approvals, authorizations, orders,
registrations,
-3-
<PAGE>
qualifications, licenses and permits of and from any public, regulatory or
governmental agencies and bodies, to own, lease and operate its properties
and conduct its business as now being conducted and as described in the
Registration Statement and the Prospectus, and no such consent, approval,
authorization, order, registration, qualification, license or permit
contains a materially burdensome restriction not adequately disclosed in
the Registration Statement and the Prospectus.
(j) Neither the Company nor any of its subsidiaries (i) is in
violation of its corporate charter or bylaws, (ii) is in default under any
lease, license, indenture, mortgage, deed of trust, note, bank loan or
other evidence of indebtedness or any other agreement, understanding or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary or any property of the Company or
any of such subsidiary may be bound or affected, which default may have a
material adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and its subsidiaries
taken as a whole, or (iii) is in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may be subject
and has not failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of
its property or to the conduct of its business, which violation or failure
may have a material adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company and its
subsidiaries taken as a whole.
(k) Except as described in the Registration Statement and the
Prospectus, and any documents incorporated by reference therein (including
the notes to the financial statements included or incorporated by reference
therein), there are no outstanding warrants or options to purchase any
shares of the capital stock of the Company and there are no preemptive or
other rights to subscribe for or to purchase, and no restrictions upon, any
Class A Common Stock pursuant to the Company's Articles of Incorporation or
Bylaws or any agreement or other instrument to which the Company is a party
or by which it is bound.
(l) There is no litigation or proceeding pending or, to the knowledge
of the Company and the Selling Shareholder, threatened, before or by any
court or government agency, authority or body, or any arbitrator against
the Company or any of its subsidiaries that (i) may have a material adverse
effect on the business, properties, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a
whole, or (ii) is required to be disclosed in the Registration Statement or
the Prospectus and is not so disclosed and adequately summarized therein.
(m) The financial statements (including the related notes and
supporting schedules) included in the Registration Statement and the
preliminary prospectus or the Prospectus, or incorporated by reference
therein, present fairly in accordance with generally accepted accounting
principles the financial condition and results of operations of the
entities purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved.
(n) No relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries, on the one hand, and the directors,
officers or shareholders of the Company or any of its subsidiaries, on the
other hand, which is required by the Act or by the Regulations to be
described in the Registration Statement and the Prospectus that is not so
described or is not adequately described.
(o) There are no contracts or other documents that are required to be
filed as exhibits to the Registration Statement by the Act or by the
Regulations that have not been filed as exhibits to the Registration
Statement, or that are required to be summarized in the Prospectus that are
not so summarized or are not adequately summarized.
(p) No person has the right to request or require the Company or any
of its subsidiaries to register any capital stock for offering and sale
under the Act whether by reason of the filing of the Registration Statement
with the Commission or the issue and sale of the Shares or otherwise.
(q) The Company has not taken and shall not take, directly or
indirectly, any action designed to cause or result in, or that has
constituted or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of Class A Common
Stock to facilitate the sale or resale of the Shares.
-4-
<PAGE>
(r) The Class A Common Stock is quoted on the Nasdaq National Market.
(s) The Company is not, and upon consummation of the transactions
contemplated hereby will not be, subject to registration as an "investment
company" under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(t) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
B. The Selling Shareholder represents and warrants to, and agrees
with, the several Underwriters that:
(a) The execution, delivery and performance of this Agreement by the
Selling Shareholder and the consummation of the transactions contemplated
hereby will not (i) conflict with or result in the breach of any of the
terms and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) or require
consent under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Selling Shareholder
pursuant to the terms of any agreement, instrument, franchise, license or
permit to which the Selling Shareholder is a party or by which the Selling
Shareholder or any of the Selling Shareholder's property or assets may be
bound, or (ii) violate or conflict with any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the Selling Shareholder
or the Selling Shareholder's property or assets.
(b) The Selling Shareholder has, and at the time of delivery of the
Shares to be sold by the Selling Shareholder the Selling Shareholder will
have, full legal right, power, authority and capacity, and, except as
required under the Act and state securities and Blue Sky laws, all
necessary consents, approvals, authorizations, orders, registrations,
filings, qualifications, licenses and permits of and from all public,
regulatory or governmental agencies and bodies, as are required for the
execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby, including the sale, assignment,
transfer and delivery of the Shares to be sold, assigned, transferred and
delivered by the Selling Shareholder hereunder.
(c) This Agreement has been duly and validly authorized, executed and
delivered by the Selling Shareholder and is a valid and binding obligation
of the Selling Shareholder, enforceable against the Selling Shareholder in
accordance with its terms, except to the extent that rights to indemnity
hereunder may be limited by applicable federal or state securities laws or
the public policy underlying such laws and except to the extent that
enforcement may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally and subject to general
principles of equity.
(d) The Selling Shareholder has good, valid and marketable title to
the Shares to be sold by the Selling Shareholder pursuant to this
Agreement, free and clear of all liens, encumbrances, claims, security
interests, restrictions on transfer, shareholders' agreements, voting
trusts and other defects in title whatsoever, with full power to deliver
such Shares hereunder, and, upon the delivery of and payment for such
Shares as herein contemplated, each of the Underwriters will receive good,
valid and marketable title to the Shares purchased by it from the Selling
Shareholder, free and clear of all liens, encumbrances, claims, security
interests, restrictions on transfer, shareholders' agreements, voting
trusts and other defects in title whatsoever.
(e) The Selling Shareholder has not taken and shall not take,
directly or indirectly, any action designed to cause or result in, or that
might reasonably be expected to constitute the stabilization or
manipulation of the price of the shares of Class A Common Stock to
facilitate the sale or resale of the Shares.
(f) When the Registration Statement shall become effective, when any
amendment to the Registration Statement becomes effective, when the
Prospectus is first filed with the Commission pursuant to Rule 424(b) of
the Regulations, when any amendment of or supplement to the Prospectus is
filed with the Commission and at all times subsequent thereto and including
the Closing Date, and during such longer periods as the Prospectus may be
required to be delivered in connection with sales by the Underwriter or a
dealer, such parts of the Registration Statement and the Prospectus and any
amendments thereof and supplements thereto as
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relate to the Selling Shareholder and are based upon information furnished
in writing to the Company by or on behalf of the Selling Shareholder
expressly for use therein will not contain an untrue statement of a
material fact and will not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and no event will have occurred that should have been set forth
in an amendment or supplement to the Registration Statement or Prospectus
that has not then been set forth in such an amendment or supplement; and
when any related preliminary prospectus was first filed with the Commission
(whether filed as part of the registration statement for the registration
of the Shares or any amendment thereto or pursuant to Rule 424(a) of the
Regulations) and when any amendment thereof or supplement thereto was first
filed with the Commission, such parts of such preliminary prospectus and
any amendments thereof and supplements thereto as relate to the Selling
Shareholder and are based on information furnished in writing to the
Company by or on behalf of the Selling Shareholder expressly for use
therein did not contain an untrue statement of a material fact and did not
omit to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(g) The information pertaining to such Selling Shareholder under the
caption "Selling Shareholder" in the Prospectus is complete and accurate.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein
set forth, the Company hereby agrees to sell 4,250,000 of the Firm Shares,
and the Selling Shareholder hereby agrees to sell 500,000 of the Firm
Shares, to the several Underwriters, and each Underwriter, severally and
not jointly, agrees to purchase the number of shares of the Firm Shares set
opposite that Underwriter's name in SCHEDULE I hereto, at $_____ per share.
Each Underwriter shall be obligated to purchase from the Company, and the
Selling Shareholder, that number of the Firm Shares which represents the
same proportion of the number of the Firm Shares to be sold by the Company
as the number of shares of the Firm Shares set forth opposite the name of
such Underwriter in SCHEDULE I represents of the total number of shares of
the Firm Shares to be purchased by all of the Underwriters pursuant to this
Agreement. The respective purchase obligations of the Underwriters with
respect to the Firm Shares shall be rounded among the Underwriters to avoid
fractional shares, as the Representatives may determine.
Delivery of certificates, and payment of the purchase price, for the
Firm Shares shall be made at the offices of Bear, Stearns & Co. Inc., 245
Park Avenue, New York, New York 10167, or such other location as may be
mutually acceptable. Such delivery and payment shall be made at 10:00
a.m., New York time, on the third or fourth business day (as permitted
under Rule 15c6-1 of the Exchange Act) following the determination of the
initial public offering price pursuant to this SECTION 2 (unless such time
and date are postponed in accordance with the provisions of SECTION 9
hereof), or at such other time as shall be agreed upon by you, the Selling
Shareholder and the Company. The time and date of such delivery and
payment are herein called the "Closing Date." Delivery of the certificates
for the Firm Shares shall be made to you for the respective accounts of the
several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price for the Firm Shares to the order
of the Company and the Selling Shareholder by certified or official bank
checks payable in New York Clearing House next-day funds.
Certificates for the Firm Shares shall be registered in such name or
names and in such authorized denominations as you may request in writing at
least two full business days prior to the Closing Date. The Company and
the Selling Shareholder will permit you to examine and package such
certificates for delivery at least one full business day prior to the
Closing Date.
(b) In addition, the Company hereby grants to the several
Underwriters the option to purchase up to 712,500 Additional Shares at the
same purchase price per share to be paid by the several Underwriters to the
Company for the Firm Shares as set forth in this SECTION 2, for the sole
purpose of covering over-allotments in the sale of Firm Shares by the
several Underwriters. This option may be exercised at any time (but not
more than once), in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice by you to the
Company. Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised and the date and time, as
reasonably determined by you, when the Additional Shares are to be
delivered (such date and time being herein sometimes referred to as the
"Additional
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<PAGE>
Closing Date"); provided, however, that the Additional Closing Date shall
not be earlier than the Closing Date or earlier than the second full
business day after the date on which the option shall have been exercised
nor later than the eighth full business day after the date on which the
option shall have been exercised (unless such time and date are postponed
in accordance with the provisions of SECTION 9 hereof). Certificates for
the Additional Shares shall be registered in such name or names and in such
authorized denominations as you may request in writing at least two full
business days prior to the Additional Closing Date. The Company will permit
you to examine and package such certificates for delivery at least one full
business day prior to the Additional Closing Date.
The number of Additional Shares to be sold to each Underwriter shall
be the number that bears the same relationship to the aggregate number of
Additional Shares being purchased by the Underwriters, as the number of
Firm Shares set forth opposite the name of such Underwriter in SCHEDULE I
hereto (or such number increased as set forth in SECTION 9 hereof), bears
to the aggregate number of Firm Shares being purchased hereby, subject,
however, to such adjustments to eliminate any fractional shares as you in
your sole discretion shall make.
Payment for the Additional Shares shall be made by certified or
official bank check or checks, in New York Clearing House next-day funds,
payable to the order of the Company at the offices of Bear, Stearns & Co.
Inc., 245 Park Avenue, New York, New York 10167, or such other location as
may be mutually acceptable, upon delivery of the certificates for the
Additional Shares to you for the respective accounts of the Underwriters.
3. OFFERING. Upon your authorization of the release of the Firm Shares,
the several Underwriters propose to offer the Shares for sale to the public upon
the terms set forth in the Prospectus.
4. COVENANTS OF THE COMPANY AND THE SELLING SHAREHOLDER.
A. The Company covenants and agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendment thereof to become effective as promptly as
possible and will notify you immediately (i) when the Registration
Statement and any amendments thereto become effective, (ii) of any request
by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto or of
the initiation, or the threatening, of any proceedings therefor, (iv) of
the receipt of any comments from the Commission, and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for that purpose. If the Commission shall
propose or enter a stop order at any time, the Company will make every
reasonable effort to prevent the issuance of any such stop order and, if
issued, to obtain the lifting of such order as soon as possible. The
Company will not file any amendment to the Registration Statement or any
amendment of or supplement to the Prospectus before or after the effective
date of the Registration Statement to which you shall reasonably object in
writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is
required to be delivered under the Act any event shall have oc curred as a
result of which the Prospectus as then amended or supplemented includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary at any time to amend or supplement
the Prospectus or Registration Statement to comply with the Act or the
Regulations, or to file under the Exchange Act so as to comply therewith
any document incorporated by reference in the Registration Statement or the
Prospectus or in any amendment thereof or supplement thereto, the Company
will notify you promptly and prepare and file with the Commission an
appropriate amendment or supplement (in form and substance satisfactory to
you) that will correct such statement or omission or which will effect such
compliance and will use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
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<PAGE>
(c) The Company will promptly deliver to you two signed copies of the
Registration Statement, including exhibits and all documents incorporated
by reference therein, and all amendments thereto, and the Company will
promptly deliver to each of the several Underwriters such number of copies
of any preliminary prospectus, the Prospectus, the Registration Statement,
and all amendments of and supplements to such documents, if any, and all
documents incorporated by reference in the Registration Statement and the
Prospectus or any amendment thereof or supplement thereto, without
exhibits, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you,
at or prior to the time the Registration Statement becomes effective, to
qualify the Shares for offering and sale under the securities laws relating
to the offering or sale of the Shares in such jurisdictions as you may
designate and to maintain such qualification in effect for so long as
required for the distribution thereof.
(e) The Company will make generally available (within the meaning of
Section 11(a) of the Act) to its security holders and to you as soon as
practicable, but not later than 45 days after the end of the 12-month
period beginning after the date the Prospectus is filed with, or mailed for
filing to, the Commission pursuant to Rule 424(b), an earnings statement
(which need not be audited but which shall satisfy the provisions of
Section 11(a) of the Act) covering a period of at least 12 consecutive
months beginning after the effective date of the Registration Statement.
(f) During a period of 90 days from the date of the Prospectus, the
Company will not, without your prior written consent, issue, sell, offer or
agree to sell, or otherwise dispose of, directly or indirectly, any Class A
Common Stock (or any securities convertible into, exercisable for or
exchangeable for Class A Common Stock), and the Company will obtain the
under taking of each of its officers and directors and such of its
shareholders as have been heretofore designated by you not to engage in any
of the aforementioned transactions on their own behalf, other than the
Company's sale of Shares hereunder, the Company's issuance of Common Stock
upon the exercise of presently outstanding stock options, grants of
employee options pursuant to the Company's employee stock purchase plan and
in connection with acquisitions.
(g) During a period of three years from the effective date of the
Registration Statement, the Company will furnish to the Representatives
copies of (i) all reports to its shareholders, and (ii) all reports,
financial statements and proxy or information statements filed by the
Company with the Commission or any national securities exchange or
quotation system upon which the Class A Common Stock may be listed.
(h) The Company will not take, directly or indirectly, any action
that might reasonably be expected to cause or result in (i) stabilization
of the price of the Class A Common Stock to facilitate the sale or resale
of the Class A Common Stock, or (ii) manipulation of the price of the Class
A Common Stock.
(i) The Company will take, and will cause its subsidiaries to take,
such action as may be necessary to comply with the rules and regulations of
the Nasdaq National Market in respect of the offering of the Shares.
(j) The Company will apply the proceeds from the sale of the Shares
as set forth under "Use of Proceeds" in the Prospectus and will take such
steps as shall be necessary to ensure that neither the Company nor any
subsidiary shall become an "investment company" within the meaning of such
term under the Investment Company Act, and the rules and regulations
thereunder.
B. The Selling Shareholder covenants and agrees with the several
Underwriters that during a period of 90 days from the date of the Prospectus,
such Selling Shareholder will not, without your prior written consent, sell,
offer or agree to sell, or otherwise dispose of, directly or indirectly, any
Class A Common Stock (or any securities convertible into, exercisable for or
exchangeable for Class A Common Stock).
5. PAYMENT OF EXPENSES. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company and
the Selling Shareholder hereby severally agree to pay all costs and expenses
incident to the performance of the obligations of the Company and the Selling
Shareholder hereunder, including those in connection with (i) preparing,
printing, duplicating, filing and distributing the Registration Statement, as
originally filed, and all amendments thereof (including all exhibits thereto),
any preliminary prospectus, the Prospectus
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<PAGE>
and any amendments thereof or supplements thereto, the underwriting documents
(including this Agreement and the Agreement Among Underwriters) and all other
documents related to the public offering of the Shares (including those sup
plied to the Underwriters in quantities as hereinabove stated), (ii) the
issuance, transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the qualification of the Shares
under state or foreign securities or Blue Sky laws, including the costs of
printing and mailing a preliminary and final "Blue Sky Survey" and the fees of
counsel for the Underwriters and such counsel's disbursements in relation
thereto, and (iv) the review of the terms of the public offering of the Shares
by the National Association of Securities Dealers, Inc.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters to purchase and pay for the Firm Shares and the Additional
Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholder herein
contained, as of the date hereof and as of the Closing Date (or in the case of
the Additional Shares as of the Additional Closing Date), to the absence from
any certificates, opinions, written statements or letters furnished to you or to
Jenkens & Gilchrist, a Professional Corporation ("Underwriters' Counsel"),
pursuant to this SECTION 6 of any misstatement or omission, to the performance
by the Company and the Selling Shareholder of their respective obligations
hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 p.m., New York time, on the day following the date of this
Agreement or at such later time and date as shall have been consented to in
writing by you, and, at or prior to the Closing Date and the Additional
Closing Date, as the case may be, no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof shall have been issued and no proceedings therefor shall have been
initiated or threatened by the Commission.
(b) At the Closing Date and the Additional Closing Date, you shall
have received the opinion of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P., counsel for the Company, dated the Closing Date, or the
Additional Closing Date, as the case may be, addressed to the Underwriters
and in form and substance satisfactory to Underwriters' Counsel, to the
effect that:
(i) Each of the Company and its subsidiaries listed on SCHEDULE
II hereto (the "Significant Subsidiaries"), has been duly organized
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. Each of the Company and
the Significant Subsidiaries is duly qualified and in good standing as
a foreign corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature
or conduct of its business makes such qualification necessary, except
for those failures to be so qualified or in good standing that will
not in the aggregate have a material adverse effect on the business,
properties, financial condition, results of operations or prospects of
the Company and its subsidiaries, taken as a whole. Each of the
Company and the Significant Subsidiaries has all requisite corporate
authority to own, lease and license its respective properties and
conduct its business as now being conducted and as described in the
Registration Statement and the Prospectus. Except as otherwise
indicated in SCHEDULE II, all of the issued and outstanding capital
stock of each Significant Subsidiary of the Company is held of record
by the Company.
(ii) The Company has authorized capital stock as set forth in the
Registration Statement and the Prospectus. All of the outstanding
shares of capital stock of the Company are duly and validly authorized
and issued, are fully paid and nonassessable and were not issued in
violation of or subject to any preemptive rights. The Shares to be
delivered on the Closing Date, or Additional Closing Date, as the case
may be, have been duly and validly authorized and, when delivered in
accordance with this Agreement, will be duly and validly issued, fully
paid and nonassessable and will not have been issued in violation of
or subject to any preemptive rights. Each of the Underwriters will
receive good, valid and marketable title to the Firm Shares and the
Additional Shares being sold by the Company here under, free and
clear of all liens, encumbrances, claims, security interests,
restrictions on transfer, shareholders' agreements, voting trusts and
other defects of title whatsoever.
(iii) The capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof
incorporated by reference in the Registration Statement and the
Prospectus; the certificates for the Shares are in proper form under
Louisiana law.
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<PAGE>
(iv) The Class A Common Stock is listed on the Nasdaq National
Market.
(v) Such counsel does not know of any contracts or other
documents that are required to be filed as exhibits to the
Registration Statement by the Act or by the Regulations that have not
been filed as exhibits to the Registration Statement, or that are
required to be summarized in the Prospectus that are not so
summarized.
(vi) To the best of such counsel's knowledge, the Company is not
in violation of its corporate charter or bylaws and neither the
Company nor any of its Significant Subsidiaries is in default under
(and no event has occurred which with notice, lapse of time, or both,
would constitute a breach of, or a default under), any agreement,
license, mortgage, deed of trust, bank loan, credit agreement,
indenture or instrument filed as an exhibit to the Registration
Statement, which default would have a material adverse affect on the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole.
(vii) The Company has all necessary corporate power to execute
and deliver this Agreement and to perform its obligations (including
the issuance, sale and delivery of the Shares to be sold by the
Company) hereunder.
(viii) This Agreement has been duly and validly authorized,
executed and delivered by the Company and is a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except to the extent that rights to indemnity hereunder may be
limited by federal or state securities laws or the public policy underlying
such laws and except to the extent that enforcement may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and subject to general principles of equity.
(ix) To the best of such counsel's knowledge, there is no
litigation or governmental or other action, suit, proceeding or
investigation before any court or before or by any public, regulatory or
governmental agency or body pending or threatened against, or involving the
properties or business of, the Company or, to the best knowledge of such
counsel, any of its Significant Subsidiaries, which, if resolved against
the Company or such subsidiary, individually or, to the extent involving
related claims or issues, in the aggregate, is of a character required to
be disclosed in the Registration Statement and the Prospectus, which has
not been properly disclosed therein.
(x) The execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby by the Company
will not (A) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or
lapse of time, or both, would constitute a default) or require consent
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
Significant Subsidiaries pursuant to the terms of any agreement or
instrument filed as an exhibit to the Registration Statement (or as an
exhibit to the Company's Annual Report on Form 10-K for the fiscal year
ended October 31, 1996 or Quarterly Reports on Form 10-Q for the quarters
ended January 31, 1997 and April 30, 1997, respectively) or any material
franchise, license or permit known to such counsel to which the Company or
any of its Significant Subsidiaries is a party or by which any of such
corporations or their respective properties or assets may be bound, or (B)
violate or conflict with any provision of the Articles of Incorporation or
Bylaws of the Company or any of its Significant Subsidiaries, or, to the
best knowledge of such counsel, any judgment, decree, order, statute, rule
or regulation of any court or any public, governmental or regulatory agency
or body having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their respective properties or assets. To the best
knowledge of such counsel, no consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any court
or any public, governmental, or regulatory agency or body having
jurisdiction over the Company or any of its Significant Subsidiaries or any
of their respective properties or assets is required for the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby, except for (1) such as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of
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the Shares by the Underwriters (as to which such counsel need express no
opinion), and (2) such as have been made or obtained under the Act.
(xi) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial
statements and schedules and other financial and statistical data included
or incorporated by reference therein, as to which no opinion need be
rendered) comply as to form in all material respects with the requirements
of the Act and the Regulations. The documents filed under the Exchange Act
and incorporated by reference in the Registration Statement and the
Prospectus and in any amendment thereof or supplement thereto (other than
the financial statements and schedules and other financial and statistical
data included or incorporated by reference therein, as to which no opinion
need be rendered) comply as to form in all material respects with the
Exchange Act and the rules and regulations of the Commission thereunder.
(xii) The Registration Statement is effective under the Act,
and, to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof has been issued and no proceedings therefor have been initiated or
threatened by the Commission.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel is not
passing upon, and does not assume responsibility for and has not verified, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the foregoing (relying
as to materiality upon the opinions of officers and other representatives of the
Company) and without independent check or verification, nothing has come to the
attention of such counsel that leads it to believe that the Registration
Statement or any amendment thereto at the time such Registration Statement or
amendment became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or any
supplement thereto at the date of such Prospectus or such supplement, and at all
times up to and including the Closing Date or the Additional Closing Date, as
the case may be, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need express no opinion
with respect to the financial statements and schedules and other financial and
statistical data included or incorporated by reference in the Registration
Statement or the Prospectus or in any amendments thereof or supplements
thereto).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
Counsel) of other counsel reasonably acceptable to Underwriters' Counsel,
familiar with the applicable laws; (B) as to matters of fact, to the extent they
deem prop er, on certificates of responsible officers of the Company and
certificates or other written statements of officers of departments of various
jurisdictions having custody of documents respecting the corporate existence or
good standing of the Company and its subsidiaries, provided that copies of any
such statements or certificates shall be delivered to Underwriters' Counsel. The
opinion of such counsel for the Company shall state that the opinion of any such
other counsel is in form satisfactory to such counsel and, in their opinion, you
and they are justified in relying thereon.
(c) At the Closing Date you shall have received the favorable opinion of
Henican, James & Cleveland, counsel for the Selling Shareholder, dated the
Closing Date, addressed to the Underwriters and in form and substance
satisfactory to Under writers' Counsel, to the effect that:
(i) This Agreement has been duly and validly authorized, executed and
delivered by the Selling Shareholder and is a valid and binding obligation of
the Selling Shareholder, enforceable against the Selling Shareholder in
accordance with its terms, except to the extent that rights to indemnity
hereunder may be limited by applicable federal or state securities laws or the
public policy underlying
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<PAGE>
such laws and except to the extent that enforcement may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and subject to general principles of equity.
(ii) To the best knowledge of such counsel, the Selling Shareholder
has all requisite power and authority, and all necessary consents,
approvals, authorizations, orders, registrations, filings, qualifications,
licenses and permits of and from all courts and all public, governmental or
regulatory agencies and bodies as are required for the execution, delivery
and performance of this Agreement, and the consummation of the transactions
contemplated hereby, except for (1) such as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters (as to which such counsel
need express no opinion), and (2) such as have been made or obtained under
the Act.
(iii) Upon the delivery of and payment for the Shares to be sold by
the Selling Shareholder pursuant to this Agreement as herein contemplated,
each of the Underwriters who is not aware of any adverse claim with respect
thereto will receive good, valid and marketable title to the Shares
purchased by it from the Selling Shareholder, free and clear of all liens,
encumbrances, claims, security interests, restrictions on transfer,
shareholders' agreements, voting trusts and other defects in title
whatsoever.
(iv) The execution, delivery and performance of this Agreement by the
Selling Shareholder and the consummation of the transactions contemplated
hereby will not violate or conflict with, to the best knowledge of such
counsel, any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over the Selling Shareholder or any of his properties or
assets.
(v) The Statements in the Prospectus under the caption "Selling
Shareholder," insofar as such statements constitute a summary of the
matters referred to therein, fairly present the information called for with
respect to such matters in all material respects.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
Counsel) of other counsel reasonably acceptable to Underwriters' Counsel,
familiar with the applicable laws; (B) as to matters of fact, to the extent they
deem prop er, on certificates of the Selling Shareholder, provided that copies
of any such statements or certificates shall be delivered to Underwriters'
Counsel. The opinions of such counsel for the Selling Shareholder shall state
that the opinion of any such other counsel is in form satisfactory to such
counsel and, in their opinion, you and they are justified in relying thereon.
(d) At the Closing Date and the Additional Closing Date, you shall have
received a certificate of the President and the Chief Financial Officer of the
Company, dated the Closing Date, or Additional Closing Date, as the case may be,
to the effect that the condition set forth in subsection (a) of this SECTION 6
has been satisfied, that as of the date hereof and as of the Closing Date, or
Additional Closing Date, as the case may be, the representations and warranties
of the Company set forth in SECTION 1 hereof are accurate, and that as of the
Closing Date, or the Additional Closing Date, as the case may be, the
obligations of the Company to be performed hereunder on or prior thereto have
been duly performed.
(e) At the Closing Date, you shall have received a certificate executed by
the Selling Shareholder, dated the Closing Date, to the effect that the
representations and warranties of such Selling Shareholder set forth in SECTION
1 hereof are accurate, and that as of the Closing Date, the obligations of such
Selling Shareholder to be performed hereunder on or prior thereto have been duly
performed.
(f) At the time this Agreement is executed, and at the Closing Date and
the Additional Closing Date, you shall have received a letter from Coopers &
Lybrand L.L.P., independent public accountants for the Company, dated,
respectively, as of the date of this Agreement and as of the Closing Date, or
Additional
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Closing Date, as the case may be, addressed to the Underwriters and in form and
substance satisfactory to you, to the effect that: (i) they are independent
certified public accountants with respect to the Company within the meaning of
the Act and the applicable published rules and regulations of the Commission
thereunder and stating that the answer to Item 10 of the Registration Statement
is correct insofar as it relates to them; (ii) stating that, in their opinion,
the financial statements and schedules, if any, of the Company included or
incorporated by reference in the Registration Statement and the Prospectus and
covered by their opinion therein comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and the
applicable published rules and regulations of the Commission thereunder; (iii)
on the basis of procedures (but not an examination made in accordance with
generally accepted auditing standards) consisting of a reading of the latest
available interim consolidated financial statements of the Company and its
subsidiaries, a reading of the minutes of meetings and consents of the
shareholders and boards of directors of the Company and its subsidiaries and the
committees of such boards subsequent to the date of the most recent audited
consolidated balance sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus,
inquiries of officers and other employees of the Company and its subsidiaries
who have responsibility for financial and accounting matters of the Company and
its subsidiaries with respect to transactions and events subsequent to the date
of the most recent audited consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and the Prospectus, and other specified procedures and inquiries to a date not
more than five days prior to the date of such letter, nothing has come to their
attention that would cause them to believe that: (A) the unaudited consolidated
financial statements and schedules, if any, of the Company included or
incorporated by reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the applicable published rules
and regulations of the Commission thereunder or that such unaudited consolidated
financial statements are not fairly presented in conformity with generally
accepted accounting principles except to the extent certain footnote disclosures
have been omitted in accordance with applicable rules of the Commission under
the Exchange Act applied on a basis substantially consistent with that of the
audited consolidated financial statements included or incorporated by reference
in the Registration Statement and the Prospectus; (B) with respect to the period
subsequent to the date of the most recent consolidated balance sheet of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus, there were, as of the date of the
most recent available monthly consolidated financial statements of the Company
and its subsidiaries, if any, and as of a specified date not more than five days
prior to the date of such letter, any changes in the capital stock or long-term
indebtedness of the Company or any decrease in the net current assets or
shareholders' equity of the Company, in each case as compared with the amounts
shown in the most recent balance sheet included or incorporated by reference in
the Registration Statement and the Prospectus, except for changes or decreases
that the Registration Statement and the Prospectus disclose have occurred or may
occur or which are set forth in such letter; or (C) that during the period from
the date following the date of the most recent consolidated balance sheet of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus to the date of the most recent
available monthly consolidated financial statements of the Company and its
subsidiaries, if any, and to a specified date not more than five days prior to
the date of such letter, there was any decrease, as compared with the
corresponding period in the prior fiscal year, in total revenues, or total or
per share net income, except for decreases which the Registration Statement and
the Prospectus disclose have occurred or may occur or which are set forth in
such letter; and (iv) stating that they have compared specific dollar amounts,
numbers of shares, percentages of revenues and earnings, and other financial
information pertaining to the Company and its subsidiaries set forth in the
Registration Statement and the Prospectus, which have been specified by you
prior to the date of this Agreement, to the extent that such amounts, numbers,
percentages, and information may be derived from the general accounting and
financial records of the Company and its subsidiaries or from schedules
furnished by the Company, and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from the application
of specified readings, inquiries, and other appropriate procedures specified by
you (which procedures do not constitute an examination in accordance with
generally accepted auditing standards) set forth in such letter, and found them
to be in agreement.
(g) All proceedings taken in connection with the sale of the Firm Shares
and the Additional Shares as herein contemplated shall be satisfactory in form
and substance to you and to Underwriters' Counsel, and the Underwriters shall
have received from said Underwriters' Counsel a favorable opinion, dated as of
the Closing Date, and the Additional Closing Date, as the case may be, with
respect to the issuance and sale of the Shares, the Registration Statement and
the Prospectus and such other related matters, as you may reasonably require,
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and the Company and the Selling Shareholder shall have furnished to
Underwriters' Counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(h) Prior to the Closing Date and the Additional Closing Date the Company
and the Selling Shareholder shall have furnished to you such further
information, certificates and documents as you may reasonably request.
If any of the conditions specified in this SECTION 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to you or to Underwriters'
Counsel pursuant to this SECTION 6 shall not be in all material respects
reasonably satisfactory in form and substance to you and to Underwriters'
Counsel, all obligations of the Underwriters hereunder may be canceled by you
at, or at any time prior to, the Closing Date, and the obligations of the
Underwriters to purchase the Additional Shares may be canceled by you at, or at
any time prior to, the Additional Closing Date. Notice of such cancellation
shall be given to the Company and the Selling Shareholder in writing, or by
telephone, telex or telegraph, confirmed in writing.
7. INDEMNIFICATION.
(a) The Company agrees and the Selling Shareholder agrees to
indemnify and hold harmless each Underwriter, its officers, directors,
partners, employees, agents and counsel, and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act against any and all losses, liabilities,
claims, damages and expenses whatsoever as incurred (including but not
limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Shares, as originally
filed or any amendment thereof, or any related preliminary prospectus or
the Prospectus, or in any supplement thereto or amendment thereof, or arise
out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company and
the Selling Shareholder will not be liable in any such case to the extent
but only to the extent that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein, in reliance
upon and in conformity with written information furnished to the Company by
or on behalf of any Underwriter through you expressly for use therein;
further, provided, however, that the indemnification obligation of the
Selling Shareholder shall be limited in amount to 67% of the total net
proceeds to the Selling Shareholder (before deducting expenses) received by
the Selling Shareholder from the sale by the Selling Shareholder of Shares
pursuant to this Agreement. This indemnity agreement will be in addition to
any liability that the Company and the Selling Shareholder may otherwise
have, including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, the Selling Shareholder, each of the
directors of the Company, each of the officers of the Company who shall
have signed the Registration Statement, its employees, agents and counsel,
and each other person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, against any
losses, liabilities, claims, damages and expenses whatsoever (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred
in investigating, preparing or defending against any litigation, commenced
or threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Shares, as originally
filed or any amendment thereof, or any related preliminary prospectus or
the Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
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reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through you expressly for use
therein; provided, however, that in no case shall any Underwriter be liable
or responsible for any amount in excess of the underwriting discount
applicable to the Shares purchased by such Underwriter hereunder. This
indemnity will be in addition to any liability which any Underwriter may
otherwise have including under this Agreement. The Company and the Selling
Shareholder acknowledge that the statements set forth in the last paragraph
of the cover page and in the first six paragraphs under the caption
"Underwriting" in the Prospectus constitute the only information furnished
in writing by or on behalf of any Underwriter expressly for use in the
Registration Statement relating to the Shares as originally filed, or in
any amendment thereof, any related preliminary prospectus or the Prospectus
or in any amendment thereof or supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall not
relieve it from any liability which it may have under this SECTION 7 except
to the extent that it has been prejudiced in any material respect by such
failure or from any liability which it may have otherwise). In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to the extent it may elect by
written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have
the right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified
party or parties unless (i) the employment of such counsel shall have been
authorized in writing by one of the indemnifying parties in connection with
the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them that are different from or additional
to those available to one or all of the indemnifying parties (in which case
the indemnifying parties shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the indemnifying parties.
Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or
action effected without its written consent; provided, however, that such
consent was not unrea sonably withheld.
8. CONTRIBUTION. In order to provide for contribution in circumstances in
which the indemnification provided for in SECTION 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company, the Selling Shareholder
and the Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provisions as incurred (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting in the case of
losses, claims, damages, liabilities and expenses suffered by the Company and
the Selling Shareholder any contribution received by the Company or such Selling
Shareholder from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, officers of the
Company who signed the Registration Statement and directors of the Company) to
which the Company, the Selling Shareholder and one or more of the Underwriters
may be subject, in such proportions as is appropriate to reflect the relative
benefits received by the Company, the Selling Shareholder and the Underwriters
from the offering of the Shares or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in SECTION 7 hereof,
in such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company, the Selling
Shareholder and the Underwriters in connection with the statements or omissions
that resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations; provided, however, that the
contribution obligation of the Selling Shareholder shall be limited in amount to
67% of the total net proceeds to the Selling Shareholder (before deducting
expenses) received by the Selling Shareholder from the sale by the Selling
Shareholder of Shares pursuant to this Agreement. The relative benefits received
by the Company, the Selling Shareholder and the Underwriters shall be deemed to
be in the same proportion as (x) the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and (y) the total
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proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Selling Shareholder and (z) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company, the Selling Shareholder and of
the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Shareholder or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Shareholder and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this SECTION 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to above. The Company and the Selling
Shareholder shall be jointly and severally liable for the amounts to be
contributed by either of them pursuant to the provisions of this SECTION 8.
Notwithstanding the provisions of this SECTION 8, (i) in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder, and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this SECTION 8, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) of this SECTION 8. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this SECTION 8, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this SECTION 8 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; provided, however, that such consent was not unreasonably
withheld.
9. DEFAULT BY AN UNDERWRITER.
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase Firm Shares or Additional Shares hereunder, and if
the Firm Shares or Additional Shares with respect to which such default
relates do not (after giving effect to arrangements, if any, made by you
pursuant to subsection (b) below) exceed in the aggregate 10% of the number
of shares of Firm Shares or Additional Shares, as the case may be, which
all Underwriters have agreed to purchase hereunder, then such Firm Shares
or Additional Shares to which the default relates shall be purchased by the
nondefaulting Underwriters in proportion to their respective commitments
hereunder.
(b) In the event that such default relates to more than 10% of the
Firm Shares, or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including
any nondefaulting Underwriter or Underwriters who so agree) to purchase
such Firm Shares, or Additional Shares, as the case may be, to which such
default re lates, on the terms contained herein. In the event that within
five calendar days after such a default you do not arrange for the purchase
of the Firm Shares or Additional Shares, as the case may be, to which such
default relates as provided in this SECTION 9, this Agreement or, in the
case of a default with respect to the Additional Shares, the obligations of
the Underwriters to purchase and of the Company to sell the Additional
Shares, shall thereupon terminate, without liability on the part of the
Company or the Selling Shareholder with respect thereto (except in each
case as provided in SECTIONS 5, 7(A) and 8 hereof) or the Underwriters, but
nothing in this Agreement shall relieve a defaulting Underwriter or
Underwriters of its or their liability, if any, to the other several
Underwriters, the Company and the Selling Shareholder for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to which
the default relates are to be purchased by the nondefaulting Underwriters,
or are to be purchased by another party or parties as aforesaid, you or the
Company shall have the right to postpone the Closing Date, or Additional
Closing Date, as the case may be, for a period, not exceeding five business
days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus
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which, in the opinion of Underwriters' Counsel, may thereby be made
necessary or advisable. The term "Underwriter" as used in this Agreement
shall include any party substituted under this SECTION 9 with like effect
as if it had originally been a party to this Agreement with respect to such
Firm Shares and Additional Shares.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations and
warranties, covenants and agreements of the Underwriters, the Selling
Shareholder and the Company contained in this Agreement, including the
agreements contained in SECTION 5, the indemnity agreements contained in SECTION
7 and the contribution agreements contained in SECTION 8, shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or any con trolling person thereof or by or on behalf
of the Company, any of its officers and directors or the Selling Shareholder or
any controlling person thereof, and shall survive delivery of and payment for
the Shares to and by the several Underwriters. The representations contained in
SECTION 1 and the agreements contained in SECTIONS 5, 7, 8 and 11(D) hereof
shall survive the termination of this Agreement including pursuant to SECTIONS 9
or 11 hereof.
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(a) This Agreement shall become effective at such time after
notification of the effectiveness of the Registration Statement as you, the
Company and the Selling Shareholder shall agree upon the initial public
offering price and the purchase price per Share. If either the initial
public offering price or the purchase price per Share has not been agreed
upon prior to 5:00 p.m., New York time, on the seventh full business day
after the Registration Statement shall have become effective, this
Agreement shall thereupon terminate without liability to the Company, the
Selling Shareholder or the Underwriters, except as herein expressly
provided. Until this Agreement becomes effective as aforesaid, it may be
terminated by the Company by notifying you and the Selling Shareholder, or
by action only of the Selling Shareholder directly by notifying the Company
and you or by you by notifying the Company and the Selling Shareholder.
Notwithstanding the foregoing, the provisions of this SECTION 11 and of
SECTIONS 1, 5, 7 and 8 hereof shall at all times be in full force and
effect.
(b) You shall have the right to terminate this Agreement at any time
prior to the Closing Date, or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing
Date, as the case may be, by giving notice to the Company, if any domestic
or international event or act or occurrence has materially disrupted, or in
your opinion will in the immediate future materially disrupt, the
securities markets; or if trading on the New York or American Stock
Exchanges or in the over-the-counter market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required, on the New York
or American Stock Exchanges by the New York or American Stock Exchanges or
by order of the Commission or any other governmental authority having
jurisdiction; or if the United States shall have become involved in a war
or major hostilities; or if a banking moratorium has been declared by a
state or federal authority, or if a moratorium in foreign exchange trading
by major international banks or persons has been declared; or if any new
restriction materially adversely affecting the distribution of the Firm
Shares, or the Additional Shares, as the case may be, shall have become
effective; or if the Company shall have sustained a material or substantial
loss, which, whether or not such loss shall have been insured, in your
judgment makes it inadvisable to proceed with the offering, sale, or
delivery of the Firm Shares, or the Additional Shares, as the case may be,
on the terms contemplated by the Prospectus; or if there shall have been
such change in the market for the Compa ny's securities or securities in
general, or in political, financial or economic conditions as in your
judgment makes it inadvisable to proceed with the offering, sale or
delivery of the Firm Shares, or the Additional Shares, as the case may be,
on the terms contemplated by the Prospectus; or if, (i) either the Company
or any of its subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus or (ii) since
the respective dates as of which information is given in the Prospectus
there shall have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii) above, is in your reasonable judgment so
material and adverse as to make it impracticable or inadvisable to proceed
with the offering, sale or delivery of the Firm Shares, or the Additional
Shares, as the case may be, on the terms contemplated by the Prospectus.
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(c) Any notice of termination pursuant to this SECTION 11 shall be by
telephone, telex, telegraph, or telecopy, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in SECTION 11(A) hereof, or (ii) SECTIONS 9(B) or 11(B) hereof),
or if the sale of the Shares provided for herein is not consummated because
any condition to the obligations of the several Underwriters set forth
herein is not satisfied or because of any refusal, inability or failure on
the part of the Company or the Selling Shareholder to perform any agreement
herein, or comply with any provision hereof, the Company and the Selling
Shareholder jointly and severally agree subject to demand by you, to
reimburse the Underwriters for all out-of-pocket expenses (including the
fees and expenses of their counsel), incurred by the several Underwriters
in connection herewith.
12. NOTICES. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and (i) if sent to any
Underwriter, shall be mailed, delivered, telexed, telegraphed, or telecopied,
and confirmed in writing, to such Underwriter c/o Bear, Stearns & Co. Inc., 245
Park Avenue, New York, New York 10167, Attention: Corporate Finance and (ii) if
sent to the Company or the Selling Shareholder shall be mailed, delivered,
telexed, telegraphed, or telecopied, and confirmed in writing to the Company,
110 Veterans Memorial Boulevard, Metairie, Louisiana 70005, Attention: Ronald H.
Patron; and, in the case of the Selling Shareholder, to such person in care of
the Company at the address set forth above.
13. PARTIES. You represent that you are authorized to act on behalf of
the several Underwriters named in SCHEDULE I hereto, and the Company and the
Selling Shareholder shall be entitled to act and rely on any request, notice,
consent, waiver or agreement purportedly given on behalf of the Underwriters
when the same shall have been given by you on such behalf. This Agreement shall
inure solely to the benefit of, and shall be binding upon, the several
Underwriters, the Selling Shareholder and the Company and the controlling
persons, directors, officers, employees and agents referred to in SECTIONS 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Shares from any of the Underwriters.
14. CONSTRUCTION. This Agreement shall be construed in accordance with
the internal laws of the State of New York, without giving effect to the rules
governing conflicts of laws. Time is of the essence in this agreement.
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If the foregoing correctly sets forth the understanding among you, the
Company and the Selling Shareholder, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among us.
Very truly yours,
STEWART ENTERPRISES, INC.
By:____________________________________
Print Name:____________________________
Title:_________________________________
THE SELLING SHAREHOLDER IN HIS
INDIVIDUAL CAPACITY:
_______________________________________
Frank B. Stewart, Jr.
Accepted as of the date first above written.
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
ABN AMRO CHICAGO CORPORATION
JOHNSON RICE & COMPANY L.L.C.
By: BEAR, STEARNS & CO. INC.
By:__________________________
Print Name:__________________
Title:_______________________
On behalf of themselves and the other several Underwriters named in SCHEDULE I
hereto.
-19-
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SCHEDULE I
NUMBER OF
UNDERWRITERS FIRM SHARES
------------ -----------
Bear, Stearns & Co. Inc............. __________
Goldman, Sachs & Co................. __________
ABN AMRO Chicago Corporation........ __________
Johnson Rice & Company L.L.C........ __________
Total 4,750,000
==========
-20-
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EXHIBIT 4.2
CREDIT AGREEMENT
DATED AS OF
APRIL 14, 1997
AMONG
STEWART ENTERPRISES, INC.,
EMPRESAS STEWART-CEMENTERIOS, INC. AND
EMPRESAS STEWART-FUNERARIAS, INC.
THE BANKS NAMED HEREIN
NATIONSBANK OF TEXAS, N.A.
AS AGENT
CITICORP USA, INC.
AS DOCUMENTATION AGENT
BANK OF AMERICA ILLINOIS
AS CO-AGENT
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITION OF TERMS........................................ 1
1.01 Defined Terms..................................................... 1
"Affiliate"....................................................... 2
"Agreement or Credit Agreement"................................... 2
"Agent"........................................................... 2
"Applicable Creditor"............................................. 2
"Applicant Borrower".............................................. 2
"Assignment and Acceptance"....................................... 2
"Assignment Effective Date"....................................... 2
"Bank"............................................................ 2
"Bank of America"................................................. 2
"Base Rate"....................................................... 2
"Base Rate Loan".................................................. 3
"Basis Point"..................................................... 3
"Borrower"........................................................ 3
"Business Day".................................................... 3
"Capital Lease"................................................... 3
"Capitalized Lease Obligations"................................... 3
"Cementerios"..................................................... 3
"Cementerios Committed Notes"..................................... 3
"Cementerios Revolving Facility".................................. 3
"Change in Control"............................................... 3
"Citicorp"........................................................ 3
"Closing Date".................................................... 4
"Code"............................................................ 4
"Committed Loans"................................................. 4
"Committed Notes"................................................. 4
"Competitive Bid"................................................. 4
"Competitive Bid Request"......................................... 4
"Competitive Loan"................................................ 4
"Competitive Loan Rate"........................................... 4
"Competitive Notes"............................................... 4
"Consolidated Net Income"......................................... 4
"Consolidated Net Worth".......................................... 4
"Consolidated Total Assets"....................................... 4
"Consolidated Total Capitalization"............................... 5
"Death Care Business"............................................. 5
"Default"......................................................... 5
"Default Rate".................................................... 5
"Defaulting Bank"................................................. 5
"Designated Borrower"............................................. 5
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TABLE OF CONTENTS (CONT.)
Page
"Designated Borrower Addendum".................................... 5
"Designated Borrower Application"................................. 5
"Dollars and $"................................................... 5
"Eligible Assignee"............................................... 5
"Environmental Laws".............................................. 5
"EPA"............................................................. 6
"ERISA"........................................................... 6
"Eurodollar Reserve Requirement".................................. 6
"Event of Default"................................................ 6
"Exchange Act".................................................... 6
"Existing Credit Agreements"...................................... 6
"Existing Letters of Credit"...................................... 7
"Federal Funds Rate".............................................. 7
"Fifth Amended and Restated Loan Agreement"....................... 7
"Funded Indebtedness"............................................. 7
"Funding Date".................................................... 7
"Funerarias"...................................................... 7
"Funerarias Committed Notes"...................................... 7
"Funerarias Revolving Facility"................................... 7
"Governmental Body"............................................... 7
"Gross Up Amount"................................................. 8
"Guaranty or Guarantees".......................................... 8
"Guaranteed Indebtedness"......................................... 8
"Hazardous Substances"............................................ 8
"Highest Lawful Rate"............................................. 8
"Indebtedness".................................................... 8
"Indemnified Parties"............................................. 9
"Initial Borrowing Date".......................................... 9
"Interest Payment Date"........................................... 9
"Interest Period"................................................. 9
"Investments"..................................................... 9
"Judgment Currency"............................................... 9
"LC Exposure"..................................................... 10
"LIBOR Rate"...................................................... 10
"LIBOR Rate Loan"................................................. 10
"Lien"............................................................ 10
"Limited Material Adverse Change"................................. 10
"Loan"............................................................ 10
"Loan Papers"..................................................... 10
"Majority Banks".................................................. 10
"Material Adverse Effect"......................................... 11
"Maturity Date"................................................... 11
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TABLE OF CONTENTS (CONT.)
Page
"Maximum Facility Commitment Addendum"............................ 11
"Maximum Facility Commitment Amount".............................. 11
"Moody's"......................................................... 11
"Multiemployer Plan".............................................. 11
"NationsBank"..................................................... 11
"NationsBank LIBOR Rate".......................................... 11
"Notes"........................................................... 12
"Notice of Borrowing"............................................. 12
"Notice of Extension/Conversion".................................. 12
"Notice of Reduction and Reallocation"............................ 12
"Other Taxes"..................................................... 12
"Obligation"...................................................... 12
"Participant"..................................................... 12
"Permitted Investments"........................................... 12
"Person".......................................................... 13
"Plan"............................................................ 13
"Private Placement Agreements".................................... 13
"Private Placement Noteholders"................................... 13
"Pro Rata Share".................................................. 13
"Property"........................................................ 13
"Public Debt Ratings"............................................. 14
"Register"........................................................ 14
"Related Party" or "Related Parties".............................. 14
"Replaced Bank"................................................... 14
"Replacement Bank"................................................ 14
"Reportable Event"................................................ 14
"Requirement of Law".............................................. 14
"Restricted Payments"............................................. 14
"Revolving Facility" or "Revolving Facilities".................... 14
"Revolving Facility Commitment"................................... 14
"S&P"............................................................. 14
"Stewart"......................................................... 14
"Stewart/Cementerios Guaranty".................................... 15
"Stewart Committed Notes"......................................... 15
"Stewart/Funerarias Guaranty"..................................... 15
"Stewart Guarantees".............................................. 15
"Stewart Revolving Facility"...................................... 15
"Stock"........................................................... 15
"Subsidiary or Subsidiaries"...................................... 15
"Taxes"........................................................... 15
"Termination Date"................................................ 15
"Total Commitment Amount"......................................... 15
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TABLE OF CONTENTS (CONT.)
Page
"Wholly-Owned Subsidiary"......................................... 16
"Withholding Tax Absorption Fee".................................. 16
ARTICLE II - THE CREDIT FACILITIES..................................... 16
2.01 Commitments................................................ 16
2.02 Letters of Credit.......................................... 17
2.03 Banks Not Permitted or Required To Make or
Participate in Loans Under Certain Circumstances......... 18
2.04 Additional Revolving Facilities............................ 19
2.05 Committed Loans............................................ 21
2.06 Competitive Loans.......................................... 23
2.07 Default Rate............................................... 25
2.08 Extension and Conversion of Committed Loans................ 25
2.09 Termination of Commitments; Prepayments.................... 26
2.10 Pro Rata Treatment......................................... 27
2.11 Capital Adequacy........................................... 27
2.12 Inability To Determine Interest Rate....................... 27
2.13 Illegality................................................. 28
2.14 Requirements of Law........................................ 28
2.15 Taxes...................................................... 29
2.16 Breakage and Funding Losses................................ 31
2.17 Judgment Currency.......................................... 33
2.18 Sharing of Payments, Etc................................... 33
2.19 Certain Fees............................................... 34
2.20 Place and Manner of Payments; Record of Loans.............. 34
2.21 Modification or Withdrawal of Public Rating................ 35
2.22 Extension of Maturity Date................................. 36
2.23 Replacement of Banks....................................... 36
ARTICLE III - CONDITIONS PRECEDENT..................................... 38
3.01 Conditions Precedent to Obligation of Banks to
Fund Initial Loans....................................... 38
3.02 Conditions Precedent to the Obligation of the Banks
to Fund All Loans or Issue Letters of Credit............. 39
3.03 Conditions Precedent to Initial Loans Under
Each New Subsidiary Revolving Facility................... 40
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TABLE OF CONTENTS (CONT.)
Page
ARTICLE IV - REPRESENTATIONS AND WARRANTIES............................ 42
4.01 Organization; Power and Authority ......................... 42
4.02 Qualification; Good Standing............................... 42
4.03 Authorization.............................................. 42
4.04 Subsidiaries of Stewart.................................... 42
4.05 Business................................................... 43
4.06 Financial Statements....................................... 43
4.07 Filing of Tax Returns...................................... 43
4.08 Liens...................................................... 43
4.09 Litigation, Etc............................................ 43
4.10 Compliance with Law........................................ 44
4.11 Compliance with Other Instruments.......................... 44
4.12 Licenses, Etc.............................................. 44
4.13 Employee Benefit Plans..................................... 44
4.14 Margin Stock............................................... 44
4.15 Investment Company Act..................................... 44
4.16 Guaranteed Indebtedness.................................... 44
4.17 Indebtedness............................................... 45
4.18 Legally Enforceable Agreements............................. 45
ARTICLE V - COVENANTS.................................................. 45
5.01 Maintenance of Properties; Legal Existence;
Qualification............................................ 45
5.02 Maintenance of Business.................................... 46
5.03 Change in Ownership of Subsidiaries........................ 46
5.04 Payment of Taxes and Claims................................ 46
5.05 Compliance with Generally Accepted Accounting Principles;
Compliance with Law..................................... 46
5.06 Employee Benefit Plans..................................... 47
5.07 Insurance.................................................. 47
5.08 Financial Statements and Other Information................. 47
5.09 Other Reports and Information.............................. 49
5.10 Notice of Events of Default and Other Events............... 50
5.11 Notice from Regulatory Agencies............................ 50
5.12 Restricted Loans and Investments........................... 50
5.13 Guaranteed Indebtedness.................................... 51
5.14 Stock of Subsidiaries, Merger, Sale of Assets, Etc......... 51
5.15 Restricted Payments........................................ 53
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TABLE OF CONTENTS (CONT.)
Page
5.16 Transactions with Affiliates................................. 53
5.17 Inspection................................................... 53
5.18 Further Assurances........................................... 54
5.19 Use of Proceeds.............................................. 54
5.20 Fixed Charges................................................ 54
5.21 Funded Indebtedness to Net Worth Ratio....................... 54
5.22 Funded Indebtedness of Subsidiaries.......................... 54
5.23 Negative Pledge; Liens....................................... 54
5.24 Loans to Stewart by Subsidiaries; Subordination.............. 54
ARTICLE VI - EVENTS OF DEFAULT........................................... 55
6.01 Nature of Events............................................. 55
6.02 Certain Rights of the Banks.................................. 57
ARTICLE VII - MISCELLANEOUS.............................................. 59
7.01 Amendments, Etc.............................................. 59
7.02 Notices...................................................... 59
7.03 Waivers...................................................... 60
7.04 Cumulative Rights............................................ 60
7.05 Indemnification of the Agent, Any Banks or Any Participants.. 60
7.06 Survival..................................................... 61
7.07 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES................................................. 62
7.08 Maximum Interest Rate........................................ 63
7.09 Invalid Provisions........................................... 63
7.10 Successors and Assigns; Participations....................... 64
7.11 Expenses..................................................... 66
7.12 Accounting Principles........................................ 66
7.13 Deposits; Set Off............................................ 66
7.14 Subordination................................................ 67
7.15 Miscellaneous Additional Compensation to Agent and Banks..... 67
7.16 Disclosure................................................... 68
7.17 Appointment of Stewart as Agent for the Other Borrowers...... 68
7.18 Provisions of Article VIII................................... 68
7.19 Construction................................................. 68
7.20 Multiple Counterparts........................................ 68
7.21 Headings..................................................... 68
7.22 Singular and Plural.......................................... 69
7.23 Applicability of Certain Provisions.......................... 69
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TABLE OF CONTENTS (CONT.)
Page
7.24 Copies..................................................... 69
7.25 NON-APPLICATION OF CHAPTER 15.............................. 69
7.26 Binding Effect; Termination of Existing Credit
Agreement, Etc........................................... 69
7.27 ENTIRE AGREEMENT........................................... 69
ARTICLE VIII - RELATIONSHIP AMONG BANKS................................ 70
8.01 Appointment and Authorization of Agent..................... 70
8.02 Liability of Agent......................................... 70
8.03 Rights of Agent as a Bank.................................. 71
8.04 Independent Decisions; Independent Counsel................. 71
8.05 Indemnification............................................ 71
8.06 Successor Agent............................................ 72
8.07 Notice of Default.......................................... 73
8.08 Certain Actions of Agent Requiring Consent of
Majority Banks........................................... 73
8.09 Certain Actions Requiring Unanimous Consent of Banks....... 73
8.10 No Duty of Documentation Agent or Co-Agent................. 73
EXHIBITS
1.01A Assignment and Acceptance Form
1.01B Committed Note Form
1.01C Competitive Bid Form
1.01D Competitive Bid Request Form
1.01E Competitive Note Form
1.01F Designated Borrower Addendum Form
1.01G Schedule of Existing Letters of Credit
1.01H Maximum Facility Commitment Addendum
1.01I Notice of Borrowing Form
1.01J Notice of Extension/Conversion Form
1.01K Notice of Reduction and Reallocation
1.01L Schedule of Pro Rata Shares
1.01M Guaranty Agreement Form
1.01N Schedule of Subsidiaries
2.20 Schedule of Bank Notice Addresses and Payment Offices
2.21(a) Adjustments to Public Debt Ratings
2.21(b) Withdrawal of Public Debt Ratings
4.16 Schedule of Guarantees by Stewart
4.17 Schedule of Indebtedness
5.08 Quarterly Compliance Certificate
vii
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made and entered into as of the 14th day of
April, 1997, by and among STEWART ENTERPRISES, INC. ("Stewart"), a Louisiana
corporation, EMPRESAS STEWART-CEMENTERIOS, INC. ("Cementerios"), a Louisiana
corporation, EMPRESAS STEWART-FUNERARIAS, INC. ("Funerarias"), a Louisiana
corporation, each Designated Borrower (as hereinafter defined) that becomes
party hereto, CITICORP USA, INC. ("Citicorp"), as documentation agent for the
Banks (as hereinafter defined) and as a Bank, BANK OF AMERICA ILLINOIS ("Bank of
America"), as co-agent for the Banks and as a Bank, NATIONSBANK OF TEXAS, N.A.
("NationsBank"), as agent for the Banks and as a Bank, the other Banks listed on
the signature pages hereof and such other banks as may from time to time become
a party hereto.
W I T N E S S E T H:
WHEREAS, Stewart has requested that the Banks extend various revolving line
of credit facilities to Stewart, Cementerios, Funerarias and the Designated
Borrowers in order to enable Stewart, Cementerios, Funerarias and the Designated
Borrowers to borrow on a revolving basis on and after the date hereof, on the
terms and conditions set forth herein, an aggregate principal amount not in
excess of $600,000,000 at any time outstanding; and
WHEREAS, Stewart has also requested that the Banks provide a procedure
pursuant to which each Bank may, on an uncommitted basis, bid on certain
borrowings by Stewart hereunder; and
WHEREAS, the Banks are willing to extend such credit to Stewart,
Cementerios, Funerarias and the Designated Borrowers on the terms and subject to
the conditions herein set forth.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITION OF TERMS
1.01 Defined Terms. As used in this Agreement, the terms set forth in this
Section 1.01 shall have the meanings assigned to them below:
<PAGE>
"Affiliate". Affiliate of any corporation or other entity shall mean any
Person which directly or indirectly controls, is controlled by or is under
common control with such corporation or other entity and, without limiting the
generality of the foregoing, shall include any Person which beneficially owns or
holds five percent (5%) or more of any class of voting securities (or other
indicia of ownership) of such corporation or other entity. For purposes of this
definition, "control" shall include the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of any
entity, whether through ownership, by contract or otherwise.
"Agreement or Credit Agreement". Shall mean this Credit Agreement, as same
may be amended, supplemented, modified or restated from time to time.
"Agent". Shall mean NationsBank of Texas, N.A., and any successors or
assigns in such capacity.
"Applicable Creditor". Shall have the meaning assigned to that term in
Section 2.17 of this Agreement.
"Applicant Borrower". Shall have the meaning assigned to that term in
Section 2.04 of this Agreement.
"Assignment and Acceptance". Shall mean an Assignment and Acceptance,
substantially in the form of Exhibit "1.01A" hereto, entered into in accordance
with the provisions of Section 7.10 of this Agreement.
"Assignment Effective Date". Shall have the meaning assigned to that term
in Section 2.23 of this Agreement.
"Bank". Shall mean each of the Persons identified as a "Bank" on the
signature pages hereof, and each Person which may become a Bank by way of
assignment in accordance with the provisions of Sections 2.23 and 7.10 hereof,
and their respective successors and permitted assigns.
"Bank of America". Shall mean Bank of America Illinois.
"Base Rate". Shall mean, on any date, a fluctuating rate of interest per
annum (rounded upwards, if necessary, to the nearest one one-hundredth of one
percent (1/100 of 1%)) equal to the higher of:
(a) the rate of interest then most recently announced by NationsBank
as its "prime rate"; and
(b) the Federal Funds Rate most recently determined by NationsBank
plus one-half of one (1/2%) percent.
2
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If for any reason NationsBank shall have determined (which determination shall
be conclusive absent manifest error) that it is unable after due inquiry to
ascertain the Federal Funds Rate for any reason, including the inability of
NationsBank to obtain sufficient quotations in accordance with the terms hereof,
the Base Rate shall be determined without regard to clause (b) of the first
sentence of this definition until the circumstances giving rise to such
inability no longer exist. Neither the "prime rate" nor the Base Rate is
necessarily the lowest rate of interest charged to borrowers of NationsBank from
time to time. Changes in the rate of interest on any Base Rate Loan will take
effect simultaneously with each change in the Base Rate.
"Base Rate Loan". Shall mean a Committed Loan which bears interest at a
rate determined by reference to the Base Rate.
"Basis Point". Shall mean one one-hundredth of one percent (1/100 of 1%).
"Borrower". Shall mean any of Stewart, Cementerios, Funerarias and any
Subsidiary of Stewart that becomes a Borrower under this Agreement pursuant to
Section 2.04.
"Business Day". Shall mean a day other than a Saturday, Sunday, or legal
banking holiday in the States of New York or Texas, except that, when used in
connection with a LIBOR Rate Loan, such day shall also be a day on which
dealings between banks are carried on in U.S. dollar deposits in London, England
and New York, New York.
"Capital Lease". Shall mean, as to any Person, any lease in respect of
which the obligations of such Person constitute Capitalized Lease Obligations.
"Capitalized Lease Obligations". Shall mean, as to any Person, all lease
obligations which shall have been or should be, in accordance with generally
accepted accounting principles, capitalized on the books of such Person.
"Cementerios". Shall mean Empresas Stewart-Cementerios, Inc., a Louisiana
corporation.
"Cementerios Committed Notes". Shall mean the Committed Notes executed by
Cementerios in favor of each of the Banks evidencing the Committed Loans made or
to be made under the Cementerios Revolving Facility, and all extensions,
renewals, amendments, modifications or rearrangements thereof from time to time.
"Cementerios Revolving Facility". Shall have the meaning assigned to that
term in Section 2.01 of this Agreement.
"Change in Control". Shall have the meaning assigned to that term in
Section 6.01 of this Agreement.
"Citicorp". Shall mean Citicorp USA, Inc.
3
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"Closing Date". Shall mean the date of this Agreement.
"Code". Shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Committed Loans". Shall mean the revolving loan or loans made by the
Banks to a Borrower under such Borrower's Revolving Facility, individually or
collectively, as appropriate. Each Committed Loan shall be a LIBOR Rate Loan or
a Base Rate Loan.
"Committed Notes". Shall mean the promissory notes of a Borrower in favor
of each Bank, substantially in the form of Exhibit "1.01B" hereto, evidencing
the Committed Loans made or to be made to such Borrower under such Borrower's
Revolving Facility, and all extensions, renewals, amendments, modifications or
rearrangements thereof from time to time.
"Competitive Bid". Shall mean an offer by a Bank to make a Competitive
Loan pursuant to the terms of Section 2.06, substantially in the form of Exhibit
"1.01C" hereto.
"Competitive Bid Request". Shall mean a request by Stewart for Competitive
Bids in accordance with the provisions of Section 2.06, substantially in the
form of EXHIBIT "1.01D" HERETO.
"Competitive Loan". Shall mean a loan made by a Bank in its discretion to
Stewart pursuant to the bidding procedure described in Section 2.06. Each
Competitive Loan shall bear interest at a fixed rate of interest per annum.
"Competitive Loan Rate". Shall mean, with respect to any Competitive Loan,
the fixed rate of interest offered by the Bank making such Competitive Loan and
accepted by Stewart with respect to such Competitive Loan in accordance with the
provisions of Section 2.06.
"Competitive Notes". Shall mean the promissory notes of Stewart in favor
of each of the Banks, substantially in the form of Exhibit "1.01E" hereto,
evidencing the Competitive Loans, if any, made or to be made to Stewart pursuant
to the bidding procedures described in Section 2.06, and all extensions,
renewals, amendments, modifications or rearrangements thereof from time to time.
"Consolidated Net Income". Shall mean consolidated net income (after taxes)
of Stewart and its Subsidiaries as determined in accordance with generally
accepted accounting principles.
"Consolidated Net Worth". Shall mean stockholders' equity of Stewart and
its Subsidiaries on a consolidated basis determined in accordance with generally
accepted accounting principles.
"Consolidated Total Assets". Shall mean, at any time, the total of all
assets appearing on the consolidated balance sheet of Stewart and its
Subsidiaries prepared in accordance with generally accepted accounting
principles.
4
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"Consolidated Total Capitalization". Shall mean the sum of (a) Consolidated
Net Worth and (b) Funded Indebtedness of Stewart and its Subsidiaries on a
consolidated basis, determined in accordance with generally accepted accounting
principles.
"Death Care Business". Shall mean the cemetery and/or funeral home and/or
crematory business, or businesses related or incidental to the cemetery, funeral
home, or crematory businesses including, but not limited to, monument and vault
construction, flower sales and pre-need sales.
"Default". Shall mean any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Default Rate". Shall have the meaning assigned to that term in Section
2.07 of this Agreement.
"Defaulting Bank". Shall mean, at any time, any Bank that, at such time
(a) has failed to make a Committed Loan required pursuant to the terms of this
Agreement, (b) has failed to pay to the Agent or any Bank an amount owed by such
Bank pursuant to the terms of this Agreement or (c) has been deemed insolvent or
has become subject to a bankruptcy or insolvency proceeding or to a receiver,
trustee or similar official.
"Designated Borrower". Shall mean any Applicant Borrower that becomes a
Borrower hereunder in accordance with the provisions of Section 2.04 hereof.
"Designated Borrower Addendum". Shall mean a Designated Borrower Addendum,
substantially in the form of Exhibit "1.01F" hereto, entered into in accordance
with the provisions of Section 2.04 hereof.
"Designated Borrower Application". Shall have the meaning assigned to that
term in Section 2.04 of this Agreement.
"Dollars and $". Shall mean dollars in lawful currency of the United
States of America.
"Eligible Assignee" Shall mean (a) a Bank, (b) an Affiliate of a Bank; and
(c) any other Person approved by the Agent and, unless an Event of Default has
occurred and is continuing at the time any assignment is to be effected in
accordance with Sections 2.23 and 7.10, Stewart, such approval not to be
unreasonably withheld and such approval to be deemed given by Stewart if no
objection is received by the assigning Bank and the Agent from Stewart within
five (5) Business Days after notice of such proposed assignment has been
provided by the assigning Bank to Stewart; provided, however, that neither
Stewart nor an Affiliate of Stewart shall qualify as an Eligible Assignee.
"Environmental Laws". Shall mean all laws relating to environmental
matters, including, without limitation, those relating to (a) fines, orders,
injunctions, penalties, damages,
5
<PAGE>
contributions, cost recovery compensation, losses or injuries resulting from the
release or threatened release of Hazardous Substances (as defined in Section
7.05 of this Agreement) and to the generation, use, storage, transportation, or
disposal of Hazardous Substances, in any manner applicable to any of the
Borrowers or any of the Subsidiaries or any of their respective properties,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. (S) 9601 et seq.), the Hazardous
Material Transportation Act (49 U.S.C. (S) 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. (S) 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. (S) 1251 et seq.), the Clean Air Act (42 U.S.C.
(S) 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. (S) 2601 et
seq.), the Occupational Safety and Health Act (29 U.S.C. (S) 651 et seq.), and
the Emergency Planning and Community Right-to-Know Act (42 U.S.C. (S) 11001 et
seq.), and (b) environmental protection, including, without limitation, the
National Environmental Policy Act (42 U.S.C. (S) 4321 et seq.), and comparable
state laws, each as amended or supplemented, and any similar or analogous local,
state and federal statutes and regulations promulgated pursuant thereto, each as
in effect as of the date of determination.
"EPA". Shall mean the United States Environmental Protection Agency, and
any successor agency.
"ERISA". Shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, any successor statute(s), and all regulations
promulgated and rulings issued pursuant thereto.
"Eurodollar Reserve Requirement". Shall mean for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the aggregate maximum reserve requirements applicable to
"Eurocurrency Liabilities" (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on "Euro-Dollar
Loans" is determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of any Bank to United States
residents). The Eurodollar Reserve Requirement will change automatically on the
date that any change in such reserve requirements announced by the Board of
Governors of the Federal Reserve System (or any successor) becomes effective.
"Event of Default". Shall have the meaning assigned to that term in Section
6.01 of this Agreement.
"Exchange Act". Shall have the meaning assigned to that term in Section
6.01 of this Agreement.
"Existing Credit Agreements". Shall mean (a) the Fifth Amended and Restated
Loan Agreement, (b) that certain Agreement dated September 20, 1996, by and
between Stewart, as borrower, and NationsBank, as lender, and (c) that certain
Loan Agreement dated as of October 31, 1996, by and among Cementerios and
Funerarias, as borrowers, Stewart, as guarantor, NationsBank, as agent, and the
other lenders named therein.
6
<PAGE>
"Existing Letters of Credit". Shall mean those certain standby letters of
credit described on Exhibit "1.01G" hereto issued and/or renewed in connection
with the Fifth Amended and Restated Loan Agreement.
"Federal Funds Rate". Shall mean, for any day, a fluctuating interest rate
per annum equal 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 at 11:00 A.M. (Dallas, Texas time) 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 such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fifth Amended and Restated Loan Agreement". Shall mean that certain Fifth
Amended and Restated Loan Agreement dated as of December 11, 1995 by and among
Stewart, as borrower, NationsBank, as agent, and the other lenders named
therein, as amended.
"Funded Indebtedness". Shall mean the sum of the following (without
duplication): (a) all Indebtedness whether or not represented by bonds,
debentures, notes or other securities, for the repayment of money borrowed, (b)
all obligations (whether contingent or otherwise) in respect of letters of
credit, bankers' acceptances, surety or other bonds and similar instruments, (c)
all Indebtedness for the payment of the purchase price of property or assets
purchased, (d) all Capitalized Lease Obligations, (e) all guaranties,
endorsements, assumptions or other contingent obligations, in respect of, or to
purchase or otherwise acquire, Indebtedness of others, and (f) all Indebtedness
secured by any mortgage, pledge, security interest or lien existing on property
owned, subject to such mortgage, pledge, security interest or lien, whether or
not the Indebtedness secured thereby shall have been assumed by the owner
thereof.
"Funding Date". Shall have the meaning assigned to that term in Section
2.05 of this Agreement.
"Funerarias". Shall mean Empresas Stewart-Funerarias, Inc., a Louisiana
corporation.
"Funerarias Committed Notes". Shall mean the Committed Notes executed by
Funerarias in favor of each of the Banks evidencing the Committed Loans made or
to be made under the Funerarias Revolving Facility, and all extensions,
renewals, amendments, modifications or rearrangements thereof from time to time.
"Funerarias Revolving Facility". Shall have the meaning assigned to that
term in Section 2.01 of this Agreement.
"Governmental Body". Shall mean and include any federal, state, municipal,
foreign or other governmental department, court, commission, board, bureau,
authority, agency or instrumentality.
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"Gross Up Amount". Shall have the meaning assigned to that term in Section
2.15 of this Agreement.
"Guaranty or Guarantees". By any Person shall mean all obligations of such
Person in any manner directly or indirectly guaranteeing, endorsing or otherwise
becoming a surety for or contingently liable upon any Indebtedness, or interest
or fees relating to any Indebtedness, or any other obligation of any other
Person.
"Guaranteed Indebtedness". Of a Person shall mean all Indebtedness and
obligations guaranteed, directly or indirectly, in any manner by such Person, or
in effect guaranteed, directly or indirectly, by such Person through an
endorsement, an agreement of suretyship, or any agreement rendering such Person
contingently liable, or through an agreement, contingent or otherwise, to
purchase indebtedness or to purchase, sell or lease (as lessee or lessor)
property or to purchase or sell services, primarily for the purpose of enabling
the debtor or seller to make payment of the indebtedness or to assure the holder
of the indebtedness against loss, or to supply funds to or in any other manner
invest in the debtor or otherwise.
"Hazardous Substances". Shall have the meaning assigned to that term in
Section 7.05 of this Agreement.
"Highest Lawful Rate". Shall mean the maximum rate of non-usurious interest
permitted by applicable law as the same exists from day to day during the term
hereof, including for purposes of Article 5069-1.04 Vernon's Texas Civil
Statutes, as amended (and as the same may be incorporated by reference in other
Texas statutes), but otherwise without limitation, the rate based upon the
"indicated (weekly) rate ceiling."
"Indebtedness". Of any Person shall mean all liabilities of such Person
which, in accordance with generally accepted accounting principles on a
consolidated basis, would be classified as indebtedness, but in any event shall
include:
(a) all indebtedness and obligations guaranteed, directly or
indirectly, in any manner by such Person, or in effect
guaranteed, directly or indirectly, by such Person through an
agreement, contingent or otherwise, to purchase indebtedness or
to purchase, sell or lease (as lessee or lessor) property or to
purchase or sell services, primarily for the purpose of enabling
the debtor or seller to make payment of the indebtedness or to
assure the holder of the indebtedness against loss, or to supply
funds to or in any other manner invest in the debtor or
otherwise;
(b) all indebtedness for the payment or purchase of which such Person
has agreed, contingently or otherwise, to advance or supply
funds;
(c) all indebtedness secured by any mortgage, Lien, pledge, charge,
or other security interest or encumbrance upon or in any of the
property owned by
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such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness;
(d) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement given as a
security device (including payment obligations under any lease in
the nature of a title retention agreement) with respect to
property acquired by such Person; and
(e) Funded Indebtedness.
For the purpose of computing the Indebtedness of any Person, there shall be
excluded endorsements of checks and drafts for deposit in the ordinary course of
business.
"Indemnified Parties". Shall have the meaning assigned to that term in
Section 7.05 of this Agreement.
"Initial Borrowing Date". Shall have the meaning assigned to that term in
Section 3.01 of this Agreement.
"Interest Payment Date". Shall mean (a) as to any Base Rate Loan, the last
day of each January, April, July and October and the Termination Date, and (b)
as to any LIBOR Rate Loan or any Competitive Loan, the last day of each January,
April, July and October as well as the last day of the applicable Interest
Period and the Termination Date. If an Interest Payment Date falls on a date
which is not a Business Day, such Interest Payment Date shall be deemed to be
the next succeeding Business Day, except that in the case of LIBOR Rate Loans
where the next succeeding Business Day falls in the next succeeding calendar
month, then on the first preceding Business Day.
"Interest Period". Shall mean (a) with respect to any LIBOR Rate Loan, a
period, as a Borrower may elect, commencing in each case on the date of the
borrowing (including extensions and conversions) and ending on a date that is
between seven (7) days and three hundred sixty (360) days thereafter, and (b)
with respect to any Competitive Loan, a period commencing on the date of the
borrowing and ending on the date specified in the respective Competitive Bid
whereby the offer to make such Competitive Loan was extended, which shall be not
less than seven (7) days nor more than one hundred eighty (180) days duration;
provided, however, (i) if any Interest Period would end on a day which is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day (except that in the case of LIBOR Rate Loans where the next
succeeding Business Day falls in the next succeeding calendar month, then on the
first preceding Business Day), and (ii) no Interest Period shall extend beyond
the Maturity Date.
"Investments". Shall have the meaning assigned to that term in Section
5.12 of this Agreement.
"Judgment Currency". Shall have the meaning assigned to that term in
Section 2.17 of this Agreement.
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"LC Exposure". Shall mean, with respect to a subject Borrower, the
aggregate face amount of all undrawn standby letters of credit issued by the
Agent for the account of such Borrower pursuant to this Agreement plus the
aggregate of all amounts drawn under standby letters of credit issued by the
Agent for the account of such Borrower pursuant hereto that have not yet been
reimbursed by such Borrower.
"LIBOR Rate". Shall mean a rate per annum (rounded upward, if necessary, to
the nearest one one-hundredth of one percent (1/100th of 1%)) equal to the
quotient of (a) the NationsBank LIBOR Rate with respect to an applicable
Interest Period, divided by (b) the remainder of 1.00 minus the Eurodollar
Reserve Requirement in effect on the first day of such Interest Period. The
LIBOR Rate may be adjusted automatically on and as of the effective date of any
change in the Eurodollar Reserve Requirement.
"LIBOR Rate Loan". Shall mean a Committed Loan which bears interest at a
rate determined by reference to the LIBOR Rate.
"Lien". Shall mean any interest in property securing an obligation owed to,
or a claim by, a Person other than the owner of the property, including, but not
limited to, a security agreement, assignment, mortgage, pledge, conditional sale
or trust receipt or a lease, consignment or bailment for security purposes. For
purposes of this Agreement, the Borrowers shall be deemed to be the owners of
any property which they have acquired or hold subject to a conditional sale
agreement, financing lease or other agreement pursuant to which title to the
property has been retained by or vested in some other Person for security
purposes.
"Limited Material Adverse Change". Shall mean a material adverse change in
the condition or operations, financial or otherwise, of a Borrower other than
Stewart, which material adverse change does not cause a material adverse change
in the consolidated condition or operations, financial or otherwise, of Stewart
and its Subsidiaries taken as a whole.
"Loan". Shall mean, as the context may require, a Committed Loan (whether a
Base Rate Loan or a LIBOR Rate Loan) or a Competitive Loan.
"Loan Papers". Shall mean, collectively, this Agreement, the Committed
Notes, the Competitive Notes, the Stewart Guarantees, the Designated Borrower
Addenda and the Maximum Facility Commitment Addenda, together with any and all
additional promissory notes, letter of credit applications and/or agreements,
guaranty agreements, reports, certificates, corporate and/or partnership
resolutions, notices, statements and other documents and instruments evidencing,
securing or guaranteeing the Obligation or heretofore or hereafter delivered to
the Agent or the Banks in connection with the Obligation or this Agreement, and
any extensions, renewals, amendments or restatements of any of the foregoing.
"Majority Banks". Shall mean at any time Banks having 51.0% or more of the
aggregate Revolving Facility Commitments or, if all of the Revolving Facility
Commitments shall have been terminated, holding 51.0% or more of the aggregate
unpaid principal amount of all Loans;
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provided that the Revolving Facility Commitments of, or the aggregate unpaid
principal amount of Loans owing to, a Defaulting Bank shall be excluded for
purposes hereof in making a determination of Majority Banks.
"Material Adverse Effect". Shall mean a material adverse effect on (a) the
condition (financial or otherwise), operations, business, assets, liabilities or
prospects of Stewart and its Subsidiaries taken as a whole, (b) the ability of
Stewart and its Subsidiaries, taken as a whole, to perform any material
obligation under the Loan Papers or (c) the material rights and remedies of the
Banks under the Loan Papers.
"Maturity Date". Shall mean April 30, 2002, as the same may be extended
from time to time with the unanimous consent of the Banks as provided in Section
2.22 hereof.
"Maximum Facility Commitment Addendum". Shall mean a "Maximum Facility
Commitment Addendum", substantially in the form of Exhibit "1.01H" hereto,
entered into in accordance with the provisions of Section 2.04 hereof.
"Maximum Facility Commitment Amount". Shall mean, as to each Revolving
Facility, subject to the limitations set forth in this Agreement, the maximum
aggregate principal amount of Committed Loans (including LC Exposure) that may
be outstanding from time to time under such Revolving Facility as such amount
may be reduced or increased from time to time pursuant to this Agreement. As of
the Closing Date, the Maximum Facility Commitment Amount under (a) the Stewart
Revolving Facility is $512,000,000, (b) the Cementerios Revolving Facility is
$37,000,000 and (c) the Funerarias Revolving Facility is $51,000,000.
"Moody's". Shall mean Moody's Investors Service, Inc.
"Multiemployer Plan". Shall mean a Plan which is a "multiemployer plan"
within the meaning of Section 3(37) or 4001(a)(3) of ERISA to which Stewart, any
of the Subsidiaries or any of the Related Parties are contributing, or ever has
contributed, or has, or ever has had, an obligation to contribute.
"NationsBank". Shall mean NationsBank of Texas, N.A.
"NationsBank LIBOR Rate". Shall mean, with respect to each Interest Period
applicable to a LIBOR Rate Loan, the rate of interest per annum (rounded upward,
if necessary, to the nearest one one-hundredth of one percent (1/100 of 1%))
quoted by NationsBank at 9:00 A.M. Dallas, Texas time (or as soon thereafter as
practicable) on the day that is forty-eight (48) hours prior to the first day of
such Interest Period as the "LIBOR Rate" applicable for loans in an amount equal
or comparable to the amount of the loan to which such Interest Period applies,
having a maturity comparable to such Interest Period. It is specifically
understood and agreed, however, that in the event that the Interest Period
selected by a Borrower for a LIBOR Rate Loan is for fewer than thirty (30) days,
the NationsBank LIBOR Rate for such Interest Period shall be the same as the
NationsBank LIBOR Rate for a thirty (30) day Interest Period.
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"Notes". Shall mean the Committed Notes and/or the Competitive Notes,
collectively, separately or individually, as appropriate, and all extensions,
renewals, amendments, modifications or rearrangements thereof from time to time.
"Notice of Borrowing". Shall mean the written notice of borrowing as
referenced and defined in Section 2.05 of this Agreement, substantially in the
form of Exhibit "1.01I" attached hereto.
"Notice of Extension/Conversion". Shall mean the written notice of
extension or conversion of a Committed Loan in accordance with Section 2.08 of
this Agreement, in substantially the form of Exhibit "1.01J" attached hereto.
"Notice of Reduction and Reallocation". Shall mean a Notice of Reduction
and Reallocation, substantially in the form of Exhibit "1.01K" hereto, entered
into in accordance with the provisions of Section 2.04 hereof.
"Other Taxes". Shall have the meaning assigned to that term in Section 2.15
of this Agreement.
"Obligation". At any particular time shall mean, collectively, (a) the
aggregate unpaid principal amount of all Loans, (b) all interest accrued and
payable thereon, (c) all fees and other charges payable hereunder (including
attorneys fees incurred in connection with the enforcement and collection of the
Borrowers' obligations hereunder or any part thereof), (d) all obligations,
direct or contingent, related to any LC Exposure, (e) any and all obligations of
the Borrowers in respect of such sums, and (f) all other amounts from time to
time payable by the Borrowers to the Agent or the Banks pursuant to this
Agreement or any other Loan Papers.
"Participant". Shall have the meaning assigned to that term in Section 7.10
of this Agreement.
"Permitted Investments". Shall mean, with respect to Stewart and its
Subsidiaries, investments in (a) direct obligations of the United States or
government agencies of the United States, (b) commercial paper of any United
States issuer rated not lower than "A-2" or "P-2" by S&P or Moody's,
respectively, (c) certificates of deposit and bankers' acceptances of any
commercial bank which is a member of the Federal Reserve System and which has
capital, surplus and undivided profits aggregating not less than one hundred
million ($100,000,000) Dollars, (d) certificates of deposit and bankers
acceptances from commercial banks that have (i) a credit rating of "A" or better
by S&P or Moody's, and (ii) capital of not less than one hundred million
($100,000,000) Dollars, (e) any marketable debt securities that are investment
grade (i.e., "BBB-" or better by S&P or "Baa3" or better by Moody's), (f) mutual
funds in which the majority of the assets held are marketable debt securities
that are investment grade, (g) marketable equity securities that are publicly
traded, (h) investments classifiable as current assets in accordance with
generally accepted accounting principles in money market investment programs (x)
that are classified as "investment grade" or in which the majority of the
investments held by the funds are classified as "investment grade" and (y) that
are managed by reputable financial institutions having
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capital of at least one hundred million ($100,000,000.00) Dollars, (i) money
market and auction rate preferred stocks rated "A" or better by S&P or Moody's
and (j) short term investments backed by the full faith and credit or the
implied credit of the respective national government of each foreign country in
which Stewart or any Subsidiary conducts business operations.
"Person". Shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Body.
"Plan". Shall mean and include each benefit plan (including any
Multiemployer Plan), program, arrangement or policy in the nature of or
concerning (a) deferred compensation, incentive compensation, stock purchase,
stock option, vacation pay, retirement or severance benefits, or (b) medical,
dental, disability or other such arrangements, which is maintained or sponsored
(or required to be maintained or sponsored) by Stewart, any of the Subsidiaries
or any of the Related Parties, whether for existing or former employees, or to
which Stewart, any of the Subsidiaries or any of the Related Parties, has ever
contributed, or has, or ever has had, an obligation to contribute; provided,
however, that the term "Plan" shall not include those benefit plans or similar
programs maintained outside of the United States for the benefit of Persons
substantially all of whom are non-resident aliens.
"Private Placement Agreements". Shall mean the two Note Agreements
described in the definition of "Private Placement Noteholders" set forth below
in this Section 1.01.
"Private Placement Noteholders". Shall mean the holders of those certain
6.04% Senior Notes of Stewart in the original aggregate principal amount of
$50,000,000 issued pursuant to that certain Note Agreement dated December 21,
1993, (as amended to date), by and among Stewart, Principal Mutual Life
Insurance Company, The Great-West Life Assurance Company and The Variable
Annuity Life Insurance Company as well as those certain Series A Senior Notes,
Series B Senior Notes and Series C Senior Notes of Stewart in the original
aggregate principal sum of $75,000,000 issued pursuant to that certain Note
Agreement dated November 7, 1994 (as amended to date) by and among Stewart, The
Variable Annuity Life Insurance Company, American General Life Insurance
Company, American General Life and Accident Insurance Company, Gulf Life
Insurance Company, Principal Mutual Life Insurance Company and Great-West Life &
Annuity Insurance Company.
"Pro Rata Share". Shall mean for each Bank, as of the Closing Date, the
percentage set forth opposite the name of such Bank in Exhibit "1.01L" attached
hereto, as such percentage amount may be increased or decreased from time to
time pursuant to this Agreement; and for each Person that becomes a Bank
subsequent to the Closing Date, the percentage specified for such Bank in the
assignment agreement entered into with such Bank pursuant to Sections 2.23 or
7.10 of this Agreement, as such percentage may thereafter be increased or
decreased from time to time pursuant to this Agreement.
"Property". Shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
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"Public Debt Ratings". Shall have the meaning assigned to that term in
Section 2.02 of this Agreement.
"Register". Shall have the meaning assigned to that term in Section 7.10
of this Agreement.
"Related Party" or "Related Parties". Shall mean and include, collectively
and individually, any Person with which Stewart or any of its Subsidiaries would
be treated as a single employer under Section 414(b), (c), (m), (n), or (o) of
the Code.
"Replaced Bank". Shall have the meaning assigned to that term in Section
2.23 of this Agreement.
"Replacement Bank". Shall have the meaning assigned to that term in
Section 2.23 of this Agreement.
"Reportable Event". Shall have the meaning assigned to that term in Title
IV of ERISA.
"Requirement of Law". Shall mean, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Body, in each case applicable to or
binding upon such Person or any of its material Property.
"Restricted Payments". Shall have the meaning assigned to that term in
Section 5.15 of this Agreement.
"Revolving Facility or Revolving Facilities". Shall mean, as the context
may require, one or more of the revolving line of credit facilities established
under Section 2.01 or 2.04 of this Agreement pursuant to which the Banks have
agreed to make Committed Loans to a Borrower from time to time through the
Termination Date subject to a stated maximum principal amount outstanding
(including LC Exposure to such Borrower) at any one time, subject to the
limitations set forth in this Agreement. As of the Closing Date, there shall be
three Revolving Facilities established under this Agreement, i.e., the Stewart
Revolving Facility, the Cementerios Revolving Facility and the Funerarias
Revolving Facility.
"Revolving Facility Commitment". Shall mean each Bank's obligation to fund
its Pro Rata Share of a Committed Loan (including participation in standby
letters of credit issued) to a Borrower under such Borrower's Revolving
Facility.
"S&P". Shall mean Standard & Poor's Rating Group, a division of McGraw
Hill, Inc.
"Stewart". Shall mean Stewart Enterprises, Inc., a Louisiana corporation.
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"Stewart/Cementerios Guaranty". Shall mean that certain Guaranty agreement
executed by Stewart in favor of the Banks guarantying the Indebtedness and
obligations due by Cementerios in favor of the Banks hereunder, substantially in
the form of Exhibit "1.01M" hereto.
"Stewart Committed Notes". Shall mean the Committed Notes executed by
Stewart in favor of each of the Banks evidencing the Committed Loans made or to
be made under the Stewart Revolving Facility, and all extensions, renewals,
amendments, modifications or rearrangements thereof from time to time.
"Stewart/Funerarias Guaranty". Shall mean that certain Guaranty agreement
executed by Stewart in favor of the Banks guarantying the Indebtedness and
obligations due by Funerarias in favor of the Banks hereunder, substantially in
the form of Exhibit "1.01M" hereto.
"Stewart Guarantees". Shall mean, as the context may require, any or all of
the Stewart/Cementerios Guaranty, the Stewart/Funerarias Guaranty and the
Guaranty agreement(s) executed by Stewart in favor of the Banks with respect to
any Revolving Facility which may be established in favor of a Designated
Borrower in accordance with the provisions of Section 2.04 of this Agreement,
substantially in the form of EXHIBIT "1.01M" HERETO.
"Stewart Revolving Facility". Shall have the meaning assigned to that term
in Section 2.01 of this Agreement.
"Stock". Shall have the meaning assigned to that term in Section 6.01 of
this Agreement.
"Subsidiary or Subsidiaries". Shall mean any corporation, partnership,
joint venture or other legal entity, fifty percent (50%) or more of the voting
stock (or other indicia of ownership) of which is owned, directly or indirectly,
by any of the Borrowers or by any Subsidiary of any of the Borrowers, and
specifically including, as of April 11, 1997, the entities described on Exhibit
"1.01N" hereto. It is specifically understood that the term "Subsidiaries" shall
include Cementerios, Funerarias and any other Subsidiary that becomes a Borrower
hereunder pursuant to the provisions of Section 2.04 of this Agreement.
"Taxes". Shall have the meaning assigned to that term in Section 2.15 of
this Agreement.
"Termination Date". Shall mean the earlier of
(a) the Maturity Date; and
(b) the date on which all Revolving Facility Commitments are
terminated in full.
"Total Commitment Amount". Shall mean, on any date, $600,000,000, as such
amount may be reduced from time to time pursuant to the terms of this Agreement.
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"Wholly-Owned Subsidiary". Shall mean, with respect to any Person, any
Subsidiary of such Person all of the shares of capital stock or other ownership
interests of which (except directors' qualifying shares or shares required to be
held by a Person pursuant to licensing requirements of any Governmental Body)
are at the time directly or indirectly owned by such Person.
"Withholding Tax Absorption Fee". Shall have the meaning assigned to that
term in Section 2.15 of this Agreement.
ARTICLE II
THE CREDIT FACILITIES
2.01 Commitments. Subject to the terms and conditions contained herein,
each Bank severally agrees to make Committed Loans to Stewart, Cementerios and
Funerarias as hereinafter set forth. Specifically, the Banks agree to extend to
Stewart a revolving line of credit facility and to make Committed Loans to
Stewart thereunder from time to time through the Termination Date in an
aggregate maximum principal amount of up to $512,000,000 outstanding at any one
time (as extended, renewed, modified or rearranged from time to time, the
"Stewart Revolving Facility"). Additionally, the Banks agree to extend to
Cementerios a revolving line of credit facility and to make Committed Loans to
Cementerios thereunder from time to time through the Termination Date in an
aggregate maximum principal amount of up to $37,000,000 outstanding at any one
time (as extended, renewed, modified or rearranged from time to time, the
"Cementerios Revolving Facility"). Additionally, the Banks agree to extend to
Funerarias a revolving line of credit facility and to make Committed Loans to
Funerarias thereunder from time to time through the Termination Date in an
aggregate maximum principal amount of up to $51,000,000 outstanding at any one
time (as extended, renewed, modified or rearranged from time to time, the
"Funerarias Revolving Facility"). The Committed Loans made under such Revolving
Facilities shall be evidenced by the Stewart Committed Notes, the Cementerios
Committed Notes and the Funerarias Committed Notes, respectively, delivered to
the Banks. Committed Loans made under each Revolving Facility may consist of
Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the subject
Borrower may request, and may be repaid and reborrowed in accordance with the
provisions hereof. Notwithstanding anything contained herein to the contrary,
the maximum obligation of each Bank with respect to Committed Loans made under
each Revolving Facility shall be limited to its Pro Rata Share thereof, and in
no event shall the obligations of the Banks to make Committed Loans under each
Revolving Facility be deemed to be joint and several. Failure by any one of the
Banks to honor its obligations hereunder shall not render the non-defaulting
Banks liable to fulfill the obligations of such defaulting Bank, but any such
failure by one of the Banks shall not relieve the non-defaulting Banks of their
obligations to fund their Pro Rata Share of Committed Loans under each Revolving
Facility.
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2.02 Letters of Credit.
(a) Subject to the limitations and conditions set forth in Section
2.01, this Section 2.02 and elsewhere in this Agreement, each Borrower may use
its respective Revolving Facility as the basis on which to request issuance of
standby letters of credit payable in Dollars by the agent; provided that the
aggregate LC Exposure shall not exceed $50,000,000 outstanding at any one time
to all Borrowers collectively, in accordance with and subject to the terms and
provisions of this Agreement; and provided, further, that in no event may any
standby letter of credit so requested have an expiration date that is later than
the Maturity Date. The annual fees for the issuance of standby letters of
credit issued hereunder shall be as follows:
(i) a fronting fee of 12.5 Basis Points per annum of the face
amount of each standby letter of credit issued shall be
payable to Agent for the Agent's sole account; and
(ii) an issuance fee shall be payable to the Banks (to be shared
in accordance with the Pro Rata Share of each) in an amount
that is based upon Stewart's senior unsecured public debt
ratings (the "Public Debt Ratings") from S&P and Moody's
from time to time. Based upon Stewart's current Public Debt
Ratings of "BBB" (S&P) and "Baa3" (Moody's), the issuance
fee shall initially be 22.5 Basis Points per annum of the
face amount of any standby letter of credit issued. In the
event of a modification or withdrawal of Stewart's current
Public Debt Ratings from S&P and/or Moody's, the issuance
fee payable under this Section 2.02 shall be automatically
adjusted on a prospective basis in accordance with the
provisions of Section 2.21 hereof.
Both of such fees shall be payable upon issuance of each such standby letter of
credit and on each anniversary of such issuance, in advance, until the
expiration date of such letter of credit.
(b) The aggregate undrawn amounts of all standby letters of credit
outstanding plus the aggregate unreimbursed amounts of all drawn standby letters
of credit under each Revolving Facility, respectively, shall be treated as
Committed Loans for purposes of determining the availability of funds under each
such Revolving Facility, respectively, from time to time.
(c) In order to obtain the issuance of any standby letter of credit
hereunder, the subject Borrower shall provide the Agent with a completed letter
of credit application and reimbursement agreement executed by such Borrower, in
form and substance acceptable to Agent, for each standby letter of credit so
requested, at least three (3) Business Days prior to the proposed date of
issuance of such standby letter of credit. The Agent shall promptly notify each
other Bank of such request for issuance of a standby letter of credit. Upon
satisfaction of the terms and conditions of this Agreement, the Agent shall
issue the requested standby letter of credit, it being specifically understood
by each Borrower that any such letter of credit issued shall be in form and
substance satisfactory to Agent. Upon issuance of a standby letter of credit,
each
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Bank shall share the obligation represented by each such standby letter of
credit so issued in an amount equal to such Bank's Pro Rata Share. The
participation of each Bank in each standby letter of credit shall be automatic.
(d) In the event of a draw by a beneficiary under any standby letter
of credit so issued, the Agent shall notify each Bank of such draw not later
than 10:00 A.M., Dallas, Texas time on the date of payment of such draw,
whereupon each Bank will immediately make available to the Agent at Agent's
principal office in Dallas, Texas in Dollars and in immediately available funds
such Bank's Pro Rata Share of such draw. If and to the extent any Bank shall not
make such funds immediately available to the Agent, such Bank agrees to repay to
the Agent such amount, together with interest thereon, for each day from the
date the Agent funds such draw until the date such amount is repaid by such Bank
to the Agent, at the Federal Funds Rate. If such Bank does not pay such amount
forthwith upon Agent's demand therefor, the Agent shall promptly notify the
subject Borrower, and such Borrower shall immediately pay such amount to the
Agent, together with interest thereon, for each day from the date the Agent
funds such draw until and including the date such amount is repaid to the Agent,
at the Base Rate. Additionally, in the event of such a draw by a beneficiary
under a standby letter of credit, the Banks (to the extent each Bank repays
Agent) shall be deemed to have made a Base Rate Loan under the Revolving
Facility in question in an amount equal to the amount so drawn.
(e) Without limiting the generality of any other Loan Paper, upon the
occurrence of any Event of Default, or upon the Termination Date, an amount
equal to the respective LC Exposure of each Borrower shall be deemed to be
forthwith due and owing by each such Borrower to the Agent and the Banks as of
such date. The obligation to pay such amount shall be absolute and
unconditional, without regard to whether any beneficiary of any letter of credit
has attempted to draw down all or a portion of such amount under the terms of a
letter of credit. Such payments shall be held by the Agent on behalf of the
Banks as cash collateral securing the LC Exposure (and other Obligations) in an
account or accounts at the principal lending office of the Agent, and each
Borrower hereby grants to and by its deposit with the Agent grants to the Agent
a security interest in such cash collateral.
(f) In connection with the Fifth Amended and Restated Loan Agreement,
the Agent issued the Existing Letters of Credit for the account of Stewart.
Simultaneous with the making of the initial Committed Loans hereunder, each Bank
shall share the obligations represented by such Existing Letters of Credit in an
amount equal to such Bank's Pro Rata Share. Thereupon, the Existing Letters of
Credit shall constitute "standby letters of credit" within the meaning of this
Section 2.02, shall be deemed to have been issued pursuant to this Agreement,
and all rights and obligations with respect to such Existing Letters of Credit
shall be governed by the terms of this Agreement. The issuance fees payable in
connection with renewals, if any, of the Existing Letters of Credit shall be
shared by the Banks ratably in accordance with the Pro Rata Share of each.
2.03 Banks Not Permitted or Required To Make or Participate in Loans Under
Certain Circumstances. No Bank shall be permitted or required to make any Loan
(whether a Committed Loan or a Competitive Loan), nor shall any standby letter
of credit be issued, to a Borrower if,
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after giving effect thereto, (a) the aggregate principal amount outstanding of
all Committed Loans under such Borrower's Revolving Facility, plus (b) the LC
Exposure to such Borrower, plus (c) the aggregate principal amount outstanding
of all Competitive Loans to such Borrower, would exceed at any time the Maximum
Facility Commitment Amount for the Revolving Facility extended to such Borrower.
2.04 Additional Revolving Facilities.
(a) Establishment. Subject to the conditions and limitations set
forth in this Agreement, Stewart shall have the right to request that the Banks
establish additional revolving line of credit facilities to Wholly-Owned
Subsidiaries of Stewart (or other Subsidiaries, subject to the approval of
Agent) designated by Stewart (an "Applicant Borrower"), all in the manner and in
accordance with the procedures hereinafter set forth. At least thirty (30) days
prior to the date that Stewart desires to establish such a revolving line of
credit facility, Stewart shall submit to Agent an application in form and
substance satisfactory to Agent (the "Designated Borrower Application"), which
application shall be accompanied by such corporate and financial information
regarding the Applicant Borrower as the Agent shall request. It is specifically
understood that the Banks shall be under no obligation to establish any such
revolving line of credit facility unless and until such Designated Borrower
Application shall have been approved by Agent. In its consideration of whether
to approve such Designated Borrower Application, the Agent may consider such
criteria as it deems appropriate, in its discretion, including, without
limitation, whether after giving effect to the Loans proposed to be made under
such revolving line of credit facility, (i) the Applicant Borrower's capital
will reasonably support the contemplated business activities of the Applicant
Borrower; (ii) the fair market value of the Applicant Borrower's assets will
reasonably exceed its liabilities; and (iii) the Applicant Borrower's cash flow
will be adequate to service its required obligations, including debt service.
Upon receipt of approval, if any, of the Agent, and upon execution and delivery
to the Agent and the Banks of the Designated Borrower Addendum and the
fulfillment of the other conditions set forth in this Section 2.04, such
Applicant Borrower shall become a "Borrower" hereunder and shall be (A) entitled
to all rights and benefits of a Borrower hereunder (including, without
limitation, the right to make Committed Loan borrowings up to the Maximum
Facility Commitment Amount applicable to it upon satisfaction of the conditions
set forth in Sections 3.02, 3.03 and elsewhere in this Agreement), and (B)
subject to all obligations of a Borrower hereunder. The revolving line of
credit facility established in favor of such Applicant Borrower shall constitute
a "Revolving Facility" hereunder. Committed Loans under each such Revolving
Facility shall be evidenced by the Committed Notes executed by such additional
Borrower and delivered to the Banks.
(b) Increases to Existing Revolving Facilities. In addition to
Stewart's right to request the establishment of additional Revolving Facilities
in accordance with Section 2.04(a) above, Stewart shall also have the right from
time to time to request that the Maximum Facility Commitment Amount for a
Revolving Facility in favor of any other Borrower be increased from its then-
existing amount to a greater amount. Any such increase shall be subject to the
approval of the Agent, and the procedures to be followed in connection therewith
shall be substantially similar to those set forth in Section 2.04(a) above for
the establishment of a new Revolving Facility. Specifically, at least thirty
(30) days prior to the date that Stewart desires such an
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increase, Stewart shall submit to the Agent an application, in form and
substance satisfactory to the Agent, which application shall be accompanied by
such additional corporate and financial information regarding the subject
Borrower as the Agent shall request. Thereupon, the Agent shall evaluate the
request, employing such criteria as it deems reasonably appropriate, in its
discretion, including, without limitation, the criteria specifically set forth
in Section 2.04(a) above. Upon receipt of approval, if any, of the Agent, the
subject Borrower, Stewart and each of the other Borrowers shall execute and
deliver to the Agent (i) a Maximum Facility Commitment Addendum in order to
evidence the increase in the Maximum Facility Commitment Amount for the
Revolving Facility of the subject Borrower and the corresponding reduction of
the Maximum Facility Commitment Amount for the Revolving Facility of another
Borrower or Borrowers in accordance with the provisions of Section 2.04(c)
below, and (ii) such additional Notes, resolutions and other documentation as
the Agent shall reasonably request, all in form and substance satisfactory to
the Agent. Such an increase and corresponding reduction of the Maximum Facility
Commitment Amounts shall not be effective until the Maximum Facility Commitment
Addendum and the accompanying documentation shall have been received and
accepted by the Agent, which acceptance shall be evidenced by Agent's execution
of the Maximum Facility Commitment Addendum. Thereupon, the Maximum Facility
Commitment Amount of the subject Borrower shall be so increased and, subject to
the fulfillment of the conditions set forth in Section 3.02 and elsewhere in
this Agreement, the subject Borrower shall be entitled to make Committed Loan
borrowings up to the newly-increased Maximum Facility Commitment Amount. The
Agent shall notify each of the Banks promptly upon its acceptance of the Maximum
Facility Commitment Addendum as provided for herein.
(c) Reduction of Other Maximum Facility Commitment Amounts. In
addition to the other conditions provided for herein, in order to establish a
Revolving Facility as provided for in Section 2.04(a) above or to increase the
Maximum Facility Commitment Amount of an existing Revolving Facility as provided
in Section 2.04(b) above, the Maximum Facility Commitment Amount under one or
more of the existing Revolving Facilities, as agreed to by the Agent and
Stewart, shall be reduced in an amount equal to the Maximum Facility Commitment
Amount for the proposed Revolving Facility, or in an amount equal to the
increase of the Maximum Facility Commitment Amount of an existing Revolving
Facility under Section 2.04(b) above, so that the aggregate of all Maximum
Facility Commitment Amounts shall never exceed the Total Commitment Amount.
Notwithstanding the foregoing, no such reduction of a Maximum Facility
Commitment Amount for an existing Revolving Facility shall be permitted if,
after giving effect thereto, the aggregate principal amount outstanding of
Committed Loans under such Revolving Facility, together with the LC Exposure
thereunder, plus the aggregate principal amount outstanding of Competitive Loans
to the applicable Borrower would exceed the Maximum Facility Commitment Amount
for such Revolving Facility. It is specifically understood and agreed that once
the Maximum Facility Commitment Amount of a Revolving Facility is reduced as set
forth in this Section 2.04(c), the same may not be increased thereafter except
in accordance with the provisions of Section 2.04(b) above and, in the case of
the Stewart Revolving Facility, the provisions of Section 2.04(e) below.
(d) Limitation on Revolving Facilities of Subsidiaries. In no event
may the aggregate Maximum Facility Commitment Amounts for the Cementerios
Revolving Facility, the
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Funerarias Revolving Facility and any Revolving Facilities established in
accordance with Section 2.04(a) above exceed at any time the principal sum of
$200,000,000 or such lesser sum as may result from termination, in whole or in
part, of any of such Revolving Facilities in accordance with the provisions of
Section 2.09(a) or 5.14(e) of this Agreement.
(e) Reduction and Reallocation to Stewart. Subject to the conditions
and limitations hereinafter set forth, Stewart may from time to time, without
the approval of the Agent or any Bank, reduce the Maximum Facility Commitment
Amount for the Revolving Facility in favor of any other Borrower hereunder and
effect a corresponding increase in the Maximum Facility Commitment Amount for
the Stewart Revolving Facility. In order to effect any such reduction and
corresponding increase, Stewart and the other Borrowers shall execute and
deliver to the Agent a Notice of Reduction and Reallocation together with such
Notes, resolutions and other documentation as the Agent shall request, all in
form and substance satisfactory to the Agent. Such reduction and corresponding
increase in the subject Maximum Facility Commitment Amounts shall not become
effective until the Notice of Reduction and Reallocation and the accompanying
documentation shall be received and accepted by the Agent, which acceptance
shall be evidenced by Agent's execution of the Notice of Reduction and
Reallocation. The Agent shall notify each of the Banks promptly upon its
acceptance of any Notice of Reduction and Reallocation. With respect to the
newly-reduced Maximum Facility Commitment Amount for the Revolving Facility in
question, it is specifically understood that such reduced Maximum Facility
Commitment Amount may not thereafter be increased except in accordance with the
provisions of Section 2.04(b) above. Notwithstanding anything contained herein
to the contrary, (i) no such reduction of a Maximum Facility Commitment Amount
for an existing Revolving Facility shall be permitted if, after giving effect
thereto, the aggregate principal amount outstanding of Committed Loans under
such Revolving Facility, together with the LC Exposure thereunder, plus the
aggregate principal amount outstanding of Competitive Loans to the applicable
Borrower would exceed the Maximum Facility Commitment Amount for such Revolving
Facility and (ii) in no event may the aggregate of all Maximum Facility
Commitment Amounts ever exceed the Total Commitment Amount.
2.05 Committed Loans.
(a) Committed Loan Borrowings.
(i) Notice of Borrowing. A Borrower shall request a Committed
Loan borrowing by delivering a Notice of Borrowing (or by telephone notice
promptly confirmed by a Notice of Borrowing) to the Agent not later than 9:00
A.M. (Dallas, Texas time) on the Business Day of the requested borrowing in the
case of Base Rate Loans, and not later than 11:00 A.M. (Dallas, Texas time) on
the second Business Day prior to the date of the requested borrowing in the case
of LIBOR Rate Loans. Each such request for borrowing shall be irrevocable and
shall specify (A) that a Committed Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day) (the "Funding Date"), (C)
the aggregate principal amount to be borrowed, and (D) whether the borrowing
shall be comprised of Base Rate Loans, LIBOR Rate Loans or a combination
thereof, and if LIBOR Rate Loans are requested, the Interest Period(s) therefor.
If the subject Borrower shall fail to specify in any such Notice of Borrowing
(1) an
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applicable Interest Period in the case of a LIBOR Rate Loan, then such
notice shall be deemed to be a request for an Interest Period of thirty (30)
days, or (2) the type of Committed Loan (i.e., either a Base Rate Loan or a
LIBOR Rate Loan) requested, then such notice shall be deemed to be a request for
a Base Rate Loan hereunder. Promptly upon receipt of each Notice of Borrowing,
the Agent shall give notice to each Bank of the contents thereof as well as each
Bank's Pro Rata Share of the requested borrowing.
(ii) Minimum Amounts. Each Committed Loan borrowing shall be in
a minimum aggregate amount of $5,000,000 and integral multiples of $1,000,000 in
excess thereof, in the case of LIBOR Rate Loans, and $1,000,000 and integral
multiples of $100,000 in excess thereof, in the case of Base Rate Loans.
(iii) Advances. Each Bank will make its Pro Rata Share of each
Committed Loan borrowing available to the Agent for the account of the subject
Borrower at Agent's principal office in Dallas, Texas not later than 11:00 A.M.
(Dallas, Texas time) on the Funding Date in Dollars and in funds immediately
available to the Agent. Upon Agent's receipt of such funds and upon
satisfaction of all other terms and conditions of this Agreement, such borrowing
will be made available to the subject Borrower by the Agent by crediting the
amount thereof to the account of such Borrower with Agent or as otherwise may be
directed by such Borrower. Unless prior to 11:00 A.M. (Dallas, Texas time) on
the Funding Date the Agent shall have received written notice from a Bank that
such Bank will not make available to the Agent its Pro Rata Share of the
requested borrowing, the Agent may assume that such Bank has made such funds
available to the Agent, and the Agent, in its sole discretion may, but shall not
be obligated to, in reliance upon such assumption, fund that Bank's Pro Rata
Share of the requested borrowing. If and to the extent such Bank shall not have
made such funds available to the Agent by 11:00 A.M. (Dallas, Texas time) on the
Funding Date, such Bank agrees to repay to the Agent on demand any amount so
advanced by the Agent for such Bank's Pro Rata Share, together with interest
thereon, for each day from the date such amount is made available by the Agent
to the subject Borrower until the date such amount is repaid to the Agent by
such Bank, at the Federal Funds Rate. If such Bank shall repay to the Agent the
amount so advanced, the amount so repaid shall constitute such Bank's portion of
the requested borrowing for purposes of this Agreement. If such Bank does not
pay such amount forthwith upon Agent's demand therefor, the Agent shall promptly
notify the subject Borrower, and such Borrower shall immediately pay such amount
to the Agent, together with interest thereon, for each day from and including
the date such amount is made available to such Borrower until and including the
date such amount is repaid to the Agent, at the rate of interest applicable at
the time to such Committed Loan borrowing.
(b) Repayment of Committed Loans. The principal amount of all
Committed Loans shall be due and payable in full on the Termination Date.
(c) Interest on Committed Loans. Subject to the provisions of Section
2.07 hereof, the principal balance of each of the Committed Loans shall bear
interest from time to time at varying rates based upon Stewart's Public Debt
Ratings from S&P and Moody's. Based upon Stewart's current Public Debt Ratings
from S&P and Moody's, and subject to the limitations
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contained in this Agreement, each Committed Loan shall bear interest at a rate
per annum equal to either of the following as selected by the subject Borrower
pursuant to Section 2.05(a)(i):
(i) The Base Rate, as adjusted from time to time; or
(ii) The LIBOR Rate for 7 to 360 days, plus 22.5 Basis Points.
In the event of a modification or withdrawal of Stewart's current Public Debt
Ratings from S&P and/or Moody's, the interest rates payable on the Committed
Loans shall be automatically adjusted on a prospective basis in accordance with
the provisions of Section 2.21 hereof. Interest on Committed Loans shall be
payable in arrears on each Interest Payment Date.
2.06 Competitive Loans.
(a) Competitive Loan Borrowings. Subject to the terms and conditions
of this Agreement, Stewart may, from time to time during the period from the
date hereof to a date that is not less than seven (7) days prior to the Maturity
Date, request and each Bank may, in its sole discretion, agree to make,
Competitive Loans to Stewart. Each Competitive Loan borrowing shall be in a
minimum aggregate principal amount of $10,000,000 and in integral multiples of
$5,000,000 in excess thereof. Without limiting the generality of any other
provision of this Agreement, it is specifically understood that the principal
amount of all Competitive Loans outstanding to a Borrower from time to time
shall reduce the availability of funds under such Borrower's Revolving Facility
on a dollar for dollar basis.
(b) Competitive Bid Requests. Stewart may solicit Competitive Bids
for a Competitive Loan borrowing hereunder by delivering to the Agent and each
Bank by facsimile a Competitive Bid Request not later than 9:00 A.M. (Dallas,
Texas time) three (3) Business Days prior to the date of the proposed
Competitive Loan borrowing. A Competitive Bid Request shall specify (i) the
date of the requested Competitive Loan borrowing (which shall be a Business
Day), (ii) the principal amount of the requested Competitive Loan borrowing
(which shall be in a principal amount of not less than $10,000,000 and in
integral multiples of $5,000,000 in excess thereof), and (iii) the applicable
Interest Period requested, which shall be not less than seven (7) days nor more
than one hundred eighty (180) days. No more than one (1) Competitive Bid
Request shall be submitted at any one time and a Competitive Bid Request may be
made no more frequently than once every five (5) Business Days.
(c) Competitive Bid Procedure. Each Bank may, in its sole discretion,
make one or more Competitive Bids to Stewart in response to a Competitive Bid
Request. Each Competitive Bid must be received by Stewart by telecopier not
later than 10:00 A.M. (Dallas, Texas time), two (2) Business Days prior to the
date of the requested Competitive Loan borrowing. A Bank may offer to make all
or a part of the requested Competitive Loan borrowing and may submit multiple
Competitive Bids in response to a Competitive Bid Request. Each Competitive Bid
shall refer to this Agreement and specify (i) the particular Competitive Bid
Request as to which the Competitive Bid is submitted, (ii) the principal amount
(which (A) shall be in a minimum principal amount of $5,000,000 and in integral
multiples of $1,000,000 and (B)
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may equal the entire aggregate principal amount of the Competitive Loan
borrowing requested by Stewart (irrespective of such Bank's Pro Rata Share)) of
the Competitive Loan that the applicable Bank is willing to make to Stewart,
(iii) the interest rate or rates at which the Bank is prepared to make the
Competitive Loan or Loans (which shall be a fixed rate of interest), and (iv)
confirm the Interest Period with respect thereto specified in the Competitive
Bid Request. A Competitive Bid submitted by a Bank in accordance with the
provisions hereof shall be irrevocable. No Competitive Bid shall contain
qualifying, conditional or similar language or propose terms other than or in
addition to those set forth in the applicable Competitive Bid Request (other
than setting forth the maximum principal amount(s) of the Competitive Loan which
the quoting Bank is willing to make for the requested Interest Period). Any
Competitive Bid received after the time specified in this Section 2.06(c) shall
be disregarded.
(d) Acceptance of Competitive Bids. Stewart may, in its sole and
absolute discretion, accept or refuse any Competitive Bid, subject to the
limitations set forth in this Section 2.06(d). To accept one or more of the
Competitive Bids, Stewart shall give written notification (or telephone notice
promptly confirmed in writing) of its acceptance of any or all of such
Competitive Bids to the applicable Bank or Banks by 12:00 Noon (Dallas, Texas
time) on the date on which the Competitive Bids are to be made by the Banks
pursuant to the terms of Section 2.06(c) above, with simultaneous written notice
thereof to the Agent; provided, however, (i) the failure by Stewart to give
timely notice of its acceptance of a Competitive Bid shall be deemed to be a
rejection thereof; (ii) Stewart shall not accept a Competitive Bid at a
particular interest rate if Stewart has rejected a Competitive Bid made at a
lower interest rate; (iii) the aggregate amount of the Competitive Bid or Bids
accepted by Stewart shall not exceed the principal amount specified in the
Competitive Bid Request; (iv) if Stewart shall accept a Competitive Bid or Bids
made at a particular interest rate but the amount of such Competitive Bid or
Bids shall cause the total amount of Competitive Bids to be accepted by Stewart
to exceed the principal amount specified in the Competitive Bid Request, then
Stewart shall accept a portion of such Competitive Bid or Bids in an amount
equal to the amount specified in the Competitive Bid Request less the amount of
all other Competitive Bids accepted with respect to such Competitive Bid
Request, which acceptance in the case of multiple Competitive Bids at such
interest rate shall be made pro rata in accordance with the amount of each such
Competitive Bid at such interest rate; and (v) except pursuant to clause (iv)
above, no Competitive Bid shall be accepted unless such Competitive Bid is in a
minimum principal amount of $5,000,000 and in integral multiples of $1,000,000
in excess thereof and is part of a Competitive Loan borrowing in a minimum
principal amount of $10,000,000; provided, however, that if a Competitive Bid
must be accepted in an amount less than $5,000,000 because of the provisions of
clause (iv) above, such Competitive Bid may be accepted for a minimum of
$1,000,000 or any integral multiple thereof. A notice given by Stewart pursuant
to this Section 2.06(d) shall be irrevocable.
(e) Funding of Competitive Loans.
(i) If Stewart accepts one or more of the Competitive Bids
submitted by any Bank or Banks, each such Bank shall, subject to the
satisfaction of the conditions precedent specified in Section 3.02, before 12:00
Noon (Dallas, Texas time) on the date of the Competitive Loan borrowing, make
available to Stewart by wire transfer to Stewart's account
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with Agent, or as otherwise directed by Stewart, such Bank's portion of such
Competitive Loan borrowing in Dollars and in immediately available funds.
(ii) Not later than 5:00 P.M. (Dallas, Texas time) on the date
of each Competitive Loan borrowing, Stewart shall notify the Agent and each Bank
of (A) the aggregate principal amount of Competitive Loans made in connection
with such Competitive Loan borrowing, together with the name of each
participating Bank and its respective portion of such borrowing, (B) the date on
which the Competitive Loan(s) shall mature, and (C) each Competitive Bid
submitted in response to the subject Competitive Bid Request.
(f) Maturity of Competitive Loans. Each Competitive Loan shall mature
and be due and payable in full on the last day of the Interest Period applicable
thereto.
(g) Interest on Competitive Loans. Subject to the provisions of
Section 2.07, Competitive Loans shall bear interest in each case at the
Competitive Loan Rate applicable thereto. Interest on Competitive Loans shall
be payable in arrears on each Interest Payment Date.
(h) Competitive Loan Notes. Competitive Loans shall be evidenced by
the Competitive Notes duly executed and delivered to the Banks.
2.07 Default Rate. Overdue principal and, to the extent permitted by
law, overdue interest in respect of each Loan and any other overdue amount
payable hereunder or under the other Loan Papers shall bear interest, payable on
demand, at a per annum rate 2% greater than the rate which would otherwise be
applicable (or if no rate is applicable, whether in respect of interest, fees or
other amounts, then 2% greater than the Base Rate) (the "Default Rate").
2.08 Extension and Conversion of Committed Loans. A Borrower shall have
the option, on any Business Day, to extend existing LIBOR Rate Loans into a
subsequent permissible Interest Period or to convert existing Committed Loans
into Committed Loans of another type (i.e., Base Rate Loans into LIBOR Rate
Loans or LIBOR Rate Loans into Base Rate Loans); provided, however, that (a)
except as otherwise provided in this Agreement, LIBOR Rate Loans may be extended
as LIBOR Rate Loans or converted into Base Rate Loans only on the last day of
the Interest Period applicable thereto, (b) LIBOR Rate Loans may be extended,
and Base Rate Loans may be converted into LIBOR Rate Loans, only if no Default
or Event of Default is in existence on the date of extension or conversion, (c)
Committed Loans extended as, or converted into, LIBOR Rate Loans shall be
subject to the terms of the definition of "Interest Period" set forth in Article
I hereof and all Committed Loans extended or converted hereunder shall be in
such minimum amounts as provided in Section 2.05(a)(ii) above, and (d) any
request for extension or conversion of a LIBOR Rate Loan which shall fail to
specify an Interest Period shall be deemed to be a request for an Interest
Period of thirty (30) days. Each such extension or conversion shall be effected
by a Borrower by giving a Notice of Extension/Conversion (or telephone notice
promptly confirmed in writing) to the Agent prior to 9:00 A.M. (Dallas, Texas
time) on the Business Day of, in the case of the conversion of a LIBOR Rate Loan
into a Base Rate Loan, and not later than 11:00 A.M. (Dallas, Texas time) on the
second Business Day prior to, in the case of the extension of a LIBOR Rate Loan
as, or conversion of a Base Rate Loan into, a LIBOR Rate
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Loan, the date of the proposed extension or conversion, specifying the date of
the proposed extension or conversion, the Committed Loans to be so extended or
converted, the type of Committed Loans into which such Committed Loans are to be
converted and, if appropriate, the applicable Interest Periods with respect
thereto. Each request for extension or conversion shall constitute a
representation and warranty by such Borrower of the matters specified in
subsections (b) and (c) of Section 3.02 hereof. In the event such Borrower
fails to request extension or conversion of any LIBOR Rate Loan in accordance
with this Section, or any such conversion or extension is not permitted or
required hereunder, then such Committed Loans shall be automatically converted
into Base Rate Loans at the end of their Interest Period. The Agent shall give
each Bank notice as promptly as practicable of any such proposed extension or
conversion affecting any Committed Loan.
2.09 Termination of Commitments; Prepayments.
(a) Termination of Revolving Facilities. Stewart may terminate, in
whole or in part, a Revolving Facility that has been extended to a Borrower, at
any time upon at least two (2) Business Days' prior written notice to the Agent;
provided, that (i) after termination, the Maximum Facility Commitment Amount of
the Revolving Facility in question shall not be less than the aggregate
principal amount outstanding of Committed Loans thereunder, plus the LC Exposure
under such Revolving Facility, plus the aggregate principal amount outstanding
of all Competitive Loans to the subject Borrower, and (ii) partial terminations
shall be in a minimum principal amount of $10,000,000 and integral multiples of
$5,000,000 in excess thereof. Terminations of a Revolving Facility, in whole or
in part, pursuant to this Section 2.09(a) are permanent and may not be
reinstated, and the Total Commitment Amount shall be permanently reduced in a
corresponding amount. Additionally, if the Revolving Facility so terminated is
in favor of a Borrower other than Stewart, then the $200,000,000 limitation set
forth in Section 2.04(d) shall also be permanently reduced in such corresponding
amount.
(b) Voluntary Prepayments. A Borrower may prepay at any time, and
from time to time, the principal amount of the Loans, in whole or in part,
together with interest accrued through the date of the payment on the amount
prepaid; provided that (i) any such prepayment of Committed Loans which are
LIBOR Rate Loans and Competitive Loans shall be accompanied by any amounts owing
under Section 2.16 on account thereof, and (ii) partial prepayments shall be in
a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in
excess thereof. In the case of voluntary prepayments under this Section
2.09(b), the subject Borrower shall give notice to the Agent (and, in the case
of Competitive Loans, the relevant lending Bank(s)) of its intent to make such a
prepayment by 12:00 Noon (Dallas, Texas time) two (2) Business Days prior to the
date of prepayment, in the case of Committed Loans which are LIBOR Rate Loans
and Competitive Loans, and by 9:00 A.M. (Dallas, Texas time) on the date of
prepayment, in the case of Committed Loans which are Base Rate Loans. Amounts
paid on Committed Loans under this Section 2.09(b) may be reborrowed in
accordance with the provisions of this Agreement.
(c) Mandatory Prepayments. If at any time the sum of the aggregate
principal amount of Competitive Loans outstanding to a Borrower plus the
aggregate principal amount of Committed Loans made under such Borrower's
Revolving Facility, together with any LC
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Exposure to such Borrower, shall exceed the Maximum Facility Commitment Amount
for such Borrower's Revolving Facility, the subject Borrower shall immediately
make payment on the Loans in a principal amount sufficient to eliminate such
excess, together with accrued interest on the amount so paid as well as any
amounts owing under Section 2.16 on account thereof. Amounts paid under this
Section 2.09(c) shall be applied first, to Committed Loans which are Base Rate
Loans, second, to Committed Loans which are LIBOR Rate Loans in direct order of
Interest Period maturities (commencing with the shortest maturity) and third, to
Competitive Loans in direct order of Interest Period maturities.
2.10 Pro Rata Treatment. Except to the extent otherwise provided herein,
each borrowing consisting of Committed Loans, each payment or prepayment of
principal of any Committed Loans, each payment of interest on Committed Loans,
each reimbursement of disbursements under issued standby letters of credit, each
payment of facility fees and standby letter of credit issuance fees, each
reduction of a Maximum Facility Commitment Amount and each conversion or
continuation of Committed Loans shall be allocated pro rata among the Banks in
accordance with their respective Pro Rata Shares.
2.11 Capital Adequacy. If, after the date hereof, any Bank has determined
that the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such Bank could
have achieved but for such adoption, effectiveness, change or compliance (taking
into consideration such Bank's policies with respect to capital adequacy), then,
upon notice from such Bank, Stewart shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such reduction. Any such
Bank shall submit to Stewart a certificate setting forth in reasonable detail
the calculation of such additional amount, together with the basis and method
for such calculation, which certificate shall be conclusive and binding on the
parties hereto absent manifest error. Notwithstanding the foregoing, Stewart
shall be under no obligation to pay to any Bank any amounts under this Section
2.11 if such Bank shall not have requested payment thereof from Stewart within
one year of the later of (a) the date of occurrence of the event that forms the
basis for such request and (b) the date the Bank becomes aware of such event.
Failure on the part of any Bank to demand payment under this Section 2.11 with
respect to any period shall not constitute a waiver of such Bank's right to
demand payment with respect to any other period. Nothing herein contained shall
be construed or so operate as to require any Borrower to pay any interest, fees,
costs or charges greater than is permitted by applicable law.
2.12 Inability To Determine Interest Rate. If prior to the first day of
any Interest Period, the Agent shall have determined (which determination shall
be conclusive and binding upon the Borrowers) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the LIBOR Rate for such Interest Period, or the
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Majority Banks shall have determined (which determination shall be conclusive
and binding upon the Borrowers), and notified the Agent, that the LIBOR Rate
will not adequately and fairly reflect the cost to the Banks of making,
maintaining or funding a proposed borrowing that a Borrower has requested to
bear interest at the LIBOR Rate, the Agent shall give telecopy or telephonic
notice thereof to the Borrower and the Banks as soon as practicable thereafter.
If such notice is given (a) any LIBOR Rate Loans requested to be made on the
first day of such Interest Period shall be made as Base Rate Loans, and (b) any
Committed Loans that were, on the first day of such Interest Period, to have
been converted to or continued as LIBOR Rate Loans shall be converted to or
continued as Base Rate Loans. Until such notice has been withdrawn by the Agent,
no further LIBOR Rate Loans shall be made or continued as such, nor shall any
Borrower have the right to convert Base Rate Loans to LIBOR Rate Loans.
2.13 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof occurring after the Closing Date shall make it unlawful or
impossible for any Bank to make or maintain LIBOR Rate Loans as contemplated by
this Agreement, (a) such Bank shall promptly give written notice of such
circumstances to Stewart and the Agent (which notice shall be withdrawn whenever
such circumstances no longer exist), (b) the commitment of such Bank hereunder
to make LIBOR Rate Loans, continue LIBOR Rate Loans as such and convert Base
Rate Loans to LIBOR Rate Loans shall forthwith be canceled and, until such time
as it shall no longer be unlawful or impossible for such Bank to make or
maintain LIBOR Rate Loans, such Bank shall then have a commitment only to make a
Base Rate Loan when a LIBOR Rate Loan is requested and (c) such Bank's Committed
Loans then outstanding as LIBOR Rate Loans, if any, shall be converted
automatically to Base Rate Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a LIBOR Rate Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Bank such amounts, if any, as may be
required pursuant to Section 2.16 hereof.
2.14 Requirements of Law. If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Bank, or compliance by any Bank with any request or directive (whether or
not having the force of law) from any central bank or other Governmental Body,
in each case made subsequent to the Closing Date (or, if later, the date on
which such Bank becomes a Bank):
(a) shall subject such Bank to any tax of any kind whatsoever with
respect to any LIBOR Rate Loans made by it or its obligation to make LIBOR Rate
Loans, or change the basis of taxation of payments to such Bank in respect
thereof except for Taxes covered by Section 2.15 (including Taxes imposed solely
by reason of any failure of such Bank to comply with its obligations under
Section 2.15(d)) and changes in taxes measured by or imposed upon the overall
net income, or franchise tax imposed in lieu of such net income tax, of such
Bank or its applicable lending office, branch, or any Affiliate thereof;
(b) shall impose, modify or hold applicable any reserve, special
deposit, insurance, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for
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the account of, advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Bank which is not otherwise included
in the determination of the LIBOR Rate hereunder; or
(c) shall impose on such Bank any other condition (excluding any tax
of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Bank by
an amount which such Bank deems to be material, of making, converting into,
continuing or maintaining LIBOR Rate Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice to Stewart
from such Bank, through the Agent, in accordance herewith, Stewart shall
promptly pay such Bank, upon its demand, any additional amounts necessary to
compensate such Bank for such increased cost or reduced amount receivable;
provided that, in any such case, Stewart may elect to convert the LIBOR Rate
Loans made by such Bank hereunder to Base Rate Loans by giving the Agent at
least one Business Day's notice of such election, in which case Stewart shall
promptly pay to such Bank, upon demand, without duplication, such amounts, if
any, as may be required pursuant to Section 2.16. If any Bank becomes entitled
to claim any additional amounts pursuant to this Section 2.14, it shall provide
prompt notice thereof to Stewart, through the Agent, certifying (i) that one of
the events described in this Section 2.14 has occurred and describing in
reasonable detail the nature of such event, (ii) as to the increased costs or
reduced amount resulting from such event and (iii) as to the additional amount
demanded by such Bank and a reasonably detailed explanation of the calculation
thereof. Such a certificate as to any additional amounts payable pursuant to
this Section 2.14 submitted by such Bank, through the Agent, to Stewart shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.15 Taxes.
(a) Any and all payments by a Borrower to or for the account of any
Bank or the Agent hereunder or under any other Loan Paper shall be made free and
clear of and without deduction for any and all present or future taxes, duties,
levies, imposts, deductions charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Bank and the Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Bank (or its applicable lending office) or the
Agent (as the case may be) is organized or any political subdivision thereof
(all such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If a
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable under this Agreement or any other Loan Paper to any Bank or the
Agent, (i) the sum payable shall be increased as necessary (the "Gross Up
Amount") so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.15) such Bank or the
Agent receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
in accordance with applicable law, and (iv) the
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Borrower shall furnish to the Agent, at its address referred to in Section 7.02,
the original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, each Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Agreement
or any other Loan Papers or from the execution or delivery of, or otherwise with
respect to, this Agreement or any other Loan Papers (hereinafter referred to as
"Other Taxes").
(c) Each Borrower agrees to indemnify each Bank and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 2.15, but excluding withholding taxes when a Withholding Tax
Absorption Fee, as defined in clause (d) below, is paid) paid by such Bank or
the Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto.
(d) For any calendar year in which Taxes are required to be withheld
from any amounts payable to any Bank hereunder, such Bank may elect, in its sole
discretion, in advance and upon written notice sent to the subject Borrower and
the Agent at least thirty days prior to the beginning of such year, to waive its
right to receive Gross Up Amounts from the subject Borrower with respect to
payments made in such year. If any Bank makes such an election for any calendar
year, the subject Borrower shall pay to such Bank, in lieu of payment of any
such Gross Up Amounts for such year, a withholding tax absorption fee (the
"Withholding Tax Absorption Fee") on the daily average outstanding principal
amount of such Bank's Loans to the subject Borrower during each calendar quarter
in such year at a rate per annum equal to 0.10%. The accrued Withholding Tax
Absorption Fee shall be payable in arrears on the last day of each calendar
quarter in such year. It is specifically understood that nothing contained
herein shall be construed to require any Bank to waive its right to receive
Gross Up Amounts, the election provided for in this Section 2.15(d) being
exercisable in the sole and exclusive discretion of each Bank. Additionally,
any payments of a Withholding Tax Absorption Fee shall be made directly to the
electing Bank as such Bank shall direct, and the Agent shall have no
responsibility for the collection, disbursement, administration or monitoring of
any such Withholding Tax Absorption Fees.
(e) Each Bank organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by a Borrower or the
Agent (but only so long as such Bank remains lawfully able to do so), shall
provide such Borrower and the Agent with (i) Internal Revenue Service Form 1001
or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Bank is entitled to receive payments under
this Agreement or any other Loan Paper without any deduction or withholding for
any United States federal income taxes, (ii) Internal Revenue Service Form W-8
or W-9, as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Bank is entitled to an exemption from United
States backup
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withholding tax, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and 881(c) of
the Code), certifying that such Bank is entitled to an exemption from United
States withholding tax on payments pursuant to this Agreement or any of the
other Loan Papers.
(f) For any period with respect to which a Bank has failed to provide
the subject Borrower and the Agent with the appropriate forms pursuant to
Section 2.15(e) above (unless such failure is due to a change in treaty, law or
regulation occurring subsequent to the date on which a form originally was
required to be provided), such Bank shall not be entitled to indemnification
under this Section 2.15 with respect to Taxes imposed by the United States;
provided, however, that should a Bank which is otherwise exempt from
withholding tax become subject to Taxes because of its failure to deliver a form
required hereunder, the subject Borrower shall take such steps as such Bank
shall reasonably request to assist such Bank to recover such Taxes.
(g) If a Borrower is required to pay additional amounts to or for the
account of any Bank pursuant to this Section 2.15, then such Bank will agree to
use reasonable efforts to change the jurisdiction of its applicable lending
office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Bank, is not otherwise
disadvantageous to such Bank.
(h) Within thirty (30) days after the date of any payment of Taxes,
the subject Borrower shall furnish to the Agent the original or a certified copy
of a receipt evidencing such payment.
(i) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.15 shall survive the termination of this Agreement and the
payment in full of the Obligation.
2.16 Breakage and Funding Losses. Stewart and each Borrower, jointly and
severally, agree to indemnify Agent, each of the Banks and any Participants
against, and agree to pay to Agent, any of the Banks and any Participants, on
demand, amounts equal to, any and all losses, costs and expenses incurred by the
Agent, any of the Banks or any Participants as a result of a Borrower's failure
to make a borrowing of a LIBOR Rate Loan or a Competitive Loan (including
failure to convert into a LIBOR Rate Loan or to continue a LIBOR Rate Loan)
after the subject Borrower has given a notice requesting same in accordance with
this Agreement; and/or the failure to make any prepayment of a LIBOR Rate Loan
or a Competitive Loan after a Borrower has given notice thereof in accordance
with the provisions of this Agreement; and/or a Borrower's failure to make any
payment hereunder when due, including, without limitation, any loss, cost or
expense arising from the re-employment of funds at rates lower than the cost to
the Agent, any Banks or any Participants of such funds. A certificate of a Bank
setting forth in reasonable detail the basis for the determination of such
losses, costs or expenses shall constitute prima facie evidence of such losses,
costs or expenses, absent manifest error.
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Additionally, if any payment of principal on, or any conversion of,
any LIBOR Rate Loan or Competitive Loan is made other than on the last day of
the Interest Period applicable to such LIBOR Rate Loan or Competitive Loan,
whether as a result of any voluntary payment by a Borrower, or as a result of
the acceleration of the maturity of any part of the Obligation pursuant to
Section 6.02(a) hereof, or otherwise, the subject Borrower shall, upon request
from any one or more of the Banks through the Agent, pay to the Agent for the
account of such Bank(s) the breakage cost to compensate such Bank(s) for any
loss incurred plus an administrative fee of $200.00 per Bank for each LIBOR Rate
Loan or Competitive Loan that is prematurely paid or converted; provided,
however, that if such premature payment(s) or conversion(s) of a LIBOR Rate Loan
or Competitive Loan is made pursuant to a prior written request from a Borrower,
the administrative fee of $200.00 per Bank will be assessed on the basis of each
written request made, and each such request may refer to breakage of more than
one LIBOR Rate Loan or Competitive Loan. For purposes of the foregoing, the
breakage cost shall be calculated as follows with respect to LIBOR Rate Loans
and Competitive Loans, respectively:
With respect to LIBOR
Rate Loans, breakage
cost shall equal (A) the principal amount of the LIBOR Rate
Loans that was prematurely paid or
converted;
multiplied by (B) the difference between (i) the LIBOR Rate
as of the first day of the applicable
Interest Period with respect to such LIBOR
Rate Loan, and (ii) the LIBOR Rate as of
the date of breakage for the period
commencing on the date of breakage and
ending on the last day of the Interest
Period applicable to the LIBOR Rate Loan in
question unless such period commencing on
the date of breakage and ending on the last
day of such applicable Interest Period is
one of fewer than 30 days, in which event
the calculation in this clause (ii) shall
be based upon a Bank's cost of funds for
such period, as determined on the date of
breakage;
multiplied by (C) the fraction of (i) the number of days
remaining in such Interest Period divided
by (ii) 360.
With respect to Competitive
Loans, breakage cost shall
equal (A) the principal amount of the Competitive
Loan that was prematurely paid or
converted;
multiplied by (B) the difference between (i) a Bank's cost of
funds for the applicable Interest Period
with respect to such Competitive Loan, as
determined on the first day of such
Interest Period,
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and (ii) a Bank's cost of funds for the
period commencing on the date of breakage
and ending on the last day of the
applicable Interest Period, as determined
on the date of breakage;
multiplied by (C) the fraction of (i) the number of days
remaining in the Interest Period divided by
(ii) 360.
This covenant shall survive the termination of this Agreement and the payment of
the Obligations.
2.17 Judgment Currency.
(a) If, for the purpose of obtaining or enforcing any judgment or
judicial award or order in any court, or in any jurisdiction, it is necessary to
convert a sum owing hereunder in Dollars into or from any currency other than
Dollars, each party hereto agrees, to the fullest extent that it may effectively
do so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the first currency could
be purchased with such other currency on the Business Day immediately preceding
the day on which the judgment or judicial award or order is given.
(b) The obligations of each Borrower in respect of any sum due to any
party hereto or any holder of the Obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment or judicial award or order in a
currency (the "Judgment Currency") other than Dollars, be discharged only to the
extent that on the Business Day following receipt by the Applicable Creditor of
any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor
may in accordance with normal banking procedures in the relevant jurisdiction
purchase Dollars with the Judgment Currency; if the amount of Dollars so
purchased is less than the sum originally due to the Applicable Creditor in
Dollars, such Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Applicable Creditor against such loss. The
obligations of the Borrowers contained in this Section 2.17 shall survive the
termination of this Agreement and the payment of all other amounts owing
hereunder.
2.18 Sharing of Payments, Etc. If, other than as provided in Sections
2.11, 2.12, 2.13, 2.14, 2.15, 2.16 or 7.15, any Bank shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise), (a) prior to acceleration of all Obligations pursuant to Section
6.02, on account of any Committed Loan made by it in excess of its Pro Rata
Share of payments on account of the Committed Loans obtained by all the Banks,
and (b) after acceleration, in respect of any Obligation owing to it (including
with respect to any Competitive Loan) in excess of its pro rata share of all
Obligations, then such Bank shall forthwith (i) notify the Agent of such fact
and (ii) purchase from the other Banks such participations in, prior to
acceleration, the Committed Loans made by them or, after acceleration, in all
Obligations owing to them, as shall be necessary to cause such purchasing Bank
to share the excess payment ratably with each of the other Banks according to
their respective Pro Rata Shares (prior to acceleration) or their pro rata
shares of all Obligations then owing to them (after acceleration);
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provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase shall to the
extent of such recovery be rescinded and each other Bank shall repay to the
purchasing Bank the purchase price thereof together with an amount equal to such
paying Bank's ratable share (according to the proportion of (A) the amount of
such paying Bank's required repayment to (B) the total amount so recovered from
the purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. Each Borrower
agrees that any Bank so purchasing a participation from another Bank pursuant to
the provisions of this Section 2.18 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 Bank were the direct creditor of the
Borrowers in the amount of such participation. The Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased pursuant to this Section 2.18 and will in each case
notify the Banks following any such purchases.
2.19 Certain Fees.
(a) Facility Fee. In consideration for extending to Borrowers the
Revolving Facilities, Stewart agrees to pay to Agent, for the ratable benefit of
the Banks in accordance with the Pro Rata Share of each, on the last day of the
months of January, April, July and October (for the quarters ending on such
dates) of each year during the term of this Agreement commencing April 30, 1997,
a facility fee equal to 12.5 Basis Points per annum (based upon Stewart's
current Public Debt Ratings from S&P and Moody's, and subject to adjustment as
hereinafter set forth) on the average daily Total Commitment Amount (whether
used or unused) in effect for the applicable period. The facility fee of 12.5
Basis Points per annum set forth above is based upon Stewart's current Public
Debt Ratings from S&P and Moody's. In the event of a modification or withdrawal
of Stewart's current Public Debt Ratings from S&P and/or Moody's, the facility
fee shall be automatically adjusted on a prospective basis in accordance with
the provisions of Section 2.21 hereof.
(b) Administrative Fee. Stewart shall pay to the Agent, for its sole
account, on an annual basis in advance, the administrative fee provided for in
the letter agreement dated January 31, 1997 by and among Stewart, Agent and
NationsBanc Capital Markets, Inc.
2.20 Place and Manner of Payments; Record of Loans.
(a) All payments hereunder shall be made to the Agent in Dollars in
immediately available funds, without offset, deduction, counterclaim or
withholding of any kind, at the principal banking office of the Agent in Dallas,
Texas, not later than 12:00 Noon (Dallas, Texas time) on the date when due;
provided, however, that each payment in respect of a Competitive Loan shall be
made directly to the relevant Bank to the payment office of such Bank specified
in Exhibit "2.20" hereto with simultaneous written notice thereof to the Agent
and any payment pursuant to Section 2.15(d) of this Agreement shall be made
directly to the relevant Bank as directed by such Bank. Payments received after
such time shall be deemed to have been received on the next succeeding Business
Day. Each Borrower shall, at the time it makes any payment under this Agreement,
specify the Loans, fees or other amounts payable by such
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Borrower hereunder to which such payment is to be applied (and in the event that
it fails so to specify, or if such application would be inconsistent with the
terms hereof, such payment shall be applied in such manner as is consistent with
this Agreement as determined by the Agent in its sole discretion). The Agent
will distribute payments to the Banks, if any such payment is received prior to
12:00 Noon (Dallas, Texas time) on a Business Day, in like funds as received
prior to the end of such Business Day, and otherwise the Agent will distribute
payments to the Banks on the next succeeding Business Day. Whenever any payment
hereunder shall be stated to be due on a day which is not a Business Day, the
due date thereof shall be extended to the next succeeding Business Day (subject
to accrual of interest and fees for the period of such extension), except that
in the case of LIBOR Rate Loans, if the extension would cause the payment to be
made in the next following calendar month, then such payment shall instead be
made on the first preceding Business Day. If the Agent fails to distribute to
any bank its Pro Rata Share of any payment in respect of a Committed Loan timely
received by the Agent hereunder by the close of business on the day such payment
was received, the Agent shall pay to such Bank interest on its Pro Rata Share of
such payment from the date such payment was timely received by the Agent until
the date such Bank's Pro Rata Share of such payment is sent to such Bank, at the
Federal Funds Rate. Except as expressly provided otherwise herein, all
computations of interest and fees shall be made on the basis of actual number of
days elapsed over a year of 360 days, except with respect to computation of
interest on Base Rate Loans which shall be calculated based on a year of 365 or
366 days, as appropriate. Interest shall accrue from and include the date of
borrowing, but exclude the date of payment.
(b) Each Bank shall, and is hereby authorized by each Borrower to
make in its internal records relating to each Loan an appropriate notation
evidencing the date and amount of each Loan, the rate of interest applicable to
such Loan and each payment or prepayment of principal and of interest on any
Loan. The aggregate unpaid principal amount so recorded shall be prima facie
evidence of the principal amount owing by such Borrower to a Bank. The failure
of any Bank to make such a notation or any error therein shall not in any manner
affect the obligation of such Borrower to repay the Loans made by such Bank in
accordance with the terms hereof.
2.21 Modification or Withdrawal of Public Rating.
(a) Modification. In the event that either or both of Stewart's
current Public Debt Ratings from S&P or Moody's is subsequently modified at any
time, and from time to time, by such rating agencies, then the letter of credit
issuance fee provided for in Section 2.02 hereof, the interest rates provided
for in Section 2.05(c) hereof and the facility fee provided for in Section 2.19
hereof shall be prospectively adjusted to reflect any such modification(s) in
rating that may take place from time to time (the adjustment to be based upon
the issuance fee, interest rates and facility fee, as the case may be,
corresponding to such modified rating(s) as set forth in Exhibit "2.21(a)"
hereto. The adjustments provided for in this Section 2.21(a) with respect to
(i) the interest rates and the facility fee shall be effective two (2) Business
Days following receipt by the Banks of notification of such modification in the
rating(s) and (ii) the letter of credit issuance fee shall be effective as of
the date of issuance of any letter of credit issued after such modification in
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rating(s) or, with respect to any letter of credit issued prior to such
modification in rating(s), as of the next anniversary date of the issuance of
the issuance of such letter of credit.
(b) Withdrawal. In the event that Stewart's Public Debt Ratings from
S&P and Moody's are withdrawn by such rating agencies (or otherwise lapse for
any reason), then the letter of credit issuance fee provided for in Section 2.02
hereof, the interest rates provided for in Section 2.05(c) hereof and the
facility fee provided for in Section 2.19 hereof shall be prospectively adjusted
to the levels set forth on Exhibit "2.21(b)" hereto; and provided that if one of
such ratings is withdrawn (or otherwise lapses) and the other remains in effect,
the adjustment shall be based upon the average of (i) the issuance fee, interest
rates or facility fee, as the case may be, corresponding to the still-effective
rating as set forth in Exhibit "2.21(a)" hereto and (ii) the issuance fee,
interest rates or facility fee, as the case may be, that is provided for in
Exhibit "2.21(b)" hereto. The adjustments provided for in this Section 2.21(b)
with respect to (A) the interest rates and the facility fee shall be effective
two (2) Business Days following receipt by the Banks of notification that the
rating has been withdrawn or has otherwise lapsed and (B) the letter of credit
issuance fee shall be effective as of the date of issuance of any letter of
credit issued after the date that the rating is withdrawn or otherwise lapses
or, with respect to any letter of credit issued prior to the date that the
rating is withdrawn or otherwise lapses, as of the next anniversary date of the
issuance of such letter credit.
2.22 Extension of Maturity Date. On an annual basis, during the period
commencing on the anniversary of the Closing Date and ending 60 days thereafter,
Stewart, for itself and on behalf of the other Borrowers, may request that the
Maturity Date be extended for up to one-year from the then-applicable Maturity
Date. Upon the unanimous consent of the Banks, which consent may be withheld in
the discretion of any of the Banks, the Maturity Date shall be so extended,
provided that the Borrowers shall execute such documentation as the Banks shall
require to evidence such extension. The Banks agree to provide Stewart with a
response to any such request for an extension of the Maturity Date within 60
days following receipt thereof; provided, however, that the failure of the
Banks, or any of them, to provide a response within such 60 day period shall not
be construed to constitute consent to such an extension on the part of any of
the Banks.
2.23 Replacement of Banks. Stewart shall have the option, if no Default or
Event of Default then exists, to replace any Bank (the "Replaced Bank") if the
following circumstances exist:
(a) the Replaced Bank fails to make available its Pro Rata Share of
any Committed Loan or to fund its Pro Rata Share of any draw under a standby
letter of credit issued hereunder or to fund any portion of any Competitive Loan
which it has obligated itself to fund, or if the Replaced Bank has notified the
Agent that it does not intend to comply with any of such obligations, or is
otherwise a Defaulting Bank; or
(b) if the Replaced Bank seeks to exercise its rights under any of
Sections 2.11, 2.13, 2.14, 2.15 or 7.15 and a similar exercise of such rights is
not sought by the Majority Banks.
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In order to exercise its rights under this Section 2.23, Stewart shall give
notice to the Replaced Bank and the Agent that it wishes to seek an Eligible
Assignee to replace the Replaced Bank (a "Replacement Bank"). Once Stewart has
identified an Eligible Assignee that is willing to serve as the Replacement
Bank, the Replaced Bank and the Replacement Bank shall do the following:
(i) execute an assignment agreement in a form approved by the
Agent under which the Replaced Bank shall assign to the Replacement Bank all of
its rights and obligations under this Agreement, the Notes and the other Loan
Papers;
(ii) the Replacement Bank shall pay to the Replaced Bank an
amount equal to the sum of (x) (1) all Committed Loans and Competitive Loans
funded by the Replaced Bank and outstanding on the effective date of the
assignment (the "Assignment Effective Date"), together with unpaid interest
accrued thereon before the Assignment Effective Date, (2) any draws under
standby letters of credit that have been funded by (and not reimbursed to) such
Replaced Bank, and (3) the facility fee (as described in Section 2.19 of this
Agreement) earned by the Replaced Bank prior to the Assignment Effective Date
and to be paid by Stewart after the Assignment Effective Date, and (y) any other
fees or other amounts earned by the Replaced Bank and to be paid by a Borrower
after the Assignment Effective Date;
(iii) pro-rate as of the Assignment Effective Date any letter of
credit issuance fees that have been paid to the Replaced Bank under Section 2.02
hereof with respect to any standby letters of credit that are outstanding on the
Assignment Effective Date, and make such adjustment in the sums payable under
subsection (ii) above as are necessary to give the Replacement Bank a credit for
the portion of such issuance fees earned on and after the Assignment Effective
Date;
(iv) the Replacement Bank shall fund to the Agent, for
distribution to the subject Borrower or Borrowers, the principal amount of any
Loan (or letter of credit) which the Replaced Bank has failed to fund;
(v) the subject Borrower or Borrowers shall pay to the Replaced
Bank all obligations, if any, owing to it pursuant to Sections 2.11, 2.13, 2.14,
2.15 or 7.15; and
(vi) the Replacement Bank shall pay to the Agent a processing
fee of $3,500.
Following execution and delivery of the respective assignment agreement, payment
of amounts referred to above, delivery to the Replacement Bank of the
appropriate Notes executed by the Borrowers and the execution and delivery of
such other documents and instruments as the Agent shall require, in its
discretion, upon the Assignment Effective Date, the Replacement Bank shall
become a Bank under this Agreement and the Replaced Bank shall no longer be a
Bank under this Agreement, except with respect to the indemnification provisions
under this Agreement, which shall survive as to such Replaced Bank.
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Stewart may not require a Bank, and no Bank shall be obligated, to become a
Replacement Bank or to purchase the interest of any Bank Stewart wishes to
replace under this Section 2.23.
ARTICLE III.
CONDITIONS PRECEDENT
3.01 Conditions Precedent to Obligation of Banks to Fund Initial Loans. The
obligation of the Banks to make the initial Loans hereunder (and to assume the
obligations under the Existing Letters of Credit pursuant to Section 2.02
hereof) is subject to the conditions precedent that, as of the date of the
making of such initial Loans (the "Initial Borrowing Date"), which shall be not
more than two (2) Business Days following the Closing Date, the Agent shall have
received the following, each in form and substance satisfactory to the Banks:
(a) this Agreement, duly executed by the Borrowers, the Agent
and the Banks;
(b) the Notes, duly executed by the Borrowers;
(c) the Stewart/Cementerios Guaranty and the Stewart/Funerarias
Guaranty, duly executed by Stewart;
(d) a copy of the resolution or unanimous consent of the boards
of directors of each of the Borrowers, approving and authorizing the execution,
delivery and performance of this Agreement, the Notes, the Stewart/Cementerios
Guaranty, the Stewart/Funerarias Guaranty and any other documents and
instruments to be executed by such parties pursuant hereto, as well as all other
matters contemplated hereby, certified to be in full force and effect as of the
Initial Borrowing Date by the secretary or assistant secretary of each of the
Borrowers, respectively;
(e) (i) a copy of the articles of incorporation, as amended, of
each of the Borrowers, certified by the Secretary of State of the State of
Louisiana and a certificate as to the good standing of each of the Borrowers
from the Secretary of State of the State of Louisiana; (ii) a certificate of the
secretary or an assistant secretary of each of the Borrowers dated as of the
Initial Borrowing Date and certifying (A) that attached thereto is a true and
complete copy of the bylaws of each of the Borrowers as in effect on such date,
(B) that the articles of incorporation of each of the Borrowers have not been
amended since the date of the last amendment thereto furnished pursuant to (i)
above, and (C) as to the incumbency and specimen signatures of each officer of
the Borrowers executing this Agreement and the other Loan Papers; and (iii) a
certificate of another officer of each of the Borrowers as to the incumbency and
specimen signatures of the secretary or assistant secretary of each of the
Borrowers;
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(f) a certificate of an authorized officer of each of the
Borrowers dated as of the Initial Borrowing Date certifying (i) the truth of the
representations and warranties made by each of the Borrowers in this Agreement
and (ii) the absence of the occurrence and continuance of any Default or Event
of Default and (iii) that on or prior to the Initial Borrowing Date, the
principal of and interest on all loans, all accrued fees and all other amounts
due under the Existing Credit Agreements shall have been paid in full and the
commitments thereunder shall have been terminated;
(g) the legal opinions of counsel for the Borrowers in the
states of Louisiana and Texas with respect to the transactions contemplated
hereby, each in form and substance satisfactory to the Banks; and
(h) A letter from Crouch & Hallett, L.L.P. in form and substance
satisfactory to the Agent, evidencing the obligation of Crouch & Hallett, L.L.P.
to accept service of process in the State of Texas on behalf of each Borrower.
3.02 Conditions Precedent to the Obligation of the Banks to Fund All Loans
or Issue Letters of Credit. The obligation of the Banks to fund all Loans under
this Agreement (including funding of the initial Loans as referenced in Sections
3.01 and 3.03) or to issue any letter of credit shall be subject to the further
conditions precedent that on the date of the funding of such Loan or the
issuance of such letter of credit, the following statements shall be true and
correct:
(a) either (i) with respect to a Committed Loan borrowing, the Agent
shall have received the requisite notice in accordance with the provisions of
Section 2.05 hereof, or (ii) with respect to issuance of a letter of credit, the
provisions of Section 2.02 hereof shall have been complied with, or (iii) with
respect to a Competitive Loan Borrowing, the provisions of Section 2.06 shall
have been complied with;
(b) the representations and warranties of the Borrowers made in or
pursuant to this Agreement shall be true in all material respects on and as of
the date of the funding of such Loan or issuance of such letter of credit as if
made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date; provided, however, that for
purposes of this clause (b), on or after the date that Stewart, Cementerios,
Funerarias or any other Borrower, as the case may be, delivers its financial
statements to the Agent and the Banks pursuant to Section 5.08(a) or 5.08(b), as
the case may be, (i) the references in Section 4.06 to the financial statements
of Stewart, Cementerios and Funerarias shall be deemed to be a reference to the
financial statements of Stewart, Cementerios, Funerarias and any other Borrower
hereunder most recently delivered to the Agent and the Banks pursuant to Section
5.08(a) or 5.08(b), as the case may be, prior to the date of the funding of such
Loan or the issuance of such letter of credit, and (ii) the references in the
last sentence of Section 4.06 to October 31, 1996 shall be deemed to be
references to the respective dates of the financial statements of Stewart,
Cementerios and Funerarias most recently delivered to the Agent and the Banks
pursuant to Section 5.08(a) and 5.08(b) and (iii) Section 4.06 hereof shall be
deemed to include a representation and warranty that there has been no material
adverse change in the condition or operations, financial or otherwise, of any
Subsidiary that has become a Borrower hereunder subsequent to the Closing Date
since the
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date of the most recent financial statements furnished by such Subsidiary to the
Agent and the Banks; and provided further that notwithstanding anything
contained herein to the contrary, in the event that at any time after the
Closing Date the representation under Section 4.06 cannot be made with respect
to a Borrower other than Stewart because of the occurrence of a Limited Material
Adverse Change, then (A) the occurrence of such Limited Material Adverse Change
(i) shall preclude the affected Borrower from making additional borrowings or
requesting standby letters of credit hereunder (but shall not preclude such
affected Borrower from extending or converting existing Committed Loans under
Section 2.08 hereof) and (ii) shall not prejudice the rights of Stewart and the
Borrowers other than the Borrower affected by such Limited Material Adverse
Change to make borrowings (including extensions and conversions) and to request
standby letters of credit hereunder, assuming in all such instances compliance
with all other terms and conditions of this Agreement; and (B) following the
giving of notice of the occurrence of the Limited Material Adverse Change in
accordance with Section 5.10 of this Agreement, each time the representation
under Section 4.06 is required to be made or is deemed made under this Agreement
or any other Loan Paper, such representation shall be deemed made subject to and
qualified by an exception for such Limited Material Adverse Change until the
cessation thereof; and
(c) no Default or Event of Default shall exist and be continuing
either prior to or after giving effect to such Loan or to the issuance of
such letter of credit.
The request for such Loan or letter of credit by Stewart or any other Borrower
shall be deemed to be a representation and warranty by the Borrowers on the date
thereof of the correctness of the matters specified in subsections (b) and (c)
above.
3.03 Conditions Precedent to Initial Loans Under Each New Subsidiary
Revolving Facility. In addition to the conditions set forth in Sections 2.04
and 3.02 above, the obligation of the Banks to make the initial Loans hereunder
to any Subsidiary that becomes a Designated Borrower pursuant to Section 2.04
hereof is subject to the further conditions precedent that the Agent shall have
received on or before the date of funding of such initial Loans the following,
each dated such date:
(a) a Designated Borrower Addendum executed by such Designated
Borrower and acknowledged by each of Stewart and the other Borrowers;
(b) the Committed Notes, duly executed by such Designated Borrower;
(c) the Stewart Guaranty guaranteeing the Indebtedness hereunder of
such Designated Borrower;
(d) a copy of the resolution or unanimous consent of the board of
directors (or a copy of similar evidence of authority given by the analogous
governing body) of such Designated Borrower, approving and authorizing the
execution, delivery and performance of the Designated Borrower Addendum, this
Agreement and the Notes and any other documents and instruments to be executed
by such party pursuant hereto, as well as all other matters
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contemplated hereby and by the Designated Borrower Addendum, certified to be in
full force and effect as of the date of such certificate by the secretary or
assistant secretary of the Designated Borrower;
(e) (i) a copy of the articles of incorporation (or other similar
evidence of organization) of such Designated Borrower, together with all
amendments thereto, if any, and a certificate of good standing for such
Designated Borrower, both certified by the appropriate governmental officer in
its jurisdiction of organization; (ii) a certificate of the secretary or
assistant secretary of such Designated Borrower certifying, inter alia, (A) that
attached thereto is a true and correct copy of the bylaws (or other similar
document) of such Designated Borrower as in effect on the date of such
certificate, (B) that the articles of incorporation (or other similar evidence
of organization) of such Designated Borrower have not been amended since the
date of the last amendment thereto furnished pursuant to (i) above, and (C) the
incumbency and specimen signatures of the Persons executing any documents on
behalf of such Designated Borrower; and (iii) a certificate of another officer
of such Designated Borrower as to the incumbency and specimen signature of the
secretary or assistant secretary of such Designated Borrower;
(f) a certificate of an authorized officer of such Designated Borrower
certifying (i) the truth of the representations and warranties set forth in this
Agreement or any Loan Papers and (ii) the absence of the occurrence and
continuance of any Default or Event of Default;
(g) a copy of the resolution or unanimous consent of the board of
directors (or a copy of similar evidence of authority given by the analogous
governing body) of each of the Borrowers, approving and authorizing the
execution, delivery and performance of the Designated Borrower Addendum and, as
to Stewart only, the Stewart Guaranty guaranteeing the Indebtedness hereunder of
such Designated Borrower, and any other documents and instruments to be executed
by such parties pursuant hereto, as well as all other matters contemplated
hereby and by the Designated Borrower Addendum, certified to be in full force
and effect as of the date of such certificate by the secretary or assistant
secretary of each of the Borrowers;
(h) one or more written opinions of counsel to such Designated
Borrower and Stewart, each in form and substance satisfactory to the Agent;
(i) a letter from Crouch & Hallett, L.L.P. in form and substance
satisfactory to the Agent, evidencing the obligation of Crouch & Hallett, L.L.P.
to accept service of process in the State of Texas on behalf of such Designated
Borrower; and
(j) such other documents as the Agent may reasonably request.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Borrowers jointly and severally represent and warrant to Agent, to each of
the Banks and to all future holders of all or any part of the Obligation that:
4.01 Organization; Power and Authority. The Borrowers and each of the
Subsidiaries are entities duly organized and validly existing and possess all
requisite power and authority, whether corporate, partnership or otherwise, to
own their respective Properties and to conduct their respective businesses as
now conducted.
4.02 Qualification; Good Standing. The Borrowers and each of the
Subsidiaries are duly qualified and in good standing in their respective
jurisdictions of incorporation and in each jurisdiction in which the nature of
their activities or their Properties owned or leased makes such qualification
necessary, except for jurisdictions individually or in the aggregate where the
failure to be so qualified or be in good standing could not be reasonably
expected to have a Material Adverse Effect.
4.03 Authorization.
(a) The execution, delivery and performance by each of the Borrowers
of each of the Loan Papers to which it is a party has been duly authorized by
all necessary corporate, partnership or other similar action, as the case may
be, and do not and will not (i) require any consent or approval of the
stockholders, partners or other constituent members of each such entity, (ii)
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to each such entity or of the charter, by-laws, partnership
agreement or other organizational documentation applicable to each such entity,
(iii) result in a breach of or constitute a default under any indenture or loan
or credit agreement or any other material agreement or instrument to which each
such entity is a party or by which it or its Property may be bound or affected
or (iv) result in or require the creation or imposition of any Lien upon or with
respect to any of the Properties now owned or hereafter acquired by each such
entity (other than any Liens given to the Agent or the Banks pursuant hereto).
(b) No authorization, consent, approval, license, exemption, filing or
registration with any Governmental Body, including without limitation any court,
commission, board, bureau, agency or instrumentality, domestic or foreign, is or
will be necessary (except for any such action or filing that has been taken and
is in full force and effect) for the valid execution, delivery or performance of
any of the Loan Papers by the Borrowers or any of the Subsidiaries.
4.04 Subsidiaries of Stewart. Set forth on Exhibit "1.01N" hereto is a
complete and accurate list of all of the Subsidiaries of Stewart as of
April 11, 1997. Except as disclosed in Exhibit "1.01N" attached hereto, Stewart
owns, directly or through another Subsidiary, 100% of
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the issued and outstanding stock of such Subsidiaries. The name of each of the
shareholders, partners or other constituent members of each such Subsidiary and
the respective ownership interest of each such shareholder, partner or other
constituent member is set forth on Exhibit "1.01N" attached hereto.
4.05 Business. The Borrowers and the Subsidiaries are engaged generally in
the business of the acquisition, ownership, operation, development, design
and/or construction of mausoleums, cemeteries, funeral homes, crematoria, real
estate (incidental to the development of cemeteries and funeral homes and
crematoria), and related activities.
4.06 Financial Statements. The Borrowers have furnished to the Banks copies
of (a) the audited consolidated balance sheet of Stewart and its Subsidiaries as
of October 31, 1996 and the related audited consolidated statements of income,
cash flows and shareholders' equity for the fiscal year then ended; and (b) the
balance sheet of each of Cementerios and Funerarias as of October 31, 1996 and
the related statements of income, cash flows and shareholders' equity for the
fiscal year then ended. Such financial statements, including the related
schedules and notes, are complete and correct in all material respects and
fairly present the financial condition of such entities at such dates and the
results of their operations for such periods, all in accordance with generally
accepted accounting principles applied on a consistent basis (except as
otherwise stated therein or in the notes thereto) throughout the periods
involved. There has been no material adverse change in (i) the consolidated
condition or operations, financial or otherwise, of Stewart and its Subsidiaries
since October 31, 1996 and (ii) the condition or operations, financial or
otherwise, of either of Cementerios or Funerarias since October 31, 1996.
4.07 Filing of Tax Returns. The Borrowers and each of the Subsidiaries have
filed all material tax returns required to have been filed and have paid all
taxes shown to be due and payable on such returns and all other taxes and
assessments which are payable by them to the extent the same have become due and
payable and before they have become delinquent. Neither the Borrowers nor any of
the Subsidiaries knows of any proposed tax assessment against it, and in the
opinion of the Borrowers and the Subsidiaries, all tax liabilities are
adequately provided for on the books of such entities, except for any such
proposed tax assessments or tax liabilities which are not material to Stewart
and its Subsidiaries, taken as a whole. No income tax liability of the Borrowers
or any of the Subsidiaries which is material to Stewart and its Subsidiaries,
taken as a whole, has been asserted by the Internal Revenue Service or other
Governmental Body for taxes in excess of those already paid.
4.08 Liens. Neither the Borrowers nor any of the Subsidiaries has
outstanding any Lien on any of its assets except such Liens as are permitted
under Section 5.23 of this Agreement.
4.09 Litigation, Etc. There is no litigation, proceeding or investigation
pending or, to the knowledge of any Borrower, threatened against any Borrower or
any Subsidiary or any of their business operations, Properties or assets in any
court or before any arbitrator of any kind or before any Governmental Body which
could reasonably be expected to result in a Material Adverse Effect. Neither
Stewart nor any of the Subsidiaries is in default with respect to any order of
any court, arbitrator or any Governmental Body and neither Stewart nor any of
the Subsidiaries
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have any outstanding or unpaid judgments except for any such defaults or
outstanding or unpaid judgments which could not reasonably be expected to result
in a Material Adverse Effect.
4.10 Compliance with Law. The businesses and operations of the Borrowers
and the Subsidiaries have been and are being conducted in accordance with all
applicable laws, rules and regulations of all Governmental Bodies, including,
without limitation, all Environmental Laws, except for any violations of such
laws, rules and regulations as will not have a Material Adverse Effect.
4.11 Compliance with Other Instruments. Neither the Borrowers nor any of
the Subsidiaries is in violation of any term or provision of any charter, bylaw,
mortgage, indenture, contract, agreement, instrument or license applicable to it
or any of its Properties, except for any violation as will not have a Material
Adverse Effect, and there is no term or provision thereof which now or in the
future will have a Material Adverse Effect.
4.12 Licenses, Etc. The Borrowers and each of the Subsidiaries possess all
licenses, permits, patents, copyrights, trademarks and trade names, or rights
thereto, which are material to the conduct of the businesses of the Borrowers
and the Subsidiaries, taken as a whole.
4.13 Employee Benefit Plans. Neither Stewart, any of the Subsidiaries nor
any Related Party has permitted any of the acts, events or conditions described
in Section 5.06 of this Agreement to exist or occur, except to the extent that
any of such acts, events or conditions would not subject Stewart or any of the
Subsidiaries to any liability(ies) which, individually or in the aggregate, is
material to Stewart and the Subsidiaries, taken as a whole.
4.14 Margin Stock. Neither Stewart nor any of its Subsidiaries is engaged
in the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System), and no part of the proceeds of any Loan will be
used to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
4.15 Investment Company Act. Neither Stewart nor any of its Subsidiaries is
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
4.16 Guaranteed Indebtedness. Attached hereto as Exhibit "4.16" is a
schedule of all Guarantees of Stewart pursuant to which Stewart has guaranteed
the Funded Indebtedness of any other Person; provided, however, that at any time
this representation is made after the Closing Date, Exhibit "4.16" shall be
deemed to include all Guarantees made or incurred by Stewart subsequent to the
Closing Date to the extent that same are permitted by the provisions of Section
5.13 of this Agreement. There are no Guarantees outstanding pursuant to which
any of the Subsidiaries has guaranteed the Indebtedness of any other Person
except for (a) the Guaranty agreements by Cementerios dated October 31, 1996 in
favor of the Private Placement Noteholders guaranteeing a portion of the
Indebtedness of Stewart under the Private Placement Agreements and (b) the
Guaranty agreements by Funerarias dated October 31, 1996 in favor of the Private
Placement Noteholders guaranteeing a portion of the Indebtedness of Stewart
under
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the Private Placement Agreements and (c) any Guaranty agreements permitted
under Section 5.13 of this Agreement.
4.17 Indebtedness. Annexed hereto as Exhibit "4.17" is a schedule of all
Indebtedness of Stewart and the Subsidiaries other than the following:
(a) Indebtedness due to the Agent and the Banks under this Agreement;
(b) Guaranteed Indebtedness of Stewart, Cementerios and Funerarias
described in Section 4.16 above or on Exhibit "4.16" hereto;
(c) Indebtedness incurred in the ordinary course of business other
than Funded Indebtedness; and
(d) Indebtedness represented by loans or advances on life insurance
policies upon the lives of any employees of Stewart or any Subsidiary;
provided, however, that at any time this representation is made after the
Closing Date, Exhibit "4.17" shall be deemed to include all Indebtedness of
Stewart and the Subsidiaries incurred subsequent to the Closing Date to the
extent that same is permitted by the terms of this Agreement.
4.18 Legally Enforceable Agreements. This Agreement, the Notes, the Stewart
Guarantees and each of the other Loan Papers heretofore or hereafter delivered
to the Agent and the Banks in connection with this Agreement constitute (or, in
the case of the Loan Papers delivered subsequent to the Closing Date, will
constitute) legal, valid and binding obligations of each of the Borrowers and/or
each of the Subsidiaries, as the case may be, enforceable against each of the
Borrowers and/or each of the Subsidiaries, as the case may be, in accordance
with their respective terms.
ARTICLE V.
COVENANTS
Each Borrower jointly and severally covenants with Agent, each of the Banks
and all future holders of all or any part of the Obligation that until the
payment and performance in full of the Obligation and for so long as there is
any LC Exposure to any Borrower or any other portion of the Banks' commitments
or other obligations hereunder remain in effect, each Borrower will, and Stewart
will cause each of the other Subsidiaries to, comply in all material respects
with each of the following covenants and agreements:
5.01 Maintenance of Properties; Legal Existence; Qualification. The
Borrowers and each of the Subsidiaries will maintain or cause to be maintained
their Property in good condition and make all necessary repairs, renewals,
replacements, additions, betterments and improvements
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thereto. In addition, the Borrowers and each of the Subsidiaries will, except as
otherwise permitted pursuant to Section 5.14 hereof, (a) do or cause to be done
all things necessary to preserve and keep in full force and effect their
respective corporate or other legal existences, rights and franchises and (b)
remain qualified and in good standing in each jurisdiction in which the nature
of their activities makes such qualification necessary, except for jurisdictions
individually or in the aggregate where the failure to be so licensed or
qualified could not be reasonably expected to have a Material Adverse Effect.
5.02 Maintenance of Business. Neither any of the Borrowers nor any of the
Subsidiaries will materially change the nature of its business, taken on a
consolidated basis, from the nature of the business engaged in by it on the date
hereof; provided, however, that (a) if Stewart or any Subsidiary is engaged in
either the insurance business or the finance business in the manner permitted by
Section 5.12, the conduct of such business shall not constitute a violation of
this Section 5.02 and (b) the Borrowers and the Subsidiaries, as the case may
be, shall be entitled to make the investments DESCRIBED IN SECTION 5.12 HEREOF.
5.03 Change in Ownership of Subsidiaries. Except as permitted in Section
5.14 below, throughout the term of this Agreement there shall be no change in
ownership whatsoever of any of the Subsidiaries; provided, however, that Stewart
may purchase at any time the portion of the capital stock of any Subsidiary that
is owned by any third Person.
5.04 Payment of Taxes and Claims. The Borrowers and each of the
Subsidiaries will timely file all material tax returns and will pay, before they
become delinquent, (a) all material taxes, assessments and governmental charges
or levies imposed upon it or its Property, and (b) all material claims or
demands of materialmen, mechanics, carriers, warehousemen, landlords and other
Persons which, if unpaid, might result in the creation of a Lien upon its
Property; provided that items of the foregoing description need not be paid
while being contested in good faith, by appropriate proceedings, and if adequate
book reserves have been established with respect thereto; and provided further
that the owning company's title to and right to use its Property are not
materially adversely affected thereby.
5.05 Compliance With Generally Accepted Accounting Principles; Compliance
with Law.
(a) The Borrowers and each of the Subsidiaries will maintain a
standard system of accounting in accordance with generally accepted accounting
principles and statutory regulations. All financial statements and related
reports provided to Agent and the Banks in connection with this Agreement will
be prepared in accordance with generally accepted accounting principles.
(b) Neither the Borrowers nor any of the Subsidiaries will be in
violation of any laws, ordinances, governmental rules and regulations, or orders
of any Governmental Body to which it is subject including, without limitation,
all Environmental Laws, and/or fail to obtain any licenses, permits, franchises
or other governmental authorizations necessary with respect to the
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ownership of its Properties or to the conduct of its business, which violation
or failure to obtain might have a Material Adverse Effect.
5.06 Employee Benefit Plans. Stewart, the Subsidiaries and the Related
Parties (a) shall not engage in any act or omission involving any Plan which
would constitute a nonexempted prohibited transaction within the meaning of
either ERISA or the Code, or would cause them to be subject either to a civil
penalty assessed pursuant to ERISA or to a tax imposed by the Code, including
but not limited to any tax under Sections 4971 and 4980B, (b) shall comply in
all respects with the requirements of ERISA and the Code with respect to each
Plan, (c) with respect to each Plan which is a pension benefit plan intended to
qualify under Section 401(a) of the Code, shall cause such Plan to continue to
be qualified in all respects in both form and operation, and shall cause each
trust which forms a part of such Plan to maintain its tax exempt status under
Section 401(a) of the Code in all respects, (d) with respect to each Plan which
is subject to Part 3 of Title I of ERISA, shall not incur any "accumulated
funding deficiency" within the meaning of Section 302 of ERISA or Section 412 of
the Code, (e) shall not incur any liability under Title IV of ERISA under any
Plan to any Person; (f) shall not terminate or permit the termination of any
Plan which is an "employee pension benefit plan", as defined in Section 3 of
ERISA, in a manner which may result in the imposition of a Lien on the property
of Stewart or the Subsidiaries pursuant to Section 4068 of ERISA, and (g) shall
not engage in a "withdrawal" or "partial withdrawal", as defined in Section 4203
or 4205 of ERISA, from a Multiemployer Plan, if any of the acts, events or
conditions described in (a) through (g) is likely to subject Stewart or, any of
the Subsidiaries to any liability(ies) which, individually or in the aggregate,
is material to Stewart and the Subsidiaries, taken as a whole.
5.07 Insurance. The Borrowers and each of the Subsidiaries will maintain,
with financially sound and reputable insurers, insurance with respect to their
respective Properties and businesses against such casualties and contingencies
of such types (including public liability, larceny, embezzlement or other
criminal misappropriation) and in such amounts as is customary in the case of
entities engaged in the same or a similar business and similarly situated.
5.08 Financial Statements and Other Information. The Borrowers and each of
the Subsidiaries will furnish to the Agent for dissemination to the Banks the
following reports:
(a) Annual Reports. As soon as available, and in any event within one
hundred twenty (120) calendar days after the end of its fiscal year, a complete
financial report (which financial report may be on Form 10-K) of Stewart and the
Subsidiaries (on a consolidated basis) together with all notes thereto, prepared
in reasonable detail, duly certified by, and accompanied by the opinion of
Coopers & Lybrand, L.L.P., any other "Big Six" accounting firm, or any other
firm of certified public accountants acceptable to the Majority Banks, which
shall contain at least (i) a balance sheet, (ii) a statement of earnings, (iii)
a statement of shareholders' equity, and (iv) a statement of cash flows, setting
forth in each case in comparative form the corresponding figures from the
preceding fiscal year. Such financial report shall be accompanied by a
certificate of such accountants to the effect that, in making the examination
necessary for their audit of the financial affairs of the Borrowers and the
Subsidiaries for such fiscal year, they have obtained no knowledge of any
Default or Event of Default, or, if such accountants shall have obtained
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knowledge of any Default or Event of Default, they shall specify the same in
such certificate, and the nature and status thereof, it being understood that
said accountants shall not be liable, directly or indirectly, to anyone for
failure to obtain knowledge of any Default or Event of Default.
(b) Quarterly Reports.
(i) Stewart. As soon as available and in any event within sixty
(60) calendar days after the end of the first three fiscal quarters of each
fiscal year a report, in form and substance satisfactory to the Banks (which
report may be on Form 10-Q), certified by the chief financial officer or chief
accounting officer of Stewart, which shall contain the consolidated balance
sheet and consolidated statements of earnings and cash flows for Stewart and the
Subsidiaries for the fiscal year to date, as of the end of such quarter. The
quarterly financial statements provided by Stewart hereunder shall be presented
on a basis consistent with the most recent audited financial statements provided
by Stewart to the Banks, subject to such modifications as may be required as a
result of changes in accounting methods permitted under generally accepted
accounting principles.
(ii) Subsidiaries. As soon as available and in any event within
sixty (60) calendar days after the end of each of the first three fiscal
quarters, and within one hundred twenty (120) calendar days after the end of the
last fiscal quarter, of each fiscal year of each Subsidiary that is a Borrower
under this Agreement a report, in form and substance satisfactory to the Banks,
certified by the chief financial officer or the chief accounting officer of
Stewart, which shall contain the balance sheet and statements of earnings and
cash flows for each of such Subsidiaries for the fiscal year to date, as of the
end of such quarter. The financial statements provided by such Subsidiaries
hereunder shall be presented on a basis consistent with the most recent
financial statements provided by such Subsidiaries to the Banks, subject to such
modifications as may be required as a result of changes in accounting methods
permitted under generally accepted accounting principles.
(c) Officers Certificate. Simultaneously with the delivery of each set
of financial statements referred to in Sections 5.08(a) and 5.08(b) above, a
certificate of the chief financial officer or chief accounting officer of
Stewart (i) certifying as to the matters set out in Sections 3.02(b) and 3.02(c)
and (ii) stating whether, since the date of the most recent financial statements
previously delivered pursuant to Sections 5.08(a) and 5.08(b) above, there has
been a change in the generally accepted accounting principles applied in
preparing the financial statements then being delivered from those applied in
preparing the most recent audited financial statements so delivered which is
material to the financial statements then being delivered.
(d) Quarterly and Annual Consolidating Reports. At the same time that
the consolidated reports described in Sections 5.08(a) and 5.08(b)(i) above are
furnished to the Banks, an unaudited consolidating financial report of Stewart
and the Subsidiaries, prepared by Stewart, containing at least a balance sheet
and a statement of earnings.
(e) Reportable Events. (i) As soon as possible, and in any event
within thirty (30) calendar days after any executive officer (as defined in the
instructions to Form S-1 under the
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Securities Act of 1933) of the Borrowers or any of the Subsidiaries knows or has
reason to know that any Reportable Event with respect to any Plan has occurred,
a statement of the chief financial officer or chief accounting officer of
Stewart setting forth details as to such Reportable Event and the action which
Stewart proposes to take with respect thereto, together with a copy of the
notice of such Reportable Event given to the Pension Benefit Guaranty
Corporation; and (ii) promptly after receipt thereof, a copy of any notice the
Borrowers or any of the Subsidiaries may receive from the Pension Benefit
Guaranty Corporation relating to any of the Borrowers' or such Subsidiary's
intent to terminate any Plan or to appoint a trustee to administer any Plan.
(f) Quarterly Compliance Certificate. On a quarterly basis, within sixty
(60) calendar days after the end of each of the first three fiscal quarters, and
within 120 calendar days after the end of the last fiscal quarter, of each
fiscal year , a compliance certificate in the form of Exhibit "5.08" annexed
hereto, or in such other form as may be requested by the Banks, signed by the
chief financial officer or chief accounting officer of Stewart, and, if
requested by Agent, accompanied by a worksheet illustrating the calculations
made in connection with the information supplied in such certificate.
(g) SEC Filings. (i) Unless furnished pursuant to Section 5.08(a),
simultaneously with the delivery of the financial report under Section 5.08(a),
Stewart shall furnish to the Agent a copy of the report on Form 10-K most
recently filed by Stewart with the Securities and Exchange Commission; (ii)
unless furnished pursuant to Section 5.08(b)(i), simultaneously with the
delivery of the quarterly financial statements under Section 5.08(b)(ii),
Stewart shall furnish to the Agent a copy of the report on Form 10-Q most
recently filed by Stewart with the Securities and Exchange Commission; and (iii)
on a monthly basis, Stewart will furnish to the Agent all reports on Form 8-K
that Stewart has filed with the Securities and Exchange Commission since the
same day in the preceding month, as well as such other registration statements,
reports and filings with the Securities and Exchange Commission as the Agent or
any Bank shall request.
(h) Fairness Opinion. Neither Stewart nor any of the Subsidiaries will
enter into any acquisition of a Subsidiary the purchase price of which is Forty
Million ($40,000,000) Dollars or more (whether such purchase price is paid in
cash, in exchange for capital stock of Stewart or otherwise) unless Stewart has
provided to Agent and the Banks, not later than 30 days prior to the closing of
such acquisition, a "fairness opinion" from Bear, Stearns & Co., Inc., Johnson,
Rice & Co. or such other firm as shall be acceptable to Agent and the Majority
Banks, in form and substance satisfactory to Agent and the Majority Banks, which
shall include, without limitation, a statement that the purchase price of the
acquisition is fair, from a financial standpoint, to the shareholders of
Stewart.
5.09 Other Reports and Information. The Borrowers will furnish to the Banks
from time to time upon request copies of any other reports to or by the
Borrowers, or any of the Subsidiaries, in connection with their respective
businesses, and full information pertinent to any covenant, provision, or
condition hereof, or to any matter in connection with their businesses, at all
reasonable times and as often as any of the Banks MAY REASONABLY REQUEST.
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5.10 Notice of Events of Default and Other Events. The Borrowers will
notify Agent and the Banks within five (5) Business Days following the date on
which any of them obtains knowledge of any of the following:
(i) the occurrence of any Default or Event of Default
hereunder;
(ii) the occurrence of any event or events which could
reasonably be expected to result in a Limited Material Adverse Change; or
(iii) the occurrence of any event or events which could
reasonably be expected to have a Material Adverse Effect.
Additionally, within five (5) Business Days following the date on which any of
the Borrowers obtains knowledge that the holder of any note or of any evidence
of Indebtedness or other security issued by any Borrower or any of the
Subsidiaries has given notice or taken any other action with respect to a
claimed default or event of default, Stewart will send to Agent and the Banks a
written notice specifying the notice given or action taken by such holder and
the nature of the claimed default or event of default and what action Stewart
and the Subsidiaries are taking or propose to take with respect thereto;
provided, however, that such notice need not be given to the Agent and the Banks
if the amount(s) in controversy totals, individually or in the aggregate, the
sum of $1,000,000 or less. For purposes hereof, the Borrowers shall be deemed
to have knowledge of any fact(s) or event(s) within the actual knowledge of any
member of senior management of any of the Borrowers, including, but not
necessarily limited to, Frank B. Stewart, Jr., Joseph P. Henican, III, Ronald
H. Patron, William E. Rowe, Kenneth C. Budde, the president of any division of
Stewart, members of the senior executive committee of Stewart, any executive
vice president of Stewart, and any successor or replacement of any of the
foregoing.
5.11 Notice from Regulatory Agencies. Within five (5) Business Days
following receipt by any of the Borrowers or any of the Subsidiaries, Stewart
will supply to the Agent and the Banks information with respect to and copies of
any notices received from any Governmental Body relating to any order, ruling,
statute or other law or information which might materially and adversely affect
the franchises, permits, licenses, corporate existence, or rights material to
the conduct of the businesses of the Borrowers and the Subsidiaries, taken as a
whole. For purposes hereof, the Borrowers and the Subsidiaries shall be deemed
to have received any such notice (a) upon its receipt by any member of senior
management of the Borrowers, including, but not necessarily limited to, Frank B.
Stewart, Jr., Joseph P. Henican, III, Ronald H. Patron, William E. Rowe, Kenneth
C. Budde, the president of any division of Stewart, members of the senior
executive committee of Stewart, any executive vice president of Stewart, and any
successor or replacement of any of the foregoing, or (b) if any of the
individuals listed in (a) above shall have actual knowledge that such notice has
been received by any other individual on behalf of the Borrowers or any of the
Subsidiaries.
5.12 Restricted Loans and Investments. Neither Stewart nor its Subsidiaries
will make or permit to remain outstanding investments in other Persons, whether
by means of stock
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purchase, asset purchase, loan, advance, capital contribution or otherwise
(collectively, "Investments"), except that Stewart and its Subsidiaries, as the
case may be, may:
(a) create accounts receivable through the sale of goods or services
in the ordinary course of business;
(b) escrow or entrust funds for purposes of future delivery of
property, goods or services;
(c) make Permitted Investments;
(d) make Investments in Persons engaged in or assets acquired for use
in the Death Care Business, it being specifically understood that Stewart or a
Subsidiary may acquire or establish (i) a finance company or companies that will
be engaged in the business of providing loans and similar financing services to
Persons engaged in the Death Care Business or that are otherwise related or
incidental to the operations of the Death Care Businesses of Stewart and its
Subsidiaries and (ii) an insurance company or companies that will provide
insurance-related services that are related or incidental to the operations of
the Death Care Businesses of Stewart and its Subsidiaries; and
(e) make other Investments which, taken collectively, do not exceed 5%
of Consolidated Total Assets at any time.
5.13 Guaranteed Indebtedness. Neither Stewart nor any Subsidiary will
create, incur, assume or suffer to exist any Guaranteed Indebtedness at any time
during the term of this Agreement; provided, however, that Stewart shall be
entitled to guaranty Indebtedness of the Subsidiaries permitted under this
Agreement; and provided further that (i) Cementerios and Funerarias may permit
to exist the Guaranty agreements in favor of the Private Placement Noteholders
as more fully described in Section 4.16 of this Agreement; (ii) provided that no
Default or Event of Default has occurred and is continuing, if in connection
with the acquisition of a Subsidiary or Subsidiaries, the acquired Subsidiary or
Subsidiaries have Guaranty obligations that are outstanding with respect to
Indebtedness of another Subsidiary or Subsidiaries acquired in such acquisition,
such Guaranty obligations may remain outstanding for a period not to exceed
ninety (90) days following the date of the subject acquisition and (iii) the
Subsidiaries (other than Borrowers) may incur or permit to exist Guaranty
obligations guaranteeing Indebtedness of other Subsidiaries permitted under
this Agreement in an amount (without duplication) not to exceed $500,000 in the
aggregate.
5.14 Stock of Subsidiaries, Merger, Sale of Assets, Etc. Stewart will not
permit any Subsidiary to issue any of its capital stock (other than directors'
qualifying shares or shares required to be held by a Person pursuant to
licensing requirements of any Governmental Body) except to Stewart or to another
Subsidiary. Additionally, Stewart will not and will not permit any Subsidiary
to sell or otherwise dispose of any shares of capital stock of, or any
obligations (howsoever evidenced) from, any Subsidiary, or to merge or
consolidate with any other Person or
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to sell, lease, transfer or otherwise dispose of all or substantially all of its
assets (as distinguished from sales of excess land and other assets not used or
useful in the conduct of its business, which are permitted), whether in one
transaction or a series of transactions, except that, so long as after giving
effect thereto no Default or Event of Default shall exist:
(a) any Subsidiary may merge or consolidate with Stewart (provided
that Stewart shall be the continuing or surviving corporation) or with another
Subsidiary;
(b) in connection with the acquisition of any Person that is to become
a Subsidiary, a Subsidiary may merge with the acquired Person;
(c) Stewart or a Subsidiary may sell, transfer or otherwise dispose of
the capital stock of a Subsidiary to Stewart or any other Subsidiary;
(d) any Subsidiary may sell, lease, transfer or otherwise dispose of
all or substantially all of its assets to Stewart or another Subsidiary; and
(e) Stewart may sell or otherwise dispose of the capital stock of a
Subsidiary to a Person other than a Subsidiary, and a Subsidiary may sell or
otherwise dispose of the capital stock of another Subsidiary or all or
substantially all of its assets to a Person other than Stewart or another
Subsidiary (i) if, after giving effect to such sale or other disposition, the
aggregate net book value of all such capital stock and other assets sold or
disposed of by Stewart and the Subsidiaries on or after the Closing Date to the
date of such sale or disposition (but excluding therefrom any sale or
disposition the proceeds of which are used in the manner set forth in clause
(ii) below) does not exceed ten percent (10%) of Consolidated Total
Capitalization on the date of such sale or disposition or (ii) if the proceeds
of any such sale or other disposition are used either (A) to purchase or acquire
(or in the case of real Property, to construct) assets to be used or held for
use in the operations of the business of Stewart or the Subsidiaries within 180
days of such sale or disposition or (B) to repay pro-rata (x) the principal
Indebtedness due under the Loans (and, in connection therewith, to permanently
reduce the Total Commitment Amount by the amount of such principal reduction)
and (y) if required by the Private Placement Noteholders, the principal
Indebtedness due to the Private Placement Noteholders under the Private
Placement Agreements (excluding payment of any "Make Whole Amount", as defined
in the Private Placement Agreements). Any such repayment pursuant to clause
(ii) above of the principal Indebtedness due under the Loans shall be applied
first, to Committed Loans which are Base Rate Loans; second, to Committed Loans
which are LIBOR Rate Loans in direct order of Interest Period Maturities
(commencing with the shortest maturity); and third, to Competitive Loans in
direct order of Interest Period maturities; it being understood that any such
repayment of LIBOR Rate Loans or Competitive Loans shall be accompanied by any
amounts owing under Section 2.16 on account of such repayment. Additionally, any
such reduction of the Total Commitment Amount shall be made in such manner as
shall be agreed by Stewart and the Agent, subject to the limitations set forth
in Section 2.09(a)(i).
Notwithstanding anything contained in this Section 5.14 to the contrary, in no
event may Cementerios, Funerarias or any other Subsidiary that becomes a
Borrower under this Agreement
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(1) issue any shares of its capital stock except to its parent corporation or
(2) merge or consolidate with any other Person (other than Stewart, provided
that Stewart shall be the continuing or surviving corporation), or (3) sell,
lease, transfer or otherwise dispose of all or substantially all of its assets;
nor may any of the capital stock of, or any obligations (howsoever evidenced)
from, Cementerios, Funerarias or any other Subsidiary that becomes a Borrower
under this Agreement be sold or otherwise transferred or disposed of to any
Person during the term of this Agreement.
5.15 Restricted Payments. Stewart will not, directly or indirectly,
declare or pay any dividends (except dividends payable solely in shares of
common stock of Stewart) in any four consecutive fiscal quarters which, in the
aggregate, would exceed 50% of Consolidated Net Income for such four fiscal
quarters. Additionally, Stewart will not, directly or indirectly, or through
any Subsidiary, purchase, redeem or retire any shares of its capital stock of
any class or any warrants, rights or options to purchase or acquire any shares
of its capital stock (collectively, "Restricted Payments") if, after giving
effect thereto, the aggregate amount of Restricted Payments made on and after
the Closing Date would exceed five (5%) of Consolidated Net Worth as of the date
of such Restricted Payment. For purposes of calculating the foregoing
limitation, any such purchase, redemption or retirement by Stewart of any shares
of its capital stock of any class or any warrants, rights or options to purchase
or acquire any shares of its capital stock made pursuant to a stock option plan
maintained for Stewart's directors and employees which does not require a cash
outlay by Stewart (with the exception of the taxes withheld on behalf of the
directors and employees) shall not be considered a Restricted Payment.
Notwithstanding the foregoing, in no event shall any dividend be declared or
paid (except dividends payable solely in shares of common stock of Stewart) or
Restricted Payment be made by Stewart after the occurrence of a Default or an
Event of Default.
5.16 Transactions with Affiliates. Neither the Borrowers nor any of the
Subsidiaries will enter into any material transaction, including, without
limitation, the purchase, sale, lease or exchange of Property or the rendering
of any service, with any Affiliate except in the ordinary course of and pursuant
to the reasonable requirements of Stewart's or such Subsidiary's business and
upon fair and reasonable terms no less favorable to Stewart or such Subsidiary
than would be obtained in a comparable arm's-length transaction with a Person
not an Affiliate.
5.17 Inspection. The Borrowers and the Subsidiaries will permit any
representative of the Agent or any of the Banks from the date hereof and until
discharge in full of the Obligation, at such Bank's expense, to visit and
inspect any of their Properties, their books of account (including, without
limitation, the financial and reporting systems of the Borrowers and the
Subsidiaries), records, reports and other papers, to make copies and extracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants (and by
this provision the Borrowers authorize said accountants to discuss with the
Agent and the Banks the finances and affairs of the Borrowers and the
Subsidiaries), all at such reasonable times and as often as may be reasonably
requested. The Banks will coordinate any such activities through the Agent.
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5.18 Further Assurances. Upon the request of the Agent or any of the Banks,
the Borrowers and each of the Subsidiaries will, at any time, and from time to
time, duly execute and deliver to the Agent and the Banks any and all such
further instruments and documents as may be necessary or advisable, in the
opinion of the Agent or any of the Banks, to obtain the full benefits of the
Loan Papers.
5.19 Use of Proceeds. Subject to the other limitations contained in this
Agreement, the proceeds of the Loans will be used by the Borrowers only (a) for
the payment of all principal, interest and other amounts due under the Existing
Credit Agreements and (b) in connection with their respective business
activities as described in Section 4.05 of this Agreement; provided, however,
that the proceeds of the Loans may also be used in connection with any insurance
business or finance business engaged in by Borrowers or the Subsidiaries to the
extent that same are permitted by the terms of this Agreement.
5.20 Fixed Charges. Stewart shall not permit the ratio of (a) the sum of
earnings before income taxes, plus interest expense, plus lease expense to (b)
the sum of interest expense plus lease expense (all as defined by generally
accepted accounting principles, on a consolidated basis) for the most recently
completed four fiscal quarters to be less than 2.25 to 1.0 as of the end of any
fiscal quarter.
5.21 Funded Indebtedness to Net Worth Ratio. Stewart shall at all times
during the term of this Agreement maintain a ratio of Funded Indebtedness (on a
consolidated basis) to Consolidated Net Worth of not more than 1.50 to 1.0.
5.22 Funded Indebtedness of Subsidiaries. Stewart will not permit any
Subsidiary to create, incur, assume, permit to exist or otherwise become liable
for Funded Indebtedness (excluding the Funded Indebtedness due by any Subsidiary
to the Banks pursuant to this Agreement) if, after giving effect thereto, the
aggregate amount of Funded Indebtedness of the Subsidiaries (other than Funded
Indebtedness due to the Banks pursuant to this Agreement) would exceed 10% of
Consolidated Net Worth.
5.23 Negative Pledge; Liens. Throughout the term of this Agreement, neither
Stewart nor any of the Subsidiaries shall create, assume or permit to exist any
Lien on any of its assets (including any of the capital stock held in any
Subsidiary) except for such Liens granted from time to time by Subsidiaries who
are not Borrowers hereunder, and then only to the extent that such Liens in the
aggregate secure Indebtedness not exceeding ten (10%) percent of Consolidated
Net Worth at any time.
5.24 Loans to Stewart by Subsidiaries; Subordination. Stewart shall not
incur Funded Indebtedness from the Subsidiaries exceeding in the aggregate
$50,000,000 outstanding at any one time during the term of this Agreement. Upon
request of Agent or any Bank, Stewart will execute, and will cause any
Subsidiary or Subsidiaries to execute, in favor of the Banks a subordination
agreement, in form and substance satisfactory to Agent and the Banks, pursuant
to which Stewart and/or such Subsidiary or Subsidiaries shall subordinate any
and all Indebtedness due to it by any Borrower hereunder from time to time to
any and all Indebtedness and other
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obligations due by any Borrower hereunder to the Banks under this Agreement from
time to time. Additionally, following the occurrence of any Default or Event of
Default hereunder, neither Stewart nor any other Borrower hereunder shall make
any payments on any Indebtedness due to any Subsidiary.
ARTICLE VI.
EVENTS OF DEFAULT
6.01 Nature of Events. An "Event of Default" shall exist if any of the
following shall occur:
(a) Principal Payments. Any Borrower shall fail to make any payment of
principal on the Obligation or any other Funded Indebtedness owed by such
Borrower to the Agent or any of the Banks, on or before the date such payment is
due.
(b) Interest Payments; Other Payments. Any Borrower shall fail to make
any payment of interest on the Obligation or any other Funded Indebtedness owed
by such Borrower to the Agent or any of the Banks, or shall fail to pay any fees
or other amounts (other than principal) due under this Agreement, within five
(5) days following the date any such payment is due.
(c) Notification. Any Borrower shall fail to comply with the
provisions of Section 5.10 or Section 5.11 within the time limitations stated
therein.
(d) Certain Covenant Defaults. Except as provided in (e) below, any
Borrower or any Subsidiary shall fail to perform or observe any other term,
covenant or agreement contained herein.
(e) Other Covenant Defaults. Any Borrower or any Subsidiary shall fail
to perform or observe any term, covenant or agreement contained in Sections
5.01, 5.04, 5.05, 5.07, 5.08, 5.09, 5.12, 5.13, 5.16 and 5.18 and such failure
shall continue unremedied for a period of thirty (30) days.
(f) Warranties and Representations. If any warranty, representation,
certification or other statement by or on behalf of any Borrower or any
Subsidiary contained in this Agreement or in any other Loan Paper is false,
misleading or incorrect in any material respect on or as of the date made or
deemed made.
(g) Other Defaults. Any Borrower or any Subsidiary shall fail to pay
principal or interest on the date such payment is due (including any period of
grace, if any, provided for in the promissory note or other documentation
relating to same) on any Funded Indebtedness or on any obligations in respect of
any lease or agreement to lease, in an amount of $5,000,000 or more (other than
the Indebtedness referred to in Sections 6.01(a) and 6.01(b) hereof); or there
shall
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occur any other event or condition the effect of which is to accelerate, or to
permit to accelerate, any Funded Indebtedness or any obligations in respect of
any lease or agreement to lease of any Borrower and/or any Subsidiary in an
amount of $5,000,000 or more, (other than the Indebtedness referred to in
Sections 6.01(a) or 6.01(b) hereof.
(h) Involuntary Proceedings. A receiver, liquidator or trustee of any
Borrower or any Subsidiary, or of any of its/their property, is appointed by
court order and such order remains in effect for more than sixty (60) days; or a
case is commenced under any provision of the Federal Bankruptcy Code against any
Borrower or any Subsidiary which is not dismissed within sixty (60) days after
commencement; or a petition or other pleading is filed against any Borrower or
any Subsidiary under any other bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect, and same is not dismissed
within sixty (60) days after such filing; or an order for relief shall be
entered against any Borrower or any Subsidiary under the Federal Bankruptcy
Code.
(i) Voluntary Proceedings. Any Borrower or any Subsidiary shall file a
petition or other pleading commencing a case under any provision of the Federal
Bankruptcy Code; or voluntarily seek, consent to, or acquiesce in the benefit or
benefits of any provision of any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction, whether now or hereafter in effect; or consent to the filing of
any petition or other pleading against it under such law; or make an assignment
for the benefit of its creditors; or admit in writing its inability to pay its
debts generally as they become due; or consent to the appointment of a receiver,
trustee, liquidator or similar official for it or any part of its property.
(j) Undischarged Final Judgments. A final judgment or judgments (or
order or orders) for the payment of money aggregating in excess of $1,000,000
has or have been rendered against any Borrower or any Subsidiary (or any
combination of Borrowers and Subsidiaries) and any one of such judgments or
orders shall remain undischarged for a period of 30 days during which execution
shall not be effectively stayed.
(k) Loan Papers. The occurrence of any "event of default" under any of
the Loan Papers.
(l) Change in Control. The occurrence of a "Change in Control." A
"Change in Control" shall mean:
(i) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 30% of
the voting rights of all classes of Stewart's capital stock (for purposes of
this Section 6.01(l), the "Stock"); provided, however, that for purposes of this
subsection (i), the following acquisitions shall not constitute a Change in
Control:
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(A) any acquisition of Stock by Frank B.
Stewart, Jr., his wife, his immediate
family, or the trusts established for the
benefit of the children of Frank B.
Stewart, Jr.; or
(B) any acquisition of Stock by Stewart (which
acquisitions are subject to the limitations
set forth in Section 5.15 hereof); or
(C) any acquisition of Stock by any employee
benefit plan (or related trust) sponsored
or maintained by Stewart or any corporation
controlled by Stewart; or
(D) any acquisition of Stock by Stewart's
management pursuant to any employee stock
option plan; or
(ii) during the immediately preceding twelve (12) consecutive
calendar months the individuals who were directors of Stewart on the first day
of such period shall cease to constitute a majority of the board of directors of
Stewart. Individuals appointed to the board of directors to fill vacancies
resulting from the voluntary resignation (including as a result of the
expiration of such individual's term), retirement, or death of an incumbent
member of the board of directors shall be deemed to be members of the board as
of the first day of such twelve (12) month period.
(m) Stewart Guarantees. If for any reason any of the Stewart
Guarantees (including any Guaranty given in substitution or replacement of any
of them) shall be terminated or canceled or shall otherwise cease to be in full
force and effect.
(n) Invalidity of Loan Papers. Any of the Loan Papers shall cease to
be valid and enforceable, or any assertion shall be made in any claim, action,
suit or proceeding that any of the Loan Papers are invalid or unenforceable.
6.02 Certain Rights of the Banks.
(a) Remedies Upon Default. Should an Event of Default occur as a
result of the application of Section 6.01(h) or Section 6.01(i) hereof, without
any notice to any Borrower or any Subsidiary or any other act by the Agent or
the Banks, all commitments to lend and to issue letters of credit hereunder
shall thereupon terminate and the entire Obligation (including without
limitation the payment of cash collateral as provided in Section 2.02(e) hereof)
shall become immediately due and payable without presentment, demand, protest,
notice of intent to accelerate, notice of acceleration or other notice of any
kind, all of which are hereby waived by each Borrower and each Subsidiary.
Additionally, should an Event of Default of any kind occur, the Agent may, at
the election of the Majority Banks, do any one or more of the following:
(i) Acceleration. Declare the entire Obligation, or any part
thereof, (including without limitation the payment of cash collateral as
provided in Section 2.02(e) hereof) to be immediately due and payable, without
demand, presentment, notice of dishonor, notice of
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acceleration, notice of intent to accelerate, notice of intent to demand,
protest, or any other notice whatsoever, all of which are hereby expressly
waived, whereupon such Obligation and Indebtedness shall be due and payable.
(ii) Termination. Terminate all commitments to lend and/or issue
letters of credit under this Agreement or any portion thereof.
(iii) Judgment. Reduce any claim to judgment.
(iv) Exercise of Rights. Exercise any and all rights afforded by
applicable law, or by any of the Loan Papers, at law, in equity, or otherwise,
including, but not limited to, the rights to bring suit or other proceedings
before any court or Governmental Body, either for specific performance of any
covenant or condition contained in any of the Loan Papers or in aid of the
exercise of any right granted to the Banks in any of the Loan Papers.
(b) Certain Waivers. Each Borrower acknowledges and understands that
under the laws of the State of Texas, unless waived, such Borrower has the right
to notice of intent of the Agent or a Bank to accelerate the Obligations of such
Borrower hereunder, the right to notice of actual acceleration of the
Obligations of such Borrower hereunder, and the right to presentment of any Note
resulting from demand for payment by the Agent or a Bank. Each Borrower
acknowledges that it understands that it can waive these rights and by such
Borrower's execution of this Agreement it agrees to waive its right to notice of
intent to accelerate, its right to notice of acceleration, and its right to
presentment of other demand for payment. The liability and obligations of each
Borrower hereunder shall not be affected or impaired by any action or inaction
by the Agent or any Bank in regard to any matter waived or notice of which is
waived by such Borrower in this Section or in any other Section of this
Agreement.
(c) Performance by the Banks. Should any covenant, duty, or agreement
of any Borrower or any Subsidiary fail to be performed in accordance with the
terms of this Agreement or any of the other Loan Papers, the Banks may, at their
option, upon a vote of the Majority Banks, perform or attempt to perform such
covenant, duty or agreement on behalf of such Borrower or such Subsidiary. In
such event, Stewart shall promptly pay to the Agent for the benefit of the Banks
any reasonable amount expended by the Banks in such performance or attempted
performance, together with interest thereon at the Highest Lawful Rate.
Notwithstanding the foregoing, it is expressly understood that the Agent and the
Banks do not assume and shall never have, except by express written consent of
the Agent and the Banks, any liability or responsibility for the performance of
any covenant, duty or agreement of any Borrower or any Subsidiary.
(d) Expenditures by the Agent or the Banks. Any reasonable sums spent
by the Agent or the Banks pursuant to the exercise of any right provided herein
shall become part of the Obligation and shall bear interest at the Highest
Lawful Rate from the date of such expenditure until the date repaid.
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ARTICLE VII.
MISCELLANEOUS
7.01 Amendments, Etc. Except as expressly provided to the contrary
herein, no amendment, modification, consent, termination, or waiver of any
provision of this Agreement or any other Loan Paper to which any Borrower or any
Subsidiary is a party, nor consent to any departure by any Borrower or any
Subsidiary from the provisions of this Agreement or any other Loan Paper to
which it is a party, shall in any event be effective unless the same shall be in
writing and signed by the Majority Banks, and then such amendment, 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 the Agent and all Banks, accomplish any
of the matters provided for in Section 8.09; and provided further, that no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Banks required above to take such action, affect the rights or
duties of the Agent under this Agreement. Any request by a Borrower for an
amendment, modification, consent, termination or waiver of any provision of this
Agreement shall be in writing and shall be delivered to the Agent for
dissemination to the Banks.
7.02 Notices. All notices, consents, approvals, requests, demands and
other communications hereunder shall be in writing (including telex and telecopy
communications) and shall be sent by mail (by registered or certified mail,
return receipt requested), Federal Express or similar overnight delivery
service, telecopy or hand delivery, as follows:
(a) If to any Borrower or any Subsidiary:
110 Veterans Memorial Boulevard
Metairie, Louisiana 70005
Telecopy No. (504) 849-2308
Attention: Joseph P. Henican, III
and
Stewart Enterprises, Inc.
110 Veterans Memorial Boulevard
Metairie, Louisiana 70005
Telecopy No. (504) 849-2307
Attention: Ronald H. Patron
(b) If to the Agent:
NationsBank of Texas, N.A.
901 Main Street, 67th Floor
Dallas, Texas 75202
Telecopy No. (214) 508-0980
Attention: Thomas Blake, Senior Vice President
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with respect to fundings and repayments:
Attention: Gilda Diggs
Telephone No. (214) 508-2138
Telecopy No. (214) 508-2515
(c) If to any Bank, as specified on Exhibit "2.20" hereto or, in the
case of any Person who becomes a Bank after the date hereof, as specified on the
signature page of the Assignment and Acceptance or other assignment agreement
executed by such Bank.
The address or telecopy number for any purpose hereof of each of the parties
hereto may be changed to such other address or telecopy number as shall be
designated by such party in a written notice to all other parties complying as
to delivery with the terms of this Section 7.02. All such notices, requests,
demands and communications shall be deemed to have been duly given or made, (i)
when delivered by hand, (ii) if by mail, Federal Express or similar overnight
delivery service, when actually received, or (iii) when telecopied with written
confirmation of receipt received.
7.03 Waivers. The acceptance by the Agent or the Banks at any time and
from time to time of any late payment on the Obligation shall not be deemed to
be a waiver of any Event of Default then existing (other than the Event of
Default resulting from the failure to make such payment). No waiver by the
Agent or the Banks of any Event of Default shall be deemed to be a waiver of any
other then-existing or subsequent Event of Default. No delay or omission by the
Agent or the Banks in exercising any right under the Loan Papers shall impair
such right or be construed as a waiver thereof or an acquiescence therein, nor
shall any single or partial exercise of any such right preclude other or further
exercise thereof, or the exercise of any other right under the Loan Papers or
otherwise.
7.04 Cumulative Rights. All rights available to the Agent or the Banks
under the Loan Papers shall be cumulative of and in addition to all other rights
granted to the Agent or the Banks at law or in equity, whether or not the
Obligation be due and payable and whether or not the Agent or the Banks shall
have instituted any suit for collection or other action in connection with the
Loan Papers.
7.05 Indemnification of the Agent, Any Banks or Any Participants. The
Borrowers, jointly and severally, hereby indemnify the Agent, NationsBanc
Capital Markets, Inc., each of the Banks and any Participants and, in each
instance, their respective officers, directors, employees, representatives,
attorneys and agents (for purposes of this Section 7.05, collectively, the
"Indemnified Parties") and holds each of them harmless from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs, expenses, legal fees, and disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against any
of the Indemnified Parties, in any way relating to or arising out of this
Agreement, any of the other Loan Papers, any of the Loans made hereunder
(including, without limitation, any use made by any Borrower or any Subsidiary
of any of the proceeds of such Loans) or any of the transactions contemplated
therein or thereby, to the extent that any such indemnified liabilities result,
directly or indirectly, from any claims made or actions, suits, or proceedings
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commenced by or on behalf of any Person other than any of the Indemnified
Parties or any shareholder of any of the Banks; provided that the Indemnified
Parties shall not have the right to be indemnified hereunder if it is finally
judicially determined that such losses, liabilities, damages, etc. resulted
primarily from their own gross negligence or willful misconduct. Without
limiting the generality of the foregoing indemnification provisions, the
Borrowers, jointly and severally, hereby indemnify each of the Indemnified
Parties and holds each of them harmless from and against any and all
liabilities, obligations, losses damages, penalties, actions, judgments, suits,
claims, costs, expenses and disbursements of any kind or nature which any of
same may sustain or incur by reason of or arising out of any and all claims or
proceedings (whether brought by a private party, governmental authority, or
otherwise) for bodily injury, property damage, abatement, remediation,
environmental damage, or impairment or any other injury or damage resulting from
or relating to any Hazardous Substances (as hereinafter defined) located upon,
migrating into, from or through or otherwise relating to any property of any
Borrower or any Subsidiary (whether or not the release of such Hazardous
Substances was caused by any Borrower, any Subsidiary, a tenant or sub-tenant of
any Borrower or any Subsidiary, a prior owner, a tenant or sub-tenant of any
prior owner or any other party, and whether or not the alleged liability is
attributable to the handling, storage, generation, transportation or disposal of
any Hazardous Substances or the mere presence of any Hazardous Substances on
such property) which any of the Indemnified Parties may incur due to the making
of the Loans or the commitments hereunder, the exercise of any of its/their
rights under this Agreement, the other Loan Papers, or otherwise; provided,
however, that the Indemnified Parties shall not be entitled to be indemnified
hereunder if and to the extent it shall be finally judicially determined that
such losses, liabilities, obligations, damages, etc. resulted primarily from the
gross negligence or willful misconduct of the Indemnified Parties. As used
herein, the "Hazardous Substances" shall mean those elements of compounds which
are contained in the list of Hazardous Substances adopted by the EPA and the
list of toxic pollutants designated by Congress of the EPA or defined by any
other federal, state or local statute or any other law or regulation regulating,
relating to, or imposing liability (including strict liability) or standards of
conduct concerning, any hazardous, toxic or dangerous waste, substance or
material, as now or any time hereinafter in effect. THE OBLIGATIONS OF THE
BORROWERS HEREIN CONTAINED TO INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED
PARTIES SHALL APPLY REGARDLESS OF WHETHER THE LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES, LEGAL
FEES OR DISBURSEMENTS OR OTHER AMOUNTS FOR AND AGAINST WHICH THE INDEMNIFIED
PARTIES ARE INDEMNIFIED BY THE BORROWERS UNDER THIS AGREEMENT ARISE IN WHOLE OR
IN PART FROM THE NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES; PROVIDED,
HOWEVER, THAT NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE BORROWERS
TO INDEMNIFY ANY OF THE INDEMNIFIED PARTIES IF AND TO THE EXTENT IT IS FINALLY
JUDICIALLY DETERMINED THAT SUCH LIABILITIES, LOSSES, OBLIGATIONS, DAMAGES, ETC.
RESULTED PRIMARILY FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
INDEMNIFIED PARTIES.
7.06 Survival. All warranties, representations and covenants made by any
Borrower herein, or made by any Borrower or any Subsidiary in any other Loan
Paper, shall be considered
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to have been relied upon by the Agent and the Banks and shall survive the
delivery to the Agent or the Banks of such Loan Paper or the extension of the
Obligation (or any part thereof), regardless of any investigation made by or on
behalf of the Agent or the Banks. All indemnities set forth herein shall survive
the execution and delivery of this Agreement, the making of the Loans, the
repayment of the Loans and other Obligations and the termination of all
Revolving Facility Commitments and other obligations of the Banks hereunder.
7.07 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES.
(A) THE LAWS OF THE STATE OF TEXAS AND OF THE UNITED STATES OF AMERICA
SHALL GOVERN THE RIGHTS AND DUTIES OF THE PARTIES HERETO AND THE VALIDITY,
CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THIS AGREEMENT AND THE OTHER
LOAN PAPERS, EXCEPT TO THE EXTENT OTHERWISE SPECIFIED IN THE LOAN PAPERS.
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OF THE LOAN PAPERS MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS OR OF
THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, UNCONDITIONALLY, AND EACH BANK HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF, UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION
OF THE AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. EACH
BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CROUCH & HALLETT,
L.L.P., WITH OFFICES ON THE DATE HEREOF AT 717 N. HARWOOD, DALLAS, TEXAS 75201,
AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND
ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL
PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION
OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE
TO BE AVAILABLE TO ACT AS SUCH, EACH BORROWER AGREES TO DESIGNATE A NEW
DESIGNEE, APPOINTEE AND AGENT IN DALLAS, TEXAS ON THE TERMS AND FOR THE PURPOSES
OF THIS PROVISION SATISFACTORY TO THE AGENT. EACH BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT THE ADDRESS PROVIDED IN SECTION 7.02,
SUCH SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE AGENT OR ANY BANK TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST ANY BORROWER IN ANY OTHER JURISDICTION.
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(C) TO THE EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY (SOVEREIGN OR OTHERWISE) FROM ANY LEGAL ACTION, SUIT OR PROCEEDING,
FROM JURISDICTION OF ANY COURT OR FROM SET-OFF OR ANY LOCAL PROCESS (WHETHER
SERVICE OF NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION
OF JUDGMENT, EXECUTION OF JUDGMENT OR OTHERWISE) WITH RESPECT TO ITSELF OR ANY
OF ITS PROPERTY, SUCH BORROWER HEREBY IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND
THE LOAN PAPERS. EACH BORROWER HEREBY AGREES THAT THE WAIVERS SET FORTH IN THIS
SECTION 7.07 SHALL HAVE THE FULLEST EXTENT PERMITTED UNDER THE FOREIGN SOVEREIGN
IMMUNITIES ACT OF 1976 OF THE UNITED STATES OF AMERICA AND ARE INTENDED TO BE
IRREVOCABLE AND NOT SUBJECT TO WITHDRAWAL FOR PURPOSES OF SUCH ACT.
7.08 Maximum Interest Rate. Regardless of any provision contained in any
of the Loan Papers, the Borrowers shall never be required to pay, and the Agent
and the Banks shall never be entitled to receive, charge, collect, or apply, as
interest on the Obligation, any amount in excess of the Highest Lawful Rate,
and, in the event any Borrower pays or the Agent or any Bank ever receives,
charges, collects, or applies as interest, any such excess, such amount which
would be excessive interest shall be deemed a partial prepayment of principal
and treated hereunder as such; and, if the principal amount of the Obligation is
paid in full, any remaining excess shall forthwith be paid to the Borrowers. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the Highest Lawful Rate, the Borrowers, the Agent and the
Banks shall, to the maximum extent permitted under applicable law, (a)
characterize any nonprincipal payment as an expense, fee, or premium rather than
as interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread the total amount of interest throughout
the entire contemplated term of the Obligation so that the interest rate is
uniform throughout the entire term of the Obligation; provided that, if the
Obligation is paid and performed in full prior to the end of the full
contemplated term thereof, and if the interest received for the actual period of
existence thereof exceeds the Highest Lawful Rate, the Banks shall refund to the
Borrowers the amount of such excess and, in such event, the Banks shall not be
subject to any penalties provided by any laws for contracting for, charging,
taking, reserving, or receiving interest in excess of the Highest Lawful Rate.
7.09 Invalid Provisions. If any provision of any of the Loan Papers is
held to be illegal, invalid, or unenforceable under present or future laws
effective during the term thereof, such provision shall be fully severable, the
appropriate Loan Paper shall be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part thereof, and the
remaining provisions thereof shall remain in full force and effect and shall not
be affected by the illegal, invalid, or unenforceable provision or by its
severance therefrom. Furthermore, in lieu of such illegal, invalid, or
unenforceable provision there shall be added automatically as a part of
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such Loan Paper a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid and enforceable.
7.10 Successors and Assigns; Participations.
(a) This Agreement shall be binding upon and inure to the benefit of
the Borrowers, the Agent and each of the Banks, and their respective successors
and assigns; provided that none of the Borrowers may assign or otherwise
transfer any of its rights and obligations hereunder without the prior written
consent of the Agent and the Banks, and, except as provided in Section 2.23, no
Bank may assign or otherwise transfer any of its rights and obligations under
this Agreement except in compliance with this Section 7.10.
(b) Each Bank may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, its Revolving Facility Commitments, its Notes and the Loans at the
time owing to it); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Bank or an
assignment of all of a Bank's rights and obligations under
this Agreement, any such partial assignment shall be in an
amount at least equal to $10,000,000;
(iii) each such assignment by a Bank shall be made in such
manner so that the same portion of the Loans owing to it,
its Notes and the Revolving Facility Commitments are
assigned to the assignee; and
(iv) the parties to such assignment shall execute and deliver to
the Agent for its acceptance an Assignment and Acceptance,
together with the Notes subject to such assignment and a
processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee shall become a "Bank" hereunder and a party hereto and, to the extent
of such assignment, shall have the obligations, rights, and benefits of a Bank
hereunder and the assigning Bank shall, to the extent of such assignment,
relinquish its rights and be released from its obligations under this Agreement.
Upon the consummation of any assignment pursuant to this Section 7.10, the
assignor, the assignee, the Agent and the Borrowers shall make appropriate
arrangements so that, if required, new Notes are issued to the assignor and the
assignee. If the assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall deliver to the Borrower and the
Agent certification as to exemption from deduction or withholding of taxes in
accordance with Section 2.15.
(c) The Agent shall maintain at its address referred to in Section
7.02, a copy of each Assignment and Acceptance delivered to and accepted by it
(and including those
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assignment agreements delivered and accepted by it pursuant to Section 2.23) and
a register for the recordation of the names and addresses of the Banks and the
Revolving Facility Commitments of, and principal amount of the Loans owing to,
each Bank from time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrowers or any Bank at any
reasonable time from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Notes subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit "1.01A" hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register, and (iii) give prompt notice of its acceptance thereof
to the parties thereto.
(e) Each Bank may sell participations to one or more Persons (a
"Participant") in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Revolving Facility Commitment and
its Loans); provided, however, that (i) such Bank's obligations under this
Agreement shall remain unchanged, (ii) such Bank shall remain solely responsible
to the other parties hereto for the performance of such obligations, (iii) the
Participant shall be entitled to the benefit of the cost protection provisions
contained in Article II and shall have the right of set-off provided for in
Section 7.13 hereof and (iv) the Borrowers and the other Banks shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement, and such Bank shall retain the sole right
to enforce the obligations of the Borrowers relating to its Loans and its Notes
and to approve any amendment, modification, or waiver of any provision of this
Agreement (other than amendments, modifications, or waivers decreasing the
amount of principal of or the rate at which interest is payable on such Loans
or Notes, extending any scheduled principal payment date or date fixed for the
payment of interest on such Loans or Notes, extending its Revolving Facility
Commitments or releasing any of the Stewart Guarantees or any Borrower from its
Obligations hereunder). Each Bank shall provide Stewart and the Agent with
prompt notice of the identity of any Participant and the amount of such
participation.
(f) Notwithstanding any other provision set forth in this Agreement,
any Bank may at any time assign and pledge all or any portion of its Loans and
its Notes to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Bank from its obligations hereunder.
(g) Any Bank may furnish any information concerning the Borrowers or
any of the Subsidiaries in the possession of such Bank from time to time to
Eligible Assignees and Participants (including prospective assignees and
participants).
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7.11 Expenses. Whether or not any Loan is made hereunder, the Borrowers,
jointly and severally, shall be liable to pay all expenses relating to the Loan
Papers, including, but not limited to:
(a) the cost of reproducing the Loan Papers and any other documents
contemplated herein;
(b) the reasonable fees and disbursements of NationsBank's counsel(s);
(c) the reasonable out-of-pocket expenses of the Banks;
(d) taxes (other than income taxes), if any, upon any documents or
transactions pursuant to the Loan Papers;
(e) all reasonable expenses relating to any amendments, waivers or
consents pursuant to the provisions hereof; and
(f) all reasonable legal fees and out of pocket expenses incurred in
connection with the enforcement of the rights, remedies and privileges of the
Agent and/or the Banks under this Agreement and under any other Loan Paper, as
well as any other legal and out of pocket expenses provided for under any of the
Loan Papers.
7.12 Accounting Principles. All accounting terms used herein, unless
otherwise defined herein, shall be defined in accordance with generally accepted
accounting principles. Additionally, where the character or amount of any asset
or liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, such shall be done in accordance with generally
accepted accounting principles applied on a consistent basis; provided, however,
all computations determining compliance with Sections 5.20 and 5.21 shall use
generally accepted accounting principles consistent with those applied in the
preparation of the financial statements of Stewart referenced in Section 5.08(a)
and (b).
7.13 Deposits; Set-Off. Any deposits or other sums credited by or due from
the Agent or any of the Banks or any of their Participants, assignees or
Affiliates to the Borrowers or any of the other Subsidiaries shall at all times
constitute security for the Obligation and, upon the occurrence of an Event of
Default as defined in Section 6.01 of this Agreement, may be set off against any
and all liabilities, direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, of the Borrowers to the Agent or
the Banks, and the Borrowers hereby irrevocably authorize Agent, each of the
Banks and any of their Participants, assignees or Affiliates to make such set-
off. The rights granted by this Section 7.13 are in addition to any other rights
of the Agent and the Banks including, without limitation, any rights of set-off
under any statutory bankers' Lien and under any of the Loan Papers.
Notwithstanding the foregoing, specifically excepted from this Section 7.13
shall be funds managed by, under the custody of or placed in escrow accounts
(identified as such) with any of the Banks or their Participants,
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assignees or Affiliates for purposes of providing future delivery of goods,
property and services, which funds shall not be subject to set-off pursuant
hereto.
7.14 Subordination.
(a) Stewart. Stewart hereby expressly agrees that the payment of all
present and future Indebtedness due by any Borrower to Stewart shall be
subordinated to the payment in full of the Obligation.
(b) Cementerios. Cementerios hereby expressly agrees that the payment
of all present and future Indebtedness due by Stewart or any other Borrower to
Cementerios shall be subordinated to the payment in full of the Obligation.
(c) Funerarias. Funerarias hereby expressly agrees that the payment
of all present and future Indebtedness due by Stewart or any other Borrower to
Funerarias shall be subordinated to the payment in full of the Obligation.
(d) Designated Borrowers. By execution of the Designated Borrower
Addendum, each Designated Borrower expressly agrees that the payment of all
present and future indebtedness due by Stewart or any other Borrower to such
Designated Borrower shall be subordinated to the payment in full of the
Obligation.
(e) Payments Prior to Default. Notwithstanding the provisions of (a)
through (d) above, any such Indebtedness due by Stewart to any Borrower or due
by any Borrower to Stewart or any other Borrower may be repaid according to its
terms until the occurrence of a Default or an Event of Default hereunder. After
the occurrence of a Default or an Event of Default hereunder, no sums shall be
paid on account of any such Indebtedness.
7.15 Miscellaneous Additional Compensation to Agent and Banks. In addition
to, and not in lieu of, any other provisions of this Agreement, if at any time
after the date hereof, and from time to time, Agent or any of the Banks
determine that the adoption or modification of any applicable law, rule or
regulation regarding taxation, the Banks' required levels of reserves, deposits,
insurance or capital (including any allocation of capital requirements or
conditions), or similar requirements, or any interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation, administration or compliance of any of the Banks with
any of such requirements, has or would have the effect of (a) increasing any of
the Banks' costs relating to the Obligation hereunder, or (b) reducing the yield
or rate of return of any of the Banks on the Obligation hereunder, to a level
below that which such Bank or Banks could have achieved but for the adoption or
modification of any such requirements, the Borrowers shall, within 15 days of
any request by Agent, pay to the Bank(s) such additional amounts as (in the
Bank's or Banks' sole judgment, after good faith and reasonable computation)
will compensate the Bank(s) for such increase in costs or reduction in yield or
rate of return of such Bank(s). No failure by any Bank to immediately demand
payment of any additional amounts payable hereunder shall constitute a waiver of
any Bank's rights to demand payment of such amounts at any subsequent time.
Nothing herein contained shall be construed or
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so operate as to require either Borrower to pay any interest, fees, costs or
charges greater than is permitted by applicable law.
7.16 Disclosure. No representation or warranty of any of the Borrowers
contained in this Agreement (including any schedule or exhibit furnished in
connection herewith) contains any untrue statement of a material fact. No other
document, certificate or written statement furnished to the Agent or any Bank by
or on behalf of the Borrowers for use in connection with the transactions
contemplated by this Agreement, taken as a whole with other documents,
certificates or written statements furnished contemporaneously therewith,
contains any untrue statement of a material fact or omits to state a material
fact (known to the Borrowers in the case of any documents not furnished by it)
necessary in order to make the statements contained therein not misleading in
light of the circumstances under which the same were made.
7.17 Appointment of Stewart as Agent for the Other Borrowers. Each
Borrower other than Stewart (and specifically including any Designated Borrower)
hereby irrevocably appoints Stewart as its agent for the purpose of giving on
its behalf any notice and taking any other action provided for in this
Agreement, and hereby agrees that it shall be bound by any such notice or action
given or taken by Stewart hereunder irrespective of whether or not any such
notice or action shall have in fact been authorized by such Borrower and
irrespective of whether or not the agency provided for herein shall have
theretofore been terminated.
7.18 Provisions of Article VIII. The Borrowers hereby acknowledge that the
provisions of Article VIII of this Agreement govern the rights, duties and
obligations between the Banks and between the Banks and Agent and except for the
provisions of Section 8.06 relating to Stewart's right to approve or appoint
successor Agents, in no way shall the provisions of Article VIII be construed to
create any rights or obligations in favor of any of the Borrowers. Further, the
Borrowers acknowledge that, notwithstanding the provisions of Section 7.01 or
any other provision of this Agreement, the provisions of Article VIII hereof may
be amended or modified from time to time by the Banks and Agent without notice
to, or consent by the Borrowers, any other Subsidiary, or any other party.
7.19 Construction. Each party hereto acknowledges that each has had the
benefit of legal counsel of its own choice and has been afforded an opportunity
to review this Agreement and the other Loan Papers with its legal counsel and
that this Agreement and the other Loan Papers shall be construed as if jointly
drafted by the parties hereto.
7.20 Multiple Counterparts. Multiple counterparts of this Agreement may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and the same instrument.
7.21 Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
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7.22 Singular and Plural. Words used herein in the singular, where the
context so permits, shall be deemed to include the plural and vice versa. The
definitions of words in the singular herein shall apply to such words when used
in the plural where the context so permits and vice versa.
7.23 Applicability of Certain Provisions. For purposes of any determination
made with respect to a Bank under Sections 2.11, 2.12, 2.13, 2.14, 2.15, 2.16
and 7.15 of this Agreement, the term "Bank" shall be deemed to include any
corporation controlling a Bank and, with respect to Citicorp, shall be deemed to
include Citibank, N.A.
7.24 Copies. All financial statements, reports, certificates and other
documentation provided to the Agent under this Agreement shall be furnished with
sufficient copies to permit distribution of same to each of the Banks.
7.25 NON-APPLICATION OF CHAPTER 15. THE PROVISIONS OF VERNON'S TEXAS CIVIL
STATUTES, ARTICLE 5069, CHAPTER 15 (WHICH REGULATES CERTAIN REVOLVING CREDIT
LOAN ACCOUNTS AND REVOLVING TRI-PARTY ACCOUNTS) SHALL NOT APPLY TO THIS
AGREEMENT, THE NOTES, ANY OF THE OTHER LOAN PAPERS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
7.26 Binding Effect; Termination of Existing Credit Agreements, Etc. This
Agreement shall become effective when it shall have been executed by each
Borrower and the Agent, and the Agent shall have received copies hereof
(telefaxed or otherwise) which, when taken together, bear the signatures of each
Bank, and thereafter this Agreement shall be binding upon and inure to the
benefit of the Borrowers, the Agent and the Banks and their respective
successors and assigns. Each of the Borrowers and the Banks party to the
Existing Credit Agreements hereby acknowledges and agrees that, at such time as
this Agreement shall become effective in accordance with the terms of the
immediately preceding sentence, all commitments of the banks party to the
Existing Credit Agreements to make advances or to issue letters of credit
thereunder shall terminate. Additionally, (i) the Borrowers agree that the
initial Loans under this Agreement shall be used to pay all principal, interest,
fees and any other amounts due under the Existing Credit Agreements, and (ii)
the Borrowers and the Banks party to the Existing Credit Agreements agree that
upon payment of such sums due in connection with the Existing Credit Agreements
as provided in clause (i) above, the Existing Credit Agreements automatically
shall terminate and be of no further force and effect.
7.27 ENTIRE AGREEMENT. THIS AGREEMENT (INCLUDING THE EXHIBITS HERETO) AND
THE OTHER LOAN PAPERS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE
BORROWERS, THE AGENT AND THE BANKS RELATING TO THE SUBJECT MATTER HEREOF AND
THEREOF AND SUPERSEDE ALL PRIOR PROPOSALS, AGREEMENTS AND UNDERSTANDINGS
RELATING TO SUCH SUBJECT MATTER. THIS WRITTEN AGREEMENT (INCLUDING THE EXHIBITS
HERETO), AND THE OTHER LOAN PAPERS, CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN
SECTION 26.02(A) OF THE TEXAS BUSINESS AND COMMERCE CODE, AND REPRESENT THE
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FINAL AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND
THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND
THEREOF.
ARTICLE VIII.
RELATIONSHIP AMONG BANKS
8.01 Appointment and Authorization of Agent. In order to expedite the
various transactions contemplated by this Agreement and the other Loan Papers,
each of the Banks hereby irrevocably appoints NationsBank to act as its agent
hereunder and thereunder. Each of the Banks authorizes and directs Agent to
take such action in its name and on its behalf under the terms and provisions of
this Agreement and the other Loan Papers, and to exercise such powers hereunder
and thereunder as are specifically delegated to or required of the Agent under
the terms and provisions of this Agreement and the other Loan Papers, together
with such powers as are reasonably incidental thereto. It is specifically
understood that the Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Loan Papers and shall not be
required to exercise any discretion or to take any action except as may be
expressly required hereunder or thereunder; and, except as so expressly
required, the Agent shall be justified in failing or refusing to act hereunder
or thereunder (and shall be fully protected in so acting or refraining from
acting) unless it shall have received the instructions of the Majority Banks,
and such instructions shall be binding upon all Banks and all holders of any
portion of the Obligations; provided, however, that the Agent shall not be
required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement, the other Loan Papers or applicable law.
The Agent shall not by reason of this Agreement be deemed to be a trustee or
fiduciary of any Bank or the holder of any portion of the Obligation.
8.02 Liability of Agent. Neither the Agent nor any of its directors,
officers, employees, representatives, attorneys or agents shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with any Loan Paper in the absence of its or their own gross negligence or
willful misconduct which has been finally and judicially determined. Without
limitation of the generality of the foregoing, the Agent (a) may treat the payee
of any Note as the holder thereof until the Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
the Agent; (b) may consult with legal counsel (including counsel for the
Borrowers), 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 Bank and shall not be responsible to
any Bank for any statements, warranties or representations made in or in
connection with any Loan Paper; (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 any Loan Paper on the part of the Borrowers, any of the other
Subsidiaries or any
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other Person or to inspect the property (including the books and records) of the
Borrowers, the other Subsidiaries, or any other Person; (e) shall not be
responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of the Loan Papers or
any other instrument or document furnished pursuant thereto; and (f) shall incur
no liability under or in respect of any of the Loan Papers by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
telegram, telecopy or telex) believed by it to be genuine and signed or sent by
the proper party or parties. The Agent may employ agents and attorneys in fact
and shall not be responsible for the negligence or misconduct of any such agents
or attorneys in fact selected by it with reasonable care.
8.03 Rights of Agent as a Bank. With respect to its Revolving Facility
Commitments hereunder, the Loans made by it and the Notes issued to it, the
Agent shall have the same rights and powers under the Loan Papers as any other
Bank and may exercise the same as though it were not the Agent; and the term
"Bank" or "Banks" shall, unless otherwise expressly indicated, include the Agent
in its individual capacity. The Agent and any Affiliates of Agent may (without
having to account therefor to any Bank) accept deposits from, lend money to,
make investments in, provide services to, act as trustee under indentures of,
and generally engage in any kind of lending, trust or other business with, any
of the Borrowers, any of the Subsidiaries and any of their Affiliates and it may
accept fees and other consideration from any of said parties for services in
connection with this Agreement or otherwise, all as if the Agent were not the
Agent and without any duty to account therefor to the Banks.
8.04 Independent Decisions; Independent Counsel. Each Bank acknowledges
that it has, independently and without reliance upon the Agent, Agent's counsel
or any other Bank and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Agent or any other Bank 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 the Loan Papers. Except
for any notices, reports and other documents and information expressly required
to be furnished to the Banks by the Agent under the terms of any of the Loan
Papers, the Agent shall have no duty or responsibility to provide any Bank with
any credit or other information concerning the affairs, financial condition or
business of the Borrowers or any Subsidiary (or any of their Affiliates) which
may come into the possession of the Agent or any Affiliates of Agent. Each Bank
acknowledges that it has had the benefit of legal counsel of its own choice and
has been afforded the opportunity to review with its legal counsel,
independently and without reliance upon the Agent or Agent's counsel, this
Agreement and each of the other Loan Papers including, without limitation, each
of the legal opinions heretofore or hereafter rendered to the Banks by counsel
for the Borrowers and the Subsidiaries.
8.05 Indemnification. Agent shall not be required to take any action
hereunder or to initiate or conduct any litigation or collection proceedings in
respect of this Agreement or the Loans unless indemnified to such Agent's
satisfaction by the Banks against loss, cost, liability and expense. If any
indemnity furnished to such Agent shall become impaired, it may call for
additional indemnity and cease to do the acts indemnified against until such
additional indemnity is
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given. In addition, the Banks hereby indemnify the Agent (to the extent not
reimbursed by the Borrowers) 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 Agent (including by any Bank) in any
way relating to or arising out of any of the Loan Papers or any action taken or
omitted by the Agent under any of the Loan Papers (including any of the
foregoing arising from the negligence of the Agent), such indemnification
obligation to be borne by the Banks ratably in accordance with the Pro Rata
Share of each; provided, however, that no Bank shall be liable for any portion
of any of the foregoing if and to the extent that it shall be finally judicially
determined that such liabilities, losses, damages, etc. resulted primarily from
the Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Bank agrees to reimburse the Agent (to the extent not reimbursed
by the Borrowers), promptly upon demand, for its Pro Rata Share of any costs or
expenses (including reasonable counsel fees) incurred by the Agent in connection
with the preparation, administration, or enforcement of, or legal advice in
respect of rights or responsibilities under, any of the Loan Papers. The
obligation of the Banks to indemnify the Agent in accordance with the provisions
of this Section 8.05 shall survive and continue notwithstanding the payment in
full of the Obligation and/or the termination of this Agreement. NOTWITHSTANDING
THE FOREGOING, NO BANK SHALL BE LIABLE UNDER THIS SECTION 8.05 TO THE AGENT FOR
ANY PORTION OF SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS DUE TO SUCH AGENT TO
THE EXTENT IT IS FINALLY JUDICIALLY DETERMINED THAT SUCH LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS COSTS,
EXPENSES OR DISBURSEMENTS RESULTED PRIMARILY FROM SUCH AGENT'S GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT. EACH BANK AGREES, HOWEVER, THAT IT EXPRESSLY INTENDS,
UNDER THIS SECTION 8.05, TO INDEMNIFY AGENT RATABLY AS AFORESAID FOR ALL SUCH
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
COSTS, EXPENSES AND DISBURSEMENTS ARISING OUT OF OR RESULTING FROM SUCH AGENT'S
SOLE ORDINARY OR CONTRIBUTORY NEGLIGENCE.
8.06 Successor Agent. The Agent may resign at any time by giving at least
sixty (60) days prior written notice thereof to the Banks and Stewart. Upon any
such resignation, the Majority Banks shall have the right to appoint a successor
Agent, which successor Agent must be approved by Stewart. If no successor Agent
shall have been so appointed by the Banks within thirty (30) days after the
retiring Agent's giving of notice of resignation of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, 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 One Hundred Million ($100,000,000) Dollars and which shall be approved by
Stewart. Additionally, in the event of the dissolution, insolvency,
liquidation, closure (or similar event) of the Agent, a successor agent shall be
appointed by Stewart from among the other Banks within five (5) Business Days
following the occurrence of such event. Upon the appointment of any successor
Agent hereunder, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the former Agent,
and the former Agent shall be discharged from its duties
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and obligations under this Agreement. After any resignation or replacement of an
Agent hereunder, the provisions of this Article VIII shall inure to the benefit
of the former Agent as to any actions taken or omitted to be taken by it while
it was Agent under any of the Loan Papers.
8.07 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Agent shall have received notice from a Bank or a Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". If the Agent receives such a notice, the Agent
shall give prompt notice thereof to the Banks.
8.08 Certain Actions of Agent Requiring Consent of Majority Banks. Agent
shall not make demand for payment of the Obligation, or exercise the rights and
remedies of Banks upon the occurrence of an Event of Default (except any rights
of offset and/or bankers' Lien, which rights may be exercised upon the
occurrence of an Event of Default without the concurrence of Agent or any other
Bank), or amend or supplement this Agreement or any of the Loan Papers (except
as expressly provided herein), without the prior consent of the Majority Banks;
provided, however, that upon Agent's receipt of the prior written consent of the
Majority Banks, Agent shall, subject to the limitations set forth in Section
8.05 above, exercise the rights and remedies of Banks upon the occurrence of an
Event of Default, or amend or supplement this Agreement or any of the Loan
Papers.
8.09 Certain Actions Requiring Unanimous Consent of Banks. Notwithstanding
anything contained herein to the contrary, the Agent shall not (a) increase the
respective Revolving Facility Commitments of the Banks (it being specifically
understood, however, that Agent shall have the right, in its sole discretion, to
approve the establishment of additional Revolving Facilities as well as
increases in Maximum Facility Commitment Amounts all in accordance with the
provisions and subject to the limitations set forth in Section 2.04 of this
Agreement), (b) change the repayment schedule, the maturity date or the rates of
interest per annum to be charged with respect to the Loans, (c) modify the
amount of any of the fees or other amounts payable to the Banks thereunder, or
the dates of payment thereof, (d) discharge any of the Stewart Guarantees or any
portion of the Obligation of Borrowers under this Agreement or any of the Loan
Papers, (e) increase the Pro Rata Share of any Bank, (f) amend the provisions of
Sections 3.01 and 3.03 of this Agreement relating to certain conditions
precedent hereunder, (g) amend the provisions of this Section 8.09, or (h) amend
the definition of the term "Majority Banks", without the prior unanimous written
consent of all Banks.
8.10 No Duty of Documentation Agent or Co-Agent. Neither Citicorp nor Bank
of America shall have any duties, responsibilities or liabilities with respect
to the administration or enforcement of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be executed as of the date first above written.
BORROWERS:
STEWART ENTERPRISES, INC.
/s/ KENNETH C. BUDDE
BY: ________________________________
Kenneth C. Budde
Senior Vice President,
Secretary and Treasurer
EMPRESAS STEWART - CEMENTERIOS, INC.
/s/ KENNETH C. BUDDE
BY: ________________________________
Kenneth C. Budde
Assistant Secretary
EMPRESAS STEWART - FUNERARIAS, INC.
/s/ KENNETH C. BUDDE
BY: ________________________________
Kenneth C. Budde
Assistant Secretary
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<PAGE>
BANKS:
NATIONSBANK OF TEXAS, N.A.
BY: ________________________________
Thomas Blake,
Senior Vice President
S-1
<PAGE>
CITICORP USA, INC.
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-2
<PAGE>
BANK OF AMERICA ILLINOIS
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-3
<PAGE>
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-4
<PAGE>
SUNTRUST BANK, ATLANTA
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-5
<PAGE>
NATIONAL BANK OF CANADA
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-6
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-7
<PAGE>
ROYAL BANK OF CANADA
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-8
<PAGE>
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-9
<PAGE>
HIBERNIA NATIONAL BANK
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-10
<PAGE>
ABN AMRO BANK, N.V. HOUSTON AGENCY
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-11
<PAGE>
BANK OF MONTREAL
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-12
<PAGE>
THE BANK OF NOVA SCOTIA
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-13
<PAGE>
THE BANK OF NEW YORK
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-14
<PAGE>
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY - DALLAS OFFICE
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-15
<PAGE>
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-16
<PAGE>
CORESTATES BANK, N.A.
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-17
<PAGE>
THE FUJI BANK, LIMITED,
HOUSTON AGENCY
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-18
<PAGE>
THE SAKURA BANK, LIMITED
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-19
<PAGE>
SOCIETE GENERALE, SOUTHWEST AGENCY
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-20
<PAGE>
WACHOVIA BANK OF GEORGIA, N.A.
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-21
<PAGE>
FIRST NATIONAL BANK OF COMMERCE
BY: ________________________________
NAME: ______________________________
TITLE: _____________________________
S-22
<PAGE>
AGENT:
NATIONSBANK OF TEXAS, N.A.
BY: ________________________________
Thomas Blake,
Senior Vice President
S-23
<PAGE>
EXHIBIT 2.21(a)
TO
CREDIT AGREEMENT
I. ADJUSTED ISSUANCE FEE SCHEDULE - for Letters of Credit
Rating Category 5: If Stewart's Public Debt Rating is "A-" (S&P) and "A3"
(Moody's) or higher, the subject Borrower shall pay an
issuance fee of 17 Basis Points per annum.
Rating Category 4: If Stewart's Public Debt Rating is "BBB+" (S&P) and
"Baa1" (Moody's), the subject Borrower shall pay an
issuance fee of 21 Basis Points per annum.
Rating Category 3: If Stewart's Public Debt Rating is "BBB" (S&P) and
"Baa2" (Moody's), the subject Borrower shall pay an
issuance fee of 22.5 Basis Points per annum.
Rating Category 2: If Stewart's Public Debt Rating is "BBB-" (S&P) and
"Baa3" (Moody's), the subject Borrower shall pay an
issuance fee of 27.5 Basis Points per annum.
Rating Category 1: If Stewart's Public Debt Rating is below "BBB-" (S&P)
and "Baa3" (Moody's), the subject Borrower shall pay an
issuance fee of 40 Basis Points per annum.
II. ADJUSTED INTEREST RATE SCHEDULE
Rating Category 5: If Stewart's Public Debt Rating is "A-" (S&P) and "A3"
(Moody's), or higher, the Borrowers shall pay interest
on LIBOR Rate Loans at a rate per annum equal to the
LIBOR Rate for 7 to 360 days, plus 17 Basis Points.
Rating Category 4: If Stewart's Public Debt Rating is "BBB+" (S&P) and
"Baa1" (Moody's), the Borrowers shall pay interest on
LIBOR Rate Loans at a rate per annum equal to the LIBOR
Rate for 7 to 360 days, plus 21 Basis Points.
Rating Category 3: If Stewart's Public Debt Rating is "BBB" (S&P) and
"Baa2" (Moody's), the Borrowers shall pay interest on
LIBOR Rate Loans at a rate per annum equal to the LIBOR
Rate for 7 to 360 days, plus 22.5 Basis Points.
<PAGE>
Rating Category 2: If Stewart's Public Debt Rating is "BBB-" (S&P) and
"Baa3" (Moody's), the Borrowers shall pay interest on
LIBOR Rate Loans at a rate per annum equal to the LIBOR
Rate for 7 to 360 days, plus 27.5 Basis Points.
Rating Category 1: If Stewart's Public Debt Rating is below "BBB-" (S&P)
and "Baa3" (Moody's), the Borrowers shall pay interest
on LIBOR Rate Loans at a rate per annum equal to the
LIBOR Rate for 7 to 360 days, plus 40 Basis Points.
Nothing contained herein shall be construed to prohibit Borrower from
selecting the Base Rate, as adjusted from time to time, as the applicable
interest rate option.
III. ADJUSTED FACILITY FEE SCHEDULE
Rating Category 5: If Stewart's Public Debt Rating is "A-" (S&P) and "A3"
(Moody's) or higher, Stewart shall pay a facility fee
equal to 8.0 Basis Points per annum on the average
daily Total Commitment Amount (whether used or unused)
for the quarter in question.
Rating Category 4: If Stewart's Public Debt Rating is "BBB+" (S&P) and
"Baa1" (Moody's), Stewart shall pay a facility fee
equal to 9.0 Basis Points per annum on the average
daily Total Commitment Amount (whether used or unused)
for the quarter in question.
Rating Category 3: If Stewart's Public Debt Rating is "BBB" (S&P) and
"Baa2" (Moody's), Stewart shall pay a facility fee
equal to 12.5 Basis Points per annum on the average
daily Total Commitment Amount (whether used or unused)
for the quarter in question.
Rating Category 2: If Stewart's Public Debt Rating is "BBB-" (S&P) and
"Baa3" (Moody's), Stewart shall pay a facility fee
equal to 15.0 Basis Points per annum on the average
daily Total Commitment Amount (whether used or
unused) for the quarter in question.
Rating Category 1: If Stewart's Public Debt Rating is below "BBB-" (S&P)
and "Baa3" (Moody's), Stewart shall pay a facility fee
equal to 22.5 Basis Points per annum on the average
daily Total Commitment Amount (whether used or unused)
for the quarter in question.
2
<PAGE>
IV. ADJUSTMENTS IN EVENT OF SPLIT RATINGS
In the event that Stewart's Public Debt Ratings from S&P and Moody's do not
fall within the same rating category as set forth above, the following shall
apply:
(a) in the event of a split of only one rating category (e.g. Stewart's
Public Debt Rating is A- from S&P (i.e. rating category 5) and is Baa1 from
Moody's (i.e. rating category 4)), the issuance fees, interest rates and
facility fees attributable to the higher of the two applicable rating categories
(i.e. rating category 5) shall be used; and
(b) in the event of a split of more than one Rating Category (e.g.
Stewart's Public Debt Rating is A- from S&P (i.e. rating category 5) and Baa2
from Moody's (i.e. rating category 3)), the issuance fees, interest rates and
facility fees attributable to the rating category that is one rating category
below the higher of the two applicable rating categories (i.e. rating
category 4) shall be used.
V. DEFINITIONS
Capitalized terms used in this Exhibit shall have the definitions set forth
in the Credit Agreement to which this Exhibit "2.21(a)" is annexed.
3
<PAGE>
EXHIBIT 2.21(b)
TO
CREDIT AGREEMENT
Issuance Fees, Interest Rates and Commitment Fees
Following Withdrawal of Guarantor's
Public Debt Rating
1. Letter of credit issuance fee - shall be 40 Basis Points per annum.
2. Interest rates shall be any of the following:
(a) the Base Rate, as adjusted from time to time; or
(b) the LIBOR Rate for 7 to 360 days, plus 40 Basis Points per annum.
3. Facility fee - shall be 22.5 Basis Points per annum on the average daily
Total Commitment Amount (whether used or unused) for the quarter in
question.
Capitalized terms used in this Exhibit shall have the definitions set forth
in the Credit Agreement to which this Exhibit is annexed.
<PAGE>
EXHIBIT 5
Jones, Walker
Waechter, Poitevent
Carrere & Denegre, L.L.P.
Place St. Charles
201 St. Charles
Avenue
New Orleans,
Louisiana 70170-5100
May 23, 1997
Stewart Enterprises, Inc.
110 Veterans Memorial Boulevard
Metairie, LA 70005
RE:Stewart Enterprises, Inc.
Class A Common Stock Offering
Ladies and Gentlemen:
We have acted as your counsel in connection with the preparation of a
registration statement on Form S-3 (the "Registration Statement") to be filed
by you on May 23, 1997 with the Securities and Exchange Commission (the
"Commission") with respect to an offering by you of up to 4,962,500 shares
(the "Company Shares") of Class A Common Stock, no par value per share, and an
offering by the Selling Shareholder of 500,000 shares (the "Selling
Shareholder Shares") of such common stock. In so acting, we have examined
originals, or photostatic or certified copies, of such records of the Company,
certificates of officers of the Company and of public officials, and of such
other documents as we have deemed relevant. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such documents.
Based upon the foregoing, we are of the opinion that the Company Shares and
the Selling Shareholder Shares have been duly authorized and that the Company
Shares, when issued and sold upon the terms described in the Registration
Statement, and the Selling Shareholder Shares, when sold upon the terms
described in the Registration Statement, will be validly issued, fully paid
and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us in the prospectus under the caption
"Legal Matters." In giving this consent, we do not admit that we are within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the general rules and regulations of
the Commission.
Very truly yours,
Jones, Walker, Waechter,
Poitevent,
Carrere & Denegre, L.L.P.
By: /s/ L. R. McMillan, II
________________________________
L . R. McMillan, II
Baton Rouge Office: Four United Plaza . 8555 United Plaza Boulevard . Baton
Rouge, Louisiana 70809-7000 . 504-231-2000 . Fax 504-231-2010
Washington, D.C. Office: Suite 245, Republic Place . 1776 Eye Street, N.W. .
Washington, D.C. 20006 . 202-828-8363 . Fax 202-828-6907
Lafayette Office: Suite 210 . 201 Rue Iberville . Lafayette, Louisiana 70508 .
318-232-5353 . Fax 318-232-5415
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Stewart Enterprises, Inc. on Form S-3 of our reports dated December 13,
1996 on our audits of the consolidated financial statements and financial
statement schedule of Stewart Enterprises, Inc. and Subsidiaries, as of
October 31, 1996 and 1995 and for each of the three years in the period ended
October 31, 1996. We also consent to the reference to our firm under the
caption "Independent Accountants."
COOPERS & LYBRAND L.L.P.
New Orleans, Louisiana
May 22, 1997
