exv10w1



 






EXHIBIT 10.1




AGREEMENT AND FIRST AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT




      This Agreement and First Amendment to Amended and Restated Credit Agreement (this
“Amendment”) dated effective as of March 31, 2005 among the lenders (collectively, the
“Lenders”) party to that certain Amended and Restated Revolving Credit Agreement (the
“Credit Agreement”) dated as of August 11, 2004 among the Lenders; JPMorgan Chase Bank,
National Association (converted from JPMorgan Chase Bank), as Administrative Agent; Bank of
America, N.A., as Syndication Agent, and Calyon New York Branch, Amegy Bank National Association
(formerly known as Southwest Bank of Texas, National Association), and Merrill Lynch Capital
Corporation, as Co-Documentation Agents; SERVICE CORPORATION INTERNATIONAL (the
“Borrower”), and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent
(collectively, the “Administrative Agent”) for the Lenders;



W I T N E S S E T H:




      WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to the Credit
Agreement;



      WHEREAS, the Borrower has requested an amendment to the Credit Agreement pursuant to Section
1.04 of the Credit Agreement, to reflect the change in GAAP (effective with the financial
statements dated March 31, 2005 and the quarter then ending, but with such change not to result in
a restatement of the Borrower’s financial statements of prior dates) to cause all preneed
acquisition costs to be expensed when incurred, rather than capitalized and amortized over time;
and



      WHEREAS, the Borrower, the Lenders and the Administrative Agent desire to amend the Credit
Agreement to correct certain cross-references contained therein;



      NOW, THEREFORE, in consideration of the premises and the mutual agreements, representations
and warranties herein set forth, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the Borrower and the Lenders do hereby agree as follows:



      Section 1. The following definitions contained in Section 1.01 of the Credit Agreement
are hereby amended to provide as follows:




      “Consolidated EBITDA” means, for any period, Consolidated Net Income
for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) Consolidated Interest
Expense for such period, (ii) consolidated income tax expense for such period, (iii)
all amounts attributable to depreciation and amortization for such period, (iv) any
losses attributable to the prepayment or repurchase of publicly traded Indebtedness
of the Borrower for such period, and (v) any extraordinary or non-recurring non-cash
charges for such period, and any recurring non-cash charges of the sort described in
Schedule 1.01(a) for such period; provided, however, that cash expenditures
in respect of charges referred to in this clause (v) that are required to be paid
shall be deducted in determining Consolidated EBITDA for



 








 






the period during which such expenditures are made, provided that those
payments made in connection with (A) the earn-out provisions set forth in the Los
Parques S.A. Stock Purchase and Transfer Agreement dated as of December 21, 1998 in
an amount not to exceed $51,700,000, and (B) in connection with escrowed funds in an
amount not to exceed $135,000,000 related to the Menorah Gardens litigation matter
and the ECI shareholder litigation matter shall not be deducted, plus (b) the
Preneed Adjustment, and minus (c) without duplication and to the extent included in
determining such Consolidated Net Income, (i) any extraordinary or non-recurring
non-cash gains for such period and (ii) any gains attributable to the prepayment or
repurchase of publicly traded Indebtedness of the Borrower for such period, all
determined on a consolidated basis in accordance with GAAP. Upon the consummation
of any acquisition by any Person of the assets or Equity Interests of any other
Person, or the Disposition by such Person of any of its assets or the Disposition of
its Equity Interests of any other Person, in each case to the extent such
acquisition or Disposition involves consideration having a value equal to or greater
than $20,000,000, the Consolidated EBITDA of such Person shall be adjusted on a pro
forma basis to include, in the case of an acquisition, or exclude, in the case of a
Disposition, the historical financial results attributable to such Equity Interests
or assets; such adjustment to be made in a manner consistent with the regulations
and practices of the United States Securities and Exchange Commission (whether or
not applicable).




      “Last Determined Minimum Net Worth” means the amount of the minimum Net
Worth as required pursuant to Section 6.15 and determined from the most
recently delivered compliance certificate delivered pursuant to Section
5.01(c). For purposes of any calendar quarter ending after December 31, 2004,
the Last Determined Minimum Net Worth as of December 31, 2004 shall be
$1,225,000,000.




      “Permitted Asset Disposition” means any Disposition (including any
loss, destruction or condemnation) of any property or asset of the Borrower, other
than Dispositions permitted under paragraphs (a) and (b) of Section 6.06.



      Section 2. Section 1.01 of the Credit Agreement is hereby amended to add thereto the
following definition:




      “Preneed Adjustment” means $17,500,000 for each calendar quarter,
commencing with the quarter ending March 31, 2005; that is, the Preneed Adjustment
to be used in the computation of Consolidated EBITDA for the four consecutive
calendar quarters ending on (a) March 31, 2005 is $17,500,000, (b) June 30, 2005 is
$35,000,000, (c) September 30, 2005 is $52,500,000 and (d) December 31, 2005 and the
end of each calendar quarter thereafter is $70,000,000.



      Section 3. Section 6.06(c) of the Credit Agreement is hereby amended to read in its
entirety as follows:



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      (c) sales, transfers, leases and other dispositions of assets (other than
accounts receivable or inventory of Loan Parties) that are not permitted by any
other clause of this Section 6.06; provided that (i) the aggregate book
value of all assets sold, transferred or otherwise disposed of in reliance upon this
clause (c) shall not exceed 20% of the Consolidated Total Assets of the Borrower and
its Subsidiaries as of the Effective Date (plus any increase in the Consolidated
Total Assets resulting from Permitted Acquisitions of Subsidiaries after the
Effective Date, with each such increase to be measured as of the date of such
Permitted Acquisition) in the aggregate, (ii) all sales, transfers, leases and other
dispositions permitted pursuant to this clause (c) shall be made for fair value and
(iii) if any such sale, transfer, lease or other disposition is made for aggregate
consideration in excess of $20,000,000, such sale, transfer, lease or other
disposition shall be made for at least 80% cash consideration provided the Borrower
may sell only up to an aggregate of $100,000,000 of such assets where the cash
component is less than 80%.



      Section 4. Section 6.15 of the Credit Agreement is hereby amended to read in its
entirety as follows:




      The Borrower will not permit Net Worth at any time to be less than the sum of
(a) the amount of the Last Determined Minimum Net Worth, plus (b) 100% of the
proceeds received by the Borrower after December 31, 2004 from all shares, rights to
purchase, warrants, options, participations or other equivalents of the Borrower’s
equity, including all common stock and preferred stock, plus (c) commencing with the
quarter ending March 31, 2005, (i) if the Leverage Ratio is equal to or greater than
3.00 to 1.00, 50% of Consolidated Net Income for the most recently completed fiscal
quarter, or (ii) if the Leverage Ratio is less than 3.00 to 1.00, 25% of
Consolidated Net Income for the most recently completed fiscal quarter; provided
that in no event will the Borrower permit its Net Worth to be less than the sum of
clauses (a) and (b) above.



      Section 5. Representations True; No Default. The Borrower represents and
warrants that the representations and warranties contained in Article III of the Credit Agreement
are true and correct in all material respects on and as of the date hereof as though made on and as
of such date. The Borrower hereby certifies that no event has occurred and is continuing which
constitutes a Default or n Event of Default.



      Section 6. Ratification. Except as expressly amended hereby, the Credit
Agreement and the other Loan Documents shall remain in full force and effect. The Credit
Agreement, as hereby amended, and all rights and powers created thereby or thereunder and under the
other Loan Documents are in all respects ratified and confirmed and remain in full force and
effect.



      Section 7. Definitions and References. Any term used herein that is defined
in the Credit Agreement shall have the meaning therein ascribed to it. The terms “Agreement” and
“Credit Agreement” as used in the Credit Agreement, the other Loan Documents or any other
instrument, document or writing furnished to the Administrative Agent or Lender by the



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Borrower and referring to the Credit Agreement shall mean the Credit Agreement as hereby
amended.




      Section 8. Effectiveness. This Amendment shall become effective upon its
execution and delivery by the Borrower and the Required Lenders. Delivery of an executed
counterpart of a signature page of this Amendment by telecopy shall be effective as delivery of a
manually executed counterpart of this Amendment.



      Section 9. Release. The Borrower hereby releases and forever discharges the
Administrative Agent, each Lender and their respective Affiliates, employees, officers, directors,
trustees, agents, attorneys, successors, assigns and other representatives from any and all claims,
demands, damages, actions, cross-actions, causes of action, costs and expenses (including
reasonable legal expenses), of any kind or nature whatsoever, whether based on law or equity, which
any of said parties has held or may now or in the future own or hold, whether known or unknown, for
or because of any matter or thing done, omitted or suffered to be done on or before the actual date
upon which this Amendment is signed by any of such parties (a) arising directly or indirectly out
of the Loan Documents, or any other documents, instruments or any other transactions relating
thereto and/or (b) relating directly or indirectly to all transactions by and between the Borrower,
any of its Subsidiaries, or their representatives and the Administrative Agent and each Lender or
any of their respective directors, officers, agents, employees, attorneys or other representatives.
Such release, acquittal and discharge shall and does include, without limitation, any claims of
usury, fraud, duress, misrepresentation, lender liability, control, exercise of remedies and all
similar items and claims, which may, or could be, asserted by any of the Borrower or the Material
Subsidiaries. Such release shall include a release of items, whether or not liability is strictly
imposed by statute and whether or not caused by the negligence of the party so released, unless
caused by the gross negligence or willful misconduct of said party.



      Section 10. Miscellaneous. This Amendment (a) is a Loan Document; (b) may be
executed in several counterparts, and by the parties hereto on separate counterparts, and each
counterpart, when so executed and delivered, shall constitute an original agreement, and all such
separate counterparts shall constitute but one and the same agreement; and (c) together with the
other Loan Documents, embodies the entire agreement and understanding between the parties with
respect to the subject matter hereof and supersedes all prior agreements, consents and
understandings relating to such subject matter. The headings herein shall be accorded no
significance in interpreting this Amendment.



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      THE LOAN DOCUMENTS (INCLUDING THIS AMENDMENT) REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.



      THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.



      IN WITNESS WHEREOF, the Borrower, the Administrative Agent and the Lenders have caused this
Amendment to be signed by their respective duly authorized officers, effective as of the date first
above written.



	 	 	 	 	 
	 
	 	SERVICE CORPORATION
	 
	 	INTERNATIONAL
	 
	 	 	 	 
	

	 	By:
	 	Jeffrey E. Curtiss
	

	 	 	 	 
	

	 	Name:
	 	Jeffrey E. Curtiss
	

	 	 	 	 
	

	 	Title:
	 	Senior Vice President, Chief
	

	 	 	 	 
	

	 	 	 	Financial Officer and Treasurer
	

	 	 	 	 
	 
	 	 	 	 
	 
	 	JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, converted
from JPMorgan Chase Bank, individually and as
Administrative Agent
	 
	 	 	 	 
	

	 	By:
	 	Robert L. Mendoza
	

	 	 	 	 
	

	 	Name:
	 	Robert L. Mendoza
	

	 	 	 	 
	

	 	Title:
	 	Vice President
	

	 	 	 	 
	 
	 	 	 	 
	 
	 	BANK OF AMERICA, N.A., individually and as
Syndication Agent
	 
	 	 	 	 
	

	 	By:
	 	Gary L. Mingle
	

	 	 	 	 
	

	 	Name:
	 	Gary L. Mingle
	

	 	 	 	 
	

	 	Title:
	 	Senior Vice President
	

	 	 	 	 






[unnumbered signature page to Service Corporation International

Agreement and Amendment to Amended and Restated Credit Agreement]




 









 





	 	 	 	 	 
	 
	 	CALYON NEW YORK BRANCH,
	 
	 	individually and as Co-Documentation Agent
	 
	 	 	 	 
	

	 	By:
	 	Phillipe Soustra
	

	 	 	 	 
	

	 	Name:
	 	Phillipe Soustra
	

	 	 	 	 
	

	 	Title:
	 	Executive Vice President
	

	 	 	 	 
	 
	 	 	 	 
	

	 	By:
	 	Attila Coach
	

	 	 	 	 
	

	 	Name:
	 	Attila Coach
	

	 	 	 	 
	

	 	Title:
	 	Managing Director
	

	 	 	 	 
	 
	 	 	 	 
	 
	 	AMEGY BANK NATIONAL ASSOCIATION, f/k/a Southwest Bank
of Texas, N.A., individually and as Co-Documentation
Agent
	 
	 	 	 	 
	

	 	By:
	 	Preston Moore
	

	 	 	 	 
	

	 	Name:
	 	Preston Moore
	

	 	 	 	 
	

	 	Title:
	 	Senior Vice President
	

	 	 	 	 
	 
	 	 	 	 
	 
	 	MERRILL LYNCH CAPITAL CORPORATION, individually and
as Co-Documentation Agent
	 
	 	 	 	 
	

	 	By:
	 	Nancy E. Meadows
	

	 	 	 	 
	

	 	Name:
	 	Nancy E. Meadows
	

	 	 	 	 
	

	 	Title:
	 	Vice President
	

	 	 	 	 
	 
	 	 	 	 
	 
	 	HIBERNIA NATIONAL BANK
	 
	 	 	 	 
	

	 	By:
	 	Michael G. Meiss
	

	 	 	 	 
	

	 	Name:
	 	Michael G. Meiss
	

	 	 	 	 
	

	 	Title:
	 	Senior Vice President
	

	 	 	 	 






[unnumbered signature page to Service Corporation International

Agreement and Amendment to Amended and Restated Credit Agreement]




 









 





	 	 	 	 	 
	 
	 	LEHMAN COMMERCIAL PAPER, INC.
	 
	 	 	 	 
	

	 	By:
	 	V. Paul Arzouian
	

	 	 	 	 
	

	 	Name:
	 	V. Paul Arzouian
	

	 	 	 	 
	

	 	Title:
	 	Authorized Signatory
	

	 	 	 	 
	 
	 	 	 	 
	 
	 	SUMITOMO MITSUI BANKING CORPORATION, NEW YORK
	 
	 	 	 	 
	

	 	By:
	 	David A. Buck
	

	 	 	 	 
	

	 	Name:
	 	David A. Buck
	

	 	 	 	 
	

	 	Title:
	 	Senior Vice President
	

	 	 	 	 
	 
	 	 	 	 
	 
	 	REGIONS BANK, f/k/a Union Planters Bank N.A.
	 
	 	 	 	 
	

	 	By:
	 	Keith S. Page
	

	 	 	 	 
	

	 	Name:
	 	Keith S. Page
	

	 	 	 	 
	

	 	Title:
	 	Senior Vice President
	

	 	 	 	 
	 
	 	 	 	 
	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 
	

	 	By:
	 	Ed Sacks
	

	 	 	 	 
	

	 	Name:
	 	Ed Sacks
	

	 	 	 	 
	

	 	Title:
	 	Vice President
	

	 	 	 	 






[unnumbered signature page to Service Corporation International

Agreement and Amendment to Amended and Restated Credit Agreement]