FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1.11
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT (this “First Amendment”) to Amended and Restated Credit Agreement referred to below, is dated this 2nd day of November, 2007, effective as of September 30, 2007, is by and among StoneMor GP LLC, a Delaware limited liability company (the “General Partner”), StoneMor Partners L.P., a Delaware limited partnership (the “Partnership”), StoneMor Operating LLC, a Delaware limited liability company (the “Operating Company”), the Subsidiaries of the Operating Company set forth on the signature page hereto (together with the Operating Company, each individually a “Borrower” and collectively, the “Borrowers” and together with the General Partner and the Partnership, each individually a “Credit Party” and collectively, the “Credit Parties”), the lenders party hereto (the “Lenders”), and Bank of America, N.A., a national banking association organized and existing under the laws of the United States of America, as Administrative Agent for the benefit of the Lenders (in such capacity, the “Administrative Agent”), as Collateral Agent for the benefit of the Lenders and other Secured Creditors, as Swing Line Lender and as L/C Issuer.
BACKGROUND
A. Pursuant to that certain Amended and Restated Credit Agreement entered into on August 15, 2007 (as amended, modified or otherwise supplemented from time to time, the “Credit Agreement”) by and among the parties hereto, the Lenders agreed, inter alia, to extend to the Borrowers a revolving credit facility and an acquisition line in the maximum aggregate principal amount of Sixty-Five Million Dollars ($65,000,000).
B. The Borrowers have requested that the Lenders make certain amendments to the Credit Agreement and the Intercreditor Agreement.
Now, therefore, for value received, and in consideration of Loans made or to be made, and other credit accommodations given or to be given, to the Borrowers by the Lenders from time to time, each New Borrower and each other Credit Party hereby agrees as follows:
1. Definitions.
(a) General Rule. Except as expressly set forth herein, all capitalized terms used and not defined herein shall have the respective meanings ascribed thereto in the Credit Agreement and the Intercreditor Agreement.
(b) Amended Definition. The defined term “Consolidated EBITDA” in Section 1 of the Credit Agreement is hereby amended to add a new subsection (i) immediately after subsection (h) as follows:
“, and (i) for the four (4) fiscal quarters beginning July 1, 2007 through June 30, 2008, the Michigan Due Diligence Costs not to exceed Seven Hundred Fifty Thousand Dollars ($750,000) in the aggregate,”
(c) Additional Definitions. The following additional definitions are hereby added to Section 1 of the Credit Agreement to read in its entirety as follows:
“First Amendment” means the First Amendment to Amended and Restated Credit Agreement dated November 2, 2007.
“Michigan Due Diligence Costs” means the actual costs and expenses incurred by Borrowers in connection with the proposed acquisition of twenty-nine (29) Michigan cemeteries currently under state-ordered conservatorship.
2. Amendment to Section 7.02(l). Section 7.02(l) of the Credit Agreement is hereby amended and restated in its entirety as follows:
“(l) Unsecured Indebtedness of the General Partner issued solely for the purposed of financing Investments pursuant to Section 7.03(k), and any Guarantees by any Credit Party of such Indebtedness (it being agreed that such Indebtedness may be secured by the property of Persons who are not Credit Parties (or required to be Credit Parties)); and”
3. Amendment to Section 7.03(k). Section 7.03(k) of the Credit Agreement is hereby amended and restated in its entirety as follows:
“(k) Investments of the General Partner in the Partnership to the extent necessary in order for the General Partner to continue to hold (in its capacity as General Partner) a two percent (2%) “Percentage Interest” (as such term is defined in the Partnership Agreement) in the Partnership;”
4. Amendment to Intercreditor Agreement. The references to the dates of the Security Agreement and the Pledge Agreement in the Intercreditor Agreement being “the date hereof” are hereby amended to be references to being dated “September 20, 2004”.
5. Representations and Warranties. Each Credit Party hereby represents and warrants to the Administrative Agent and the Lenders that, as to such Credit Party:
(a) Representations. Each of the representations and warranties of or as to such Credit Party contained in the Credit Agreement and the other Credit Documents are true and correct in all material respects on and as of the date hereof as if made on and as of the date hereof;
(b) Power and Authority. (i) Such Credit Party has the power and authority under the laws of its jurisdiction of organization and under its organizational documents to enter into and perform this First Amendment and any other documents which the Administrative Agent requires such Credit Party to deliver hereunder (this First Amendment and any such additional documents delivered in connection with the First Amendment are herein referred to as the “First Amendment Documents”); and (ii) all actions, corporate or otherwise, necessary or appropriate for the due execution and full performance by such Credit Party of the First Amendment Documents have been adopted and taken and, upon their execution, the Credit Agreement, as amended by this First Amendment and the other First Amendment Documents will constitute the valid and binding obligations of such Credit Party enforceable in accordance with their respective terms, except as such enforcement may be limited by any Debtor Relief
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Law from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies;
(c) No Violation. The making and performance of the First Amendment Documents will not (i) contravene, conflict with or result in a breach or default under any material applicable law, statute, rule or regulation, or any order, writ, injunction, judgment, ruling or decree of any court, arbitrator or governmental instrumentality, (ii) taking into account such consents as have been obtained in connection with this First Amendment, contravene, constitute a default under, conflict or be inconsistent with or result in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any Credit Party pursuant to the terms of any material indenture, mortgage, deed of trust, loan agreement, credit agreement or any other material agreement or instrument to which any Credit Party is a party or by which it or any of its property or assets are bound or to which it may be subject or (iii) contravene or violate any provision of the certificate of incorporation, by-laws, certificate of partnership, partnership agreement, certificate of limited liability company, limited liability company agreement or equivalent organizational document, as the case may be, of any Credit Party;
(d) No Default. No Default or Event of Default has occurred and is continuing, or will exist immediately after giving effect to this First Amendment; and
(e) No Material Adverse Effect. No Material Adverse Effect has occurred since August 15, 2007.
6. Conditions to Effectiveness of Amendment. This First Amendment shall be effective upon the Administrative Agent’s receipt of the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) First Amendment. This First Amendment, duly executed by the Credit Parties, the Administrative Agent, the Collateral Agent and the Lenders and consented to by the Purchasers;
(b) Amendment to Note Purchase Agreement. The Borrowers shall deliver a duly executed parallel amendment to the Note Purchase Agreement;
(c) Other Fees and Expenses. Payment to the Administrative Agent and the Lenders, in immediately available funds, of all amounts necessary to reimburse the Administrative Agent and the Lenders for the reasonable out-of-pocket fees and costs incurred by the Administrative Agent, including, without limitation, all such fees and costs incurred by the Administrative Agent’s attorneys, in connection with the preparation and execution of this First Amendment and any other Credit Document;
(d) Consent and Waivers. Copies of any consents or waivers necessary in order for the Credit Parties to comply with or perform any of its covenants, agreements or obligations contained in any agreement which are required as a result of any Credit Party’s execution of this First Amendment, if any; and
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(e) Other Documents and Actions. Such additional agreements, instruments, documents, writings and actions as the Administrative Agent may reasonably request.
7. No Waiver; Ratification. The execution, delivery and performance of this First Amendment shall not (a) operate as a waiver of any right, power or remedy of the Lenders under the Credit Agreement, any Credit Document or any First Amendment Document and the agreements and documents executed in connection therewith or (b) constitute a waiver of any provision thereof. Except as expressly modified hereby, all terms, conditions and provisions of the Credit Agreement and the other Credit Documents shall remain in full force and effect and are hereby ratified and confirmed by the Credit Parties. Nothing contained herein constitutes an agreement or obligation by the Administrative Agent or the Lenders to grant any further amendments to any of the Credit Documents.
8. Acknowledgments. To induce the Administrative Agent and the Lenders to enter into this First Amendment, the Credit Parties acknowledge, agree, warrant, and represent that:
(a) Acknowledgment of Obligations; Collateral; Waiver of Claims. (i) The Credit Documents are valid and enforceable against, and all of the terms and conditions of the Credit Documents are binding on, the Credit Parties, except as such enforcement may be limited by any Debtor Relief Law from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies; (ii) the liens and security interests granted to the Administrative Agent, on behalf of the Lenders, by the Credit Parties pursuant to the Credit Documents are valid, legal and binding, properly recorded or filed and first priority perfected liens and security interests subject only to Permitted Encumbrances, and such liens and security interests will continue to secure all Loans and other Obligations; and (iii) the Credit Parties hereby waive any and all defenses, set-offs and counterclaims which they, whether jointly or severally, may have or claim to have against the Administrative Agent and the Lenders as of the date hereof.
(b) No Waiver of Existing Defaults. Nothing in this First Amendment nor any communication between the Administrative Agent, any Lender, any Credit Party or any of their respective officers, agents, employees or representatives shall be deemed to constitute a waiver of (i) any Default or Event of Default arising as a result of the foregoing representation proving to be false or incorrect in any material respect; or (ii) any rights or remedies which the Administrative Agent or the Lenders have against any Credit Party under the Credit Agreement or any other Credit Document and/or applicable law, with respect to any such Default or Event of Default arising as a result of the foregoing representation proving to be false or incorrect in any material respect.
9. Binding Effect. This First Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
10. Governing Law. This First Amendment shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without reference to the choice of law doctrine of the Commonwealth of Pennsylvania.
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11. Headings. The headings of the sections of this First Amendment are inserted for convenience only and shall not be deemed to constitute a part of this First Amendment.
12. Counterparts. This First Amendment may be executed in any number of counterparts with the same affect as if all of the signatures on such counterparts appeared on one document and each counterpart shall be deemed an original.
13. Consent to First Amendment to the Amended and Restated Note Purchase Agreement. To the extent that consent of the Lenders is required, the Lenders consent to the First Amendment to the Amended and Restated Note Purchase Agreement dated as of the dated hereof, by and among the Credit Parties and the Purchasers.
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The Lenders hereby and acknowledge and agree to this First Amendment to Amended and Restated Credit Agreement as of the date first above written.
| BANK OF AMERICA, N.A. | ||
| By: | ||
| Xxxxxxx X. Xxxx, Senior Vice President | ||
| SOVEREIGN BANK, as a Lender | ||
| By: | ||
| Xxxx X. Xxxxxxx, Vice President | ||
| COMMERCE BANK, N.A., as a Lender | ||
| By: | ||
| Xxxxx X. Xxxxx, Senior Vice President | ||
First Amendment to Amended and Restated Credit Agreement
Lenders Signature Page
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This First Amendment to Amended and Restated Credit Agreement is hereby delivered, acknowledged and agreed to as of the date first above written.
| Credit Parties | ||
| STONEMOR GP LLC | ||
| By: | ||
| Xxxx Xxxxxxxx, Vice President of Finance | ||
| STONEMOR PARTNERS L.P. | ||
| By: STONEMOR GP LLC | ||
| its General Partner | ||
| By: | ||
| Xxxx Xxxxxxxx, Vice President of Finance | ||
| STONEMOR OPERATING LLC | ||
| By: | ||
| Xxxx Xxxxxxxx, Vice President of Finance | ||
First Amendment to Amended and Restated Credit Agreement
Credit Parties Signature Page
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Additional Credit Parties
Alleghany Memorial Park LLC
Alleghany Memorial Park Subsidiary, Inc.
Altavista Memorial Park LLC
Altavista Memorial Park Subsidiary, Inc.
Arlington Development Company
Augusta Memorial Park Perpetual Care Company
Bedford County Memorial Park LLC
Bedford County Memorial Park Subsidiary LLC
Bethel Cemetery Association
Xxxx Israel Cemetery Association of Woodbridge, New Jersey
Birchlawn Burial Park LLC
Birchlawn Burial Park Subsidiary, Inc.
Blue Ridge Memorial Gardens LLC
Blue Ridge Memorial Gardens Subsidiary LLC
Xxxxxx County Memorial Park LLC
Xxxxxx County Memorial Park Subsidiary, Inc.
Cedar Hill Funeral Home, Inc.
Cemetery Investments LLC
Cemetery Investments Subsidiary, Inc.
Cemetery Management Services, L.L.C.
Cemetery Management Services of Mid-Atlantic States, L.L.C.
Cemetery Management Services of Ohio, L.L.C.
Cemetery Management Services of Pennsylvania, L.L.C.
Chartiers Cemetery LLC
Chartiers Cemetery Subsidiary LLC
Clover Leaf Park Cemetery Association
CMS West LLC
CMS West Subsidiary LLC
Columbia Memorial Park LLC
Columbia Memorial Park Subsidiary, Inc.
The Coraopolis Cemetery LLC
The Coraopolis Cemetery Subsidiary LLC
Cornerstone Family Insurance Services, Inc.
Cornerstone Family Services of New Jersey, Inc.
Cornerstone Family Services of West Virginia LLC
Cornerstone Family Services of West Virginia Subsidiary, Inc.
Cornerstone Funeral and Cremation Services LLC
Covenant Acquisition LLC
Covenant Acquisition Subsidiary, Inc.
Crown Hill Cemetery Association
Xxxxxx X. Xxxxx Funeral Home, Inc.
Xxxx Haven Memorial Park LLC
Xxxx Haven Memorial Park Subsidiary, Inc.
Green Lawn Memorial Park LLC
Green Lawn Memorial Park Subsidiary LLC
| By: | ||
| Xxxx Xxxxxxxx, as Vice President of Finance for each of the above-named Credit Parties | ||
First Amendment to Amended and Restated Credit Agreement
Additional Credit Parties Signature Page
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Henlopen Memorial Park LLC
Henlopen Memorial Park Subsidiary, Inc.
Xxxxx Memorial Park LLC
Xxxxx Memorial Park Subsidiary, Inc.
X.X. Xxxxxx LLC
X.X. Xxxxxx Subsidiary LLC
Juniata Memorial Park LLC
Juniata Memorial Park Subsidiary LLC
KIRIS LLC
KIRIS Subsidiary, Inc.
Lakewood/Xxxxxxxx Cemetery LLC
Lakewood/Xxxxxxxx Cemetery Subsidiary, Inc.
Lakewood Memory Gardens South LLC
Lakewood Memory Gardens South Subsidiary, Inc.
Laurel Hill Memorial Park LLC
Laurel Hill Memorial Park Subsidiary, Inc.
Laurelwood Cemetery LLC
Laurelwood Cemetery Subsidiary LLC
Laurelwood Holding Company
Legacy Estates, Inc.
Locustwood Cemetery Association
Xxxxxx [Virginia] LLC
Xxxxxx [Virginia] Subsidiary, Inc.
Xxxxxxxx Xxxx Cemetery LLC
Xxxxxxxx Xxxx Cemetery Subsidiary, Inc.
Melrose Land LLC
Melrose Land Subsidiary LLC
Modern Park Development LLC
Modern Park Development Subsidiary, Inc.
Xxxxxx Cemetery Perpetual Care Company
Mount Lebanon Cemetery LLC
Mount Lebanon Cemetery Subsidiary LLC
Mt. Airy Cemetery LLC
Mt. Airy Cemetery Subsidiary LLC
Oak Hill Cemetery LLC
Oak Hill Cemetery Subsidiary, Inc.
Osiris Holding Finance Company
Osiris Holding of Maryland LLC
Osiris Holding of Maryland Subsidiary, Inc.
Osiris Holding of Pennsylvania LLC
Osiris Holding of Pennsylvania Subsidiary LLC
Osiris Holding of Rhode Island LLC
Osiris Holding of Rhode Island Subsidiary, Inc.
Osiris Management, Inc.
Osiris Telemarketing Corp.
| By: | ||
| Xxxx Xxxxxxxx, as Vice President of Finance for each of the above-named Credit Parties | ||
First Amendment to Amended and Restated Credit Agreement
Additional Credit Parties Signature Page
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Perpetual Xxxxxxx.Xxx, Inc.
The Prospect Cemetery LLC
The Prospect Cemetery Subsidiary LLC
Prospect Hill Cemetery LLC
Prospect Hill Cemetery Subsidiary LLC
PVD Acquisitions LLC
PVD Acquisitions Subsidiary, Inc.
Riverside Cemetery LLC
Riverside Cemetery Subsidiary LLC
Riverview Memorial Gardens LLC
Riverview Memorial Gardens Subsidiary LLC
Rockbridge Memorial Gardens LLC
Rockbridge Memorial Gardens Subsidiary Company
Rolling Green Memorial Park LLC
Rolling Green Memorial Park Subsidiary LLC
Rose Lawn Cemeteries LLC
Rose Lawn Cemeteries Subsidiary, Incorporated
Roselawn Development LLC
Roselawn Development Subsidiary Corporation
Xxxxxxx Memorial Cemetery LLC
Xxxxxxx Memorial Cemetery Subsidiary, Inc.
Shenandoah Memorial Park LLC
Shenandoah Memorial Park Subsidiary, Inc.
Southern Memorial Sales LLC
Southern Memorial Sales Subsidiary, Inc.
Springhill Memory Gardens LLC
Springhill Memory Gardens Subsidiary, Inc.
Star City Memorial Sales LLC
Star City Memorial Sales Subsidiary, Inc.
Xxxxxxx X. Xxxx Funeral Home, Inc.
Xxxxxxx LLC
Xxxxxxx Subsidiary, Incorporated
StoneMor Alabama LLC
StoneMor Alabama Subsidiary, Inc.
StoneMor Colorado LLC
StoneMor Colorado Subsidiary LLC
StoneMor Georgia LLC
StoneMor Georgia Subsidiary, Inc.
StoneMor Illinois LLC
StoneMor Illinois Subsidiary LLC
StoneMor Indiana LLC
StoneMor Indiana Subsidiary LLC
StoneMor Kansas LLC
StoneMor Kansas Subsidiary LLC
StoneMor Kentucky LLC
StoneMor Kentucky Subsidiary LLC
| By: | ||
| Xxxx Xxxxxxxx, as Vice President of Finance for each of the above-named Credit Parties | ||
First Amendment to Amended and Restated Credit Agreement
Additional Credit Parties Signature Page
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StoneMor Michigan LLC
StoneMor Michigan Subsidiary LLC
StoneMor Missouri LLC
StoneMor Missouri Subsidiary LLC
StoneMor North Carolina LLC
StoneMor North Carolina Funeral Services, Inc.
StoneMor North Carolina Subsidiary LLC
StoneMor Oregon LLC
StoneMor Oregon Subsidiary LLC
StoneMor Pennsylvania LLC
StoneMor Pennsylvania Subsidiary LLC
StoneMor Washington, Inc.
StoneMor Washington Subsidiary LLC
Sunset Memorial Gardens LLC
Sunset Memorial Gardens Subsidiary, Inc.
Sunset Memorial Park LLC
Sunset Memorial Park Subsidiary, Inc.
Temple Hill LLC
Temple Hill Subsidiary Corporation
Tioga County Memorial Gardens LLC
Tioga County Memorial Gardens Subsidiary LLC
Tri-County Memorial Gardens LLC
Tri-County Memorial Gardens Subsidiary LLC
Twin Hills Memorial Park and Mausoleum LLC
Twin Hills Memorial Park and Mausoleum Subsidiary LLC
The Valhalla Cemetery Company LLC
The Valhalla Cemetery Subsidiary Corporation
Virginia Memorial Service LLC
Virginia Memorial Service Subsidiary Corporation
WNCI LLC
W N C Subsidiary, Inc.
Westminster Cemetery LLC
Westminster Cemetery Subsidiary LLC
Wicomico Memorial Parks LLC
Wicomico Memorial Parks Subsidiary, Inc.
Willowbrook Management Corp.
Woodlawn Memorial Gardens LLC
Woodlawn Memorial Gardens Subsidiary LLC
Woodlawn Memorial Park LLC
Woodlawn Memorial Park Subsidiary LLC
| By: | ||
| Xxxx Xxxxxxxx, as Vice President of Finance for each of the above-named Credit Parties |
First Amendment to Amended and Restated Credit Agreement
Additional Credit Parties Signature Page
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