SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1.12
EXECUTION VERSION
SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT
AGREEMENT
This SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Second Amendment”) dated November 12, 2015, 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 pages 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, and Bank of America, N.A., a national banking association, as Administrative Agent for the benefit of the Lenders (in such capacity, the “Administrative Agent”), and as Swing Line Lender and L/C Issuer.
BACKGROUND
A. Pursuant to that certain Fourth Amended and Restated Credit Agreement, entered into on December 19, 2014, by and among the Credit Parties, the lenders party thereto (the “Lenders”) and the Administrative Agent, as amended by that certain First Amendment to Fourth Amended and Restated Credit Agreement, entered into on July 10, 2015, by and among the Credit Parties, the Lenders and the Administrative Agent (the “Credit Agreement”), the Lenders agreed, inter alia, to extend to the Borrowers a revolving credit facility in the maximum aggregate principal amount of One Hundred Eighty Million Dollars ($180,000,000). Capitalized terms used, but not otherwise defined, herein shall have the meanings given to them in the Credit Agreement.
B. The Borrowers have requested that the Lenders amend the Credit Agreement to eliminate the aggregate principal amount limitation on the issuance of High Yield Notes.
C. The Lenders party hereto are willing to agree to such amendment on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, at the request of the Credit Parties, and based on the representations set forth below, the Lenders hereto agree as follows:
1. Amendment to Section 1.01. The following term set forth in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:
“Future High Yield Notes” means any senior unsecured notes issued after the Closing Date, from time to time, pursuant to, and in accordance with a High Yield Note Indenture, meeting each of the following requirements: (a) [Intentionally Omitted]; (b) the terms of such notes are substantially similar in all material respects to, or are more favorable to the Credit Parties than, the High Yield Notes then outstanding (provided that (i) the scheduled maturity date for any principal payment under such notes shall not be prior
1
to June 1, 2021 and (ii) the interest rate payable on such notes shall be a market rate for the issuance of such notes at the time issued); (c) no Default or Event of Default has occurred and is continuing or would result from the issuance of such notes; and (d) the Borrowers shall have delivered to the Administrative Agent, not less than ten (10) Business Days prior to the date of the issuance of such notes (or such shorter period as the Administrative Agent may agree to in writing), a pro forma Compliance Certificate showing compliance, on a Pro Forma Basis (for the related Calculation Period), with the covenants set forth in Section 7.11 immediately after giving effect to the issuance of such notes.
2. Amendment to Section 7.02(m). Subparagraph (m) of Section 7.02 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
(m) Indebtedness evidenced by High Yield Notes.
3. Representations and Warranties.
(a) Each Credit Party hereby represents and warrants to the Administrative Agent and the Lenders that, as to such Credit Party:
(i) 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, except to the extent such representation or warranty was made as of a specific date;
(ii) Power and Authority. (A) 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 Second Amendment and any other documents which the Administrative Agent requires such Credit Party to deliver hereunder; and (B) all actions, corporate or otherwise, necessary or appropriate for the due execution and full performance by such Credit Party of the Second Amendment have been adopted and taken and, upon their execution, the Credit Agreement, as amended by this Second Amendment 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 Law from time to time in effect which affect the enforcement of creditors rights in general and the availability of equitable remedies;
(iii) No Violation. The making and performance of this Second Amendment will not (A) contravene, conflict with or result in a breach or default under any applicable law, statute, rule or regulation, or any order, writ, injunction, judgment, ruling or decree of any court, arbitrator or governmental instrumentality, (B) 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 indenture, mortgage, deed of trust, loan
2
agreement, credit agreement or any other 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 (C) 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, any Credit Party;
(iv) No Default. Immediately after giving effect to this Second Amendment, no Default or Event of Default has occurred and is continuing;
(v) No Material Adverse Effect. No Material Adverse Effect has occurred since December 31, 2014; and
(vi) Organizational Documents. There have been no changes in the organizational documents of the Credit Parties since December 19, 2014 (or such later date as any such organizational documents were initially adopted), except as previously disclosed to the Administrative Agent in writing, certified copies of which have been previously provided to the Lenders.
4. No Waiver of Existing Defaults. To induce the Lenders to enter into this Second Amendment, the Credit Parties acknowledge, agree, warrant, and represent that nothing in this Second Amendment nor any communication between any Secured Party, 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 representations and warranties set forth in Section 3 proving to be false or incorrect in any material respect, or (ii) any rights or remedies which any Secured Party has 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 representations and warranties set forth in Section 3 proving to be false or incorrect in any material respect.
5. Waiver of Claims. 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 each of the Secured Parties as of the date hereof.
6. Conditions to Effectiveness of Amendment.
(a) This Second Amendment shall be effective upon the Administrative Agent’s receipt of the following, each in form and substance reasonably satisfactory to the Administrative Agent (the “Second Amendment Effective Date”):
(i) Second Amendment. This Second Amendment, duly executed by the Credit Parties and Lenders constituting Required Lenders;
(ii) Other Fees and Expenses. Payment to the Administrative Agent, in immediately available funds, of all amounts necessary to reimburse the Administrative Agent for the reasonable fees and costs incurred by the Administrative Agent in connection with the preparation and execution of this Second Amendment and any other document provided for herein, including, without limitation, all fees and costs incurred by the Administrative Agent’s attorneys;
3
(iii) 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 Second Amendment, if any; and
(iv) 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 Second Amendment shall not (a) operate as a waiver of any right, power or remedy of the Lenders under the Credit Agreement or any other Credit 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 each of the Credit Parties. Nothing contained herein constitutes an agreement or obligation by the Administrative Agent or the Lenders to grant any further consent under the Credit Agreement or any of the other Credit Documents.
8. Binding Effect. This Second Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
9. Governing Law. This Second 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.
10. Headings. The headings of the sections of this Second Amendment are inserted for convenience only and shall not be deemed to constitute a part of this Second Amendment.
11. Counterparts. This Second Amendment may be executed in any number of counterparts with the same effect as if all of the signatures on such counterparts appeared on one document and each counterpart shall be deemed an original. Delivery of an executed counterpart of a signature page of this Second Amendment by telecopy or by electronic means shall be effective as delivery of a manually executed counterpart of this Second Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK, SIGNATURE PAGES FOLLOW]
4
IN WITNESS WHEREOF, the parties hereto, by their respective duly authorized officers, have executed this Second Amendment to Fourth Amended and Restated Credit Agreement as of the date first above written.
| General Partner: | ||
| STONEMOR GP LLC | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Vice President | |
| Partnership: | ||
| STONEMOR PARTNERS L.P. | ||
| By: | STONEMOR GP LLC | |
| its General Partner | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Vice President | |
| Operating Company: | ||
| STONEMOR OPERATING LLC | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Vice President | |
| S-1 | Second Amendment to Fourth Amended and Restated Credit Agreement |
Additional Credit Parties
Alleghany Memorial Park Subsidiary, Inc.
Altavista Memorial Park Subsidiary, Inc.
Arlington Development Company
Augusta Memorial Park Perpetual Care Company
Birchlawn Burial Park Subsidiary, Inc.
Bronswood Cemetery, Inc.
Cedar Hill Funeral Home, Inc.
Cemetery Investments Subsidiary, Inc.
Chapel Hill Associates, Inc.
Chapel Hill Funeral Home, Inc.
Columbia Memorial Park Subsidiary, Inc.
Cornerstone Family Insurance Services, Inc.
Cornerstone Family Services of New Jersey, Inc.
Cornerstone Family Services of West Virginia Subsidiary, Inc.
Covenant Acquisition Subsidiary, Inc.
Xxxxxxxxx Memorial Funeral Home, Inc.
Xxxxxxxxx Memorial Gardens, Inc.
Crown Hill Cemetery Association
Xxxxxx X. Xxxxx Funeral Home, Inc.
Forest Lawn Gardens, Inc.
Forest Lawn Memorial Chapel, Inc.
Forest Lawn Memory Gardens, Inc.
Xxxx Haven Memorial Park Subsidiary, Inc.
Xxxxx Memorial Park Subsidiary, Inc.
Highland Memorial Park, Inc.
Hillside Memorial Park Association, Inc.
Kingwood Memorial Park Association
KIRIS Subsidiary, Inc.
Xxxx & Nice, Inc.
Xxxx & Nice Suburban Chapel, Inc.
Lakewood/Xxxxxxxx Cemetery Subsidiary, Inc.
Lakewood Memory Gardens South Subsidiary, Inc.
Laurel Hill Memorial Park Subsidiary, Inc.
Laurelwood Holding Company
Legacy Estates, Inc.
Xxxxxx [Virginia] Subsidiary, Inc.
Xxxxxxxx Xxxx Cemetery Subsidiary, Inc.
| By: | /s/ Xxxxx Xxxxxx | |
| Xxxxx Xxxxxx, as Vice President of each of the above-named Credit Parties |
| S-2 | Second Amendment to Fourth Amended and Restated Credit Agreement |
Modern Park Development Subsidiary, Inc.
Northlawn Memorial Gardens
Oak Hill Cemetery Subsidiary, Inc.
Ohio Cemetery Holdings, Inc.
Osiris Holding Finance Company
Osiris Holding of Maryland Subsidiary, Inc.
Osiris Holding of Rhode Island Subsidiary, Inc.
Osiris Management, Inc.
Osiris Telemarketing Corp.
Perpetual Xxxxxxx.Xxx, Inc.
Prince Xxxxxx Cemetery Corporation
PVD Acquisitions Subsidiary, Inc.
Rockbridge Memorial Gardens Subsidiary Company
Rose Lawn Cemeteries Subsidiary, Incorporated
Roselawn Development Subsidiary Corporation
Xxxxxxx Memorial Cemetery Subsidiary, Inc.
Shenandoah Memorial Park Subsidiary, Inc.
Sierra View Memorial Park
Southern Memorial Sales Subsidiary, Inc.
Springhill Memory Gardens Subsidiary, Inc.
Star City Memorial Sales Subsidiary, Inc.
Xxxxxxx X. Xxxx Funeral Home, Inc.
Xxxxxxx Subsidiary, Incorporated
StoneMor Alabama Subsidiary, Inc.
StoneMor California, Inc.
StoneMor California Subsidiary, Inc.
StoneMor Georgia Subsidiary, Inc.
StoneMor Hawaii Subsidiary, Inc.
StoneMor North Carolina Funeral Services, Inc.
StoneMor Ohio Subsidiary, Inc.
StoneMor Puerto Rico Cemetery And Funeral, Inc.
StoneMor Tennessee Subsidiary, Inc.
StoneMor Washington, Inc.
Sunset Memorial Gardens Subsidiary, Inc.
Sunset Memorial Park Subsidiary, Inc.
Temple Hill Subsidiary Corporation
The Valhalla Cemetery Subsidiary Corporation
Virginia Memorial Service Subsidiary Corporation
W N C Subsidiary, Inc.
Wicomico Memorial Parks Subsidiary, Inc.
Willowbrook Management Corp.
| By: | /s/ Xxxxx Xxxxxx | |
| Xxxxx Xxxxxx, as Vice President of each of the above-named Credit Parties |
| S-3 | Second Amendment to Fourth Amended and Restated Credit Agreement |
Alleghany Memorial Park LLC
Altavista Memorial Park LLC
Birchlawn Burial Park LLC
Cemetery Investments LLC
Cemetery Management Services, L.L.C.
Cemetery Management Services of Ohio, L.L.C.
CMS West LLC
CMS West Subsidiary LLC
Columbia Memorial Park LLC
Cornerstone Family Services of West Virginia LLC
Cornerstone Funeral and Cremation Services LLC
Cornerstone Trust Management Services LLC
Covenant Acquisition LLC
Xxxx Haven Memorial Park LLC
Henlopen Memorial Park LLC
Henlopen Memorial Park Subsidiary LLC
Xxxxx Memorial Park LLC
Juniata Memorial Park LLC
KIRIS LLC
Lakewood/Xxxxxxxx Cemetery LLC
Lakewood Memory Gardens South LLC
Laurel Hill Memorial Park LLC
Xxxxxx [Virginia] LLC
Xxxxxxxx Xxxx Cemetery LLC
Modern Park Development LLC
Oak Hill Cemetery LLC
Osiris Holding of Maryland LLC
Osiris Holding of Pennsylvania LLC
Osiris Holding of Rhode Island LLC
Plymouth Warehouse Facilities LLC
PVD Acquisitions LLC
Rockbridge Memorial Gardens LLC
Rolling Green Memorial Park LLC
Rose Lawn Cemeteries LLC
Roselawn Development LLC
Xxxxxxx Memorial Cemetery LLC
Shenandoah Memorial Park LLC
Southern Memorial Sales LLC
Springhill Memory Gardens LLC
Star City Memorial Sales LLC
Xxxxxxx LLC
| By: | /s/ Xxxxx Xxxxxx | |
| Xxxxx Xxxxxx, as Vice President of each of the above-named Credit Parties |
| S-4 | Second Amendment to Fourth Amended and Restated Credit Agreement |
StoneMor Alabama LLC
StoneMor Arkansas Subsidiary LLC
StoneMor Cemetery Products LLC
StoneMor Colorado LLC
StoneMor Colorado Subsidiary LLC
StoneMor Florida LLC
StoneMor Florida Subsidiary LLC
StoneMor Georgia LLC
StoneMor Hawaii LLC
StoneMor Hawaiian Joint Venture Group LLC
StoneMor Holding of Pennsylvania LLC
StoneMor Illinois LLC
StoneMor Illinois Subsidiary LLC
StoneMor Indiana LLC
StoneMor Indiana Subsidiary LLC
StoneMor Iowa LLC
StoneMor Iowa Subsidiary LLC
StoneMor Kansas LLC
StoneMor Kansas Subsidiary LLC
StoneMor Kentucky LLC
StoneMor Kentucky Subsidiary LLC
StoneMor Michigan LLC
StoneMor Michigan Subsidiary LLC
StoneMor Mississippi LLC
StoneMor Mississippi Subsidiary LLC
StoneMor Missouri LLC
StoneMor Missouri Subsidiary LLC
StoneMor North Carolina LLC
StoneMor North Carolina Subsidiary LLC
StoneMor Ohio LLC
StoneMor Oklahoma LLC
StoneMor Oklahoma Subsidiary LLC
StoneMor Oregon LLC
StoneMor Oregon Subsidiary LLC
StoneMor Pennsylvania LLC
StoneMor Pennsylvania Subsidiary LLC
StoneMor Puerto Rico LLC
StoneMor Puerto Rico Subsidiary LLC
StoneMor South Carolina LLC
StoneMor South Carolina Subsidiary LLC
StoneMor Washington Subsidiary LLC
| By: | /s/ Xxxxx Xxxxxx | |
| Xxxxx Xxxxxx, as Vice President of each of the above-named Credit Parties |
| S-5 | Second Amendment to Fourth Amended and Restated Credit Agreement |
Sunset Memorial Gardens LLC
Sunset Memorial Park LLC
Temple Hill LLC
The Valhalla Cemetery Company LLC
Tioga County Memorial Gardens LLC
Virginia Memorial Service LLC
WNCI LLC
Wicomico Memorial Parks LLC
Woodlawn Memorial Park Subsidiary LLC
| By: | /s/ Xxxxx Xxxxxx | |
| Xxxxx Xxxxxx, as Vice President of each of the above-named Credit Parties |
Xxxx Israel Cemetery Association of Woodbridge, New Jersey
Bethel Cemetery Association
Clover Leaf Park Cemetery Association
Locustwood Cemetery Association
| By: | /s/ Xxxxx Xxxxxx | |
| Xxxxx Xxxxxx, as Vice President of each of the above-named Credit Parties |
| S-6 | Second Amendment to Fourth Amended and Restated Credit Agreement |
| BANK OF AMERICA, N.A., as | ||
| Administrative Agent | ||
| By: | /s/ Gerund X. Xxxx | |
| Name: | Gerund X. Xxxx | |
| Title: | Assistant Vice President | |
Administrative Agent’s Signature Page to Second Amendment to Fourth Amended and Restated Credit Agreement
| BANK OF AMERICA, N.A., as a Lender, | ||
| L/C Issuer and Swing Line Lender | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Senior Vice President | |
Lender’s Signature Page to Second Amendment to Fourth Amended and Restated Credit Agreement
| TD BANK, N.A. | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | Vice President | |
Lender’s Signature Page to Second Amendment to Fourth Amended and Restated Credit Agreement
| CAPITAL ONE, NATIONAL ASSOCIATION | ||
| By: | /s/ Xxxxxxx Sarolo | |
| Name: | Xxxxxxx Sarolo | |
| Title: | Senior Vice President | |
Lender’s Signature Page to Second Amendment to Fourth Amended and Restated Credit Agreement
| TRISTATE CAPITAL BANK | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Senior Vice President | |
Lender’s Signature Page to Second Amendment to Fourth Amended and Restated Credit Agreement
| FOX CHASE BANK | ||
| By: | /s/ Xxxx X. Xxxxx | |
| Name: | Xxxx X. Xxxxx | |
| Title: | Senior Vice President | |
Lender’s Signature Page to Second Amendment to Fourth Amended and Restated Credit Agreement
| XXXXXXX XXXXX BANK, N.A. | ||
| By: | /s/ Xxxxx X. Xxxxxxx | |
| Name: | Xxxxx X. Xxxxxxx | |
| Title: | Senior Vice President | |
Lender’s Signature Page to Second Amendment to Fourth Amended and Restated Credit Agreement
