SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
SIXTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the “Sixth Amendment”) dated May 4, 2010, 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, 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 Amended and Restated Credit Agreement, dated August 15, 2007, by and among the parties hereto, as amended by: (a) that certain First Amendment to Amended and Restated Credit Agreement, dated November 2, 2007; (b) that certain Second Amendment to Amended and Restated Credit Agreement, dated April 30, 2009; (c) that certain Third Amendment to Amended and Restated Credit Agreement, dated July 6, 2009; (d) that certain Fourth Amendment to Amended and Restated Credit Agreement, dated November 24, 2009; and (e) that certain Fifth Amendment to Amended and Restated Credit Agreement, dated January 15, 2010 (as amended, modified or otherwise supplemented from time to time, the “Credit Agreement”), the existing Lenders agreed, inter alia, to extend to the Borrowers (i) a revolving credit facility in the maximum aggregate principal amount of Thirty-Five Million Dollars ($35,000,000), and (ii) an acquisition facility in the maximum aggregate principal amount of Forty-Five Million Dollars ($45,000,000).
B. The Borrowers have requested (a) an adjustment to the definition of Consolidated EBITDA to exclude realized losses from the sale of investments in the Highland Floating Rate Advantage Fund and (b) an increase in the maximum permitted Consolidated Leverage Ratio for certain fiscal periods.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree 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.
(b) Additional Definitions. The following additional definitions are hereby added to Section 1.01 (Defined Terms) of the Credit Agreement to read in their entirety as follows:
“Highland Capital Sale” means the sale by the Credit Parties of all of their investments held, as of the date of the Sixth Amendment, in one or more Merchandise Trusts in the Highland Floating Rate Advantage Fund.
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“Sixth Amendment” means the Sixth Amendment to this Agreement dated May 4, 2010.
(c) Amendment to Definition of “Applicable Rate”. The last sentence within the definition of “Applicable Rate” set forth in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety, as follows:
Notwithstanding anything to the contrary contained in this definition (i) the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b) and (c), and (ii) commencing on the effective date of the Sixth Amendment until such time as the Agent shall have received a Compliance Certificate (evidencing compliance with all financial covenants set forth in Section 7.11) for a Measurement Period ending on or after December 31, 2010, Pricing Xxxxx 0 of the Applicable Rate for (A) Eurodollar Rate Loans and Letter of Credit Fees, shall be 4.50%, and (B) Base Rate Loans, shall be 3.50%.
(d) Amendment to Definition of “Consolidated EBITDA”. The definition of “Consolidated EBITDA” set forth in Section 1.01 of the Credit Agreement is hereby amended by adding the parenthetical phrase “(other than any changes arising as a result of the Highland Capital Sale)” after the phrase “for any changes” in the second sentence of such definition.
2. Amendment to Subsection (c) of Section 7.11 (Financial Covenants). Section 7.11(c) of the Credit Agreement is hereby amended and restated in its entirety as follows:
(c) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio to be greater than: (i) 4.15 to 1.0, for any Measurement Period ending prior to July 1, 2010; (ii) 4.00 to 1.0, for any Measurement Period ending between July 1, 2010 and September 30, 2010; (iii) 3.75 to 1.0, for any Measurement Period ending between October 1, 2010 and December 31, 2010 or (iv) 3.65 to 1.0, for any Measurement Period ending after December 31, 2010.
3. Amendment and Restatement of Exhibit D. Except with respect to Exhibit D (Compliance Certificate), which is hereby amended, restated and replaced by Exhibit D attached to this Sixth Amendment, each of the Schedules and Exhibits to the Credit Agreement are true and correct in all material respects and are not amended, restated or replaced by this Sixth Amendment.
4. 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, except to the extent such representation or warranty was made as of a specific date;
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(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 Sixth Amendment and any other documents which the Administrative Agent requires such Credit Party to deliver hereunder (this Sixth Amendment and any such additional documents delivered in connection with the Sixth Amendment are herein referred to as the “Sixth 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 Sixth Amendment Documents have been adopted and taken and, upon their execution, the Credit Agreement, as amended by this Sixth Amendment and the other Sixth 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 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 Sixth Amendment Documents will not (i) 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, (ii) 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 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 (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, any Credit Party;
(d) No Default. Immediately prior to and after giving effect to this Sixth Amendment, no Default or Event of Default has occurred and is continuing; and
(e) No Material Adverse Effect. No Material Adverse Effect has occurred since December 31, 2009.
(f) Organizational Documents. There have been no changes in the organizational documents of the Credit Parties since August 15, 2007 (or such later date as any such organizational documents were initial adopted), except as described on Annex 1 hereto or as previously disclosed to the Administrative Agent in writing, certified copies of which have been previously provided to the Lenders;
5. Conditions to Effectiveness of Amendment. This Sixth 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) Sixth Amendment. This Sixth Amendment, duly executed by the Credit Parties and the Required Lenders;
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(b) Amendment to Note Purchase Agreement. A duly executed copy of the Sixth Amendment to Amended and Restated Note Purchase Agreement, dated as of the date hereof, by and among the Credit Parties and the Purchasers, amending the Note Purchase Agreement in a similar manner to this Sixth Amendment;
(c) 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 Sixth Amendment and any other Credit Document, including, without limitation, all fees and costs incurred by the Administrative Agent’s attorneys;
(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 Sixth Amendment, if any; and
(e) Other Documents and Actions. Such additional agreements, instruments, documents, writings and actions as the Administrative Agent may reasonably request.
6. No Waiver; Ratification. The execution, delivery and performance of this Sixth 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 amendments to the Credit Agreement or any of the other Credit Documents.
7. Acknowledgments. To induce the Administrative Agent and the Amendment Lenders to enter into this Sixth 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; (ii) the liens and security interests granted to the Collateral Agent, on behalf of the Secured Parties, 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 to Permitted Liens); 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 each of the Secured Parties as of the date hereof.
(b) No Waiver of Existing Defaults. No Default or Event of Default exists immediately before or immediately after giving effect to this Sixth Amendment. Nothing in this Sixth 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 foregoing representation 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 foregoing representation proving to be false or incorrect in any material respect.
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8. Binding Effect. This Sixth Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
9. Governing Law. This Sixth 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 Sixth Amendment are inserted for convenience only and shall not be deemed to constitute a part of this Sixth Amendment.
11. Counterparts. This Sixth 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. Delivery of an executed counterpart of a signature page of this Sixth Amendment by telecopy or by electronic means shall be effective as delivery of a manually executed counterpart of this Sixth Amendment.
12. Consent. To the extent that consent of the Lenders is required, the Lenders hereby consent to the Sixth Amendment to Amended and Restated Note Purchase Agreement dated as of the date hereof among the Credit Parties and the Purchasers.
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IN WITNESS WHEREOF, the parties hereto, by their respective duly authorized officers, have executed this Sixth Amendment to Amended and Restated Credit Agreement as of the date first above written.
| General Partner: | ||
| STONEMOR GP LLC | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Vice President | |
| Partnership: | ||
| STONEMOR PARTNERS L.P. | ||
| By: | STONEMOR GP LLC | |
| its General Partner | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Vice President | |
| Operating Company: | ||
| STONEMOR OPERATING LLC | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Vice President | |
Borrowers’ Signature Page to Sixth Amendment to 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
Bethel Cemetery Association
Xxxx Israel Cemetery Association of Woodbridge, New Jersey
Birchlawn Burial Park Subsidiary, Inc.
Cedar Hill Funeral Home, Inc.
Cemetery Investments Subsidiary, Inc.
Clover Leaf Park Cemetery Association
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.
Crown Hill Cemetery Association
Xxxxxx X. Xxxxx Funeral Home, Inc.
Xxxx Haven Memorial Park Subsidiary, Inc.
Xxxxx Memorial Park Subsidiary, Inc.
Highland Memorial Park, Inc.
Hillside Memorial Park Association, Inc.
KIRIS Subsidiary, Inc.
Lakewood/Xxxxxxxx Cemetery Subsidiary, Inc.
Lakewood Memory Gardens South Subsidiary, Inc.
Laurel Hill Memorial Park Subsidiary, Inc.
Laurelwood Holding Company
Legacy Estates, Inc.
Locustwood Cemetery Association
Xxxxxx [Virginia] Subsidiary, Inc.
Xxxxxxxx Xxxx Cemetery Subsidiary, Inc.
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.
| By: | /s/ Xxxx Xxxxxxxx |
Xxxx Xxxxxxxx, as Vice President of Finance for each of the above-named Credit Parties
Borrowers’ Signature Page to Sixth Amendment to Amended and Restated Credit Agreement
Perpetual Xxxxxxx.Xxx, Inc.
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 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/ Xxxx Xxxxxxxx |
Xxxx Xxxxxxxx, as Vice President of Finance for each of the above-named Credit Parties
Borrowers’ Signature Page to Sixth Amendment to 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 Mid-Atlantic States, 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
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/ Xxxx Xxxxxxxx |
Xxxx Xxxxxxxx, as Vice President of Finance for each of the above-named Credit Parties
Borrowers’ Signature Page to Sixth Amendment to 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 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 Missouri LLC
StoneMor Missouri Subsidiary LLC
StoneMor North Carolina LLC
StoneMor North Carolina Subsidiary LLC
StoneMor Ohio 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/ Xxxx Xxxxxxxx |
Xxxx Xxxxxxxx, as Vice President of Finance for each of the above-named Credit Parties
Borrowers’ Signature Page to Sixth Amendment to 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/ Xxxx Xxxxxxxx |
Xxxx Xxxxxxxx, as Vice President of Finance for each of the above-named Credit Parties
Borrowers’ Signature Page to Sixth Amendment to Amended and Restated Credit Agreement
| BANK OF AMERICA, N.A., as | ||
| Administrative Agent | ||
| By: | /s/ Xxxxxxxx Carry | |
| Name: | Xxxxxxxx Carry | |
| Title: | Vice President | |
Administrative Agent’s Signature Page to Sixth Amendment to 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 Sixth Amendment to Amended and Restated Credit Agreement
| SOVEREIGN BANK | ||
| By: |
| |
| Name: |
| |
| Title: |
| |
Lender’s Signature Page to Sixth Amendment to Amended and Restated Credit Agreement
| TD BANK, N.A. | ||
| By: | /s/ Xxxxx X. Xxxxx | |
| Name: | Xxxxx X. Xxxxx | |
| Title: | SVP | |
Lender’s Signature Page to Sixth Amendment to Amended and Restated Credit Agreement
| CAPITAL ONE, N.A. | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Senior Vice President | |
Lender’s Signature Page to Sixth Amendment to Amended and Restated Credit Agreement
| FIRST NIAGARA BANK, N.A., successor by merger to Harleysville National Bank and Trust Company | ||
| By: | /s/ Xxxxx X. Xxxx, Xx. | |
| Name: | Xxxxx X. Xxxx, Xx. | |
| Title: | V.P. | |
Lender’s Signature Page to Sixth Amendment to Amended and Restated Credit Agreement
| SUN NATIONAL BANK | ||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxxxxxxx | |
| Name: | Xxxxxxxxxxx X. Xxxxxxxxxxx | |
| Title: | SVP | |
Lender’s Signature Page to Sixth Amendment to Amended and Restated Credit Agreement
| TRISTATE CAPITAL BANK | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | SVP | |
Lender’s Signature Page to Sixth Amendment to Amended and Restated Credit Agreement
| BENEFICIAL MUTUAL SAVINGS BANK | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: | Xxxxxx X. Xxxxxx | |
| Title: | Vice President | |
Lender’s Signature Page to Sixth Amendment to Amended and Restated Credit Agreement
| FOX CHASE BANK | ||
| By: | /s/ Xxxx X. Xxxxx | |
| Name: | Xxxx X. Xxxxx | |
| Title: | Sr. Relationship Mgr. | |
Lender’s Signature Page to Sixth Amendment to Amended and Restated Credit Agreement
| XXXXXXX XXXXX BANK, FSB | ||
| By: | /s/ Xxxxxxx XxXxxxxx | |
| Name: | Xxxxxxx XxXxxxxx | |
| Title: | Senior Vice President | |
Lender’s Signature Page to Sixth Amendment to Amended and Restated Credit Agreement
Annex 1
None.
