FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.4

FIRST AMENDMENT TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (the “First Amendment”) dated August 4, 2011, 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 Second Amended and Restated Credit Agreement, entered into on April 29, 2011, by and among the parties hereto (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 Fifty-Five Million Dollars ($55,000,000), and (ii) an acquisition facility in the maximum aggregate principal amount of Sixty-Five Million Dollars ($65,000,000).

B. The Borrowers have requested certain amendments to the Credit Agreement, and the Lenders are willing to agree to such amendments on the terms and subject to the conditions set forth herein.

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.

2. Amendment to Subsection (b) of Section 7.11 (Financial Covenants). Section 7.11(b) of the Credit Agreement is hereby amended and restated in its entirety as follows:

(b) Minimum Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio for any Measurement Period ending in any quarter or year set forth below, to be less than the ratio set forth to the right of such quarter or year.

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Quarter/Year		Required Consolidated Fixed Charge Coverage Ratio
Second and third fiscal quarters of 0000		0.00x
Fourth fiscal quarter of 0000		0.00x
2012 and thereafter		1.20x

3. Amendment and Restatement of Exhibit D. Exhibit D (Compliance Certificate) shall be amended, restated and replaced by Exhibit D attached to this First 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;

(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 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 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

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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 after giving effect to this First 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, 2010.

(f) Organizational Documents. There have been no changes in the organizational documents of the Credit Parties since April 29, 2011 (or such later date as any such organizational documents were initial adopted), except 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 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 and the Required Lenders;

(b) Lender Fees. The Operating Company shall have paid to the Administrative Agent, for the account of each Lender executing this First Amendment, a fee equal to 0.10% of such Lender’s Acquisition Commitment and Revolving Credit Commitment.

(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 First 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 First Amendment, if any; and

(e) Other Documents and Actions. Such additional agreements, instruments, documents, writings and actions as the Administrative Agent may reasonably request.

Upon the effectiveness of this First Amendment, the amendment set forth in Section 2 shall be deemed effective on a retroactive basis to June 30, 2011.

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6. 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 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 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; (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 after giving effect to this First Amendment. Nothing in this First 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.

8. Binding Effect. This First Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

9. 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.

10. 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.

11. 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. Delivery of an executed counterpart

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of a signature page of this First Amendment by telecopy or by electronic means shall be effective as delivery of a manually executed counterpart of this First Amendment.

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IN WITNESS WHEREOF, the parties hereto, by their respective duly authorized officers, have executed this First 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 First Amendment to Second 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.

Chapel Hill Associates, Inc.

Chapel Hill Funeral Home, 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.

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.

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.

By:		/s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, as Vice President of Finance for each of the above-named Credit Parties

Borrowers’ Signature Page to First Amendment to Second Amended and Restated Credit

Agreement

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.

PVD Acquisitions Subsidiary, Inc.

Prince Xxxxxx Cemetery Corporation

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 First Amendment to Second 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 First Amendment to Second 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 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/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx, as Vice President of Finance for each of the above-named Credit Parties

Borrowers’ Signature Page to First Amendment to Second 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 First Amendment to Second Amended and Restated Credit

Agreement

BANK OF AMERICA, N.A., as
Administrative Agent
By:		/s/ Xxxxxxx Xxxxxxx
Name:		Xxxxxxx Xxxxxxx
Title:		Vice President

Administrative Agent’s Signature Page to First Amendment to Second 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 First Amendment to Second Amended and Restated Credit

Agreement

SOVEREIGN BANK

By:

Name:

Title:

Lender’s Signature Page to First Amendment to Second Amended and Restated Credit

Agreement

TD BANK, N.A.
By:		/s/ Xxxxx Xxxxx
Name:		Xxxxx Xxxxx
Title:		Vice President

Lender’s Signature Page to First Amendment to Second 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 First Amendment to Second Amended and Restated Credit

Agreement

FIRST NIAGARA BANK, N.A.

By:

Name:

Title:

Lender’s Signature Page to First Amendment to Second Amended and Restated Credit

Agreement

SUN NATIONAL BANK

By:

Name:

Title:

Lender’s Signature Page to First Amendment to Second Amended and Restated Credit

Agreement

TRISTATE CAPITAL BANK
By:		/s/ Xxxx Xxxxxx
Name:		Xxxx Xxxxxx
Title:		SVP

Lender’s Signature Page to First Amendment to Second Amended and Restated Credit

Agreement

BENEFICIAL MUTUAL SAVINGS BANK

By:

Name:

Title:

Lender’s Signature Page to First Amendment to Second Amended and Restated Credit

Agreement

FOX CHASE BANK

By:

Name:

Title:

Lender’s Signature Page to First Amendment to Second Amended and Restated Credit

Agreement

XXXXXXX XXXXX BANK, FSB

By:

Name:

Title:

Lender’s Signature Page to First Amendment to Second Amended and Restated Credit

Agreement