EXHIBIT 10.16
AMENDMENT NO. 7 TO FINANCING AGREEMENT AND LIMITED CONSENT
THIS AMENDMENT NO. 7 TO FINANCING AGREEMENT AND LIMITED CONSENT dated as
of February 14, 2003 (this "AMENDMENT") is by and among ALDERWOODS GROUP,
INC., a Delaware corporation ("BORROWER"), CIT GROUP/BUSINESS CREDIT, INC., a
New York corporation ("CIT"), for itself as Lender, and as Agent for the
Lenders ("AGENT"), FLEET CAPITAL CORPORATION, as a Lender, and the Credit
Parties to the Financing Agreement listed on Annex A hereto ("CREDIT
PARTIES").
W I T N E S S E T H :
WHEREAS, Borrower, Credit Parties, Agent, and Lenders are parties to
that certain Financing Agreement dated as of January 2, 2002 (as amended,
restated or otherwise modified prior to date hereof, the "FINANCING
AGREEMENT"; capitalized terms used herein shall have the meanings assigned to
such terms in the Financing Agreement as amended hereby unless otherwise
defined herein);
WHEREAS, Borrower, Credit Parties, Agent, and Lenders desire to amend
the Financing Agreement as set forth herein;
WHEREAS, Borrower has also requested that the Agent and Lenders allow
the Borrower to have until March 31, 2003 to cause the Subsidiaries of
Borrower described on SCHEDULE I hereto (the "SCHEDULED ENTITIES") which are
then in existence to be added as Credit Parties pursuant to SECTION 7.1.6 of
the Financing Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the parties hereto hereby agree as follows:
1. GENERAL AMENDMENTS
(a) THE DEFINITIONS OF "EARLY TERMINATION FEE", "EXCLUDED SUBSIDIARIES",
"FISCAL MONTHLY PERIOD", "FIXED CHARGES", AND "TERMINATION DATE" IN SECTION 1
OF THE FINANCING AGREEMENT ARE HEREBY AMENDED AND RESTATED AS FOLLOWS:
"EARLY TERMINATION FEE shall mean a fee payable to Agent, for the benefit
of the Lenders, in an amount equal to the product obtained by multiplying
(a) the maximum amount of the Line of Credit TIMES (b) (i) one percent
(1.00%) if the Early Termination Date occurs prior to the second
anniversary of the Closing Date, or (ii) thereafter, one-half of one
percent (0.50%) if the Early Termination Date occurs on any other date
prior to the Termination Date.
EXCLUDED SUBSIDIARIES Shall mean the Rose Hills Entities, Alderwoods Life
Insurance Group Inc., a Delaware corporation, and any Subsidiary thereof,
any Special Finance Subsidiary, Xxxxxx-Xxxxx Funeral Insurance Company, a
Mississippi corporation, Xxxxxxx Funeral Insurance Company, Inc., a
Mississippi corporation, Xxxxxxx Insurance Company, Inc., a Mississippi
corporation, Xxxxxxxx Burial Association, Inc., a Mississippi corporation,
Xxxxxxxx Funeral
Benefit Association, Inc., a Mississippi corporation, Xxxxxxx Funeral
Insurance Company, Inc., a Mississippi corporation, Crown Hill Memorial
Park, Inc., a Texas corporation, Xxxxxx X. Xxxxxx Funeral Home, Inc., a
Texas corporation, Xxxxxx X. Xxxxxx Funeral Home North Chapel, Inc., a
Texas corporation, Xx X. Xxxxx & Brothers Funeral Directors, Inc., a
Texas corporation, Xxxxxx Funeral Homes, Inc., a Texas corporation,
Xxxxxx Funerals, Inc., a Texas corporation, Xxxxxx Southland Funeral
Home, Inc., a Texas corporation, Wensley, L.L.C., a Michigan limited
liability company, and, until they emerge from bankruptcy, the entities
listed on Exhibit I.A. 93 to the Plan of Reorganization, Advanced
Planning (Alabama), Inc., an Alabama corporation, Xxxxxxxxx-Xxxxxx
Mortuary, Inc., an Oregon corporation, Hill Funeral Home, Inc., a
Virginia corporation, and Xxxxxxx Funeral Home of Church Hill, Inc., a
Tennessee corporation, PROVIDED that from and after the Effective Date
of the Rose Hills Joinder Agreements, each of the Rose Hills Entities
shall each cease to be an Excluded Subsidiary.
FISCAL MONTHLY PERIOD Shall mean for Borrower and its Subsidiaries, any of
the thirteen (13) four-week fiscal periods in which Borrower's and its
Subsidiaries' Fiscal Year is divided; PROVIDED that (a) the first Fiscal
Monthly Period in Fiscal Year 2002 shall commence on January 2 and end on
January 26, 2002, which shall constitute less than a four-week period and
(b) the last Fiscal Monthly Period in Fiscal Year 2003 shall commence on
December 6, 2003 and end on January 3, 2004, which shall constitute more
than a four-week period.
FIXED CHARGES Shall mean, for any period, the sum of (a) all interest
obligations (including the interest component of Capital Leases) of the
Borrower paid or due during such period, (b) the amount of all scheduled
fees paid to the Agent and the Lenders during such period, (c) the amount
of principal repaid or scheduled to be repaid on the Permitted Indebtedness
of the Borrower during such period (other than the Rose Hills Payoff Amount
and payments permitted to be made under SECTION 7.2.3 of this Financing
Agreement in respect of the Two-Year Notes with the Net Cash Proceeds of
any Asset Sale of any Disposition Property), (d) Unfinanced Capital
Expenditures, as incurred by the Borrower during such period, (e) all
federal, state and local net income tax expenses due and payable by the
Borrower during such period and (f) without duplication of any of the
foregoing, cash expenditures for the development costs of additional
cemetery properties.
TERMINATION DATE shall mean April 30, 2004, unless terminated in accordance
with SECTION 11 of this Financing Agreement."
(b) AS OF THE EFFECTIVE DATE OF THE ROSE HILLS JOINDER AGREEMENTS, THE
DEFINITION OF "PERMITTED ENCUMBRANCE" IN SECTION 1 OF THE FINANCING AGREEMENT IS
HEREBY AMENDED BY (i) DELETING SUBPART "(s)" THEREFROM, (ii) DELETING THE
LANGUAGE "AND" FROM THE END OF SUBPART "(r)" AND INSERTING A PERIOD "." IN PLACE
THEREOF, AND (iii) INSERTING THE WORD "AND" AT THE END OF SUBPART "(q)" THEREOF.
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(c) THE DEFINITION OF "PERMITTED INDEBTEDNESS" IN SECTION 1 OF THE
FINANCING AGREEMENT IS HEREBY AMENDED BY AMENDING AND RESTATING SUBPARTS (n),
(o) AND (p) THEREOF TO READ AS FOLLOWS AND BY ADDING THE FOLLOWING NEW SUBPART
(q) AT THE END THEREOF:
"(n) the guarantee by Borrower or any Restricted Subsidiary of Indebtedness
of Borrower or any other Restricted Subsidiary contemplated by another
clause of this definition on the same basis, other than with respect to (i)
clause (m) of this definition, and (ii) any Indebtedness of any Rose Hills
Entity (provided that any Indebtedness of any Rose Hills Entity may be
guaranteed by any other Rose Hills Entity);
(o) Indebtedness incurred pursuant to the Restructuring Transactions;
(p) other unsecured Indebtedness in an aggregate principal amount at any
time outstanding not to exceed $5,000,000; provided that, such Indebtedness
can only be incurred in accordance with SECTION 4.07 of the Indenture; and
(q) Indebtedness of any Rose Hills Entity under the Rose Hills Indenture."
(d) SECTION 1 OF THE FINANCING AGREEMENT IS HEREBY AMENDED BY ADDING IN
APPROPRIATE ALPHABETICAL ORDER THE FOLLOWING NEW DEFINED TERMS:
"EFFECTIVE DATE OF THE ROSE HILLS JOINDER AGREEMENTS shall mean the date on
which the Rose Hills Joinder Agreements become effective.
ROSE HILLS ENTITIES Shall mean Rose Hills Holdings Corp., a Delaware
corporation, and each of its Subsidiaries.
ROSE HILLS JOINDER AGREEMENTS shall have the meaning given to such term in
SECTION 3.7(d) of this Financing Agreement.
ROSE HILLS PAYOFF AMOUNT Shall mean the aggregate amount of Indebtedness
owing under the Rose Hills Credit Agreement.
ROSE HILLS SPECIAL ADVANCE shall have the meaning given to such term in
SECTION 3.7(a) of this Financing Agreement."
(e) SECTION 3 OF THE FINANCING AGREEMENT IS HEREBY AMENDED BY ADDING THE
FOLLOWING NEW SECTION 3.7 AT THE END THEREOF:
"3.7 ROSE HILLS SPECIAL ADVANCE:
(a) Subject to each of the terms and conditions of SECTIONS 2.2, 3.1 and
3.7 of this Financing Agreement, the Lenders severally (and not jointly)
agree, to make a special Revolving Loan to the Borrower in the principal
amount of $30,000,000 (the "ROSE HILLS SPECIAL ADVANCE"), the proceeds of
which, together with additional cash on hand of the Borrower, shall be used
immediately by the Borrower solely for the purpose of repaying in full all
Indebtedness under the
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Rose Hills Credit Agreement. Each of the Borrower, the Rose Hills Entities
and the other Credit Parties acknowledge and agree that the Rose Hills
Special Advance shall constitute "Designated Senior Indebtedness" as
defined in the Rose Hills Indenture.
(b) BLOCK ON REVOLVING LOANS AND LETTERS OF CREDIT OBLIGATIONS.
Notwithstanding anything to the contrary contained in this Financing
Agreement or any other Credit Document, each of Borrower and the Lenders
acknowledge and agree that while any Obligations in respect of the Rose
Hills Special Advance remain outstanding:
i. the Borrower shall not be entitled to receive nor shall the Lenders
have any obligation or commitment to fund any Revolving Loan; and
ii. Borrower shall not permit nor shall Lenders have any obligation or
commitment to allow the Obligations in respect of Letters of Credit to
exceed $14,000,000.
(c) REPAYMENT OF THE ROSE HILLS SPECIAL ADVANCE. Borrower shall make
principal payments of the Rose Hills Special Advance in three (3)
consecutive quarterly installments as set forth below:
Date Installment
---- -----------
September 30, 2003 $5,000,000
December 31, 2003 $5,000,000
March 31, 2004 $5,000,000
The aggregate outstanding Obligations in respect of the Rose Hills Special
Advance shall be due and payable in full in immediately available funds on
the Termination Date, if not sooner paid in full. In the event any
prepayment of the Obligations in respect of the Rose Hills Special Advance
shall occur as a result of an asset sale pursuant to SECTION 7.2.3 hereof,
such payments shall be applied to the scheduled principal payments on
September 30, 2003, December 31, 2003 and March 31, 2004 in order of
maturity. As the Rose Hills Special Advance constitutes a Revolving Loan,
interest shall accrue at the rates and be payable at the times applicable
to the Revolving Loans herein. No payment with respect to the Rose Hills
Special Advance may be reborrowed as an additional Rose Hills Special
Advance.
(d) CONDITIONS TO THE ROSE HILLS SPECIAL ADVANCE. In addition to each of
the conditions precedent to any Revolving Loan under this Financing
Agreement, the obligation of the Lenders to make the Rose Hills Special
Advance hereunder is also subject to the satisfaction, immediately prior to
or concurrently with the making of such advance, of the following
conditions precedent, all in form, content and scope satisfactory to the
Agent:
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i. NO REVOLVING LOANS OR LETTERS OF CREDIT - No Revolving Loans of any
amount shall be outstanding and no Obligations in respect of any Letters of
Credit shall be outstanding in excess of $14,000,000.
ii. LIEN SEARCHES - The Agent shall have received tax, judgment and
UCC searches with results satisfactory to the Agent for all locations
presently occupied or used by the Rose Hills Entities or their predecessors
in interest reflecting no liens or security interests other than Permitted
Encumbrances.
iii. INSURANCE - Each Rose Hills Entity shall have delivered to the
Agent evidence satisfactory to the Agent that insurance policies listing
the Collateral Agent, for the benefit of the Lenders, as loss payee,
additional insured or mortgagee, as the case may be, are in full force and
effect, all as set forth in SECTION 7.1.2 of this Financing Agreement.
iv. MORTGAGES - Mortgages, in form and substance satisfactory to the
Agent, covering all of each Rose Hills Entity's fee interest in the real
properties set forth on SCHEDULE 3.7(d)(iv) hereto, together with:
(A) title commitments or record owner searches in each case reasonably
satisfactory in form and substance to Agent, in its sole discretion,
regarding such real property; and
(B) evidence that the Mortgages have been recorded in all places to
the extent necessary or desirable, in the judgment of Agent, to create
a valid and enforceable first priority Lien (subject to Permitted
Encumbrances) on each such real property in favor of the Collateral
Agent for the benefit of itself and Lenders (or in favor of such other
trustee as may be required or desired under local law).
v. UCC FILINGS - All UCC financing statements and similar documents
required to be filed in order to create in favor of the Collateral Agent,
for the benefit of the Lenders, a first priority perfected security
interest in the Rose Hills Entities' Collateral (to the extent that such a
security interest may be perfected by a filing under the UCC or applicable
law), shall have been properly filed in each office in each jurisdiction
required. The Agent shall have received (i) acknowledgement copies of all
such filings (or, in lieu thereof, the Agent shall have received other
evidence satisfactory to the Agent that all such filings have been made),
and (ii) evidence that all necessary filing fees, taxes and other expenses
related to such filings have been paid in full.
vi. JOINDER AGREEMENTS - Each Rose Hills Entity shall have executed
and delivered to Agent a Joinder Agreement in substantially the same form
as EXHIBIT C hereto and a Joinder Agreement in the form of EXHIBIT D hereto
to the Intercompany Loan Agreement ("ROSE HILLS JOINDER AGREEMENTS").
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vii. ADDITIONAL CREDIT DOCUMENTS - Each Rose Hills Entity shall have
executed and delivered such Credit Documents as the Agent shall reasonably
request, all in form and substance satisfactory to Agent.
viii. PLEDGE AMENDMENT - The Borrower and each Pledgor shall have
executed and delivered to the Agent, for the benefit of the Lenders, one or
more pledge amendments covering all Stock of each Rose Hills Entity owned
by the Borrower or such Pledgor, as applicable, in each case accompanied by
the original certificate(s) evidencing such Stock and blank undated stock
powers therefor, as applicable, and all of the foregoing shall be in form
and substance satisfactory to Agent.
ix. PLEDGE ACKNOWLEDGEMENT - The Rose Hills Entities, as applicable,
shall have executed and delivered to the Agent, for the benefit of the
Lenders, one or more pledge acknowledgements, in form and substance
satisfactory to Agent.
x. CASH MANAGEMENT SYSTEM - The Agent, the Rose Hills Entities and the
Rose Hills Entities' depository banks and securities intermediaries shall
have entered into agreements in form and substance reasonably satisfactory
to the Agent regarding the administration and control of any Concentration
Accounts for the Rose Hills Entities and the Rose Hills Entities'
securities accounts.
xi. OPINIONS - The Rose Hills Entities shall have caused to be
delivered to the Agent opinion(s) in form and substance satisfactory to the
Agent.
xii. RESOLUTIONS - The Agent shall have received a copy of the
resolutions of the Board of Directors of each Rose Hills Entity, in form
and substance reasonably satisfactory to the Agent, authorizing the
execution, delivery and performance of the Credit Documents to be executed
by such Rose Hills Entity, certified by the Secretary or Assistant
Secretary of such Rose Hills Entity as of the date thereof, together with a
certificate of such Secretary or Assistant Secretary as to the incumbency
and signature(s) of the officer(s) executing the Credit Documents on behalf
of such Rose Hills Entity.
xiii. ORGANIZATIONAL DOCUMENTS - The Agent shall have received a copy
of the articles of incorporation or certificate of formation of each Rose
Hills Entity, certified by the applicable authority in such Rose Hills
Entity's state of incorporation or organization, and copies of the by-laws
(as amended through the date thereof) of such Rose Hills Entity, certified
by the Secretary or an Assistant Secretary thereof.
xiv. GOOD STANDING CERTIFICATES - The Agent shall have received good
standing certificates from the state of incorporation or organization of
each Rose Hills Entity.
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xv. ROSE HILLS OFFICER'S CERTIFICATE - The Agent shall have received
an executed Officer's Certificate of an officer of each Rose Hills Entity,
in form and substance reasonably satisfactory to the Agent, certifying (i)
the representations and warranties contained herein are true and correct in
all material respects on and as of the date thereof, (ii) upon the
Effective Date of the Rose Hills Joinder Agreements, each Rose Hills Entity
will be in compliance with all of the terms and provisions set forth in the
Financing Agreement and the other Credit Documents applicable to such
party, (iii) upon giving effect to the payment of the Rose Hills Payoff
Amount, the Rose Hills Entities shall not have any outstanding
Indebtedness, as defined in the Rose Hills Indenture, under any revolving
credit facility or under any credit facility provided by a bank or other
financial institution, nor does any Rose Hills Entity have any unused
commitments to receive loans or advances under any such revolving credit
facility or other credit facility provided by a bank or other financial
institution, in each case, except as described on an exhibit to such
certificate, and that such scheduled Indebtedness, if any, when taken
together with the $75,000,000 of commitments under this Financing
Agreement, does not exceed $125,000,000 in the aggregate, (iv) such Rose
Hills Entity is Solvent and (v) since December 31, 2002, no Material
Adverse Effect has occurred.
xvi. BORROWER'S OFFICER'S CERTIFICATE - The Agent shall have received
an executed Officer's Certificate of an officer of Borrower, reasonably
satisfactory in form and substance to the Agent, certifying that (i) the
representations and warranties contained herein are true and correct in all
material respects on and as of the date thereof, (ii) Borrower is in
compliance with all of the terms and provisions set forth herein, (iii) all
conditions precedent set forth in SECTION 3.7(d) of this Financing
Agreement have been met, (iv) Borrower and the Rose Hills Entities
collectively have unrestricted cash on hand available to fund the balance
of the Rose Hills Payoff Amount (net of the Rose Hills Special Advance)
which amount shall not exceed $54,000,000 outstanding as of the date of the
proposed funding of the Rose Hills Special Advance, and will cause the full
Rose Hills Payoff Amount to be funded to the lenders under the Rose Hills
Credit Agreement concurrent with the funding of the Rose Hills Special
Advance, (v) no Default or Event of Default has occurred and is continuing,
(vi) since December 31, 2002, no Material Adverse Effect has occurred.
(f) SECTION 7.1.8(f) OF THE FINANCING AGREEMENT IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY TO READ AS FOLLOWS:
"(f) "Borrower will furnish to the Agent and the Lenders, no later than the
last day of December, projections for each period (assuming a thirteen
period Fiscal Year) of the Consolidated Balance Sheet, the consolidated
statements of profits and loss and cash flow of the Borrower, as well as
projected Availability for the Borrower for the immediately following
Fiscal Year;"
(g) SECTION 7.1.9(a) OF THE FINANCING AGREEMENT IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY TO READ AS FOLLOWS:
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"(a) TANGIBLE NET WORTH. Unless otherwise consented to by the Required
Lenders, the Borrower agrees to maintain on a consolidated basis at all
times, a Tangible Net Worth of not less than the amounts listed below
during the periods set forth below (collectively, the "REQUIRED TNW
AMOUNT"):
Period Required TNW Amount
------ -------------------
Closing Date through February 23, 2002 $155,000,000
February 24, 2002 through December 28, 2002 $119,758,500
Fiscal Year ending January 3, 2004 through $115,000,000
Termination Date
(h) SECTION 7.1.9(b) OF THE FINANCING AGREEMENT IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY TO READ AS FOLLOWS:
"(b) FIXED CHARGE COVERAGE RATIO. Unless otherwise consented to by the
Required Lenders, the Borrower agrees to maintain, on a consolidated basis,
a Fixed Charge Coverage Ratio, calculated for each of the periods set forth
below, of not less than:
Thirteen (13) Fiscal Monthly Period Ending Ratio
------------------------------------------ ------
January 26, 2002 1.00:1
February 23, 2002 1.00:1
March 23, 2002 1.00:1
April 20, 2002 1.00:1
May 18, 2002 .90:1
June 15, 2002 .90:1
July 13, 2002 .90:1
August 10, 2002 .90:1
September 7, 2002 .90:1
October 5, 2002 .90:1
November 2, 2002 .90:1
November 30, 2002 .90:1
December 28, 2002 .90:1
January 25, 2003 .75:1
February 22, 2003 .75:1
March 22, 2003 .75:1
April 19, 2003 .75:1
May 17, 2003 .75:1
June 14, 2003 .75:1
July 12, 2003 .75:1
August 9, 2003 .75:1
September 6, 2003 .75:1
October 4, 2003 .75:1
November 1, 2003 .75:1
November 29, 2003 .75:1
January 3, 2004 .75:1
January 31, 2004 and each consecutive thirteen (13) .70:1"
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Thirteen (13) Fiscal Monthly Period Ending Ratio
------------------------------------------ ------
Fiscal Monthly Period ending thereafter
(i) SECTION 7.1.9(c) OF THE FINANCING AGREEMENT IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY AS FOLLOWS:
"(c) The Credit Parties, on a consolidated basis, shall not make Capital
Expenditures that exceed, in the aggregate, the amounts listed below during
the periods set forth below:
Period Capital Expenditures
------ --------------------
Fiscal Year ending December 28, 2002 $40,000,000
Fiscal Year ending January 3, 2004 $40,000,000
January 4, 2004 - Termination Date $14,000,000"
(j) SECTION 7.2.2 OF THE FINANCING AGREEMENT IS HEREBY AMENDED AND RESTATED
IN ITS ENTIRETY AS FOLLOWS:
"7.2.2 INDEBTEDNESS. Borrower shall not, nor shall Borrower permit any
Restricted Subsidiary to, incur or create any Indebtedness other than the
Permitted Indebtedness; PROVIDED that, in addition to the foregoing, the
Rose Hills Entities shall further not incur or create any Indebtedness of
the type described in clauses (d), (e), (m), or (o) of the definition of
Permitted Indebtedness."
(k) SECTION 7.2.3 OF THE FINANCING AGREEMENT IS HEREBY AMENDED AND RESTATED
IN ITS ENTIRETY AS FOLLOWS:
7.2.3 SALE OF STOCK, ASSETS, COLLATERAL. Borrower shall not, nor shall
Borrower permit any Restricted Subsidiary to, sell, lease, assign,
transfer, convey, assign or otherwise dispose of any of its properties,
assets or Collateral, including the Stock of any of its Subsidiaries
(whether in a public or a private offering or otherwise) or any of its
Accounts, other than (a) the sale of Inventory or cemetery lots in the
ordinary course of business, (b) the sale of worn-out, obsolete or surplus
Equipment in one or a series of transactions in respect of which the
Borrower and/or the applicable Restricted Subsidiaries receive cash or
other consideration with a fair market value of $100,000 or less, PROVIDED
that the aggregate fair market value of the Equipment being sold shall not
exceed $2,500,000 in any calendar year, (c) leases and subleases by any
Restricted Subsidiary of an immaterial portion of real property owned or
leased by such Restricted Subsidiary which do not adversely affect, in any
material respect, the value of such real property, or (d) Asset Sales
(other than in respect of any Disposition Properties or Excluded Real
Estate Properties) for aggregate consideration not exceeding $10,000,000 in
any calendar year and Asset Sales of any Disposition Properties or Excluded
Real Estate Properties (without any annual cap) so long as, in the case of
any such Asset Sale, (i) the Borrower or the relevant Restricted Subsidiary
receives consideration at the time of such Asset Sale at least equal to the
Fair
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Market Value of the Stock or assets sold or otherwise disposed of, (ii)
except with respect to the assets listed on SCHEDULE 7.2.3 hereto, at
least 75% of such consideration consists of cash or Cash Equivalents;
and (iii) all Net Cash Proceeds of any Asset Sale (other than in respect
of a Disposition Property) while no Event of Default has occurred and
remains continuing are (x) applied to repay and, at the election of the
Borrower pursuant to SECTION 4.1 of this Financing Agreement or when
required by SECTION 4.2 of this Financing Agreement, to permanently
reduce the Line of Credit, PROVIDED that while any Obligations in excess
of $15,000,000 in respect of the Rose Hills Special Advance remain
outstanding, all such amounts shall be applied to repay such Obligations
until the aggregate principal balance of the Rose Hills Special Advance
is equal to $15,000,000, or (y) if no Obligations in excess of
$15,000,000 in respect of the Rose Hills Special Advance remain
outstanding, within 270 days of such Asset Sale, used to make
investments in and/or acquire properties and assets that (I) replace the
properties and assets that were the subject of such Asset Sale or in
properties and assets that will be used in the business of Borrower and
the other Restricted Subsidiaries as existing on the Closing Date or in
businesses reasonably related thereto and (II) are pledged as additional
Collateral for the Obligations; PROVIDED, that with the prior written
consent of the Required Lenders, any such Net Cash Proceeds in excess of
$10,000,000 in any Fiscal Year of the Borrower not applied to
permanently reduce the Line of Credit pursuant to SECTION 4.1 OR 4.2 of
this Financing Agreement, used to repay the Obligations in respect of
the Rose Hills Special Advance or used under clause (y) hereof may be
used, while no Event of Default shall have occurred and be continuing,
to redeem, retire or otherwise prepay the Two-Year Notes and/or Senior
Notes in accordance with SECTION 4.12 of the Two-Year Indenture and/or
the Indenture, as applicable (and while no Event of Default shall have
occurred and be continuing, if no Obligations in respect of the Rose
Hills Special Advance remain outstanding, any Net Cash Proceeds from any
Asset Sale in respect of the Rose Hills Entities may be used to redeem,
retire, or otherwise prepay the Indebtedness under the Rose Hills
Indenture in accordance with SECTION 4.13 thereof). So long as no Event
of Default shall have occurred and be continuing, all Net Cash Proceeds
in respect of any Asset Sale of any Disposition Property may be used to
redeem the Two-Year Notes in accordance with SECTION 4.12 of the
Two-Year Indenture, and, after payment in full of the Two-Year Notes, to
redeem the Senior Notes in accordance with SECTION 4.12 of the
Indenture; PROVIDED, that if any Event of Default shall have occurred
and be continuing, all such all Net Cash Proceeds in respect of any
Asset Sale of any Disposition Property shall be applied, at the option
of Agent, to repay and/or cash collateralize the Obligations and
permanently reduce the Line of Credit. Agent shall, or shall cause the
Collateral Agent to, release its Lien upon any asset which is the
subject of a sale permitted pursuant to this SECTION 7.2.3 so long as,
with respect to any Asset Sale, the Agent and the Collateral Agent shall
have received (a) prior to the occurrence and during the continuation of
any Event of Default, an Asset Sale Certificate with respect to such
Asset Sale or (b) from and after the occurrence and continuation of an
Event of Default,
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either an Asset Sale Certificate or a Commercially Reasonable Sale
Certificate with respect to such Asset Sale.
(l) SECTION 7.2.6 IS HEREBY AMENDED AND RESTATED IN ITS ENTIRETY AS
FOLLOWS:
"7.2.6 GUARANTEED INDEBTEDNESS. No Credit Party shall assume, guarantee,
endorse, or otherwise become liable upon the obligations of any Person,
except (a) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business, (b)
the Guaranty, (c) guarantees of the Senior Notes and the Other Notes and
any Permitted Refinancing of the Senior Notes complying with the terms of
SECTION 7.2.11 of this Financing Agreement, and (d) guarantees permitted by
clause (n) of the definition of Permitted Indebtedness, PROVIDED that (i)
all Credit Parties (other than any Rose Hills Entity) shall be further
restricted from guarantying any Indebtedness of any Rose Hills Entity and
(ii) the Rose Hills Entities shall further be restricted from incurring or
guaranteeing Indebtedness of the type described in clauses (d), (e), (m) or
(o) of the definition of Permitted Indebtedness."
(m) SECTION 8.1 OF THE FINANCING AGREEMENT IS HEREBY AMENDED AND RESTATED
IN ITS ENTIRETY AS FOLLOWS:
"8.1 INTEREST
(a) Interest on the outstanding principal balance of the Revolving Loans
shall be payable monthly on the first day of each month (or if such first
day of the month is not a Business Day, the immediately preceding Business
Day) and shall accrue at the following rates: (a) with respect to Chase
Bank Rate Loans, a rate equal to the Chase Bank Rate PLUS the Applicable
Chase Interest Rate Margin per annum set forth below on the average net
principal balance of the Revolving Loans at the close of each day during
such immediately preceding month, as reflected by the Borrower's Revolving
Loan Account, (b) with respect to LIBOR Loans, a rate equal to the
applicable LIBOR plus the Applicable LIBOR Interest Rate Margin per annum
set forth below on the average principal balance of all such LIBOR Loans
outstanding during such immediately preceding month, as reflected by the
Borrower's Revolving Loan Account. All interest rates shall be calculated
based on a 360-day year and actual days elapsed.
The Applicable Chase Interest Rate Margin and the Applicable LIBOR Interest
Rate Margin (collectively, the "Applicable Margins") are as follows:
Applicable Chase Interest Rate Margin 1.00%
Applicable LIBOR Interest Rate Margin 2.50%
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(n) SECTION 10.1(e) OF THE FINANCING AGREEMENT IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY AS FOLLOWS:
"(e) breach by any Credit Party of any warranty, representation or covenant
contained in any of SECTIONS 3.3 (other than the fourth sentence of SECTION
3.3), 3.4, 3.5 OR 3.7, SECTION 4, SECTIONS 6.1 THROUGH 6.3 OR 6.5, SECTIONS
7.1.1, 7.1.2, 7.1.6, 7.1.8, 7.1.9, 7.1.10 or 7.1.11, SECTION 7.2 or SECTION
9 of this Financing Agreement;"
(o) THE FINANCING AGREEMENT IS HEREBY AMENDED BY ADDING THE NEW SCHEDULE
3.7(d)(iv), AS ATTACHED HERETO.
2. LIMITED CONSENT. Borrower has advised the Agent and the Lenders that the
Scheduled Entities emerged from bankruptcy on or about December 11, 2002 and
pursuant to SECTION 7.1.6 to the Financing Agreement are required to be added as
additional Credit Parties to certain of the Credit Documents as provided in such
section. Borrower has further advised Agent and Lenders that Borrower is in the
process of determining whether to merge some or all of the Scheduled Entities
with other Subsidiaries of Borrower and has requested that Agent and Lenders
provide their consent to allow Borrower until March 31, 2003 to cause the
Scheduled Entities which are then in existence to comply with the terms of
SECTION 7.1.6 of the Financing Agreement. Subject to the conditions to
satisfaction of each of the conditions to effectiveness of this Amendment in
SECTION 3 hereof, the Agent and Lenders consent to allow Borrower until March
31, 2003 to cause the Scheduled Entities which are then in existence to comply
with the terms of SECTION 7.1.6 of the Financing Agreement.
3. CONDITIONS TO EFFECTIVENESS.
(a) This Amendment shall become effective upon the date CIT shall have
received executed counterparts to this Amendment from Borrower and each Credit
Party and each Lender shall have executed this Amendment and delivered a fully
executed copy of this Amendment to Borrower.
(b) Borrower shall have paid to Agent a fee in the amount of $875,000 to be
distributed between CIT and Fleet in the amount of $583,300 and $291,700
respectively. Unless Borrower wires such amount to Agent by noon on the
effective date of this Amendment, Agent shall be authorized to charge Borrower's
loan account for such fee.
4. REPRESENTATIONS AND WARRANTIES. Borrower and Credit Parties hereby each
and individually represent and warrant that:
(a) the execution, delivery and performance by Borrower and Credit Parties
of this Amendment have been duly authorized by all necessary corporate action
and this Amendment is a legal, valid and binding obligation of Borrower and
Credit Parties enforceable against Borrower and Credit Parties in accordance
with its terms;
(b) each of the representations and warranties made by Borrower and Credit
Parties contained in the Financing Agreement and the Credit Documents is true
and correct in all
12
material respects on and as of the date hereof as if made on the date hereof,
except to the extent that such representations and warranties expressly
relate to an earlier date;
(c) neither the execution, delivery and performance of this Amendment nor
the consummation of the transactions contemplated hereby does or shall
contravene, result in a breach of, or violate (i) any provision of Borrower's or
any Credit Parties' certificate or articles of incorporation or formation,
bylaws, partnership agreement, operating agreement or other organizational
documents (ii) any law or regulation, or any order or decree of any court or
government instrumentality, or (iii) any loan agreement, lease, indenture,
mortgage, deed of trust, note, security agreement or pledge agreement to which
Borrower or any Credit Party is a signatory or by which Borrower or such Credit
Party or any of Borrower's or such Credit Party's assets are bound; and
(d) no Default or Event of Default has occurred and remains outstanding
under the Financing Agreement as of the date hereof.
5. MISCELLANEOUS.
(a) Except as expressly amended herein, all of the terms and provisions of
the Financing Agreement and the Credit Documents are ratified and confirmed in
all respects and shall remain in full force and effect.
(b) Upon the effectiveness of this Amendment, all references in the Credit
Documents to the Financing Agreement shall mean the Financing Agreement as
amended by this Amendment and all references in the Financing Agreement to "this
Agreement," "hereof," "herein," or similar terms, shall mean and refer to the
Financing Agreement as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as an amendment, consent to or
waiver of any right, power or remedy of the Agent or any Lender under the
Financing Agreement or any of the Credit Documents, or constitute an amendment,
consent or waiver of any provision of the Financing Agreement or any of the
Credit Documents nor shall it prejudice any rights, powers or remedies that
Agent, on behalf of Lenders, or any Lender may now have or may have in the
future under or in connection with the Financing Agreement or any other Credit
Document.
(d) This Amendment may be executed by the parties hereto individually or in
combination, in one or more counterparts, each of which shall be an original and
all of which shall constitute one and the same agreement. This Amendment may be
executed and delivered by telecopier with the same force and effect as if the
same were a fully executed and delivered original manual counterpart.
(e) Borrower and Credit Parties agree to reimburse Agent and Lenders for
all reasonable fees, costs and expenses in connection with this Amendment,
including the fees, costs and expenses of counsel or other advisors for advice,
assistance or other representation in connection with this Amendment.
13
(f) Any provision contained in this Amendment that is held to be
inoperative, unenforceable or invalid in any jurisdiction shall, as to that
jurisdiction, be inoperative, unenforceable or invalid without affecting the
remaining provisions of this Amendment in that jurisdiction or the operation,
enforceability or validity of that provision in any other jurisdiction.
(g) Section headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any
other purposes.
6. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
ILLINOIS WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
[SIGNATURE PAGE FOLLOWS]
14
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the date set forth above.
THE CIT GROUP/BUSINESS CREDIT, INC.,
AS THE AGENT AND A LENDER
By:
----------------------------------------
Its: Vice President
FLEET CAPITAL CORPORATION,
AS A LENDER
By:
----------------------------------------
Its:
---------------------------------------
ALDERWOODS GROUP, INC.
By:
----------------------------------------
Its: Authorized Signatory
CREDIT PARTIES:
Each of the Credit Parties listed on ANNEX A
attached hereto
By:
----------------------------------------
Its: Authorized Signatory
On behalf of and intending to legally bind
each of the Credit Parties listed on ANNEX A
hereto
[Signature Page to Amendment No. 7 to Financing Agreement]
ANNEX A
CREDIT PARTIES
ALASKA
Alderwoods (Alaska), Inc.
ARIZONA
Alderwoods (Arizona), Inc.
Xxxxxxxx Funeral Home, Inc.
Phoenix Memorial Park Association
ARKANSAS
Alderwoods (Arkansas), Inc.
CALIFORNIA
Advance Funeral Insurance Services
Alderwoods Group (California), Inc.
Alderwoods (Texas), Inc.
Directors Succession Planning, Inc.
Directors Succession Planning II, Inc.
DSP General Partner II, Inc.
Xxxxxxxx XX, Inc.
Universal Memorial Centers V, Inc.
Universal Memorial Centers VI, Inc.
Xxxxxxxxxx-Lakewood Memorial Park and Funeral Service
COLORADO
Alderwoods (Colorado), Inc.
CONNECTICUT
Alderwoods (Connecticut), Inc.
DELAWARE
Administration Services, Inc.
Alderwoods (Alabama), Inc.
Alderwoods (Commissioner), Inc.
Alderwoods (Delaware), Inc.
Alderwoods (Mississippi), Inc.
Alderwoods (Texas), L.P.
American Burial and Cremation Centers, Inc.
Directors (Texas), L.P.
H.P. Xxxxxx Funeral Home, Inc.
Lienkaemper Chapels, Inc.
Neweol (Delaware), L.L.C.
Osiris Holding Corporation
DISTRICT OF COLUMBIA
Alderwoods (District of Columbia), Inc.
FLORIDA
Coral Ridge Funeral Home and Cemetery, Inc.
Funeral Services Acquisition Group, Inc.
Garden Sanctuary Acquisition, Inc.
Kadek Enterprises of Florida, Inc.
Xxxxxx Xxxxxxxxx Memorial Chapels, Inc.
MHI Group, Inc.
Naples Memorial Gardens, Inc.
Osiris Holding of Florida, Inc.
Security Trust Plans, Inc.
GEORGIA
Advanced Planning of Georgia, Inc.
Alderwoods (Georgia), Inc.
Alderwoods (Georgia) Holdings, Inc.
Green Lawn Cemetery Corporation
Xxxxxx Holdings, Inc.
Southeastern Funeral Homes, Inc.
HAWAII
Alderwoods (Hawaii), Inc.
IDAHO
Alderwoods (Idaho), Inc.
ILLINOIS
Alderwoods (Chicago Central), Inc.
Alderwoods (Chicago North), Inc.
Alderwoods (Chicago South), Inc.
Alderwoods (
Illinois), Inc.
Chapel Hill Memorial Gardens & Funeral Home Ltd.
Chicago Cemetery Corporation
Elmwood Acquisition Corporation
Mount Auburn Memorial Park, Inc.
Pineview Memorial Park, Inc.
Ridgewood Cemetery Company, Inc.
Xxxxxx Funeral Home, Inc.
The Oak Xxxxx Cemetery Association
Woodlawn Cemetery of Chicago, Inc.
Woodlawn Memorial Park, Inc.
INDIANA
Advance Planning of America, Inc.
Alderwoods (Indiana), Inc.
Xxxxxx Funeral Home, Inc.
IOWA
Alderwoods (Iowa), Inc.
KANSAS
Alderwoods (Kansas), Inc.
KENTUCKY
Alderwoods (Partner), Inc.
LOUISIANA
Alderwoods (Louisiana), Inc.
MARYLAND
Alderwoods (Maryland), Inc.
MASSACHUSETTS
Alderwoods (Massachusetts), Inc.
Xxxx-Xxxx Insurance Agency, Inc.
MICHIGAN
Alderwoods (Michigan), Inc.
MINNESOTA
Alderwoods (Minnesota), Inc.
MISSISSIPPI
Family Care, Inc.
Riemann Enterprises, Inc.
Xxxxxxxx Funeral Fund, Inc.
MISSOURI
Alderwoods (Missouri), Inc.
MONTANA
Alderwoods (Montana), Inc.
NEBRASKA
Alderwoods (Nebraska), Inc.
NEVADA
Alderwoods (Nevada), Inc.
NEW HAMPSHIRE
Xxxxxx Xxxxxxx Xxxxxxxx Funeral Home, Inc.
St. Laurent Funeral Home, Inc.
ZS Acquisition, Inc.
NEW MEXICO
Alderwoods (New Mexico), Inc.
Xxxxxx-Xxxxxx Mortuary, Inc.
NEW YORK
Alderwoods (New York), Inc.
Northeast Monument Company, Inc.
NORTH CAROLINA
Alderwoods (North Carolina), Inc.
Xxxxxxxxx Holding Company, Inc.
Xxxxxxxxx Group, Inc.
Xxxxxx, Inc.
MFH, L.L.C.
Westminster Gardens, Inc.
NORTH DAKOTA
Alderwoods (North Dakota), Inc.
OHIO
Alderwoods (Ohio) Cemetery Management, Inc.
Alderwoods (Ohio) Funeral Home, Inc.
Xxxxxxx-Xxxxxx-Xxxxxxxxx Funeral Home, Inc.
OKLAHOMA
Alderwoods (Oklahoma), Inc.
OREGON
Alderwoods (Oregon), Inc.
The Portland Memorial, Inc.
Universal Memorial Centers I, Inc.
Universal Memorial Centers II, Inc.
Universal Memorial Centers III, Inc.
PENNSYLVANIA
Alderwoods (Pennsylvania), Inc.
Bright Undertaking Company
X. Xxxxxx, Inc.
Knee Funeral Home of Wilkinsburg, Inc.
Nineteen Thirty-Five Holdings, Inc.
Oak Xxxxx Management Company
RHODE ISLAND
Alderwoods (Rhode Island), Inc.
SOUTH CAROLINA
Alderwoods (South Carolina), Inc.
Graceland Cemetery Development Co.
SOUTH DAKOTA
Alderwoods (South Dakota), Inc.
TENNESSEE
Alderwoods (Tennessee), Inc.
DMA Corporation
Eagle Financial Associates, Inc.
TEXAS
Alderwoods (Texas) Cemetery, Inc.
Del Rio Memorial Park, Inc.
Directors Cemetery (Texas), Inc.
DSP General Partner, Inc.
Dunwood Cemetery Service Company
Xxxxxxxx Cemetery Holdings, Inc.
Xxxxxxxx Holdings, Inc.
Xxxxx Funeral Home, Incorporated
Memorial Park Cemetery of Tyler, Texas
Panola County Restland Memorial Park, Inc.
Pioneer Funeral Plans Inc.
Xxxxxx Land Company
Tyler Memorial Funeral Home and Chapel, Inc.
Waco Memorial Park
VIRGINIA
Alderwoods (Virginia), Inc.
WASHINGTON
Alderwoods (Washington), Inc.
Evergreen Funeral Home and Cemetery, Inc.
Green Service Corporation
S & H Properties and Enterprises, Inc.
Vancouver Funeral Chapel, Inc.
WEST VIRGINIA
Alderwoods (West Virginia), Inc.
WISCONSIN
Alderwoods (Wisconsin), Inc.
Northern Land Company, Inc.
WYOMING
Alderwoods (Wyoming), Inc.
EXHIBIT 3.7(d)(iv)
ROSE HILLS REAL PROPERTY
Name Address City State
---- ------- ---- -----
Xxxxxx Xxxxxxxxxxxx - Xxxx Covina 000 X. Xxxxxxxx Xxx. Xxxx Xxxxxx XX
Xxxxxx Xxxxxxxxxxxx - Covina 000 X. Xxxxxx Xxx. Xxxxxx XX
Xxxxxx Xxxxxxxxxxxx - Glendora 000 X. Xxxxxx Xxx. Xxxxxxxx XX
Xxxxxx Xxxxxxxxxxxx - Xxxxxx 0000 X. Xxxxxx Xxx. Xx Xxxxxx XX
Whites Funeral Home 0000 Xxxxxx Xxxxxx Xxxxxxxxxx XX
Xxxxxx 00000 Xxxxxxx Xxx. Xxxxxx Xxxxx XX
Harbor Lawn 0000 Xxxxxx Xxx. Xxxxx Xxxx XX
Melrose Abbey 0000 X. Xxxxxxxxxx Xxxxxxx XX
SCHEDULE I
SCHEDULED ENTITIES
1. The entities listed on Exhibit I.A.93 to the Plan of Reorganization;
2. Advanced Planning (Alabama), Inc., an Alabama corporation;
3. Xxxxxxxxx-Xxxxxx Mortuary, Inc., an Oregon corporation;
4. Hill Funeral Home, Inc., a Virginia corporation; and
5. Xxxxxxx Funeral Home of Church Hills, Inc., a Tennessee corporation.
