CONFIRMATION AND AMENDMENT AGREEMENT
Exhibit 10.2
EXECUTION VERSION
CONFIRMATION AND AMENDMENT AGREEMENT
THIS CONFIRMATION AND AMENDMENT AGREEMENT is made on January 19, 2012 (the “Agreement”), by each of the undersigned parties hereto in favor of BANK OF AMERICA, N.A. (“Bank of America”), as Collateral Agent (the “Collateral Agent”) for the Secured Parties (as defined in the Credit Agreement referred to below).
BACKGROUND
A. Reference is made to that certain Second Amended and Restated Credit Agreement dated April 29, 2011, as amended by a First Amendment to Second Amended and Restated Credit Agreement, dated August 4, 2011, a Second Amendment to Second Amended and Restated Credit Agreement, dated October 28, 2011, and as supplemented by the Joinder to the Amended and Restated Credit Agreement and Credit Documents, dated August 1, 2011, the Joinder to the Amended and Restated Credit Agreement and Credit Documents, dated August 17, 2011 and the Joinder to Amended and Restated Credit Agreement and Credit Documents, dated January 3, 2012 (collectively, the “Joinders”), among StoneMor Operating LLC, a Delaware limited liability company (the “Operating Company”), each of the Subsidiaries of the Operating Company (together with the Operating Company, each individually a “Borrower” and collectively, the “Borrowers”), StoneMor GP LLC, a Delaware limited liability company (the “General Partner”), StoneMor Partners L.P., a Delaware limited partnership (the “Partnership”, together with Operating Company, the Borrowers and the General Partner, each a “Credit Party” and collectively the “Credit Parties”), the lenders from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer (the “Existing Credit Agreement”).
B. Pursuant to the Existing Credit Agreement, various of the Credit Parties delivered to the Collateral Agent various security and collateral documents in favor of the Collateral Agent, including, without limitation: (i) that certain Amended and Restated Security Agreement, dated April 29, 2011, as amended by the Joinders (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Security Agreement”) among the Credit Parties in favor of the Collateral Agent, (ii) that certain Amended and Restated Pledge Agreement, dated April 29, 2011, as amended by the Joinders (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Pledge Agreement”) among the Credit Parties in favor of the Collateral Agent, and (iii) various Mortgages, each as supplemented, amended or modified from time to time, including, as to the Security Agreement and the Pledge Agreement, by the Joinders (the Security Agreement, the Pledge Agreement and Mortgages, together with any other agreements, instruments or documents that create a Lien in favor of the Collateral Agent, all as may be amended, restated, modified, extended, renewed, replaced or supplemented from time to time collectively the “Security Documents”).
C. In connection herewith, the parties to the Existing Credit Agreement are now amending and restating the Existing Credit Agreement pursuant to that certain Third Amended and Restated Credit Agreement, dated January 19, 2012 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”).
D. The Security Documents secure the obligations of the Credit Parties to the Lenders under, inter alia, the Credit Agreement.
AGREEMENT
1. 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 Security Agreement (as amended hereby).
2. Acknowledgement. Each Credit Party hereby acknowledges that each Security Document continues in full force and effect and relates to the obligations of such Credit Party under the Credit Agreement. Each Credit Party further (a) acknowledges that the Obligations of the Credit Parties under the Credit Agreement are secured obligations under the Security Agreement and each of the other Security Documents and (b) confirms its obligations under the Security Agreement and each of the other Security Documents. The Liens, grants, covenants and agreements set forth in the Security Documents are hereby made and granted to secure the obligations under the Credit Agreement as if the same were made or granted on the date hereof; and, each Credit Party hereby agrees that from the date hereof through the Termination Date, the Credit Parties shall comply with, and be subject to and bound by, each of the terms and provisions of the Credit Agreement.
3. Amendment and Restatement of Notice Provisions. The notice requirements of Section 10.1 of the Security Agreement and Article XX of the Pledge Agreement are hereby amended and restated to the extent necessary to conform all requirements and notice addresses thereunder with Section 11.02 of the Credit Agreement.
4. Amended and Restated Definitions. The following definitions in the Security Documents are hereby amended and restated as follows:
(a) “Credit Agreement.” All references in any of the Security Documents to the Existing Credit Agreement are hereby deemed to be references to the Credit Agreement, and all references in any of the Security Documents to any terms defined in the Existing Credit Agreement are hereby deemed to be references to terms defined in the Credit Agreement.
5. Amendments to Security Agreement. The following provisions of the Security Agreement are hereby amended as set forth below:
(a) In Recital (D), the phrase “, Acquisition Loans” is deleted.
6. Amendments to Pledge Agreement. The following provisions of the Pledge Agreement are hereby amended as set forth below:
(a) In Recital (D), the phrase “, Acquisition Loans” is deleted.
7. Ratification. Except as expressly modified hereby, all terms, conditions and provisions of each Security Document shall remain in full force and effect and are hereby ratified and confirmed by all parties hereto. Nothing contained herein constitutes an agreement or obligation by the Collateral Agent to grant any further amendments to the Security Documents. Each Credit Party hereby represents and warrants that each of the representations and warranties made by it in the Security Agreement and the Pledge Agreement are true and correct in all material respects as of the date hereof.
8. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
9. Governing Law. This Agreement and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement (except, as to any other Security Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the Commonwealth of Pennsylvania.
10. Headings. The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute a part of this Agreement.
11. Counterparts; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or by electronic means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Confirmation and Amendment Agreement to be duly executed 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 | |
Confirmation and Amendment Agreement
Credit Parties Signature Page
S-1
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.
Kingwood Memorial Park Association
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
Confirmation and Amendment Agreement
Credit Parties Signature Page
S-2
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.
SCI Puerto Rico Funeral and Cemetery Services, 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
Confirmation and Amendment Agreement
Credit Parties Signature Page
S-3
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
Confirmation and Amendment Agreement
Credit Parties Signature Page
S-4
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
Confirmation and Amendment Agreement
Credit Parties Signature Page
S-5
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
Confirmation and Amendment Agreement
Credit Parties Signature Page
S-6
ACKNOWLEDGED:
BANK OF AMERICA, N.A., as Collateral Agent
| By: | /s/ Xxxx Xxxxxxxx | |
| Xxxx Xxxxxxxx, Assistant Vice President |
Acknowledgment to Confirmation and Amendment Agreement
Confirmation and Amendment Agreement
Credit Parties Signature Page
S-7
