JOINDER TO AMENDED AND RESTATED CREDITAGREEMENT AND CREDIT DOCUMENTS
Exhibit 10.4
EXECUTION VERSION
JOINDER TO AMENDED AND RESTATED CREDIT AGREEMENT AND CREDIT DOCUMENTS
This JOINDER TO AMENDED AND RESTATED CREDIT AGREEMENT AND CREDIT DOCUMENTS (this Joinder), is dated this 10th day of June, 2014, by and among Kirk & Nice, Inc., a Pennsylvania corporation and Kirk & Nice Suburban Chapel, Inc., a Pennsylvania corporation (each, a New Borrower and together, the New Borrowers), and the other Credit Parties (as defined below), in favor of the Lenders (as defined below) and Bank of America, N.A., a national banking association organized and existing under the laws of the United States of America, as Administrative Agent for the benefit of the Lenders (in such capacity, the Administrative Agent), as Collateral Agent for the benefit of the Secured Parties (in such capacity, the Collateral Agent), as Swing Line Lender and as L/C Issuer.
BACKGROUND
A. Pursuant to that certain Third Amended and Restated Credit Agreement, entered into on January 19, 2012, as amended, 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 thereto (together with the Operating Company, the Existing Borrowers and collectively with the New Borrowers, the Borrowers and together with the General Partner and the Partnership, collectively the Credit Parties), the lenders party thereto (the Lenders), the Administrative Agent, Raymond James Bank, FSB, as Syndication Agent, and Capital One, National Association, as Documentation Agent (as so amended, and as amended, restated, modified or otherwise supplemented from time to time, the Credit Agreement), the Lenders agreed, inter alia, to extend to the Borrowers a single revolving credit facility in the maximum aggregate principal amount of One Hundred Thirty Million Dollars ($140,000,000).
B. Pursuant to the Credit Agreement and the Credit Documents, the Existing Borrowers have granted to the Collateral Agent, for the benefit of the Secured Parties, a lien on and security interest in substantially all of their property and assets to secure all Secured Obligations (as defined in each Security Document).
C. Contemporaneously herewith, certain of the Existing Borrowers have entered into (a) an Asset Sale Agreement dated as of April 2, 2014 for a purchase price not to exceed $53,055,000 (subject to certain adjustments set forth therein) together with assumption of certain liabilities set forth therein, and (b) an Asset Sale Agreement dated as of April 2, 2014 for a purchase price not to exceed $745,000 (subject to certain adjustments set forth therein), together with assumption of certain liabilities set forth therein (together, the Acquisition Agreements), to acquire certain cemeteries, funeral homes (including acquisition of the New Borrowers), crematory businesses and various related assets in Florida, North Carolina, Virginia and Pennsylvania (the Acquired Assets).
D. The New Borrowers will benefit, directly and indirectly, from credit and other financial accommodations extended by the Lenders to the Borrowers.
Now, therefore, for value received, and in consideration of Loans made or to be made, and other credit accommodations given or to be given, to the Borrowers by the Lenders from time to time, the New Borrowers and each other Credit Party hereby agree as follows:
1. 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. Each Borrower represents and warrants that the purchase of the Acquired Assets pursuant to the Acquisition Agreements, including, without limitation, the making of any Loans relating thereto, conforms, or will conform at the time of the related acquisition, in all respects with all the requirements of the Credit Agreement (other than any requirements waived in writing by Required Lenders).
3. Each New Borrower acknowledges and agrees that it hereby agrees to join as a Borrower under the Credit Agreement, and to join, in the same capacity as the Existing Borrowers, in the Notes, the Security Agreement, the Pledge Agreement, and the other Security Documents and Credit Documents.
4. This Joinder is effective upon the date of each New Borrowers execution and delivery hereof to the Administrative Agent and upon such execution and delivery, all references in: (a) the Credit Agreement and other Credit Documents to the terms Borrower or Borrowers; (b) the Pledge Agreement to the terms Pledgor or Pledgors; and (c) the Security Agreement to the terms Debtor and Debtors, shall be deemed to include the New Borrowers. Without limiting the generality of the foregoing, (i) the New Borrowers hereby affirm all grants (including the grant of a lien and security interest), covenants, agreements, representations, and warranties (except to the extent expressly relating to an earlier date) contained in the Credit Agreement, the Pledge Agreement, and the Security Agreement, as amended hereby, each and all of which are and shall remain applicable to the Collateral from time to time owned by the New Borrowers or in which the New Borrowers from time to time have any rights and (ii) in order to secure payment of the Secured Obligations, whether now existing or hereafter arising, the New Borrowers do hereby grant to Collateral Agent, for the benefit of the Secured Parties, and hereby agree that Collateral Agent has and shall continue to have, for the benefit of the Secured Parties, a Lien on, among other things, substantially all of the New Borrowers property and assets (except for the New Borrowers lands in licensed cemeteries for which the applicable Governmental Authority has not given approval for the granting of a Lien thereon pursuant to applicable law), constituting Collateral of the New Borrowers, and each and all granting clauses in the Credit Documents are incorporated herein by reference with the same force and effect as if set forth herein in their entirety except that all references in such clauses to the Borrowers, the Pledgors, the Debtors or any of them shall be deemed to include references to the New Borrowers. Nothing contained herein shall in any manner impair the priority of the liens and security interests heretofore granted in favor of Collateral Agent under the Security Agreement, the Pledge Agreement or any other Credit Document.
5. The information set forth on Schedule A hereto, shall be added to various Annexes to the Pledge Agreement and the Security Agreement described thereon, and such Annexes are amended hereby and thereby.
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6. In connection with the execution and delivery of this Joinder, the Existing Borrowers and the New Borrowers have delivered or will deliver to the Administrative Agent or the Collateral Agent, as appropriate, such deliveries as are required by the Credit Agreement, including, without limitation: (a) certificates representing the Equity Interest in the New Borrowers, together with assignments in blank (or such other similar deliveries as may be appropriate in the reasonable discretion of the Administrative Agent); (b) allonges joining the New Borrowers to each Note; (c) a master secretarys certificate attaching the organizational documents and authorizing resolutions for the New Borrowers and any other applicable Credit Party; (d) mortgages, deeds of trust and other real estate related documentation; and (e) legal opinions with respect to the above deliveries.
7. The New Borrowers represent and warrant that upon each becoming a Borrower, the New Borrowers are in compliance in all material respects, with all representations and warranties, are and shall be bound by and agrees to comply with the covenants contained in the Credit Agreement and other Credit Documents and are not in default in the performance or observation of any covenant or condition under the Credit Agreement or any Credit Document.
8. The New Borrowers hereby acknowledge and agree that the Secured Obligations are secured by all of their respective assets constituting Collateral according to, and otherwise on and subject to, the terms and conditions of the Security Agreement, the Pledge Agreement and the other Credit Documents to the same extent and with the same force and effect as if the New Borrower had originally been one of the Borrowers under the Credit Agreement and had originally executed the same as such a Borrower.
9. Except as specifically modified hereby, all of the terms and conditions of the Credit Agreement and other Credit Documents shall remain unchanged and in full force and effect.
10. The New Borrowers agree to execute and deliver such further instruments and documents and do such further acts and things as the Administrative Agent, or the Collateral Agent, may reasonably deem necessary or proper to carry out more effectively the purposes of this Joinder and the Credit Documents.
11. No reference to this Joinder need be made in the Credit Agreement or in any other Credit Document, and any reference to any Credit Document in any Credit Document shall be deemed a reference to the Credit Documents as modified hereby, and to include this Joinder, allonges and all other documents executed and delivered in connection herewith.
12. This Joinder shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
13. This Joinder 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.
14. This Joinder may be executed by facsimile or scanned e-mail attachment and 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.
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15. The New Borrowers hereby waive acceptance of this Joinder by any and all of the Secured Parties.
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This Joinder to Amended and Restated Credit Agreement and Credit Documents is hereby delivered, acknowledged and agreed to as of the date first above written.
New Borrowers | ||
Kirk & Nice, Inc., a Pennsylvania corporation | ||
By: | /s/ Frank Milles | |
Name: | Frank Milles | |
Title: | Vice President | |
Kirk & Nice Suburban Chapel, Inc., a Pennsylvania corporation | ||
By: | /s/ Frank Milles | |
Name: | Frank Milles | |
Title: | Vice President |
Joinder
New Borrower Signature Page
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Credit Parties | ||||
STONEMOR GP LLC | ||||
By: | /s/ Timothy K. Yost | |||
Name: | Timothy K. Yost | |||
Title: | Chief Financial Officer | |||
STONEMOR PARTNERS L.P. | ||||
By: | STONEMOR GP LLC | |||
its General Partner | ||||
By: | /s/ Timothy K. Yost | |||
Name: | Timothy K. Yost | |||
Title: | Chief Financial Officer | |||
STONEMOR OPERATING LLC | ||||
By: | /s/ Timothy K. Yost | |||
Name: | Timothy K. Yost | |||
Title: | Chief Financial Officer |
Joinder
Credit Parties Signature Page
S-2
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
Beth Israel Cemetery Association of Woodbridge, New Jersey
Birchlawn Burial Park Subsidiary, Inc.
Bronswood Cemetery, Inc.
Cedar Hill Funeral Home, Inc.
Cemetery Investments Subsidiary, Inc.
Chapel Hill Associates, Inc.
Chapel Hill Funeral Home, Inc.
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.
Covington Memorial Funeral Home, Inc.
Covington Memorial Gardens, Inc.
Crown Hill Cemetery Association
Eloise B. Kyper Funeral Home, Inc.
Forest Lawn Gardens, Inc.Forest Lawn Memorial Chapel, Inc.
Forest Lawn Memory Gardens, Inc.
Glen Haven Memorial Park Subsidiary, Inc.
Henry Memorial Park Subsidiary, Inc.
Highland Memorial Park, Inc.
Hillside Memorial Park Association, Inc.
Kingwood Memorial Park Association
KIRIS Subsidiary, Inc.
Lakewood/Hamilton Cemetery Subsidiary, Inc.
Lakewood Memory Gardens South Subsidiary, Inc.
Laurel Hill Memorial Park Subsidiary, Inc.
Laurelwood Holding Company
Legacy Estates, Inc.
Locustwood Cemetery Association
Loewen [Virginia] Subsidiary, Inc.
Lorraine Park Cemetery Subsidiary, Inc.
Modern Park Development Subsidiary, Inc.
Northlawn Memorial Gardens
Oak Hill Cemetery Subsidiary, Inc.
By: | /s/ Frank Milles |
Frank Milles, as Vice President for each of the above-named Credit Parties, except as President of Bethel Cemetery Association
Joinder
Additional Credit Parties Signature Page
S-3
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 Gardens.Com, Inc.
Prince George Cemetery Corporation
PVD Acquisitions Subsidiary, Inc.
Rockbridge Memorial Gardens Subsidiary Company
Rose Lawn Cemeteries Subsidiary, Incorporated
Roselawn Development Subsidiary Corporation
Russell 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.
Stephen R. Haky Funeral Home, Inc.
Stitham Subsidiary, Incorporated
StoneMor Alabama Subsidiary, Inc.
StoneMor California, Inc.
StoneMor California Subsidiary, Inc.
StoneMor Georgia Subsidiary, Inc.
StoneMor Hawaii Subsidiary, Inc.
StoneMor North Carolina Funeral Services, Inc.
StoneMor Ohio Subsidiary, Inc.
StoneMor Puerto Rico Cemetery and Funeral, Inc.
StoneMor Tennessee Subsidiary, Inc.
StoneMor Washington, Inc.
Sunset Memorial Gardens Subsidiary, Inc.
Sunset Memorial Park Subsidiary, Inc.
Temple Hill Subsidiary Corporation
The Valhalla Cemetery Subsidiary Corporation
Virginia Memorial Service Subsidiary Corporation
W N C Subsidiary, Inc.
Wicomico Memorial Parks Subsidiary, Inc.
Willowbrook Management Corp.
By: | /s/ Frank Milles |
Frank Milles, as Vice President for each of the above-named Credit Parties
Joinder
Additional Credit Parties Signature Page
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Alleghany Memorial Park LLC
Altavista Memorial Park LLC
Birchlawn Burial Park LLC
Cemetery Investments LLC
Cemetery Management Services, L.L.C.
Cemetery Management Services of Ohio, L.L.C.
CMS West LLC
CMS West Subsidiary LLC
Columbia Memorial Park LLC
Cornerstone Family Services of West Virginia LLC
Cornerstone Funeral and Cremation Services LLC
Cornerstone Trust Management Services LLC
Covenant Acquisition LLC
Glen Haven Memorial Park LLC
Henlopen Memorial Park LLC
Henlopen Memorial Park Subsidiary LLC
Henry Memorial Park LLC
Juniata Memorial Park LLC
KIRIS LLC
Lakewood/Hamilton Cemetery LLC
Lakewood Memory Gardens South LLC
Laurel Hill Memorial Park LLC
Loewen [Virginia] LLC
Lorraine Park 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
Russell Memorial Cemetery LLC
Shenandoah Memorial Park LLC
Southern Memorial Sales LLC
Springhill Memory Gardens LLC
Star City Memorial Sales LLC
Stitham LLC
By: | /s/ Frank Milles |
Frank Milles, as Vice President for each of the above-named Credit Parties
Joinder
Additional Credit Parties Signature Page
S-5
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/ Frank Milles |
Frank Milles, as Vice President for each of the above-named Credit Parties
Joinder
Additional Credit Parties Signature Page
S-6
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/ Frank Milles |
Frank Milles, as Vice President for each of the above-named Credit Parties
Joinder
Additional Credit Parties Signature Page
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ACKNOWLEDGED BY: | ||
BANK OF AMERICA, N.A., as Collateral Agent | ||
By: | /s/ Christine Trotter | |
Name: | Christine Trotter | |
Title: | Assistant Vice President |