UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 19, 2014

StoneMor Partners L.P.
(Exact name of registrant as specified in its charter)

 
					
Delaware	 	001-32270	 	80-0103159	
(State or other jurisdiction
of incorporation)	 	(Commission
File Number)	 	(IRS Employer
Identification No.)	
311 Veterans Highway, Suite B, Levittown, PA 19056
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code (215) 826-2800
Not Applicable
(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)	
 
¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)	
 
¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))	
 
¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))	

 

Item 1.01	Entry into a Material Definitive Agreement.	
On December 19, 2014, StoneMor Partners L.P. (the “Partnership”) entered into the Fourth Amended and Restated Credit Agreement (the “Credit Agreement”) among StoneMor Operating LLC as a Borrower (the “Operating Company”), each of the subsidiaries of the Operating Company as additional Borrowers (together with the Operating Company, the “Borrowers”), StoneMor GP LLC, the general partner of the Partnership, and the Partnership as Guarantors, the Lenders identified therein, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer. In addition, on the same date, the Borrowers, the Guarantors and Bank of America, N.A. entered into the Second Amended and Restated Security Agreement (the “Security Agreement”) and the Second Amended and Restated Pledge Agreement (the “Pledge Agreement”, and together with the Credit Agreement and the Security Agreement, the “New Agreements”).
The New Agreements replaced the Partnership’s Third Amended and Restated Credit Agreement, dated January 19, 2012, as amended (the “Prior Credit Agreement”), Amended and Restated Security Agreement, dated April 29, 2011, as amended, and Amended and Restated Pledge Agreement, dated April 29, 2011, as amended (collectively, the “Prior Agreements”). The primary purposes of entering into the New Agreements were to consolidate the amendments to the Prior Agreements into the New Agreements, increase the aggregate principal amount of permitted borrowings under the Credit Agreement and modify the mechanics of the revolving credit facility to provide for Acquisition Draws and Working Capital Draws.
The Credit Agreement provides for a single revolving credit facility of $180 million (the “Credit Facility”) maturing on December 19, 2019. Additionally the Credit Agreement provides for an uncommitted ability to increase the Credit Facility by an additional $70 million. The summary of the material terms of the New Agreements is set forth below. Capitalized terms which are not defined in the following description shall have the meaning assigned to such terms in the New Agreements.
The interest rates on the Credit Facility are calculated as follows:
 
 	•	 	For Eurodollar Rate Loans, the outstanding principal amount thereof bears interest for each Interest Period at a rate per annum equal to the Eurodollar Rate for the Interest Period plus the Applicable Rate for Eurodollar Rate Loans; and	
 
 	•	 	For Base Rate Loans and Swing Line Loans, the outstanding principal amount thereof bears interest from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans.	
In addition, the Borrowers must pay a Letter of Credit Fee for each Letter of Credit equal to the Applicable Rate for Letter of Credit Fees times the daily amount to be drawn under such Letter of Credit. The Applicable Rate is determined based on the Consolidated Leverage Ratio of the Partnership and its Subsidiaries, and ranges from 2.25% to 4.00% for Eurodollar Rate Loans and Letter of Credit Fees, and 1.25% to 3.00% for Base Rate Loans. The current Applicable Rate for each of: (i) Eurodollar Rate Loans and Letter of Credit Fees is 3.25% and (ii) Base Rate Loans is 2.25% based on the current Consolidated Leverage Ratio. The Credit Agreement also requires the Borrowers to pay a quarterly unused commitment fee, which is calculated based on the amount by which the commitments under the Credit Agreement exceed the usage of such commitments.
The Credit Agreement contains financial covenants, pursuant to which the Borrowers and the Guarantors will not permit:
 
 	•	 	Consolidated EBITDA for any Measurement Period to be less than the sum of (i) $80 million plus (ii) 80% of the aggregate of all Consolidated EBITDA for each Permitted Acquisition completed after June 30, 2014;	
 
 	•	 	the Consolidated Debt Service Coverage Ratio to be less than 2.50 to 1.0 for any Measurement Period; and	
 
 	•	 	the Consolidated Leverage Ratio to be greater than 4.00 to 1.0 for any period.	
 
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The covenants include, among other limitations, limitations on: (i) liens, (ii) the creation or incurrence of debt, (iii) investments and acquisitions, (iv) dispositions of property, (v) dividends, distributions and redemptions, and (vi) transactions with Affiliates.
The Credit Agreement provides that two types of draws are permitted with respect to the Credit Facility: Acquisition Draws and Working Capital Draws. The proceeds of Acquisition Draws may be utilized by the Borrowers to finance Permitted Acquisitions, the purchase and construction of mausoleums and related costs or the net amount of Merchandise Trust deposits made after the Closing Date under the Credit Agreement, irrespective of whether such amounts relate to new or existing cemeteries or funeral homes. The proceeds of Working Capital Draws, Letters of Credit and Swing Line Loans may be utilized by the Borrowers to finance working capital requirements, Capital Expenditures and for other general corporate purposes. The borrowing of Working Capital Advances is subject to a borrowing formula of 85% of Eligible Receivables.
Each Acquisition Draw is subject to equal quarterly amortization of the principal amount of such draw, with annual principal payments comprised of ten percent (10%) of the related draw amount, commencing on the second anniversary of such draw, with the remaining principal due on the Maturity Date, subject to certain mandatory prepayment requirements. Working Capital Draws are due on the Maturity Date, subject to certain mandatory prepayment requirements.
The Borrowers’ obligations under the Credit Agreement are guaranteed by both the Partnership and StoneMor GP LLC.
Pursuant to the Security Agreement and the Pledge Agreement, the Borrowers’ obligations under the Credit Facility are secured by a first priority lien and security interest in substantially all of the Borrowers’ assets, whether then owned or thereafter acquired, excluding: (i) trust accounts, certain proceeds required by law to be placed into such trust accounts and funds held in trust accounts; (ii) StoneMor GP LLC’s interest in the Partnership, the incentive distribution rights under the Partnership’s partnership agreement and the deposit accounts of StoneMor GP LLC into which distributions are received; (iii) Equipment subject to a purchase money security interest or equipment lease permitted under the Credit Agreement and certain other contract rights under which contractual, legal or other restrictions on assignment would prohibit the creation of a security interest or such creation of a security interest would result in a default thereunder.
Events of Default under the Credit Agreement include, but are not limited to, the following:
 
 	•	 	non-payment of any principal, interest or other amounts due under the Credit Agreement or any other Credit Document;	
 
 	•	 	failure to observe or perform any covenants related to: (i) the delivery of financial statements, compliance certificates, reports and other information; (ii) providing prompt notice of Defaults and other events; (iii) the preservation of the legal existence and good standing of each Borrower and Guarantor; (iv) the ability of the Administrative Agent and each Lender to visit and inspect properties, examine books and records, and discuss financial and business affairs with directors, officers and independent public accountants of each Borrower and Guarantor; (v) restrictions on the use of proceeds; (vi) guarantees by new Subsidiaries; (vii) the maintenance of corporate formalities for each Borrower and Guarantor; (viii) the maintenance of Trust Accounts and Trust Funds; and (ix) any of the negative covenants or financial covenants contained in the Credit Agreement;	
 
 	•	 	failure to observe or perform any other covenant, if uncured 30 days after notice thereof is provided by the Administrative Agent or Lenders;	
 
 	•	 	any default under any other Indebtedness of the Borrowers or Guarantors;	
 
 	•	 	any insolvency proceedings by a Borrower or Guarantor;	
 
 	•	 	the insolvency of any Borrower or Guarantor, or a writ of attachment or execution or similar process issuing or being levied against any material part of the property of a Borrower or Guarantor; and	
 
 	•	 	any Change in Control.	
 
2

The New Agreements also include various representations, warranties and covenants and indemnification provisions customary for transactions of this nature.
Some of the Lenders and their respective affiliates have acted as lenders under the Prior Credit Agreement and engaged in, and may in the future engage in, investment banking and other commercial dealings with the Partnership and its affiliates for which they have received, and will receive, customary fees and expenses.
The foregoing summary of the New Agreements is not complete and is qualified in its entirety by reference to the New Agreements, copies of which are filed as Exhibits 10.1, 10.2 and 10.3 hereto and are incorporated by reference herein.
 
Item 1.02	Termination of a Material Definitive Agreement.	
On December 19, 2014, the Partnership entered into the New Agreements that replaced the Prior Agreements and effectively terminated the Prior Agreements, as described in Item 1.01 above, which description is incorporated in its entirety by reference herein.
 
Item 2.03	Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.	
On December 19, 2014, the Partnership entered into the Credit Agreement. The terms of the Credit Agreement are described in Item 1.01 of this Current Report on Form 8-K, which description is incorporated in its entirety by reference herein.
 
Item 9.01	Financial Statements and Exhibits.	
(d) Exhibits:

Exhibit
No.	  	Description	
		
10.1	  	Fourth Amended and Restated Credit Agreement, dated December 19, 2014, among StoneMor Operating LLC, each of its Subsidiaries, StoneMor GP LLC, StoneMor Partners L.P., the Lenders party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.	
		
10.2	  	Second Amended and Restated Security Agreement, dated December 19, 2014, among StoneMor GP LLC, StoneMor Partners L.P., StoneMor Operating LLC, the Subsidiary Debtors listed therein and Bank of America, N.A. as Collateral Agent.	
		
10.3	  	Second Amended and Restated Pledge Agreement, December 19, 2014, among StoneMor GP LLC, StoneMor Partners L.P., StoneMor Operating LLC, the Subsidiary Pledgors listed therein and Bank of America, N.A. as administrative and collateral agent.	
 
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

STONEMOR PARTNERS L.P.	
		
By:	 	StoneMor GP LLC	
	 	its general partner	
		
By:	 	/s/ Timothy K. Yost	
Name:	 	Timothy K. Yost	
Title:	 	Chief Financial Officer	
Date: December 23, 2014

EXHIBIT INDEX

Exhibit
No.	  	Description	
		
10.1	  	Fourth Amended and Restated Credit Agreement, dated December 19, 2014, among StoneMor Operating LLC, each of its Subsidiaries, StoneMor GP LLC, StoneMor Partners L.P., the Lenders party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.	
		
10.2	  	Second Amended and Restated Security Agreement, dated December 19, 2014, among StoneMor GP LLC, StoneMor Partners L.P., StoneMor Operating LLC, the Subsidiary Debtors listed therein and Bank of America, N.A. as Collateral Agent.	
		
10.3	  	Second Amended and Restated Pledge Agreement, December 19, 2014, among StoneMor GP LLC, StoneMor Partners L.P., StoneMor Operating LLC, the Subsidiary Pledgors listed therein and Bank of America, N.A. as administrative and collateral agent.	

Exhibit 10.1
EXECUTION VERSION

 
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated December 19, 2014
among
STONEMOR OPERATING LLC,
as a Borrower,
various subsidiaries thereof, as additional Borrowers,
STONEMOR PARTNERS L.P. and STONEMOR GP LLC,
as Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and
L/C Issuer,
The Other Lenders Party Hereto,
CAPITAL ONE, NATIONAL ASSOCIATION and TD BANK, N.A.,
as Co-Syndication Agents,
RAYMOND JAMES BANK, N.A,
as Documentation Agent,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, CAPITAL ONE,
NATIONAL ASSOCIATION and TD SECURITIES (USA) LLC
as Joint Lead Arrangers
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Sole Book Manager

 

TABLE OF CONTENTS

Section	  	 	  	Page	
			
	  	ARTICLE I	  		
	  	DEFINITIONS AND ACCOUNTING TERMS	  		
			
1.01	  	Defined Terms	  	2	
1.02	  	Other Interpretive Provisions	  	39	
1.03	  	Accounting Terms	  	40	
1.04	  	Rounding	  	41	
1.05	  	Times of Day	  	41	
1.06	  	Letter of Credit Amounts	  	41	
1.07	  	Currency Equivalents Generally	  	41	
1.08	  	UCC Terms	  	42	
			
	  	ARTICLE II	  		
	  	THE COMMITMENTS AND CREDIT EXTENSIONS	  		
			
2.01	  	The Loans	  	42	
2.02	  	Borrowings, Conversions and Continuations of Loans	  	42	
2.03	  	Letters of Credit	  	44	
2.04	  	Swing Line Loans	  	53	
2.05	  	Prepayments	  	55	
2.06	  	Termination or Reduction of Commitments	  	58	
2.07	  	Repayment of Loans	  	59	
2.08	  	Interest	  	60	
2.09	  	Fees	  	60	
2.10	  	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate	  	61	
2.11	  	Evidence of Debt	  	62	
2.12	  	Payments Generally; Administrative Agent’s Clawback	  	62	
2.13	  	Sharing of Payments by Lenders	  	64	
2.14	  	Cash Collateral	  	65	
2.15	  	Defaulting Lenders	  	66	
2.16	  	Borrower Funds Administrator	  	69	
2.17	  	Increase in Commitments	  	70	
			
	  	ARTICLE III	  		
	  	TAXES, YIELD PROTECTION AND ILLEGALITY	  		
			
3.01	  	Taxes	  	71	
3.02	  	Illegality	  	76	
3.03	  	Inability to Determine Rates	  	76	
3.04	  	Increased Costs; Reserves on Eurodollar Rate Loans	  	77	
3.05	  	Compensation for Losses	  	79	
3.06	  	Mitigation Obligations; Replacement of Lenders	  	79	
3.07	  	Survival	  	80	
 
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	  	ARTICLE IV	  		
	  	CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	  		
			
4.01	  	Conditions of Initial Credit Extension	  	80	
4.02	  	Conditions to all Credit Extensions	  	83	
			
	  	ARTICLE V	  		
	  	REPRESENTATIONS AND WARRANTIES	  		
			
5.01	  	Existence, Qualification and Power	  	84	
5.02	  	Authorization; No Contravention	  	85	
5.03	  	Governmental Authorization; Other Consents	  	85	
5.04	  	Binding Effect	  	86	
5.05	  	Financial Statements; No Material Adverse Effect	  	86	
5.06	  	Litigation	  	86	
5.07	  	No Default	  	87	
5.08	  	Ownership of Property; Liens; Investments	  	87	
5.09	  	Environmental Compliance	  	87	
5.10	  	Insurance	  	88	
5.11	  	Taxes	  	88	
5.12	  	ERISA Compliance	  	89	
5.13	  	Subsidiaries; Equity Interests; Credit Parties	  	90	
5.14	  	Margin Regulations; Investment Company Act	  	91	
5.15	  	Disclosure	  	91	
5.16	  	Compliance with Laws	  	91	
5.17	  	Intellectual Property; Licenses, Etc.	  	92	
5.18	  	Solvency	  	92	
5.19	  	Casualty, Etc.	  	92	
5.20	  	Labor Matters	  	92	
5.21	  	Collateral Representations	  	92	
5.22	  	Capitalization	  	93	
5.23	  	Tax Shelter Regulations	  	93	
5.24	  	Common Enterprise	  	94	
5.25	  	Compliance with Cemetery Laws	  	94	
5.26	  	Foreign Assets Control Regulations, etc.	  	95	
5.27	  	OFAC	  	95	
5.28	  	Anti-Corruption Laws	  	95	
			
	  	ARTICLE VI	  		
	  	AFFIRMATIVE COVENANTS	  		
			
6.01	  	Financial Statements	  	95	
6.02	  	Certificates; Other Information	  	96	
6.03	  	Notices	  	99	
6.04	  	Payment of Obligations	  	100	
6.05	  	Preservation of Existence, Etc.	  	101	
6.06	  	Maintenance of Properties	  	101	
 
ii

							
6.07	  	Maintenance of Insurance	  	 	101	  	
6.08	  	Compliance with Laws	  	 	102	  	
6.09	  	Books and Records	  	 	102	  	
6.10	  	Inspection Rights	  	 	102	  	
6.11	  	Use of Proceeds	  	 	102	  	
6.12	  	Covenant to Guarantee Obligations and Give Security	  	 	103	  	
6.13	  	Compliance with Environmental Laws	  	 	105	  	
6.14	  	Preparation of Environmental Reports	  	 	105	  	
6.15	  	Further Assurances	  	 	106	  	
6.16	  	Compliance with Terms of Leaseholds	  	 	106	  	
6.17	  	Material Contracts	  	 	106	  	
6.18	  	Maintenance of Company Separateness	  	 	107	  	
6.19	  	Maintenance of Trust Funds and Trust Accounts	  	 	107	  	
6.20	  	Amendment to High Yield Document Covenants	  	 	107	  	
6.21	  	Anti-Corruption Laws	  	 	107	  	
			
	  	ARTICLE VII	  				
	  	NEGATIVE COVENANTS	  				
			
7.01	  	Liens	  	 	108	  	
7.02	  	Indebtedness	  	 	109	  	
7.03	  	Investments	  	 	110	  	
7.04	  	Fundamental Changes	  	 	113	  	
7.05	  	Dispositions	  	 	114	  	
7.06	  	Restricted Payments; Equity Issuances	  	 	115	  	
7.07	  	Change in Nature of Business	  	 	116	  	
7.08	  	Transactions with Affiliates	  	 	116	  	
7.09	  	Burdensome Agreements	  	 	116	  	
7.10	  	Use of Proceeds	  	 	116	  	
7.11	  	Financial Covenants	  	 	117	  	
7.12	  	Amendment of Partnership Units and Organizational Documents	  	 	117	  	
7.13	  	Accounting Changes	  	 	117	  	
7.14	  	Prepayments, Etc. of Indebtedness	  	 	117	  	
7.15	  	Amendment of Indebtedness	  	 	118	  	
7.16	  	Holding Company	  	 	118	  	
7.17	  	Trust Funds	  	 	119	  	
7.18	  	Anti-Corruption Laws	  	 	119	  	
			
	  	ARTICLE VIII	  				
	  	EVENTS OF DEFAULT AND REMEDIES	  				
			
8.01	  	Events of Default	  	 	119	  	
8.02	  	Remedies upon Event of Default	  	 	121	  	
8.03	  	Application of Funds	  	 	122	  	
 
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	  	ARTICLE IX	  		
	  	ADMINISTRATIVE AGENT	  		
			
9.01	  	Appointment and Authority	  	123	
9.02	  	Rights as a Lender	  	124	
9.03	  	Exculpatory Provisions	  	124	
9.04	  	Reliance by Administrative Agent	  	125	
9.05	  	Delegation of Duties	  	125	
9.06	  	Resignation of Administrative Agent	  	126	
9.07	  	Non-Reliance on Administrative Agent and Other Lenders	  	127	
9.08	  	No Other Duties, Etc.	  	127	
9.09	  	Administrative Agent May File Proofs of Claim	  	128	
9.10	  	Collateral and Guaranty Matters	  	128	
9.11	  	Delivery of Security Documents by Collateral Agent	  	129	
9.12	  	Exercise of Powers as Collateral Agent	  	129	
			
	  	ARTICLE X	  		
	  	CONTINUING GUARANTY	  		
10.01	  	Guaranty	  	130	
10.02	  	Rights of Lenders	  	130	
10.03	  	Certain Waivers	  	131	
10.04	  	Obligations Independent	  	131	
10.05	  	Subrogation	  	131	
10.06	  	Termination; Reinstatement	  	132	
10.07	  	Subordination	  	132	
10.08	  	Stay of Acceleration	  	132	
10.09	  	Condition of Borrowers	  	132	
10.10	  	Acknowledgement of Joint and Several Liability	  	133	
10.11	  	Keepwell	  	134	
			
	  	ARTICLE XI	  		
	  	MISCELLANEOUS	  		
			
11.01	  	Amendments, Etc.	  	135	
11.02	  	Notices; Effectiveness; Electronic Communications	  	137	
11.03	  	No Waiver; Cumulative Remedies	  	139	
11.04	  	Expenses; Indemnity; Damage Waiver	  	139	
11.05	  	Payments Set Aside	  	141	
11.06	  	Successors and Assigns	  	142	
11.07	  	Treatment of Certain Information; Confidentiality	  	146	
11.08	  	Right of Setoff	  	148	
11.09	  	Interest Rate Limitation	  	148	
11.10	  	Counterparts; Integration; Effectiveness	  	148	
11.11	  	Survival of Representations and Warranties	  	149	
11.12	  	Severability	  	149	
11.13	  	Replacement of Lenders	  	149	
 
iv

							
11.14	  	Governing Law; Jurisdiction; Etc.	  	 	150	  	
11.15	  	Waiver of Jury Trial	  	 	151	  	
11.16	  	No Advisory or Fiduciary Responsibility	  	 	151	  	
11.17	  	Electronic Execution of Assignments and Certain Other Documents	  	 	152	  	
11.18	  	USA PATRIOT Act Notice	  	 	152	  	
11.19	  	Effect on Existing Credit Agreement	  	 	153	  	
		
SIGNATURES	  	 	S-1	  	
 
v

SCHEDULES

2.01	  	Commitments and Applicable Percentages	
5.08(c)	  	Owned Real Property	
5.08(d)(i)	  	Leased Real Property (Lessee)	
5.08(d)(ii)	  	Leased Real Property (Lessor)	
5.08(e)	  	Existing Investments	
5.09	  	Environmental Matters	
5.12(d)	  	Pension Plans and Multiemployer Plans	
5.13	  	Subsidiaries and Other Equity Investments; Credit Parties	
5.17	  	Intellectual Property Matters	
5.21(b)	  	Deposit Accounts and Security Accounts	
5.21(c)	  	Commercial Tort Claims	
5.21(d)	  	Pledged Equity	
5.21(e)	  	Pledged Notes	
11.02	  	Administrative Agent’s Office, Certain Addresses for Notices	
	
EXHIBITS	
		
	  	Form of	
		
A	  	Committed Loan Notice	
B	  	Swing Line Loan Notice	
C	  	Note	
D	  	Compliance Certificate	
E-1	  	Assignment and Assumption	
E-2	  	Administrative Questionnaire	
F	  	Mortgage	
G	  	Borrowing Base Certificate	
H	  	Tax Compliance Certificates	
 
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FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (“ Agreement ”) is entered into on December 19, 2014, 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 ”), each lender from time to time party hereto (collectively, the “ Lenders ” and individually, a “ Lender ”), BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, CAPITAL ONE, NATIONAL ASSOCIATION and TD BANK, N.A., as Co-Syndication Agents, and RAYMOND JAMES BANK, N.A., as Documentation Agent.
PRELIMINARY STATEMENTS:
A. The Borrowers, the General Partner and the Partnership are parties to that certain Third Amended and Restated Credit Agreement, dated January 19, 2012, by and among the Lenders and Sun National Bank (the “ Existing Lenders ”), the Administrative Agent and certain Credit Parties party thereto, as amended by: (a) that certain First Amendment to Third Amended and Restated Credit Agreement, dated February 19, 2013; (b) that certain Second Amendment to Third Amended and Restated Credit Agreement, dated May 8, 2013; that certain Third Amendment to Third Amended and Restated Credit Agreement, dated June 18, 2013; and (d) that certain Fourth Amendment to Third Amended and Restated Credit Agreement, dated May 22, 2014 and various joinders thereto (as amended, the “ Existing Credit Agreement ”), which amended and rested in its entirety that certain Second Amended and Restated Credit Agreement, dated April 29, 2011, by and among the various lending institutions party thereto, the Administrative Agent and certain Credit Parties party thereto, as amended (as amended, the “ Prior Credit Agreement ”), which amended and restated in its entirety that certain Amended and Restated Credit Agreement, dated August 15, 2007, by and among the various lending institutions party thereto, the Administrative Agent and certain Credit Parties party thereto, as amended (as amended, the “ Second Credit Agreement ”) which amended and restated in its entirety that certain Credit Agreement, dated September 20, 2004, by and among the various lending institutions party thereto, the Administrative Agent and certain Credit Parties party thereto, as amended (as amended, the “ Original Credit Agreement ”).
B. Pursuant to the Existing Credit Agreement the Existing Lenders agreed, inter alia, to extend to the Borrowers a revolving credit facility in the maximum aggregate principal amount of One Hundred Forty Million Dollars ($140,000,000).
C. The Borrowers have requested that the Administrative Agent and the Lenders amend and restate the Existing Credit Agreement as a single revolving credit facility in the maximum aggregate principal amount of One Hundred Eighty Million Dollars ($180,000,000), extend the term thereof, provide for an uncommitted ability to increase the facility by an additional Seventy Million Dollars ($70,000,000) and make such other modifications as are set forth herein.
 
1

D. The Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to issue letters of credit, in each case, on the terms and subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Existing Credit Agreement is hereby amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms . As used in this Agreement, the following terms shall have the meanings set forth below:
“ Account Receivable ” means an “account”, “tangible chattel paper” or “note”, as defined in the UCC, in favor of a Borrower.
“ Acquired Person ” means (a) any Person in which a Borrower has acquired Equity Interests through a Permitted Acquisition, or (b) any Person that has entered into an Exclusive Management Agreement or Cemetery Management Agreement with a Borrower through a Permitted Acquisition.
“ Acquisition Draw ” means a Revolving Credit Loan made to finance (a) Permitted Acquisitions (including Aggregate Consideration and related transaction costs), (b) the purchase and construction of mausoleums and related costs or (c) the net amount of Merchandise Trust deposits made after the Closing Date, irrespective of whether such amounts relate to new or existing cemeteries or funeral homes (including the refinancing of Working Capital Draws previously used to fund such deposits).
“ Additional Secured Obligations ” means (a) all obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements and (b) all reasonable out-of-pocket costs and expenses incurred in connection with enforcement and collection of the foregoing, including the reasonable fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that Additional Secured Obligations of a Credit Party shall exclude any Excluded Swap Obligations with respect to such Credit Party.
“ Administrative Agent ” means Bank of America in its capacity as administrative agent and as collateral agent, as applicable, under any of the Credit Documents, or any successor administrative agent, appointed in accordance with this Agreement.
 
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“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02 , or such other address or account as the Administrative Agent may from time to time notify the Borrowers and the Lenders.
“ Administrative Questionnaire ” means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.
“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified, and shall include, without limitation, for purposes of Section 7.08 , any Person that directly or indirectly owns more than 10% of the partnership interests or membership interests in the Partnership or General Partner, as applicable, any Senior Manager, or any director or manager of any Credit Party.
“ Aggregate Commitments ” means the Commitments of all the Lenders.
“ Aggregate Consideration ” means, with respect to any Permitted Acquisition, the sum (without duplication) of (a) the fair market value of the Partnership Common Units (based on the average closing trading price of the Partnership Common Units for the 20 trading days immediately prior to the date of such Permitted Acquisition on the stock exchange on which the Partnership Common Units are listed or, if the Partnership Common Units are not so listed, the good faith determination of the senior management of the General Partner) issued (or to be issued) as consideration in connection with such Permitted Acquisition, (b) the aggregate amount of all cash paid (or to be paid) by the Partnership or any of its Subsidiaries as consideration in connection with such Permitted Acquisition (including, without limitation, payment, as consideration, of fees and costs and expenses in connection therewith) and the contingent cash purchase price or other earnout obligations of the Partnership and its Subsidiaries incurred in connection therewith (as determined in good faith by the senior management of the General Partner), (c) the aggregate principal amount of all Indebtedness assumed, incurred and/or issued in connection with such Permitted Acquisition, (d) the fair market value (as determined in good faith by the senior management of the General Partner) of any Preferred Equity issued in connection with such Permitted Acquisition and (e) the fair market value (determined in good faith by senior management of the General Partner) of all other consideration payable in connection with such Permitted Acquisition.
“ Agreement ” means this Fourth Amended and Restated Credit Agreement, as may be amended, modified, or supplemented from time to time.
“ Applicable Percentage ” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time, subject to adjustment as provided in Section 2.15 . If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 , or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments made in accordance with this Agreement. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
 
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“ Applicable Rate ” means the applicable percentage per annum set forth below for Eurodollar Rate Loans, Letter of Credit Fees and Base Rate Loans, as determined by reference to the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate at any time received by the Administrative Agent pursuant to Section 6.02(b) (or, prior to the date of the Administrative Agent’s receipt of the first Compliance Certificate pursuant to Section 6.02(b) , the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b) of the Existing Credit Agreement):

Applicable Rate	
Pricing Level	 	Consolidated Leverage
Ratio	 	Eurodollar Rate Loans
and
Letter of Credit Fees	 	Base Rate
Loans	
1	 	< 1.75:1	 	2.25%	 	1.25%	
2	 	³ 1.75:1 but < 2.50:1	 	2.75%	 	1.75%	
3	 	³ 2.50:1 but < 3.25:1	 	3.25%	 	2.25%	
4	 	³ 3.25:1 but <3.75:1	 	3.75%	 	2.75%	
5	 	³ 3.75:1	 	4.00%	 	3.00%	
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the applicable Start Date; provided , however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 5 above shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered (until the first Business Day after the date which such Compliance Certificate is actually delivered which demonstrates another Pricing Level is applicable). Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b) and (c) .
“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“ Approved Installment Agreement ” means a pre-need installment agreement, in a form approved for use by all applicable Governmental Authorities, and complying with all applicable Laws, between a Borrower and an individual pursuant to which such Borrower has agreed to provide for and sell to such individual cemetery services and/or Cemetery Property.
“ Archdiocese ” means the Archdiocese of Philadelphia, an archdiocese organized and existing under and governed by Canon Law of the Roman Catholic Church and recognized by the Commonwealth of Pennsylvania as a nonprofit religious organization.
“ Archdiocese Closing Date ” means the date on which the term of the Archdiocese Lease commences pursuant to Section 1.4 of the Archdiocese Lease.
 
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“ Archdiocese Holdco ” means Philadelphia Catholic Cemeteries, LLC, a Delaware limited liability company.
“ Archdiocese Lease ” means that certain Lease Agreement, dated as of September 26, 2013, among the Archdiocese and the Operating Company, StoneMor Pennsylvania LLC, StoneMor Pennsylvania Subsidiary LLC and the Partnership (as amended by Amendment No. 1 to Lease Agreement, dated as of March 20, 2014, and Amendment No. 2 to Lease Agreement dated as of May 28, 2014, and as further amended, restated, modified or supplemented from time to time).
“ Archdiocese Management Agreement ” means that certain Management Agreement, dated as of September 26, 2013, among the Archdiocese and the Operating Company, StoneMor Pennsylvania LLC, StoneMor Pennsylvania Subsidiary LLC and the Partnership (as amended by Amendment No. 1 to Management Agreement dated as of May 28, 2014 and as further amended, restated, modified or supplemented from time to time).
“ Archdiocese Transaction ” means the transactions evidenced by the Archdiocese Transaction Documents.
“ Archdiocese Transaction Documents ” means the Archdiocese Lease, the Archdiocese Management Agreement and the various related transaction documents entered into among the Archdiocese and the Operating Company, StoneMor Pennsylvania LLC, StoneMor Pennsylvania Subsidiary LLC and the Partnership (as amended, restated, modified or supplemented from time to time).
“ Arranger ” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, successor to Banc of America Securities LLC, in its capacity as sole lead arranger and sole book manager, together with any successor thereto.
“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
“ Attributable Indebtedness ” means, on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement or instrument were accounted for as a Capitalized Lease and (c) all Synthetic Debt of such Person.
“ Audited Financial Statements ” means the audited consolidated balance sheet of the Partnership and its Subsidiaries for the fiscal year ended December 31, 2013, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Partnership and its Subsidiaries, including the notes thereto.
 
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“ Availability Period ” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Commitments pursuant to Section 2.06 , and (c) the date of termination of the commitment of each Lender to make Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02 .
“ Bank of America ” means Bank of America, N.A. and its successors.
“ Base Rate ” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate,” and (c) the Eurodollar Rate plus 1.00%; and if the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
“ Base Rate Loan ” means a Loan that bears interest based on the Base Rate.
“ Borrower ” and “ Borrowers ” have the meanings specified in the introductory paragraph hereto.
“ Borrower Materials ” has the meaning specified in Section 6.02 .
“ Borrowing ” means a Revolving Credit Borrowing or a Swing Line Borrowing, as the context may require.
“ Borrowing Base ” means at any time, an amount equal to the sum of 85% of aggregate Eligible Receivables.
“ Borrowing Base Certificate ” means a certificate substantially in the form of Exhibit G .
“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a London Banking Day.
“ Calculation Period ” means, as to any Permitted Acquisition or issuance of Future High Yield Notes, the most recent Measurement Period for which a Compliance Certificate is required to have been delivered (as of the date of such acquisition or issuance).
“ Capital Expenditures ” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset (excluding normal replacements and maintenance which are properly charged to current operations).
 
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“ Capitalized Lease Obligations ” means all obligations under Capitalized Leases of any Person, in each case taken at the amount thereof accounted for as liabilities in accordance with GAAP.
“ Capitalized Leases ” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.
“ Cash Collateralize ” means to deposit in a Controlled Account or to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the L/C Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer. “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“ Cash Equivalents ” means any of the following types of Investments, to the extent owned by a Credit Party or any of its Subsidiaries free and clear of all Liens (other than Liens created under any Security Document and any other Permitted Liens):
(a) readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than one year from the date of acquisition thereof; provided that the full faith and credit of the United States of America is pledged in support thereof;
(b) readily marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than one year from the date of acquisition thereof; provided that at the time of acquisition such obligations have the highest rating obtainable from S&P or Moody’s;
(c) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (d)  of this definition and (iii) has combined capital and surplus of at least $250,000,000, in each case with maturities of not more than one year from the date of acquisition thereof;
(d) commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than one year from the date of acquisition thereof;
 
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(e) Investments, classified in accordance with GAAP as current assets of such Credit Party or Subsidiary, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are substantially comprised of Investments of the character, quality and maturity described in clauses (a) , (b) , (c)  and (d)  of this definition; and
(f) other short term investments approved in writing by the Administrative Agent in the exercise of its reasonable discretion.
“ Cash Management Agreement ” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
“ Cash Management Bank ” means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.
“ Cemetery Management Agreement ” an agreement pursuant to which any Borrower agrees to manage/operate and control a funeral home or cemetery of a Controlled Non-Profit.
“ Cemetery Property ” means, at any time as to any Borrower, such Borrower’s interest in its real or personal property of the type sold or transferred pursuant to Approved Installment Agreements which property (a) has not, at such time, been sold or transferred to, and (b) is not under contract to be sold or transferred to, any other Person.
“ CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, and the regulations promulgated and rulings issued thereunder.
“ CERCLIS ” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.
“ Certificate of Indebtedness ” means an agreement delivered to a Borrower from a non-profit cemetery which evidences an enforceable obligation to pay money together with a right to vote in connection with all shareholder decisions.
“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
 
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“ Change of Control ” means an event or series of events by which:
(a) any two of the individuals acting as chairman, chief executive officer, chief operating officer or chief financial officer of the General Partner on the Closing Date shall cease to hold such positions (unless replaced by individuals reasonably satisfactory to the Required Lenders within 90 days after any such individual ceases to hold such position); or
(b) any Person or group of Persons, which do not, on the Closing Date, hold Equity Interests in the General Partner directly or indirectly, thereafter obtain beneficial ownership or voting control of thirty-three percent (33%) or more of the Equity Interests in the Partnership or the General Partner (other than one or more Affiliates of any Person or group of Persons that hold Equity Interests in the General Partner directly or indirectly as of the Closing Date); or
(c) the General Partner ceases to act as the sole general partner of the Partnership; or
(d) the Partnership ceases to own 100% of the Equity Interests in the Operating Company; or
(e) except as otherwise expressly permitted by this Agreement, the Operating Company ceases to own, directly or indirectly, 100% of the Equity Interest in, or have Exclusive Management Agreements or Cemetery Management Agreements with, each of the other Borrowers, as applicable.
“ Closing Date ” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 11.01 .
“ Code ” means the Internal Revenue Code of 1986, as amended, and the regulations promulgated and rulings issued thereunder.
“ Collateral ” means all of the “ Collateral ” and “ Mortgaged Property ” referred to in the Security Documents and all of the other property that is under the terms of the Security Documents subject to Liens in favor of the Collateral Agent.
“ Collateral Agent ” has the meaning specified in Section 9.01(b) .
“ Commitment ” means, as to each Lender, its obligation to (a) make Revolving Credit Loans to any Borrower pursuant to Section 2.01 , (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
 
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“ Commitment Fee Rate ” means, at any time, the percentage per annum set forth below for the Commitment Fee, as determined by reference to the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate at any time received by the Administrative Agent pursuant to Section 6.02(b) (or, prior to the date of the Administrative Agent’s receipt of the first Compliance Certificate pursuant to Section 6.02(b) , the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b) of the Existing Credit Agreement):

Commitment Fee Rate	
Pricing
Level	 	Consolidated Leverage
Ratio	 	Commitment Fee	
1	 	< 1.75:1	 	0.375%	
2	 	³ 1.75:1 but < 2.50:1	 	0.500%	
3	 	³ 2.50:1 but < 3.25:1	 	0.625%	
4	 	³ 3.25:1 but <3.75:1	 	0.750%	
5	 	³ 3.75:1	 	0.800%	
Any increase or decrease in the Commitment Fee Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the applicable Start Date; provided , however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 5 above shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered (until the first Business Day after the date which such Compliance Certificate is actually delivered which demonstrates another Pricing Level is applicable). Notwithstanding anything to the contrary contained in this definition, the determination of the Commitment Fee Rate for any period shall be subject to the provisions of Section 2.10(b) and (c) .
“ Committed Loan Notice ” means a notice of (a) a Revolving Credit Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, in each case pursuant to Section 2.02(a) , which shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of a Borrower.
“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
“ Compliance Certificate ” means a certificate substantially in the form of Exhibit D .
“ Connection Income Taxes ” means Other Connection Taxes that are imposed on or measured by net income (however denominated, including if denominated as a franchise tax) or branch profits Taxes.
 
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“ Consolidated Debt Service ” means, for any period, the sum of (a) the aggregate principal amount of all regularly scheduled principal payments of Consolidated Funded Indebtedness for such period (but excluding any prepayments) and (b) Consolidated Interest Charges with respect to Consolidated Funded Indebtedness for such period. All calculations of Consolidated Debt Service shall additionally be adjusted on a Pro Forma Basis and shall additionally be adjusted to eliminate such amounts relating to Consolidated Funded Indebtedness retired during such period with the proceeds of any sale or issuance by the Partnership of its Equity Interests permitted hereunder.
“ Consolidated Debt Service Coverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated EBITDA, to (b) Consolidated Debt Service, each as measured for the most recently completed Measurement Period.
“ Consolidated EBITDA ” means, for any period, an amount equal to Consolidated Net Income of the Partnership and its Subsidiaries, plus , in each case to the extent actually deducted in determining Consolidated Net Income for such period, without duplication, (a) consolidated interest expense of the Partnership and its Subsidiaries, (b) provision for income taxes, (c) depreciation and amortization expense, (d) non-cash cost for Cemetery Property and real property sold, (e) any extraordinary losses, (f) losses from sales of assets other than inventory and Cemetery Property and real property sold in the ordinary course of business, (g) other non-cash items (including, without limitation, unit-based compensation), (h) reasonable fees, costs and expenses, without duplication, incurred in connection with (i) this Agreement and the other Credit Documents, including any amendment, restatement, supplement or other modification of this Agreement or any of the other Credit Documents, and (ii) to the extent permitted hereunder, (A) the issuance of Equity Interests and debt securities by the Partnership, and (B) the refinancing of High Yield Notes with the proceeds of Future High Yield Notes (including the refinancing that occurred in 2013), including prepaid interest and early redemption premium (it being agreed that the addback described in this clause (h)  shall be permitted with respect to each amendment or other transaction described in this clause (h)  irrespective of whether such amendment or transaction is actually consummated), and (i) reasonable fees, costs and expenses, without duplication, incurred in connection with any Permitted Acquisition or any unsuccessful attempt by the Partnership or its Subsidiaries to make an acquisition (including an acquisition structured as an Exclusive Management Agreement), irrespective of whether such acquisition would have constituted a Permitted Acquisition had such acquisition been consummated, minus , in each case to the extent actually included in determining Consolidated Net Income for such period, without duplication, (i) any extraordinary gains, (ii) gains from sales of assets other than inventory and Cemetery Property and real property sold in the ordinary course of business, (iii) the amount of non-cash gains during such period (other than as a result of deferral of purchase price with respect to notes or installment sales contracts received in connection with sales of Cemetery Property); and (iv) other non-cash gains. Consolidated EBITDA shall be adjusted for the following: (x) “Change in Deferred Selling and Obtaining Costs”, and (y) “Change in Deferred Cemetery Revenue, net” as each such term is presented in the consolidated statement of cash flows of the Partnership; provided that, all calculations of Consolidated EBITDA shall additionally be adjusted on a Pro Forma Basis to account for any Permitted Acquisitions or Equivalent Dispositions then being consummated, if applicable, as well as any other Permitted Acquisitions or Equivalent Dispositions consummated, on or after the first day of any related Calculation Period or Measurement Period, as applicable (as if
 
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consummated on the first day of such applicable Calculation Period or Measurement Period), and provided further , that, for purposes of calculating the Permitted Acquisition Step-Up, Consolidated EBITDA for a Permitted Acquisition required by Section 7.11(a) shall be calculated (A) using the above method (including adjustments on a Pro Forma Basis) with respect to the Person or assets so acquired and (B) for the trailing 12 month period ending on the last day of the month immediately preceding the date of such Permitted Acquisition. Notwithstanding anything to the contrary contained in this Agreement, Consolidated EBITDA shall exclude any amounts or adjustments (positive or negative) which would otherwise be attributable to the Archdiocese Transaction to the extent related to any period ending on or prior to Archdiocese Closing Date.
“ Consolidated Funded Indebtedness ” means, as of any date of determination, for the Partnership and its Subsidiaries on a consolidated basis, without duplication, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including, without limitation, (i) all Obligations hereunder, (ii) all Seller Subordinated Debt and (iii) all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments), (b) the outstanding principal amount of all purchase money Indebtedness, (c) all direct obligations arising under letters of credit, bankers’ acceptances, bank guaranties, and similar instruments (but, excluding, for the avoidance of doubt, surety bonds), (d) Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations, (e) all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a)  through (d)  above of Persons other than the Partnership or any of its Subsidiaries, and (f) all Indebtedness of the types referred to in clauses (a)  through (e)  above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Partnership or any of its Subsidiaries is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Partnership or such Subsidiary.
“ Consolidated Interest Charges ” means, for any period, (a) the total consolidated interest expense of the Partnership and its Subsidiaries for such period (calculated without regard to any limitations on payment thereof) payable in respect of any Indebtedness (excluding the amortization of any financing fees, costs or expenses) plus (b) without duplication, that portion of Capitalized Lease Obligations of the Partnership and its Subsidiaries on a consolidated basis representing the interest factor for such period. All calculations of Consolidated Interest Charges shall additionally be adjusted on a Pro Forma Basis to account for any Permitted Acquisitions or Equivalent Dispositions then being consummated, if applicable, as well as any other Permitted Acquisitions or Equivalent Dispositions consummated, on or after the first day of any related Calculation Period or Measurement Period, as applicable (as if consummated on the first day of such applicable Calculation Period or Measurement Period).
“ Consolidated Leverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the most recently completed Measurement Period.
“ Consolidated Net Income ” means, for any period, subject to determinations expressly required to made on a Pro Forma Basis, the net after tax income (or loss) of the Partnership and its Subsidiaries determined on a consolidated basis in accordance with GAAP, provided that in determining Consolidated Net Income of the Partnership and its Subsidiaries (a)
 
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the net income of any of Person which is not a Subsidiary of the Partnership or is accounted for by the Partnership by the equity method of accounting shall be included only to the extent of the payment of cash dividends or cash disbursements by such Person to the Partnership or a Subsidiary of the Partnership during such period, and (b) except for determinations expressly required to be made on a Pro Forma Basis, the net income (or loss) of any Person accrued prior to the date it becomes a Subsidiary or all or substantially all of the property or assets of such Person are acquired by a Subsidiary shall be excluded from such determination.
“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlative thereto.
“ Controlled Account ” means each deposit account and/or securities account that is subject to an account control agreement in form and substance satisfactory to the Administrative Agent and the L/C Issuer.
“ Controlled Non-Profit ” means a Borrower which (a) is organized as a non-profit entity, whether pursuant to Section 501 of the Code or otherwise, or (b) which has contracted with any Borrower for the provisions of services under a Cemetery Management Agreement.
“ Credit Documents ” means, collectively, (a) this Agreement, (b) the Notes, (c) the Security Documents, (d) the Fee Letter, (e) each Issuer Document, (f) each Secured Hedge Agreement, and (g) each Secured Cash Management Agreement; provided that for purposes of the definition of “Material Adverse Effect” and Articles IV through IX and Section 11.03 , “Credit Documents” shall not include Secured Hedge Agreements or Secured Cash Management Agreements.
“ Credit Extension ” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“ Credit Party ” means, individually, and “ Credit Parties ” means, collectively, each Borrower and each Guarantor.
“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
 
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“ Default Rate ” means (a) when used with respect to Obligations other than Letter of Credit Fees and Eurodollar Rate Loans, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate for Base Rate Loans plus (iii) 2% per annum; (b) when used with respect to any Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to (i) the related Eurodollar Rate plus (ii) the Applicable Rate for Eurodollar Rate Loans plus (iii) 2% per annum and (c) when used with respect to Letter of Credit Fees, a rate equal to (i) the Applicable Rate for Letter of Credit Fees plus (ii) 2% per annum.
“ Defaulting Lender ” means, subject to Section 2.15(b) , any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Borrowers, the Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrowers, to confirm in writing to the Administrative Agent and the Borrowers that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c)  upon receipt of such written confirmation by the Administrative Agent and the Borrowers), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a)  through (d)  above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b) ) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrowers, the L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.
“ Designated Jurisdiction ” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
 
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“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. For the sake of clarity, dispositions of real property of the Archdiocese or other third parties party to an Exclusive Management Agreement, as contemplated by the Archdiocese Transaction Documents or other documents entered into in connection with such Exclusive Management Agreement, shall not constitute Dispositions under this Agreement.
“ Disposition Note ” means a promissory note issued by a purchaser of assets in connection with a Disposition permitted under Section 7.05 .
“ Dollar ” and “ $ ” mean lawful money of the United States.
“ Eligible Assignee ” means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii) and (v)  (subject to such consents, if any, as may be required under Section 11.06(b)(iii) ).
“ Eligible Receivable ” means any Account Receivable of a Borrower that meets all of the following requirements on its date of invoice or other origination date and continuing thereafter until collected:
(a) such Account Receivable represents a bona fide transaction evidenced by an Approved Installment Agreement;
(b) such Account Receivable, to the extent evidenced by chattel paper or an instrument of any kind, is evidenced by only one original which is kept at the chief executive office (or, if required by law, the applicable local office) of the applicable Borrower, provided that, if required by law, such Borrower may deliver the original to a trustee for a Trust Account and/or may deliver an additional original to the account debtor thereon;
(c) the related Approved Installment Agreement shall be (i) stamped or stickered on its face to indicate that it has been collaterally assigned to the Administrative Agent, and (ii) stored in a filing cabinet prominently marked to appropriately indicate that the contents thereof have been assigned to the Administrative Agent as noted above;
(d) the account debtor with respect to such Account Receivable is not insolvent or the subject of any bankruptcy or insolvency proceedings of any kind;
(e) such Account Receivable is a valid, legally enforceable obligation of the account debtor with respect thereto and is not subject to any present, or contingent, and the Borrowers have no knowledge or reason to believe there are any facts which are the basis for any future, offset or counterclaim or other defense on the part of such account debtor, including, without limitation, any account payable owing by such Person to such account debtor;
 
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(f) such Account Receivable shall be subject to a valid and perfected first priority Lien in favor of the Administrative Agent, subject to no Lien, except for Liens in favor of the Administrative Agent and any other Permitted Liens; and
(g) all statutory rescission periods with respect to each such Account Receivable have ended;
provided , that for the purpose of calculating the Borrowing Base the amount of any Eligible Receivables which will be included in such calculation will be equal to the gross amount of such Eligible Receivables, less, with respect to such Eligible Receivables: (i) all collection reserves; and (ii) without duplication, all imputed interest earnings.
“ Employment Agreements ” means all material employment agreements entered into by any Credit Party.
“ Environmental Laws ” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Credit Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“ Environmental Permit ” means any permit, approval, identification number, license or other authorization required under any Environmental Law.
“ Equity Interests ” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein, and Certificates of Indebtedness), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
“ Equivalent Disposition ” means the Disposition by a Borrower to any Person (other than another Borrower) of (i) assets constituting a business unit, (ii) all or a substantial part of the business of any Borrower, or (iii) sufficient capital stock or other Equity Interests of any Borrower so that, after giving effect to such Disposition such Person is no longer a Subsidiary.
 
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“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated and rulings issued thereunder.
“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with any Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ ERISA Event ” means: (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of any Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization or has become insolvent; (d) the filing of a notice of intent to terminate a Pension Plan, the treatment of a Pension Plan amendment as a termination under Section 4041 or, with respect to a Multiemployer Plan, notification of any event described in Section 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan or, with respect to a Multiemployer Plan, receipt of a written notice of such institution of proceedings by the PBGC; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or, with respect to a Multiemployer Plan, receipt of a written notice of such an event or condition; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA or, with respect to a Multiemployer Plan, any Borrower or ERISA Affiliate’s knowledge of such a determination; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Borrower or any ERISA Affiliate.
“ Eurodollar Rate ” means:
(a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“ LIBOR ”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement; and
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day;
 
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provided , that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided further , that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
“ Eurodollar Rate Loan ” means a Revolving Credit Loan that bears interest at a rate based on clause (a)  of the definition of “Eurodollar Rate.”
“ Event of Default ” has the meaning specified in Section 8.01 .
“ Excluded Collateral ” has the meaning specified in the Security Agreement.
“ Excluded Swap Obligation ” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Credit Party of, or the grant by such Credit Party of a Lien to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.11 and any other “keepwell, support or other agreement” for the benefit of such Credit Party and any and all guarantees of such Credit Party’s Swap Obligations by other Credit Parties) at the time the Guaranty of such Credit Party, or grant by such Credit Party of a Lien, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap Contract, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty or Lien is or becomes excluded in accordance with the first sentence of this definition.
“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated, including if denominated as a franchise tax), and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrowers under Section 11.13 ) or (ii) such Lender changes its Lending Office, except, in either (i)  or (ii)  above, to the extent that, pursuant to Section 3.01(a)(ii) or (c) , amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
 
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“ Exclusive Management Agreement ” means an agreement pursuant to which a Borrower obtains an exclusive right to manage/operate and control a funeral home or cemetery business of any other Person (other than another Borrower) for a term of not less than one (1) year.
“ Existing Credit Agreement ” has the meaning specified in the Preliminary Statements hereto.
“ Extraordinary Receipt ” means any cash received by or paid to or for the account of any Person which represent proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings) or condemnation awards (and any payments in lieu thereof).
“ FASB ASC ” means the Accounting Standards Codification of the Financial Accounting Standards Board.
“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof. For purposes of determining withholding Taxes imposed under FATCA, from and after the Closing Date, the Borrowers and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
“ Fee Letter ” means the letter agreement, dated September 23, 2014, among the Operating Company, the Administrative Agent and the Arranger, and any other similar letter setting forth fees to be paid by any Credit Party to the Administrative Agent and/or the Arranger in connection with this Agreement, each as may be amended, restated, modified, extended, renewed, replaced or supplemented from time to time.
“ Foreign Lender ” means (a) if any Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if such Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
 
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“ FRB ” means the Board of Governors of the Federal Reserve System of the United States.
“ Fronting Exposure ” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
“ Fund ” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“ Future High Yield Notes ” means any senior unsecured notes issued after the Closing Date, from time to time, pursuant to, and in accordance with a High Yield Note Indenture, meeting each of the following requirements: (a) such notes are in an aggregate original principal amount that, when aggregated with the aggregate principal amount of the High Yield Notes then outstanding, does not exceed the limitation set forth in Section 7.02(m) ; (b) the terms of such notes are substantially similar in all material respects to, or are more favorable to the Credit Parties than, the High Yield Notes then outstanding ( provided that (i) the scheduled maturity date for any principal payment under such notes shall not be prior to June 1, 2021 and (ii) the interest rate payable on such notes shall be a market rate for the issuance of such notes at the time issued); (c) no Default or Event of Default has occurred and is continuing or would result from the issuance of such notes; and (d) the Borrowers shall have delivered to the Administrative Agent, not less than ten (10) Business Days prior to the date of the issuance of such notes (or such shorter period as the Administrative Agent may agree to in writing), a pro forma Compliance Certificate showing compliance, on a Pro Forma Basis (for the related Calculation Period), with the covenants set forth in Section 7.11 immediately after giving effect to the issuance of such notes.
“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
“ General Partner ” has the meaning specified in the introductory paragraph hereto.
 
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“ Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“ GP Agreement ” means that certain Second Amended and Restated Limited Liability Agreement of StoneMor GP LLC, a Delaware limited liability company, dated as of May 21, 2014, as may be amended, restated, modified, replaced or supplemented from time to time.
“ Guarantee ” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “ Guarantee ” as a verb has a corresponding meaning.
“ Guaranteed Obligations ” has the meaning set forth in Section 10.01 .
“ Guarantor ” means, individually, and “Guarantors” means, individually and collectively, (a) the Partnership, the General Partner and each Borrower (other than any Controlled Non-Profit) solely in its capacity as a guarantor of the Guaranteed Obligations of the other Credit Parties pursuant to Article X , and each other Subsidiary of the Partnership that shall be required to execute and deliver any joinder or guaranty pursuant to Section 6.12 , and (b) with respect to any Swap Obligations owing by any Specified Credit Party (determined before giving effect to Sections 10.01 and 10.11 ) under the Guaranty, each Qualified ECP Guarantor.
“ Guaranty ” means, collectively, the Guaranty made by the Credit Parties, other than the Controlled Non-Profits, under Article X , together with each other guaranty delivered pursuant to Section 6.12 .
 
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“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“ Hedge Bank ” means any Person that, at the time it enters into a Secured Hedge Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Secured Hedge Agreement.
“ High Yield Documents ” means each High Yield Note Indenture, any High Yield Notes, and the related guarantees, notes and all other agreements, instruments and other documents pursuant to which any High Yield Notes have been or will be issued or otherwise setting forth the terms of such High Yield Notes or otherwise entered into in connection with a High Yield Note Indenture, as each may be amended, restated, modified, extended, renewed, replaced or supplemented from time to time.
“ High Yield Note Indenture ” means that certain Indenture, dated as of May 28, 2013, among the Partnership, Cornerstone Family Services of West Virginia Subsidiary, Inc., a West Virginia corporation, and certain subsidiaries of the Partnership as Guarantors (as defined therein) and Wilmington Trust, National Association as trustee, as the same may be amended, restated, modified, extended, renewed replaced or supplemented from time to time.
“ High Yield Notes ” means the 7-7/8% senior notes in an aggregate amount of $175,000,000, having a maturity of June 1, 2021, issued on May 28, 2013 pursuant to the High Yield Note Indenture, together with any Future High Yield Notes, each issued pursuant to the High Yield Note Indenture, in each case, as the same may be amended, restated, modified, extended, renewed, replaced or supplemented from time to time.
“ Increase Effective Date ” has the meaning set forth in Section 2.17 .
“ Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable and accrued expenses, in each case arising the ordinary course of business, and any other trade accounts payable and deferred rent not past due for more than 90 days);
 
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(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) all Attributable Indebtedness in respect of Capitalized Leases and Synthetic Lease Obligations of such Person and all Synthetic Debt of such Person;
(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any warrant, right or option to acquire such Equity Interest, in each case prior to a date which is at least six months after the Maturity Date, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. For the avoidance of doubt, the Post-Closing Payments (as defined in the Nelms Transaction Consent) do not constitute Indebtedness. Notwithstanding anything to the contrary contained in this Agreement, the obligations of the applicable Credit Parties under the Archdiocese Lease, as in effect on the Archdiocese Closing Date, shall not constitute Indebtedness.
“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Credit Document and (b) to the extent not otherwise described in (a) , Other Taxes.
“ Indemnitee ” has the meaning specified in Section 11.04(b) .
“ Information ” has the meaning specified in Section 11.07 .
“ Intercompany Loan ” means a loan permitted pursuant to Section 7.02(b) .
“ Intercompany Note ” means any promissory note evidencing an Intercompany Loan.
“ Interest Payment Date ” means, (a) as to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided , however , that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or Swing Line Loan, the last Business Day of each March, June, September and December and the Maturity Date.
 
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“ Interest Period ” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrowers in a Committed Loan Notice; provided that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period pertaining to a Eurodollar Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date.
“ Investment ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or interest in, another Person, (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit or all or a substantial part of the business of, such Person, or (d) any Exclusive Management Agreement.
“ IP Rights ” has the meaning specified in Section 5.17 .
“ IRS ” means the United States Internal Revenue Service.
“ ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“ Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and any Borrower or in favor of the L/C Issuer and relating to such Letter of Credit.
“ Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
 
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“ L/C Advance ” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
“ L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.
“ L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“ L/C Issuer ” means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
“ L/C Obligations ” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“ Lender ” and “ Lenders ” have the meaning specified in the introductory paragraph hereto and, unless the context requires otherwise, includes the Swing Line Lender.
“ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrowers and the Administrative Agent.
“ Letter of Credit ” means any standby letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder.
“ Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
“ Letter of Credit Expiration Date ” means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“ Letter of Credit Fee ” has the meaning specified in Section 2.03(h) .
“ Letter of Credit Sublimit ” means an amount equal to $10,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.
“ LIBOR ” has the meaning specified in the definition of Eurodollar Rate.
 
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“ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, lien (statutory or other), charge, preference, priority or other security agreement of any kind or nature whatsoever (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or any similar recording or notice statute (other than any unauthorized financing statement or other notice filing for which there is not otherwise any underlying Lien or secured obligation), and any lease having substantially the same effect as the foregoing).
“ Loan ” means an extension of credit by a Lender to any Borrower under Article II in the form of a Revolving Credit Loan or a Swing Line Loan.
“ London Banking Day ” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
“ Management Agreement ” means any material agreement with respect to the management of any Credit Party, including, without limitation, any consulting agreement or other management advisory agreement, but excluding any employment agreement.
“ Master Agreement ” has the meaning set forth in the definition of “Swap Contract.”
“ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the Partnership and its Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Credit Document, or of the ability of the Credit Parties taken as a whole to perform their obligations under any Credit Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Partnership and its Subsidiaries taken as a whole of any Credit Document.
“ Material Contract ” means, with respect to any Person, each contract to which such Person is a party involving aggregate consideration payable to or by such Person of the Threshold Amount or more in any year or otherwise material to the business, condition (financial or otherwise), operations, performance, or properties of the Credit Parties taken as a whole.
“ Maturity Date ” means December 19, 2019; provided , however , that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“ Measurement Period ” means, at any date of determination, the most recently completed four fiscal quarters of the Partnership.
“ Merchandise Trust ” means a trust fund, pre-need trust, pre-construction trust or other reserve, trust, escrow or any similar arrangement established and administered by a Borrower as required in accordance with applicable Law to receive and administer the aggregate of all amounts derived from the sale of services and personal property, such as foundations, markers, memorials, memorial bases, monuments, urns, vases, vaults and caskets, used in connection with the final disposition, memorialization, interment, entombment, or inurnment of human remains.
 
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“ Minimum Collateral Amount ” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 100% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.14(a)(i) , (a)(ii) or (a)(iii) , an amount equal to 105% of the Outstanding Amount of all LC Obligations, and (iii) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.
“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.
“ Mortgage Policies ” means the title insurance policies delivered to the Administrative Agent in connection with the Mortgages, as each may be amended, restated, modified, extended, renewed, replaced or supplemented from time to time.
“ Mortgages ” means all deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages, leasehold deeds of trust and other similar documents and agreements delivered by the Credit Parties to the Administrative Agent, whether pursuant to the Original Credit Agreement, the Second Credit Agreement, the Prior Credit Agreement, the Existing Credit Agreement, this Agreement or any other Credit Document, as each may be amended, restated, modified, extended, renewed, replaced or supplemented from time to time.
“ MT Draw ” means a Revolving Credit Loan described in clause (c)  of the definition of “Acquisition Draw”.
“ Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“ Multiple Employer Plan ” means a Plan which has two or more contributing sponsors (including any Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“ Nelms Transaction Consent ” means the Permitted Acquisition Consent (Nelms/Ansure Acquisition), dated June 18, 2010, among the Credit Parties, the Administrative Agent and the Required Lenders under the Second Credit Agreement.
“ Net Cash Proceeds ” means:
(a) with respect to any Disposition by any Credit Party or any of its Subsidiaries, any disposition of real property which any Credit Party manages or operates pursuant to an Exclusive Management Agreement but does not own, or any Extraordinary Receipt received or paid to the account of any Credit Party or any of its Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with
 
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such transaction (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset and that is required to be repaid in connection with such transaction (other than Indebtedness under the Credit Documents), (B) the reasonable and customary out-of-pocket expenses incurred by such Credit Party or such Subsidiary in connection with such transaction and (C) income taxes reasonably estimated to be actually payable within two years of the date of the relevant transaction as a result of any gain recognized in connection therewith; provided that, if the amount of any estimated taxes pursuant to subclause (C)  exceeds the amount of taxes actually required to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall constitute Net Cash Proceeds; and
(b) with respect to the sale or issuance of any Equity Interest by any Credit Party or any of its Subsidiaries, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such transaction over (ii) the underwriting discounts and commissions, and other reasonable and customary out-of-pocket expenses, incurred by such Credit Party or such Subsidiary in connection therewith.
“ Non-Consenting Lender ” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01 and (ii) has been approved by the Required Lenders.
“ Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.
“ Note ” means a promissory note made by the Borrowers in favor of a Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may be, made by such Lender, substantially in the form of Exhibit C .
“ NPL ” means the National Priorities List under CERCLA.
“ Obligations ” means (a) all advances to, and debts, liabilities, obligations, covenants and duties of, any Credit Party arising under any Credit Document or otherwise with respect to any Loan or Letter of Credit and (b) all reasonable out-of-pocket costs and expenses incurred in connection with enforcement and collection of the foregoing, including the reasonable fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party pursuant to any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that Obligations of a Credit Party shall exclude any Excluded Swap Obligations with respect to such Credit Party.
“ OFAC ” means the Office of Foreign Assets Control of the United States Department of the Treasury.
 
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“ Operating Company ” has the meaning specified in the introductory paragraph hereto.
“ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to (i) any entity organized under any non-U.S. jurisdiction and (ii) any Controlled Non-Profit); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“ Original Credit Agreement ” has the meaning specified in the Preliminary Statements hereto.
“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document).
“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06 ).
“ Outstanding Amount ” means (a) with respect to Revolving Credit Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrowers of Unreimbursed Amounts.
“ Participant ” has the meaning specified in Section 11.06(d) .
“ Participant Register ” has the meaning specified in Section 11.06(d) .
“ Partnership ” has the meaning specified in the introductory paragraph hereto.
 
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“ Partnership Agreement ” means that certain Second Amended and Restated Agreement of Limited Partnership of StoneMor Partners L.P. dated as of September 9, 2008, as amended, restated, modified, extended, renewed, replaced or supplemented from time to time.
“ Partnership Common Units ” means the common units of the Partnership.
“ Partnership Subordinated Units ” means the subordinated units of the Partnership.
“ PBGC ” means the Pension Benefit Guaranty Corporation.
“ Pension Act ” means the Pension Protection Act of 2006.
“ Pension Funding Rules ” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and Multiemployer Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“ Pension Plan ” means any employee pension benefit plan (including any Multiple Employer but not including any Multiemployer Plan) that is maintained or is contributed to by any Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
“ Permitted Acquisition Step-Up ” has the meaning specified in Section 7.11(a) .
“ Permitted Acquisition ” means an acquisition by a Borrower of (a) the assets constituting a business unit or all or a substantial part of the business of any Person, other than a then existing Subsidiary of the Partnership, that is organized under the laws of any political subdivision of the United States and transacts all of its material business within the United States or any political subdivision of the United States, including Puerto Rico (each a “ Domestic Person ”), (b) rights from a Domestic Person under any Exclusive Management Agreement, or (c) 100% of the capital stock or other Equity Interests of any Domestic Person, which acquisition complies with each of the following requirements:
(i) such acquisition has been approved by the board of directors or similar governing body of the related Domestic Person;
(ii) the consideration paid by such Borrower consists solely of (A) Partnership Common Units, (B) cash (including proceeds of Loans), and (C) Seller Subordinated Debt permitted hereunder;
(iii) any Acquired Person shall own no capital stock or other Equity Interests of any other Person unless the Acquired Person owns 100% of the capital stock or other Equity Interests of such other Person;
(iv) the assets or Person acquired are used in or constitute a Permitted Business; and
 
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(v) the acquisition has been approved by the Operating Company’s Board of Managers.
Notwithstanding anything to the contrary contained in the immediately preceding sentence, an acquisition which does not otherwise meet the requirements set forth above in the definition of “Permitted Acquisition” shall constitute a Permitted Acquisition if, and to the extent, the Required Lenders agree in writing that such acquisition shall constitute a Permitted Acquisition for purposes of this Agreement.
“ Permitted Business ” means any business engaged in or related to the cemetery and funeral home business in the United States and the provision of product and services in connection therewith.
“ Permitted Encumbrances ” (a) with respect to any property that is subject to a Mortgage, has the meaning specified in the related Mortgage, and (b) with respect to any real property not subject to a Mortgage, (i) those liens, encumbrances and other matters affecting title to such property and found reasonably acceptable by the Collateral Agent, (ii) such easements, encroachments, covenants, conditions, restrictions, rights of way, minor defects, irregularities or encumbrances on title which could not reasonably be expected to materially impair such property for the purpose for which it is held by the applicable Credit Party, (iii) zoning and other municipal ordinances which are not violated in any material respect by the existing improvements and the present use made by the applicable Credit Party of the premises, (iv) general real estate taxes and assessments not yet due and payable, and (v) such other similar items as the Collateral Agent may consent to (such consent not to be unreasonably withheld).
“ Permitted Liens ” has the meaning specified in Section 7.01 .
“ Perpetual Care Trust ” means a trust fund, pre-need trust, pre-construction trust or other reserve, trust, escrow or any similar arrangement established and administered by a Borrower as required in accordance with applicable Law for the purpose of receiving the aggregate of all amounts derived from the sale of interests in real property, or fixtures, including, without limitation, mausoleums, niches, columbaria, urns, or crypts, used in connection with the final disposition, memorialization, interment, entombment, or inurnment of human remains and set aside in reserve, trust, escrow or any similar arrangement and administering such amounts for the perpetual care and maintenance of cemetery lots, graves, grounds, landscaping, roads, paths, parking lots, fences, mausoleums, columbaria, vaults, crypts, utilities, and other improvements, structures and embellishments.
“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“ Plan ” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan) maintained for employees of any Borrower or any ERISA Affiliate or any such Plan to which any Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“ Platform ” has the meaning specified in Section 6.02 .
 
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“ Pledge Agreement ” means that certain Second Amended and Restated Pledge Agreement, dated the date hereof, among the Credit Parties and the Administrative Agent, as amended, restated, modified, extended, renewed, replaced or supplemented from time to time.
“ Pledged Debt ” means Indebtedness pledged by a Credit Party under the Pledge Agreement, including, without limitation, any Intercompany Note.
“ Pledged Equity ” means Equity Interests pledged by a Credit Party under the Pledge Agreement, including, without limitation, any Certificate of Indebtedness.
“ Preferred Equity ” as applied to the Equity Interests of any Person, means Equity Interests of such Person (other than common stock or units of such Person) of any class or classes (however designated) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of Equity Interests of any other class of such Person.
“ Prior Credit Agreement ” has the meaning specified in the Preliminary Statements hereto.
“ Pro Forma Basis ” means, as of any date, in connection with any calculation of compliance with any financial covenant or financial term, the calculation thereof after giving effect on a pro forma basis to the Indebtedness from any Future High Yield Notes then being issued and/or Permitted Acquisition then being consummated, if applicable, as well as any other Permitted Acquisition consummated on or after the first day of any relevant Calculation Period (in each case, as if consummated on the first day of such Calculation Period and based on the best available historical financial information provided by the Person who is being or was, or whose assets are being or were, acquired in connection with each such Permitted Acquisition, whether prepared in accordance with GAAP or otherwise, and accepted by the Borrowers in the exercise of their reasonable business judgment), and, in each case involving a Permitted Acquisition, adjusted to account for (a) expenses eliminated or reasonably expected to be eliminated by the Borrowers pursuant to synergies and other efficiencies of each such acquisition, and (b) income, gains and losses from any Trust Accounts being acquired, using the net asset value thereof multiplied by the yield to maturity of the Barclays Aggregate Bond Index plus 200 basis points (or if such index is not available, a replacement index and margin that is selected by the Operating Company and reasonably satisfactory to the Administrative Agent), but in any case, not less than 5% per annum or more than 7% per annum; provided that any such calculations delivered pursuant to Section 7.03(h)(viii) shall also give effect on a pro forma basis to (i) the incurrence of any Indebtedness by any Credit Parties on or after the first day of the relevant Calculation Period as if such Indebtedness had been incurred (and the proceeds thereof applied) on the first day of the relevant Calculation Period and (ii) the permanent repayment of any Indebtedness of any Credit Parties on or after the first day of the relevant Calculation Period as if such Indebtedness had been retired or redeemed on the first day of the relevant Calculation Period (in each case, based on the historical financial information described above).
“ Public Lender ” has the meaning specified in Section 6.02 .
 
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“ Qualified ECP Guarantor ” means, at any time, each Credit Party (other than any Controlled Non-Profit) with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“ Recipient ” means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder.
“ Register ” has the meaning specified in Section 11.06(c) .
“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
“ Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“ Required Lenders ” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition) and (b) aggregate unused Commitments; provided that the unused Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided further that, the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer, as the case may be, in making such determination.
“ Responsible Officer ” means, with respect to (i) delivering financial information and officer’s certificates pursuant to this Agreement, the chief financial officer, the chief executive officer, the chief operating officer, the corporate controller, any treasurer or other financial officer of the General Partner, (ii) any other matter in connection with this Agreement or any other Credit Document, any officer (or a person or persons so designated by such officer) of the General Partner or the Operating Company, as the case may be, in each case to the extent reasonably acceptable to the Administrative Agent and (iii) solely for purposes of notices given pursuant to Article II , any other officer or employee of the applicable Credit Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Credit Party designated in or pursuant to an agreement between the applicable Credit Party and the Administrative Agent. Any document delivered hereunder that is
 
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signed by a Responsible Officer of a Credit Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Credit Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Credit Party.
“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment.
“ Revolving Credit Borrowing ” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01 .
“ Revolving Credit Exposure ” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Credit Loans and such Lender’s participation in L/C Obligations and Swing Line Loans at such time.
“ Revolving Credit Loan ” has the meaning specified in Section 2.01 .
“ S&P ” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc., and any successor thereto.
“ Sanction(s) ” means any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“ HMT ”) or other relevant sanctions authority.
“ Scheduled Repayment ” has the meaning specified in Section 2.07(a) .
“ SCI Acquisition ” means the transactions evidenced by the SCI Purchase Agreements.
“ SCI Purchase Agreements ” means (i) that certain Asset Sale Agreement, dated as of April 2, 2014, by and among the Operating Company, StoneMor North Carolina LLC, a North Carolina limited liability company, StoneMor North Carolina Subsidiary LLC, a North Carolina limited liability company, Laurel Hill Memorial Park LLC, a Virginia limited liability company, Laurel Hill Memorial Park Subsidiary, Inc., a Virginia corporation, StoneMor Pennsylvania LLC, a Pennsylvania limited liability company, and StoneMor Pennsylvania Subsidiary LLC, a Pennsylvania limited liability company, and S.E. Cemeteries of North Carolina, Inc., a North Carolina corporation, Clinch Valley Memorial Cemetery, Inc., a Virginia corporation, and S.E. Acquisition of Pennsylvania, Inc., a Pennsylvania corporation, and (ii) that certain Asset Sale Agreement, dated as of April 2, 2014, by and among the Operating Company, StoneMor Florida LLC, a Florida limited liability company, StoneMor Florida Subsidiary LLC, a Florida limited liability company, StoneMor North Carolina LLC, a North Carolina limited liability company,
 
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StoneMor North Carolina Subsidiary LLC, a North Carolina limited liability company, and StoneMor North Carolina Funeral Services, Inc., a North Carolina corporation, Loewen [Virginia] LLC, a Virginia limited liability company, Loewen [Virginia] Subsidiary, Inc., a Virginia corporation, Rose Lawn Cemeteries LLC, a Virginia limited liability company, Rose Lawn Cemeteries Subsidiary, Incorporated, a Virginia corporation, StoneMor Pennsylvania LLC, a Pennsylvania limited liability company, StoneMor Pennsylvania Subsidiary LLC, a Pennsylvania limited liability company, and CMS West Subsidiary LLC, a Pennsylvania limited liability company, and S.E. Funeral Homes of Florida, LLC, a Florida limited liability company, S.E. Cemeteries of Florida, LLC, a Florida limited liability company, S.E. Combined Services of Florida, LLC, a Florida limited liability company, S.E. Cemeteries of North Carolina, Inc., a North Carolina corporation, S.E. Funeral Homes of North Carolina, Inc., a North Carolina corporation, Montlawn Memorial Park, Inc., a North Carolina corporation, S.E. Cemeteries of Virginia, LLC, a Virginia limited liability company, SCI Virginia Funeral Services, Inc. a Virginia corporation, George Washington Memorial Park, Inc., a Pennsylvania corporation, Sunset Memorial Park Company, a Pennsylvania corporation, and S.E. Mid-Atlantic Inc., a Maryland corporation (each as amended, restated, modified or supplemented from time to time).
“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“ Second Credit Agreement ” has the meaning specified in the Preliminary Statements hereto.
“ Secured Cash Management Agreement ” means any Cash Management Agreement that is entered into by and between any Credit Party and any Cash Management Bank.
“ Secured Hedge Agreement ” means any interest rate Swap Contract permitted under Article VI or VII that is entered into by and between any Borrower and any Hedge Bank.
“ Secured Obligations ” means (a) in the case of any Borrower (in such capacity), all Obligations of or relating to such Borrower and all Additional Secured Obligations of or relating to such Borrower, and (b) in the case of any Guarantor (in such capacity), such Guarantor’s Guaranteed Obligations.
“ Secured Parties ” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05 , the Administrative Agent and the other Persons the Obligations owing to which are secured by the Collateral under the terms of the Security Documents.
“ Security Agreement ” means that certain Second Amended and Restated Security Agreement, dated the date hereof, among the Credit Parties and the Administrative Agent, as amended, restated, modified, extended, renewed, replaced or supplemented from time to time.
“ Security Documents ” means, collectively, the Security Agreement, the Pledge Agreement, the Confirmation Agreement, the Mortgages, and any other collateral assignments, security agreements, pledge agreements or other similar agreements delivered to the
 
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Administrative Agent pursuant to this Agreement (including, without limitation, the provisions of Section 2.14 or Section 6.12 ), and each of the other agreements, instruments or documents that creates or purports to 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.
“ Seller Subordinated Debt ” means Indebtedness of a Borrower to a seller of assets or Equity Interests acquired pursuant to a Permitted Acquisition.
“ Senior Manager ” means any chairman, president, chief executive officer, chief financial officer or similar officer of the General Partner, the Partnership or the Operating Company.
“ Shareholders’ Agreement ” means any agreement (including, without limitation, any shareholders’ agreement, subscription agreement or registration rights agreement, but excluding any Organizational Document) entered into by any Credit Party governing the terms and relative rights of the Equity Interests of the entity that is a party to such agreement and any agreement entered into by shareholders relating to any such entity with respect to its Equity Interests to which such entity is also a party.
“ Solvent ” and “ Solvency ” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, in each case, taking into account any rights of subrogation and contribution to the Affiliates of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“ Specified Credit Party ” means any Credit Party that is not then an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 10.11 ).
“ Start Date ” means the date the most recent Compliance Certificate has been delivered pursuant to Section 6.02(b) (or, prior to the date of Agent’s receipt of the first Compliance Certificate pursuant to Section 6.02(b) , the date the most recent Compliance Certificate was delivered to the Administrative Agent pursuant to Section 6.02(b) of the Existing Credit Agreement) or a pro forma Compliance Certificate has been delivered pursuant to Section 2.10(c) .
 
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“ Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person; provided , however , that Archdiocese Holdco shall not constitute a “Subsidiary” of a Credit Party for the purposes of this Agreement and the other Credit Documents. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Partnership.
“ Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.
“ Swap Obligations ” means with respect to any Credit Party any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a) , the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“ Swing Line Borrowing ” means a borrowing of a Swing Line Loan pursuant to Section 2.04 .
“ Swing Line Lender ” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“ Swing Line Loan ” has the meaning specified in Section 2.04(a) .
 
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“ Swing Line Loan Notice ” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b) , which shall be substantially in the form of Exhibit B or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approve by the Administrative Agent), appropriately completed and signed by a Responsible Officer of a Borrower.
“ Swing Line Sublimit ” means an amount equal to the lesser of (a) $10,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.
“ Synthetic Debt ” means, with respect to any Person as of any date of determination thereof, all obligations of such Person in respect of transactions entered into by such Person that are intended to function primarily as a borrowing of funds (including any minority interest transactions that function primarily as a borrowing) but are not otherwise included in the definition of “Indebtedness” or as a liability on the consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.
“ Synthetic Lease Obligation ” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property (including sale and leaseback transactions), in each case, creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“ Tax Allocation Agreement ” means any tax sharing or tax allocation agreement entered into by any Credit Party.
“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), and other similar assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“ Threshold Amount ” means $10,000,000.
“ Total Credit Exposure ” means, as to any Lender at any time, the unused Commitments and Revolving Credit Exposure of such Lender at such time.
“ Total Outstandings ” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
“ Total Working Capital Outstandings ” meant the aggregate Outstanding Amount of all Working Capital Draws, all Swing Line Loans and all L/C Obligations.
“ Transaction ” means, collectively, (a) the entering into by the Credit Parties of the Credit Documents and (b) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.
 
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“ Trust Accounts ” means, collectively, the Perpetual Care Trusts and Merchandise Trusts.
“ Trust Funds ” means, at the time of any determination thereof, in connection with the Trust Accounts, the aggregate of all amounts required by applicable Law to be set aside in reserve, trust, escrow or any similar arrangement.
“ Type ” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
“ UCC ” means the Uniform Commercial Code as in effect in the Commonwealth of Pennsylvania; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the Commonwealth of Pennsylvania, “ UCC ” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“ UCP ” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ ICC ”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).
“ Uninsured Liabilities ” shall mean any losses, damages, costs, expenses and/or, liabilities (including any losses, damages, costs, expenses or liabilities resulting from property damage or casualty, general liability, workers’ compensation claims and business interruption) incurred by any Borrower or any Subsidiary which are not covered by insurance, but with respect to which insurance coverage is commercially available in the ordinary course of business to Persons engaged in the same or similar business as the Permitted Business.
“ United States ” and “ U.S. ” mean the United States of America.
“ Unreimbursed Amount ” has the meaning specified in Section 2.03(c)(i) .
“ U.S. Person ” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“ U.S. Tax Compliance Certificate ” has the meaning specified in Section 3.01(e)(ii)(B)(3) .
“ Working Capital Draw ” means a Revolving Credit Loan other than an Acquisition Draw.
1.02 Other Interpretive Provisions . With reference to this Agreement and each other Credit Document, unless otherwise specified herein or in such other Credit Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “ include ,” “ includes ” and
 
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“ including ” shall be deemed to be followed by the phrase “without limitation.” The word “ will ” shall be construed to have the same meaning and effect as the word “ shall .” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Credit Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “ hereto ,” “ herein ,” “ hereof ” and “ hereunder ,” and words of similar import when used in any Credit Document, shall be construed to refer to such Credit Document in its entirety and not to any particular provision thereof, (iv) all references in a Credit Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Credit Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ;” the words “ to ” and “ until ” each mean “ to but excluding ;” and the word “ through ” means “ to and including .”
(c) Section headings herein and in the other Credit Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Credit Document.
1.03 Accounting Terms . (a)  Generally . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP as in effect from time to time, applied on a basis consistent with that used in preparing the Audited Financial Statements (so that, to the extent alternative definitions for such terms, or alternative treatments for such data, are permissible under GAAP, the particular definition or treatment chosen for the Audited Financial Statements shall continue to be used unless use of such alternatives would not be material). Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Partnership and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
(b) Changes in GAAP . If at any time any change in GAAP as in effect at the time of the Audited Financial Statements would affect the computation of any financial ratio or requirement set forth in any Credit Document, and either the Operating Company or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Operating
 
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Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Operating Company shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
(c) Consolidation of Variable Interest Entities . All references herein to consolidated financial statements of the Partnership and its Subsidiaries or to the determination of any amount for the Partnership and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Partnership is required to consolidate, pursuant to FASB ASC 810, as if such variable interest entity were a Subsidiary as defined herein.
1.04 Rounding . Any financial ratios required to be maintained by the Credit Parties pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
1.05 Times of Day . Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
1.06 Letter of Credit Amounts . Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
1.07 Currency Equivalents Generally . Any amount specified in this Agreement (other than in Articles II , IX and X ) or any of the other Credit Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount thereof in the applicable currency to be determined by the Administrative Agent at such time on the basis of the Spot Rate (as defined below) for the purchase of such currency with Dollars. For purposes of this Section 1.07 , the “ Spot Rate ” for a currency means the rate determined by the Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date of such determination; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.
 
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1.08 UCC Terms . Terms defined in the UCC in effect on the Closing Date and not otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided by those definitions. Subject to the foregoing, the term “UCC” refers, as of any date of determination, to the UCC then in effect.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 The Loans . Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “ Revolving Credit Loan ”) to the Borrowers from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided , however , that after giving effect to any Revolving Credit Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment and (iii) if such Revolving Credit Borrowing consists of a Working Capital Draw, the Total Working Capital Outstandings shall not exceed the Borrowing Base. Within the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section, prepay under Section 2.05 , and reborrow under this Section. For the avoidance of doubt, any Revolving Credit Loan which was an Acquisition Draw and is repaid may be reborrowed as an Acquisition Draw or a Working Capital Draw. Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Loans . (a) Each Revolving Credit Borrowing, each conversion of Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon a Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone, or (B) a Committed Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Committed Loan Notice. Each such Committed Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $250,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c) , each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $250,000 in excess thereof. Notwithstanding the foregoing, each MT Draw shall be in a minimum principal amount of $5,000,000. Each Committed Loan Notice shall specify (i) whether a Borrower is requesting a Revolving Credit Borrowing (and whether it consists of a Working Capital Draw or an Acquisition Draw), a conversion of Revolving Credit Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which Revolving Credit Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If such Borrower fails to specify a Type of Loan in a Committed Loan Notice or if such Borrower fails
 
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to give a timely notice requesting a conversion or continuation, then the applicable Revolving Credit Loans shall be made as, or converted to, Base Rate Loans. If such Borrower fails to specify that a Loan is a Working Capital Draw or an Acquisition Draw, then the Loan shall be deemed to be a Working Capital Draw. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If a Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. Notwithstanding anything to the contrary herein, a Swing Line Loan may not be converted to a Eurodollar Rate Loan.
(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of Revolving Credit Loans, and if no timely notice of a conversion or continuation is provided by any Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in Section 2.02(a) . Each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01 ), the Administrative Agent shall make all funds so received available to such Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by such Borrower; provided , however , that if, on the date a Committed Loan Notice with respect to a Revolving Credit Borrowing is given by a Borrower, there are L/C Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing, first , shall be applied to the payment in full of any such L/C Borrowings, and second , shall be made available to such Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrowers and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrowers and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than eight (8) Interest Periods in effect in respect of the Working Capital Draws and one (1) Interest Period in effect in respect of each Acquisition Draw. Each Acquisition Draw shall be of only one Type at any time.
 
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(f) Notwithstanding anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all of the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrowers, the Administrative Agent, and such Lender.
2.03 Letters of Credit . (a)  The Letter of Credit Commitment . (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of any Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b) , and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of any Borrower and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by any Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(b)(iii) , the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for
 
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which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount of less than $100,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder (however, the L/C Issuer may issue such Letters of Credit in accordance with Section 2.03(b)(iv) ); or
(F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrowers or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv) ) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
 
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(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit . (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of a Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of such Borrower. Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the L/C Issuer, by personal delivery or by any other means acceptable to the L/C Issuer. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the L/C Issuer may require. Additionally, the Borrowers shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from a Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Credit Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
 
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(iii) If any Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its reasonable discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrowers shall not be required to make a specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however , that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii)  or (iii)  of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or any Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
(iv) If any Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “ Auto-Reinstatement Letter of Credit ”). Unless otherwise directed by the L/C Issuer, no Borrower shall be required to make a specific request to the L/C Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement Deadline”), the L/C Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Lenders have elected not to permit such reinstatement or (B) from the Administrative Agent, any Lender or any Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the L/C Issuer not to permit such reinstatement.
(v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrowers and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
 
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(c) Drawings and Reimbursements; Funding of Participations . (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrowers and the Administrative Agent thereof. Not later than 11:00 a.m. on the Business Day immediately following the date of any payment by the L/C Issuer under a Letter of Credit (each such date of payment by the L/C Issuer, an “ Honor Date ”), the Borrowers shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing, plus interest on such amount calculated at the Base Rate for the period from the Honor Date until the date of such reimbursement. If the Borrowers fail to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of any unreimbursed drawing (the “ Unreimbursed Amount ”) and the amount of such Lender’s Applicable Percentage thereof. In such event, the Borrowers shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the related Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided , that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) to the Administrative Agent for the account of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) , each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrowers in such amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrowers shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03 .
(iv) Until each Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.
 
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(v) Each Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including: (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, any Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default; or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by any Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of any Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii) , then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant Revolving Credit Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent manifest error.
(d) Repayment of Participations . (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c) , if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrowers or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
 
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(e) Obligations Absolute . The obligation of the Borrowers to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be joint and several, absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Credit Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that any Credit Party or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of the Borrowers or any waiver by the L/C Issuer which does not in fact materially prejudice the Borrowers;
(v) honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;
(vi) any payment made by the L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable;
(vii) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or
(viii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, any Borrower or any of its Subsidiaries.
 
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Each Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with any Borrower’s instructions or other irregularity, such Borrower will immediately notify the L/C Issuer. Each Credit Party shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer . Each Lender and each Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude any Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i)  through (viii)  of Section 2.03(e) ; provided , however , that anything in such clauses to the contrary notwithstanding, any Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to any Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower which such Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“ SWIFT ”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
(g) Applicability of ISP and UCP; Limitation of Liability . Unless otherwise expressly agreed by the L/C Issuer and the Borrowers when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of Credit. Notwithstanding the foregoing, the L/C Issuer
 
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shall not be responsible to the Borrowers for, and the L/C Issuer’s rights and remedies against the Borrowers shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade—International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
(h) Letter of Credit Fees . The Borrowers shall pay to the Administrative Agent for the account of each Lender in accordance, subject to Section 2.15 , with its Applicable Percentage a Letter of Credit fee (the “ Letter of Credit Fee ”) for each Letter of Credit equal to the Applicable Rate for Letter of Credit Fees times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . Letter of Credit Fees shall be (i) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate for Letter of Credit Fees during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by such Applicable Rates separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer . The Borrowers shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . In addition, the Borrowers shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(j) Conflict with Issuer Documents . In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
 
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2.04 Swing Line Loans . (a)  The Swing Line . Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04 , shall make loans (each such loan, a “ Swing Line Loan ”) to any Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided , however , that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments at such time, (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment and (iii) the Total Working Capital Outstandings shall not exceed the Borrowing Base; and provided further , that (y) no Borrower shall use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan and (z) the Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, any Borrower may borrow under this Section 2.04 , prepay under Section 2.05 , and reborrow under this Section 2.04 . Each Swing Line Loan shall bear interest only at a rate based on the Base Rate. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures . Each Swing Line Borrowing shall be made upon the Borrowers’ irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by (A) telephone, or (B) a Committed Loan Notice; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Committed Loan Notice. Each such Committed Loan Notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Promptly after receipt by the Swing Line Lender of any Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a) , or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to such Borrower at its office either by (i) crediting the requested account of a Borrower on the books of the Swing Line Lender in immediately available funds, or (ii) wire transfer of such funds in accordance with instructions provided to (and reasonably acceptable to) the Swing Line Lender by such Borrower.
 
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(c) Refinancing of Swing Line Loans . (i) The Swing Line Lender at any time in its sole discretion may request, on behalf of the Borrowers (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02 , without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02 . The Swing Line Lender shall furnish the Borrowers with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii) , each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrowers in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i) , the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i) , the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii)  shall be conclusive absent manifest error.
 
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(iv) Each Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, any Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02 . No such funding of risk participations shall relieve or otherwise impair the obligation of any Borrower to repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations . (i) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender . The Swing Line Lender shall be responsible for invoicing the Borrowers for interest on the Swing Line Loans. Until each Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender . The Borrowers shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
2.05 Prepayments . (a)  Optional . (i) The Borrowers may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Credit Loans in whole or in part without premium or penalty; provided that: (A) such notice must be in a form reasonably acceptable to the Administrative Agent and be received by the Administrative Agent not later than 11:00 a.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $250,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $250,000 in excess thereof; or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the
 
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date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. If such Borrower fails to specify that a Loan to be prepaid is a Working Capital Draw or an Acquisition Draw, then the Loan to be prepaid shall be deemed to be a Working Capital Draw. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage). If such notice is given by any Borrower, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 . Each prepayment of outstanding Acquisition Draws pursuant to this Section 2.05(a) shall be applied to reduce the then remaining Scheduled Repayments of all Acquisition Draws pro rata (based upon the then remaining principal amounts of the Scheduled Repayments after giving effect to all prior reductions thereto). Subject to Section 2.15 , each such prepayment shall be applied to the Revolving Credit Loans of the Lenders in accordance with their respective Applicable Percentages.
(ii) The Borrowers may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrowers, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(b) Mandatory . (i) If (x) any Credit Party or any of its Subsidiaries Disposes of any property (other than any Disposition expressly permitted by Subsections 7.05(a) through (i)  and (k) ) which results in the realization by such Person of Net Cash Proceeds or (y) there is a disposition of real property which any Credit Party manages or operates pursuant to an Exclusive Management Agreement but does not own, to the extent such disposition results in the realization by any Credit Party or any of its Subsidiaries of Net Cash Proceeds, from all such dispositions, in excess of $10,000,000 in the immediately preceding 365 days, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (iv)  and (vi)  below); provided , however , that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i) , at the election of the Borrowers (as notified by the Borrowers to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Credit Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets or to fund a Permitted Acquisition so long as within 180 days after the receipt of such Net Cash Proceeds, (A) such purchase shall have been consummated (as certified by the Borrowers in writing to the Administrative Agent) or (B) a definitive agreement to reinvest such Net Cash Proceeds within 180 days of the date of such agreement shall have been entered into; and provided further , however , that any Net Cash Proceeds not (1) so reinvested or (2) reinvested pursuant to such definitive agreement within 180 days of the date of such agreement, shall, in each case, be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i) .
 
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(ii) Upon the sale or issuance by the Partnership or any of its Subsidiaries of any of its Equity Interests (other than any sales or issuances of Equity Interests (A) to the Partnership or any of its Subsidiaries, (B) to the extent required by the express terms of the Partnership Agreement, (C) for the purpose of financing all or a portion of any Permitted Acquisition completed within 180 days before or 365 days after receipt of such Net Cash Proceeds, (D) to the General Partner in order for the General Partner to continue to hold two percent (2%) of the issued Partnership Common Units, and (E) to directors, consultants and employees of the General Partner pursuant to the Partnership’s Long Term Incentive Plan), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Partnership or such Subsidiary (such prepayments to be applied as set forth in clauses (iv)  and (vi)  below).
(iii) Upon any Extraordinary Receipt received by or paid to or for the account of any Credit Party or any of its Subsidiaries, and not otherwise included in clause (i)  or (ii)  of this Section 2.05(b) , the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Credit Party or such Subsidiary (such prepayments to be applied as set forth in clauses (iv)  and (vi)  below); provided , however , that (x) so long as no Default shall have occurred and be continuing and the Net Cash Proceeds of any such Extraordinary Receipt do not exceed $500,000, such proceeds shall not be required to be so applied on such date to the extent that a Responsible Officer of such Credit Party has delivered a certificate to the Administrative Agent on or prior to such date stating that such proceeds shall be applied or shall be committed to be applied within 180 days after the receipt of thereof to replace or repair the equipment, fixed assets or real property in respect of which such proceeds were received (which certificate shall set forth the estimates of the proceeds to be so expended), and (y) so long as no Default shall have occurred and be continuing, and to the extent that (a) the Net Cash Proceeds of any such Extraordinary Receipt exceeds $500,000, and (b) a Responsible Officer of such Credit Party has delivered to the Administrative Agent and the Administrative Agent a certificate on or prior to the date the application would otherwise be required pursuant to this Section 2.05(b)(iii) in the form described in clause (x)  above, then the entire amount of such proceeds and not just the portion in excess of $500,000 shall be deposited with the Administrative Agent pursuant to a cash collateral arrangement reasonably satisfactory to the Administrative Agent and the Administrative Agent whereby such proceeds shall be disbursed to such Credit Party from time to time as needed to pay or reimburse such Credit Party in connection with the replacement or restoration of the respective properties or assets (pursuant to such certification requirements as may be established by the Administrative Agent and the Administrative Agent), provided further , that at any time while an Event of Default has occurred and is continuing, the Required Lenders may direct the Administrative Agent (in which case the Administrative Agent shall, and is hereby authorized by the Credit Parties to, follow said directions) to apply any or all proceeds then on deposit in such collateral account to the prepayment of the Loans (such prepayments to be applied as set forth in clauses (iv)  and (vi)  below), and
 
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provided further , that if all or any portion of the Net Cash Proceeds of any Extraordinary Receipt not required to be applied as a mandatory repayment pursuant to the second preceding proviso (whether pursuant to clause (x)  or (y)  thereof) are not so used within 180 days after (A) the date received or (B) the date so committed to be used pursuant to a definitive agreement, to the extent so committed within 180 days of the date received, then such remaining portion not used shall be applied on the final date of such 180 day period as a mandatory repayment in accordance with the requirements of this Section 2.05(b)(iii) .
(iv) Each prepayment of Loans pursuant to Section 2.05(b)(i) , (ii)  or (iii)  shall be applied, first , to the remaining Scheduled Repayments in respect of all Acquisition Draws in inverse order of maturity (and inverse order of the date of each draw to the extent any two or more Acquisition Draws have any identical maturity dates), second , to any Swing Line Loans and third , to outstanding Working Capital Draws.
(v) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments at such time or the Total Working Capital Outstandings at any time exceed the Borrowing Base, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) and Swing Line Loans in an aggregate amount equal to such excess.
(vi) Subject to clause (iv)  above, prepayments made pursuant to this Section 2.05(b) , first , shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second , shall be applied ratably to the outstanding Revolving Credit Loans, and, third , shall be used to Cash Collateralize the remaining L/C Obligations and Swing Line Loans; and, in the case of prepayments required pursuant to this Section 2.05(b) , the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations and Swing Line Loans in full may be retained by the Borrowers for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from any Borrower or any other Credit Party) to reimburse the L/C Issuer or the Lenders, as applicable and upon nonpayment of a Swing Line Loan in accordance with the terms hereof, funds on deposit as Cash Collateral for Swing Line Loans shall be applied to repay and reimburse the Swing Line Lender.
(c) In the absence of a designation by the Borrowers, the Administrative Agent shall, subject to the above, make such designation in its sole discretion with a view, but no obligation, to minimize breakage costs owing under Section 3.05 .
2.06 Termination or Reduction of Commitments . (a)  Optional . The Borrowers may, upon notice to the Administrative Agent, terminate the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit, or from time to time permanently reduce the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit; provided that (i) any such notice shall be received by the Administrative Agent
 
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not later than 11:00 a.m. three Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $1,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrowers shall not terminate or reduce (A) the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or (C) the Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit or the Outstanding Amount of Swing Line Loans not fully Cash Collateralized hereunder would exceed the Swing Line Sublimit.
(b) Mandatory . If after giving effect to any reduction or termination of Commitments under this Section 2.06 , the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the Aggregate Commitments at such time, the Letter of Credit Sublimit or the Swing Line Sublimit, as the case may be, shall be automatically reduced by the amount of such excess.
(c) Application of Commitment Reductions; Payment of Fees . The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, Swing Line Sublimit or the Aggregate Commitments under this Section 2.06 . Upon any reduction of the Aggregate Commitments, the Commitment of each Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount. All fees in respect of the Aggregate Commitments accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.
2.07 Repayment of Loans . (a)  Acquisition Draws . The Borrowers shall repay to the Lenders the aggregate principal amount of each Acquisition Draw in quarterly installments (each a “ Scheduled Repayment ”), based on a ten (10) year principal amortization schedule of equal quarterly principal payments (which amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.05 ), with the first such quarterly principal payment to be made on second anniversary of the date such Acquisition Draw was made, with quarterly principal payments to be made on each three (3) month interval thereafter, provided , however , that (i) if there shall be no corresponding date in any applicable month in which any such principal payment would otherwise be due, such payment shall be due on the last Business Day of such month and (ii) the final principal repayment installment of each Acquisition Draw shall be due on the Maturity Date and in any event shall be in an amount equal to the aggregate principal amount of such Acquisition Draw outstanding on such date.
(b) Revolving Credit Loans . The Borrowers shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Revolving Credit Loans outstanding on such date. All “Loans” outstanding under the Existing Credit Agreement on the Closing Date, if any, shall be deemed to be Revolving Credit Loans hereunder, and all such “Loans” shall be designated as (i) Acquisition Draws in the amount of $25,000,000, made as of the Closing Date (including for the purposes of this Section 2.07 ), or (ii) Working Capital Draws in the amount of $95,902,318.31.
 
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(c) Swing Line Loans . The Borrowers shall repay each Swing Line Loan on the earlier to occur of (i) the date ten Business Days after such Loan is made and (ii) the Maturity Date.
2.08 Interest . (a) Subject to the provisions of Section 2.08(b) , (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate for Eurodollar Rate Loans; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for Base Rate Loans; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for the Base Rate Loans.
(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the Borrowers under any Credit Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of Default exists (other than as set forth in clauses (b)(i) and (b)(ii) above), the Borrowers shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
2.09 Fees . In addition to certain fees described in Sections 2.03(h) and (i) :
(a) Commitment Fee . The Borrowers shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the Commitment Fee Rate times the actual daily amount by which the Aggregate Commitments exceeds the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided by Section 2.15 .
 
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For the avoidance of doubt, the Outstanding Amount of Swing Line Loans shall not be counted towards or considered usage of the Aggregate Commitments for purposes of determining the commitment fee. The commitment fee shall accrue at all times during the relevant Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Commitment Fee Rate during any quarter, the actual daily amount shall be computed and multiplied by the Commitment Fee Rate separately for each period during such quarter that such Commitment Fee Rate was in effect.
(b) Other Fees . (i) The Borrowers shall pay to the Arranger and the Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
(ii) The Borrowers shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate . (a) All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a) , bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
(b) If, as a result of any restatement of or other adjustment to the financial statements of the Partnership or for any other reason, the Credit Parties or the Lenders determine that (i) the Consolidated Leverage Ratio as calculated by the Partnership as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for such period, the Borrowers shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Credit Party under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section 2.03(c)(iii) , 2.03(i) or 2.08(b) or under Article VIII . The Borrowers’ obligations under this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.
 
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(c) The Borrowers shall have the option, by delivering written notice thereof to the Administrative Agent at the time of the consummation of any Permitted Acquisition, to set, as of the date of such Permitted Acquisition, a new Start Date for purposes of calculating the then Commitment Fee Rate and Applicable Rate, to be calculated based upon the Consolidated Leverage Ratio set forth in the related Compliance Certificate delivered pursuant to Section 7.03(h)(viii) .
2.11 Evidence of Debt . (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to any Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrowers shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in Section 2.11(a) , each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
2.12 Payments Generally; Administrative Agent’s Clawback . (a)  General . All payments to be made by the Borrowers shall be made free and clear and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected on computing interest or fees, as the case may be.
 
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(b) (i) Funding by Lenders; Presumption by Administrative Agent . Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02 ) and may, in reliance upon such assumption, make available to any Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrowers severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to any Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowers, the interest rate applicable to Base Rate Loans. If the Borrowers and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrowers the amount of such interest paid by the Borrowers for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrowers shall be without prejudice to any claim the Borrowers may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent . Unless the Administrative Agent shall have received notice from the Borrowers prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrowers will not make such payment, the Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
 
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A notice of the Administrative Agent to any Lender or the Borrowers with respect to any amount owing under this subsection (b)  shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent . If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II , and such funds are not made available to the Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several . The obligations of the Lenders hereunder to make Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c) .
(e) Funding Source . Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f) Insufficient Funds . If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i)  first , toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii)  second , toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.
2.13 Sharing of Payments by Lenders . If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Revolving Credit Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Revolving Credit Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Revolving Credit Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Revolving Credit Loans and other amounts owing them, provided that:
 
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(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Borrowers pursuant to and in accordance with the express terms of this Agreement (including application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.14 , or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Revolving Credit Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to any Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).
Each Credit Party consents to the foregoing and agrees, to the fullest extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Credit Party in the amount of such participation.
2.14 Cash Collateral .
(a) Certain Credit Support Events . If (i) the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (iii) the Borrowers shall be required to provide Cash Collateral pursuant to Section 8.02(c) , or (iv) there shall exist a Defaulting Lender, the Borrowers shall immediately (in the case of clause (iii)  above) or within one Business Day (in all other cases) following any request by the Administrative Agent or the L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv)  above, after giving effect to Section 2.15(a)(iv) and any Cash Collateral provided by the Defaulting Lender.
(b) Grant of Security Interest . The Borrowers, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.14(c) . If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the L/C Issuer as herein provided, other than Permitted Liens, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrowers will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained
 
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in one or more Controlled Accounts at the Collateral Agent. The Borrowers shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
(c) Application . Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.14 or Sections 2.03 , 2.04 , 2.05 , 2.15 or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(d) Release . Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi) )) or (ii) the determination by the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided , however, (x) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Credit Documents and the other applicable provisions of the Credit Documents, and (y) the Person providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.15 Defaulting Lenders .
(a) Adjustments . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Waivers and Amendments . Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 11.01 .
(ii) Defaulting Lender Waterfall . Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder; third , to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.14 ; fourth , as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its
 
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portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the Borrowers, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.14 ; sixth , to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.15(a)(iv) . Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees .
(A) No Defaulting Lender shall be entitled to receive any fee payable under Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(B) Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.14 .
(C) With respect to any fee payable under Section 2.09(a) or any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A)  or (B)  above, the Borrowers shall (x) pay to each Non-Defaulting
 
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Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv)  below, (y) pay to the L/C Issuer and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee
(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure . All or any part of such Defaulting Lender’s participation in L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v) Cash Collateral, Repayment of Swing Line Loans . If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, (x)  first , prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y)  second , Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.14 .
(b) Defaulting Lender Cure . If the Borrowers, the Administrative Agent, Swing Line Lender and the L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Credit Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.15(a)(iv) ), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
 
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2.16 Borrower Funds Administrator .
(a) Borrowers maintain an integrated cash management system reflecting their interdependence on one another and the mutual benefits shared among them as a result of their respective operations. In order to efficiently fund and operate their respective businesses and minimize the number of borrowings which they will make under this Agreement and thereby reduce the administrative costs and record keeping required in connection therewith, including the necessity to enter into and maintain separately identified and monitored borrowing facilities, Borrowers have requested, and Administrative Agent and Lenders have agreed that, subject to Section 10.10 , all Loans will be advanced to and for the account of Borrowers (other than the Controlled Non-Profits) on a joint and several basis in accordance with the other provisions hereof. Each Borrower hereby acknowledges that it will be receiving a direct benefit from each Loan made pursuant to this Agreement.
(b) Each Borrower hereby designates, appoints, authorizes and empowers the Operating Company as its agent to act as specified in this Agreement and each of the other Credit Documents and the Operating Company hereby acknowledges such designation, authorization and empowerment, and accepts such appointment. Each Borrower hereby irrevocably authorizes and directs the Operating Company to take such action on its behalf under the provisions of this Agreement and the other Credit Documents, and any other instruments, documents and agreements referred to herein or therein, and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of the Operating Company by the respective terms and provisions hereof and thereof, and such other powers as are reasonably incidental thereto, including, without limitation, to take the following actions for and on such Borrower’s behalf:
(i) to submit on behalf of each Borrower, Requests for Credit Extensions in accordance with the provisions of this Agreement;
(ii) to receive on behalf of each Borrower the proceeds of Loans in accordance with the provisions of this Agreement, such proceeds to be disbursed to or for the account of the applicable Borrower as soon as practicable after its receipt thereof; and
(iii) to submit and receive on behalf of each Borrower, Compliance Certificates and all other certificates, notices and other communications given or required to be given hereunder.
The Operating Company is further authorized and directed by each Borrower to take all such actions on behalf of such Borrower necessary to exercise the specific power granted in clauses (i)  through (iii)  above and to perform such other duties hereunder and under the other Credit Documents, and deliver such documents as delegated to or required of the Operating Company by the terms hereof or thereof. The agency relationship established pursuant to this Section 2.16(b) is for administrative convenience only and such agency relationship shall not extend to any matter outside the scope of the Credit Documents.
 
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(c) The administration by Administrative Agent and Lenders of the credit facilities under this Agreement as a co-borrowing facility with a funds administrator in the manner set forth herein is solely as an accommodation to Borrowers and at their request and neither the Administrative Agent, the Administrative Agent, the L/C Issuer nor any Lender shall incur any liability to any Credit Party as a result thereof.
2.17 Increase in Commitments .
(a) Request for Increase . Provided there exists no Default, upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrowers may from time to time, request an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding $70,000,000; provided that (i) any such request for an increase shall be in a minimum amount of $5,000,000 and in increments of $1,000,000 in excess thereof or, if less, the entire remaining unrequested amount, and (ii) the Borrowers may make a maximum of three (3) such requests. At the time of sending such notice, the Borrowers (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the Lenders).
(b) Lender Elections to Increase . Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.
(c) Notification by Administrative Agent; Additional Lenders . The Administrative Agent shall notify the Borrowers and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent, the L/C Issuer and the Swing Line Lender, the Borrowers may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(d) Effective Date and Allocations . If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “ Increase Effective Date ”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of such increase and the Increase Effective Date.
(e) Conditions to Effectiveness of Increase . As a condition precedent to such increase, the Borrowers shall deliver to the Administrative Agent a certificate of each Credit Party dated as of the Increase Effective Date signed by a Responsible Officer of such Credit Party (x) certifying and attaching the resolutions adopted by such Credit Party approving or consenting to such increase, and (y) in the case of the Borrowers, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Credit Documents are true and correct in all material respects on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.17 , the representations and warranties contained in subsections (a)  and (b)  of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to
 
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subsections (a)  and (b) , respectively, of Section 6.01 , and (B) no Default exists. The Borrower shall prepay any Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05 ) to the extent necessary to keep the outstanding Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section.
(f) Conflicting Provisions . This Section shall supersede any provisions in Section 2.13 or 11.01 to the contrary.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes .
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes .
(i) Any and all payments by or on account of any obligation of any Credit Party under any Credit Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the Administrative Agent) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Credit Party, then the Administrative Agent or such Credit Party shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (e)  below.
(ii) If any Credit Party or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e)  below, (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Credit Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01 ) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(iii) If any Credit Party or the Administrative Agent shall be required by any applicable Laws other than the Code to withhold or deduct any Taxes from any payment, then (A) such Credit Party or the Administrative Agent, as required by such Laws, shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to subsection (e)  below, (B) such Credit Party or the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the
 
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sum payable by the applicable Credit Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01 ) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(b) Payment of Other Taxes by the Borrowers . Without limiting the provisions of subsection (a)  above, the Credit Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Tax Indemnifications .
(i) Each of the Credit Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01 ) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrowers by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error. Each of the Credit Parties shall, and does hereby, jointly and severally indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, for any amount which a Lender or the L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required pursuant to Section 3.01(c)(ii) below.
(ii) Each Lender and the L/C Issuer shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand therefor, ( x ) the Administrative Agent against any Indemnified Taxes attributable to such Lender or the L/C Issuer (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), ( y ) the Administrative Agent and the Credit Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the maintenance of a Participant Register and ( z ) the Administrative Agent and the Credit Parties, as applicable, against any Excluded Taxes attributable to such Lender or the L/C Issuer, in each case, that are payable or paid by the Administrative Agent or a Credit Party in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any other Credit Document against any amount due to the Administrative Agent under this clause (ii) .
 
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(d) Evidence of Payments . As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority as provided in this Section 3.01 , such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders; Tax Documentation .
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A) , (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form
 
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W-8BENE (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BENE (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed copies of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrowers within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed copies of IRS Form W-8BENE (or W-8BEN, as applicable); or
(4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BENE (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3 , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation
 
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prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D) , “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
(f) Treatment of Certain Refunds, Etc . Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as the case may be. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by any Credit Party or with respect to which any Credit Party has paid additional amounts pursuant to this Section 3.01 , it shall pay to the Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Credit Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Credit Party, upon the request of the Recipient, agrees to repay the amount paid over to the Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to the Credit Party pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Credit Party or any other Person.
(g) Survival . Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
 
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3.02 Illegality . If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to perform any of its obligations hereunder or make, maintain or fund or charge interest with respect to any Credit Extension, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, (i) any obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Credit Extension or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.
3.03 Inability to Determine Rates . If in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof, (a) the Administrative Agent determines that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, or (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan (in each case with respect to clause (a)(i) above, “ Impacted Loans ”), or (b) the Administrative Agent or the Required Lenders determine that for any reason the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar Rate Loan, the Administrative Agent will promptly so notify the Borrowers and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrowers may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
 
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Notwithstanding the foregoing, if the Administrative Agent has made the determination described in clause (a)(i) of this section, the Administrative Agent, in consultation with the Borrowers and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a)  of the first sentence of this section, (2) the Administrative Agent or the Required Lenders notify the Administrative Agent and the Borrowers that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing and provides the Administrative Agent and the Borrowers written notice thereof.
3.04 Increased Costs; Reserves on Eurodollar Rate Loans . (a)  Increased Costs Generally . If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e) ) or the L/C Issuer;
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, and (B) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrowers will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements . If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s
 
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holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrowers will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.
(c) Certificates for Reimbursement . A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a)  or (b)  of this Section and delivered to the Borrowers shall be conclusive absent manifest error. The Borrowers shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests . Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided that the Borrowers shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
(e) Reserves on Eurodollar Rate Loans . The Borrowers shall pay to each Lender, if and as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrowers shall have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 10 days from receipt of such notice.
 
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3.05 Compensation for Losses . Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by any Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by any Borrower pursuant to Section 11.13 ;
including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrowers to the Lenders under this Section 3.05 , each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.
3.06 Mitigation Obligations; Replacement of Lenders .
(a) Designation of a Different Lending Office . If any Lender requests compensation under Section 3.04 , or requires the Borrowers to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , or if any Lender gives a notice pursuant to Section 3.02 , then at the request of the Borrowers such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04 , as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02 , as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders . If any Lender requests compensation under Section 3.04 , or if the Borrowers are required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a) , the Borrowers may replace such Lender in accordance with Section 11.13 .
 
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3.07 Survival . All of the Borrowers’ obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder, and resignation of the Administrative Agent.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension . The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be either originals or telecopies or electronic copies, followed in either case promptly by originals, unless otherwise specified, each properly executed by a Responsible Officer of the signing Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Operating Company;
(ii) an amended and restated Note executed by the Borrowers in favor of each Lender;
(iii) the Pledge Agreement and the Security Agreement, each duly executed by each Credit Party, together with, to the extent in each case not previously delivered to the Administrative Agent:
(A) certificates representing any Pledged Equity referred to therein accompanied by undated stock powers executed in blank registered in the name of such nominee or nominees as the Administrative Agent shall specify and instruments evidencing the Pledged Debt indorsed in blank, to the extent not previously delivered to the Administrative Agent pursuant to the Existing Credit Agreement,
(B) stamped receipt copies of proper financing statements, duly filed on or before the day of the initial Credit Extension under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, to the extent not previously received by the Administrative Agent pursuant to the Existing Credit Agreement,
(C) completed UCC, tax and judgment lien search requests, dated through a recent date approved by the Administrative Agent, for such Credit Parties as may be agreed to between the Borrowers and the Administrative Agent, in its reasonable discretion,
 
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(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby, and
(E) evidence that all other action that any Lender may deem necessary or desirable in order to perfect the Liens created under the Security Documents has been taken;
(iv) amended and restated Mortgages, amending and restating each of the existing Mortgages (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) delivered under the Original Credit Agreement, the Second Credit Agreement, the Prior Credit Agreement or the Existing Credit Agreement, and covering the properties identified on Schedules 5.08(c) , (d)(i) and (d)(ii) which are legally permitted to be mortgaged, each duly executed by the appropriate Credit Party, together with:
(A) evidence that counterparts of each such amended and restated Mortgage has been duly executed, acknowledged and delivered and is in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid;
(B) modifications to the Mortgage Policies for the Mortgages, with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring such amended and restated Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and other Liens permitted under the Credit Documents, and providing for such other affirmative insurance (including (i) endorsements for future advances under the Credit Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property, (ii) standard flood hazard determination forms and (iii) if any property is located in a special flood hazard area, (x) notices to (and confirmations of receipt by) the Borrowers as to the existence of special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and (y) evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent), affidavits of no change with respect to surveys and such other documents as the Administrative Agent or title insurer may deem necessary or desirable; and
 
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(C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken, subject only to Permitted Encumbrances;
(v) an officer’s certificate (A) attaching a certified copy of each Credit Party’s Organizational Documents, (B) attaching resolutions authorizing the Transaction, each, in form and substance satisfactory to the Administrative Agent, and (C) attaching incumbency certificates and/or other certificates of Responsible Officers of each Credit Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Credit Documents to which such Credit Party is a party or is to be a party;
(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Credit Party is duly organized or formed, and that each Credit Party is validly existing, in good standing and qualified to engage in business in (A) its jurisdiction of incorporation or organization and (B) each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) a favorable opinion of Blank Rome, counsel to the Credit Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Credit Parties and the Credit Documents as the Required Lenders may reasonably request;
(viii) a favorable opinion of local counsel to each of the Credit Parties (other than those Credit Parties organized under the Laws of Connecticut, Hawaii, New York and Oklahoma, which are, in each instance, without tangible or other material assets), addressed to the Administrative Agent and each Lender, as to such matters concerning the Credit Parties and the Credit Documents as the Required Lenders may reasonably request, including, where applicable, the Mortgages;
(ix) a certificate signed by a Responsible Officer of the Borrowers certifying: (A) that the conditions specified in Sections 4.02(a) and (b)  have been satisfied; (B) that there has been no event or circumstance since December 31, 2013, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) all materials and information provided to the Lenders by the Credit Parties in connection with the Transaction was, at the time provided, and continues to be complete and correct in all material respects as of the Closing Date; (D) either (1) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Credit Party of the Transaction and the execution, delivery and performance by such Credit Party and the validity against such Credit Party of the Credit Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (2) stating that no such consents, licenses or approvals are so required; and (E) confirming that the Revolving Credit Facility is permitted under the High Yield Notes Indenture;
 
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(x) a Borrowing Base Certificate showing the Borrowing Base as of November 30, 2014; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(b) Title searches with respect to the Borrowers’ cemeteries which are subject to Mortgages, evidencing that the Collateral Agent has a continuing valid and perfected first priority lien and security interest in and to the property subject to such Mortgages (subject only to Permitted Liens).
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings ( provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent).
(d) There shall not have occurred since December 31, 2013, any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have: (i) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Partnership and its Subsidiaries taken as a whole; (ii) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Credit Document, or of the ability of any Credit Party to perform its obligations under any Credit Document to which it is a party; or (iii) a material adverse effect upon the legality, validity, binding effect or enforceability against the Partnership and its Subsidiaries taken as a whole of any Credit Document.
Without limiting the generality of the provisions of the last paragraph of Section 9.03 , for purposes of determining compliance with the conditions specified in this Section 4.01 , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02 Conditions to all Credit Extensions . The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:
 
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(a) The representations and warranties of each Credit Party contained in Article V or any other Credit Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02 , the representations and warranties contained in Sections 5.05(a) and (b)  shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b) , respectively.
(b) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. If such Request for Credit Extension is in connection with a new Acquisition Draw, such Request for Credit Extension shall be accompanied by evidence reasonably satisfactory to the Administrative Agent that such funds were used or are to be used in accordance with the purpose identified (i.e., purchase agreements, invoices and/or evidence of payments of related amounts and deposits in related Trust Accounts where applicable).
(d) In the case of any Working Capital Draw, the Borrowing Base equals or exceeds the Total Working Capital Outstandings at such time, after giving effect to such Credit Extension.
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by any Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b)  have been satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Credit Party represents and warrants to the Administrative Agent and the Lenders that:
5.01 Existence, Qualification and Power . Each Credit Party and each of its Subsidiaries (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Credit Documents to which it is a party and consummate the Transaction, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c) , to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
 
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5.02 Authorization; No Contravention . None of the execution, delivery or performance by any Credit Party of any Credit Document to which it is a party, compliance by any Credit Party with the terms and provisions thereof, or the consummation of the transactions contemplated herein or therein:
(a) on the Closing Date, (i) will 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) will 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 (other than pursuant to the Security Documents) result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of any Credit Party pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, credit agreement or any other agreement or instrument to which any Credit Party is a party or by which it or any of its property or assets are bound or to which it may be subject, or (iii) will 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, of any Credit Party; or
(b) after the Closing Date, (i) will contravene, conflict with or result in a breach or default under any material provision of any material applicable Law, statute, rule or regulation, or any order, writ, injunction, judgment, ruling or decree of any court, arbitrator or governmental instrumentality, (ii) will 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 (other than pursuant to the Security Documents) 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 material indenture, mortgage, deed of trust, loan agreement, credit agreement or any other material agreement or instrument to which any Credit Party is a party or by which it or any of its property or assets are bound or to which it may be subject, or (iii) will 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, of any Credit Party.
(c) at any time, contravene, conflict with or result in a breach or default under any registration, license, permit or certificate to conduct any cemetery or funeral home business issued by any Governmental Authority.
5.03 Governmental Authorization; Other Consents . No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Credit Party of this Agreement or any other Credit Document, or for the consummation of the Transaction, (b) the grant by any Credit Party of the Liens granted by it pursuant to the Security Documents, (c) the perfection or maintenance of the Liens created under the Security Documents, or (d) the priority of such Liens required under the Credit Documents.
 
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5.04 Binding Effect . This Agreement has been, and each other Credit Document, when delivered hereunder, will have been, duly executed and delivered by each Credit Party that is party thereto. This Agreement constitutes, and each other Credit Document when so delivered will constitute, a legal, valid and binding obligation of such Credit Party, enforceable against each Credit Party that is party thereto in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law).
5.05 Financial Statements; No Material Adverse Effect . (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects the financial condition of the Partnership and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) to the extent required by GAAP, show all material indebtedness and other liabilities, direct or contingent, of the Partnership and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
(b) The unaudited consolidated balance sheet of the Partnership and its Subsidiaries dated June 30, 2014, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of the Partnership and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i)  and (ii) , to the absence of footnotes and to normal year-end audit adjustments.
(c) Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
(d) The consolidated budgets of the Partnership and its Subsidiaries for 2014 delivered pursuant to the Existing Credit Agreement were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Partnership’s best estimate of its and its Subsidiaries future financial condition and performance, it being recognized by the Lenders that such forecasts are not to be viewed as facts and that actual results during the period or periods covered by any such forecasts may differ from the projected results contained therein and such differences may be material.
5.06 Litigation . There are no actions, suits, proceedings or investigations pending or, to any Credit Party’s knowledge, threatened against or affecting, nor has any Credit Party received any notices of a claim, (a) with respect to any Credit Document or any portion of the Transaction, or (b) against any Credit Party (i) as of the Closing Date, as to which the amount in controversy is in excess of the Threshold Amount or (ii) that if adversely determined could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Additionally, there does not exist any judgment, order or injunction prohibiting or imposing material adverse conditions upon the occurrence of any Credit Extension.
 
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5.07 No Default . Neither any Credit Party nor any Subsidiary thereof is in default under or with respect to, or a party to, any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Credit Document.
5.08 Ownership of Property; Liens; Investments . (a) Each Credit Party and each of its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) The property of each Credit Party and each of its Subsidiaries is subject to no Liens other than Permitted Liens.
(c) Schedule 5.08(c) sets forth a complete and accurate list of all real property owned by each Credit Party and each of its Subsidiaries as of the Closing Date, showing as of the date hereof the street address, county or other relevant jurisdiction, state and record owner thereof. Each Credit Party and each of its Subsidiaries has good, marketable and insurable fee simple title to the real property owned by such Credit Party or such Subsidiary, free and clear of all Liens, other than Permitted Liens.
(d) (i) Schedule 5.08(d)(i) sets forth a complete and accurate list of all leases of real property under which any Credit Party or any Subsidiary of a Credit Party is the lessee as of the Closing Date (other than intercompany leases among the Credit Parties), showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor, lessee and expiration date thereof. Each such lease is the legal, valid and binding obligation of the lessor thereof, enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law).
(ii) Schedule 5.08(d)(ii) sets forth a complete and accurate list of all leases of real property under which any Credit Party or any Subsidiary of a Credit Party is the lessor as of the Closing Date (other than intercompany leases among the Credit Parties), showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor, lessee and expiration date thereof. Each such lease is the legal, valid and binding obligation of the lessee thereof, enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws and by equitable principles (regardless of whether enforcement is sought in equity or at law).
(e) Except as set forth on Schedule 5.08(e) , no Credit Party or Subsidiary thereof maintains any Investments other than Investments permitted under Section 7.03 hereof.
5.09 Environmental Compliance . (a) The Credit Parties and their respective Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any
 
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Environmental Law on their respective businesses, operations and properties, and as a result thereof the Credit Parties have reasonably concluded that such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Except as (i) could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (ii) otherwise set forth in Schedule 5.09 : (A) none of the properties currently or formerly owned or operated by any Credit Party or any of its Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Credit Party or any of its Subsidiaries or, to the best of the knowledge of the Credit Parties, on any property formerly owned or operated by any Credit Party or any of its Subsidiaries; (C) there is no asbestos or asbestos-containing material on any property currently owned or operated by any Credit Party or any of its Subsidiaries; and (D) Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Credit Party or any of its Subsidiaries.
(c) Except as (i) could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (ii) otherwise set forth on Schedule 5.09 : (A) neither any Credit Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law; and (B) all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Credit Party or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in material liability to any Credit Party or any of its Subsidiaries.
5.10 Insurance . The properties of each Borrower and their Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of any Credit Party, in such amounts, with such deductibles and covering such risks as (a) are customarily carried by companies engaged in similar businesses and owning similar properties in localities where such Borrower or the applicable Subsidiary operates and (b) are necessary to ensure that Uninsured Liabilities of any Borrower and/or any Subsidiary are not reasonably likely to result in a Material Adverse Effect.
5.11 Taxes . The Credit Parties and their Subsidiaries have filed all Federal and other material tax returns and reports required to be filed, and have paid all Federal and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except for (a) the filing of tax returns (other than Federal tax returns), the failure of which to file could not reasonably be expected to be material in relation to the business, properties, assets, operations, liabilities, prospects or financial condition of the Credit Parties taken as a whole, and (b) the payment of
 
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taxes and assessments (i) the amount of which is not individually, or in the aggregate, material in relation to the business, properties, assets, operations, liabilities, prospects or financial condition of the Credit Parties taken as a whole or (ii) which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no material action, suit, proceeding, investigation, audit, or claim now pending or, to the knowledge of any Credit Party, threatened by any authority regarding any taxes relating to any Credit Party. No Credit Party knows of any basis for any other taxes or assessments that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. No Credit Party has entered into an agreement or waiver or been requested to enter into an agreement or waiver extending any statute of limitations relating to the payment or collection of taxes of any Credit Party, or is aware of any circumstances that would cause the taxable years or other taxable periods of any Credit Party not to be subject to the normally applicable statute of limitations. The income of the Partnership, of the Operating Company and of the Subsidiaries of the Operating Company that are intended by the Partnership to be treated as disregarded entities pursuant to Treas. Reg. Section 301.7701-3, is not subject to federal income tax at the company level. Neither any Credit Party nor any Subsidiary thereof is party to any Tax Allocation Agreement.
5.12 ERISA Compliance . (a) Each (i) Plan (other than any Multiemployer Plan) is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state laws, and, to the best knowledge of the Borrowers, each Multiemployer Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state laws, and (ii) Plan that is intended to be a qualified plan under Section 401(a) of the Code, to the best knowledge of the Borrowers, has received a favorable determination letter from the Internal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the Internal Revenue Service or the document upon which such Plan is drafted is covered by an advisory or opinion letter issued by the Internal Revenue Service. To the best knowledge of the Borrowers, nothing has occurred that would prevent or cause the loss of such tax-qualified status.
(b) There are no pending or, to the best knowledge of any Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) Except to the extent none of the following could, individually or in the aggregate, reasonably be expected to result in liability of the Borrowers in excess of the Threshold Amount: (i) no ERISA Event has occurred, and neither any Borrower nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan or Multiemployer Plan; (ii) each Borrower and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan and Multiemployer Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained for any Pension Plan or, to the best knowledge of any Borrower, Multiemployer Plan;
 
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(iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither any Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) neither any Borrower nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v) neither any Borrower nor any ERISA Affiliate has engaged in a transaction that could reasonably be expected to be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan or Multiemployer Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause (A) the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan or (B) to the best knowledge of any Borrower, a Multiemployer Plan to be in reorganization under Section 4241 of ERISA or become insolvent under Section 4245 of ERISA.
(d) Neither any Borrower or any ERISA Affiliate maintains or contributes to, or has any unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan or Multiemployer Plan other than (A) on the Closing Date, those listed on Schedule 5.12(d) hereto and (B) thereafter, Pension Plans and Multiemployer Plans not otherwise prohibited by this Agreement.
5.13 Subsidiaries; Equity Interests; Credit Parties .
(a) No Credit Party has any Subsidiaries other than those (i) specifically disclosed in Schedule 5.13 or (ii) formed or acquired after the Closing Date in accordance with Section 7.03 , and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and, to the extent applicable, non-assessable and are owned by a Credit Party in the amounts specified on Schedule 5.13 (or any update thereto) free and clear of all Liens except those created under the Security Documents. Schedule 5.13 is a complete and accurate list of all Credit Parties as of the Closing Date, showing (as to each such Credit Party) (i) the exact legal name, (ii) any former legal names of such Credit Party in the four (4) months prior to the Closing Date, (iii) the jurisdiction of its incorporation or organization, as applicable, (iv) the type of organization, (v) the jurisdictions in which such Credit Party is qualified to do business, (vi) the address of its chief executive office, (vii) the address of its principal place of business, (viii) its U.S. federal taxpayer identification, and (ix) the organization identification number.
(b) No Credit Party has any equity investments in any other corporation or entity (other than a Subsidiary) other than those permitted under Section 7.03 .
(c) All of the outstanding Equity Interests in the Borrowers have been validly issued, are fully paid and, to the extent applicable, non-assessable and are owned by the Credit Parties and in the amounts specified on Schedule 5.21(d) free and clear of all Liens except those created under the Security Documents.
(d) The copy of each Organizational Document (including all amendments thereto) of each Credit Party delivered to the Administrative Agent by the Credit Parties is a true and correct copy of each such Organizational Document, and is valid and in full force and effect (as so amended).
 
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5.14 Margin Regulations; Investment Company Act . (a) No Credit Party is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrowers, any Person Controlling any Borrower, or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
5.15 Disclosure.
(a) The Credit Parties have disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which any Credit Party is subject, and all other matters known to any of them, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(b) As of the Closing Date, no Material Contracts (other than the High Yield Documents), Shareholders’ Agreements or Tax Allocation Agreements exist, and no Management Agreements exist other than Exclusive Management Agreements and Cemetery Management Agreements.
(c) The reports, financial statements, certificates and other factual information, taken as a whole, furnished (whether in writing or orally) by or on behalf of any Credit Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Credit Document (in each case as modified or supplemented by other information so furnished) do not contain any material misstatement of fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Credit Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time, it being recognized by the Lenders that such projections are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results contained therein and such differences may be material.
5.16 Compliance with Laws . Each Credit Party and each Subsidiary thereof is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
 
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5.17 Intellectual Property; Licenses, Etc . Each Credit Party and each of its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “ IP Rights ”) that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, and Schedule 5.17 sets forth a complete and accurate list of (a) all such IP Rights owned by any Credit Party and registered with any Governmental Authority (other than trade names), and (b) all material trade names of the Credit Parties (whether or not registered), each as of the Closing Date. To the best knowledge of the Credit Parties, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by any Credit Party or any of its Subsidiaries infringes upon any rights held by any other Person. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Borrowers, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
5.18 Solvency . Each of the Partnership and the Operating Company is, individually and together with its Subsidiaries on a consolidated basis, in each case taking into account any rights of subrogation and contribution among the Credit Parties, Solvent.
5.19 Casualty, Etc . Neither the businesses nor the properties of any Credit Party or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
5.20 Labor Matters . No Credit Party is engaged in any unfair labor practice that has had or could reasonably be expected to have, a Material Adverse Effect. There is no (a) unfair labor practice complaint pending against any Credit Party or, to the knowledge of any Credit Party, threatened against any of them, before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending against any Credit Party or, to the knowledge of any Credit Party, threatened against any of them, (b) strike, labor dispute, slowdown or stoppage pending against any Credit Party or, to the knowledge of any Credit Party, threatened against any Credit Party and (c) union representation question existing with respect to the employees of any Credit Party and no union organizing activities are taking place, except (with respect to any matter specified in clause (a) , (b)  or (c)  above, either individually or in the aggregate) such as has not had and could not reasonably be expected to have, a Material Adverse Effect.
5.21 Collateral Representations .
(a) Security Documents . The provisions of the Security Documents are effective to create in favor of the Administrative Agent a legal, valid and enforceable first priority Lien (subject to Permitted Liens) on all right, title and interest of the respective Credit Parties in the Collateral described therein. Except for filings completed on or prior to the Closing Date and as contemplated hereby and by the Security Documents, no filing or other action will be necessary to perfect or protect such Liens.
 
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(b) Deposit Accounts and Securities Accounts . Set forth on Schedule 5.21(b) , as of the Closing Date and as of the last date such Schedule was required to be updated in accordance with Section 6.02 , is a description of all Deposit Accounts and Securities Accounts of the Credit Parties, including the name of (A) the applicable Credit Party, (B) in the case of a Deposit Account, the depository institution, and (C) in the case of a Securities Account, the Securities Intermediary or issuer.
(c) Commercial Tort Claims . Set forth on Schedule 5.21(c) , as of the Closing Date and as of the last date such Schedule was required to be updated in accordance with Section 6.02 , is a description of all Commercial Tort Claims of the Credit Parties in an amount of $500,000 or more (detailing such Commercial Tort Claim in such detail as reasonably requested by the Administrative Agent).
(d) Pledged Equity Interests . Set forth on Schedule 5.21(d) , as of the Closing Date and as of the last date such Schedule was required to be updated in accordance with Section 6.02 , is a list of all Pledged Equity, the Person whose Equity Interests are pledged, the number of shares of each class of Equity Interests, the certificate number (if any) and percentage ownership of outstanding shares of each class of Equity Interests and the class or nature of such Equity Interests (i.e. voting, non-voting, preferred, etc.).
(e) Pledged Notes . Set forth on Schedule 5.21(e) , as of the Closing Date and as of the last date such Schedule was required to be updated in accordance with Section 6.02 , is a description of (i) all intercompany notes issued to each Credit Party and (ii) all other Instruments and Promissory Notes in excess of $500,000 issued to, or held by, each of the Credit Parties (including the Credit Party owning such intercompany note, Instrument or Promissory Note and such other information as reasonably requested by the Administrative Agent).
5.22 Capitalization . On the Closing Date, the outstanding Equity Interests in the Partnership shall consist of (i) the general partner interest in the Partnership, (ii) “incentive distribution rights” (as defined in the Partnership Agreement) issued to the General Partner, (iii) the outstanding Partnership Common Units, and (iv) rights of directors, consultants and employees of the General Partner to acquire Partnership Common Units or their equivalent pursuant to the Partnership’s Long Term Incentive Plan. On the Closing Date, all outstanding Equity Interests in the Partnership have been duly and validly issued and are fully paid and free of any preemptive rights. As of the Closing Date, the Partnership does not have outstanding any securities convertible into or exchangeable for its units or outstanding any rights to subscribe for or to purchase, or any options for the purchase of, or any agreement providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims for the issuance of the Partnership Common Units other than pursuant to the Partnership’s Long Term Incentive Plan.
5.23 Tax Shelter Regulations . The Borrowers do not intend to treat any Loan or Letter of Credit and related transactions as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4). In the event any Borrower determines to take any action inconsistent with such intention, it will promptly notify the Administrative Agent thereof. If any Borrower so notifies the Administrative Agent, such Borrower acknowledges that one or more of the Lenders may treat its Loans, its interest in Swing Line Loans and/or Letters of Credit as part of a transaction that is subject to Treasury Regulation Section 301.6112-1, and such Lender or Lenders, as applicable, will maintain the lists and other records required by such Treasury Regulation.
 
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5.24 Common Enterprise . Each Borrower is engaged solely in a Permitted Business as of the Closing Date. These operations require financing on a basis such that the credit supplied can be made available from time to time to the Borrowers, as required for the continued successful operation of the Borrowers as a whole. The Borrowers have requested the Lender to make credit available hereunder for the purposes set forth in Section 6.11 . The Credit Parties expect to derive benefit, directly or indirectly, from a portion of the credit extended by the Lenders hereunder, both in its separate capacity and as a member of the group of companies, since the successful operation and condition of the Credit Parties is dependent on the continued successful performance of the functions of the group as a whole. The Credit Parties acknowledge that, but for the agreement by each of the Credit Parties to execute and deliver this Agreement, the Administrative Agent and the Lenders would not have made available the credit facilities established on the terms set forth herein.
5.25 Compliance with Cemetery Laws . Each of the Credit Parties has complied with, and on the date of each Credit Extension is in compliance with, all applicable Laws governing the operation of its cemeteries and funeral homes, the providing of cemetery and funeral services, and the sale of Cemetery Property and other cemetery and funeral merchandise, including, without limitation: (a) obtaining and maintaining valid registrations, licenses, permits, and certificates to conduct each cemetery and funeral home business from each applicable Governmental Authority; (b) employing qualified representatives, employees, and sales agents who are registered with the appropriate governmental authorities; (c) submitting all required notices, records, statements, affidavits, financial reports and other documents, each in form and substance satisfactory to the appropriate Governmental Authorities; (d) making all required disclosures in accordance with applicable Laws; (e) using contracts, agreements, and other documents in form, wording and substance that comply with applicable Laws; (f) establishing, funding and administering trust or escrow accounts, including, but not limited to, Trust Accounts, in accordance with applicable Laws; (g) appointing qualified trustees and escrow agents to manage and administer trust funds established under applicable Laws; (h) maintaining and caring for cemeteries with the standard of care required by applicable Laws; (i) constructing columbaria and mausoleums in accordance with applicable Laws; (j) canceling contracts for cemetery and funeral services and merchandise, including making refunds to consumers, in accordance with applicable Laws; (k) owning no more than the maximum amount of land permitted for cemetery and burial use under applicable Laws; and (l) establishing cemeteries in areas permitted by applicable Laws; except to the extent any failures to comply with the above requirements, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Furthermore, there are no pending or, to the knowledge of any Credit Party, threatened claims or suspensions against any Credit Party, by any Person, entity or Governmental Authority which relate to the operation of any cemetery or funeral home, the providing of any cemetery or funeral services or the sale of any Cemetery Property or other cemetery or funeral merchandise, except for those that could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
 
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5.26 Foreign Assets Control Regulations, etc . The amendment and restatement of the Existing Credit Agreement, the issuance of the Notes and use of Loan proceeds will not violate (a) the Trading with the Enemy Act, as amended, or (b) any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto. Without limiting the foregoing, no Credit Party (a) is or will become a person whose property or interests in property are blocked pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) or (b) knowingly engages or will engage in any dealings or transactions, or be otherwise associated, with any such person. The Credit Parties are in compliance with the Uniting And Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism Act (USA Patriot Act of 2001).
5.27 OFAC . Neither any Credit Party, nor any of its Subsidiaries, nor, to the knowledge of any Credit Party and its Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any individual or entity that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated Jurisdiction.
5.28 Anti-Corruption Laws . Each Credit Party and its Subsidiaries have conducted their businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions. and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder (other than indemnification obligations which are solely contingent, if any) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, each Credit Party shall, and shall (except in the case of the covenants set forth in Sections 6.01 , 6.02 , 6.03 and 6.11 ) cause each Subsidiary to:
6.01 Financial Statements . Deliver to the Administrative Agent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a) as soon as available, but in any event within 95 days after the end of each fiscal year of the Partnership, a consolidated balance sheet of the Partnership and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of Deloitte & Touche LLP or another independent certified public accountant of nationally recognized standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit;
 
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(b) as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Partnership, a consolidated balance sheet of the Partnership and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Partnership’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, certified by the chief executive officer, chief financial officer, treasurer or controller of the Partnership as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of the Partnership and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;
(c) as soon as available, but in any event within 35 days after the end of each month (or 45 days after the end of each month ending a fiscal quarter) of each fiscal year of the Partnership, a consolidated balance sheet of the Partnership and its Subsidiaries as of the end of such month, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such month and for the portion of the Partnership fiscal year then ended setting forth in each case in comparative form for the corresponding month of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and duly certified by the chief executive officer, chief financial officer, treasurer or controller of the Partnership; and
(d) as soon as available, but in any event not later than 60 days after the end of each fiscal year of the Partnership, an annual business plan and budget of the Partnership and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Partnership, in form reasonably satisfactory to the Administrative Agent, of consolidated balance sheets and statements of income or operations and cash flows of the Partnership and its Subsidiaries on a quarterly basis for the immediately following fiscal year.
As to any information contained in materials furnished pursuant to Section 6.02(d) , the Borrowers shall not be separately required to furnish such information under Section 6.01(a) or (b)  above, but the foregoing shall not be in derogation of the obligation of the Borrowers to furnish the information and materials described in Sections 6.01(a) and (b)  above at the times specified therein.
6.02 Certificates; Other Information . Deliver to the Administrative Agent and each Lender, in form and detail reasonably satisfactory to the Administrative Agent:
(a) Reserved;
(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) , a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Partnership;
 
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(c) promptly after any request by the Administrative Agent or any Lender (through the Administrative Agent), copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of any Credit Party by independent accountants in connection with the accounts or books of any Credit Party or any of its Subsidiaries, or any audit of any of them;
(d) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the holders of the Partnership Common Units, and copies of all annual, regular, periodic and special reports and registration statements which the Partnership may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(e) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Credit Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02 ;
(f) promptly after any request by the Administrative Agent or any Lender (through the Administrative Agent), a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Credit Party and its Subsidiaries and containing such additional information as the requesting Person may reasonably specify;
(g) promptly, and in any event within five Business Days after receipt thereof by any Credit Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Credit Party or any Subsidiary thereof;
(h) not later than five Business Days after receipt thereof by any Credit Party or any Subsidiary thereof, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any High Yield Document and, from time to time upon request by the Administrative Agent, such information and reports regarding the High Yield Documents and other Material Contracts as the Administrative Agent may reasonably request;
(i) promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Credit Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could reasonably be expected to (i) have a Material Adverse Effect, (ii) result in cleanup, removal or remedial costs in excess of the Threshold Amount or (iii) cause any property described in any Mortgage to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law;
(j) promptly after any request by the Administrative Agent or any Lender (through the Administrative Agent), (i) a report supplementing any of the real property related Schedules described in Section 5.08 , including an identification of all owned and leased real
 
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property disposed of by the Partnership or any Subsidiary thereof since such Schedules were previously delivered, a list and description (including the street address, county or other relevant jurisdiction, state and record owner thereof and, in the case of leases of property, lessor, lessee and expiration date thereof) of all real property acquired or leased since such Schedules were previously delivered and a description of such other changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete; (ii) a report supplementing Schedule 5.17 , setting forth (A) a list of registration numbers for all patents, trademarks, service marks, trade names and copyrights awarded to any Credit Party or any Subsidiary thereof since such Schedule was previously delivered and (B) a list of all patent applications, trademark applications, service mark applications, trade name applications and copyright applications submitted by any Credit Party or any Subsidiary thereof since such Schedule was previously delivered and the status of each such application; and (iii) a report supplementing any other Schedules described in Section 5.08 , Section 5.13 or Section 5.21 containing a description of all changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete if made as of the date of such request, each such report to be signed by a Responsible Officer of the Borrowers and to be in a form reasonably satisfactory to the Administrative Agent;
(k) as soon as available, but in any event within 35 days after the end of each month, a Borrowing Base Certificate, as at the end of such month, duly certified by the chief executive officer, chief financial officer, treasurer or controller of the Operating Company;
(l) as soon as available, but in any event within 35 days after the end of each month, a summary describing all investments of Trust Funds as at the end of such month, duly certified by the Partnership’s investment advisors; and
(m) promptly after any request by the Administrative Agent or any Lender (through the Administrative Agent), such additional information regarding the business, financial, legal or corporate affairs of any Credit Party or any Subsidiary thereof, or compliance with the terms of the Credit Documents, as such requesting Person may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a) or (b)  or Section 6.02(d) shall be delivered electronically and shall be deemed to have been delivered on the date (i) on which the Partnership posts such documents, or provides a link thereto on the Partnership’s website on the Internet at the website address listed on Schedule 11.02 ; or (ii) on which such documents are posted on the Partnership’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrowers shall deliver paper copies of such documents to any of the Administrative Agent or any Lender to the extent that such Person requests in writing that the Borrowers deliver such paper copies to such Person, until a written request to cease delivering paper copies is given by such Person, and (ii) the Borrowers shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrowers with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
 
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The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arranger may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “ Borrower Materials ”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “ Platform ”) and (b) certain of the Lenders (each, a “ Public Lender ”) may have personnel who do not wish to receive material non-public information with respect to the Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrowers hereby agree that they will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to any Credit Party or their securities for purposes of United States Federal and state securities laws ( provided , however , that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07 ); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
6.03 Notices . Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including, to the extent applicable, (i) breach or non-performance of, or any default under, a Contractual Obligation of any Credit Party or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between any Credit Party or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting any Credit Party or any Subsidiary, including pursuant to any applicable Environmental Laws;
(c) of the occurrence of any ERISA Event;
(d) any change or intended change in the individual holding any Senior Manager position;
 
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(e) of any material change in accounting policies or financial reporting practices by any Credit Party or any Subsidiary thereof, including any determination by the Credit Parties referred to in Section 2.10(b) ;
(f) of the (i) occurrence of any Disposition of property or assets for which any Credit Party is required to make a mandatory prepayment pursuant to Section 2.05(b)(i) , (ii) occurrence of any sale of capital stock or other Equity Interests for which any Credit Party is required to make a mandatory prepayment pursuant to Section 2.05(b)(ii) , and (iii) receipt of any Extraordinary Receipt for which any Credit Party is required to make a mandatory prepayment pursuant to Section 2.05(b)(iii) ;
(g) of the occurrence of any action, suit, proceeding or investigation pending or, to any Credit Party’s knowledge, threatened against or affecting, any Credit Party in which the amount in controversy is in excess of the Threshold Amount;
(h) of any Borrower or ERISA Affiliate becoming obligated to contribute to any Multiemployer Plan that is not set forth on Schedule 5.12(d) ;
(i) of any Borrower or any ERISA Affiliate failing to make an installment payment with respect its withdrawal liability under any Multiemployer Plan, on the date such payment is due, provided that the failure to make such installment payment prior to the expiration of the sixty-day (60) time period described in Section 4219(c)(5)(A) of ERISA could reasonably be expected to result in the acceleration of withdrawal liability pursuant to Section 4219(c)(5) of ERISA, individually or in the aggregate, in excess of the Threshold Amount;
(j) of any Borrower or any ERISA Affiliate failing to make a required employer contribution under any Multiemployer Plan, on the date such payment is due, provided that such required employer contribution exceeds the Threshold Amount; and
(k) of any IP Rights that are reasonably necessary for the operation of any Credit Party’s respective businesses or material trade names of the Credit Parties, to the extent not otherwise set forth on Schedule 5.17 .
Each notice pursuant to Section 6.03 (other than Section 6.03(e) , (f)  or (k) ) shall be accompanied by a statement of a Responsible Officer of the Borrowers setting forth details of the occurrence referred to therein and stating what action(s) the Borrowers have taken and propose to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Credit Document that have been breached. Each notice pursuant to Section 6.03(h) shall be made within fifteen (15) Business Days prior to the due date for the initial payment pursuant to such contribution obligation. Each notice pursuant to Section 6.03(i) or 6.03(j) shall be made within ten (10) Business Days following the date such installment payment or contribution was otherwise due. Each notice pursuant to Section 6.03(k) shall be made within thirty (30) days following the date such IP Right or trade name is created or acquired (or, if later, becomes necessary or material).
6.04 Payment of Obligations . Pay and discharge as the same shall become due and payable: (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, except as expressly permitted under Section 5.11 ; (b) all lawful claims
 
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which, if unpaid, would by law become a Lien upon its property not otherwise permitted under Section 7.01 ; and (c) except in such instances in which the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect, all Indebtedness and other Contractual Obligations, as and when due and payable but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.
6.05 Preservation of Existence , Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization, except as permitted by Section 7.04 or Section 7.05 ; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
6.06 Maintenance of Properties . (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities.
6.07 Maintenance of Insurance .
(a) Maintain with financially sound and reputable insurance companies not Affiliates of any Credit Party, insurance with respect to its properties and business against loss or damage (i) of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons, and (ii) in such amounts, with such deductibles and covering such risks as are necessary to ensure that Uninsured Liabilities of any Credit Party and/or any Subsidiary are not reasonably likely to result in a Material Adverse Effect, and (iii) providing for not less than 30 days’ (or 10 days’ in the case of non-payment of premiums) prior notice to the Administrative Agent of termination, lapse or cancellation of such insurance.
(b) At all times keep all of its property (except real or personal property leased or financed through third parties in accordance with this Agreement) insured in favor of the Administrative Agent, and all policies or certificates with respect to such insurance (and any other insurance maintained by, or on behalf of, any Credit Party) (i) shall be endorsed to the Administrative Agent’s satisfaction for the benefit of the Administrative Agent (including, without limitation, by naming the Administrative Agent as certificate holder, mortgagee and loss payee with respect to real property, certificate holder and loss payee with respect to personal property, additional insured with respect to general liability and umbrella liability coverage and certificate holder with respect to workers’ compensation insurance), (ii) shall state that such insurance policies shall not be canceled or materially changed without at least 30 days’ (or 10 days’ in the case of non-payment of premiums) prior written notice thereof by the respective insurer to the Administrative Agent and (iii) shall be delivered to the Administrative Agent.
 
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(c) If any Credit Party shall fail to maintain all insurance in accordance with this Section 6.07 , or if any Credit Party shall fail to so name the Administrative Agent as an additional insured, mortgagee or loss payee, as the case may be, or so deliver all certificates with respect thereto, the Administrative Agent and/or the Administrative Agent shall have the right (but shall be under no obligation), upon five (5) Business Days prior written notice to the Partnership, to procure such insurance, and the Credit Parties agree jointly and severally to reimburse the Administrative Agent or the Administrative Agent, as the case may be, for all costs and expenses of procuring such insurance.
(d) The provisions of this Section 6.07 shall be deemed supplemental to, but not duplicative of, the provisions of any Security Documents that require the maintenance of insurance.
6.08 Compliance with Laws . Each Credit Party will comply with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of its business and the ownership of its property (including, without limitation, regulations, administrative orders and other orders referred to in Section 5.25 ), except to the extent any failures to comply with the above requirements, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
6.09 Books and Records . Maintain proper books of record and account (a) in conformity with GAAP consistently applied, and (b) in material conformity with all applicable requirements of Law or any Governmental Authority having regulatory jurisdiction over such Credit Party or such Subsidiary, as the case may be.
6.10 Inspection Rights . Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrowers and up to twice in any calendar year at the expense of the Borrowers with respect to all reasonable out-of-pocket expenses of the Administrative Agent (it being agreed that Borrowers shall not be liable for such expense of Lenders except as set forth in the following proviso); provided , however , that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrowers at any time during normal business hours and without advance notice.
6.11 Use of Proceeds . The proceeds of Acquisition Draws shall be utilized for the purposes described in the definition thereof. The proceeds of Working Capital Draws, Letters of Credit and Swing Line Loans shall be utilized to finance: (a) working capital requirements; (b) Capital Expenditures; (c) other general corporate purposes of the Borrowers; and (d) fees, costs and expenses incurred in connection with this Agreement, in each case, to the extent not covered by the purposes described in the definition of Acquisition Draw, except that Working Capital Draws may be used to finance (i) pre-closing costs in connection with Permitted Acquisitions and construction of mausoleums that will be refinanced through Acquisition Draws, (ii) costs associated with acquisitions that do not close, (iii) post-closing obligations in connection with Permitted Acquisition, and (iv) (prior to any refinancing thereof utilizing Acquisition Draws) Merchandise Trust deposits.
 
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6.12 Covenant to Guarantee Obligations and Give Security . (a) Prior to or concurrently with the formation or acquisition of any new direct or indirect Subsidiary by any Credit Party (or in the case of formation of any new Subsidiary in connection with a Permitted Acquisition, prior to or concurrently with the earlier of (x) the consummation of such Permitted Acquisition and (y) the date such Subsidiary otherwise acquires material assets), then the Borrowers shall, at the Borrowers’ expense:
(i) cause such Subsidiary, and cause each direct and indirect parent of such Subsidiary (if it has not already done so), to duly execute and deliver to the Administrative Agent a joinder to the Credit Documents as an additional Borrower under the Credit Documents, together with a certified copy of its Organizational Documents and resolutions authorizing the above actions, each, in form and substance satisfactory to the Administrative Agent;
(ii) furnish to the Administrative Agent a description of the real and personal properties of such Subsidiary, in detail reasonably satisfactory to the Administrative Agent;
(iii) to the fullest extent permitted by applicable Laws, cause such Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already done so) to duly execute and deliver to the Administrative Agent a Mortgage, substantially in the form set forth at Exhibit F hereto (with such changes as may be satisfactory to the Administrative Agent and its counsel to account for local law matters) and other security and pledge agreements, as specified by and in form and substance reasonably satisfactory to the Administrative Agent (including delivery of all Pledged Debt and Pledged Equity in and of such Subsidiary), securing payment of all the Obligations of such Subsidiary or such parent, as the case may be, under the Credit Documents and constituting Liens on all such real and personal properties (other than Excluded Collateral);
(iv) to the fullest extent permitted by applicable Laws, cause such Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already done so) to take whatever action (including the recording of Mortgages, the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on the properties purported to be subject to the Mortgages and security and pledge agreements delivered pursuant to this Section 6.12 , enforceable against all third parties in accordance with their terms;
 
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(v) deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, signed copies of favorable opinions, addressed to the Administrative Agent and the other Secured Parties, of counsel(s) for the Credit Parties reasonably acceptable to the Administrative Agent as to the matters contained in clauses (i) , (iii)  and (iv)  above, and as to such other matters as the Administrative Agent may reasonably request; and
(vi) deliver, upon the request of the Administrative Agent in its sole discretion, to the Administrative Agent with respect to each parcel of real property owned or held by the entity that is the subject of such formation or acquisition title reports, surveys and engineering, soils and other reports, and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent, provided , however , that to the extent that any Credit Party or any of its Subsidiaries shall have otherwise received any of the foregoing items with respect to such real property, such items shall, promptly after the receipt thereof, be delivered to the Administrative Agent.
(b) Prior to or concurrently with the acquisition of any property by any Credit Party, if such property, in the judgment of the Administrative Agent, shall not already be subject to a perfected first priority security interest (subject to any Permitted Liens) in favor of the Administrative Agent, then the Borrowers shall, at the Borrowers’ expense:
(i) furnish to the Administrative Agent a description of the property so acquired in detail satisfactory to the Administrative Agent;
(ii) to the fullest extent permitted by applicable Laws, cause the applicable Credit Party to duly execute and deliver to the Administrative Agent Mortgages and other security and pledge agreements, as specified by and in form and substance reasonably satisfactory to the Administrative Agent, securing payment of all the Obligations of the applicable Credit Party under the Credit Documents and constituting Liens on all such properties (other than Excluded Collateral);
(iii) to the fullest extent permitted by applicable Laws, cause the applicable Credit Party to take whatever action (including the recording of Mortgages, the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on such property, enforceable against all third parties;
(iv) deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, signed copies of favorable opinions, addressed to the Administrative Agent and the other Secured Parties, of counsel(s) for the Credit Parties reasonably acceptable to the Administrative Agent as to the matters contained in clauses (ii) and (iii)  above and as to such other matters as the Administrative Agent may reasonably request; and
 
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(v) deliver, upon the request of the Administrative Agent in its sole discretion, to the Administrative Agent with respect to such real property title reports, surveys and engineering, soils and other reports, and environmental assessment reports, each in scope, form and substance reasonably satisfactory to the Administrative Agent, provided , however , that to the extent that any Credit Party or any of its Subsidiaries shall have otherwise received any of the foregoing items with respect to such real property, such items shall, promptly after the receipt thereof, be delivered to the Administrative Agent,
(c) Upon the request of the Administrative Agent following the occurrence and during the continuance of a Default, the Borrowers shall, at the Borrower’s expense, promptly:
(i) furnish to the Administrative Agent a description of the real and personal properties of the Credit Parties and their respective Subsidiaries in detail satisfactory to the Administrative Agent; and
(ii) deliver, upon the request of the Administrative Agent in its sole discretion, to the Administrative Agent with respect to each parcel of real property owned or held by any Credit Party or its Subsidiaries, title reports, surveys and engineering, flood insurance confirmations or certificates, as applicable, soils and other reports, and environmental assessment reports, each in scope, form and substance satisfactory to the Administrative Agent; provided , however , that to the extent that any Credit Party or any of its Subsidiaries shall have otherwise received any of the foregoing items with respect to such real property, such items shall, promptly after the receipt thereof, be delivered to the Administrative Agent.
(d) At any time upon request of the Administrative Agent, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, such guaranties, Mortgages and other security and pledge agreements.
6.13 Compliance with Environmental Laws . Comply, and cause all lessees and other Persons operating or occupying its properties to comply with all applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations and properties; and conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its properties, in accordance with the requirements of all Environmental Laws, except to the extent any failures to comply with the above requirements, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
6.14 Preparation of Environmental Reports . At the request of the Required Lenders from time to time, provide to the Lenders within 60 days after such request, at the expense of the Borrowers, an environmental site assessment report for any of its properties described in such request, prepared by an environmental consulting firm acceptable to the Administrative Agent, indicating the presence or absence of Hazardous Materials and the estimated cost of any compliance, removal or remedial action in connection with any Hazardous
 
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Materials on such properties; without limiting the generality of the foregoing, if the Administrative Agent determines at any time that a material risk exists that any such report will not be provided within the time referred to above, the Administrative Agent may retain an environmental consulting firm to prepare such report at the expense of the Borrowers, and the Borrowers hereby grant and agree to cause any Subsidiary that owns any property described in such request to grant at the time of such request to the Administrative Agent, the Lenders, such firm and any agents or representatives thereof an irrevocable non-exclusive license, subject to the rights of tenants, to enter onto their respective properties to undertake such an assessment; provided that in no event shall such request for any report described in this Section 6.14 be made unless (a) a Default exists or (b) a notice has been delivered under Section 6.02(i) .
6.15 Further Assurances . Promptly upon request by the Administrative Agent, (a) correct any material defect or error that may be discovered in any Credit Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Credit Documents, (ii) to the fullest extent permitted by applicable Law, subject any Credit Party’s or any of its Subsidiaries’ properties, assets, rights or interests (other than Excluded Collateral) to the Liens now or hereafter intended to be covered by any of the Security Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Security Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Credit Document or under any other instrument executed in connection with any Credit Document to which any Credit Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so.
6.16 Compliance with Terms of Leaseholds . Make all payments and otherwise perform all obligations in respect of all leases of real property to which any Credit Party or any of its Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the Administrative Agent of any default by any party with respect to such leases and cooperate with the Administrative Agent in all respects to cure any such default, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect.
6.17 Material Contracts . Perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material Contract in full force and effect, enforce each such Material Contract in accordance with its terms, take all such action to such end as may be from time to time requested by the Administrative Agent and, upon request of the Administrative Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action as any Credit Party or any of its Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
 
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6.18 Maintenance of Company Separateness . The Partnership will, and will cause each of its Subsidiaries to, satisfy customary corporate or other organizational formalities, including, as applicable, the holding of regular board of directors’ and shareholders’ meetings or action by directors or shareholders without a meeting (or other legal equivalents thereof) and the maintenance of offices, books and records. Neither the Partnership nor any of its Subsidiaries shall take any action, or conduct its affairs in a manner, which could reasonably be expected to result in the separate legal existence of the Partnership or any of its Subsidiaries being ignored, or in the assets and liabilities of the Partnership or any of its Subsidiaries being substantively consolidated with those of any other such Person in a bankruptcy, reorganization or other insolvency proceeding.
6.19 Maintenance of Trust Funds and Trust Accounts . Each Borrower shall deposit in the appropriate Trust Account all applicable Trust Funds at the time such funds are required by applicable Law to be so deposited, and such Borrower shall establish and maintain all of the funding obligations of each of the Trust Accounts in accordance with applicable Law.
6.20 Amendment to High Yield Document Covenants . If the Credit Parties shall, at any time after the Closing Date, amend or modify any High Yield Document in a manner that requires any Credit Party to make a mandatory prepayment, comply with a covenant or add an event of default that either is not at such time included in this Agreement or, if such mandatory prepayment, covenant or event of default shall already be included in this Agreement, is more restrictive upon any Credit Party than such existing mandatory prepayment, covenant or event of default, then each such mandatory prepayment, covenant and each event of default, definition and other provision relating to such mandatory prepayment, covenant or event of default in such High Yield Document (as each is amended or modified from time to time thereafter) shall be automatically deemed to be incorporated by reference in this Agreement, mutatis mutandis, as if then set forth herein in full. Promptly after any such amendment or modification, the Credit Parties will (a) furnish to the Administrative Agent and the Lenders a copy of each such mandatory prepayment, covenant and each event of default, definition and other provisions related thereto and (b) execute and deliver to the Administrative Agent and each Lender an instrument, in form and substance reasonably satisfactory to the Required Lenders, modifying this Agreement by adding or modifying, as the case may be, the full text of such mandatory prepayment, covenant and the events of default, definitions and other related provisions.
6.21 Anti-Corruption Laws . Conduct its businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions. and maintain policies and procedures designed to promote and achieve compliance with such laws.
 
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ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder (other than indemnification obligations which are solely contingent, if any) shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Credit Parties shall not, nor shall they permit any Subsidiary to, directly or indirectly, and solely in the case of Section 7.16 , the Partnership and the General Partner shall not:
7.01 Liens . Create, incur, assume, sign, file or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, or assign any accounts or other right to receive income, other than the following (collectively, “ Permitted Liens ”):
(a) Liens pursuant to any Credit Document;
(b) Liens in favor of an insurance company or agent which secure insurance premium financing arrangements with such Person, to the extent permitted under Section 7.02(d) ; provided that such Liens are limited to the insurance contracts with respect to which related premiums are being financed;
(c) Liens for taxes, assessments and governmental charges not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(d) Liens in respect of property or assets of a Credit Party imposed by law which were incurred in the ordinary course of business and which have not arisen to secure Indebtedness for borrowed money, such as carriers’, warehousemen’s and mechanics’ Liens, statutory landlord’s Liens, and other similar Liens arising in the ordinary course of business, and which either (x) do not in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business of such Credit Party or (y) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property or asset subject to such Lien;
(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) Permitted Encumbrances;
(h) Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Section 8.01(h) , provided that no cash or other property shall be pledged by any Credit Party as security therefor;
(i) Liens securing Indebtedness permitted under Section 7.02(f) and Liens securing accounts payable for the purchase of pre-assembled mausoleums and crypts; provided that (A) such Liens only serve to secure the payment of Indebtedness or accounts payable arising under such related obligation, (B) the Liens encumbering the assets giving rise to such obligations do not encumber any other asset of any Credit Party, and (C) such Liens do not secure aggregate lease payments, principal amounts and accounts payable in excess of the limitation set forth in Section 7.02(f) ;
 
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(j) Licenses, leases, subleases or easements granted to third Persons in the ordinary course of business not interfering in any material respect with the business of any Credit Party or materially impairing the value of the related Collateral;
(k) Liens arising from or related to precautionary UCC financing statements regarding operating leases entered into by any Credit Party;
(l) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(m) bankers liens and customary rights of setoff, revocation and chargeback under deposit or credit card agreements entered into in the ordinary course of business;
(n) any Lien or other restriction on the use of property (including cash) deposited in any Trust Fund, to the extent imposed by law or by the terms of the agreement governing such Trust Fund; and
(o) Liens securing Indebtedness permitted under Section 7.02(k) , but only to the extent permitted under Section 7.02(k) .
7.02 Indebtedness . Create, incur, assume or suffer to exist any Indebtedness, except:
(a) obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party (it being agreed that cross-default, setoff and other customary provisions under any Swap Contract shall be permitted);
(b) loans and advances from (i) the Partnership to any Borrower, (ii) any Borrower to any other Borrower, (iii) any Borrower to the Partnership made for the purpose of making payments permitted pursuant to Section 7.06 and (iv) any Borrower or the Partnership to the Partnership or the General Partner for the purpose of paying ordinary business expenses of the Partnership and the General Partner;
(c) Indebtedness under the Credit Documents;
(d) Insurance premium financing arrangements made on customary and reasonable terms;
(e) Guarantees of any Credit Party in respect of Indebtedness otherwise permitted hereunder of any Borrower;
 
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(f) Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i) ; provided , however , that the aggregate lease payments and principal amounts of all such Indebtedness at any one time outstanding shall not exceed Ten Million Dollars ($10,000,000);
(g) Seller Subordinated Debt, provided that (i) such Indebtedness is subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent, and (ii) at the time of the related Permitted Acquisition, such Indebtedness does not exceed 25% of the total value of (A) the assets so acquired or (B) the assets of the Acquired Person, as the case may be;
(h) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business so long as such Indebtedness is extinguished within three Business Days of the incurrence thereof;
(i) Indebtedness of the Credit Parties evidenced by completion guarantees, performance bonds and surety bonds incurred in the ordinary course of business for purposes of insuring the performance of the Borrowers;
(j) Indebtedness of a type described in clause (g)  of the definition of “Indebtedness”, to the extent payment of such Indebtedness is permitted under Section 7.06 ;
(k) Indebtedness of the General Partner issued solely for the purpose of financing Investments pursuant to Section 7.03(k) , and any Guarantees by any Credit Party of such Indebtedness (it being agreed that such Indebtedness may be secured solely by (A) the General Partner’s deposit accounts into which it receives distributions from the Partnership, and (B) the property of Persons who are not Credit Parties (or required to be Credit Parties));
(l) Other unsecured Indebtedness not otherwise permitted above, in an aggregate principal amount outstanding not to exceed Ten Million Dollars ($10,000,000) at any time; and
(m) Indebtedness evidenced by High Yield Notes in an aggregate outstanding principal amount not in excess of $225,000,000.
7.03 Investments . Make or hold any Investments, except:
(a) Investments held by any Credit Party in the form of Cash Equivalents;
(b) loans and advances by any Credit Party to officers and employees of such Credit Party, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount for all Credit Parties not to exceed $500,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances);
 
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(c) (i) Investments by any Credit Party and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by any Credit Party and its Subsidiaries in any Borrower, (iii) additional Investments by Subsidiaries of the Borrowers that are not Credit Parties in other Subsidiaries that are not Credit Parties, and (iv) without duplication, Investments in the form of loans and advances permitted under Section 7.02(b) ;
(d) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors or from account debtors in settlement of delinquent accounts to the extent reasonably necessary in order to prevent or limit loss;
(e) Guarantees permitted by Section 7.02 ;
(f) Investments existing on the date hereof (other than those referred to in Section 7.03(c)(i) ) that are either (i) expressly permitted under the Nelms Transaction Consent or (ii) set forth on Schedule 5.08(e) ;
(g) Investments by any Borrower in Swap Contracts permitted under Section 7.02(a) ;
(h) Permitted Acquisitions by any Borrower; provided that, with respect to each such Permitted Acquisition:
(i) any such newly-created or acquired Subsidiary shall comply with the requirements of Section 6.12 ;
(ii) the lines of business of the Person to be (or the property of which is to be) so purchased or otherwise acquired shall be substantially the same lines of business as one or more of the principal businesses of the Borrowers in the ordinary course;
(iii) such Permitted Acquisition shall not include or result in any contingent liabilities that could reasonably be expected to be material to the business, financial condition, operations or prospects of the Partnership, or the Partnership and its Subsidiaries taken as a whole (as determined in good faith by the board of directors (or the persons performing similar functions) of the Operating Company if the board of directors is otherwise approving such transaction and, in each other case, by a Responsible Officer);
(iv) updated schedules to the Credit Documents to reflect the transactions related to such Permitted Acquisition shall be delivered prior to such acquisition, and upon consideration thereof all representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Permitted Acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date;
 
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(v) the Aggregate Consideration paid by or on behalf of the Borrowers for any such Permitted Acquisition shall not exceed $10,000,000, on an individual basis, or $50,000,000, when aggregated with the total Aggregate Consideration paid by or on behalf of the Borrowers for all other Permitted Acquisitions which closed in the immediately preceding 365 days, without Required Lender approval (such approval not to be unreasonably withheld, conditioned or delayed); provided , however , that the Aggregate Consideration paid by or on behalf of the Borrowers for (A) any Permitted Acquisitions occurring before March 31, 2014, (B) the Archdiocese Transaction, and (C) the SCI Acquisition shall be disregarded in determining the total Aggregate Consideration paid by or on behalf of the Borrowers for any Permitted Acquisitions which have closed in the immediately preceding 365 days for the purposes of this subsection (v) ;
(vi) Reserved ;
(vii) the receipt by the Administrative Agent and Lenders, not less than (A) thirty (30) days prior to such Permitted Acquisition (or such shorter period as the Administrative Agent may agree to in writing), of (1) the approval package to be presented to the Operating Company’s Board of Managers and (2) all appraisals completed in connection therewith, for any such acquisition the consideration for which is greater than $5,000,000 and (B) ten (10) Business Days prior to such Permitted Acquisition (or such shorter period as the Administrative Agent may agree to in writing), the approval package to be presented to the Operating Company’s Board of Managers, for any such acquisition the consideration for which is less than or equal to $5,000,000; and
(viii) the Borrowers shall have delivered to the Administrative Agent and each Lender, at least five Business Days prior to the date on which any such Permitted Acquisition is to be consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders, (A) certifying that all of the requirements set forth in this clause (h)  have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition, and (B) attaching a pro forma Compliance Certificate showing compliance, on a Pro Forma Basis (for the related Calculation Period), with the covenants set forth in Section 7.11 immediately after giving effect to the consummation of such Permitted Acquisition;
(i) Investments in newly formed wholly-owned Subsidiaries so long as, in each case, (i) at least 30 days prior written notice thereof is given to the Administrative Agent (or such lesser prior written notice as may be agreed to by the Administrative Agent in any give case), (ii) the Equity Interests of such new Subsidiary are promptly pledged pursuant to, and to the extent required by, this Agreement and the Pledge Agreement and the certificates, if any, representing such Equity Interests, together with appropriate transfer powers duly executed in blank, are delivered to the Administrative Agent, (iii) such new Subsidiary promptly executes a counterpart hereto and of the Pledge Agreement and the Security Agreement, and (iv) all actions required pursuant to Section 6.12 have been taken;
 
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(j) Bank deposits in the ordinary course of business;
(k) Investments of the General Partner in the Partnership to the extent necessary in order for the General Partner to continue to hold (in its capacity as General Partner) a two percent (2%) “Percentage Interest” (as such term is defined in the Partnership Agreement) in the Partnership;
(l) Disposition Notes issued in connection with Dispositions permitted under Section 7.05 ; provided that, the aggregate principal amount outstanding under such Disposition Notes shall not exceed $5,000,000 at any time;
(m) Investments of Trust Funds, and interest and other earnings thereon, in accordance with Section 7.17 ;
(n) Advances by the Borrowers to their suppliers which are made in the ordinary course for the purpose of prepaying purchases of inventory;
(o) Non-economic Equity Interest in Archdiocese Holdco, on the terms set forth in the Operating Agreement, in the form of Exhibit F to the Archdiocese Lease, between the Archdiocese and one or more of the Credit Parties (as amended, restated, modified or supplemented from time to time, in each case in a manner which could not reasonably be expected to be adverse in any material respect to the interests of the Lenders); and
(p) Other Investments not otherwise permitted above, in an aggregate amount outstanding not to exceed $1,000,000 at any time.
7.04 Fundamental Changes . Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) any Borrower may merge with and into, may convert into or be dissolved or liquidated into, or may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Borrower, so long as (i) the security interests granted to the Administrative Agent for the benefit of the Secured Parties pursuant to the Security Documents in the assets of such Borrower shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, conversion, dissolution or liquidation) and (ii) such merger, conversion, dissolution or liquidation does not violate the terms of the Partnership Agreement or otherwise result in negative tax consequences for the Partnership; and
(b) any Subsidiary that is not a Credit Party may Dispose of all or substantially all its assets (including any Disposition that is in the nature of a liquidation) to (i) another Subsidiary that is not a Credit Party or (ii) to a Credit Party.
 
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7.05 Dispositions . Make any Disposition or enter into any agreement to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and Cemetery Property in the ordinary course of business;
(c) Dispositions, in each case without recourse and in the ordinary course of business, of overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction;
(d) Licenses, leases or subleases of, or easements with respect to, property in favor of third Persons, made in the ordinary course of business and not interfering in any material respect with the business of any Credit Party or materially impairing the value of the related Collateral;
(e) Dispositions of tangible personal property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(f) Dispositions of real property by any Borrower which is not otherwise permitted under clause (b)  above, together with related incidental personal property; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition, (ii) the aggregate book value of all such property Disposed of in reliance on this clause (f)  in any fiscal year shall not exceed $10,000,000 and (iii) the purchase price for such property shall be paid to such Borrower in cash (and any Disposition Note permitted by Section 7.03(l) );
(g) Dispositions by any Borrower to any other Borrower, so long as the security interests granted to the Administrative Agent for the benefit of the Secured Parties pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) Dispositions of Equity Interests in the Partnership by the General Partner, to the extent required under the terms of the Partnership Agreement or any employee benefit plan of a Credit Party;
(i) Dispositions constituting Permitted Liens or permitted by Section 7.04 ;
(j) Dispositions of property (real or personal), so long as (i) no Default then exists or would result therefrom, (ii) each such sale is in an arm’s-length transaction and the applicable Credit Party receives at least fair market value (as determined in good faith by such Credit Party), (iii) the total consideration received by such Credit Party is paid at the time of the closing of such sale in cash (and any Disposition Note permitted by Section 7.03(l) ), and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.05 ; and
 
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(k) Dispositions of Cash Equivalents made in the ordinary course of business.
To the extent the Required Lenders waive the provisions of this Section 7.05 with respect to any Disposition of Collateral, or any Collateral is Disposed of as permitted by this Section 7.05 , such Collateral (unless transferred to a Credit Party) shall be Disposed of free and clear of the Liens created by the Security Documents and the Administrative Agent shall take such actions as are appropriate in connection therewith.
7.06 Restricted Payments; Equity Issuances .
(a) Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(i) each Subsidiary may make Restricted Payments to any Borrower or the Partnership; and
(ii) the Partnership and the General Partner shall be permitted to make regularly scheduled quarterly distributions to its general and limited partners or members, as applicable, to the extent set forth in the Partnership Agreement and the GP Agreement, respectively, each as in effect as of the Closing Date, to the extent that at the time such distribution is made no Default exists, or would exist after giving effect to such distribution; or
(b) Issue or sell any Equity Interests (including by way of sales of treasury stock), except for:
(i) Issuances by the Partnership and the General Partner of Equity Interests which are not mandatorily redeemable;
(ii) transfers to any Credit Party and replacements of then outstanding shares of capital stock or other Equity Interests of any Borrower (subject to the delivery of any documents required by the Pledge Agreement or any other Credit Document);
(iii) stock splits, stock dividends and additional issuances by any Borrower which does not decrease the percentage ownership of the Partnership or any of its Subsidiaries in any class of the Equity Interests of such Borrower (or otherwise adversely affect the Lien of the Collateral Agent in the Equity Interests of such Borrower);
(iv) any issuances made to qualify directors to the extent required by applicable Law; and
(v) issuances of Equity Interests by Subsidiaries formed after the Closing Date pursuant to Section 6.12 (to the extent in accordance with the requirements of Section 6.12 ); provided that all Equity Interests issued in accordance with this clause (v)  shall, to the extent required by the Pledge Agreement or any other Credit Document, be delivered to the Collateral Agent.
 
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7.07 Change in Nature of Business . Engage in any line of business other than the Permitted Business.
7.08 Transactions with Affiliates . Enter into any transaction of any kind with any Affiliate of any Credit Party, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to such Credit Party as would be obtainable by such Credit Party at the time in a comparable arm’s length transaction with a Person other than an Affiliate; provided that the following shall in any event be permitted: (i) the Transaction; (ii) intercompany transactions among Credit Parties that are entered into pursuant to the reasonable business requirements of the Credit Parties and that are not prohibited under this Agreement or any other Credit Document; (iii) the payment of consulting or other fees to any Credit Party in the ordinary course of business; (iv) customary fees to non-officer directors (or equivalents) of the General Partner; (v) the Credit Parties may perform their respective obligations under any Employment Agreements, employee benefit plans of any Credit Party and other employment or independent contractor arrangements with respect to the procurement of services with their respective officers, employees and independent contractors, in each case so long as any such arrangements are entered into in the ordinary course of business; (vi) Restricted Payment may be paid by Credit Parties to the extent permitted by Section 7.06 ; (vii) payments may be made pursuant to any Tax Allocation Agreement; (viii) Credit Parties may enter into transactions with employees and/or officers of the Credit Parties in the ordinary course of business so long as any such material transaction has been approved by the governing bodies of such Credit Parties; and (ix) the Credit Parties may perform their respective obligations under (A) the Omnibus Agreement, dated September 20, 2004, as amended January 24, 2011, among certain Credit Parties and certain of their Affiliates, and (B) the Assignment Agreement, dated September 20, 2004, between McCown De Leeuw & Co. IV, L.P. and the Partnership. In no event shall any management, consulting or similar fee be paid or payable by the Partnership or any of its Subsidiaries to any Affiliate, except as specifically provided in this Section 7.08 .
7.09 Burdensome Agreements . Enter into or permit to exist any Contractual Obligation that (a) limits the ability of any Subsidiary to make Restricted Payments or Intercompany Loan payments to any Credit Party or to otherwise transfer property to or invest in any Credit Party, except for (i) this Agreement, the other Credit Documents and the High Yield Documents, (ii) customary provisions in leases and other Contractual Obligations (other than pre-need installment agreements) restricting assignment thereof, or (iii) the Partnership Agreement; provided , however , that this clause (a)  shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section 7.02(f) solely to the extent any such negative pledge relates to the property financed by the holder of such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person, except for the High Yield Note Indenture (which requirement does not apply to Liens granted pursuant to the Credit Documents).
7.10 Use of Proceeds . Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
 
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7.11 Financial Covenants .
(a) Minimum EBITDA . Permit Consolidated EBITDA for any Measurement Period to be less than the sum of (i) $80,000,000 plus (ii) 80% of the aggregate of all Consolidated EBITDA for each Permitted Acquisition completed after June 30, 2014 (the “ Permitted Acquisition Step-Up ”).
(b) Minimum Consolidated Debt Service Coverage Ratio . Permit the Consolidated Debt Service Coverage Ratio to be less than 2.50 to 1.0 for any Measurement Period.
(c) Maximum Consolidated Leverage Ratio . Permit the Consolidated Leverage Ratio to be greater than 4.00 to 1.0 for any period.
7.12 Amendment of Partnership Units and Organizational Documents . (a) Amend or modify, or permit the amendment or modification of, any provision of any Partnership Common Unit or Partnership Subordinated Unit or of any agreement (including, without limitation, certificate of designation) relating thereto in a manner that is inconsistent with the Partnership Agreement or that could reasonably be expected to be adverse in any material respect to the interests of the Lenders; or
(b) amend modify or change in any way adverse to the interests of the Lenders in any material respect the Partnership Agreement, the GP Agreement or any other Credit Party’s Organizational Documents, or any Shareholders’ Agreement, Tax Allocation Agreement or Management Agreement, or enter into any new Organizational Document, Shareholders’ Agreement, Tax Allocation Agreement or Management Agreement which could reasonably be expected to be adverse in any material respect to the interests of the Lenders or, in the case of any Management Agreement, which involves the payment by any Credit Party of any amount which could give rise to a violation of this Agreement; provided that, the foregoing clause shall not restrict (i) the ability of Partnership or the General Partner to amend the Partnership Agreement or the GP Agreement, respectively, to authorize the issuance of Equity Interests otherwise permitted to be issued pursuant to the terms of this Agreement, or (ii) the ability of the Partnership to amend its Organizational Documents to adopt customary takeover defenses for a public company, such as classification of its board of directors, requirements for notice of acquisition of shares and other similar measures.
7.13 Accounting Changes . Make any material change in any accounting policies or reporting practices, except as required by GAAP, or make any change in fiscal year.
7.14 Prepayments, Etc. of Indebtedness . Make (or give any notice in respect of) any voluntary or optional payment or prepayment on or redemption, repurchase or acquisition for value of (including, without limitation, by way of depositing with the trustee with respect thereto or any other Person, money or securities before due for the purpose of paying when due), or any prepayment or redemption (except as expressly required under the terms of the relevant agreement) as a result of any asset sale, change of control or similar event of any Indebtedness pursuant to the High Yield Documents, or, after the incurrence or issuance thereof, any Seller Subordinated Debt; provided that High Yield Notes may be prepaid with the proceeds of Future High Yield Notes, to the extent such Indebtedness is otherwise permitted to be incurred under Section 7.02(m) hereof.
 
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7.15 Amendment of Indebtedness .
(a) amend, modify or change in any way adverse to the interests of the Lenders in any material respect any Seller Subordinated Debt; or
(b) amend, modify or change in any way adverse to the interests of the Lenders in any material respect any High Yield Document.
7.16 Holding Company . In the case of the General Partner and the Partnership:
(a) the General Partner will not itself: (i) engage in a Permitted Business; (ii) own any significant assets (other than (A) its general partnership Equity Interest in the Partnership, (B) cash to be loaned, dividended, contributed and/or otherwise promptly applied for purposes not otherwise prohibited by this Agreement and (C) other assets used or held in connection with the performance of activities permitted to be conducted by the General Partner); or (iii) have any liabilities (other than those liabilities for which it is responsible under any Credit Document or the High Yield Documents to which it is a party, the GP Agreement, and any other Indebtedness permitted to be incurred by the General Partner pursuant to Section 7.02 and those liabilities of the Partnership described in Section 7.16(b )); provided however , the restrictions above shall not prohibit (or be construed to prohibit), the General Partner or its employees from conducting the activities contemplated to be conducted by the General Partner under the GP Agreement and the Partnership Agreement (each as in effect on the Closing Date or as amended in accordance with this Agreement), and other administrative, management or ordinary course “holding company” activities necessary or desirable in connection with the operation of the Permitted Business through the General Partner and the Borrowers (including, without limitation, intercompany management functions and the provision of umbrella insurance policies); and
(b) the Partnership will not itself: (i) engage in a Permitted Business; (ii) own any significant assets (other than (A) the Equity Interests in the Operating Company, (B) any Intercompany Loan permitted to be made by it pursuant to Section 7.02(b) , whether or not evidenced by an Intercompany Note, (C) cash to be loaned, dividended, contributed and/or otherwise promptly applied for purposes not otherwise prohibited by this Agreement, and (D) other assets used or held in connection with the performance of activities permitted to be conducted by the Partnership); or (iii) have any liabilities (other than (x) those liabilities for which it is responsible under this Agreement, the Partnership Agreement, the Credit Documents or the High Yield Documents to which it is a party, any Intercompany Loan permitted to be incurred by it pursuant to Section 7.02(b) and any other Indebtedness permitted to be incurred by the Partnership pursuant to Section 7.02 , (y) liabilities in respect of the Guarantee of leases and contracts of the Borrowers entered into the ordinary course of business or in connection with any Permitted Acquisition or any Disposition permitted under Section 7.05 , and (z) liabilities in respect of the Guarantee of the Borrowers’ trusting obligations described in Section 6.19 (including Guarantees in favor of the applicable regulatory authorities to maintain the financial condition of the applicable Borrower(s)); provided however , the restrictions contained above shall not prohibit (or be construed to prohibit) the Partnership from conducting administrative and other ordinary course “holding company” activities necessary or desirable in connection with the operation of the Permitted Business through the Borrowers.
 
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7.17 Trust Funds . Except in accordance with reasonable business practices and with applicable Law, (a) withdraw or otherwise remove any monies or other assets (whether principal, interest or other earnings) from any Trust Account except for the purpose of providing the merchandise or services which are intended to be provided out of such Trust Account or (b) make any investments of Trust Funds or interest or other earnings thereon.
7.18 Anti-Corruption Laws . Directly or indirectly use the proceeds of any Credit Extension for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2012, and other similar anti-corruption legislation in any other jurisdiction.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default . Any of the following shall constitute an Event of Default:
(a) Non-Payment . Any Credit Party fails to (i) pay when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation or deposit any funds as Cash Collateral in respect of L/C Obligations or Swing Line Loans, or (ii) pay within three days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) pay within five days after the same becomes due, any other amount payable hereunder or under any other Credit Document; or
(b) Specific Covenants . Any Credit Party fails to perform or observe any term, covenant or agreement contained in any of Section 6.01 , 6.02 , 6.03 , 6.05 , 6.10 , 6.11 , 6.12 , 6.18 , 6.19 or Article VII ;
(c) Other Defaults . Any Credit Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a) or (b)  above) contained in any Credit Document on its part to be performed or observed and such failure continues unremedied for 30 days after notice thereof is provided to any Credit Party by the Administrative Agent or the Required Lenders;
(d) Representations and Warranties . Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Credit Party herein, in any other Credit Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made;
(e) Cross-Default . (i) Any Credit Party or any Subsidiary thereof (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise), but subject to any applicable grace or cure period, in respect of any Indebtedness or Guarantee of Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate outstanding principal amount (including amounts
 
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owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee of Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, but subject to any applicable grace or cure period, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded (it being understood that a default or other event or condition described in this clause (B)  shall cease to constitute an Event of Default if and when the same has been cured or otherwise ceases to exist, in each case prior to the taking of any action by the Administrative Agent or the Required Lenders pursuant to Section 8.02 ); or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which a Credit Party or any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which a Credit Party or any Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Credit Party or such Subsidiary as a result thereof is greater than the Threshold Amount;
(f) Insolvency Proceedings, Etc. Any Credit Party or any Subsidiary thereof institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 90 calendar days, or an order for relief is entered in any such proceeding;
(g) Inability to Pay Debts; Attachment . (i) Any Credit Party or any Subsidiary thereof becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy;
(h) Judgments . There is entered against any Credit Party or any Subsidiary thereof (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer is rated at least “A” by A.M. Best Company, has been notified of the potential claim and does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 60 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
 
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(i) ERISA . (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrowers under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrowers or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount;
(j) Invalidity of Credit Documents . Any provision of any Credit Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Credit Party or any other Person contests in any manner the validity or enforceability of any provision of any Credit Document; or any Credit Party denies that it has any or further liability or obligation under any provision of any Credit Document, or purports to revoke, terminate or rescind any provision of any Credit Document;
(k) Change of Control . There occurs any Change of Control;
(l) Security Documents . Any Security Document after delivery thereof pursuant to Section 4.01 or 6.12 shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien (subject to Liens permitted by Section 7.01 ) on the Collateral purported to be covered thereby; or
(m) Subordination . (i) The subordination provisions of any documents evidencing or governing any subordinated Indebtedness (the “ Subordination Provisions ”) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable subordinated Indebtedness; or (ii) any Credit Party shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability of any of the Subordination Provisions, (B) that the Subordination Provisions exist for the benefit of the Administrative Agent, the Lenders and the L/C Issuer or (C) that all payments of principal of or premium and interest on the applicable subordinated Indebtedness, or realized from the liquidation of any property of any Credit Party, shall be subject to any of the Subordination Provisions.
8.02 Remedies upon Event of Default . If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Credit Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers;
 
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(c) require that the Borrowers Cash Collateralize the L/C Obligations or Swing Line Loans (in an amount equal to the Minimum Collateral Amount with respect thereto); and
(d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Credit Documents;
provided , however , that upon the occurrence of an actual or deemed entry of an order for relief with respect to any Credit Party under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrowers to Cash Collateralize the L/C Obligations or the Swing Line Loans as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
8.03 Application of Funds . After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations or Swing Line Loans have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02 ), any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.14 and 2.15 be applied by the Administrative Agent in the following order:
First , to payment of that portion of the Obligations constituting fees, non-contingent and liquidated indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second , to payment of that portion of the Obligations constituting fees, non-contingent and liquidated indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel) to the respective Lenders and the L/C Issuer, to the extent set forth in any Credit Document, and amounts payable under Article III , ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third , to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;
Fourth , to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Borrowings and amounts owing under Secured Hedge Agreements and Secured Cash Management Agreements, ratably among the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth held by them;
 
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Fifth , to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrowers pursuant to Sections 2.03 and 2.14 ; and
Last , the balance, if any, after all of the Obligations (other than indemnification obligations which are solely contingent, if any) have been indefeasibly paid in full, to the Borrowers or as otherwise required by Law.
Subject to Sections 2.03(c) and 2.14 , amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations (other than indemnification obligations which are solely contingent, if any), if any, in the order set forth above. Excluded Swap Obligations with respect to any Credit Party shall not be paid with amounts received from such Credit Party or its assets, but appropriate adjustments shall be made with respect to payments from other Credit Parties to preserve the allocation to Secured Obligations otherwise set forth above in this Section.
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and Authority . (a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Credit Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and no Credit Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Credit Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
(b) The Administrative Agent shall also act as the “collateral agent” under the Credit Documents (in such capacity, the “ Collateral Agent ”), and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if applicable), potential Hedge Bank and potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Credit
 
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Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 11.04(c) , as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Credit Documents) as if set forth in full herein with respect thereto.
9.02 Rights as a Lender . The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Credit Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
9.03 Exculpatory Provisions . The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Credit Documents and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Credit Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Credit Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting lender in violation of any Debtor Relief Law; and
(c) shall not, except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Credit Party or any of their Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
 
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The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 8.02 ) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by the Borrowers, a Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Credit Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05 Delegation of Duties . The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with
 
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the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
9.06 Resignation of Administrative Agent .
(a) The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrowers. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrowers, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “ Resignation Effective Date ”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above, provided that in no event shall any such successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d)  of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrowers and such Person remove such Person as Administrative Agent and, in consultation with the Borrowers, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “ Removal Effective Date ”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Credit Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Credit Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time, if any, as the Required Lenders (or the retiring Administrative Agent) appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as
 
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applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Credit Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Credit Documents, the provisions of this Article and Section 11.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.
(d) Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender. If Bank of America resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c) . If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c) . Upon the appointment by the Borrowers of a successor L/C Issuer or Swing Line Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as applicable, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Credit Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
9.07 Non-Reliance on Administrative Agent and Other Lenders . Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document or any related agreement or any document furnished hereunder or thereunder.
9.08 No Other Duties, Etc . Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers, Syndication Agents, or Documentation Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
 
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9.09 Administrative Agent May File Proofs of Claim . In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Credit Party) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(h) and (i) , 2.09 and 11.04 ) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 11.04 .
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer or in any such proceeding.
9.10 Collateral and Guaranty Matters . Without limiting the provisions of Section 9.09 , the Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion (including, without limitation, in its capacity as Collateral Agent to take such actions),
(a) to release any Lien on any property granted to or held by the Administrative Agent under any Credit Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than contingent indemnification obligations) and the expiration or termination or cash collateralization of all Letters of Credit, (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted hereunder or under any other Credit Document, or (iii) subject to Section 11.01 , if approved, authorized or ratified in writing by the Required Lenders;
 
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(b) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder;
(c) to subordinate any Lien on any property granted to or held by the Administrative Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 7.01(i) or (j) ; and
(d) to release any Mortgage evidencing a Lien on Cemetery Property to the extent that the Administrative Agent reasonably determines that such release is required pursuant to applicable Law.
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10 . In each case as specified in this Section 9.10 , the Administrative Agent will, at the Borrowers’ expense, execute and deliver to the applicable Credit Party such documents as such Credit Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Credit Documents and this Section 9.10 .
The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
9.11 Delivery of Security Documents by Collateral Agent . Each Secured Party hereby irrevocably authorizes the Administrative Agent to execute and deliver each of the Security Documents and to accept delivery of such of the Security Documents as may not require execution by the Administrative Agent. Each Secured Party hereby agrees that the rights and remedies given to the Administrative Agent under the Security Documents shall be exercised exclusively by the Administrative Agent, and that no Secured Party shall have any right individually to exercise any such right or remedy, except to the extent, if any, otherwise expressly provided herein or therein.
9.12 Exercise of Powers as Collateral Agent . Subject to the other provisions of this Agreement, the Administrative Agent shall take any action of the type specified in any Security Documents as being within the Administrative Agent’s rights, powers or discretion in accordance with directions from the Required Lenders (or, to the extent this Agreement or such Security Document specifically requires the consent or direction of some other Person or set of Persons, then instead in accordance with the directions of such other Person or set of Persons).
 
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In the absence of any such instructions, the Administrative Agent shall have the authority (but under no circumstances shall be obligated), in its sole discretion, to take such action, to the extent not inconsistent with directions by the Required Lenders, unless such Security Document specifically requires the consent or direction of the Required Lenders (or some other Person or set of Persons), in which case the Administrative Agent shall not take such action absent such direction or consent. Any action or inaction pursuant to such direction, discretion or consent shall be binding on all of the Secured Parties. The Administrative Agent shall not have any liability to any Person as a result of (a) the Administrative Agent acting or refraining from acting in accordance with the directions of the Required Lenders (or other applicable Person or set of Persons), (b) the Administrative Agent refraining from acting in the absence of instructions to act from the Required Lenders (or other applicable Person or set of Persons), whether or not the Administrative Agent has discretionary power to take such action, or (c) the Administrative Agent taking discretionary action it is authorized to take under this Section.
ARTICLE X
CONTINUING GUARANTY
10.01 Guaranty . Each Guarantor hereby absolutely and unconditionally, jointly and severally guarantees, as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all Obligations and Additional Secured Obligations of any Credit Party (for each Guarantor, subject to the proviso in this sentence, its “Guaranteed Obligations”); provided that, notwithstanding anything to the contrary contained in this Article X , (a) the Guaranteed Obligations of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor and (b) the liability of each Guarantor individually with respect to this Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable state law. The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon each Guarantor, and conclusive for the purpose of establishing the amount of the Secured Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Secured Obligations or any instrument or agreement evidencing any Secured Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Secured Obligations which might otherwise constitute a defense to the obligations of the Guarantors, or any of them, under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.
10.02 Rights of Lenders . Each Guarantor consents and agrees that the Secured Parties may, at any time and from time to time, without notice or demand, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Obligations; (c) apply such security and direct the order or manner of sale thereof as the Administrative Agent, the L/C
 
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Issuer and the Lenders in their sole discretion may determine; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Obligations. Without limiting the generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of such Guarantor under this Guaranty or which, but for this provision, might operate as a discharge of such Guarantor.
10.03 Certain Waivers . Each Guarantor waives (a) any defense arising by reason of any disability or other defense of any Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Secured Party) of the liability of the Borrowers; (b) any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of any Borrower; (c) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder; (d) subject to Section 10.05 , any right to proceed against any Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of any Secured Party whatsoever; (e) subject to Section 10.05 , any benefit of and any right to participate in any security now or hereafter held by any Secured Party; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable Law limiting the liability of or exonerating guarantors or sureties. To the fullest extent permitted under applicable Law, each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations. Each Guarantor waives any rights and defenses that are or may become available to such Guarantor by reason of §§ 2787 to 2855, inclusive, and §§ 2899 and 3433 of the California Civil Code. As provided below, this Guaranty shall be governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania. The foregoing waivers and the provisions hereinafter set forth in this Guaranty which pertain to California law are included solely out of an abundance of caution, and shall not be construed to mean that any of the above-referenced provisions of California law are in any way applicable to this Guaranty or the Obligations.
10.04 Obligations Independent . The obligations of each Guarantor hereunder are those of primary obligor, and not merely as surety, and are independent of the Obligations and the obligations of any other guarantor, and a separate action may be brought against such Guarantor to enforce this Guaranty whether or not any Borrower or any other person or entity is joined as a party.
10.05 Subrogation . Each Guarantor shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until all of the Obligations (other than indemnification obligations which are solely contingent, if any) and any amounts payable under this Guaranty have been indefeasibly paid and performed in full and the Commitments and the Facilities are terminated. If any amounts are paid to any Credit Party in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Administrative Agent to reduce the amount of the Obligations, whether matured or unmatured.
 
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10.06 Termination; Reinstatement . This Guaranty is a continuing and irrevocable guaranty of all Obligations now or hereafter existing and shall remain in full force and effect until all Obligations and any other amounts payable under this Guaranty are indefeasibly paid in full in cash and the Commitments and the Facilities with respect to the Obligations are terminated. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of any Borrower or any Credit Party is made, or any of the Secured Parties exercises its right of setoff, in respect of the Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of the Secured Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Secured Parties are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of each Guarantor under this paragraph shall survive termination of this Guaranty.
10.07 Subordination . Each Guarantor hereby subordinates the payment of all obligations and indebtedness of any Credit Party owing to such Guarantor whether now existing or hereafter arising, including but not limited to any obligation of any Credit Party to such Guarantor as subrogee of the Secured Parties or resulting from any other Guarantor’s performance under this Guaranty, to the indefeasible payment in full in cash of all Obligations; provided , however , that the Credit Parties may pay and Guarantors may accept payments to the extent not prohibited under this Agreement unless and until the Administrative Agent exercises its rights contained in the next sentence. If the Administrative Agent so requests following the occurrence and during the continuance of an Event of Default, any such obligation or indebtedness of any Borrower to any Credit Party shall be enforced and performance received by each Credit Party as trustee for the Secured Parties and the proceeds thereof shall be paid over to the Administrative Agent on account of the Obligations, but without reducing or affecting in any manner the liability of each Guarantor under this Guaranty.
10.08 Stay of Acceleration . If acceleration of the time for payment of any of the Obligations is stayed, in connection with any case commenced by or against any Borrower under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by the Guarantors immediately upon demand by the Administrative Agent.
10.09 Condition of Borrowers . Each Guarantor acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrowers and any other guarantor such information concerning the financial condition, business and operations of the Borrowers and any such other guarantor as such Guarantor requires, and that none of the Secured Parties has any duty, and such Guarantor is not relying on the Secured Parties at any time, to disclose to such Guarantor any information relating to the business, operations or financial condition of the Borrowers or any other guarantor (and hereby waives any duty on the part of the Secured Parties to disclose such information and any defense relating to the failure to provide the same).
 
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10.10 Acknowledgement of Joint and Several Liability . (a) Each Borrower (other than the Controlled Non-Profits) acknowledges that it is jointly and severally liable for all of the Obligations under the Credit Documents. Subject to Section 10.10(e) , each Borrower expressly understands, agrees and acknowledges that (i) Borrowers are all affiliated entities by common ownership, (ii) each Borrower desires to have the availability of one common credit facility instead of separate credit facilities, (iii) each Borrower has requested that the Lenders extend such a common credit facility on the terms herein provided, (iv) the Lenders will be lending against, and relying on a lien upon, all of the Borrowers’ assets even though the proceeds of any particular Loan made hereunder may not be advanced directly to a particular Borrower, (v) each Borrower will nonetheless benefit by the making of all such loans by each Lender and the availability of a single credit facility of a size greater than each could independently warrant, (vi) all of the representations, warranties, covenants, obligations, conditions, agreements and other terms contained in the Credit Documents shall be applicable to and shall be binding upon each Borrower, and (vii) the Borrowers have each executed the Notes as co-makers of the Notes and that it would not be able to obtain the credit provided by the Lenders hereunder without the financial support provided by the other Borrowers.
(b) Each Borrower (other than the Controlled Non-Profits) is obligated to repay the Obligations as joint and several obligors under this Agreement. To the extent that any Credit Party shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Borrowings or other Credit Extensions made to or for another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “ Accommodation Payment ”), then such Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (i) rendering such Borrower “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (as amended from time to time, “ UFTA ”) or Section 2 of the Uniform Fraudulent Conveyance Act (“ UFCA ”) or any successor provision to the foregoing, (ii) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA or any successor provision to the foregoing, or (iii) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA or any successor provision to the foregoing. All rights and claims of contribution, indemnification, and reimbursement under Section 10.10 shall be subordinate in right of payment to the prior payment in full of the Obligations. The provisions of Section 10.10 shall, to the extent inconsistent with any provision in any Credit Document, supersede such inconsistent provision.
(c) If (i) any court holds that Borrowers are guarantors and not jointly and severally liable or (ii) bankruptcy or reorganization proceedings at any time are instituted by or against any Borrower under any Debtor Relief Law, each Borrower hereby: (A) until indefeasible payment in full in cash of the Obligations, expressly and irrevocably subordinates,
 
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to the fullest extent possible, on behalf of such Borrower, any and all rights at law or in equity to subrogation, to reimbursement, to exoneration, to contribution, to indemnification, to set off or to any other rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated, to a holder or transferee against a maker, or to the holder of a claim against any Person, and which such Borrower may have or hereafter acquire against any Person in connection with or as a result of such Borrower’s execution, delivery and/or performance of this Agreement, or any other documents to which such Borrower is a party or otherwise; (B) expressly and irrevocably subordinates any “claim” (as such term is defined in the Bankruptcy Code) of any kind against any other Borrower, and further subordinates any such rights against any Person (including any surety), either directly or as an attempted set off to any action commenced against such Borrower by Administrative Agent or a Lender or any other Person; and (C) acknowledges and agrees (I) that this subordination is intended to benefit Administrative Agent and Lenders and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this Agreement, and (II) that Administrative Agent and Lenders and their successors and permitted assigns are intended beneficiaries of this subordination, and agreements set forth in this Section 10.10 and their rights under this Section 10.10 shall survive payment in full of the Obligations.
(d) This Agreement shall in all respects be continuing, absolute and unconditional, and shall remain in full force and effect with respect to each Borrower until all Obligations shall have been indefeasibly fully paid. No compromise, settlement, release or discharge of, or indulgence with respect to, or failure, neglect or omission to enforce or exercise any right against, any one or Borrowers shall release or discharge the other Borrowers.
(e) Notwithstanding anything to the contrary contained in this Agreement or the other Credit Documents, each Controlled Non-Profit shall be liable only for that portion of the Obligations evidenced by (i) any Loan or other extension of credit made to, or for the benefit of, such entity hereunder or under any other Credit Document, (ii) any loan, advance or other distribution to such entity of proceeds of any Loan or other extension of credit made to any other Borrower hereunder, and (iii) its proportionate share of all Loans and other extensions of credit made hereunder to fund any administrative and other management related fees, costs and expenses of the General Partner, the Partnership, the Operating Company or any Borrower providing services to such Controlled Non-Profit pursuant to a Cemetery Management Agreement; and the Collateral of such Controlled Non-Profit shall only secure, or be utilized to repay, such portion of the obligations described above.
10.11 Keepwell . Each Credit Party that is a Qualified ECP Guarantor at the time either (a) the Guaranty or (b) the grant of a Lien under the Credit Documents, in each case, by any Specified Credit Party becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Credit Party with respect to such Swap Obligation as may be needed by such Specified Credit Party from time to time to honor all of its obligations under the Credit Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Article X voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section shall
 
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remain in full force and effect until the Secured Obligations have been indefeasibly paid and performed in full. Each Credit Party intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Credit Party for all purposes of the Commodity Exchange Act.
ARTICLE XI
MISCELLANEOUS
11.01 Amendments, Etc . No amendment or waiver of any provision of this Agreement or any other Credit Document, and no consent to any departure by any Borrower or any other Credit Party therefrom, shall be effective unless in writing signed by the Required Lenders and the applicable Credit Parties, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 4.01 (other than Section 4.01(b)(i) or (c) ), or, in the case of the initial Credit Extension, Section 4.02 , without the written consent of each Lender;
(b) without limiting the generality of clause (a)  above, waive any condition set forth in Section 4.02 as to any Credit Extension without the written consent of the Required Lenders;
(c) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02 ) without the written consent of such Lender;
(d) postpone any date fixed by this Agreement or any other Credit Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under such other Credit Document without the written consent of each Lender entitled to such payment;
(e) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or any fees or other amounts payable hereunder or under any other Credit Document without the written consent of each Lender entitled to such amount; provided , however , that only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
(f) change Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;
(g) change any provision of this Section 11.01 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;
 
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(h) release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender, except to the extent such release is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone);
(i) release all or substantially all of the value of the Guaranty, without the written consent of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone); or
(j) impose any greater restriction on the ability of any Lender to assign any of its rights or obligations hereunder without the written consent of the Required Lenders;
and provided , further , that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Credit Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.
If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Credit Document that requires the consent of (a) each Lender or (b) Required Lenders, and that has been approved by the Required Lenders, the Borrowers shall have the right, within sixty (60) days of the receipt of approval by such Required Lenders, and upon five (5) Business Days’ prior written notice to the Administrative Agent (which notice the Administrative Agent shall promptly transmit to each of the Lenders), to (A) replace any such non-consenting Lender in accordance with Section 11.13 or (B) repay all Loans of any such non-consenting Lender (including all amounts, if any, owing pursuant to Article III ), together with accrued and unpaid interest, fees and all other amounts, if any, then owing to any such non-consenting Lender, so long as (1) the related Commitment(s) of such non-consenting Lender are terminated concurrently with the repayment of such Loans and (2) such Lender’s pro rata share of any L/C Obligations or Swing Line Loans are Cash Collateralized (at which time Schedule 2.01 shall be deemed modified to reflect the changed Commitments); provided that, to the extent applicable, such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Borrowers to be made pursuant to this paragraph).
 
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11.02 Notices; Effectiveness; Electronic Communications . (a)  Notices Generally . Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b)  below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to any Credit Party, the Administrative Agent, the Collateral Agent, the L/C Issuer or the Swing Line Lender, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 11.02 ; and
(ii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notice delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non public information relating to the Credit Parties).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b)  below shall be effective as provided in such subsection (b) .
(b) Electronic Communications . Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail, FpML messaging and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent, the Swing Line Lender, the L/C Issuer or the Borrowers may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such
 
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notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i)  and (ii) , if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c) The Platform . THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “ Agent Parties ”) have any liability to any Credit Party, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Credit Party’s or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet.
(d) Change of Address, Etc . Each Credit Party, the Administrative Agent, the L/C Issuer and the Swing Line Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Borrowers, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to any Credit Party or its securities for purposes of United States Federal or state securities laws.
 
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(e) Reliance by Administrative Agent, L/C Issuer and Lenders . The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic Committed Loan Notices, Letter of Credit Applications and Swing Line Loan Notices) purportedly given by or on behalf of any Credit Party even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrowers shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of any Credit Party. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
11.03 No Waiver; Cumulative Remedies . No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Credit Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Credit Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Credit Document, the authority to enforce rights and remedies hereunder and under the other Credit Documents against the Credit Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent (including in its capacity as Collateral Agent) in accordance with Section 8.02 for the benefit of all the Secured Parties; provided , however , that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent or Collateral Agent) hereunder and under the other Credit Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Credit Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.13 ), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Credit Party under any Debtor Relief Law; and provided , further , that if at any time there is no Person acting as Administrative Agent hereunder and under the other Credit Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b) , (c)  and (d)  of the preceding proviso and subject to Section 2.13 , any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
11.04 Expenses; Indemnity; Damage Waiver . (a)  Costs and Expenses . The Borrowers shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Credit Documents or any amendments, modifications or waivers of the provisions
 
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hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer) in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Credit Documents, including its rights under this Section, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Borrowers . The Borrowers shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related reasonable out-of-pocket expenses (including the fees, charges and disbursements of any counsel for any Indemnitee ) , incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrowers or any other Credit Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Credit Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Credit Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Credit Party or any of their Subsidiaries, or any Environmental Liability related in any way to any Credit Party or any of their Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Borrower or any other Credit Party or any of such Borrower’s or such Credit Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by any Borrower or any other Credit Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Credit Document, if such Borrower or such Credit Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. Without limiting the provisions of Section 3.01(c) , this Section 11.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
 
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(c) Reimbursement by Lenders . To the extent that the Borrowers for any reason fails to indefeasibly pay any amount required under subsection (a) or  (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer, the Swing Line Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lenders’ Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided , further that, the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swing Line Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swing Line Lender in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d) .
(d) Waiver of Consequential Damages, Etc . To the fullest extent permitted by applicable law, no Borrower shall assert, and each Borrower hereby waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Credit Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b)  above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e) Payments . All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
(f) Survival . The agreements in this Section and the indemnity provisions of Section 11.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
11.05 Payments Set Aside . To the extent that any payment by or on behalf of the Borrowers is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement
 
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entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b)  of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
11.06 Successors and Assigns . (a)  Successors and Assigns Generally . The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Borrower or other Credit Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 11.06(b) , (ii) by way of participation in accordance with the provisions of Section 11.06(d) , or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.06(f) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d)  of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders . Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section 11.06(b) , participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts .
(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or contemporaneous assignments to related Approved Funds (determined after giving effect to such Assignments) that equal at least the amount specified in subsection (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
 
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(B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrowers otherwise consent (each such consent not to be unreasonably withheld or delayed);
(ii) Proportionate Amounts . Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii)  shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans;
(iii) Required Consents . No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrowers (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrowers shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of any Commitment if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender; and
(C) the consent of the L/C Issuer and the Swing Line Lender shall be required for any assignment.
(iv) Assignment and Assumption . The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided , however , that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Certain Persons . No such assignment shall be made (A) to the Partnership or any of its Affiliates or Subsidiaries, or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B) , or (C) to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person).
 
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(vi) Certain Additional Payments . In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrowers and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01 , 3.04 , 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided , that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrowers (at their expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.06(d) .
(c) Register . The Administrative Agent, acting solely for this purpose as an agent of the Borrowers (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to
 
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time (the “ Register ”). The entries in the Register shall be conclusive absent manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement . The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice
(d) Participations . Any Lender may at any time, without the consent of, or notice to, the Borrowers or the Administrative Agent, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person, a Defaulting Lender or the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of any participation.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. The Borrowers agree that each Participant shall be entitled to the benefits of Sections 3.01 , 3.04 and 3.05 (subject to the requirements and limitations therein, including the requirement under Section 3.01(e) ) (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b)  of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 11.13 as if it were an assignee under subsection (b)  of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04 , with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at any Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Credit Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register
 
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(including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(e) Certain Pledges . Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(f) Resignation as L/C Issuer or Swing Line Lender after Assignment . Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Revolving Credit Loans pursuant to Section 11.06(b) , Bank of America may, (i) upon 30 days’ notice to the Borrowers and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to the Borrowers, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrowers shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided , however , that no failure by the Borrowers to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c) ). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c) . Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements reasonably satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
11.07 Treatment of Certain Information ; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made
 
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will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Credit Document or any action or proceeding relating to this Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrowers and their obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the Borrowers or their Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Borrowers or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrowers. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments.
For purposes of this Section, “Information” means all information received from the Borrowers or any Subsidiary relating to the Borrowers or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrowers or any Subsidiary, provided that, in the case of information received from the Borrowers or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning the Borrowers or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
 
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11.08 Right of Setoff . If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of the
Administrative Agent, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of any Borrower or any other Credit Party against any and all of the obligations of any Borrower or any other Credit Party now or hereafter existing under this Agreement or any other Credit Document to such Lender, the L/C Issuer or their respective Affiliates, irrespective of whether or not such Lender, the L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Credit Document and although such obligations of such Borrower or such Credit Party may be contingent or unmatured or are owed to a branch or office or Affiliate of such Lender, the L/C Issuer or Affiliate different from the branch or office or Affiliate holding such deposit or obligated on such indebtedness; provided , that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.15 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrowers and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
11.09 Interest Rate Limitation . Notwithstanding anything to the contrary contained in any Credit Document, the interest paid or agreed to be paid under the Credit Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “ Maximum Rate ”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrowers. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the fullest extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
11.10 Counterparts; Integration; 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 and the other Credit Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent or the L/C Issuer, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01 , this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have
 
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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.
11.11 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Credit Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.12 Severability . If any provision of this Agreement or the other Credit Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Credit Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.12 , if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
11.13 Replacement of Lenders . If the Borrowers are entitled to replace a Lender pursuant to the provisions of Section 3.06 , or if any Lender is a Defaulting Lender or a Non-Consenting Lender or if any other circumstance under Section 11.01 or elsewhere herein that gives the Borrowers the right to replace a Lender as a party hereto, then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06 ), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04 ) and obligations under this Agreement and the related Credit Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a) the Borrowers shall have paid to the Administrative Agent the assignment fee specified in Section 11.06(b) ;
 
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(b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Credit Documents (including any amounts under Section 3.05 ) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01 , such assignment will result in a reduction in such compensation or payments thereafter;
(d) such assignment does not conflict with applicable Laws; and
(e) in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.
11.14 Governing Law; Jurisdiction; Etc . (a) GOVERNING LAW . THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS 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 OR ANY OTHER CREDIT DOCUMENT (EXCEPT, AS TO ANY OTHER CREDIT 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.
(b) SUBMISSION TO JURISDICTION . EACH BORROWER AND EACH OTHER CREDIT PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, THE L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA SITTING IN PHILADELPHIA COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE EASTERN DISTRICT OF PENNSYLVANIA, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH PENNSYLVANIA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
 
150

JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER CREDIT DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AGAINST ANY BORROWER OR ANY OTHER CREDIT PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE . EACH BORROWER AND EACH OTHER CREDIT PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS . EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02 . NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW
11.15 Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.16 No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Credit Document), the Borrowers and each other Credit Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Arranger, and the Lenders are arm’s-length commercial transactions between the Borrowers, each other Credit Party and their respective Affiliates, on the one hand, and the
 
151

Administrative Agent, the Arranger, and the Lenders, on the other hand, (B) each of the Borrowers and the other Credit Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrowers and each other Credit Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Credit Documents; (ii) (A) the Administrative Agent, the Arranger and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrowers, any other Credit Party or any of their respective Affiliates, or any other Person and (B) neither the Administrative Agent, the Arranger nor any Lender has any obligation to the Borrowers, any other Credit Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Credit Documents; and (iii) the Administrative Agent, the Arranger and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrowers, the other Credit Parties and their respective Affiliates, and neither the Administrative Agent, the Arranger, nor any Lender has any obligation to disclose any of such interests to the Borrowers, any other Credit Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrowers and each other Credit Party hereby waives and releases any claims that it may have against the Administrative Agent, the Arranger or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
11.17 Electronic Execution of Assignments and Certain Other Documents . The words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other modifications, Committed Loan Notices, Swingline Loan Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the Pennsylvania Electronic Transactions Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.
11.18 USA PATRIOT Act Notice . Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Credit Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Act ”), it is required to obtain, verify and record information that identifies each Credit Party, which information includes the name and address of each Credit Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Credit Party in accordance with the Act. Each Credit Party shall, promptly following a request by the Administrative Agent
 
152

or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
11.19 Effect on Existing Credit Agreement . Notwithstanding that this Agreement is amending and restating the Existing Credit Agreement as of the Closing Date, nothing contained herein shall be deemed to cause a novation of any transfers, conveyances or transactions which were effected under the Existing Credit Agreement, the Second Credit Agreement, the Prior Credit Agreement or the Original Credit Agreement, or of any Obligations, including, without limitation, the Indebtedness evidenced by the promissory notes issued pursuant thereto and the security interests granted pursuant to the security documents delivered in connection therewith.
 
153

IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amended and Restated Credit Agreement to be duly executed as of the date first above written.

General Partner:
 
STONEMOR GP LLC	
		
By:	 	/s/ Timothy K. Yost	
Name:	 	Timothy K. Yost	
Title:	 	Chief Financial Officer	
	
Partnership:
 
STONEMOR PARTNERS L.P.
By: STONEMOR GP LLC
its General Partner	
		
By:	 	/s/ Timothy K. Yost	
Name:	 	Timothy K. Yost	
Title:	 	Chief Financial Officer	
	
Operating Company:
 
STONEMOR OPERATING LLC	
		
By:	 	/s/ Timothy K. Yost	
Name:	 	Timothy K. Yost	
Title:	 	Chief Financial Officer	

	  	S-1	  	Fourth Amended and Restated Credit Agreement	
	  		  	Credit Parties Signature Page	

Additional Credit Parties

Alleghany Memorial Park Subsidiary, Inc.
Altavista Memorial Park Subsidiary, Inc.
Arlington Development Company
Augusta Memorial Park Perpetual Care Company
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.
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.
Kirk & Nice, Inc.
Kirk & Nice Suburban Chapel, Inc.
Lakewood/Hamilton Cemetery Subsidiary, Inc.
Lakewood Memory Gardens South Subsidiary, Inc.
Laurel Hill Memorial Park Subsidiary, Inc.
Laurelwood Holding Company
Legacy Estates, Inc.
Loewen [Virginia] Subsidiary, Inc.
Lorraine Park Cemetery Subsidiary, Inc.	
			
By:	 	/s/ Frank Milles	 		
	 	Frank Milles, as Vice President of each of the above-named Credit Parties	

	  	S-2	  	Fourth Amended and Restated Credit Agreement	
	  		  	Additional Credit Parties Signature Page	

					
Modern Park Development Subsidiary, Inc.
Northlawn Memorial Gardens
Oak Hill Cemetery Subsidiary, Inc.
Ohio Cemetery Holdings, Inc.
Osiris Holding Finance Company
Osiris Holding of Maryland Subsidiary, Inc.
Osiris Holding of Rhode Island Subsidiary, Inc.
Osiris Management, Inc.
Osiris Telemarketing Corp.
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 of each of the above-named Credit Parties	

	  	S-3	  	Fourth Amended and Restated Credit Agreement	
	  		  	Additional Credit Parties Signature Page	

					
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 of each of the above-named Credit Parties	

	  	S-4	  	Fourth Amended and Restated Credit Agreement	
	  		  	Additional Credit Parties Signature Page	

					
StoneMor Alabama LLC
StoneMor Arkansas Subsidiary LLC
StoneMor Cemetery Products LLC StoneMor Colorado LLC
StoneMor Colorado Subsidiary LLC
StoneMor Florida 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 of each of the above-named Credit Parties	

	  	S-5	  	Fourth Amended and Restated Credit Agreement	
	  		  	Additional Credit Parties Signature Page	

					
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 of each of the above-named Credit Parties	
	
Beth Israel Cemetery Association of Woodbridge, New Jersey
Bethel Cemetery Association
Clover Leaf Park Cemetery Association
Locustwood Cemetery Association	
			
By:	 	/s/ Frank Milles	 		
	 	Frank Milles, as President of each of the above-named Credit Parties	

	  	S-6	  	Fourth Amended and Restated Credit Agreement	
	  		  	Additional Credit Parties Signature Page	

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

	  	S-7	  	Fourth Amended and Restated Credit Agreement	
	  		  	Administrative Agent Signature Page	

			
BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender	
		
By:	 	/s/ Kenneth G. Wood	
Name:	 	Kenneth G. Wood	
Title:	 	Senior Vice President	

	  	S-8	  	Fourth Amended and Restated Credit Agreement	
	  		  	Lender Signature Page	

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

	  	S-9	  	Fourth Amended and Restated Credit Agreement	
	  		  	Lender Signature Page	

			
CAPITAL ONE, NATIONAL ASSOCIATION	
		
By:	 	/s/ Priti Capoor-Savage	
Name:	 	Priti Capoor-Savage	
Title:	 	Senior Vice President	

	  	S-10	  	Fourth Amended and Restated Credit Agreement	
	  		  	Lender Signature Page	

			
TRISTATE CAPITAL BANK	
		
By:	 	/s/ Ellen Frank	
Name:	 	Ellen Frank	
Title:	 	Senior Vice President	

	  	S-11	  	Fourth Amended and Restated Credit Agreement	
	  		  	Lender Signature Page	

			
FOX CHASE BANK	
		
By:	 	/s/ Paul A. Pyfer	
Name:	 	Paul A. Pyfer	
Title:	 	Senior Vice President	

	  	S-12	  	Fourth Amended and Restated Credit Agreement	
	  		  	Lender Signature Page	

			
RAYMOND JAMES BANK, N.A.	
		
By:	 	/s/ Alexander L. Rody	
Name:	 	Alexander L. Rody	
Title:	 	Senior Vice President	

	  	S-13	  	Fourth Amended and Restated Credit Agreement	
	  		  	Lender Signature Page	

Exhibit 10.2
EXECUTION VERSION

 
SECOND AMENDED AND RESTATED SECURITY AGREEMENT
among
STONEMOR OPERATING LLC,
VARIOUS ADDITIONAL BORROWERS,
STONEMOR GP LLC,
STONEMOR PARTNERS L.P.,
and
BANK OF AMERICA, N.A.,
as Collateral Agent
dated December 19, 2014

 

							
ARTICLE I DEFINITIONS	  	 	2	  	
		
ARTICLE II SECURITY INTERESTS	  	 	7	  	
			
2.1.	  	Grant of Security Interests	  	 	7	  	
2.2.	  	Power of Attorney	  	 	9	  	
		
ARTICLE III GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS	  	 	10	  	
			
3.1.	  	Necessary Filings	  	 	10	  	
3.2.	  	No Liens	  	 	10	  	
3.3.	  	Other Financing Statements	  	 	11	  	
3.4.	  	Chief Executive Office; Records	  	 	11	  	
3.5.	  	Location of Inventory and Equipment	  	 	11	  	
3.6.	  	Recourse	  	 	11	  	
3.7.	  	Legal Names; Type of Organization (and Whether a Registered Organization and/or a Transmitting Utility); Jurisdiction of Organization; Location; Organizational Identification Numbers; Changes Thereto; etc.	  	 	11	  	
3.8.	  	Trade Names; Etc.	  	 	12	  	
3.9.	  	Reserved	  	 	12	  	
3.10.	  	Non-UCC Property	  	 	12	  	
3.11.	  	As-Extracted Collateral; Timber-to-be-Cut	  	 	13	  	
3.12.	  	Collateral in the Possession of a Bailee	  	 	13	  	
		
ARTICLE IV SPECIAL PROVISIONS CONCERNING RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS	  	 	13	  	
			
4.1.	  	Additional Representations and Warranties	  	 	13	  	
4.2.	  	Maintenance of Records	  	 	14	  	
4.3.	  	Direction to Account Debtors; Contracting Parties; etc.	  	 	14	  	
4.4.	  	Modification of Terms; etc.	  	 	14	  	
4.5.	  	Collection	  	 	15	  	
4.6.	  	Instruments	  	 	15	  	
4.7.	  	Further Actions	  	 	15	  	
4.8.	  	Debtors Remain Liable Under Contracts	  	 	15	  	
4.9.	  	Deposit Accounts and Securities Accounts; Etc.	  	 	16	  	
4.10.	  	Letter-of-Credit Rights	  	 	16	  	
4.11.	  	Commercial Tort Claims	  	 	17	  	
4.12.	  	Chattel Paper	  	 	17	  	
4.13.	  	Further Actions	  	 	17	  	
		
ARTICLE V SPECIAL PROVISIONS CONCERNING TRADEMARKS AND DOMAIN NAMES	  	 	17	  	
			
5.1.	  	Additional Representations and Warranties	  	 	17	  	
5.2.	  	Licenses and Assignments	  	 	18	  	
5.3.	  	Infringements	  	 	18	  	
5.4.	  	Preservation of Marks	  	 	18	  	
 
- i -

							
5.5.	 	Maintenance of Registration	  	 	19	  	
5.6.	 	Future Registered Marks and Domain Names	  	 	19	  	
5.7.	 	Remedies	  	 	19	  	
		
ARTICLE VI SPECIAL PROVISIONS CONCERNING PATENTS, COPYRIGHTS AND TRADE SECRETS	  	 	20	  	
			
6.1.	 	Additional Representations and Warranties	  	 	20	  	
6.2.	 	Licenses and Assignments	  	 	20	  	
6.3.	 	Infringements	  	 	20	  	
6.4.	 	Maintenance of Patents and Copyrights	  	 	21	  	
6.5.	 	Prosecution of Patent or Copyright Applications	  	 	21	  	
6.6.	 	Other Patents and Copyrights	  	 	21	  	
6.7.	 	Remedies	  	 	21	  	
		
ARTICLE VII PROVISIONS CONCERNING ALL COLLATERAL	  	 	22	  	
			
7.1.	 	Protection of Collateral Agent’s Security	  	 	22	  	
7.2.	 	Warehouse Receipts Non-Negotiable	  	 	22	  	
7.3.	 	Further Actions	  	 	22	  	
7.4.	 	Financing Statements	  	 	23	  	
7.5.	 	Additional Information	  	 	23	  	
		
ARTICLE VIII REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT	  	 	23	  	
			
8.1.	 	Remedies; Obtaining the Collateral Upon Default	  	 	23	  	
8.2.	 	Remedies; Disposition of the Collateral	  	 	25	  	
8.3.	 	Waiver of Claims	  	 	25	  	
8.4.	 	Application of Proceeds	  	 	26	  	
8.5.	 	Remedies Cumulative	  	 	26	  	
8.6.	 	Discontinuance of Proceedings	  	 	27	  	
		
ARTICLE IX INDEMNITY	  	 	27	  	
			
9.1.	 	Indemnity	  	 	27	  	
9.2.	 	Indemnity Obligations Secured by Collateral; Survival	  	 	28	  	
		
ARTICLE X MISCELLANEOUS	  	 	28	  	
			
10.1.	 	Notices and Other Communications; Facsimile Copies	  	 	28	  	
10.2.	 	Waiver; Amendment	  	 	29	  	
10.3.	 	Obligations Absolute	  	 	30	  	
10.4.	 	Successors and Assigns	  	 	30	  	
10.5.	 	Headings Descriptive	  	 	30	  	
10.6.	 	Governing Law	  	 	30	  	
10.7.	 	Debtor’s Duties	  	 	31	  	
10.8.	 	Termination; Release	  	 	31	  	
10.9.	 	Counterparts	  	 	32	  	
10.10.	 	The Collateral Agent	  	 	32	  	
10.11.	 	Severability	  	 	32	  	
 
- ii -

							
10.12.	  	Fraudulent Conveyance; Etc.	  	 	33	  	
10.13.	  	Additional Debtors	  	 	33	  	
10.14.	  	Effect on Existing Security Agreement	  	 	33	  	
10.15.	  	Controlled Non-Profits	  	 	33	  	
ANNEXES

ANNEX A	  	Form of Assignment of Security Interest in Certain Patents and Trademarks	
ANNEX B	  	Form of Assignment of Security Interest in Certain Copyrights	
 
- iii -

SECOND AMENDED AND RESTATED SECURITY AGREEMENT
SECOND AMENDED AND RESTATED SECURITY AGREEMENT, dated December 19, 2014 (as the same may be amended, restated, modified and/or supplemented from time to time in accordance with the terms hereof, this “ Agreement ”), among each of the undersigned (each, an “ Debtor ” and, together with each other entity which becomes a party hereto pursuant to Section 10.13 , collectively, the “ Debtors ”) and Bank of America, N.A., as collateral agent (the “ Collateral Agent ”), for the benefit of the Secured Parties (as defined below).
BACKGROUND
A. This Agreement is being delivered pursuant to that certain Fourth Amended and Restated Credit Agreement, dated December 19, 2014, 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 party thereto (together with the Operating Company, each individually a “ Borrower ” and collectively, the “ Borrowers ” and, together with the General Partner and the Partnership, each a “ Credit Party ”, and collectively, the “ Credit Parties ”), various financial institutions from time to time party thereto (the “ Lenders ”), and Bank of America, in its capacity as Collateral Agent, and as the Swing Line Lender and the L/C Issuer thereunder (as amended, restated, modified, extended, renewed, replaced, supplemented, restructured and/or refinanced from time to time, the “ Credit Agreement ”). Capitalized terms used herein but not otherwise defined (either herein or by reference to the UCC) shall have the meanings given to such terms in the Credit Agreement.
B. Pursuant to the Original Credit Agreement and the Second Credit Agreement, the Credit Parties delivered to Bank of America, in its capacity as collateral agent for the Lenders and other secured creditors, a Security Agreement, dated September 20, 2004, as amended, modified and supplemented from time to time (the “ Prior Security Agreement ”).
C. Pursuant to the Prior Credit Agreement and the Existing Credit Agreement, the Prior Security Agreement was amended and restated by the Amended and Restated Security Agreement, dated April 29, 2011, as amended by the Confirmation and Amendment Agreement, dated January 19, 2012, and as further amended, modified and supplemented from time to time (the “ Existing Security Agreement ”).
D. It is a condition precedent to the amending and restating of the Existing Credit Agreement with the Credit Agreement, that the Credit Parties shall have executed and delivered to the Collateral Agent this Agreement.
E. Each Debtor will obtain benefits from the incurrence of Loans by, and the issuance of Letters of Credit for the account of, the Borrowers under the Credit Agreement and the entering into and maintaining of Secured Hedge Agreements and Secured Cash Management Agreement, and, accordingly, each Debtor desires to execute this Agreement to satisfy the condition precedent described in the preceding paragraph.
 
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NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Existing Security Agreement is hereby amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, all capitalized terms used herein and defined in (a) the Credit Agreement, or (b) the UCC shall be used herein as therein defined. Reference to singular terms shall include the plural and vice versa:
“ Accession ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, Goods which are physically united with other Goods in such a manner that the identity of the original Goods is not lost.
“ Account ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, credit card receivables, lottery winnings, health-care-insurance receivables, any right to payment arising out of goods or other property (including, without limitation, intellectual property) sold or leased, licensed, assigned or disposed of or for services rendered which is not evidenced by an instrument or chattel paper, whether or not it has been earned by performance including all rights to payment of rents under a lease or license and payment under a charter or other contract and all rights incident to such lease, charter or contract.
“ Account Debtor ” means, as to any Approved Installment Agreement, the individual purchasing cemetery services and/or cemetery property pursuant thereto.
“ Chattel Paper ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, a writing or writings which evidence both a monetary obligation and a security interest in, or a lease of, specific goods. Without limiting the foregoing, the term “Chattel Paper” shall in any event include all Tangible Chattel Paper and all Electronic Chattel Paper.
“ Collateral ” has the meaning set forth in Section 2.1(a) of this Agreement.
“ Collateral Account ” means a collateral account maintained with, and in the sole dominion and control of, the Collateral Agent for the benefit of the Secured Parties.
“ Contract Rights ” means all rights of any Debtor under each Contract, including, without limitation, (i) any and all rights to receive and demand payments under any or all Contracts, (ii) any and all rights to receive and compel performance under any or all Contracts and (iii) any and all other rights, interests and claims now existing or in the future arising in connection with any or all Contracts.
 
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“ Contracts ” means all contracts between any Debtor and one or more additional parties (including, without limitation, any Management Agreements, licensing agreements and any partnership agreements, joint venture agreements and limited liability company agreements).
“ Copyrights ” means any U.S. or foreign copyright owned by any Debtor, including any registrations of any Copyright, in the U.S. Copyright Office or the equivalent thereof in any foreign country, as well as any application for a U.S. or foreign copyright registration now or hereafter made with the U.S. Copyright Office or the equivalent thereof in any foreign jurisdiction by any Debtor.
“ Deposit Accounts ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, any demand, time, savings, passbook or similar account.
“ Document ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, a bill of lading, dock warrant, dock receipt, warehouse receipt or order for the delivery of goods, and also any other document which in the regular course of business or financing is treated as adequately evidencing that the Person in possession of it is entitled to receive, hold and dispose of the document and the goods it covers.
“ Domain Names ” means all Internet domain names and associated URL addresses in or to which any Debtor now or hereafter has any right, title or interest.
“ Electronic Chattel Paper ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, Chattel Paper evidenced by a record or records consisting of information stored in an electronic medium.
“ Equipment ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, tangible personal property held by any Debtor for use primarily in business and shall include equipment, machinery, furniture, vehicles, fixtures, furnishings, dyes, tools, and all accessories and parts now or hereafter affixed thereto as well as all attachments, replacements, substitutes, accessories, additions and improvements to any of the foregoing, but Equipment shall not include Inventory.
“ Excluded Collateral ” means, collectively:
(a)(i) all Trust Accounts, together with any proceeds of a Debtor’s Receivables that are required by law to be placed into a Trust Account for the benefit of the applicable account debtors and all such funds held in Trust Accounts from time to time (but excluding, in any case, such funds that any Debtor has a right to demand payment of, or is otherwise entitled to a distribution, whether the corpus, income or proceeds of a Trust Account or otherwise, in each case, in accordance with the terms of applicable law, and such right shall not be deemed to be Excluded Collateral, but shall instead be treated for all purposes hereunder as a General Intangible), and (ii) all payroll accounts, benefit accounts, withholding tax accounts and fiduciary accounts;
(b) the General Partner’s (i) general partner interest in the Partnership, (ii) incentive distribution rights under the Partnership Agreement of the Partnership, and (iii) the Deposit Accounts of the General Partner into which distributions are received (and, for the avoidance of doubt, the requirements of Section 4.9 shall not apply to any such Deposit Account); and
 
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(c) any Equipment subject to a purchase money security interest or equipment lease permitted by the terms of the Credit Agreement (“ Encumbered Equipment ”), Contract, Contract Right, General Intangible or Permit in which any Debtor has or hereafter acquires any right, title or interest if and to the extent Debtor’s right, title or interest in such Encumbered Equipment, Contract, Contract Right, General Intangible or Permit is subject to a contractual provision or other restriction (contractual, legal or otherwise) on assignment such that the creation or perfection of a security interest in the right, title or interest of Debtor therein would be prohibited and would, in and of itself, cause or result in a default thereunder enabling another Person party to such Encumbered Equipment agreement, Contract, Contract Right, General Intangible or Permit to enforce any remedy with respect thereto; provided that the foregoing exclusions shall not apply if (i) such prohibition has been waived or such other Person has otherwise consented to the creation or perfection hereunder of a security interest in such Encumbered Equipment, Contract, Contract Right, General Intangible or Permit, or (ii) such prohibition would be rendered ineffective pursuant to Section 9-406, 9-407 or 9-408 of the UCC, as applicable and as then in effect in any relevant jurisdiction, or any other applicable law or principles of equity; provided further that immediately upon the ineffectiveness, lapse or termination of any such prohibition, the applicable Debtor shall be deemed to have automatically granted a security interest in, all its rights, title and interests in and to such Encumbered Equipment, Contract, Contact Right, General Intangible or Permit as if such provision had never been in effect.
“ Excluded Local Deposit Account ” means (i) each Deposit Account listed on Schedule 5.21(b) of the Credit Agreement and designated as an “Excluded Local Deposit Account” thereon (other than any Subject Deposit Account) and (ii) certain other Deposit Accounts from time to time not listed on Schedule 5.21(b) of the Credit Agreement and approved by the Collateral Agent (such approval not to be unreasonably withheld). All of such Excluded Local Deposit Accounts described in preceding clauses (i) and (ii) shall, in any such case, be local Deposit Accounts (and not top-tier concentration accounts or mid-tier concentration accounts (as jointly determined by the Collateral Agent and the relevant Debtor)).
“ General Intangibles ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, all personal property of every kind and description of any Debtor other than Goods, Accounts, Fixtures, Documents, Letter-of-Credit Rights, Chattel Paper, Deposit Accounts, Instruments, Investment Property, Commercial Tort Claims and Supporting Obligations, and shall include, without limitation, Payment Intangibles, contract rights (other than Accounts), franchises, licenses, choses in action, books, records, customer lists, tax, insurance and other kinds of refunds, patents, trademarks, trade names, service marks, slogans, trade dress, copyrights, other intellectual property rights and applications for intellectual property rights, goodwill, plans, licenses, Software (to the extent it does not constitute Goods) and other rights in personal property.
“ Goods ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, all computer programs imbedded in goods and any supporting information provided in connection with the transaction relating to the program and all other things that are movable.
 
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“ Indemnitee ” has the meaning set forth in Section 9.1 of this Agreement.
“ Instrument ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, Promissory Notes, negotiable certificates of deposit, a negotiable instrument or a security or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is, in the ordinary course of business, transferred by delivery with any necessary endorsement or assignment.
“ Inventory ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, tangible personal property held by or on behalf of any Debtor (or in which any Debtor has an interest in mass or a joint or other interest) for sale or lease or to be furnished under contracts of service, tangible personal property which any Debtor has so leased or furnished, and raw materials, work in process and materials used, produced or consumed in any Debtor’s business, and shall include tangible personal property returned to such Debtor by the purchaser following a sale thereof by such Debtor and tangible personal property represented by Documents. All equipment, accessories and parts at any time attached or added to items of Inventory or used in connection therewith shall be deemed to be part of the Inventory.
“ Investment Property ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, all securities, whether certificated or uncertificated, all financial assets, all security entitlements, all securities accounts, all commodity contracts and all commodity accounts.
“ Letter-of-Credit Rights ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, any right to payment or performance under a letter of credit, whether or not the beneficiary has demanded or is at the time entitled to demand payment or performance.
“ Location ” of any Debtor, means such Debtor’s “location” as determined pursuant to Section 9-307 of the UCC.
“ Marks ” means all right, title and interest in and to any U.S. or foreign trademarks, service marks and trade names now held or hereafter acquired by any Debtor, including any registration or application for registration of any trademarks and service marks in the United States Patent and Trademark Office, or the equivalent thereof in any State of the United States or in any foreign country, and any trade dress including logos, designs, trade names, company names, business names, fictitious business names and other business identifiers in connection with which any of these registered or unregistered marks are used.
“ Patents ” means any patents in or to which any Debtor now or hereafter has any right, title or interest therein, and any divisions, continuations (including, but not limited to, continuations-in-parts) and improvements thereof, as well as any application for a patent now or hereafter made by any Debtor.
 
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“ Payment Intangible ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, any right to payment under which the account debtor’s principal obligation is a monetary obligation.
“ Permits ” means, to the extent permitted to be assigned by the terms thereof or by applicable law, all licenses, permits, rights, orders, variances, franchises or authorizations (including certificates of need) of or from any governmental authority or agency.
“ Proceeds ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, (a) any and all proceeds of any insurance (whether or not the Collateral Agent is named as the loss payee thereof), indemnity, warranty or guaranty payable to any Debtor or Agent from time to time with respect to any of the Collateral, (b) any and all payments (in any form whatsoever) made or due and payable to any Debtor from time to time in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any Governmental Authority (or any Person acting under color of any Governmental Authority), (c) any and all amounts received when Collateral is sold, leased, licensed, exchanged, collected or disposed of, (d) any rights arising out of Collateral, and (e) any and all other amounts from time to time paid or payable under or in connection with any of the Collateral.
“ Promissory Note ” shall be used herein as defined in the UCC, but in any event shall include, but not be limited to, an Instrument which evidences a promise to pay a monetary obligation; does not evidence an order to pay; and does not contain an acknowledgment by a bank that the bank has received for deposit a sum of money or funds.
“ Qualifying Control Agreement ” means an agreement, among a Debtor, a depository institution or securities intermediary and the Collateral Agent, which agreement is in form and substance reasonably acceptable to the Administrative Agent and which provides the Collateral Agent with “control” (as such term is used in Article 9 of the UCC) over the Deposit Account(s) or Securities Account(s) described therein.
“ Receivables ” means any Account, and in any event shall include but shall not be limited to, all rights to payment of any monetary obligation, whether or not earned by performance, (i) for property that has been or is to be sold, leased, licensed, assigned or otherwise disposed of, (ii) for services rendered or to be rendered, (iii) for a policy of insurance issued or to be issued, (iv) for a secondary obligation incurred or to be incurred, (v) for energy provided or to be provided, (vi) for the use or hire of a vessel under a charter or other contract, (vii) arising out of the use of a credit or charge card or information contained on or for use with the card, or (viii) as winnings in a lottery or other game of chance operated or sponsored by a State, governmental unit of a State, or person licensed or authorized to operate the game by a State or governmental unit of a State.
“ Registered Organization ” shall be used herein as defined in the UCC.
“ Securities Account ” shall be used herein as defined in the UCC.
 
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“ Software ” shall be used herein as defined in the UCC, but, in any event, shall include, but not be limited to, any computer program or supporting information provided in connection with the transaction relating to the program.
“ Subject Deposit Account ” means each Deposit Account that is (i) held at Bank of America or (ii) maintained at all times with depositary institutions as to which the Collateral Agent shall have received a Qualifying Control Agreement.
“ Supporting Obligations ” shall be used herein as defined in the UCC, but, in any event, shall include, but not be limited to, guarantees and letters of credit that support payment of another obligation.
“ Tangible Chattel Paper ” shall be used herein as defined in the UCC, but, in any event, shall include, but not be limited to, Chattel Paper evidenced by a record or records consisting of information that is inscribed on a tangible medium.
“ Termination Date ” has the meaning set forth in Section 10.8 of this Agreement.
“ Trade Secret Rights ” means the rights of any Debtor in any Trade Secret it holds.
“ Trade Secrets ” means any secretly held existing engineering and other data, information, production procedures and other know-how relating to the design, manufacture, assembly, installation, use, operation, marketing, sale and servicing of any products or business of a Debtor in any location, whether written or not written.
ARTICLE II
SECURITY INTERESTS
2.1. Grant of Security Interests . (a) To secure the prompt payment and performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of all of the Secured Obligations, each Debtor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent for the benefit of the Secured Parties, a continuing security interest in, and a right to set off against, any and all of the right, title and interest of such Debtor in, to and under all of the following, whether now owned or existing or hereafter from time to time owned, acquired or arising:
(i) each and every Receivable, including, without limitation, all Accounts;
(ii) all cash;
(iii) any Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in any Collateral Account;
(iv) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(v) all Commercial Tort Claims;
 
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(vi) all computer programs of such Debtor and all intellectual property rights therein and all other proprietary information of such Debtor, including but not limited to Domain Names and Trade Secret Rights;
(vii) all Commodities Accounts;
(viii) all Contracts, together with all Contract Rights arising thereunder;
(ix) all Copyrights;
(x) all Equipment;
(xi) all Deposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Debtor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xii) all Documents;
(xiii) all General Intangibles, including, without limitation, all Payment Intangibles;
(xiv) all Goods and Accessions;
(xv) all Instruments;
(xvi) all Inventory;
(xvii) all Investment Property;
(xviii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xix) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Debtor symbolized by the Marks;
(xx) all Patents;
(xxi) all Permits;
(xxii) all Securities, Securities Accounts and Security Entitlements;
(xxiii) all Software and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or nature, regardless of the medium of recording;
(xxiv) all Supporting Obligations; and
(xxv) all Proceeds and products of any and all of the foregoing (all of the above, the “ Collateral ”).
 
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(b) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Debtor may acquire at any time during the continuation of this Agreement. Notwithstanding anything to the contrary contained herein, the Collateral shall at no time include any items which would at such time constitute Excluded Collateral.
2.2. Power of Attorney . Each Debtor hereby irrevocably constitutes and appoints the Collateral Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorneys-in-fact and with full irrevocable power and authority in the place and stead of such Debtor or in Collateral Agent’s own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute and deliver any and all documents and instruments that may be necessary or useful to accomplish the purposes of this Agreement and, without limiting the generality of the foregoing, hereby gives said attorneys the power and right, for the benefit of the Debtors, without notice to or assent by the Debtors, and at any time, to do the following:
(a) generally to sell, transfer, pledge, make any agreement with respect to or otherwise dispose of or deal with any of the Collateral in such manner as is consistent with the UCC and as fully and completely as though Collateral Agent were the absolute owner thereof for all purposes, and to do, at the Debtors’ expense, at any time, or from time to time, all acts and things which Collateral Agent reasonably deems necessary or useful to protect, preserve or realize upon the Collateral and Collateral Agent’s security interest therein, in order to effect the intent of this Agreement, all no less fully and effectively as the Debtors might do (subject to the requirements of applicable law), including, without limitation, (i) the filing and prosecuting of registration and transfer applications with the appropriate federal, state or local agencies or authorities with respect to trademarks, copyrights and patentable inventions and processes, (ii) the exercise of voting rights with respect to voting securities, which rights may be exercised, if Collateral Agent so elects, with a view to causing the liquidation of assets of the issuer of any such securities and (C) the execution, delivery and recording, in connection with any sale or other disposition of any Collateral, of the endorsements, assignments or other instruments of conveyance or transfer with respect to such Collateral; and
(b) to the extent that the Debtors’ authorization given in Section 7.4 is not sufficient, to file such financing statements with respect hereto, with or without the Debtors’ signatures, or a photocopy of this Agreement in substitution for a financing statement, as Agent may reasonably deem appropriate and to execute in the Debtors’ names such financing statements and amendments thereto and continuation statements which may require the Debtors’ signature.
The power of attorney granted pursuant to this Section (the “ Power of Attorney ”) is a power coupled with an interest and shall be irrevocable until all of the Secured Obligations are indefeasibly paid in full in cash and the Commitments are terminated. The powers conferred on Agent (for the benefit of the Collateral Agent and Secured Parties) under the Power of Attorney are solely to protect Collateral Agent’s interests (for the benefit of Collateral Agent and
 
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Secured Parties) in the Collateral and shall not impose any duty upon the Collateral Agent or any Secured Party to exercise any such powers. The Collateral Agent agrees that, notwithstanding anything to the contrary in the Power of Attorney, (i) it shall not exercise any power or authority granted under clause (a) of the Power of Attorney unless an Event of Default has occurred and is continuing, and (ii) the Collateral Agent shall account for any moneys received by it in respect of any foreclosure on or disposition of Collateral pursuant to the Power of Attorney provided that none of the Collateral Agent or any Secured Party shall have any duty as to any Collateral (except as provided under applicable law), and the Collateral Agent and Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers. NEITHER THE COLLATERAL AGENT NOR ANY SECURED CREDITOR OR ANY OF THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE RESPONSIBLE TO ANY DEBTOR FOR ANY ACT OR FAILURE TO ACT UNDER ANY POWER OF ATTORNEY OR OTHERWISE, EXCEPT IN RESPECT OF DAMAGES ATTRIBUTABLE TO THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION, NOR FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES.
ARTICLE III
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Debtor represents, warrants and covenants, which representations, warranties and covenants shall survive execution and delivery of this Agreement, as follows:
3.1. Necessary Filings . (a) All filings, registrations and recordings necessary or appropriate to create, preserve, protect and perfect the security interest granted by such Debtor to the Collateral Agent for the benefit of the Secured Parties hereby in respect of the Collateral have been accomplished (or, in the case of Collateral for which it is necessary to file a UCC-1 financing statement or make a filing with the United States Trademark and Patent Office or United States Copyright Office in order to perfect a security interest in such Collateral, such filings will be accomplished within 10 days following the date hereof (or to the extent such Collateral is acquired after the date hereof, within 10 days following the date of the acquisition of such Collateral)), and (b) the security interest granted to the Collateral Agent pursuant to this Agreement in and to the Collateral constitutes (or, in the case of Collateral referred to in the parenthetical in clause (a) above, upon compliance with the requirements of such parenthetical, will constitute) a perfected security interest therein prior to the rights of all other Persons therein and subject to no other Liens (other than Permitted Liens) and is entitled to all the rights, priorities and benefits afforded by the UCC or other relevant law as enacted in any relevant jurisdiction to perfected security interests.
3.2. No Liens . Such Debtor is, and as to all Collateral acquired by it from time to time after the date hereof such Debtor will be, the owner of all Collateral free from any Lien, security interest, encumbrance or other right, title or interest of any Person (other than Permitted Liens) and such Debtor shall defend the Collateral against all claims and demands of all Persons at any time claiming the same or any interest therein adverse to the Collateral Agent.
 
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3.3. Other Financing Statements . As of the date hereof, there is no financing statement evidencing a valid security interest against any Debtor (or similar statement or instrument of registration under the law of any jurisdiction) covering or purporting to cover any interest of any kind in the Collateral (other than (a) those created under this Agreement, (b) as may be filed in connection with Permitted Liens and (c) those with respect to which appropriate termination statements authorized to be filed by the secured lender thereunder have been delivered to the Collateral Agent), and so long as any Commitment has not been terminated or any Letter of Credit remains outstanding or any of the Secured Obligations (other than arising from indemnities for which no request has been made) remain unpaid or any Secured Hedge Agreement remains in effect or any Secured Obligations are owed with respect thereto, such Debtor will not execute or authorize to be filed in any public office any financing statement (or similar statement or instrument of registration under the law of any jurisdiction) relating to the Collateral, except financing statements filed or to be filed in respect of and covering the security interests granted hereby by such Debtor or as permitted by the Credit Documents.
3.4. Chief Executive Office; Records . The chief executive office of such Debtor is located at the address or addresses indicated on Schedule 5.13 of the Credit Agreement. During the period of the four calendar months preceding the date of this Agreement, the chief executive office of such Debtor has not been located at any address other than that indicated on Schedule 5.13 of the Credit Agreement in accordance with the immediately preceding sentence, in each case unless each such other address is also indicated on Schedule 5.13 of the Credit Agreement for such Debtor. Each of the locations shown on Schedule 5.13 of the Credit Agreement is either (a) owned by a Debtor free and clear of any Liens other than a Mortgage in favor of the Collateral Agent, where permitted by law, and Permitted Liens or (b) leased by a Debtor who has delivered a signed landlord’s consent or waiver to the Collateral Agent relating to such location, in form and substance reasonably satisfactory to the Collateral Agent.
3.5. Location of Inventory and Equipment . All Inventory and Equipment held on the date hereof by such Debtor is located at one of the locations shown on Schedule 5.08(c), 5.08(d)(i) or 5.08(d)(ii) of the Credit Agreement. Except as set forth on Schedules 5.08(c), 5.08(d)(i) and 5.08(d)(ii) of the Credit Agreement as otherwise approved by Collateral Agent from time to time, each of the locations shown on Schedule 5.08(c), 5.08(d)(i) or 5.08(d)(ii) of the Credit Agreement is either (a) owned or leased by a Debtor free and clear of any Liens other than a Mortgage in favor of the Collateral Agent, where permitted by law, and Permitted Liens or (b) leased by a Debtor who has delivered a signed landlord’s consent or waiver to the Collateral Agent relating to such location, in form and substance reasonably satisfactory to the Collateral Agent, if required by the Collateral Agent.
3.6. Recourse . This Agreement is made with full recourse to each Debtor and pursuant to and upon all the warranties, representations, covenants and agreements on the part of such Debtor contained herein, in the other Credit Documents and otherwise in writing in connection herewith or therewith.
3.7. Legal Names; Type of Organization (and Whether a Registered Organization and/or a Transmitting Utility); Jurisdiction of Organization; Location; Organizational Identification Numbers; Changes Thereto; etc. The exact legal name of each Debtor, the type of organization of such Debtor, whether or not such Debtor is a Registered Organization, the
 
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jurisdiction of organization of such Debtor, such Debtor’s Location, and the organizational identification number (if any) of such Debtor, is listed on Schedule 5.13 of the Credit Agreement for such Debtor. No Debtor is a Transmitting Utility. Such Debtor shall not change its legal name, its type of organization, its status as a Registered Organization (in the case of a Registered Organization), its status as a Person which is not a Transmitting Utility, as the case may be, its jurisdiction of organization, its Location, or its organizational identification number (if any) from that used on Schedule 5.13 of the Credit Agreement, except that any such changes shall be permitted (so long as not in violation of the applicable requirements of the Credit Documents and so long as same do not involve (a) a Registered Organization ceasing to constitute same or (b) such Debtor changing its jurisdiction of organization or Location to a jurisdiction of organization or Location, as the case may be, outside the United States or a political subdivision thereof (including Puerto Rico)), if (i) it shall have given to the Collateral Agent not less than 30 days’ (or such shorter period as may be approved by the Collateral Agent in writing) prior written notice of each change to the information listed on Schedule 5.13 of the Credit Agreement (as adjusted for any subsequent changes thereto previously made in accordance with this sentence), together with a supplement to Schedule 5.13 of the Credit Agreement which shall correct all information contained therein for such Debtor, and (ii) in connection with the respective such change or changes, it shall have taken all action reasonably requested by the Collateral Agent to maintain the security interests of the Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect. In addition, to the extent that such Debtor does not have an organizational identification number on the date hereof and later obtains one, such Debtor shall promptly thereafter notify the Collateral Agent of such organizational identification number and shall take all actions reasonably satisfactory to the Collateral Agent to the extent necessary to maintain the security interest of the Collateral Agent in the Collateral intended to be granted hereby fully perfected and in full force and effect.
3.8. Trade Names; Etc . Such Debtor has or operates in any jurisdiction under, or in the preceding five years has had or has operated in any jurisdiction under, no trade names, fictitious names or other names except its legal name as specified in Schedule 5.13 of the Credit Agreement and such other trade or fictitious names as are listed on Schedule 5.17 of the Credit Agreement for such Debtor. Such Debtor shall not assume or operate in any jurisdiction under any new trade, fictitious or other name until (i) it shall have given to the Collateral Agent not less than 30 days’ (or such shorter period as may be approved by the Collateral Agent in writing) written notice of its intention so to do, clearly describing such new name and the jurisdictions in which such new name will be used and providing such other information in connection therewith as the Collateral Agent may reasonably request and (ii) with respect to such new name, it shall have taken all action reasonably requested by the Collateral Agent to maintain the security interest of the Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect.
3.9. Reserved .
3.10 Non-UCC Property . The aggregate fair market value (as determined by the Debtors in good faith) of all property of the Debtors of the types described in clauses (1), (2) and (3) of Section 9-311(a) of the UCC does not exceed $5,000,000. If the aggregate value of all such property at any time owned by all Debtors exceeds $5,000,000, the Debtors shall provide prompt written notice thereof to the Collateral Agent and, upon the request of the Collateral Agent, the Debtors shall promptly (and in any event within 30 days (or such longer period as may be approved by the Collateral Agent in writing) take such actions with
 
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respect to such property described in Section 9-311(a)(1) of the UCC only (at their own cost and expense)) as may be required under the respective United States, State or other laws referenced in Section 9-311(a)(1) of the UCC to perfect the security interests granted herein in any Collateral where the filing of a financing statement does not perfect the security interest in such property in accordance with the provisions of Section 9-311(a)(1) of the UCC.
3.11. As-Extracted Collateral; Timber-to-be-Cut . On the date hereof, such Debtor does not own, or expect to acquire, any property which constitutes, or would constitute, As-Extracted Collateral or Timber-to-be-Cut. If at any time after the date of this Agreement such Debtor owns, acquires or obtains rights to any As-Extracted Collateral or Timber-to-be-Cut, such Debtor shall furnish the Collateral Agent with prompt written notice thereof (which notice shall describe in reasonable detail the As-Extracted Collateral and/or Timber-to-be-Cut and the locations thereof) and shall take all actions as may be deemed reasonably necessary or desirable by the Collateral Agent to perfect the security interest of the Collateral Agent therein.
3.12. Collateral in the Possession of a Bailee . If any Inventory or other Goods are at any time in the possession of a bailee, such Debtor shall promptly notify the Collateral Agent thereof and, if requested by the Collateral Agent, shall use its reasonable best efforts to promptly obtain an acknowledgment from such bailee, in form and substance reasonably satisfactory to the Collateral Agent, that the bailee holds such Collateral for the benefit of the Collateral Agent and shall act upon the instructions of the Collateral Agent, without the further consent of such Debtor. The Collateral Agent agrees with such Debtor that the Collateral Agent shall not give any such instructions unless an Event of Default has occurred and is continuing or would occur after taking into account any action by the respective Debtor with respect to any such bailee.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS
4.1. Additional Representations and Warranties . As of the time when each of its Receivables arises, each Debtor shall be deemed to have represented and warranted that such Receivable, and all records, papers and documents relating thereto (if any) are genuine, accurate and in all material respects what they purport to be, and that all papers and documents (if any) relating thereto (a) will represent the genuine legal, valid and binding (except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights and by equitable principles, regardless of whether enforcement is sought in equity or law, and subject to any rescission/cancellation period in favor of the Account Debtor as provided under the relevant Approved Installment Agreement or statutory law applicable to such Approved Installment Agreement) obligation of the account debtor evidencing indebtedness unpaid and owed by the respective account debtor arising from labor or services or the sale or lease and delivery of the Cemetery Property inventory, materials, equipment or merchandise listed therein, or both, whether performed or to be performed (b) will be the only original writings evidencing and embodying such obligation of the account debtor named therein (other than copies created for general accounting purposes and for delivery to the account debtor), (c) will evidence true, legal
 
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and valid obligations, enforceable in accordance with their respective terms (except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or law) and subject to any rescission/cancellation period in favor of the Account Debtor as provided under the relevant Approved Installment Agreement or statutory law applicable to such Approved Installment Agreement) and (d) will be in compliance and will conform in all material respects with all applicable federal, state and local laws.
4.2. Maintenance of Records . Each Debtor will keep and maintain at its own cost and expense satisfactory and complete records of its Receivables and Contracts, including, but not limited to, originals of all documentation (including each Contract), with respect thereto, records of all payments received, all credits granted thereon, all merchandise returned and all other dealings therewith, and such Debtor will make the same available on such Debtor’s premises to the Collateral Agent for inspection, at such Debtor’s own cost and expense (subject to Section 6.10 of the Credit Agreement), at any and all reasonable times and intervals as the Collateral Agent may request. Upon the occurrence and during the continuance of an Event of Default and at the request of the Collateral Agent, such Debtor shall, at its own cost and expense, deliver all tangible evidence of its Receivables and Contract Rights (including, without limitation, all documents, if any, evidencing the Receivables and all Contracts) and such books and records to the Collateral Agent or to its representatives (copies of which evidence and books and records may be retained by such Debtor). If the Collateral Agent so directs, such Debtor shall legend, in form and manner reasonably satisfactory to the Collateral Agent, the Receivables and the Contracts, as well as books, records and documents of such Debtor evidencing or pertaining to such Receivables and Contracts with an appropriate reference to the fact that such Receivables and Contracts have been assigned to the Collateral Agent and that the Collateral Agent has a security interest therein.
4.3. Direction to Account Debtors; Contracting Parties; etc. Upon the occurrence and during the continuance of an Event of Default, and if the Collateral Agent so directs any Debtor, such Debtor agrees (x) to cause all payments on account of the Receivables and Contracts to be made directly to the Collateral Account, (y) that the Collateral Agent may, at its option, directly notify the obligors with respect to any Receivables and/or under any Contracts to make payments with respect thereto as provided in preceding clause (x), and (z) that the Collateral Agent may enforce collection of any such Receivables or Contracts and may adjust, settle or compromise the amount of payment thereof, in the same manner and to the same extent as such Debtor (subject to the requirements of applicable law). Upon the occurrence and during the continuance of an Event of Default, without notice to or assent by any Debtor, the Collateral Agent may apply any or all amounts then in, or thereafter deposited in, the Collateral Account in the manner provided in the Credit Agreement. The reasonable costs and expenses (including attorneys’ fees) of collection, whether incurred by any Debtor or the Collateral Agent, shall be borne by such Debtor.
4.4. Modification of Terms; etc. Except in accordance with such Debtor’s ordinary course of business and consistent with reasonable business judgment, no Debtor shall rescind or cancel any indebtedness evidenced by any Receivable or under any Contract, or modify any term thereof or make any adjustment with respect thereto, or extend or renew the
 
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same, or compromise or settle any material dispute, claim, suit or legal proceeding relating thereto, or sell any Receivable or Contract, or interest therein, without the prior written consent of the Collateral Agent. No Debtor will do anything to impair the rights of the Collateral Agent in the Receivables or Contracts.
4.5. Collection. Each Debtor shall use reasonable efforts to endeavor to cause to be collected from the account debtor named in each of its Receivables or obligor under any Contract, as and when due (including, without limitation, amounts, services or products which are delinquent, such amounts, services or products to be collected in accordance with generally accepted lawful collection procedures) any and all amounts, services or products owing under or on account of such Receivable or Contract, and apply forthwith upon receipt thereof all such amounts, services or products as are so collected to the outstanding balance of such Receivable or under such Contract, except that, so long as no Event of Default exists, any Debtor may allow in the ordinary course of business as adjustments to amounts, services or products owing under its Receivables and Contracts (i) an extension or renewal of the time or times of payment or exchange, or settlement for less than the total unpaid balance, which such Debtor finds appropriate in accordance with reasonable business judgment and (ii) a refund or credit due as a result of returned or damaged merchandise or improperly performed services. The costs and expenses (including, without limitation, attorneys’ fees) of collection, whether incurred by a Debtor or the Collateral Agent, shall be borne by the relevant Debtor.
4.6. Instruments. If any Debtor owns or acquires any Instrument constituting Collateral in excess of $500,000, such Debtor will within 10 days (or such longer period as may be approved by the Collateral Agent in writing) notify the Collateral Agent thereof, and upon request by the Collateral Agent, will promptly deliver such Instrument (to the extent such Instrument is not otherwise delivered to the Collateral Agent pursuant to the Pledge Agreement) to the Collateral Agent appropriately endorsed to the order of the Collateral Agent as further security hereunder.
4.7. Further Actions. Each Debtor will, at its own expense, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and other assurances or instruments and take such further steps relating to its Receivables, Contracts, Instruments and other property or rights covered by the security interest hereby granted, as the Collateral Agent may reasonably request to preserve and protect its security interest in the Collateral.
4.8. Debtors Remain Liable Under Contracts. Anything herein to the contrary notwithstanding, the Debtors shall remain liable under each of the Contracts to observe and perform all of the conditions and obligations to be observed and performed by them thereunder, all in accordance with and pursuant to the terms and provisions of each Contract. Except as provided under applicable law, neither the Collateral Agent nor any other Secured Party shall have any obligation or liability under any Contract by reason of or arising out of this Agreement or the receipt by the Collateral Agent or any other Secured Party of any payment relating to such Contract pursuant hereto, nor shall the Collateral Agent or any other Secured Party be obligated in any manner to perform any of the obligations of any Debtor under or pursuant to any Contract, to make any payment, to make any inquiry as to the nature or the sufficiency of any performance by any party under any Contract, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which may have been assigned to them or to which they may be entitled at any time or times.
 
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4.9. Deposit Accounts and Securities Accounts; Etc. (a) Each of the Credit Parties shall not open, maintain or otherwise have any deposit or other accounts (including Securities Accounts) at any bank or other financial institution, or any other account where money or securities are or may be deposited or maintained with any Person, other than (i) Subject Deposit Accounts, (ii) Securities Accounts as to which the Administrative Agent shall have received a Qualifying Control Agreement, (iii) accounts described in clause (a) of the definition of “Excluded Collateral”, and (iv) subject to Section 4.9(c) below, (1) zero balance accounts and (2) Excluded Local Deposit Accounts. No Debtor maintains, or at any time after the date of this Agreement shall establish or maintain, any demand, time, savings, passbook or similar account, except for such accounts maintained with a bank (as defined in Section 9-102 of the UCC) whose jurisdiction (determined in accordance with Section 9-304 of the UCC) is within a political subdivision of the United States (including Puerto Rico). Schedule 5.21(b) of the Credit Agreement accurately sets forth, as of the date of this Agreement, for each Debtor, each Deposit Account and Securities Account maintained by such Debtor (including a description thereof and the respective account number), the name of the respective bank with which such Deposit Account or Securities Account is maintained, and (in the case of any Subject Deposit Account) the jurisdiction of the respective bank with respect to such Deposit Account. At the time any new Deposit Account or Securities Account is established by any Debtor, the respective Debtor shall promptly furnish to the Collateral Agent a supplement to Schedule 5.21(b) of the Credit Agreement containing the relevant information with respect to the respective Deposit Account or Securities Account and the bank or financial institution with which same is established.
(b) Reserved.
(c) Each Debtor covenants and agrees to transfer, by the close of business on each Business Day (in the city where the respective Deposit Account is maintained), any and all Cash and other funds on deposit in each Deposit Account of such Debtor to a Subject Deposit Account, provided that, in the case of a Deposit Account that is an Excluded Local Deposit Account, all Cash and other funds on deposit in such Excluded Local Deposit Account in excess of $10,000, shall be transferred at least once per week to a Subject Deposit Account. Notwithstanding anything herein to the contrary, so long as the Debtors comply with this Section 4.9(c) , the Debtors shall not be required to perfect the Collateral Agent’s security interest in any Deposit Account described in Section 4.9(a)(iv) .
4.10. Letter-of-Credit Rights . If any Debtor is at any time a beneficiary under a letter of credit with a stated amount of $500,000 or more, such Debtor shall promptly notify the Collateral Agent thereof and, at the request of the Collateral Agent, such Debtor shall, pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, use its reasonable best efforts to (i) arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Collateral Agent of the proceeds of any drawing under such letter of credit or (ii) arrange for the Collateral Agent to become the transferee beneficiary of such letter of credit, with the Collateral Agent agreeing, in each case, that the proceeds of any drawing under the letter of credit are to be applied as provided in this Agreement after the occurrence and during the continuance of an Event of Default.
 
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4.11. Commercial Tort Claims . All Commercial Tort Claims of each Debtor in existence on the date of this Agreement are described in Schedule 5.21(c) of the Credit Agreement. If any Debtor shall at any time after the date of this Agreement acquire a Commercial Tort Claim in an amount (taking the greater of the aggregate claimed damages thereunder or the reasonably estimated value thereof) of $500,000 or more, such Debtor shall promptly notify the Collateral Agent thereof in a writing signed by such Debtor and describing the details thereof and shall grant to the Collateral Agent in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to the Collateral Agent.
4.12. Chattel Paper . Upon the request of the Collateral Agent made at any time or from time to time, each Debtor shall promptly furnish to the Collateral Agent a list of all Electronic Chattel Paper held or owned by such Debtor. Furthermore, if requested by the Collateral Agent, each Debtor shall promptly take all actions which are reasonably practicable so that the Collateral Agent has “control” of all Electronic Chattel Paper in accordance with the requirements of Section 9-105 of the UCC. Each Debtor will promptly (and in any event within 10 days (or such longer period as may be approved by the Collateral Agent in writing)) following any request by the Collateral Agent, deliver all of its Tangible Chattel Paper to the Collateral Agent (it being agreed that such delivery requirement shall not apply to a Debtor’s customer contracts to the extent such customer contracts constitute Tangible Chattel Paper, so long as no Event of Default exists).
4.13. Further Actions . Each Debtor will, at its own expense, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, certificates, reports and other assurances or instruments and take such further steps, including any and all actions as may be necessary or required under the Federal Assignment of Claims Act, relating to its Receivables, Contracts, Instruments and other property or rights covered by the security interest hereby granted, as the Collateral Agent may reasonably require.
ARTICLE V
SPECIAL PROVISIONS CONCERNING TRADEMARKS
AND DOMAIN NAMES
5.1. Additional Representations and Warranties . Each Debtor represents and warrants that it is the true, lawful, sole and exclusive owner of or otherwise has the right to use the Marks and Domain Names listed in Schedule 5.17 of the Credit Agreement and that said listed Marks and Domain Names (i) constitute all the Marks and Domain Names that such Debtor presently owns or uses in connection with its business and (ii) include all Marks and applications for Marks registered in the United States Patent and Trademark Office (or the equivalent thereof in any foreign country), all material unregistered Marks that such Debtor now owns,
 
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licenses or uses in connection with its business on the date hereof and all Domain Names that such Debtor owns or uses in connection with its business on the date hereof. Each Debtor further warrants that it has no knowledge, as of the date hereof, of any material third party claim that any aspect of such Debtor’s present or contemplated business operations infringes or will infringe any rights in any trademark, service mark or trade name. Each Debtor represents and warrants that it is the beneficial and record owner of all trademark registrations and applications listed in Schedule 5.17 of the Credit Agreement and designated as “owned” thereon and that said registrations are valid, subsisting and have not been canceled and that such Debtor is not aware of any material third party claim that any of said registrations is invalid or unenforceable, or that there is any reason that any of said applications will not pass to registration. Each Debtor represents and warrants that upon the recordation of an Assignment of Security Interest in United States Trademarks and Patents in the form of Annex A hereto in the United States Patent and Trademark Office, together with filings on Form UCC-1 pursuant to this Agreement, all filings, registrations and recordings necessary or appropriate to perfect the security interest granted to the Collateral Agent in the United States Marks covered by this Agreement under federal law will have been accomplished. Each Debtor agrees to execute such an Assignment of Security Interest in United States Trademarks and Patents covering all right, title and interest in each United States Mark, and the associated goodwill, of such Debtor, and to record the same. Each Debtor hereby grants to the Collateral Agent an absolute power of attorney to sign, upon the occurrence and during the continuance of an Event of Default, any document which may be required by the U.S. Patent and Trademark Office or secretary of state or equivalent governmental agency of any State of the United States or any foreign jurisdiction in order to effect an absolute assignment of all right, title and interest in each Mark and/or Domain Name, and record the same.
5.2. Licenses and Assignments . Each Debtor hereby agrees not to divest itself of any right under any Mark or Domain Name absent prior written approval of the Collateral Agent, except as otherwise permitted by this Agreement or by the other Credit Documents.
5.3. Infringements . Each Debtor agrees, promptly upon learning thereof, to notify the Collateral Agent in writing of the name and address of, and to furnish such pertinent information that may be available with respect to, (i) any party who such Debtor believes is infringing or diluting or otherwise violating in any material respect any of such Debtor’s rights in and to any material Mark or Domain Name, or (ii) with respect to any party claiming that such Debtor’s use of any Mark or Domain Name violates in any material respect any property right of that party. Each Debtor further agrees, unless otherwise agreed by the Collateral Agent, to prosecute, in accordance with reasonable business practices, any Person infringing any material Mark or Domain Name owned by such Debtor.
5.4. Preservation of Marks . Each Debtor agrees to use its Marks and Domain Names in interstate or foreign commerce, as the case may be, during the time in which this Agreement is in effect, sufficiently to preserve such Marks as valid and subsisting trademarks or service marks under the laws of the United States or the relevant foreign jurisdiction; provided that no Debtor shall be obligated to preserve any Mark to the extent the Debtor determines, in its reasonable business judgment, that the preservation of such Mark is no longer economically desirable in the conduct of its business.
 
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5.5. Maintenance of Registration . Each Debtor shall, at its own expense and in accordance with reasonable business practices, process all documents required to maintain Mark and Domain Name registrations, including but not limited to affidavits of continued use and applications for renewals of registration in the United States Patent and Trademark Office for all of its registered Marks pursuant to 15 U.S.C. §§ 1058, 1059 and 1065 or any foreign equivalent thereof, as applicable, and shall pay all fees and disbursements in connection therewith and shall not abandon any such filing of affidavit of use or any such application of renewal prior to the exhaustion of all administrative and judicial remedies without prior written consent of the Collateral Agent; provided that no Debtor shall be obligated to maintain any Mark and/or Domain Name to the extent such Debtor determines, in its reasonable business judgment, that the maintenance of such Mark and/or Domain Name is no longer economically desirable in the conduct of its business.
5.6. Future Registered Marks and Domain Names . If any registration for any Mark issued hereafter to any Debtor as a result of any application now or hereafter pending before the United States Patent and Trademark Office or any Domain Name is registered by any Debtor, within 30 days (or such longer period as may be approved by the Collateral Agent in writing) of receipt of such certificate, such Debtor shall deliver to the Collateral Agent a copy of such certificate, and an assignment for security in such Mark and/or Domain Name, to the Collateral Agent and at the expense of such Debtor, confirming the assignment for security in such Mark and/or Domain Name to the Collateral Agent hereunder, the form of such assignment for security to be substantially the same as the form hereof or in such other form as may be reasonably satisfactory to the Collateral Agent.
5.7. Remedies . If an Event of Default shall occur and be continuing, the Collateral Agent may, by written notice to the relevant Debtor, take any or all of the following actions: (i) declare the entire right, title and interest of such Debtor in and to each of the Marks and Domain Names, together with all trademark rights and rights of protection to the same and the goodwill of such Debtor’s business symbolized by said Marks or Domain Names and the right to recover for past infringements thereof, vested in the Collateral Agent for the benefit of the Secured Parties, in which event such rights, title and interest shall immediately vest, in the Collateral Agent for the benefit of the Secured Parties, and the Collateral Agent shall be entitled to exercise the power of attorney referred to in Section 5.1 to execute, cause to be acknowledged and notarized and to record an absolute assignment with the applicable agency; (ii) take and use or sell the Marks or Domain Names and the goodwill of such Debtor’s business symbolized by the Marks or Domain Names and the right to carry on the business and use the assets of such Debtor in connection with which the Marks or Domain Names have been used; and (iii) direct such Debtor to refrain, in which event such Debtor shall refrain, from using the Marks or Domain Names in any manner whatsoever, directly or indirectly, and, if requested by the Collateral Agent, change such Debtor’s corporate name to eliminate therefrom any use of any Mark or Domain Name and execute such other and further documents that the Collateral Agent may request to further confirm this and to transfer ownership of the Marks or Domain Names and registrations and any pending trademark applications therefor in the United States Patent and Trademark Office or any equivalent government agency or office in any foreign jurisdiction to the Collateral Agent.
 
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ARTICLE VI
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
6.1. Additional Representations and Warranties . Each Debtor represents and warrants that it is the true and lawful exclusive owner of or otherwise has the right to use all (i) Trade Secrets Rights and proprietary information necessary to operate the business of such Debtor, (ii) rights in the Patents of such Debtor listed in Schedule 5.17 of the Credit Agreement and that said Patents constitute all the patents and applications for patents that such Debtor now owns or that are otherwise necessary in the conduct of the business of such Debtor, and (iii) rights in the Copyrights of such Debtor listed in Schedule 5.17 of the Credit Agreement, and that such Copyrights constitute all registrations of copyrights and applications for copyright registrations that such Debtor now owns or that are otherwise necessary in the conduct of the business of such Debtor. Each Debtor further represents and warrants that it has the right to use and practice under all Patents and Copyrights that it owns, uses or under which it practices and has the right to exclude others from using or practicing under any Patents it owns. Each Debtor further warrants that it has no knowledge as of the date hereof, of any material third party claim that any aspect of such Debtor’s present or contemplated business operations infringes or will infringe any rights in any Patent or Copyright or that such Debtor has misappropriated any Trade Secret, Trade Secret Rights or proprietary information. Each Debtor represents and warrants that upon the recordation of an Assignment of Security Interest in United States Trademarks and Patents in the form of Annex A hereto in the United States Patent and Trademark Office and the recordation of an Assignment of Security Interest in United States Copyrights in the form of Annex B hereto in the United States Copyright Office, together with filings on Form UCC-1 pursuant to this Agreement, all filings, registrations and recordings necessary or appropriate to perfect the security interest granted to the Collateral Agent in the United States Patents and United States Copyrights covered by this Agreement under federal law will have been accomplished. Upon obtaining any Patent, each Debtor agrees to execute an Assignment of Security Interest in United States Trademarks and Patents covering all right, title and interest in each United States Patent of such Debtor and to record the same, and upon obtaining any Copyright, to execute such an Assignment of Security Interest in United States Copyrights covering all right, title and interest in each United States Copyright of such Debtor and to record the same. Each Debtor hereby grants to the Collateral Agent an absolute power of attorney to sign, upon the occurrence and during the continuance of any Event of Default, any document which may be required by the U.S. Patent and Trademark Office or equivalent governmental agency in any foreign jurisdiction or the U.S. Copyright Office or equivalent governmental agency in any foreign jurisdiction in order to effect an absolute assignment of all right, title and interest in each Patent and Copyright of such Debtor, as the case may be, and to record the same.
6.2. Licenses and Assignments . Each Debtor hereby agrees not to divest itself of any right under any Patent or Copyright absent prior written approval of the Collateral Agent, except as otherwise permitted by this Agreement or the other Credit Documents.
6.3. Infringements . Each Debtor agrees, promptly upon learning thereof, to furnish the Collateral Agent in writing with all pertinent information available to such Debtor with respect to any infringement, contributing infringement or active inducement to infringe any
 
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of such Debtor’s rights in any material Patent or Copyright of such Debtor or to any claim that the practice of any Patent or the use of any Copyright violates any property right of a third party, or with respect to any misappropriation of any material Trade Secret Right of such Debtor or any claim that practice of any material Trade Secret Right of such Debtor violates any property right of a third party. Each Debtor further agrees, absent direction of the Collateral Agent to the contrary, to prosecute, in accordance with reasonable business practices, any Person infringing any material Patent or Copyright of such Debtor or any Person misappropriating any material Trade Secret Right of such Debtor.
6.4. Maintenance of Patents and Copyrights . At its own expense, each Debtor shall make timely payment of all post-issuance fees required pursuant to applicable law to maintain in force rights under each of its Patents, and to apply as permitted pursuant to applicable law for any renewal of each of its Copyrights; provided, that, no Debtor shall be obligated to pay any such fees or apply for any such renewal to the extent that such Debtor determines, in its reasonable business judgment, that the maintenance of such Patent or Copyright is no longer economically desirable in the conduct of its business.
6.5. Prosecution of Patent or Copyright Applications . At its own expense, each Debtor shall prosecute, in accordance with reasonable business practices, all of its applications for Patents and for Copyrights listed in Schedule 5.17 of the Credit Agreement, to the extent that such Patents or Copyrights are material to its business and shall not abandon any such application prior to exhaustion of all administrative and judicial remedies, absent written consent of the Collateral Agent.
6.6. Other Patents and Copyrights . Within 30 days (or such longer period as may be approved by the Collateral Agent in writing) of the acquisition or issuance of a United States Patent or of a Copyright registration, or of filing of an application for a United States Patent or Copyright registration, the relevant Debtor shall deliver to the Collateral Agent a copy of said Patent or Copyright registration or certificate or registration of, or application therefor, as the case may be, with an assignment for security as to such Patent or Copyright, as the case may be, to the Collateral Agent and at the expense of such Debtor, confirming the assignment for security, the form of such assignment for security to be substantially the same as the form hereof or in such other form as may be reasonably satisfactory to the Collateral Agent.
6.7. Remedies . If an Event of Default shall occur and be continuing, the Collateral Agent may by written notice to the relevant Debtor, take any or all of the following actions: (a) declare the entire right, title, and interest of such Debtor in each of the Patents and Copyrights vested in the Collateral Agent for the benefit of the Secured Parties, in which event such right, title, and interest shall immediately vest in the Collateral Agent for the benefit of the Secured Parties, and the Collateral Agent shall be entitled to exercise the power of attorney referred to in Section 6.1 to execute, cause to be acknowledged and notarized and to record an absolute assignment with the applicable agency; (b) take and use, practice or sell the Patents, Copyrights and Trade Secret Rights; and (c) direct such Debtor to refrain, in which event such Debtor shall refrain, from practicing the Patents and using the Copyrights and/or Trade Secret Rights directly or indirectly, and such Debtor shall execute such other and further documents as the Collateral Agent may request further to confirm this and to transfer ownership of the Patents, Copyrights and Trade Secret Rights to the Collateral Agent for the benefit of the Secured Parties.
 
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ARTICLE VII
PROVISIONS CONCERNING ALL COLLATERAL
7.1. Protection of Collateral Agent’s Security . Each Debtor will do nothing to impair the rights of the Collateral Agent in the Collateral. Each Debtor will at all times keep its Inventory and Equipment insured in favor of the Collateral Agent, at such Debtor’s own expense to the extent and in the manner provided herein and in the other Credit Documents. All policies or certificates with respect to such material insurance (and any other material insurance maintained by such Debtor) shall (i) be endorsed to the Collateral Agent’s reasonable satisfaction for the benefit of the Collateral Agent (including, without limitation, by naming the Collateral Agent as mortgagee and/or lender loss payable and naming each of the Lenders and the Collateral Agent as additional insureds); (ii) state that such insurance policies shall not be canceled or materially revised without 30 days’ prior written notice thereof by the insurer to the Collateral Agent; and (iii) be delivered (or certified copies of such policies or certificates shall be delivered) to the Collateral Agent to the extent, at the times and in the manner specified in the Credit Documents. If any Debtor shall fail to insure its Inventory and Equipment in accordance with the preceding sentence, or if any Debtor shall fail to so endorse and deposit all policies or certificates with respect thereto, the Collateral Agent shall have the right (but shall be under no obligation) to procure such insurance and such Debtor agrees to promptly reimburse the Collateral Agent for all costs and expenses of procuring such insurance. Except as otherwise permitted to be retained or expended by the relevant Debtor pursuant to the Credit Documents, the Collateral Agent shall, at the time such proceeds of such insurance are distributed to the Secured Parties, apply such proceeds in accordance with the Credit Agreement. Each Debtor assumes all liability and responsibility in connection with the Collateral acquired by it and the liability of such Debtor to pay the Secured Obligations shall in no way be affected or diminished by reason of the fact that such Collateral may be lost, destroyed, stolen, damaged or for any reason whatsoever unavailable to such Debtor.
7.2. Warehouse Receipts Non-Negotiable . Each Debtor agrees that if any warehouse receipt or receipt in the nature of a warehouse receipt is issued with respect to any of its Inventory, such warehouse receipt or receipt in the nature thereof shall not be “negotiable” (as such term is used in Section 7-104 of the UCC as in effect in any relevant jurisdiction or under other relevant law), unless otherwise consented to by the Collateral Agent in writing.
7.3. Further Actions . Each Debtor will, at its own expense, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such lists, descriptions and designations of its Collateral, warehouse receipts, receipts in the nature of warehouse receipts, bills of lading, documents of title, vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and other assurances or instruments and take such further steps relating to the Collateral and other property or rights covered by the security interest hereby granted, which the Collateral Agent deems reasonably appropriate or advisable to perfect, preserve or protect its security interest in the Collateral.
 
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7.4. Financing Statements . Each Debtor agrees to execute and deliver to the Collateral Agent such financing statements, in form acceptable to the Collateral Agent, as the Collateral Agent may from time to time reasonably request or as are reasonably necessary or desirable in the opinion of the Collateral Agent to establish and maintain a valid, enforceable, first priority perfected security interest in the Collateral as provided herein and the other rights and security contemplated hereby all in accordance with the UCC as enacted in any and all relevant jurisdictions or any other relevant law. Each Debtor will pay any applicable filing fees, recordation taxes and related expenses relating to its Collateral. Each Debtor hereby authorizes the Collateral Agent to file any such financing statements without the signature of such Debtor where permitted by law (and such authorization includes, without limitation, describing the Collateral as “All assets of the Debtor, whether real or personal, tangible or intangible, whether now existing or hereafter from time to time acquired, and the proceeds thereof”).
7.5. Additional Information . Each Debtor will, at its own expense, from time to time upon the reasonable request of the Collateral Agent, promptly (and in any event within 10 days (or such longer period as may be approved by the Collateral Agent in writing) after its receipt of the respective request) furnish to the Collateral Agent such information with respect to the Collateral (including the identity of the Collateral or such components thereof as may have been requested by the Collateral Agent, the value and location of such Collateral, etc.) as may be requested by the Collateral Agent. Without limiting the forgoing, each Debtor agrees that it shall promptly (and in any event within 10 days (or such longer period as may be approved by the Collateral Agent in writing) after its receipt of the respective request) furnish to the Collateral Agent such updated Schedules to the Credit Agreement as may from time to time be reasonably requested by the Collateral Agent.
ARTICLE VIII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
8.1. Remedies; Obtaining the Collateral Upon Default . Each Debtor agrees that, if any Event of Default shall have occurred and be continuing, then and in every such case, the Collateral Agent, in addition to any rights now or hereafter existing under applicable law, shall have all rights as a secured creditor under the UCC, and such additional rights and remedies to which a secured creditor is entitled under the laws in effect, in all relevant jurisdictions and may also (subject to the requirements of applicable law):
(i) personally, or by agents or attorneys, immediately take possession of the Collateral or any part thereof, from such Debtor or any other Person who then has possession of any part thereof with or without notice or process of law, and for that purpose may enter upon such Debtor’s premises where any of the Collateral is located and remove the same and use in connection with such removal any and all services, supplies, aids and other facilities of such Debtor;
(ii) instruct the obligor or obligors on any agreement, instrument or other obligation (including, without limitation, the Receivables and the Contracts) constituting the Collateral to make any payment required by the terms of such agreement, instrument or other obligation directly to the Collateral Agent;
 
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(iii) instruct all depositary banks and Securities Intermediaries which have entered into a control agreement with the Collateral Agent to transfer all monies, securities and instruments held by such depositary bank or Securities Intermediary to the Collateral Account and withdraw all monies, securities and instruments in the Collateral Account for application to the Secured Obligations in accordance with Section 8.4 ;
(iv) sell, assign or otherwise liquidate, or direct such Debtor to sell, assign or otherwise liquidate, any or all of the Collateral or any part thereof in accordance with Section 8.2 , or direct the relevant Debtor to sell, assign or otherwise liquidate any or all of the Collateral or any part thereof, and, in each case, take possession of the proceeds of any such sale or liquidation;
(v) take possession of the Collateral or any part thereof, by directing the relevant Debtor in writing to deliver the same to the Collateral Agent at any place or places designated by the Collateral Agent, in which event such Debtor shall at its own expense:
(x) forthwith cause the same to be moved to the place or places so designated by the Collateral Agent and there delivered to the Collateral Agent;
(y) store and keep any Collateral so delivered to the Collateral Agent at such place or places pending further action by the Collateral Agent as provided in Section 8.2; and
(z) while the Collateral shall be so stored and kept, provide such guards, other security and maintenance services as shall be necessary to protect the same and to preserve and maintain them in good condition; and
(vi) license or sublicense, whether on an exclusive or nonexclusive basis, any Marks, Domain Names, Patents or Copyrights included in the Collateral for such term and on such conditions and in such manner as the Collateral Agent shall in its sole judgment determine;
(vii) apply any monies constituting Collateral or proceeds thereof in accordance with the provisions of Section 8.4 ; and
(viii) take any other action as specified in clauses (1) through (5), inclusive, of Section 9-607 of the UCC;
it being understood that each Debtor’s obligation so to deliver the Collateral is of the essence of this Agreement and that, accordingly, upon application to a court of equity having jurisdiction, the Collateral Agent shall be entitled to a decree requiring specific performance by such Debtor of said obligation. The Secured Parties agree that this Agreement may be enforced only by the action of the Collateral Agent or the Collateral Agent, in each case acting upon the instructions of the Required Lenders in accordance with the terms of the Credit Agreement and that no other Secured Party shall have any right individually to seek to enforce or to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may be exercised by the Collateral Agent, for the benefit of the Secured Parties upon the terms of this Agreement and the Credit Agreement.
 
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8.2. Remedies; Disposition of the Collateral . Any Collateral repossessed by the Collateral Agent under or pursuant to Section 8.1 and any other Collateral whether or not so repossessed by the Collateral Agent, may be sold, assigned, leased or otherwise disposed of under one or more contracts or as an entirety, and without the necessity of gathering at the place of sale the property to be sold, and in general in such manner, at such time or times, at such place or places and on such terms as the Collateral Agent may, in compliance with any mandatory requirements of applicable law, determine to be commercially reasonable. Any of the Collateral may be sold, leased or otherwise disposed of, in the condition in which the same existed when taken by the Collateral Agent or after any overhaul or repair at the expense of the relevant Debtor which the Collateral Agent shall determine to be commercially reasonable. Any such disposition which shall be a private sale or other private proceedings permitted by such requirements shall be made upon not less than 10 days’ written notice to the relevant Debtor specifying the time at which such disposition is to be made and the intended sale price or other consideration therefor, and shall be subject, for the 10 days after the giving of such notice, to the right of the relevant Debtor or any nominee of such Debtor to acquire the Collateral involved at a price or for such other consideration at least equal to the intended sale price or other consideration so specified. Any such disposition which shall be a public sale permitted by such requirements shall be made upon not less than 10 days’ written notice to the relevant Debtor specifying the time and place of such sale and, in the absence of applicable requirements of law, shall be by public auction (which may, at the Collateral Agent’s option, be subject to reserve), after publication of notice of such auction not less than 10 days prior thereto in two newspapers in general circulation to be selected by the Collateral Agent. To the extent permitted by any such requirement of law, the Collateral Agent on behalf of the Secured Parties (or certain of them) may bid for and become the purchaser of the Collateral or any item thereof, offered for sale in accordance with this Section without accountability to the relevant Debtor. If, under mandatory requirements of applicable law, the Collateral Agent shall be required to make a disposition of the Collateral within a period of time which does not permit the giving of notice to the relevant Debtor as hereinabove specified, the Collateral Agent need give such Debtor only such notice of disposition as shall be reasonably practicable in view of such mandatory requirements of applicable law. Each Debtor agrees to do or cause to be done all such other acts and things as may be reasonably necessary to make such sale or sales of all or any portion of the Collateral of such Debtor valid and binding and in compliance with any and all applicable laws, regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrations or governmental instrumentalities, domestic or foreign, having jurisdiction over any such sale or sales, all at such Debtor’s expense.
8.3. Waiver of Claims . Except as otherwise provided in this Agreement, EACH DEBTOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT’S TAKING POSSESSION OR THE COLLATERAL AGENT’S DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH SUCH DEBTOR WOULD OTHERWISE HAVE UNDER THE LAW OF THE UNITED STATES OR OF ANY STATE, and such Debtor hereby further waives, to the extent permitted by law:
(i) all damages occasioned by such taking of possession except any damages which are the result of the Collateral Agent’s gross negligence or willful misconduct;
 
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(ii) all other requirements as to the time, place and terms of sale or other requirements with respect to the enforcement of the Collateral Agent’s rights hereunder; and
(iii) all rights of redemption, appraisement, valuation, stay, extension or moratorium now or hereafter in force under any applicable law in order to prevent or delay the enforcement of this Agreement or the absolute sale of the Collateral or any portion thereof, and each Debtor, for itself and all who may claim under it, insofar as it or they now or hereafter lawfully may, hereby waives the benefit of all such laws.
Any sale of or any other realization upon, any Collateral shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of the relevant Debtor therein and thereto, and shall be a perpetual bar both at law and in equity against such Debtor and against any and all Persons claiming or attempting to claim the Collateral so sold or realized upon, or any part thereof, from, through and under such Debtor.
8.4. Application of Proceeds . (a) All moneys collected by the Collateral Agent upon any sale or other disposition of the Collateral pursuant to the terms of this Agreement, together with all other moneys received by the Collateral Agent hereunder, shall be applied to the payment of the Secured Obligations in the manner provided in the Credit Agreement.
(b) It is understood and agreed that the Debtors shall remain jointly and severally liable to the extent of any deficiency between the amount of proceeds of the Collateral hereunder and the aggregate amount of the Secured Obligations.
8.5. Remedies Cumulative . Each and every right, power and remedy hereby specifically given to the Collateral Agent shall be in addition to every other right, power and remedy specifically given under this Agreement and the other Credit Document, or now or hereafter existing at law, in equity or by statute and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time or simultaneously and as often and in such order as may be deemed expedient by the Collateral Agent. All such rights, powers and remedies shall be cumulative and the exercise or the beginning of the exercise of one shall not be deemed a waiver of the right to exercise any other or others. No delay or omission of the Collateral Agent in the exercise of any such right, power or remedy and no renewal or extension of any of the Secured Obligations shall impair any such right, power or remedy or shall be construed to be a waiver of any Default or Event of Default or an acquiescence therein. No notice to or demand on any Debtor in any case shall entitle it to any other or further notice or demand in similar or other circumstances or constitute a waiver of any of the rights of the Collateral Agent to any other or further action in any circumstances without notice or demand. In the event that the Collateral Agent shall bring any suit to enforce any of its rights hereunder and shall be entitled to judgment, then in such suit the Collateral Agent may recover expenses, including attorneys’ fees, and the amounts thereof shall be included in such judgment.
 
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8.6. Discontinuance of Proceedings . In case the Collateral Agent shall have instituted any proceeding to enforce any right, power or remedy under this Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Collateral Agent, then and in every such case the relevant Debtor, the Collateral Agent and each holder of any of the Secured Obligations shall be restored to their former positions and rights hereunder with respect to the Collateral subject to the security interest created under this Agreement, and all rights, remedies and powers of the Collateral Agent shall continue as if no such proceeding had been instituted.
ARTICLE IX
INDEMNITY
9.1. Indemnity . (a) Each Debtor jointly and severally agrees to indemnify, reimburse and hold the Collateral Agent, each other Secured Party and their respective successors, permitted assigns, employees, agents and servants (herein referred to individually as an “ Indemnitee ,” and, collectively, as “ Indemnitees ”) harmless from any and all liabilities, obligations, losses, damages, injuries, penalties, claims, demands, actions, suits, judgments and any and all reasonable out-of-pocket costs, expenses or disbursements (including attorneys’ fees and expenses) (for the purposes of this Section 9.1 , the foregoing are collectively called “ expenses ”) of whatsoever kind and nature imposed on, asserted against or incurred by any of the Indemnitees in any way relating to or arising out of this Agreement, any other Credit Document or any other document executed in connection herewith or therewith or in any other way connected with the administration of the transactions contemplated hereby or thereby or the enforcement of any of the terms of, or the preservation of any rights under any thereof, or in any way relating to or arising out of the manufacture, ownership, ordering, purchase, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or other disposition, or use of the Collateral (including, without limitation, latent or other defects, whether or not discoverable), the violation of the laws of any country, state or other governmental body or unit, any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on account of injury to or the death of any Person (including any Indemnitee), or property damage), or contract claim; provided that no Indemnitee shall be indemnified pursuant to this Section 9.1(a) for losses, damages or liabilities to the extent caused by the gross negligence or willful misconduct of such Indemnitee. Each Debtor agrees that upon written notice by any Indemnitee of the assertion of such a liability, obligation, loss, damage, injury, penalty, claim, demand, action, suit or judgment, the relevant Debtor shall assume full responsibility for the defense thereof. Each Indemnitee agrees to use its best efforts to promptly notify the relevant Debtor of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 9.1(a) , each Debtor agrees, jointly and severally, to pay, or reimburse the Collateral Agent for any and all reasonable out-of-pocket fees, costs and expenses of whatever kind or nature incurred in connection with the creation, preservation or protection of the Collateral Agent’s Liens on, and security interest in, the
 
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Collateral, including, without limitation, all fees and taxes in connection with the recording or filing of instruments and documents in public offices, payment or discharge of any taxes or Liens upon or in respect of the Collateral, premiums for insurance with respect to the Collateral and all other fees, costs and expenses in connection with protecting, maintaining or preserving the Collateral and the Collateral Agent’s interest therein, whether through judicial proceedings or otherwise, or in defending or prosecuting any actions, suits or proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section 9.1(a) or (b) , each Debtor agrees, jointly and severally, to pay, indemnify and hold each Indemnitee harmless from and against any loss, costs, damages and expenses which such Indemnitee may suffer, expend or incur in consequence of or growing out of any misrepresentation by any Debtor in this Agreement, any other Credit Document or in any writing contemplated by or made or delivered pursuant to or in connection with this Agreement or any other Credit Document.
(d) If and to the extent that the obligations of any Debtor under this Section 9.1 are unenforceable for any reason, such Debtor hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law.
9.2. Indemnity Obligations Secured by Collateral; Survival . Subject to Section 10.8 hereof, any amounts paid by any Indemnitee as to which such Indemnitee has the right to reimbursement shall constitute Secured Obligations secured by the Collateral. The indemnity obligations of each Debtor contained in this Article IX shall continue in full force and effect notwithstanding the full payment of all the Secured Obligations and the termination of all Credit Documents and Letters of Credit, and notwithstanding the discharge thereof.
ARTICLE X
MISCELLANEOUS
10.1. Notices and Other Communications; Facsimile Copies . (a)  General . Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including by facsimile transmission). All such written notices shall be mailed certified or registered mail, faxed or delivered to the address, facsimile number or (subject to subsection (b)  below) electronic mail address specified for such Person in the Credit Agreement or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by such party in a notice to the Collateral Agent and all other parties, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number; provided however, that all notices to any Debtor shall be delivered to the Operating Company.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b)  below, shall be effective as provided in such subsection (b) .
 
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(b) Electronic Communications . Notices and other communications to the Secured Parties hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Collateral Agent. The Collateral Agent or any Credit Party may, in their discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
(c) Effectiveness of Facsimile Documents and Signatures . Credit Documents may be transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures shall, subject to applicable law, have the same force and effect as manually-signed originals and shall be binding on all Credit Parties, the Collateral Agent, and the Secured Parties. The Collateral Agent may also require that any such documents and signatures be confirmed by a manually-signed original thereof; provided , however , that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature.
(d) Reliance by Collateral Agent and Lenders . The Collateral Agent and the Secured Parties shall each be entitled to rely and act upon any notices (including telephonic Notices of Borrowing, as such term is defined in the Credit Agreement) believed by it in good faith to have been given by or on behalf of any Credit Party even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Credit Parties shall indemnify the Collateral Agent, each Secured Party, together with their respective Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice believed by the respective such Person in good faith to have been given by or on behalf of any other Credit Party. All telephonic notices to and other communications with the Collateral Agent may be recorded by the Collateral Agent or any other party, and each of the parties hereto hereby consents to such recording.
10.2. Waiver; Amendment . None of the terms and conditions of this Agreement may be changed, waived, modified or varied in any manner whatsoever unless in writing duly signed by each Debtor and the Collateral Agent (with the consent of the Required Lenders).
 
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10.3. Obligations Absolute . The obligations of each Debtor hereunder shall remain in full force and effect without regard to, and shall not be impaired by: (a) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of such Debtor; (b) any exercise or non-exercise, or any waiver of, any right, remedy, power or privilege under or in respect of this Agreement or any other Credit Document; or (c) any renewal, extension, amendment or modification of or addition or supplement to or deletion from any Credit Document or any security for any of the Secured Obligations; (d) any waiver, consent, extension, indulgence or other action or inaction under or in respect of any such agreement or instrument including, without limitation, this Agreement; (e) any furnishing of any additional security to the Collateral Agent or its assignee or any acceptance thereof or any release of any security by the Collateral Agent or its assignee; or (f) any limitation on any party’s liability or obligations under any such instrument or agreement or any invalidity or unenforceability, in whole or in part, of any such instrument or agreement or any term thereof; whether or not any Debtor shall have notice or knowledge of any of the foregoing. The rights and remedies of the Collateral Agent herein provided are cumulative and not exclusive of any rights or remedies which the Collateral Agent would otherwise have.
10.4. Successors and Assigns . This Agreement shall be binding upon each Debtor and its successors and assigns and shall inure to the benefit of the Collateral Agent and its successors and assigns; provided that no Debtor may transfer or assign any or all of its rights or obligations hereunder except in accordance with the Credit Documents. All agreements, statements, representations and warranties made by each Debtor herein or in any certificate or other instrument delivered by such Debtor or on its behalf under this Agreement shall be considered to have been relied upon by the Secured Parties and shall survive the execution and delivery of this Agreement and the other Credit Documents regardless of any investigation made by the Secured Parties or on their behalf.
10.5. Headings Descriptive . The headings of the several sections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.
10.6. Governing Law . (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER SECURITY DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA, COUNTY OF PHILADELPHIA, OR OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH DEBTOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH DEBTOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK JURISDICTION OVER SUCH DEBTOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER SECURITY DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS JURISDICTION OVER SUCH DEBTOR.
 
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EACH DEBTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH DEBTOR AT ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION 10.1 ABOVE, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH DEBTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER SECURITY DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE COLLATERAL AGENT UNDER THIS AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY DEBTOR IN ANY OTHER JURISDICTION.
(b) EACH DEBTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER SECURITY DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER SECURITY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
10.7. Debtor’s Duties . It is expressly agreed, anything herein contained to the contrary notwithstanding, that each Debtor shall remain liable to perform all of the obligations, if any, assumed by it with respect to the Collateral and the Collateral Agent, except as provided under applicable law, shall not have any obligations or liabilities with respect to any Collateral by reason of or arising out of this Agreement, nor shall the Collateral Agent be required or obligated in any manner to perform or fulfill any of the obligations of any Debtor under or with respect to any Collateral.
10.8. Termination; Release . (a) After the Termination Date (as defined below), this Agreement shall terminate ( provided that all indemnities set forth herein including, without limitation, in Section 9.1 hereof shall survive such termination) and the Collateral Agent, at the request and expense of the respective Debtor, will promptly execute and deliver to such Debtor a proper instrument or instruments (including UCC termination statements on form UCC-3) acknowledging the satisfaction and termination of this Agreement, and will duly assign, transfer and deliver to such Debtor (without recourse and without any representation or warranty) such of
 
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the Collateral as may be in the possession of the Collateral Agent and as has not theretofore been sold or otherwise applied or released pursuant to this Agreement. As used in this Agreement, “ Termination Date ” means the date upon which the Total Commitments, and all Secured Hedge Agreements have been terminated, no Letter of Credit is outstanding (other than, in the sole discretion of the issuer, Letters of Credit that have been Cash Collateralized) and all Loans and all other Secured Obligations, other than the indemnities described in Article IX hereof and in the other Credit Documents, have been paid in full in cash.
(b) In the event that any part of the Collateral is sold or otherwise disposed of (to a Person other than a Credit Party thereof) at any time prior to the Termination Date, and the proceeds of any such sale or disposition are applied in accordance with the terms of the Credit Documents, to the extent required to be so applied, the Collateral Agent, at the request and expense of a Debtor, will (a) duly assign, transfer and deliver to such Debtor (without recourse and without any representation or warranty) such of the Collateral as is then being (or has been) so sold, disposed of or released and as may be in the possession of the Collateral Agent and has not theretofore been released pursuant to this Agreement and/or (b) execute such releases and discharges in respect of such Collateral as is then being (or has been) so sold, disposed of or released as such Debtor may reasonably request.
(c) At any time that a Debtor desires that Collateral be released as provided in the foregoing Section 10.8(a) or (b) , it shall deliver to the Collateral Agent a certificate signed by an Responsible Officer stating that the release of the respective Collateral is permitted pursuant to Section 10.8(a) or (b) . The Collateral Agent shall have no liability whatsoever to any Secured Party as the result of any release of Collateral by it as permitted (or which the Collateral Agent in the absence of gross negligence or willful misconduct believes to be permitted) by this Section 10.8 .
10.9. Counterparts . This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Borrowers and the Collateral Agent.
10.10. The Collateral Agent . The Collateral Agent will hold in accordance with this Agreement all items of the Collateral at any time received under this Agreement. It is expressly understood and agreed that the obligations of the Collateral Agent as holder of the Collateral and interests therein and with respect to the disposition thereof, and otherwise under this Agreement, are only those expressly set forth in this Agreement and applicable law. The Collateral Agent shall act hereunder on the terms and conditions set forth in Credit Agreement.
10.11. Severability . Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
 
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10.12. Fraudulent Conveyance; Etc . It is the desire and intent of each Debtor and the Secured Parties that this Agreement shall be enforced against each Debtor to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Notwithstanding anything to the contrary contained herein, in furtherance of the foregoing, it is noted that the obligations of each Borrower constituting a Debtor are limited as, and to the extent, provided in Section 10.10 of the Credit Agreement.
10.13. Additional Debtors . It is understood and agreed that each Borrower that is required to become a party to this Agreement after the date hereof pursuant to the requirements of the Credit Documents shall become an Debtor hereunder by (x) executing a counterpart hereof and delivering same to the Collateral Agent, or by executing and delivering to the Collateral Agent an assumption agreement in form and substance satisfactory to the Collateral Agent, (y) delivering supplements to the Schedules references in Sections 5.08, 5.13, 5.17 and 5.21 of the Credit Agreement as are necessary to cause such annexes to be complete and accurate with respect to such additional Debtor on such date and (z) taking all actions as specified in this Agreement as would have been taken by such Debtor had it been an original party to this Agreement, in each case with all documents required above to be delivered to the Collateral Agent and with all documents and actions required above to be taken to the reasonable satisfaction of the Collateral Agent.
10.14. Effect on Existing Security Agreement . Notwithstanding that this Agreement is amending and restating the Existing Security Agreement as of the Closing Date, nothing contained herein shall be deemed to cause a novation of any transfers, conveyances or transactions which were effected under the Existing Security Agreement or of any Obligations, including, without limitation, the security interests granted pursuant thereto.
10.15. Controlled Non-Profits . Section 10.10(e) of the Credit Agreement is incorporated herein by this reference as if more fully set forth herein.
*    *    *
 
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amended and Restated Security Agreement to be executed and delivered by their duly Responsible Officers as of the date first above written.

General Partner:
 
STONEMOR GP LLC	
		
By:	 	/s/ Timothy K. Yost	
Name:	 	Timothy K. Yost	
Title:	 	Chief Financial Officer	
	
Partnership:
 
STONEMOR PARTNERS L.P.
By: STONEMOR GP LLC
its General Partner	
		
By:	 	/s/ Timothy K. Yost	
Name:	 	Timothy K. Yost	
Title:	 	Chief Financial Officer	
	
Operating Company:
 
STONEMOR OPERATING LLC	
		
By:	 	/s/ Timothy K. Yost	
Name:	 	Timothy K. Yost	
Title:	 	Chief Financial Officer	

	  	S-1	  	Second Amended and Restated Security Agreement	
	  		  	Debtors’ Signature Page	

Additional Debtors

Alleghany Memorial Park Subsidiary, Inc.
Altavista Memorial Park Subsidiary, Inc.
Arlington Development Company
Augusta Memorial Park Perpetual Care Company
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.
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.
Kirk & Nice, Inc.
Kirk & Nice Suburban Chapel, Inc.
Lakewood/Hamilton Cemetery Subsidiary, Inc.
Lakewood Memory Gardens South Subsidiary, Inc.
Laurel Hill Memorial Park Subsidiary, Inc.
Laurelwood Holding Company
Legacy Estates, Inc.
Loewen [Virginia] Subsidiary, Inc.
Lorraine Park Cemetery Subsidiary, Inc.	
			
By:	 	/s/ Frank Milles	 		
	 	Frank Milles, as Vice President of each of the above-named Debtors	

	  	S-2	  	Second Amended and Restated Security Agreement	
	  		  	Debtors’ Signature Page	

					
Modern Park Development Subsidiary, Inc.
Northlawn Memorial Gardens Oak Hill Cemetery Subsidiary, Inc.
Ohio Cemetery Holdings, Inc.
Osiris Holding Finance Company
Osiris Holding of Maryland Subsidiary, Inc.
Osiris Holding of Rhode Island Subsidiary, Inc.
Osiris Management, Inc.
Osiris Telemarketing Corp.
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 of each of the above-named Debtors	

	  	S-3	  	Second Amended and Restated Security Agreement	
	  		  	Debtors’ Signature Page	

					
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 of each of the above-named Debtors	

	  	S-4	  	Second Amended and Restated Security Agreement	
	  		  	Debtors’ Signature Page	

					
StoneMor Alabama LLC
StoneMor Arkansas Subsidiary LLC
StoneMor Cemetery Products LLC StoneMor Colorado LLC
StoneMor Colorado Subsidiary LLC
StoneMor Florida 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 of each of the above-named Debtors	

	  	S-5	  	Second Amended and Restated Security Agreement	
	  		  	Debtors’ Signature Page	

					
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 of each of the above-named Debtors	
	
Beth Israel Cemetery Association of Woodbridge, New Jersey
Bethel Cemetery Association
Clover Leaf Park Cemetery Association
Locustwood Cemetery Association	
			
By:	 	/s/ Frank Milles	 		
	 	Frank Milles, as President of each of the above-named Debtors	

	  	S-6	  	Second Amended and Restated Security Agreement	
	  		  	Debtors’ Signature Page	

			
Accepted and Agreed to
 
BANK OF AMERICA, N.A., as Collateral Agent	
		
By:	 	/s/ Sandra Guerrieri	
Name:	 	Sandra Guerrieri	
Title:	 	Vice President	

Second Amended and Restated Security Agreement

Annex A
Page 1
 
FORM OF ASSIGNMENT OF SECURITY
INTEREST IN U.S. PATENTS AND TRADEMARKS
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which are hereby acknowledged,                      , a              corporation (“the Debtor ”) with principal offices at                      , hereby assigns and grants to Bank of America, N.A., as Secured Party (the “ Assignee ”) with principal offices at                                          , a security interest in (i) all of the Debtor’s right, title and interest in and to the trademarks, trademark registrations and trademark applications (the “ Marks ”) set forth on Schedule A attached hereto; (ii) all of the Debtor’s right, title and interest in and to the patents and patent applications (the “ Patents ”) set forth on Schedule B attached, in each case together with (iii) all Proceeds (as such term is defined in the Security Agreement referred to below) of the Marks and Patents, (iv) the goodwill of the businesses with which the Marks are associated and, (v) all causes of action arising prior to or after the date hereof for infringement of any of the Marks and Patents or unfair competition regarding the same.
THIS ASSIGNMENT OF SECURITY INTEREST (this “ Assignment ”), effective as of              , is made to secure the satisfactory performance and payment of all the Secured Obligations of the Debtor, as such term is defined in the Second Amended and Restated Security Agreement, among Debtor, the other debtors from time to time party thereto and the Assignee, dated December 19, 2014 (as amended, restated, modified and/or supplemented from time to time, the “ Security Agreement ”).
This Assignment has been granted in conjunction with the security interest granted to the Assignee under the Security Agreement. The rights and remedies of the Assignee with respect to the security interest granted herein are without prejudice to, and are in addition to those set forth in the Security Agreement, all terms and provisions of which are incorporated herein by reference. In the event that any provisions of this Assignment are deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall govern.

Annex A
Page 2
 
IN WITNESS WHEREOF, the undersigned have executed this Assignment as of the      day of              ,              .

DEBTOR	
		
By:	 	 	
	 	Name:	
	 	Title:	
	
BANK OF AMERICA, N.A.,
as Secured Party, as Assignee	
		
By:	 	 	
	 	Name:	
	 	Title:	

Annex A
Page 3

COMMONWEALTH OF PENNSYLVANIA	  	)	  		
	  	) ss.:	  		
COUNTY OF PHILADELPHIA	  	)	  		
On this      day of              ,              , before me personally came              who, being by me duly sworn, did state as follows: that [s]he is              of [Name of Debtor], that [s]he is authorized to execute the foregoing Assignment on behalf of said corporation and that [s]he did so by authority of the Board of Directors of said corporation.

 	
Notary Public	

Annex A
Page 4

COMMONWEALTH OF PENNSYLVANIA	  	)	  		
	  	) ss.:	  		
COUNTY OF PHILADELPHIA	  	)	  		
On this      day of              ,              , before me personally came              who, being by me duly sworn, did state as follows: that [s]he is              of BANK OF AMERICA, N.A., that [s]he is authorized to execute the foregoing Assignment on behalf of said company and that [s]he did so by authority of said company.

 	
Notary Public	

Schedule A
to Annex A
Page 1
 
U.S. TRADEMARKS

Schedule B
to Annex A
Page 2
 
U.S. PATENTS AND PATENT
APPLICATIONS

Annex B
Page 1
 
FORM OF ASSIGNMENT OF
SECURITY INTEREST IN U.S. COPYRIGHTS
WHEREAS,                      , a                      corporation (the “ Debtor ”), having its chief executive office at                                      , is the owner of all right, title and interest in and to the copyrights and associated copyright registrations and applications for registration set forth in Schedule A attached hereto;
WHEREAS, BANK OF AMERICA, N.A., as Secured Party, having its principal offices at                                          (the “ Assignee ”), desires to acquire a security interest in, and lien upon all of the Debtor’s right, title and interest to, said copyrights and copyright registrations and applications therefor; and
WHEREAS, the Debtor is willing to assign and grant to the Assignee a security interest in and lien upon the copyrights and copyright registrations and applications therefor described above.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, and subject to the terms and conditions of the Second Amended and Restated Security Agreement, dated December 19, 2014, made by the Debtor, the other assignors from time to time party thereto and the Assignee (as amended, restated, modified and/or supplemented from time to time, the “ Security Agreement ”), the Debtor hereby assigns to the Assignee, and grants to the Assignee a security interest in, and lien upon all of the Debtor’s right, title and interest to, the copyrights and copyright registrations and applications therefor set forth in Schedule A attached hereto (the “ Copyrights ”), together with (i) all Proceeds (as such term is defined in the Security Agreement) of the Copyrights and (ii) all causes of action arising prior to or after the date hereof for infringement of any Copyright.
THIS ASSIGNMENT OF SECURITY INTEREST (this “ Assignment ”) has been granted in conjunction with the security interest granted to the Assignee under the Security Agreement. The rights and remedies of the Assignee with respect to the security interest granted herein are without prejudice to, and are in addition to those set forth in the Security Agreement, all terms and provisions of which are incorporated herein by reference. In the event that any provisions of this Assignment are deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall govern.

Annex B
Page 2
 
IN WITNESS WHEREOF, the undersigned have executed this Assignment at Philadelphia, Pennsylvania, as of the      day of              ,              .

                                                                                       ,
Debtor	
		
By	 	 	
	 	Name:	
	 	Title:	
	
BANK OF AMERICA, N.A.,
as Secured Party, as Assignee	
		
By	 	 	
	 	Name:	
	 	Title:	

Annex B
Page 3

COMMONWEALTH OF PENNSYLVANIA	  	)	  		
	  	) ss.:	  		
COUNTY OF PHILADELPHIA	  	)	  		
On this      day of              ,              , before me personally came                      , who being duly sworn, did depose and say that [s]he is                                          of [Name of Debtor], that [s]he is authorized to execute the foregoing Assignment on behalf of said corporation and that [s]he did so by authority of the Board of Directors of said corporation.

 	
Notary Public	

Annex B
Page 4

COMMONWEALTH OF PENNSYLVANIA	  	)	  		
	  	) ss.:	  		
COUNTY OF PHILADELPHIA	  	)	  		
On this      day of              ,              , before me personally came                      , who being duly sworn, did depose and say that [s]he is                                          of BANK OF AMERICA, N.A., that [s]he is authorized to execute the foregoing Assignment on behalf of said corporation and that [s]he did so by authority of the Board of Directors of said corporation.

 	
Notary Public	

Annex B
Page 1
 
U.S. COPYRIGHTS

Exhibit 10.3
EXECUTION VERSION

 
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT
among
STONEMOR OPERATING LLC,
VARIOUS ADDITIONAL BORROWERS,
STONEMOR GP LLC,
STONEMOR PARTNERS L.P.,
and
BANK OF AMERICA, N.A.,
as Collateral Agent
dated December 19, 2014

 

					
ARTICLE I DEFINITIONS	  	2	
		
ARTICLE II SECURITY FOR OBLIGATIONS	  	3	
		
ARTICLE III PLEDGE OF SECURITY INTEREST, ETC.	  	3	
		
3.1 Pledge	  	3	
3.2 Procedures	  	6	
3.3 Subsequently Acquired Collateral	  	7	
3.4 Transfer Taxes	  	7	
3.5 Certain Representations and Warranties Regarding the Collateral	  	8	
		
ARTICLE IV APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC.	  	9	
		
ARTICLE V VOTING, ETC., WHILE NO EVENT OF DEFAULT OR SPECIFIED DEFAULT	  	9	
		
ARTICLE VI DIVIDENDS AND OTHER DISTRIBUTIONS	  	9	
		
ARTICLE VII REMEDIES IN CASE OF AN EVENT OF DEFAULT	  	10	
		
ARTICLE VIII REMEDIES, ETC., CUMULATIVE	  	11	
		
ARTICLE IX APPLICATION OF PROCEEDS	  	12	
		
ARTICLE X PURCHASERS OF COLLATERAL	  	12	
		
ARTICLE XI INDEMNITY	  	12	
		
ARTICLE XII FURTHER ASSURANCES; POWER OF ATTORNEY	  	13	
		
ARTICLE XIII THE COLLATERAL AGENT AS COLLATERAL AGENT	  	13	
		
ARTICLE XIV TRANSFER BY THE PLEDGORS	  	14	
		
ARTICLE XV REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS	  	14	
		
ARTICLE XVI LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED ORGANIZATION AND/OR A TRANSMITTING UTILITY); JURISDICTION OF ORGANIZATION; LOCATION; ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES THERETO; ETC.	  	16	
		
ARTICLE XVII PLEDGORS’ OBLIGATIONS ABSOLUTE, ETC.	  	17	
		
ARTICLE XVIII PRIVATE SALES	  	17	
		
ARTICLE XIX TERMINATION; RELEASE	  	18	

					
ARTICLE XX NOTICES, ETC.	  	 	19	  	
		
ARTICLE XXI COLLATERAL AGENT NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER	  	 	19	  	
		
ARTICLE XXII WAIVER; AMENDMENT	  	 	20	  	
		
ARTICLE XXIII MISCELLANEOUS	  	 	20	  	
		
ARTICLE XXIV GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL	  	 	20	  	
		
ARTICLE XXV ADDITIONAL PLEDGORS	  	 	21	  	
		
ARTICLE XXVI RECOURSE	  	 	22	  	
		
ARTICLE XXVII FRAUDULENT CONVEYANCE; ETC.	  	 	22	  	
		
ARTICLE XXVIII RELEASE OF PLEDGORS	  	 	22	  	
		
ARTICLE XXIX EFFECT ON EXISTING PLEDGE AGREEMENT	  	 	23	  	
		
ARTICLE XXX Controlled Non-Profits	  	 	23	  	
ANNEXES
 
 	A	FORM OF AGREEMENT REGARDING UNCERTIFICATED SECURITIES, LIMITED LIABILITY COMPANY INTERESTS AND PARTNERSHIP INTEREST	
 
- ii -

SECOND AMENDED AND RESTATED PLEDGE AGREEMENT
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT, dated December 19, 2014 (as amended, restated, modified and/or supplemented from time to time, this “ Agreement ”), among each of the undersigned (each, a “ Pledgor ” and, together with each other entity which becomes a party hereto pursuant to Article XXV , collectively, the “ Pledgors ”) and Bank of America, N.A., a national banking association (“ Bank of America ”), in its capacity as administrative and collateral agent for the benefit of the Secured Parties (together with any successor in such capacity, the “ Collateral Agent ”).
BACKGROUND
A. This Agreement is being delivered pursuant to that certain Fourth Amended and Restated Credit Agreement, dated December 19, 2014, 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 party thereto (together with the Operating Company, each individually a “ Borrower ” and collectively, the “ Borrowers ” and, together with the General Partner and the Partnership, each a “ Credit Party ”, and collectively, the “ Credit Parties ”), various financial institutions from time to time party thereto (the “ Lenders ”), and Bank of America, in it capacity as Collateral Agent, and as the Swing Line Lender and the L/C Issuer thereunder (as amended, restated, modified, extended, renewed, replaced, supplemented, restructured and/or refinanced from time to time, the “ Credit Agreement ”). Capitalized terms used herein but not otherwise defined (either herein or by reference to the Security Agreement or the UCC) shall have the meanings given to such terms in the Credit Agreement.
B. Pursuant to the Original Credit Agreement and the Second Credit Agreement, the Credit Parties delivered to Bank of America, in its capacity as collateral agent for the Lenders and other secured creditors, a Pledge Agreement, dated September 20, 2004, as amended, modified and supplemented from time to time (the “ Prior Pledge Agreement ”).
C. Pursuant to the Prior Credit Agreement and the Existing Credit Agreement, the Prior Pledge Agreement was amended and restated by the Amended and Restated Pledge Agreement, dated April 29, 2011, as amended by the Confirmation and Amendment Agreement, dated January 19, 2012, and as further amended, modified and supplemented from time to time (the “ Existing Pledge Agreement ”).
D. It is a condition precedent to the amending and restating of the Existing Credit Agreement with the Credit Agreement, that the Credit Parties shall have executed and delivered to the Collateral Agent this Agreement.
E. Each Pledgor will obtain benefits from the incurrence of Loans by, and the issuance of Letters of Credit for the account of, the Borrowers under the Credit Agreement and the entering into and maintaining of Secured Hedge Agreements and Secured Cash Management Agreement, and, accordingly, each Pledgor desires to execute this Agreement to satisfy the condition precedent described in the preceding paragraph.
 
- 1 -

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Existing Pledge Agreement is hereby amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, all capitalized terms used herein and defined in (i) the Credit Agreement, (ii) the Security Agreement (as defined in the Credit Agreement) or (iii) the UCC (as defined in the Credit Agreement) shall be used herein as therein defined. Reference to singular terms shall include the plural and vice versa.
The following capitalized terms used herein shall have the definitions specified below:
“ Collateral ” has the meaning set forth in Section 3.1 hereof.
“ Collateral Account ” means any account established and maintained by the Collateral Agent in the name of any Pledgor to which Collateral may be credited.
“ Indemnitees ” has the meaning set forth in Article XI hereof.
“ Limited Liability Company Assets ” means all assets, whether tangible or intangible and whether real, personal or mixed (including, without limitation, all limited liability company capital and interest in other limited liability companies), at any time owned by any Pledgor or represented by any Limited Liability Company Interest.
“ Limited Liability Company Interests ” means the entire limited liability company membership interest at any time owned by any Pledgor in any limited liability company.
“ Partnership Assets ” means all assets, whether tangible or intangible and whether real, personal or mixed (including, without limitation, all partnership capital and interest in other partnerships), at any time owned or represented by any Partnership Interest.
“ Partnership Interest ” means the entire general partnership interest or limited partnership interest at any time owned by any Pledgor in any general partnership or limited partnership.
“ Pledged Notes ” means (x) all intercompany notes at any time issued to each Pledgor and (y) all other Instruments and Promissory Notes from time to time issued to, or held by, each Pledgor.
 
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“ Securities Act ” means the Securities Act of 1933, as amended, as in effect from time to time.
“ Stock ” means all of the issued and outstanding shares of capital stock of any corporation at any time owned by any Pledgor.
ARTICLE II
SECURITY FOR OBLIGATIONS.
This Agreement is made by each Pledgor for the benefit of the Secured Parties to secure the full and prompt payment when due (whether at stated maturity, by acceleration or otherwise) of any and all Secured Obligations.
ARTICLE III
PLEDGE OF SECURITY INTEREST, ETC.
3.1 Pledge . To secure the prompt payment and performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of the Secured Obligations now or hereafter owed or to be performed by such Pledgor, each Pledgor does hereby grant, pledge and assign to the Collateral Agent for the benefit of the Secured Parties, and does hereby create a continuing security interest in favor of the Collateral Agent for the benefit of the Secured Parties in, any and all of the right, title and interest in and to the following, whether now owned or existing or hereafter from time to time owned, acquired or arising (collectively, the “ Collateral ”):
(a) any Collateral Account, including any and all assets of whatever type or kind deposited by such Pledgor in such Collateral Account, whether now owned or hereafter acquired, existing or arising, including, without limitation, all Financial Assets, Investment Property, moneys, checks, drafts, Instruments, Securities or interests therein of any type or nature deposited or required by any Credit Document to be deposited in the Collateral Account, and all investments and all certificates and other Instruments (including depository receipts, if any) from time to time representing or evidencing the same, and all dividends, interest, distributions, cash and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing;
(b) all Securities owned or held by such Pledgor from time to time and all options and warrants owned by such Pledgor from time to time to purchase Securities;
(c) all Limited Liability Company Interests owned by such Pledgor from time to time and all of its right, title and interest in each limited liability company to which each such Limited Liability Company Interest relates, whether now existing or hereafter acquired, including, without limitation, to the fullest extent permitted under the terms and provisions of the documents and agreements governing such Limited Liability Company Interests and applicable law:
(i) all its capital therein and its interest in all profits, losses, Limited Liability Company Assets and other distributions to which such Pledgor shall at any time be entitled in respect of such Limited Liability Company Interests;
 
- 3 -

(ii) all other payments due or to become due to such Pledgor in respect of Limited Liability Company Interests, whether under any limited liability company agreement or otherwise, whether as contractual obligations, damages, insurance proceeds or otherwise;
(iii) all of its claims, rights, powers, privileges, authority, options, security interests, liens and remedies, if any, under any limited liability company agreement or operating agreement, or at law or otherwise in respect of such Limited Liability Company Interests;
(iv) all present and future claims, if any, of such Pledgor against any such limited liability company for moneys loaned or advanced, for services rendered or otherwise;
(v) all of such Pledgor’s rights under any limited liability company agreement or operating agreement or at law to exercise and enforce every right, power, remedy, authority, option and privilege of such Pledgor relating to such Limited Liability Company Interests, including any power to terminate, cancel or modify any limited liability company agreement or operating agreement, to execute any instruments and to take any and all other action on behalf of and in the name of any such Pledgor in respect of such Limited Liability Company Interests and any such limited liability company, to make determinations, to exercise any election (including, but not limited to, election of remedies) or option or to give or receive any notice, consent, amendment, waiver or approval, together with full power and authority to demand, receive, enforce, collect or receipt for any of the foregoing or for any Limited Liability Company Asset, to enforce or execute any checks, or other instruments or orders, to file any claims and to take any action in connection with any of the foregoing; and
(vi) all other property hereafter delivered in substitution for or in addition to any of the foregoing, all certificates and instruments representing or evidencing such other property and all cash, securities, interest, dividends, rights and other property at any time and from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all thereof;
(d) all Partnership Interests of such Pledgor from time to time and all of its right, title and interest in each partnership to which each such interest relates, whether now existing or hereafter acquired, including, without limitation:
(i) all its capital therein and its interest in all profits, losses, Partnership Assets and other distributions to which such Pledgor shall at any time be entitled in respect of such Partnership Interests;
 
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(ii) all other payments due or to become due to such Pledgor in respect of Partnership Interests, whether under any partnership agreement or otherwise, whether as contractual obligations, damages, insurance proceeds or otherwise;
(iii) all of its claims, rights, powers, privileges, authority, options, security interests, liens and remedies, if any, under any partnership agreement or operating agreement, or at law or otherwise in respect of such Partnership Interests;
(iv) all present and future claims, if any, of such Pledgor against any such partnership for moneys loaned or advanced, for services rendered or otherwise;
(v) all of such Pledgor’s rights under any partnership agreement or operating agreement or at law to exercise and enforce every right, power, remedy, authority, option and privilege of such Pledgor relating to such Partnership Interests, including any power to terminate, cancel or modify any partnership agreement or operating agreement, to execute any instruments and to take any and all other action on behalf of and in the name of any such Pledgor in respect of such Partnership Interests and any such partnership, to make determinations, to exercise any election (including, but not limited to, election of remedies) or option or to give or receive any notice, consent, amendment, waiver or approval, together with full power and authority to demand, receive, enforce, collect or receipt for any of the foregoing or for any Partnership Asset, to enforce or execute any checks, or other instruments or orders, to file any claims and to take any action in connection with any of the foregoing; and
(vi) all other property hereafter delivered in substitution for or in addition to any of the foregoing, all certificates and instruments representing or evidencing such other property and all cash, securities, interest, dividends, rights and other property at any time and from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all thereof;
(e) all Security Entitlements of such Pledgor from time to time in any and all of the foregoing; and
(f) all Financial Assets, Investment Property and Pledged Notes of such Pledgor from time to time.
(g) Notwithstanding anything to the contrary contained herein, the collateral shall at no time include any items which would at such time constitute Excluded Collateral (as defined in the Security Agreement).
 
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3.2 Procedures . (a) To the extent that any Pledgor at any time or from time to time owns, acquires or obtains any right, title or interest in any Collateral, such Collateral shall automatically (and without the taking of any action by the respective Pledgor) be pledged pursuant to Section 3.1 of this Agreement and, in addition thereto, such Pledgor shall (to the extent provided below) take the following actions as set forth below (as promptly as practicable and, in any event, within 10 days (or such longer period as may be approved by the Collateral Agent in writing) after it obtains such Collateral) for the benefit of the Collateral Agent and the Secured Parties:
(i) with respect to a Certificated Security (other than a Certificated Security credited on the books of a Clearing Corporation or Securities Intermediary), such Pledgor shall physically deliver such Certificated Security to the Collateral Agent, endorsed to the Collateral Agent or endorsed in blank;
(ii) with respect to an Uncertificated Security (other than an Uncertificated Security credited on the books of a Clearing Corporation or Securities Intermediary), such Pledgor shall cause the issuer of such Uncertificated Security to duly authorize and execute, and deliver to the Collateral Agent, an agreement for the benefit of the Collateral Agent and the other Secured Parties substantially in the form of Annex A hereto (appropriately completed to the satisfaction of the Collateral Agent and with such modifications, if any, as shall be reasonably satisfactory to the Collateral Agent) pursuant to which such issuer agrees to comply with any and all instructions originated by the Collateral Agent without further consent by the registered owner and not to comply with instructions regarding such Uncertificated Security (and any Partnership Interests and Limited Liability Company Interests issued by such issuer) originated by any other Person other than a court of competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated Security, Partnership Interest or Limited Liability Company Interest credited on the books of a Clearing Corporation or Securities Intermediary (including a Federal Reserve Bank or The Depository Trust Company), the respective Pledgor shall promptly notify the Collateral Agent thereof and shall promptly use commercially reasonable efforts to take all actions (x) required (i) to comply with the applicable rules of such Clearing Corporation or Securities Intermediary and (ii) to perfect the security interest of the Collateral Agent under applicable law (including, in any event, under Sections 9-314(a), (b), and (c), 9-106 and 8-106(d) of the UCC) and (y) as the Collateral Agent reasonably deems necessary or desirable to effect the foregoing;
(iv) with respect to a Partnership Interest or a Limited Liability Company Interest (other than a Partnership Interest or Limited Liability Company Interest credited on the books of a Clearing Corporation or Securities Intermediary), (A) if such Partnership Interest or Limited Liability Company Interest is represented by a certificate and is a Security for purposes of the UCC, the procedure set forth in Section 3.2(a)(i) , and (B) if such Partnership Interest or Limited Liability Company Interest is not represented by a certificate and is a Security for purposes of the UCC, the procedure set forth in Section 3.2(a)(ii) ; and
 
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(v) with respect to any Pledged Note, physical delivery of such Pledged Note to the Collateral Agent, endorsed to the Collateral Agent or endorsed in blank.
(b) In addition to the actions required to be taken pursuant to preceding Section 3.2(a) , each Pledgor shall take the following additional actions with respect to the Securities and Collateral:
(i) with respect to all Collateral of such Pledgor of which the Collateral Agent may obtain “control” thereof within the meaning of Section 8-106 of the UCC (or under any provision of the UCC as same may be amended or supplemented from time to time, or under the laws of any relevant State (or political subdivision of the United States, including Puerto Rico) other than the Commonwealth of Pennsylvania), the respective Pledgor shall take all actions as may be reasonably requested from time to time by the Collateral Agent so that “control” of such Collateral is obtained and at all times held by the Collateral Agent; and
(ii) each Pledgor hereby authorizes Collateral Agent to cause appropriate financing statements (on Form UCC-1 or other appropriate form) under the UCC as in effect in the various relevant States (or political subdivisions of the United States, including Puerto Rico), in form covering all Collateral hereunder (with such form to be satisfactory to the Collateral Agent), to be filed in the relevant filing offices so that at all times the Collateral Agent has a security interest in all Investment Property and other Collateral which is perfected by the filing of such financing statements (in each case to the maximum extent perfection by filing may be obtained under the laws of the relevant States (or political subdivisions of the United States, including Puerto Rico), including, without limitation, Section 9-312(a) of the UCC).
3.3 Subsequently Acquired Collateral . If any Pledgor shall acquire (by purchase, stock dividend, distribution or otherwise) any additional Collateral at any time or from time to time after the date hereof, such Collateral shall automatically (and without any further action being required to be taken) be subject to the pledge and security interests created pursuant to Section 3.1 and, furthermore, such Pledgor will promptly thereafter take (or cause to be taken) all action with respect to such Collateral in accordance with the procedures set forth in Section 3.2 , and will promptly thereafter deliver to the Collateral Agent (a) a certificate executed by a principal executive officer of such Pledgor describing such Collateral and certifying that the same has been duly pledged in favor of the Collateral Agent (for the benefit of the Secured Parties) hereunder and (b) supplements to Schedules 5.08(e), 5.13, 5.21(d) and 5.21(e) of the Credit Agreement as are necessary to cause such schedules to be complete and accurate at such time.
3.4 Transfer Taxes . Each pledge of Collateral under Section 3.1 or Section 3.3 shall be accompanied by any transfer tax stamps or similar items and all related fees or taxes required in connection with the pledge of such Collateral.
 
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3.5 Certain Representations and Warranties Regarding the Collateral . Each Pledgor represents and warrants that on the date hereof:
(a) each Subsidiary of such Pledgor, and the direct ownership thereof, is listed in Schedule 5.13 of the Credit Agreement;
(b) the Stock (and any warrant or options to purchase Stock) held by such Pledgor consists of the number and type of shares of the Stock (and any warrants or options to purchase Stock) of the corporations as described in Schedule 5.21(d) of the Credit Agreement;
(c) such Stock referenced in clause (b) of this paragraph constitutes that percentage of the issued and outstanding capital stock of the issuing corporation as is set forth in Schedule 5.21(d) of the Credit Agreement;
(d) the Pledged Notes held by such Pledgor consist of the Instruments and Promissory Notes described in Schedule 5.21(e) of the Credit Agreement where such Pledgor is listed as the lender;
(e) the Limited Liability Company Interests held by such Pledgor consist of the number and type of interests of the Persons described in Schedule 5.21(d) of the Credit Agreement;
(f) each such Limited Liability Company Interest referenced in clause (e) of this paragraph constitutes that percentage of the issued and outstanding equity interest of the issuing Person as set forth in Schedule 5.21(d) of the Credit Agreement;
(g) the Partnership Interests held by such Pledgor consist of the number and type of interests of the Persons described in Schedule 5.21(d) of the Credit Agreement;
(h) each such Partnership Interest referenced in clause (g) of this paragraph constitutes that percentage or portion of the entire partnership interest of the Partnership as set forth in Schedule 5.21(d) of the Credit Agreement;
(i) the exact address of each chief executive office of such Pledgor is listed on Schedule 5.13 of the Credit Agreement;
(j) the Pledgor has complied with the respective procedure set forth in Section 3.2(a) with respect to each item of Collateral described in Schedules 5.21(d) and 5.21(e) of the Credit Agreement; and
(k) such Pledgor owns no Securities, Equity Interests, Instruments, Promissory Notes, Stock, Limited Liability Company Interests or Partnership Interests other than those described in Schedules 5.21(d) and 5.21(e) of the Credit Agreement.
 
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ARTICLE IV
APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC.
The Collateral Agent shall have the right to appoint one or more sub-agents for the purpose of retaining physical possession of the Collateral, which may be held (in the discretion of the Collateral Agent) in the name of the relevant Pledgor, endorsed or assigned in blank or in favor of the Collateral Agent or any nominee or nominees of the Collateral Agent or a sub-agent appointed by the Collateral Agent.
ARTICLE V
VOTING, ETC., WHILE NO EVENT OF DEFAULT OR SPECIFIED DEFAULT
Unless and until there shall have occurred and be continuing any Event of Default and the Collateral Agent shall have notified such Pledgor as set forth in the next sentence, each Pledgor shall be entitled to exercise all voting rights attaching to any and all Collateral owned by it, and to give consents, waivers or ratifications in respect thereof, provided that no vote shall be cast or any consent, waiver or ratification given or any action taken which would violate, result in breach of any covenant contained in, or be inconsistent with, any of the terms of any Credit Document, or which would have the effect of impairing the value of the Collateral or any part thereof or the position or interests of the Collateral Agent or any other Secured Party therein. All such rights of a Pledgor to vote and to give consents, waivers and ratifications shall cease in case an Event of Default shall occur and be continuing and Collateral Agent shall have notified such Pledgor in writing of the exercise of the Collateral Agent’s rights under this Article, and Article VII hereof shall thereafter become applicable.
ARTICLE VI
DIVIDENDS AND OTHER DISTRIBUTIONS
Unless and until an Event of Default shall have occurred and be continuing, all cash dividends, cash distributions, cash Proceeds and other cash amounts payable in respect of the Collateral shall be paid to the respective Pledgor. Subject to Section 3.2 hereof, the Collateral Agent shall be entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, certificates, limited liability company interests, partnership interests, instruments or other securities or property (including, but not limited to, cash dividends other than as set forth above) paid or distributed by way of dividend or otherwise in respect of the Collateral;
(ii) all other or additional stock, notes, certificates, limited liability company interests, partnership interests, instruments or other securities or property (including, but not limited to, cash) paid or distributed in respect of the Collateral by way of stock-split, spin-off, split-up, reclassification, combination of shares or similar rearrangement; and
 
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(iii) all other or additional stock, notes, certificates, limited liability company interests, partnership interests, instruments or other securities or property (including, but not limited to, cash) which may be paid in respect of the Collateral by reason of any consolidation, merger, exchange of stock, conveyance of assets, liquidation or similar corporate reorganization.
Nothing contained in this Article shall limit or restrict in any way the Collateral Agent’s right to receive the proceeds of the Collateral in any form in accordance with Article III of this Agreement. All dividends, distributions or other payments which are received by the respective Pledgor contrary to the provisions of this Article or Article VII shall be received in trust for the benefit of the Collateral Agent, shall be segregated from other property or funds of such Pledgor and shall be forthwith paid over to the Collateral Agent as Collateral in the same form as so received (with any necessary endorsement).
ARTICLE VII
REMEDIES IN CASE OF AN EVENT OF DEFAULT
In the event an Event of Default shall have occurred and be continuing, the Collateral Agent shall be entitled to exercise all of the rights, powers and remedies (whether vested in it by this Agreement or by any other Credit Document or by law) for the protection and enforcement of its rights in respect of the Collateral, including, without limitation, all the rights and remedies of a secured party upon default under the UCC and the Collateral Agent shall be entitled, without limitation, to exercise any or all of the following rights, in compliance with any mandatory requirements of applicable law, which each Pledgor hereby agrees to be commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral otherwise payable under Article VI to such Pledgor;
(ii) to transfer all or any part of the Collateral into the Collateral Agent’s name or the name of its nominee or nominees;
(iii) to accelerate any Pledged Note which may be accelerated in accordance with its terms, and take any other lawful action to collect upon any Pledged Note (including, without limitation, to make any demand for payment thereon);
(iv) after written notice to a Pledgor pursuant to Article V hereof, to vote all or any part of the Collateral (whether or not transferred into the name of the Collateral Agent) and give all consents, waivers and ratifications in respect of the Collateral and otherwise act with respect thereto as though it were the outright owner thereof (each Pledgor hereby irrevocably constituting and appointing the Collateral Agent the proxy and attorney-in-fact of such Pledgor, with full power of substitution to do so);
(v) at any time or from time to time to sell, assign and deliver, or grant options to purchase, all or any part of the Collateral, or any interest therein, at any public or private sale, without demand of performance, advertisement or notice of intention to sell or of the time or place of sale or adjournment thereof or to redeem or otherwise (all of which are hereby waived by each Pledgor), for cash, on credit or for other property, for
 
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immediate or future delivery without any assumption of credit risk, and for such price or prices and on such terms as the Collateral Agent in its absolute discretion may determine; provided that at least 10 days’ notice of the time and place of any such sale shall be given to such Pledgor. The Collateral Agent shall not be obligated to make such sale of Collateral regardless of whether any such notice of sale has theretofore been given. Each purchaser at any such sale shall hold the property so sold absolutely free from any claim or right on the part of each Pledgor, and each Pledgor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Collateral, whether before or after sale hereunder, all rights, if any, of marshalling the Collateral and any other security for the Secured Obligations or otherwise, and all rights, if any, of stay and/or appraisal which it now has or may at any time in the future have under rule of law or statute now existing or hereafter enacted. At any such sale, unless prohibited by applicable law, the Collateral Agent on behalf of all Secured Parties (or certain of them) may bid for and purchase (by bidding in Secured Obligations or otherwise) all or any part of the Collateral so sold free from any such right or equity of redemption. Except as provided under applicable law, neither the Collateral Agent nor any other Secured Party shall be liable for failure to collect or realize upon any or all of the Collateral or for any delay in so doing nor shall any of them be under any obligation to take any action whatsoever with regard thereto; and
(vi) to set-off any and all Collateral against any and all Secured Obligations, and to withdraw any and all cash or other Collateral from the Collateral Account and to apply such cash and other Collateral to the payment of any and all Secured Obligations.
ARTICLE VIII
REMEDIES, ETC., CUMULATIVE
Each right, power and remedy of the Collateral Agent provided for in this Agreement or any other Credit Document, or now or hereafter existing at law or in equity or by statute shall be cumulative and concurrent and shall be in addition to every other such right, power or remedy. The exercise or beginning of the exercise by the Collateral Agent or any other Secured Party of any one or more of the rights, powers or remedies provided for in this Agreement or any other Credit Document or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by the Collateral Agent or any other Secured Party of all such other rights, powers or remedies, and no failure or delay on the part of the Collateral Agent or any other Secured Party to exercise any such right, power or remedy shall operate as a waiver thereof. Unless otherwise required by the applicable Credit Document, no notice to or demand on any Pledgor in any case shall entitle such Pledgor to any other or further notice or demand in similar other circumstances or constitute a waiver of any of the rights of the Collateral Agent or any other Secured Party to any other or further action in any circumstances without demand or notice. The Secured Parties agree that this Agreement may be enforced only by the action of the Collateral Agent (acting on its own or on the instructions of the Required Lenders) and that no other Secured Party shall have any right individually to seek to enforce or to enforce this Agreement or to realize upon the security to be granted hereby, it being understood and agreed that such rights and remedies may be exercised by the Collateral Agent for the benefit of the Secured Parties upon the terms of this Agreement.
 
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ARTICLE IX
APPLICATION OF PROCEEDS
All moneys collected by the Collateral Agent upon any sale or other disposition of the Collateral pursuant to the terms of this Agreement, together with all other moneys received by the Collateral Agent hereunder, shall be applied to the payment of the Secured Obligations in the manner provided in the Credit Agreement.
It is understood and agreed that the Pledgors shall remain jointly and severally liable to the extent of any deficiency between the amount of proceeds of the Collateral hereunder and the aggregate amount of the Secured Obligations.
ARTICLE X
PURCHASERS OF COLLATERAL
Upon any sale of the Collateral by the Collateral Agent hereunder (whether by virtue of the power of sale herein granted, pursuant to judicial process or otherwise), the receipt of the Collateral Agent or the officer making such sale of the purchase money paid as consideration pursuant to such sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold, and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication or nonapplication thereof.
ARTICLE XI
INDEMNITY
Each Pledgor jointly and severally agrees (i) to indemnify, reimburse and hold harmless the Collateral Agent and each other Secured Party and their respective successors, assigns, employees, agents and affiliates (individually an “ Indemnitee ”, and collectively, the “ Indemnitees ”) from and against any and all obligations, damages, injuries, penalties, claims, demands, losses, judgments and liabilities (including, without limitation, liabilities for penalties) of whatsoever kind or nature, and (ii) to reimburse each Indemnitee for all reasonable out-of-pocket costs, expenses and disbursements, including reasonable attorneys’ fees and expenses, in each case arising out of or resulting from this Agreement or the exercise by any Indemnitee of any right or remedy granted to it hereunder or under any other Credit Document (but excluding any obligations, damages, injuries, penalties, claims, demands, losses, judgments and liabilities (including, without limitation, liabilities for penalties) or expenses of whatsoever kind or nature to the extent incurred or arising by reason of gross negligence or willful misconduct of such Indemnitee (as determined by a court of competent jurisdiction in a final and non-appealable decision)). In no event shall the Collateral Agent hereunder be liable, in the absence of gross negligence or willful misconduct on its part (as determined by a court of competent jurisdiction in a final and non-appealable decision), for any matter or thing in connection with this Agreement other than to account for monies or other property actually received by it in
 
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accordance with the terms hereof. If and to the extent that the obligations of any Pledgor under this Article are unenforceable for any reason, such Pledgor hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible under applicable law. The indemnity obligations of each Pledgor contained in this Article shall continue in full force and effect notwithstanding the occurrence of the Termination Date.
ARTICLE XII
FURTHER ASSURANCES; POWER OF ATTORNEY
Each Pledgor agrees that it will join with the Collateral Agent in executing and, at such Pledgor’s own expense, file and refile under the UCC or other applicable law such financing statements, continuation statements and other documents in such offices as the Collateral Agent (acting on its own or on the instructions of the Required Lenders) may reasonably deem necessary or appropriate and wherever required or permitted by law in order to perfect and preserve the Collateral Agent’s security interest in the Collateral hereunder and hereby authorizes the Collateral Agent to file financing statements and amendments thereto relative to all or any part of the Collateral (including, without limitation, financing statements which list the Collateral specifically and/or “all assets” as collateral) without the signature of such Pledgor where permitted by law, and agrees to do such further acts and things and to execute and deliver to the Collateral Agent such additional conveyances, assignments, agreements and instruments as the Collateral Agent may reasonably require or deem advisable to carry into effect the purposes of this Agreement or to further assure and confirm unto the Collateral Agent its rights, powers and remedies hereunder or thereunder.
Each Pledgor hereby appoints the Collateral Agent such Pledgor’s attorney-in-fact, with full authority in the place and stead of such Pledgor and in the name of such Pledgor or otherwise, from time to time after the occurrence and during the continuance of an Event of Default, in the Collateral Agent’s discretion to take any action and to execute any instrument which the Collateral Agent may deem necessary or advisable to accomplish the purposes of this Agreement.
ARTICLE XIII
THE COLLATERAL AGENT AS COLLATERAL AGENT
The Collateral Agent will hold in accordance with this Agreement all items of the Collateral at any time received under this Agreement. It is expressly understood, acknowledged and agreed by each Secured Party that by accepting the benefits of this Agreement each such Secured Party acknowledges and agrees that the obligations of the Collateral Agent as holder of the Collateral and interests therein and with respect to the disposition thereof, and otherwise under this Agreement, are only those expressly set forth in this Agreement. The Collateral Agent shall act hereunder on the terms and conditions set forth herein and in the Security Agreement.
 
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ARTICLE XIV
TRANSFER BY THE PLEDGORS
No Pledgor will sell or otherwise dispose of, grant any option with respect to, or mortgage, pledge or otherwise encumber any of the Collateral or any interest therein (except in accordance with the terms of this Agreement and all other Credit Documents).
ARTICLE XV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS
Each Pledgor represents warrants and covenants that:
(a) it is the legal, beneficial and record owner of, and has good and marketable title to, all Collateral consisting of one or more Securities, Partnership Interests and Limited Liability Company Interests and that it has sufficient interest in all Collateral in which a security interest is purported to be created hereunder for such security interest to attach (subject, in each case, to no pledge, lien, mortgage, hypothecation, security interest, charge, option, Adverse Claim or other encumbrance whatsoever, except the liens and security interests created by this Agreement and Permitted Liens);
(b) it has full power, authority and legal right to pledge all the Collateral pledged by it pursuant to this Agreement;
(c) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable against such Pledgor in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law);
(d) except to the extent already obtained or made, no consent of any other party (including, without limitation, any stockholder, member, partner or creditor of such Pledgor) and no consent, license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing (other than the filing of UCC-1 Financing Statements) or declaration with, any governmental authority is required to be obtained by such Pledgor in connection with (i) the execution, delivery or performance of this Agreement, (ii) the validity or enforceability of this Agreement (except as set forth in clause (c) above), (iii) the perfection or enforceability of the Collateral Agent’s security interest in the Collateral or (iv) except for compliance with or as may be required by applicable securities and other laws generally applicable to the cemetery and funeral home industry consent under which cannot be obtained prior to such exercise of rights and remedies, the exercise by such Collateral Agent of any of its rights or remedies provided herein;
 
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(e) none of the execution, delivery or performance by such Pledgor of this Agreement, compliance by such Pledgor with the terms and provisions hereof, or the consummation of the transactions contemplated herein, will contravene any material provision of any material applicable law, statute, rule or regulation or any order, judgment, writ, injunction, award or decree of any court, arbitrator or governmental authority, domestic or foreign, applicable to such Pledgor, or violate any provision of the certificate of incorporation, by-laws, operating agreement, certificate of partnership, partnership agreement, certificate of limited liability company or limited liability company agreement of such Pledgor or any of its Subsidiaries or of any securities issued by such Pledgor or any of its Subsidiaries, nor will it in any material respect conflict or be inconsistent with or result in any breach of, any of the terms, covenants, conditions or provisions, or constitute a default under or, (other than pursuant to this Agreement) result in the creation or imposition of (or the obligation to create or impose) any lien or encumbrance (other than the Liens created by the Collateral Documents) upon any of the property or assets of such Pledgor or any of its Subsidiaries pursuant to the terms of any mortgage, deed of trust, indenture, lease, loan agreement, credit agreement or any other material contract, agreement, instrument or undertaking to which such Pledgor or any of its Subsidiaries is a party or by which it or any of its assets are bound or to which it may be subject;
(f) all of the Collateral (consisting of Securities, Limited Liability Company Interests or Partnership Interests) has been duly and validly issued, is fully paid and non-assessable and is subject to no options to purchase or similar rights;
(g) each of the Pledged Notes constitutes, or when executed by the obligor thereof will constitute, the legal, valid and binding obligation of such obligor, enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law);
(h) the pledge, collateral assignment and delivery to the Collateral Agent of the Collateral consisting of Certificated Securities and Pledged Notes pursuant to this Agreement creates a valid and perfected first priority security interest in such Securities and the proceeds thereof, subject to no (i) prior Lien or encumbrance or (ii) agreement purporting to grant to any third party a Lien or encumbrance on the property or assets of such Pledgor (other than Permitted Liens), and the Collateral Agent is entitled to all the rights, priorities and benefits afforded by the UCC or other relevant law as enacted in any relevant jurisdiction to perfect security interests in respect of such Collateral;
(i) subject to Section 3.2(a) hereof, “control” (as defined in Section 8-106 of the UCC) has been obtained by the Collateral Agent over all Collateral consisting of Securities (including Pledged Notes which are Securities) with respect to which such “control” may be obtained pursuant to Section 8-106 of the UCC;
(j) it shall use its reasonable best efforts to (i) cause the issuer of any Uncertificated Security to issue certificates representing such Security, and (ii) cause the issuer of any Limited Liability Company Interest or Partnership Interest to cause such interests to be Securities and to issue certificates representing such interests;
 
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(k) it will defend the Collateral Agent’s right, title and security interest in and to the Securities and the proceeds thereof against the claims and demands of all persons whomsoever;
(l) it will have like title to and right to pledge any other property at any time hereafter pledged to the Collateral Agent as Collateral hereunder and will likewise defend the right thereto and security interest therein of the Collateral Agent and the other Secured Parties; and
(m) it will take no action which would violate any of the terms of any Credit Document.
ARTICLE XVI
LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED ORGANIZATION AND/OR A TRANSMITTING UTILITY); JURISDICTION OF ORGANIZATION; LOCATION; ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES THERETO; ETC
The exact legal name of each Pledgor, the type of organization of such Pledgor, whether or not such Pledgor is a Registered Organization, the jurisdiction of organization of such Pledgor, such Pledgor’s Location, and the organizational identification number (if any) of each Pledgor, is listed, for such Pledgor, on Schedule 5.13 of the Credit Agreement. No Pledgor shall change its legal name, its type of organization, its status as a Registered Organization (in the case of a Registered Organization), its status as a Person which is not a Transmitting Utility, as the case may be, its jurisdiction of organization, its Location, or its organizational identification number (if any), except that any such changes shall be permitted (so long as not in violation of the applicable requirements of the Credit Documents and so long as same do not involve (x) a Registered Organization ceasing to constitute same or (y) any Pledgor changing its jurisdiction of organization or Location to a jurisdiction of organization or Location, as the case may be, outside the United States or a political subdivision thereof (including Puerto Rico) if (i) it shall have given to the Collateral Agent not less than 30 days’ (or such shorter period as may be approved by the Collateral Agent in writing) prior written notice of each change to the information listed on Schedule 5.13 of the Credit Agreement (as adjusted for any subsequent changes thereto previously made in accordance with this sentence), together with a supplement to Schedule 5.13 of the Credit Agreement which shall correct all information contained therein for such Pledgor, and (ii) in connection with the respective such change or changes, it shall have taken all action reasonably requested by the Collateral Agent to maintain the security interests of the Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect. In addition, to the extent that any Pledgor does not have an organizational identification number on the date hereof and later obtains one, such Pledgor shall promptly thereafter deliver a notification to the Collateral Agent of such organizational identification number and shall take all actions reasonably satisfactory to the Collateral Agent to the extent necessary to maintain the security interest of the Collateral Agent in the Collateral intended to be granted hereby fully perfected and in full force and effect.
 
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ARTICLE XVII
PLEDGORS’ OBLIGATIONS ABSOLUTE, ETC.
The obligations of each Pledgor under this Agreement shall be absolute and unconditional and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever (other than termination of this Agreement pursuant to Article XIX hereof), including, without limitation:
(a) any renewal, extension, amendment or modification of, or addition or supplement to or deletion from any Credit Document (other than this Agreement in accordance with its terms), or any other instrument or agreement referred to therein, or any assignment or transfer of any thereof;
(b) any waiver, consent, extension, indulgence or other action or inaction under or in respect of any such agreement or instrument or this Agreement (other than a waiver, consent or extension with respect to this Agreement in accordance with its terms);
(c) any furnishing of any additional security to the Collateral Agent or its assignee or any acceptance thereof or any release of any security by the Collateral Agent or its assignee;
(d) any limitation on any party’s liability or obligations under any such instrument or agreement or any invalidity or unenforceability, in whole or in part, of any such instrument or agreement or any term thereof; or
any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to any Pledgor, or any action taken with respect to this Agreement by any trustee or receiver, or by any court, in any such proceeding, whether or not such Pledgor shall have notice or knowledge of any of the foregoing.
ARTICLE XVIII
PRIVATE SALES
If at any time when the Collateral Agent shall determine to exercise its right to sell all or any part of the Collateral consisting of Securities, Limited Liability Company Interests or Partnership Interests pursuant to Article VII , and such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under the Securities Act, the Collateral Agent may, in its sole and absolute discretion, sell such Collateral or part thereof by private sale in such manner and under such circumstances as the Collateral Agent may deem necessary or advisable in order that such sale may legally be effected without such registration. Without limiting the generality of the foregoing, in any such event the Collateral Agent, in its sole and absolute discretion: (a) may proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof shall have been filed under the Securities Act; (b) may approach and negotiate with a single possible
 
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purchaser to effect such sale; and (c) may restrict such sale to a purchaser who will represent and agree that such purchaser is purchasing for its own account, for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In the event of any such sale, the Collateral Agent shall incur no responsibility or liability for selling all or any part of the Collateral at a price which the Collateral Agent, in its sole and absolute discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might be realized if the sale were deferred until the registration as aforesaid.
ARTICLE XIX
TERMINATION; RELEASE
(a) On the Termination Date, this Agreement shall terminate (provided that all indemnities set forth herein including, without limitation, in Article XI hereof shall survive any such termination) and the Collateral Agent, at the request and expense of the respective Pledgor, will execute and deliver to such Pledgor a proper instrument or instruments acknowledging the satisfaction and termination of this Agreement (including, without limitation, UCC termination statements and instruments of satisfaction, discharge and/or reconveyance), and will duly assign, transfer and deliver to such Pledgor (without recourse and without any representation or warranty) such of the Collateral as may be in the possession of the Collateral Agent and as has not theretofore been sold or otherwise applied or released pursuant to this Agreement, together with any moneys at the time held by the Collateral Agent or any of its sub-agents hereunder and, with respect to any Collateral consisting of an Uncertificated Security (other than an Uncertificated Security credited on the books of a Clearing Corporation), a Partnership Interest or a Limited Liability Company Interest, a termination of the agreement relating thereto executed and delivered by the issuer of such Uncertificated Security pursuant to Section 3.2(a)(ii) or by the respective partnership or limited liability company pursuant to Section 3.2(a)(iv) .
(b) In the event that any part of the Collateral is sold or otherwise disposed of (to a Person other than a Credit Party) at any time prior to the Termination Date, in connection with a sale or disposition permitted by the Credit Documents or is otherwise released at the direction of the Required Lenders and the proceeds of such sale or disposition (or from such release) are applied in accordance with the terms of the Credit Documents, as the case may be, to the extent required to be so applied, the Collateral Agent, at the request and expense of such Pledgor, will duly assign, transfer and deliver to such Pledgor (without recourse and without any representation or warranty) such of the Collateral as is then being (or has been) so sold or released and as may be in possession of the Collateral Agent and has not theretofore been released pursuant to this Agreement and to the extent requested by such Pledgor, deliver UCC termination statements and instruments of satisfaction, discharge and/or reconveyance.
At any time that any Pledgor desires that Collateral be released as provided in the foregoing paragraph (a)  or (b) , it shall deliver to the Collateral Agent a certificate signed by a principal executive officer of such Pledgor stating that the release of the respective Collateral is permitted pursuant to paragraph (a)  or (b)  of this Article XIX . The Collateral Agent shall have no liability whatsoever to any Secured Party as the result of any release of Collateral by it as permitted by this Article.
 
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ARTICLE XX
NOTICES, ETC.
All notices and other communications hereunder shall be in writing and shall be delivered at such address and in such manner as shall have been specified pursuant to the Credit Agreement.
ARTICLE XXI
COLLATERAL AGENT NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER
(a) Nothing herein shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or partnership and neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the absolute owner of Collateral consisting of a Limited Liability Company Interest or Partnership Interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party and/or any Pledgor.
(b) Except as provided in the last sentence of paragraph (a)  of this Article XXI , the Collateral Agent, by accepting this Agreement, did not intend to become a member of any limited liability company or partnership or otherwise be deemed to be a co-venturer with respect to any Pledgor or any limited liability company or partnership either before or after an Event of Default shall have occurred. The Collateral Agent shall have only those powers set forth herein and the Secured Parties shall assume none of the duties, obligations or liabilities of a member of any limited liability company or partnership or any Pledgor except as provided in the last sentence of paragraph (a) of this Article.
(c) The Collateral Agent and the other Secured Parties shall not be obligated to perform or discharge any obligation of any Pledgor as a result of the pledge hereby effected.
Except as provided under applicable law, the acceptance by the Collateral Agent of this Agreement, with all the rights, powers, privileges and authority so created, shall not at any time or in any event obligate the Collateral Agent or any other Secured Party to appear in or defend any action or proceeding relating to the Collateral to which it is not a party, or to take any action hereunder or thereunder, or to expend any money or incur any expenses or perform or discharge any obligation, duty or liability under the Collateral.
 
- 19 -

ARTICLE XXII
WAIVER; AMENDMENT
Except as contemplated in Article XXVIII hereof, none of the terms and conditions of this Agreement may be changed, waived, discharged or terminated in any manner whatsoever unless such change, waiver, discharge or termination is in writing duly signed by each Pledgor and the Collateral Agent.
ARTICLE XXIII
MISCELLANEOUS
This Agreement shall create a continuing security interest in the Collateral and shall (a) remain in full force and effect, subject to release and/or termination as set forth in Article XIX , (b) be binding upon each Pledgor, its successors and assigns; provided , however , that no Pledgor shall assign any of its rights or obligations hereunder without the prior written consent of the Collateral Agent (with the prior written consent of the Required Lenders), and (c) inure, together with the rights and remedies of the Collateral Agent hereunder, to the benefit of the Collateral Agent, the other Secured Parties and their respective successors, transferees and assigns. The headings of the several sections and subsections in this Agreement are for purposes of reference only and shall not limit or define the meaning hereof. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. In the event that any provision of this Agreement shall prove to be invalid or unenforceable, such provision shall be deemed to be severable from the other provisions of this Agreement which shall remain binding on all parties hereto. All agreements, statements, representations and warranties made by each Pledgor herein or in any certificate or other instrument delivered by such Pledgor or on its behalf under this Agreement shall be considered to have been relied upon by the Secured Parties and shall survive the execution and delivery of this Agreement and the other Credit Documents regardless of any investigation made by the Secured Parties or on their behalf.
ARTICLE XXIV
GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA OR OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF PHILADELPHIA, AND, BY EXECUTION AND DELIVERY OF THIS
 
- 20 -

AGREEMENT, EACH PLEDGOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH PLEDGOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH PLEDGOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH PLEDGOR. EACH PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH PLEDGOR AT ITS ADDRESS FOR NOTICES AS PROVIDED IN ARTICLE XX ABOVE, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE COLLATERAL AGENT UNDER THIS AGREEMENT, OR ANY SECURED PARTY, TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY PLEDGOR IN ANY OTHER JURISDICTION.
(b) EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
ARTICLE XXV
ADDITIONAL PLEDGORS
It is understood and agreed that any additional Pledgors that are required to become a party to this Agreement after the date hereof pursuant to the requirements of the Credit Agreement or any other Credit Document shall automatically become a Pledgor hereunder by (a)
 
- 21 -

executing a joinder to the Credit Agreement and a counterpart hereof and/or an assumption agreement, in each case in form and substance satisfactory to the Collateral Agent, (b) delivering supplements to Schedules 5.08(e), 5.13, 5.21(d) and 5.21(e) of the Credit Agreement as are necessary to cause such schedules to be complete and accurate with respect to such additional Pledgor on such date and (c) taking all actions as specified in Article III of this Agreement as would have been taken by such Pledgor had it been an original party to this Agreement, in each case with all documents required above to be delivered to the Collateral Agent and with all documents and actions required to be taken above to be taken to the reasonable satisfaction of the Collateral Agent.
ARTICLE XXVI
RECOURSE
This Agreement is made with full recourse to the Pledgors and pursuant to and upon all the representations, warranties, covenants and agreements on the part of the Pledgors contained herein and in the other Credit Documents and otherwise in writing in connection herewith or therewith.
ARTICLE XXVII
FRAUDULENT CONVEYANCE; ETC.
It is the desire and intent of each Pledgor and the Secured Parties that this Agreement shall be enforced against each Pledgor to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Notwithstanding anything to the contrary contained herein, in furtherance of the foregoing, it is noted that the obligations of each Borrower constituting a Pledgor are limited as, and to the extent, provided in Section 10.10 of the Credit Agreement.
ARTICLE XXVIII
RELEASE OF PLEDGORS
If at any time all of the Equity Interests of any Pledgor owned by any Credit Party are sold (to any Person other than a Credit Party) in a transaction permitted pursuant to the Credit Agreement (and which does not violate the terms of any other Credit Document then in effect), then, such Pledgor shall be released as a Pledgor and Credit Party pursuant to the Credit Documents without any further action hereunder (it being understood that the sale of all of the Equity Interests in any Person that owns, directly or indirectly, all of the Equity Interests in any Pledgor shall be deemed to be a sale of all of the Equity Interests in such Pledgor for purposes of this Article), and the Collateral Agent is authorized and directed to execute and deliver such instruments of release as are reasonably satisfactory to it, all at the expense of the Credit Parties. At any time that the Partnership desires that a Pledgor be released from this Agreement as provided in this Article XXVIII , the Partnership shall deliver to the Collateral Agent a certificate
 
- 22 -

signed by a Senior Manager stating that the release of such Pledgor is permitted pursuant to this Article. The Collateral Agent shall have no liability whatsoever to any other Secured Party as a result of the release of any Pledgor by it in accordance with, or which it believes to be in accordance with, this Article.
ARTICLE XXIX
EFFECT ON EXISTING PLEDGE AGREEMENT
Notwithstanding that this Agreement is amending and restating the Existing Pledge Agreement as of the Closing Date, nothing contained herein shall be deemed to cause a novation of any transfers, conveyances or transactions which were effected under the Existing Pledge Agreement or of any Obligations, including, without limitation, the security interests granted pursuant thereto.
ARTICLE XXX
Controlled Non-Profits
Section 10.10(e) of the Credit Agreement is incorporated herein by this reference as if more fully set forth herein.
 
- 23 -

IN WITNESS WHEREOF, each Pledgor and the Collateral Agent have caused this Second Amended and Restated Pledge Agreement to be executed by their elected officers duly authorized as of the date first above written.

General Partner:
 
STONEMOR GP LLC	
		
By:	 	/s/ Timothy K. Yost	
Name:	 	Timothy K. Yost	
Title:	 	Chief Financial Officer	
	
Partnership:
 
STONEMOR PARTNERS L.P.
By: STONEMOR GP LLC
its General Partner	
		
By:	 	/s/ Timothy K. Yost	
Name:	 	Timothy K. Yost	
Title:	 	Chief Financial Officer	
	
Operating Company:
 
STONEMOR OPERATING LLC	
		
By:	 	/s/ Timothy K. Yost	
Name:	 	Timothy K. Yost	
Title:	 	Chief Financial Officer	

	  	S-1	  	Second Amended and Restated Pledge Agreement	
	  		  	Pledgors Signature Page	

Additional Pledgors

Alleghany Memorial Park Subsidiary, Inc.
Altavista Memorial Park Subsidiary, Inc.
Arlington Development Company
Augusta Memorial Park Perpetual Care Company
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.
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.
Kirk & Nice, Inc.
Kirk & Nice Suburban Chapel, Inc.
Lakewood/Hamilton Cemetery Subsidiary, Inc.
Lakewood Memory Gardens South Subsidiary, Inc.
Laurel Hill Memorial Park Subsidiary, Inc.
Laurelwood Holding Company
Legacy Estates, Inc.
Loewen [Virginia] Subsidiary, Inc.
Lorraine Park Cemetery Subsidiary, Inc.	
			
By:	 	/s/ Frank Milles	 		
	 	Frank Milles, as Vice President of each of the above-named Pledgors	

	  	S-2	  	Second Amended and Restated Pledge Agreement	
	  		  	Pledgors Signature Page	

					
Modern Park Development Subsidiary, Inc.
Northlawn Memorial Gardens
Oak Hill Cemetery Subsidiary, Inc.
Ohio Cemetery Holdings, Inc.
Osiris Holding Finance Company
Osiris Holding of Maryland Subsidiary, Inc.
Osiris Holding of Rhode Island Subsidiary, Inc.
Osiris Management, Inc.
Osiris Telemarketing Corp.
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 of each of the above-named Pledgors	

	  	S-3	  	Second Amended and Restated Pledge Agreement	
	  		  	Pledgors Signature Page	

					
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 of each of the above-named Pledgors	

	  	S-4	  	Second Amended and Restated Pledge Agreement	
	  		  	Pledgors Signature Page	

					
StoneMor Alabama LLC
StoneMor Arkansas Subsidiary LLC
StoneMor Cemetery Products LLC StoneMor Colorado LLC
StoneMor Colorado Subsidiary LLC
StoneMor Florida 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 of each of the above-named Pledgors	

	  	S-5	  	Second Amended and Restated Pledge Agreement	
	  		  	Debtors Signature Page	

					
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 of each of the above-named Pledgors	
	
Beth Israel Cemetery Association of Woodbridge, New Jersey
Bethel Cemetery Association
Clover Leaf Park Cemetery Association
Locustwood Cemetery Association	
			
By:	 	/s/ Frank Milles	 		
	 	Frank Milles, as President of each of the above-named Pledgors	

	  	S-6	  	Second Amended and Restated Pledge Agreement	
	  		  	Debtors Signature Page	

			
Accepted and Agreed to
 
BANK OF AMERICA, N.A., as Collateral Agent	
		
By	 	/s/ Sandra Guerrieri	
Name:	 	Sandra Guerrieri	
Title:	 	Vice President	

	  	S-7	  	Second Amended and Restated Pledge Agreement	
	  		  	Agent Signature Page	

ANNEX A
TO
PLEDGE AGREEMENT
Form of Agreement Regarding Uncertificated Securities, Limited Liability
Company Interests and Partnership Interests
AGREEMENT (as amended, modified or supplemented from time to time, this “ Agreement ”), dated as of              ,              , among each of the undersigned pledgors (each a “ Pledgor ” and, collectively, the “ Pledgors ”),              , not in its individual capacity but solely as collateral agent for the Secured Parties (the “ Pledgee ”), and              , as the issuer of the Uncertificated Securities, Limited Liability Company Interests and/or Partnership Interests (each as defined below) (the “Issuer”).
W I T N E S S E T H :
WHEREAS, each Pledgor and the Pledgee are entering into a Second Amended and Restated Pledge Agreement, dated December 19, 2014 (as amended, amended and restated, modified or supplemented from time to time, the “ Pledge Agreement ”), under which, among other things, in order to secure the payment of the Secured Obligations (as defined in the Pledge Agreement), each Pledgor will pledge to the Pledgee for the benefit of the Secured Parties (as defined in the Pledge Agreement), and grant a security interest in favor of the Pledgee for the benefit of the Secured Parties in, all of the right, title and interest of such Pledgor in and to any and all (1) “uncertificated securities” (as defined in Section 8-102(a)(18) of the UCC, as adopted in the Commonwealth of Pennsylvania) (“ Uncertificated Securities ”), (2) Partnership Interests (as defined in the Pledge Agreement) and (3) Limited Liability Company Interests (as defined in the Pledge Agreement), in each case issued from time to time by the Issuer, whether now existing or hereafter from time to time acquired by such Pledgor (with all of such Uncertificated Securities, Partnership Interests and Limited Liability Company Interests being herein collectively called the “ Issuer Pledged Interests ”); and
WHEREAS, each Pledgor desires the Issuer to enter into this Agreement in order to perfect the security interest of the Pledgee under the Pledge Agreement in the Issuer Pledged Interests, to vest in the Pledgee control of the Issuer Pledge Interests and to provide for the rights of the parties under this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual promises and agreements contained herein, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Each Pledgor hereby irrevocably authorizes and directs the Issuer, and the Issuer hereby agrees, to comply with any and all instructions and orders originated by the Pledgee (and its successors and assigns) regarding any and all of the Issuer Pledged Interests without the further consent by the registered owner (including the respective Pledgor), and not to comply with any instructions or orders regarding any or all of the Issuer Pledged Interests originated by any person or entity other than the Pledgee (and its successors and assigns) or a court of competent jurisdiction.

ANNEX A
Page 2
 
2. The Issuer hereby certifies that (i) no notice of any security interest, lien or other encumbrance or claim affecting the Issuer Pledged Interests (other than the security interest of the Pledgee) has been received by it, and (ii) the security interest of the Pledgee in the Issuer Pledged Interests has been registered in the books and records of the Issuer.
3. The Issuer hereby represents and warrants that (i) the pledge by the Pledgors of, and the granting by the Pledgors of a security interest in, the Issuer Pledged Interests to the Pledgee, for the benefit of the Secured Parties, does not violate the charter, by-laws, partnership agreement, membership agreement or any other agreement governing the Issuer or the Issuer Pledged Interests, and (ii) the Issuer Pledged Interests are fully paid and nonassessable.
4. All notices, statements of accounts, reports, prospectuses, financial statements and other communications to be sent to any Pledgor by the Issuer in respect of the Issuer will also be sent to the Pledgee at the following address:
Bank of America, N.A.
4 Penn Center
Suite 1100
PA7-188-11-01
1600 J.F.K. Boulevard
Philadelphia, PA 19103
Attention: Kenneth G. Wood
Facsimile No.: (212) 548-8941
5. Until the Pledgee shall have delivered written notice to the Issuer that all of the Secured Obligations have been paid in full in cash and this Agreement is terminated, the Issuer will send any and all redemptions, distributions, interest or other payments in respect of the Issuer Pledged Interests from the Issuer for the account of the Pledgor only by wire transfers to the following address:

 

 

[Account Information]
ABA No.:                                                       
Account in the Name of:                               
Account No.:                                                  

ANNEX A
Page 3
 
6. Except as expressly provided otherwise in Sections 4 and 5, all notices, instructions, orders and communications hereunder shall be sent or delivered by mail, telex, telecopy or overnight courier service and all such notices and communications shall, when mailed, telexed, telecopied or sent by overnight courier, be effective when deposited in the mails or delivered to the overnight courier, prepaid and properly addressed for delivery on such or the next Business Day, or sent by telex or telecopier, except that notices and communications to the Pledgee shall not be effective until received by the Pledgee. All notices and other communications shall be in writing and addressed as follows:
 
 	(a)	if to any Pledgor, at:	
 
 	(b)	if to the Pledgee, at the address given in Section 4 hereof:	
 
 	(c)	if to the Issuer, at:	

 

 

Attention:                                     
Telephone No.:                             
Telecopier No.:                             
or at such other address as shall have been furnished in writing by any Person described above to the party required to give notice hereunder. As used in this Section 6, “ Business Day ” means any day other than a Saturday, Sunday, or other day in which banks in Philadelphia, Pennsylvania, are authorized to remain closed.
7. This Agreement shall be binding upon the successors and assigns of each Pledgor and the Issuer and shall inure to the benefit of and be enforceable by the Pledgee and its successors and assigns. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument. In the event that any provision of this Agreement shall prove to be invalid or unenforceable, such provision shall be deemed to be severable from the other provisions of this Agreement which shall remain binding on all parties hereto. None of the terms and conditions of this Agreement may be changed, waived, modified or varied in any manner whatsoever except in writing signed by the Pledgee, the Issuer and any Pledgor which at such time owns any Issuer Pledged Interests.
8. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its principles of conflict of laws.

ANNEX A
Page 4
 
IN WITNESS WHEREOF, each Pledgor, the Pledgee and the Issuer have caused this Agreement to be executed by their duly elected officers duly authorized as of the date first above written.

[                                                                   ],
as Pledgor	
		
By	 	 	
	 	Name:	
	 	Title:	
	
BANK OF AMERICA, N.A.,
not in its individual capacity but solely as Pledgee	
		
By	 	 	
	 	Name:	
	 	Title:	
	
[                                                                   ],
as the Issuer	
		
By	 	 	
	 	Name:	
	 	Title: