EXHIBIT 4.1.1
FIRST AMENDMENT TO NOTE PURCHASE
AGREEMENT
This FIRST AMENDMENT TO NOTE
PURCHASE AGREEMENT (the “First Amendment”) dated
November 12, 2004, is by and among StoneMor GP LLC, a Delaware
limited liability company (the “General Partner”),
StoneMor Partners LP., a Delaware limited partnership (the
“Parent”), StoneMor Operating LLC, a Delaware limited
liability company (the “Company”), and each of the
Subsidiary Issuers listed on the signature page hereto (together
with the Company, each individually an “Issuer,” and
collectively, the “Issuers”, and together with the
General Partner and the Parent, each individually a “Credit
Party), and the several Purchasers whose name appear on the
signature pages hereto (individually, a “Purchaser,”
and collectively, “Purchasers”).
BACKGROUND
A. Pursuant to that certain Note
Purchase Agreement entered into on September 20, 2004, by and among
the parties hereto (as amended, modified or otherwise supplemented
from time to time, the “Agreement”), the Issuers issued
and sold to the Purchasers, and the Purchasers purchased from the
Issuers, Notes (as defined in the Agreement) in the initial
aggregate principal amount of $80,000,000.
B. Issuers have requested certain
changes to the Leverage Ratio covenant set forth in Section 10.9 of
the Agreement, and the Purchasers are willing to agree to amend
such covenant on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of
the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Definitions.
a. General Rule . Except as
expressly set forth herein, all capitalized terms used and not
defined herein shall have the respective meanings ascribed thereto
in the Agreement.
b. Additional Definition .
The following additional definition is hereby added to Schedule B
of the Agreement to read in its entirety as follows:
“ First Amendment
” means the First Amendment to this Agreement dated November
12, 2004.
2. Amendment to Section 10.9
. the first sentence of Section 10.9 of the Agreement is hereby
amended and restated in its entirety as follows:
The Parent will not permit the
Leverage Ratio on the last day of any fiscal quarter to be greater
than 3.50 to 1.00; provided that, if the sum of the (x) aggregate
principal amount of all Revolving Loans, (y) Letter of Credit
Outstandings, and (z) aggregate principal amount of all Acquisition
Loans, does not exceed $3,000,000 as of the related test date, the
Parent will not permit the Leverage Ratio for the periods ending
September 30, 2004, through September 30, 2005, to be greater than
3.75 to 1.00. For the purposes hereof, the terms Revolving Loans,
Letter of Credit Outstandings, and Acquisitions Loans shall have
the respective meanings set forth in the Credit
Agreement.
3. Representations and
Warranties . Each Credit Party hereby represents and warrants
to the Purchasers that, as to such Credit Party:
a. Representations . Each of
the representations and warranties of or as to such Credit Party
contained in the Agreement and the other Finance Documents are true
and correct in all material respects on and as of the date hereof
as if made on and as of the date hereof, except to the extent such
representation or warranty was made as of a specific
date;
b. Power and Authority . (i)
Such Credit Party has the power and authority under the laws of its
jurisdiction of organization and under its organizational documents
to enter into and perform this First Amendment and any other
documents which the Purchasers require such Credit Party to deliver
hereunder (this First Amendment and any such additional documents
delivered in connection with the First Amendment are herein
referred to as the “First Amendment Documents”); and
(ii) all actions, corporate or otherwise, necessary or appropriate
for the due execution and full performance by such Credit Party of
the First Amendment Documents have been adopted and taken and, upon
their execution, the Agreement, as amended by this First Amendment
and the other First Amendment Documents will constitute the valid
and binding obligations of such Credit Party enforceable in
accordance with their respective terms, except as such enforcement
may be limited by any Debtor Relief Law from time to time in effect
which affect the enforcement of creditors rights in general and the
availability of equitable remedies (for the purposes hereof, Debtor
Relief Law shall have the meaning set forth in the Credit
Agreement).
c. No Violation . The making
and performance of the First Amendment Documents will not (i)
contravene, conflict with or result in a breach or default under
any applicable law, statute, rule or regulation, or any order,
writ, injunction, judgment, ruling or decree of any court,
arbitrator or governmental instrumentality, (ii) contravene,
constitute a default under, conflict or be inconsistent with or
result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of any Credit Party
pursuant to the terms of any indenture, mortgage, deed of trust,
loan agreement, credit agreement or any other agreement or
instrument to which any Credit Party is a party or by which it or
any of its property or assets are bound or to which it may be
subject or (iii) contravene or violate any provision of the
certificate of incorporation, by-laws, certificate of partnership,
partnership agreement, certificate of limited liability company,
limited liability company agreement or equivalent organizational
document, as the case may be, of any Credit Party;
d. No Default . After giving
effect to this First Amendment, no Default or Event of Default has
occurred and is continuing;
e. No Material Adverse Effect
. No Material Adverse Effect has occurred since September 20,
2004;
f. Organizational Documents .
There have been no changes in the organizational documents of the
Credit Parties since September 20, 2004.
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g. No Fees . No Credit Party
paid, or is obligated to pay, any fee to the Agent or the Lenders
in connection with the amendment to the Credit Agreement being
entered into on or about the date of this First
Amendment.
4. Conditions to Effectiveness of
Amendment . This First Amendment shall be effective upon the
Purchasers’ receipt of the following, each in form and
substance reasonably satisfactory to the Purchasers:
a. First Amendment. This
First Amendment, duly executed by the Credit Parties;
b. Credit Agreement
Amendment. An amendment to the Credit Agreement, duly executed
by the Credit Parties and the Lenders, amending the leverage ratio
covenant therein so that it shall be no more restrictive than the
Leverage Ratio covenant as amended by this First
Amendment;
c. Other Fees and Expenses.
Payment to the Purchasers, in immediately available funds, of all
amounts necessary to reimburse the Purchasers for the fees and
costs incurred by the Purchasers, including, without limitation,
all fees and costs incurred by the Purchasers’ attorneys, in
connection with the preparation and execution of this First
Amendment and any other Finance Document;
d. Consent and Waivers.
Copies of any consents or waivers necessary in order for the Credit
Parties to comply with or perform any of its covenants, agreements
or obligations contained in any agreement which are required as a
result of any Credit Party’s execution of this First
Amendment, if any; and
e. Other Documents and
Actions. Such additional agreements
