FORM OF ACQUISITION NOTE
EXHIBIT 4.2
FORM OF ACQUISITION NOTE
| U.S. $____________ |
Philadelphia, Pennsylvania |
FOR VALUE RECEIVED, each of undersigned borrowers (individually a “Borrower”, and collectively the “Borrowers”), hereby promises to pay to the order of ____________ or its permitted registered assigns (the “Lender”), in lawful money of the United States of America in immediately available funds on the Maturity Date of the Acquisition Facility, the principal sum of ____________________ U.S. DOLLARS ($________) or, if less, the unpaid principal amount of all Acquisition Loans made by the Lender pursuant to the Credit Agreement (as defined below), payable at such times and in such amounts as are specified in the Credit Agreement.
Each Borrower promises also to pay interest on the unpaid principal amount of each Acquisition Loan made by the Lender in like money from the date hereof until paid at the rates and at the times provided in Section 2.08 of the Credit Agreement.
This Note is one of the Acquisition Notes referred to in the Amended and Restated Credit Agreement, dated August 15, 2007 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”), among StoneMor Operating LLC, a Delaware limited liability company (the “Operating Company”), each of the Subsidiaries of 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 liability partnership (the “Partnership”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender, and is entitled to the benefits of the Credit Agreement and of the other Credit Documents. Terms not otherwise defined herein shall have the meaning ascribed to them in the Credit Agreement. This Note is secured by the Security Documents and is entitled to the benefits of the Collateral. As provided in the Credit Agreement, this Note is subject to voluntary and mandatory repayment prior to the Maturity Date of the Acquisition Facility, in whole or in part, and Acquisition Loans may be converted from one Type into another Type to the extent provided in the Credit Agreement.
In case an Event of Default shall occur and be continuing, the principal of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement. All obligations of the Borrowers hereunder (other than the Controlled Non-Profits) shall be joint and several.
Each Borrower hereby waives the requirements of demand, presentment, protest, notice of protest and dishonor and all other demands or notices of any kind in connection with the delivery, acceptance, performance, default, dishonor or enforcement of this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THE COMMONWEALTH; PROVIDED THAT THE LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
THE BORROWERS AND THE LENDER HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OF CAUSE OF ACTION ARISING UNDER THIS NOTE OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS NOTE, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS NOTE MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Notwithstanding anything to the contrary contained in this Note 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 under any other Credit Documents, (ii) any loan, advance or other distribution to such entity of proceeds of any Loan or other extension of credit made to other Borrower hereunder, and (iii) its proportionate share of all Loans and other extensions of credit made hereunder to fund any administrative or other management related fees, costs and expenses of the General Partner, the Partnership, the Operating Company or any Borrower providing such services to such Controlled Non-Profits 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.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, each Borrower has caused this Acquisition Note to be executed by its duly authorized officer as of the day and year first written above.
| STONEMOR GP LLC | ||||
| By: | ||||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President | ||||
| STONEMOR PARTNERS L.P. | ||||
| By: | STONEMOR GP LLC its General Partner | |||
| By: | ||||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President | ||||
| STONEMOR OPERATING LLC | ||||
| By: | ||||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President | ||||
S-1
Additional Credit Parties
Alleghany Memorial Park Subsidiary, Inc.
Altavista Memorial Park Subsidiary, Inc.
Arlington Development Company
Augusta Memorial Park Perpetual Care Company
Bethel Cemetery Association
▇▇▇▇ Israel Cemetery Association of Woodbridge, New Jersey
Birchlawn Burial Park Subsidiary, Inc.
Cedar Hill Funeral Home, Inc.
Cemetery Investments Subsidiary, Inc.
Chapel Hill Associates, Inc.
Chapel Hill Funeral Home, Inc.
Clover Leaf Park Cemetery Association
Columbia Memorial Park Subsidiary, Inc.
Cornerstone Family Insurance Services, Inc.
Cornerstone Family Services of New Jersey, Inc.
Cornerstone Family Services of West Virginia Subsidiary, Inc.
Covenant Acquisition Subsidiary, Inc.
▇▇▇▇▇▇▇▇▇ Memorial Funeral Home, Inc.
▇▇▇▇▇▇▇▇▇ Memorial Gardens, Inc.
Crown Hill Cemetery Association
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Funeral Home, Inc.
Forest Lawn Memorial Chapel, Inc.
Forest Lawn Memory Gardens, Inc.
▇▇▇▇ Haven Memorial Park Subsidiary, Inc.
▇▇▇▇▇ Memorial Park Subsidiary, Inc.
Highland Memorial Park, Inc.
Hillside Memorial Park Association, Inc.
KIRIS Subsidiary, Inc.
Lakewood/▇▇▇▇▇▇▇▇ Cemetery Subsidiary, Inc.
Lakewood Memory Gardens South Subsidiary, Inc.
Laurel Hill Memorial Park Subsidiary, Inc.
Laurelwood Holding Company
Legacy Estates, Inc.
Locustwood Cemetery Association
▇▇▇▇▇▇ [Virginia] Subsidiary, Inc.
▇▇▇▇▇▇▇▇ ▇▇▇▇ Cemetery Subsidiary, Inc.
Modern Park Development Subsidiary, Inc.
Northlawn Memorial Gardens
Oak Hill Cemetery Subsidiary, Inc.
| By: | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇, as Vice President of Finance for each of the above-named Credit Parties |
S-2
Ohio Cemetery Holdings, Inc.
Osiris Holding Finance Company
Osiris Holding of Maryland Subsidiary, Inc.
Osiris Holding of Rhode Island Subsidiary, Inc.
Osiris Management, Inc.
Osiris Telemarketing Corp.
Perpetual ▇▇▇▇▇▇▇.▇▇▇, Inc.
PVD Acquisitions Subsidiary, Inc.
Rockbridge Memorial Gardens Subsidiary Company
Rose Lawn Cemeteries Subsidiary, Incorporated
Roselawn Development Subsidiary Corporation
▇▇▇▇▇▇▇ 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.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Funeral Home, Inc.
▇▇▇▇▇▇▇ Subsidiary, Incorporated
StoneMor Alabama Subsidiary, Inc.
StoneMor California, Inc.
StoneMor California Subsidiary, Inc.
StoneMor Georgia Subsidiary, Inc.
StoneMor Hawaii Subsidiary, Inc.
StoneMor North Carolina Funeral Services, Inc.
StoneMor Ohio Subsidiary, Inc.
StoneMor Tennessee Subsidiary, Inc.
StoneMor Washington, Inc.
Sunset Memorial Gardens Subsidiary, Inc.
Sunset Memorial Park Subsidiary, Inc.
Temple Hill Subsidiary Corporation
The Valhalla Cemetery Subsidiary Corporation
Virginia Memorial Service Subsidiary Corporation
W N C Subsidiary, Inc.
Wicomico Memorial Parks Subsidiary, Inc.
Willowbrook Management Corp.
| By: | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇, as Vice President of Finance for each of the above-named Credit Parties |
S-3
Alleghany Memorial Park LLC
Altavista Memorial Park LLC
Birchlawn Burial Park LLC
Cemetery Investments LLC
Cemetery Management Services, L.L.C.
Cemetery Management Services of Mid-Atlantic States, L.L.C.
Cemetery Management Services of Ohio, L.L.C.
CMS West LLC
CMS West Subsidiary LLC
Columbia Memorial Park LLC
Cornerstone Family Services of West Virginia LLC
Cornerstone Funeral and Cremation Services LLC
Covenant Acquisition LLC
▇▇▇▇ Haven Memorial Park LLC
Henlopen Memorial Park LLC
Henlopen Memorial Park Subsidiary LLC
▇▇▇▇▇ Memorial Park LLC
Juniata Memorial Park LLC
KIRIS LLC
Lakewood/▇▇▇▇▇▇▇▇ Cemetery LLC
Lakewood Memory Gardens South LLC
Laurel Hill Memorial Park LLC
▇▇▇▇▇▇ [Virginia] LLC
▇▇▇▇▇▇▇▇ ▇▇▇▇ 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
▇▇▇▇▇▇▇ Memorial Cemetery LLC
Shenandoah Memorial Park LLC
Southern Memorial Sales LLC
Springhill Memory Gardens LLC
Star City Memorial Sales LLC
▇▇▇▇▇▇▇ LLC
| By: | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇, as Vice President of Finance for each of the above-named Credit Parties |
S-4
StoneMor Alabama LLC
StoneMor Arkansas Subsidiary LLC
StoneMor Cemetery Products LLC
StoneMor Colorado LLC
StoneMor Colorado Subsidiary LLC
StoneMor Florida Subsidiary LLC
StoneMor Georgia LLC
StoneMor Hawaii LLC
StoneMor Hawaiian Joint Venture Group LLC
StoneMor Holding of Pennsylvania LLC
StoneMor Illinois LLC
StoneMor Illinois Subsidiary LLC
StoneMor Indiana LLC
StoneMor Indiana Subsidiary LLC
StoneMor Iowa LLC
StoneMor Iowa Subsidiary LLC
StoneMor Kansas LLC
StoneMor Kansas Subsidiary LLC
StoneMor Kentucky LLC
StoneMor Kentucky Subsidiary LLC
StoneMor Michigan LLC
StoneMor Michigan Subsidiary LLC
StoneMor Missouri LLC
StoneMor Missouri Subsidiary LLC
StoneMor North Carolina LLC
StoneMor North Carolina Subsidiary LLC
StoneMor Ohio 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: | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇, as Vice President of Finance for each of the above-named Credit Parties |
S-5
Sunset Memorial Gardens LLC
Sunset Memorial Park LLC
Temple Hill LLC
The Valhalla Cemetery Company LLC
Tioga County Memorial Gardens LLC
Virginia Memorial Service LLC
WNCI LLC
Wicomico Memorial Parks LLC
Woodlawn Memorial Park Subsidiary LLC
| By: | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇, as Vice President of Finance for each of the above-named Credit Parties |
S-6