UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): November 19, 2015
StoneMor Partners L.P.
(Exact name of registrant as specified in its charter)
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Delaware |
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001-32270 |
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80-0103159 |
(State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(IRS Employer Identification No.) |
311 Veterans Highway, Suite B, Levittown, PA 19056
(Address of Principal Executive Offices) (Zip Code)
(215) 826-2800
(Registrants telephone number, including area code)
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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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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 November 19, 2015, StoneMor
Partners L.P., a Delaware limited partnership (the Partnership), StoneMor GP LLC, a Delaware limited liability company (the General Partner), StoneMor Operating LLC, a Delaware limited liability company (Operating
LLC, and together with the Partnership and the General Partner, the Partnership Parties) entered into an At-the-Market Issuance Sales Agreement (the ATM Agreement) with FBR Capital Markets & Co., MLV &
Co. LLC and Janney Montgomery Scott LLC as sales agents (each an Agent and collectively the Agents). Pursuant to the terms of the ATM Agreement, the Partnership may sell from time to time through the Agents the
Partnerships common units representing limited partner interests having an aggregate offering price of up to $100,000,000 (the Common Units). Sales of the Common Units, if any, will be made by any method permitted by law deemed to
be an at the market offering, including ordinary brokers transactions through the facilities of the New York Stock Exchange, to or through a market maker, or directly on or through an electronic communication network, a dark
pool or any similar market venue, at market prices, in block transactions, or as otherwise agreed upon by the Partnership and one or more of the Agents.
In connection with each sale of the Common Units pursuant to the ATM Agreement, the Partnership will provide a placement notice to the Agents
containing the parameters in accordance with which Common Units are to be sold, including, but not limited to, the number of Common Units and the time period during which such sales are requested to be made, subject to the terms and conditions of
the ATM Agreement.
The Partnership intends to use the net proceeds from any sales pursuant to the ATM Agreement, after deducting the
sales agents commissions and the Partnerships offering expenses, to pay down outstanding indebtedness under its revolving credit facility.
The Common Units will be issued pursuant to the Partnerships existing effective shelf registration statement on Form S-3 (File
No. 333-192670), which was declared effective by the Securities and Exchange Commission on December 16, 2013, and a prospectus supplement thereto.
The ATM Agreement contains customary representations, warranties and agreements by the Partnership Parties, indemnification obligations of the
Partnership Parties and the Agents, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions. The foregoing description of the ATM Agreement does not purport to be complete
and is qualified in its entirety by reference to the full text of the ATM Agreement, a copy of which is filed herewith as Exhibit 1.1 and is incorporated by reference herein. Legal opinions relating to the Common Units are filed herewith as Exhibits
5.1 and 8.1.
The Agents and certain of their affiliates have from time to time performed, and may in the future perform, various
financial advisory and commercial and investment banking services for the Partnership and its affiliates, for which they have received and in the future will receive customary compensation and expense reimbursement.
Item 9.01 |
Financial Statements and Exhibits. |
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Exhibit No. |
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Description |
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1.1 |
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At-the-Market Issuance Sales Agreement, dated as of November 19, 2015, by and among StoneMor Partners L.P., StoneMor GP LLC, StoneMor Operating LLC and FBR Capital Markets & Co., MLV & Co. LLC and Janney Montgomery Scott
LLC. |
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5.1 |
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Opinion of Vinson & Elkins L.L.P. as to the legality of the offered Common Units. |
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8.1 |
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Opinion of Vinson & Elkins L.L.P. regarding tax matters. |
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23.1 |
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Consent of Vinson & Elkins L.L.P. (included in its opinion filed as Exhibit 5.1). |
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23.2 |
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Consent of Vinson & Elkins L.L.P. (included in its opinion filed as Exhibit 8.1). |
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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 thereunto duly authorized.
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STONEMOR PARTNERS L.P. |
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By: |
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StoneMor GP LLC its General
Partner |
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Dated: November 19, 2015 |
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By: |
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/s/ Sean P. McGrath |
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Name: |
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Sean P. McGrath |
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Title: |
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Chief Financial Officer and Secretary |
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EXHIBIT INDEX
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Exhibit No. |
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Description |
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1.1 |
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At-the-Market Issuance Sales Agreement, dated as of November 19, 2015, by and among StoneMor Partners L.P., StoneMor GP LLC, StoneMor Operating LLC and FBR Capital Markets & Co., MLV & Co. LLC and Janney Montgomery Scott
LLC. |
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5.1 |
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Opinion of Vinson & Elkins L.L.P. as to the legality of the offered Common Units. |
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8.1 |
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Opinion of Vinson & Elkins L.L.P. regarding tax matters. |
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23.1 |
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Consent of Vinson & Elkins L.L.P. (included in its opinion filed as Exhibit 5.1). |
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23.2 |
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Consent of Vinson & Elkins L.L.P. (included in its opinion filed as Exhibit 8.1). |
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Exhibit 1.1
STONEMOR PARTNERS L.P.
Common Units Representing Limited Partner Interests
At-the-Market Issuance Sales Agreement
November 19, 2015
FBR Capital
Markets & Co.
1300 North 17th Street
Suite 1400
Arlington, Virginia 22209
MLV & Co. LLC
1301 Avenue of the Americas
43rd Floor
New York, New York 10019
Janney Montgomery Scott LLC
1717 Arch Street
Philadelphia, PA 19103
Ladies and Gentlemen:
STONEMOR PARTNERS, L.P.,
a Delaware limited partnership (the Partnership), confirms its agreement (this Agreement) with FBR Capital Markets & Co., MLV & Co. LLC and Janney Montgomery Scott LLC (each, an
Agent and collectively, the Agents), with respect to the issuance and sale from time to time by the Partnership, in the manner and subject to the terms and conditions described in this Agreement, of up to
$100,000,000 of the Partnerships common units (the Placement Units) representing limited partner interests in the Partnership (the Common Units).
The Partnership conducts its operations through StoneMor Operating LLC, a Delaware limited liability company (the Operating
Company). StoneMor GP LLC, a Delaware limited liability company, is the general partner of the Partnership (the General Partner). The entities listed on Schedule 4 hereto are referred to collectively as the
Operating Subsidiaries and individually, as an Operating Subsidiary. The Operating Subsidiaries identified as limited liability companies on Schedule 4 are referred to collectively as the
Operating LLCs. The Operating Subsidiaries identified as corporations on Schedule 4 are referred to collectively as the Operating Corporations. The non-profit cemeteries identified on Schedule 5
hereto are managed by certain Operating Subsidiaries. The Partnership, the Operating Company and the Operating Subsidiaries are referred to collectively as the Partnership Parties. The General Partner, the Partnership and the
Operating Company are referred to herein collectively as the StoneMor Parties. The StoneMor Parties and the Operating Subsidiaries are referred to collectively as the Partnership Entities.
The General Partner Operating Agreement, the Partnership Agreement, the Operating Company Operating Agreement, the Operating LLCs Charter
Documents and the Operating
Corporations Charter Documents (in each case as defined below), as the same may be amended or restated at or prior to the Applicable Time (as defined below), are herein collectively referred to
as the Charter Documents.
The Partnership has filed with the Securities and Exchange Commission (the
Commission) a shelf registration statement on Form S-3 (No. 333-192670) (the Registration Statement) for the registration of the Placement Units and other securities of the Partnership under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the Securities Act). As used herein, Registration Statement means, at any given time, such registration statement,
as amended at the time of such registration statements effectiveness for purposes of Section 11 of the Securities Act, as such section applies to the Agents, including (1) all documents filed as a part thereof or incorporated, or
deemed to be incorporated, by reference therein as of such time and (2) any information contained or incorporated by reference in a prospectus relating to the offering of the Placement Units filed with the Commission pursuant to Rule 424(b)
under the Securities Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Securities Act, to be part of the registration statement as of such time. Basic Prospectus means, at any given time,
the prospectus dated December 16, 2013, filed as part of the Registration Statement, including the documents incorporated by reference therein as of such time; Prospectus Supplement means the most recent prospectus supplement
relating to the offering of the Placement Units, to be filed by the Partnership with the Commission pursuant to Rule 424(b) under the Securities Act on or before the second business day after the date of its first use in connection with a public
offering or sale of Placement Units pursuant hereto (or such earlier time as may be required under the Securities Act), in the form furnished by the Partnership to the Agents in connection with the offering of the Placement Units; and
Prospectus means the Prospectus Supplement (and any additional prospectus supplement prepared in accordance with the provisions of Section 7(c) of this Agreement and filed in accordance with the provisions of Rule
424(b)) together with the Basic Prospectus attached to or used with the Prospectus Supplement. Any reference herein to the Registration Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus shall, unless otherwise stated, be deemed to refer to and include the documents, if any, incorporated, or deemed to be incorporated, by reference therein (the Incorporated Documents). Any reference herein to the terms
amend, amendment or supplement with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus shall, unless stated otherwise,
be deemed to refer to and include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the Exchange Act) on or after the
initial effective date of the Registration Statement or the date of the Basic Prospectus, the Prospectus Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the case may be, and deemed to be incorporated therein by reference
All references in this Agreement to financial statements and schedules and other information which is contained,
included or stated in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules and other
information which is incorporated by reference in or otherwise deemed by the requirements of the Securities Act and the rules and regulations of the Commission thereunder, as amended (the Securities Act
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Regulations) to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any document under the Exchange Act, which is incorporated by reference in or otherwise deemed by
Securities Act Regulations to be a part of or included in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be.
1. Issuance and Sale of Units. The Partnership agrees that, from time to time during the term of this Agreement, on the terms and
subject to the conditions set forth herein, it may issue and sell through the Agents, the Placement Units; provided however, that in no event shall the Partnership issue or sell through the Agents such number or dollar amount of Placement
Units that (a) would cause the Partnership or the offering of the Placement Units to fail to satisfy the eligibility and transaction requirements for use of Form S-3 (including, if applicable, Instruction I.B.6 thereof), (b) exceeds the
number or dollar amount of Placement Units registered on the effective Registration Statement pursuant to which the offering is being made, or (c) exceeds the number or dollar amount of Placement Units for which the Partnership has filed a
Prospectus Supplement (as defined below) (the lesser of (a), (b) and (c), the Maximum Amount). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth
in this Section 1 on the number or dollar amount of Placement Units issued and sold under this Agreement shall be the sole responsibility of the Partnership and that the Agents shall have no obligation in connection with such compliance.
The issuance and sale of Placement Units through the Agents will be effected pursuant to the Registration Statement, although nothing in this Agreement shall be construed as requiring the Partnership to use the Registration Statement to issue any
Placement Units.
For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or
supplement thereto shall be deemed to include the most recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Interactive Data Electronic Application system when used by
the Commission (collectively, EDGAR).
2. Placements.
(i) Each time that the Partnership wishes to issue and sell Placement Units hereunder (each, a Placement), it will notify
the Agents by email notice (or other method mutually agreed to in writing by the Parties) of the number of Placement Units to be sold, the time period during which sales are requested to be made, any limitation on the number of Placement Units that
may be sold in any one day and any minimum price below which sales may not be made (a Placement Notice), the form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals
from the Partnership set forth on Schedule 3 (with a copy to each of the other individuals from the Partnership listed on such schedule), and shall be addressed to each of the individuals from the applicable Agent set forth on Schedule
3, as such Schedule 3 may be amended from time to time. Provided that the Partnership is otherwise in compliance with the terms of this Agreement, the Placement Notice shall be effective immediately upon receipt by the applicable Agent
unless
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and until (i) such Agent declines to accept the terms contained therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Units thereunder has been sold,
(iii) the Partnership suspends or terminates the Placement Notice or (iv) this Agreement has been terminated under the provisions of Section 13. The amount of any discount, commission or other compensation to be paid by the
Partnership to the Agents in connection with the sale of the Placement Units shall be calculated in accordance with the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Partnership nor any Agent will
have any obligation whatsoever with respect to a Placement or any Placement Units unless and until the Partnership delivers a Placement Notice to an Agent and such Agent does not decline such Placement Notice pursuant to the terms set forth above,
and then only upon the terms specified therein and herein. In the event of a conflict between the terms of Section 2, 3 and 4 of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control.
For the avoidance of doubt, the Partnership may not submit instructions to sell Placement Units to more than one Agent on any single trading day.
(ii) During the term of this Agreement, none of the Agents nor any of their affiliates or subsidiaries shall engage in (A) any short sale
of any security of the Partnership or (B) any sale of any security of the Partnership that such Agent does not own or any sale that is consummated by the delivery of a security of the Partnership borrowed by, or for the account of such Agent.
None of the Agents nor any of their affiliates or subsidiaries shall engage in any proprietary trading or trading for such Agents (or its affiliates or subsidiaries) own account.
3. Sale of Placement Units by Agents. Subject to the terms and conditions of this Agreement, for the period specified in a Placement
Notice, the applicable Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of New York Stock Exchange (the
Exchange), to sell the Placement Units up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The applicable Agent will provide written confirmation to the Partnership no later than
the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Units hereunder setting forth the number of Placement Units sold on such day, the compensation payable by the Partnership
to such Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Partnership, with an itemization of the deductions made by such Agent (as set forth in Section 5(b)) from
the gross proceeds that it receives from such sales. Subject to the terms of a Placement Notice, an Agent may sell Placement Units by any method permitted by law deemed to be an at-the-market offering as defined in Rule 415 of the
Securities Act, including without limitation sales made directly on the Exchange, on any other existing trading market for the Common Units or to or through a market maker. Subject to the terms of a Placement Notice, an Agent may also sell Placement
Units by any other method permitted by law, including but not limited to negotiated transactions, with the Partnerships consent. Trading Day means any day on which Common Units is purchased and sold on the Exchange.
4. Suspension of Sales. The Partnership or the applicable Agents may, upon notice to the other party in writing (including by email
correspondence to each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is
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actually acknowledged by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email
correspondence to each of the individuals of the other party set forth on Schedule 3), suspend any sale of Placement Units; provided, however, that such suspension shall not affect or impair any partys obligations with respect to
any Placement Units sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to one of the individuals named on
Schedule 3 hereto, as such Schedule may be amended from time to time.
5. Sale and Delivery to Agents; Settlement.
a. Sale of Placement Units. On the basis of the representations and warranties herein contained and subject to the terms and
conditions herein set forth, upon the applicable Agents acceptance of the terms of a Placement Notice, and unless the sale of the Placement Units described therein has been declined, suspended, or otherwise terminated in accordance with the
terms of this Agreement, the applicable Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Units up to the amount
specified in, and otherwise in accordance with the terms of, such Placement Notice. The Partnership acknowledges and agrees that (i) there can be no assurance that the Agents will be successful in selling Placement Units, (ii) no Agent
will incur any liability or obligation to the Partnership or any other person or entity if it does not sell Placement Units for any reason other than a failure by such Agent to use its commercially reasonable efforts consistent with its normal
trading and sales practices and applicable law and regulations to sell such Placement Units as required under this Agreement and (iii) no Agent shall be under any obligation to purchase Placement Units on a principal basis pursuant to this
Agreement, except as otherwise agreed by such Agent and the Partnership.
b. Settlement of Placement Units. Unless otherwise
specified in the applicable Placement Notice, settlement for sales of Placement Units will occur on the third (3rd) Trading Day (or such earlier day as is industry practice for regular-way
trading) following the date on which such sales are made (each, a Settlement Date). The amount of proceeds to be delivered to the Partnership on a Settlement Date against receipt of the Placement Units sold (the Net
Proceeds) will be equal to the aggregate sales price received by the applicable Agent, after deduction for (i) such Agents commission, discount or other compensation for such sales payable by the Partnership pursuant to
Section 2 hereof, and (ii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales.
c. Delivery of Placement Units. On or before each Settlement Date, the Partnership will, or will cause its transfer agent to,
electronically transfer the Placement Units being sold by crediting the applicable Agents or its designees account (provided that such Agent shall have given the Partnership written notice of such designee at least one Trading Day prior
to the Settlement Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable,
transferable, registered units in good deliverable form. On each Settlement Date, the
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applicable Agent will deliver the related Net Proceeds in same day funds to an account designated by the Partnership on, or prior to, the Settlement Date. The Partnership agrees that if the
Partnership, or its transfer agent (if applicable), defaults in its obligation to deliver Placement Units on a Settlement Date through no fault of any Agent, then in addition to and in no way limiting the rights and obligations set forth in
Section 11(a) hereto, it will (i) hold the applicable Agent harmless against any loss, claim, damage, or reasonable, documented expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in
connection with such default by the Partnership or its transfer agent (if applicable) and (ii) pay to such Agent (without duplication) any commission, discount, or other compensation to which it would otherwise have been entitled absent such
default.
d. Limitations on Offering Size. Under no circumstances shall the Partnership cause or request the offer or sale of any
Placement Units if, after giving effect to the sale of such Placement Units, the aggregate number of Placement Units sold pursuant to this Agreement would exceed the lesser of (A) together with all sales of Placement Units under this Agreement,
the Maximum Amount, (B) the amount available for offer and sale under the currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement by the General Partners
board of directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Agents in writing. Under no circumstances shall the Partnership cause or request the offer or sale of any Placement Units pursuant
to this Agreement at a price lower than the minimum price authorized from time to time by the General Partners board of directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Agents in
writing. Further, under no circumstances shall the Partnership cause or permit the aggregate offering amount of Placement Units sold pursuant to this Agreement to exceed the Maximum Amount.
6. Representations and Warranties of the StoneMor Parties. The StoneMor Parties, jointly and severally, represent and warrant to the
Agents as of the date hereof, as of each Applicable Time and as of each Representation Date (as defined below), unless such representation, warranty or agreement specifies a different date or time, and agree with each Agent, as follows:
a. Compliance with Registration Requirements. The Partnership meets the registrant requirements for the use of Form S-3 to register
under the Securities Act the offer and sale of the Placement Units as described in the Prospectus. No other document with respect to the Registration Statement or document incorporated by reference therein has heretofore been filed, or transmitted
for filing, with the Commission (other than prospectuses filed pursuant to Rule 424(b) of the Securities Act Regulations previously approved by the Agents). The Registration Statement has become effective under the Securities Act, no stop order
suspending the effectiveness of the Registration Statement has been issued under the Securities Act, and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Partnership, are contemplated by the Commission,
and any request on the part of the Commission for supplemental information pursuant to Rule 418 under the Securities Act has been complied with.
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As of the date of this Agreement and as of any other applicable effective date of the
Registration Statement and any post-effective amendments thereto, and at each Applicable Time, the Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the
Securities Act and the Securities Act Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was or will be issued and at each Applicable Time included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
b. Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, as amended.
c. Independent Accountants. The accountants who certified the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required by the Securities Act and the Securities Act Regulations during the periods covered by the financial statements on which they reported.
d. Financial Statements. The historical financial statements included in the Registration Statement and the Prospectus, together with
the related schedules and notes, present fairly in all material respects the financial condition, results of operations and cash flows of the Partnership and its consolidated subsidiaries or the entities or the assets purported to be shown thereby
on the basis stated therein at the dates indicated and the statement of operations, partners equity and statement of cash flows of the Partnership and its consolidated subsidiaries or of the entities or assets purported to be shown thereby for
the periods specified; said financial statements have been prepared in conformity with generally accepted accounting principles (GAAP) applied on a consistent basis throughout the periods involved. The summary financial
information included in the Prospectus is accurately presented in all material respects and prepared on a basis consistent with that of the audited financial statements from which it has been derived.
e. Formation and Qualification of the Partnership. The Partnership (A) has been duly organized and is validly existing as a
limited partnership in good standing under the Delaware Revised Uniform Limited Partnership Act (the Delaware LP Act) and (B) has all limited partnership power and authority necessary to own, lease and operate its properties
and to conduct its business and to enter into and perform its obligations under this Agreement, in each case in clause (B) in all material respects as described in the Registration Statement and the Prospectus; and the Partnership is duly
qualified as a foreign limited partnership to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not have, individually or in the aggregate, a material adverse change on the consolidated financial position, partners
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equity, results of operations, business or prospects of the Partnership Entities taken as a whole (a Material Adverse Effect) or subject the limited partners of the Partnership
to any material liability.
f. Formation and Qualification of the General Partner and the Operating Company. Each of the General
Partner and the Operating Company (A) has been duly organized and is validly existing as a limited liability company in good standing under the Delaware Limited Liability Company Act (the Delaware LLC Act) and (B) has
all limited liability company power and authority necessary to own, lease and operate its properties and to conduct its business and to enter into and perform its obligations under this Agreement, in each case in clause (B) in all material
respects as described in the Registration Statement and the Prospectus; the General Partner has all necessary limited liability company power and authority to act as the general partner of the Partnership, as described in the Registration Statement
and the Prospectus, and each of the General Partner and the Operating Company is duly qualified as a foreign limited liability company to transact business and is in good standing in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result, individually or in the aggregate, in a Material Adverse Effect or subject the
limited partners of the Partnership to any material liability.
g. Formation and Qualification of the Operating Corporations. Each
of the Operating Corporations (A) has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, and (B) has all corporate power and authority necessary to own,
lease and operate its properties and to conduct its business, in each case in clause (B) in all material respects as described in the Registration Statement and the Prospectus; each of the Operating Corporations is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, which jurisdictions are listed opposite each
such Operating Corporation on Schedule 4, except where the failure so to qualify or to be in good standing would not result, individually or in the aggregate, in a Material Adverse Effect or subject the limited partners of the Partnership to
any material liability.
h. Formation and Qualification of the Operating LLCs. Each of the Operating LLCs (A) has been duly
organized and is validly existing as a limited liability company in good standing under the laws of the jurisdiction of its formation, and (B) has all limited liability company power and authority necessary to own, lease and operate its
properties and to conduct its business, in each case in clause (B) in all material respects as described in the Registration Statement and the Prospectus; each of the Operating LLCs is duly qualified as a foreign limited liability company to
transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, which jurisdictions are listed opposite each such Operating
LLC on Schedule 4, except where the failure so to qualify or to be in good standing would not result, individually or in the aggregate, in a Material Adverse Effect or subject the limited partners of the Partnership to any material liability.
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i. Ownership of the General Partner Interest in the Partnership. As of the date of
hereof, the General Partner has a 1.24% general partner interest in the Partnership; such general partner interest is duly authorized and validly issued in accordance with the partnership agreement of the Partnership (as amended through the date
hereof and as the same may be amended or restated at or prior to each Applicable Time, the Partnership Agreement); and the General Partner owns such general partner interest free and clear of all liens, encumbrances, security
interests, equities, charges and other claims (except restrictions on transferability as described in the Partnership Agreement, the Registration Statement and the Prospectus).
j. Ownership of the General Partner. StoneMor GP Holdings LLC, a Delaware limited liability company (GP Holdings
LLC), is the sole member of the General Partner and owns 100% of the outstanding membership interests in the General Partner; such membership interests have been duly authorized and validly issued in accordance with the limited liability
company agreement of the General Partner (as amended through the date hereof and as the same may be amended or restated at or prior to each Applicable Time, the General Partner Operating Agreement) and are fully paid (to the
extent required under the General Partner Operating Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-303, 18-607 or 18-804 of the Delaware LLC Act); and GP Holdings LLC owns such membership interests
free and clear of all liens, encumbrances, security interests, equities, charges and other claims (except for restrictions on transferability as described in the Registration Statement and the Prospectus or the General Partner Operating Agreement).
k. Partnership Interests Outstanding. As of the date hereof, the issued and outstanding limited partner interests of the
Partnership consist of 31,831,115 Common Units and the Incentive Distribution Rights (as defined in the Partnership Agreement), and the General Partner owns all of the Incentive Distribution Rights; and all of such issued and outstanding Common
Units and Incentive Distribution Rights and the limited partner interests represented thereby have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership
Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act and the matters described in the Prospectus under the captions Description of Common UnitsLimited
Liability and Risk FactorsRisk Factors Related to an Investment in UsYou may be required to repay distributions you have received from us.); and the General Partner owns the Incentive Distribution Rights, free and clear
of all liens, encumbrances, security interests, charges or claims (except as described in the Registration Statement and the Prospectus).
l. Valid Issuance of the Units. At each Applicable Time, the Placement Units to be sold by the Partnership and the limited partner
interests represented thereby will be duly and validly authorized by the Partnership Agreement and when issued and delivered against payment therefor in accordance with this Agreement, will be duly and validly issued, fully paid (to the extent
required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act).
m. Ownership of the Operating Company. The Partnership is the sole member of the Operating Company with a 100% membership interest in
the Operating Company; such membership interest is duly authorized and validly issued in accordance with
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the limited liability company agreement of the Operating Company (as the same may be amended or restated at or prior to each Applicable Time, the Operating Company Operating
Agreement) and is fully paid (to the extent required under the Operating Company Operating Agreement) and nonassessable (except as such nonassessability may be affected by Section 18-303, 18-607 or 18-804 of the Delaware LLC Act and
matters described in the Prospectus under the caption Description of the Common UnitsLimited Liability; Risk FactorsRisk Factors Related to an Investment in UsYou may be required to repay distributions you have received
from us.); and the Partnership owns such membership interest free and clear of all liens, encumbrances, security interests, equities, charges and other claims (except as described in the Registration Statement and the Prospectus or liens
created pursuant to the Fourth Amended and Restated Credit Agreement dated December 19, 2014 (as amended through the date hereof, the Credit Facility)).
n. Ownership of the Operating Corporations. The Operating Company directly or indirectly owns 100% of the outstanding capital stock of
each Operating Corporation, provided that the non-profit cemeteries identified on Schedule 5 do not have any owners; all such stock is duly authorized and validly issued in accordance with the certificate or articles of incorporation
and bylaws of each Operating Corporation (collectively, the Operating Corporations Charter Documents and, as to each individual Operating Corporation, the Operating Corporation Charter Documents) and are fully
paid (to the extent required under the applicable Operating Corporation Charter Document) and nonassessable; and the owners own all such stock free and clear of all liens, encumbrances, security interests, equities, charges and other claims (except
as described in the Registration Statement and the Prospectus or liens created pursuant to the Credit Facility).
o. Ownership of the
Operating LLCs. The Operating Company directly or indirectly owns 100% of the outstanding membership interests of each Operating LLC, provided that the non-profit cemeteries identified on Schedule 5 do not have any owners; all such
membership interests are duly authorized and validly issued in accordance with the certificate of formation and limited liability company agreement of each Operating LLC (collectively, the Operating LLCs Charter Documents and, as
to each individual Operating LLC, the Operating LLC Charter Document) and are fully paid (to the extent required under the applicable Operating LLC Charter Document) and nonassessable (except as such nonassessability may be
affected by the limited liability company laws applicable to such Operating LLC); and the owners own all such membership interests free and clear of all liens, encumbrances, security interests, equities, charges and other claims (except as described
in the Registration Statement and the Prospectus or liens created pursuant to the Credit Facility).
p. No Other Subsidiaries.
Other than its ownership of its general partner interest in the Partnership and the Incentive Distribution Rights and except as described in the Registration Statement and the Prospectus, the General Partner does not own, and at each Applicable Time
will not own, directly or indirectly, any equity or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity. Other than (i) the Partnerships ownership of a 100%
membership interest in the Operating Company and (ii) the Operating Companys 100% direct or indirect ownership of the outstanding capital stock or limited liability company interest in each Operating Subsidiary except as set forth on
Schedule 4, neither the Partnership nor the Operating Company owns, and
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at each Applicable Time, neither will own, directly or indirectly, any equity or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association
or other entity.
q. No Preemptive Rights, Registration Rights or Options. Except as described in the Registration Statement and
the Prospectus or the Charter Documents, there are no preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any equity securities of any of the Partnership Entities; and any such
preemptive rights exercisable in connection with the offering or sale of the Placement Units have been waived. Neither the filing of the Registration Statement nor the offering or sale of the Placement Units as contemplated by this Agreement gives
rise to any rights for or relating to the registration of any Common Units or other securities of any of the Partnership Entities other than as provided in the Registration Statement and the Prospectus or the Partnership Agreement and as have been
either complied with or waived. Except as described in the Registration Statement and the Prospectus, there are no outstanding options or warrants to purchase (A) any Common Units or other interests in the Partnership, (B) any membership
interests in the General Partner or the Operating Company or (C) any shares of stock or membership interests, as applicable, in any Operating Subsidiary.
r. Authority and Authorization. The Partnership has all requisite partnership power and authority to issue, sell and deliver those
Placement Units to be issued, sold and delivered by the Partnership, in accordance with and upon the terms and conditions set forth in this Agreement in accordance with and upon the terms and conditions set forth in the Partnership Agreement. At the
each Applicable Time, all corporate, partnership and limited liability company actions, as the case may be, required to be taken by the Partnership Entities or any of their securityholders, members or partners for the authorization, issuance, sale
and delivery of the Placement Units and the consummation of the transactions contemplated by this Agreement have been validly taken.
s.
Authorization, Execution and Delivery of Agreement. This Agreement has been duly authorized and validly executed and delivered by each of the StoneMor Parties.
t. Enforceability of Other Agreements. At or before each Applicable Time:
(A) the General Partner Operating Agreement has been duly authorized, executed and delivered by GP Holdings LLC, and is a valid
and legally binding agreement of GP Holdings LLC, enforceable against GP Holdings LLC in accordance with its terms;
(B)
the Partnership Agreement has been duly authorized, executed and delivered by the General Partner and the other parties thereto and is a valid and legally binding agreement of the General Partner, enforceable against the General Partner in
accordance with its terms; and
(C) the Operating Company Operating Agreement has been duly authorized, executed and
delivered by the Partnership and is a valid and legally binding agreement of the Partnership, enforceable against the Partnership in accordance with its terms;
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provided that, with respect to each agreement described in this Section 6(u), the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); provided further; that the indemnity, contribution and exoneration provisions contained in any of such agreements may be limited by applicable laws and public policy.
u. No Conflicts. None of the offering, issuance and sale by the Partnership of the Placement Units to be issued and sold by the
Partnership, the execution, delivery and performance of this Agreement by the StoneMor Parties that are parties hereto, the consummation of the transactions contemplated hereby, and the use of proceeds from the sale of the Placement Units as
described in the Prospectus under the caption Use of Proceeds (i) conflicts or will conflict with or constitutes or will constitute a violation of the agreement of limited partnership, limited liability company agreement,
certificate or articles of incorporation, certificate of limited partnership or certificate of formation or bylaws or other organizational documents of any of the Partnership Entities, (ii) conflicts or will conflict with or constitutes or will
constitute a breach or violation of, or a default under (or an event which, with notice or lapse of time or both, would constitute such a default), any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to
which any of the Partnership Entities is a party or by which any of them or any of their respective properties may be bound, (iii) violates or will violate any statute, law or regulation generally applicable to the operation of cemeteries and
funeral homes or any order, judgment, decree or injunction of any court or governmental agency or body directed to any of the Partnership Entities or any of their properties in a proceeding to which any of them or their property is or was a party,
or (iv) results or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Partnership Entities (other than as described in the Registration Statement and the Prospectus or liens
created pursuant to the Credit Facility), which conflicts, breaches, violations, defaults or liens, in the case of clauses (ii), (iii) or (iv), would have, individually or in the aggregate, a Material Adverse Effect.
v. No Consents. Except (i) for the registration of the issuance or resale, as applicable, of the Placement Units under the
Securities Act, (ii) for such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and distribution of the Placement
Units by the Agents, (iii) for such consents that have been, or prior to each Applicable Time will be, obtained, (iv) for such consents that, if not obtained, would not, individually or in the aggregate, have a Material Adverse Effect or a
material adverse effect on the ability of the Partnership Entities to consummate the transactions contemplated by this Agreement, and (v) as disclosed in the Registration Statement and the Prospectus, no consent, approval, authorization or
order of, or filing or registration with, any court or governmental agency or body having jurisdiction over the Partnership Entities or any of their respective properties is required in connection with the offering, issuance and sale by the
Partnership of the Placement Units or in connection with the execution, delivery and performance of this Agreement by the StoneMor Parties or the consummation of the transactions contemplated hereby.
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w. No Default. None of the Partnership Entities (i) is in violation of its
certificate or agreement of limited partnership, limited liability company agreement, certificate or articles of incorporation, certificate of limited partnership or certificate of formation, or bylaws or other organizational documents, (ii) is
in default, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) is in violation of any law, statute, ordinance, administrative or governmental rule or
regulation generally applicable to the operation of cemeteries and funeral homes or of any order, judgment, decree or injunction of any court or governmental agency or body having jurisdiction over it, which default or violation in the case of
clause (ii) or (iii), would, if continued, have a Material Adverse Effect, or could materially impair the ability of any of the Partnership Entities to perform their obligations under this Agreement. To the knowledge of the StoneMor Parties, no
third party to any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which any of the Partnership Entities is a party or by which any of them is bound or to which any of their properties is subject, is in default
under any such agreement, which default would, if continued, have a Material Adverse Effect.
x. Conformity to Description of
Units. The Placement Units, when issued and delivered in accordance with the terms of the Partnership Agreement against payment therefor as provided herein, will conform in all material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus.
y. No Material Adverse Change. No Partnership Entity has sustained, since the date of
the latest audited financial statements included or incorporated by reference in each of the Registration Statement and the Prospectus, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action, order, investigation or decree, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus; and, since such date, there has not been
any material change in the capitalization or long-term debt of any Partnership Entity or any material adverse change, or any development involving, or which may reasonably be expected to involve, singly or in the aggregate, a prospective material
adverse change in or affecting the general affairs, management, consolidated financial position, stockholders equity, partners equity, members equity, results of operations, business or prospects of the Partnership Entities, taken
as a whole, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus. Since the date of the latest audited financial statements included or incorporated by reference in each of the Registration Statement and the
Prospectus, none of the Partnership Entities has incurred any liability or obligation, direct, indirect or contingent, or entered into any transactions, not in the ordinary course of business, that, singly or in the aggregate, is material to the
Partnership Entities, taken as a whole otherwise than as set forth or contemplated in the Registration Statement and the Prospectus.
z.
No Labor Dispute. Except as disclosed in the Registration Statement and the Prospectus, no labor dispute with the employees of any Partnership Entity exists or, to the knowledge of each StoneMor Party, is imminent or threatened that is
reasonably likely to result in a Material Adverse Effect.
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aa. Legal Proceedings or Contracts to be Described or Filed. There are no legal or
governmental proceedings pending or, to the knowledge of the StoneMor Parties, threatened against any of the Partnership Entities, or to which any of the Partnership Entities is a party, or to which any of their respective properties is subject,
that are required to be described in the Registration Statement or the Prospectus and are not described as required, which would result in a Material Adverse Effect, or which would materially and adversely affect the consummation of the transactions
contemplated in this Agreement; and there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits that have not been described
or filed as required.
bb. Market Stabilization. None of the Partnership Entities, or to the knowledge of the StoneMor Parties,
any of their affiliates, has taken, nor will any of the Partnership Entities or, to the knowledge of the StoneMor Parties, any of their affiliates will take, directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of the Placement Units.
cc. Permits. Each of the Partnership Entities has, or at each Applicable Time will have, such permits, consents, licenses, franchises,
certificates and authorizations of governmental or regulatory authorities (permits) as are necessary to own its properties and to conduct its business in the manner described in the Registration Statement and the Prospectus,
subject to such qualifications as may be set forth in the Registration Statement and the Prospectus and except for such permits which, if not obtained, would not, individually or in the aggregate, have a Material Adverse Effect; except as set forth
in the Prospectus, each of the Partnership Entities has, or at each Applicable Time will have, fulfilled and performed all its material obligations with respect to such permits which are or will be due to have been fulfilled and performed by such
date and no event has occurred that would prevent the permits from being renewed or reissued or which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any impairment of the rights of the holder of
any such permit, except for such non-renewals, non-issues, revocations, terminations and impairments that would not, individually or in the aggregate, have a Material Adverse Effect; and, except as described in the Registration Statement and the
Prospectus, none of such permits contains, or at each Applicable Time will contain, any restriction that is materially burdensome to the Partnership Entities considered as a whole.
dd. Title to Properties. At each Applicable Time, the Operating Company and the Operating Subsidiaries will have good and marketable
title to all real property and good title to all personal property described in the Registration Statement and the Prospectus to be owned by the Operating Company and the Operating Subsidiaries, in each case free and clear of all liens, claims,
security interests and other encumbrances except (i) as described, and subject to the limitations contained, in the Registration Statement and the Prospectus, (ii) that arise under the Credit Facility and (iii) as do not materially
affect the value of all such properties taken as a whole and do not materially interfere with the use of such properties taken as a whole as they have been used in the past and are proposed to be used in the future as described in the Registration
Statement and the Prospectus; provided that, with respect to any real property and
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buildings held under lease by the Operating Company and the Operating Subsidiaries, such real property and buildings are held under valid and subsisting and enforceable leases with such
exceptions as do not materially interfere with the use of the properties of the Partnership Entities taken as a whole as they have been used in the past as described in the Registration Statement and the Prospectus and are proposed to be used in the
future as described in the Registration Statement and the Prospectus.
ee. Investment Company. None of the Partnership Entities is
now, and after the sale of the Placement Units to be sold by the Partnership hereunder and the application of the Net Proceeds from such sale as described in the Prospectus under the caption Use of Proceeds will be an investment
company or a company controlled by an investment company within the meaning of the Investment Company Act of 1940, as amended.
ff. Environmental Compliance. At each Applicable Time, the Partnership Entities (i) are in compliance with any and all applicable
federal, state and local laws and regulations relating to the protection of human health and safety and the environment or imposing liability or standards of conduct concerning any Hazardous Materials (as defined below (Environmental
Laws), (ii) have received all permits required of them under applicable Environmental Laws to conduct their respective businesses, (iii) are in compliance with all terms and conditions of any such permits and (iv) do not
have any liability in connection with the release into the environment of any Hazardous Material, except where such noncompliance with Environmental Laws, failure to receive required permits, failure to comply with the terms and conditions of such
permits or liability would not, individually or in the aggregate, have a Material Adverse Effect. The term Hazardous Material means (A) any hazardous substance as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, (B) any hazardous waste as defined in the Resource Conservation and Recovery Act, as amended, (C) any petroleum or petroleum product, (D) any polychlorinated
biphenyl and (E) any pollutant or contaminant or hazardous, dangerous or toxic chemical, material, waste or substance regulated under or within the meaning of any other Environmental Law.
gg. Accounting Controls. The Partnership and its consolidated subsidiaries maintain a system of internal control over financial
reporting (as such term is defined in Rules 13a-15 and 15d-15 under the Exchange Act). Except as described in the Registration Statement and the Prospectus, since the end of the Partnerships most recent audited fiscal year, there has
been (I) no material weakness in the Partnerships internal control over financial reporting (whether or not remediated) and (II) no change in the Partnerships internal control over financial reporting that has materially affected,
or is reasonably likely to materially affect, the Partnerships internal control over financial reporting.
hh. Disclosure
Controls. The Partnership and its consolidated subsidiaries employ disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-15 under the Exchange Act) that are designed to ensure that information required
to be disclosed by the Partnership in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commissions rules and forms, and is accumulated and
communicated to the Partnerships management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
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ii. Compliance with the Sarbanes-Oxley Act. The Partnership Parties and, to the knowledge
of the General Partner and the Partnership, the General Partners directors and executive officers in their capacity as such are each in compliance in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 (the
Sarbanes-Oxley Act) and the rules and regulations promulgated in connection therewith.
jj. Certain Relationships
and Related Transactions. No relationship, direct or indirect, exists between or among any Partnership Entity on the one hand, and the directors, officers, securityholders, customers or suppliers of any Partnership Entity on the other hand that
is required to be described in the Registration Statement and the Prospectus and is not so disclosed. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees or other
indebtedness by any Partnership Entity to or for the benefit of any of the officers or directors of any Partnership Entity or their respective family members.
kk. Pending Proceedings and Examinations. The Registration Statement is not the subject of a pending proceeding or examination under
Section 8(d) or 8(e) of the Securities Act, and the Partnership is not the subject of a pending proceeding under Section 8A of the Securities Act in connection with the offering of the Placement Units.
ll. Tax Returns. Each of the Partnership Entities has filed (or has obtained extensions with respect to) all material federal, state
and local income and franchise tax returns required to be filed through the date of this Agreement, which returns are correct and complete in all material respects, and has timely paid all taxes due thereon, other than those (i) that are being
contested in good faith and for which adequate reserves have been established in accordance with generally accepted accounting principles or (ii) that, if not paid, would not have a Material Adverse Effect.
mm. Insurance. The Partnership Entities maintain insurance covering their properties, operations, personnel and businesses against
such losses and risks and in such amounts as is reasonably adequate for the conduct of their respective businesses and the value of their respective properties and as is customary for companies engaged in similar businesses in similar industries.
None of the Partnership Entities has received notice from any insurer or agent of such insurer that substantial capital improvements or other expenditures will have to be made in order to continue such insurance (including after giving effect to the
Transactions), and all such insurance is outstanding and duly in force on the date hereof and will be outstanding and duly in force on each Applicable Time.
nn. Statistical and Market-Related Data. Any statistical and market-related data included in the Registration Statement and the
Prospectus are based on or derived from sources that the Partnership believes to be reliable and accurate in all material respects.
oo.
Foreign Corrupt Practices Act, Etc. No Partnership Entity, nor to the knowledge of the Partnership any director, officer, agent, employee, affiliate or other person associated with or acting on behalf of any Partnership Entity, has used any
partnership, limited liability company or corporate funds for any unlawful contribution, gift, entertainment or other
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unlawful expense relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from partnership, limited liability
company or corporate funds; violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
pp. Money Laundering Laws. The operations of the Partnership are and have been conducted at all times in material compliance with
applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Partnership with respect to the Money Laundering Laws is pending or, to the best knowledge of the General Partner and the Partnership, threatened.
qq. OFAC. Neither the Partnership nor, to the knowledge of the Partnership, any director, officer, agent, employee, affiliate or
person acting on behalf of the Partnership is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC); and the Partnership will not directly or indirectly
use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
rr. Adequacy of Books and Records. Each Partnership Party makes and keeps accurate books and
records in all material respects.
ss. XBRL. The interactive data in eXtensible Business Reporting Language incorporated by
reference in the Registration Statement fairly presents in all material respects the information called for and has been prepared in accordance with the Commissions rules and guidelines applicable thereto in all material respects.
tt. Accuracy of Disclosure. The statements in the Prospectus under the captions U.S. Federal Income Tax Considerations and
Material U.S. Federal Income Tax Consequences, insofar as such statements purport to describe the provisions of the laws and documents referred to therein, are accurate in all material respects.
uu. Officers Certificates. Any certificate signed by any officer of the General Partner on behalf of the Partnership delivered
to the Agents or to counsel for the Agents shall be deemed a representation and warranty by the Partnership to each Agent as to the matters covered thereby.
7. Covenants of the Partnership. The Partnership covenants and agrees with each Agent that:
a. Registration Statement Amendments. After the date of this Agreement and during any period in which a prospectus relating to any
Placement Units is required to be delivered by the Agents under the Securities Act (including in circumstances
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where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) (the Prospectus Delivery Period) (i) the Partnership will notify the Agents promptly
of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference or amendments not related to any Placement, has been filed with the Commission and/or has become effective or any subsequent
supplement to the Prospectus has been filed and of any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus related to the Placement or for additional information related to the Placement,
(ii) the Partnership will prepare and file with the Commission, promptly upon an Agents request, any amendments or supplements to the Registration Statement or Prospectus that, in such Agents reasonable opinion, may be necessary or
advisable in connection with the distribution of the Placement Units by such Agent (provided, however, that the failure of an Agent to make such request shall not relieve the Partnership of any obligation or liability hereunder, or affect the
Agents right to rely on the representations and warranties made by the Partnership in this Agreement and provided, further, that the only remedy the Agents shall have with respect to the failure to make such filing shall be to cease making
sales under this Agreement until such amendment or supplement is filed); (iii) the Partnership will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Units unless a copy thereof has been
submitted to the Agents within a reasonable period of time before the filing and the Agents have not reasonably objected thereto (provided, however, that (A) the failure of the Agents to make such objection shall not relieve the
Partnership of any obligation or liability hereunder, or affect the Agents right to rely on the representations and warranties made by the Partnership in this Agreement and (B) the Partnership has no obligation to provide the Agents any
advance copy of such filing or to provide the Agents an opportunity to object to such filing if the filing does not name the Agents or does not relate to the transaction herein provided; and provided, further, that the only remedy the Agents shall
have with respect to the failure by the Partnership to provide the Agents with such copy shall be to cease making sales under this Agreement) and the Partnership will furnish to the Agents at the time of filing thereof a copy of any document that
upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via EDGAR; and (iv) the Partnership will cause each amendment or supplement to the Prospectus to be filed
with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of the Securities Act or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required pursuant to the Exchange
Act, within the time period prescribed (the determination to file or not file any amendment or supplement with the Commission under this Section 7(a), based on the Partnerships reasonable opinion or reasonable objections, shall be
made exclusively by the Partnership).
b. Notice of Commission Stop Orders. The Partnership will advise the Agents, promptly after
it receives notice or obtains knowledge thereof, of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Placement Units for
offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if
such a stop order should be issued. The Partnership will advise the Agents promptly after it receives any request by the
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Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any Issuer Free Writing Prospectus or for additional information related to the
offering of the Placement Units or for additional information related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
c. Delivery of Prospectus; Subsequent Changes. During the Prospectus Delivery Period, the Partnership will file on or before their
respective due dates all reports and any definitive proxy or information statements required to be filed by the Partnership with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any other provision of or under the Exchange Act. If the
Partnership has omitted any information from the Registration Statement pursuant to Rule 430A under the Securities Act, it will use its commercially reasonable efforts to comply with the provisions of and make all requisite filings with the
Commission pursuant to said Rule 430A and to notify the Agents promptly of all such filings. If during the Prospectus Delivery Period any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such Prospectus Delivery Period it is necessary to amend or
supplement the Registration Statement or Prospectus to comply with the Securities Act, the Partnership will promptly notify the Agents to suspend the offering of Placement Units during such period and the Partnership will promptly amend or
supplement the Registration Statement or Prospectus (at the expense of the Partnership) so as to correct such statement or omission or effect such compliance; provided, however, that the Partnership may delay the filing of any amendment or
supplement, if in the judgment of the Partnership, it is in the best interest of the Partnership.
d. Listing of Placement Units.
During the Prospectus Delivery Period, the Partnership will use its commercially reasonable efforts to cause the Placement Units to be listed on the Exchange and to qualify the Placement Units for sale under the securities laws of such jurisdictions
in the United States as the Agents reasonably designate and to continue such qualifications in effect so long as required for the distribution of the Placement Units; provided, however, that the Partnership shall not be required in connection
therewith to qualify as a foreign corporation or dealer in securities or file a general consent to service of process in any jurisdiction.
e. Delivery of Registration Statement and Prospectus. The Partnership will furnish to the Agents and their counsel (at the reasonable
expense of the Partnership) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the Registration Statement or Prospectus that are filed with the
Commission during the Prospectus Delivery Period (including all documents filed with the Commission during such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and in such quantities as
the Agents may from time to time reasonably request and, at the Agents request, will also furnish copies of the Prospectus to each exchange or market on which sales of the Placement Units may be made; provided, however, that the
Partnership shall not be required to furnish any document (other than the Prospectus) to the Agents to the extent such document is available on EDGAR.
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f. Earnings Statement. The Partnership will make generally available to its security
holders as soon as practicable, but in any event not later than 15 months after the end of the Partnerships current fiscal quarter, an earnings statement covering a 12-month period that satisfies the provisions of Section 11(a) and Rule
158 of the Securities Act.
g. Use of Proceeds. The Partnership will use the Net Proceeds as described in the Prospectus in the
section entitled Use of Proceeds.
h. Notice of Other Sales. Without the prior written consent of the Agents, the
Partnership will not, directly or indirectly, offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Units (other than the Placement Units offered pursuant to this Agreement) or securities convertible into
or exchangeable for Common Units, warrants or any rights to purchase or acquire, Common Units during the period beginning on the date on which any Placement Notice is delivered to an Agent hereunder and ending on the third (3rd) Trading Day
immediately following the final Settlement Date with respect to Placement Units sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended prior to the sale of all Placement Units covered by a Placement
Notice, the date of such suspension or termination); and will not directly or indirectly in any other at-the-market or continuous equity transaction offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of
any Common Units (other than the Placement Units offered pursuant to this Agreement) or securities convertible into or exchangeable for Common Units, warrants or any rights to purchase or acquire, Common Units prior to the termination of this
Agreement; provided, however, that such restrictions will not be required in connection with the Partnerships issuance or sale of (i) Common Units, options to purchase Common Units, phantom units, restricted units, unit
appreciation rights, distribution equivalent rights, or other rights, or Common Units issuable upon the exercise of options, the exercise of unit appreciation rights or the settlement of phantom units or other rights pursuant to any employee or
director option or benefits plan, unit ownership plan or distribution reinvestment plan or other equity incentive plan of the Partnership whether now in effect or hereafter implemented; (ii) Common Units issuable upon conversion of securities
or the exercise of warrants, options or other rights in effect or outstanding, and disclosed in filings by the Partnership available on EDGAR or otherwise in writing to the Agents, (iii) Common Units issued to sellers of assets or entities in
connection with acquisitions by the Partnership Entities, (iv) Common Units issued in lieu of cash distributions on the Common Units issued and sold pursuant to the Common Unit Purchase Agreement, dated as of May 19, 2014, by and between
the Partnership and American Cemeteries Infrastructure Investors, LLC and (v) Common Units, or securities convertible into or exercisable for Common Units, offered and sold in a privately negotiated transaction to vendors, customers, strategic
partners or potential strategic partners or other investors conducted in a manner so as not to be integrated with the offering of Common Units hereby.
i. Change of Circumstances. The Partnership will, at any time during the pendency of a Placement Notice advise the Agents promptly
after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other document required to be provided to the Agents pursuant to
this Agreement.
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j. Due Diligence Cooperation. During the term of this Agreement, the Partnership will
cooperate with any reasonable due diligence review conducted by the Agents or their representatives in connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents and
senior corporate officers, during regular business hours and at the Partnerships principal offices, as the Agents may reasonably request.
k. Required Filings Relating to Placement of Placement Units. The Partnership agrees that on such dates as the Securities Act shall
require, the Partnership will (i) file a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities Act (each and every filing under Rule 424(b), a Filing Date), which
prospectus supplement will set forth, within the relevant period, the amount of Placement Units sold through each Agent, the Net Proceeds to the Partnership and the compensation payable by the Partnership to each Agent with respect to such Placement
Units, and (ii) deliver such number of copies of each such prospectus supplement to each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange or market.
l. Representation Dates; Certificate. Each time during the term of this Agreement that the Partnership:
(i) amends or supplements (other than a prospectus supplement relating solely to an offering of securities other than the Placement Units) the
Registration Statement or the Prospectus relating to the Placement Units (other than a prospectus supplement filed in accordance with Section 7(k) of this Agreement) by means of a post-effective amendment, sticker, or supplement but not by
means of incorporation of documents by reference into the Registration Statement or the Prospectus relating to the Placement Units;
(ii)
files an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A containing amended financial information or a material amendment to the previously filed Form 10-K);
(iii) files its quarterly reports on Form 10-Q under the Exchange Act; or
(iv) files a current report on Form 8-K containing amended financial statements (other than information furnished pursuant to
Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards
No. 144) under the Exchange Act;
(Each date of filing of one or more of the documents referred to in clauses (i) through (iv) shall be a
Representation Date.)
the Partnership shall furnish the Agents (but in the case of clause (iv) above only if the Agents determine
that the information contained in such Form 8-K is material) with a certificate, in the form attached hereto as Exhibit 7(1) within five (5) Trading Days. The requirement to provide a certificate under this Section 7(1) shall
be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which
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waiver shall continue until the earlier to occur of the date the Partnership delivers a Placement Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and
the next occurring Representation Date on which the Partnership files its annual report on Form 10-K. Notwithstanding the foregoing, (i) upon the delivery of the first Placement Notice hereunder and (ii) if the Partnership subsequently
decides to sell Placement Units following a Representation Date when the Partnership relied on such waiver and did not provide the Agents with a certificate under this Section 7(1), then before an Agent sells any Placement Units, the
Partnership shall provide the Agents with a certificate, in the form attached hereto as Exhibit 7(1), dated the date of the Placement Notice.
m. Legal Opinions. On or prior to the date of the first Placement Notice given hereunder, the Partnership shall cause to be furnished
to the Agents written opinions of each of Vinson & Elkins LLP and Blank Rome LLP (Partnership Counsel) and a negative assurance letter of Vinson & Elkins LLP, or other counsel reasonably satisfactory to the
Agents, in the form attached hereto as Exhibit 7(m)(1) and 7(m)(2), respectively. Thereafter, within five (5) Trading Days of each Representation Date with respect to which the Partnership is obligated to deliver a certificate in the form
attached hereto as Exhibit 7(l) for which no waiver is applicable, and not more than once per calendar quarter, the Partnership shall cause to be furnished to the Agents a written letter of Vinson & Elkins LLP providing negative assurance
with respect to matters disclosed in the Prospectus as of the Applicable Time; provided that, in lieu of such negative assurance for subsequent periodic filings under the Exchange Act, counsel may furnish the Agents with a letter (a
Reliance Letter) to the effect that the Agents may rely on the negative assurance letter previously delivered under this Section 7(m) to the same extent as if it were dated the date of such letter (except that statements in
such prior letter shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented as of the date of the Reliance Letter)
n. Comfort Letter. On or prior to the date of the first Placement Notice given hereunder and within five (5) Trading Days after
each subsequent Representation Date, other than pursuant to Section 7(l)(i) or Section (7)(l)(iii), the Partnership shall cause its independent accountants to furnish the Agents a letter (the Comfort Letter),
dated the date the Comfort Letter is delivered, which shall meet the requirements set forth in this Section 7(n); provided, that if requested by the Agents, the Partnership shall cause a Comfort Letter to be furnished to the Agents
within ten (10) Trading Days of such request following the date of occurrence of any restatement of the Partnerships financial statements. The Comfort Letter from the Partnerships independent accountants shall be in a form and
substance reasonably satisfactory to the Agents, (i) confirming that they are an independent public accounting firm within the meaning of the Securities Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily covered by accountants comfort letters to underwriters in connection with registered public offerings (the first such letter, the Initial Comfort
Letter) and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement
and the Prospectus, as amended and supplemented to the date of such letter.
o. Market Activities. The Partnership will not,
directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or would reasonably be expected to
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constitute, the stabilization or manipulation of the price of any security of the Partnership to facilitate the sale or resale of Common Units or (ii) sell, bid for, or purchase Common Units
in violation of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Units other than the Agents; provided, however, that Rule 10b5-1 plans related to Common Units (10b5-1 Plans), and transactions
effected under 10b5-1 Plans, including 10b5-1 Plans that are in effect as of the date hereof or to be entered into in the future shall not be considered an action or activity prohibited by this Section 7(o).
p. Investment Company Act. The Partnership will conduct its affairs in such a manner so as to reasonably ensure that neither it nor
the Operating Subsidiaries will be or become, at any time prior to the termination of this Agreement, an investment company, as such term is defined in the Investment Company Act.
q. No Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Partnership and the Agents in their
capacity as agent hereunder pursuant to Section 23, neither the Agents nor the Partnership (including its agents and representatives, other than the Agents in their capacity as such) will make, use, prepare, authorize, approve or refer
to any written communication (as defined in Rule 405), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement Units hereunder.
r. Sarbanes-Oxley Act. The Partnership will maintain and keep accurate books and records reflecting its assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and including those policies and
procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Partnership, (ii) provide reasonable assurance that transactions are
recorded as necessary to permit the preparation of the Partnerships consolidated financial statements in accordance with GAAP, (iii) that receipts and expenditures of the Partnership are being made only in accordance with
managements and the Partnerships directors authorization, and (iv) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Partnerships assets that
could have a material effect on its financial statements. The Partnership will maintain such controls and other procedures, including, without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable
regulations thereunder that are designed to ensure that information required to be disclosed by the Partnership in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods
specified in the Commissions rules and forms, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Partnership in the reports that it files or submits under the Exchange Act
is accumulated and communicated to the Partnerships management, including its principal executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required
disclosure and to ensure that material information relating to the Partnership or the Operating Subsidiaries is made known to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
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8. Representations and Covenants of the Agents. Each Agent, severally and not jointly,
represents and warrants that it is duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and regulations of each state in which the Placement Units will be offered and sold, except such states in which such
Agent is exempt from registration or such registration is not otherwise required. Each Agent shall continue, for the term of this Agreement, to be duly registered as a broker-dealer under FINRA, the Exchange Act and the applicable statutes and
regulations of each state in which the Placement Units will be offered and sold, except such states in which such Agent is exempt from registration or such registration is not otherwise required, during the term of this Agreement. Each Agent shall
comply with all applicable law and regulations, including but not limited to Regulation M, in connection with the transactions contemplated by this Agreement, including the issuance and sale through such Agent of the Placement Units.
9. Payment of Expenses. The Partnership will pay all expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, filing, including any fees required by the Commission, and printing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment and supplement thereto and
each Free Writing Prospectus, in such number as the Agents shall deem reasonably necessary, (ii) the printing and delivery to the Agents of this Agreement and such other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Placement Units, (iii) the preparation, issuance and delivery of the certificates, if any, for the Placement Units to the Agents, including any unit or other transfer taxes and any capital duties, stamp duties
or other duties or taxes payable upon the sale, issuance or delivery of the Placement Units to the Agents, (iv) the reasonable fees and disbursements of the counsel, accountants and other advisors to the Partnership, (v) the fees and
disbursements of counsel to the Agents (which shall be one outside counsel for all Agents unless otherwise agreed by the Partnership) incurred in connection with the transactions contemplated by this Agreement in an amount not to exceed
(A) $50,000 for such incurred on and prior to the date hereof, (B) $15,000 for such incurred with respect to each Representation Date relating to the filing of a Form 10-K and (C) $5,000 for such incurred with respect to each
Representation Date relating to the filing of a Form 10-Q, (vi) the fees and expenses of the transfer agent and registrar for the Common Units, (vii) the filing fees incident to any review by FINRA of the terms of the sale of the Placement
Units, and (viii) the fees and expenses incurred in connection with the listing of the Placement Units on the Exchange.
10.
Conditions to the Agents Obligations. The obligations of each Agent hereunder with respect to a Placement will be subject to the continuing accuracy and completeness of the representations and warranties made by the Partnership herein,
to the due performance by the Partnership of its obligations hereunder, to the completion by such Agent of a due diligence review satisfactory to it in its reasonable judgment, and to the continuing satisfaction (or waiver by such Agent in its sole
discretion) of the following additional conditions:
a. Registration Statement Effective. The Registration Statement shall have
become effective and shall be available for the sale of all Placement Units contemplated to be issued by any Placement Notice.
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b. No Material Notices. None of the following events shall have occurred and be
continuing: (i) receipt by the Partnership of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to
which would require any post-effective amendments or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Partnership of any notification with respect to the suspension of the qualification or exemption from qualification of any
of the Placement Units for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event that requires the making of any changes in the Registration Statement, the Prospectus
or documents so that, in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not
misleading and, that in the case of the Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
c. No Misstatement or Material Omission. Such Agent shall not have
advised the Partnership that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in such Agents reasonable opinion based on advice of counsel is material, or omits to
state a fact that in such Agents reasonable opinion based on advice of counsel is material and is required to be stated therein or is necessary to make the statements therein not misleading.
d. Material Changes. Except as contemplated in the Prospectus, or disclosed in the Partnerships reports filed with the
Commission, there shall not have been any Material Adverse Effect, or any development that would reasonably be expected to cause a Material Adverse Effect.
e. Legal Opinions. Such Agent shall have received the opinions and negative assurances of Partnership Counsel, as applicable, required
to be delivered pursuant Section 7(m) on or before the date on which such delivery of such opinions are required pursuant to Section 7(m).
f. Comfort Letter. Such Agent shall have received the Comfort Letter required to be delivered pursuant Section 7(n) on or
before the date on which such delivery of such letter is required pursuant to Section 7(n).
g. Representation
Certificate. Such Agent shall have received the certificate required to be delivered pursuant to Section 7(1) on or before the date on which delivery of such certificate is required pursuant to Section 7(1).
h. No Suspension. Trading in the Common Units shall not have been suspended on the Exchange and the Common Units shall not have been
delisted from the Exchange.
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i. Other Materials. On each date on which the Partnership is required to deliver a
certificate pursuant to Section 7(1), the Partnership shall have furnished to such Agent such appropriate further information, certificates and documents as such Agent may reasonably request and which are usually and customarily
furnished by an issuer of securities in connection with a securities offering. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof. The Partnership will furnish such Agent with such conformed
copies of such opinions, certificates, letters and other documents as such Agent shall reasonably request.
j. Securities Act Filings
Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by
Rule 424.
k. Approval for Listing. The Placement Units shall either have been approved for listing on the Exchange, subject only
to notice of issuance, or the Partnership shall have filed an application for listing of the Placement Units on the Exchange at, or prior to, the issuance of any Placement Notice.
l. No Termination Event. There shall not have occurred any event that would permit such Agent to terminate this Agreement pursuant to
Section 13(a).
11. Indemnification and Contribution.
(a) Partnership Indemnification. The Partnership agrees to indemnify and hold harmless each Agent, its partners, members, directors,
officers, employees and agents and each person, if any, who controls such Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim and damage whatsoever and any reasonable and documented expense, as incurred, joint or
several, to the extent arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any related Issuer Free Writing Prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim and damage whatsoever and any reasonable and documented expense, as incurred, joint or
several, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided that (subject to Section 11(d) below) any such settlement is effected with the written consent of the Partnership, which consent shall not unreasonably be delayed or
withheld; and
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(iii) against any and all documented expense whatsoever, as incurred (including the reasonable
fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above,
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with written information furnished to the Partnership by such Agent expressly for use in the Registration Statement (or any amendment
thereto), or in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Agent
Indemnification. Each Agent agrees, severally and not jointly, to indemnify and hold harmless the Partnership, the directors of the General Partner, each of the officers of the General Partner who signed the Registration Statement and each
person, if any, who controls the Partnership, and each person, if any, who (i) controls the Partnership within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is controlled by or is under
common control with the Partnership against any and all loss, liability, claim and damage whatsoever and any reasonable and documented expense, in each case as described in the indemnity contained in Section 11(a), as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto) or in any related Issuer Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with information relating to such Agent and furnished to the Partnership in writing by such Agent expressly for use therein.
(c) Procedure. Any party that proposes to assert the right to be indemnified under this Section 11 will, promptly after
receipt of notice of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under this Section 11, notify each such indemnifying party of the commencement of such
action, enclosing a copy of all papers served, but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might have to any indemnified party otherwise than under this
Section 11 and (ii) any liability that it may have to any indemnified party under the foregoing provision of this Section 11 unless, and only to the extent that, such omission results in the forfeiture of substantive
rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that
it elects by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified party, jointly with any other indemnifying party similarly notified, to assume the defense of the
action, with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to the indemnified party of its
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election to assume the defense, the indemnifying party will not be liable to the indemnified party for any legal or other expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at
the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel)
that there may be legal defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party, (3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of the indemnified party) or (4) the indemnifying party has
not in fact employed counsel to assume the defense of such action within a reasonable time after receiving notice of the commencement of the action, in each of which cases the reasonable fees, disbursements and other charges of counsel will be at
the expense of the indemnifying party or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements
and other charges of more than one separate firm admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements and other charges will be reimbursed by the indemnifying party
promptly after the indemnifying party receives a written invoice relating to fees, disbursements and other charges in reasonable detail. An indemnifying party will not, in any event, be liable for any settlement of any action or claim effected
without its written consent. No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding relating to
the matters contemplated by this Section 11 (whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (2) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in
the foregoing paragraphs of this Section 11 is applicable in accordance with its terms but for any reason is held to be unavailable from the Partnership or an Agent, the Partnership and such Agent will contribute to the total losses,
claims, liabilities, expenses and damages (including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted, but after deducting
any contribution received by the Partnership from persons other than such Agent, such as persons who control the Partnership within the meaning of the Securities Act or the Exchange Act, officers of the Partnership who signed the Registration
Statement and directors of the Partnership, who also may be liable for contribution) to which the Partnership and an Agent may be subject in such proportion as shall be appropriate to reflect the relative benefits received by the Partnership on the
one hand and such Agent on the other hand. The relative benefits received by the Partnership on the one hand and each
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Agent on the other hand shall be deemed to be in the same proportion as the total Net Proceeds from the sale of the Placement Units (before deducting expenses) received by the Partnership bear to
the total compensation received by such Agent (before deducting expenses) from the sale of Placement Units on behalf of the Partnership. If, but only if, the allocation provided by the foregoing sentence is not permitted by applicable law, the
allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative benefits referred to in the foregoing sentence but also the relative fault of the Partnership, on the one hand, and such Agent, on the
other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Partnership or the
applicable Agent, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Partnership and the Agents agree that it would not be just and equitable if
contributions pursuant to this Section 11(d) were to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred to above in this Section 11(d) shall be deemed to include, for the purpose of this Section 11(d), any
legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim to the extent consistent with Section 11(c) hereof. Notwithstanding the foregoing provisions of
this Section 11(d), no Agent shall not be required to contribute any amount in excess of the commissions received by it under this Agreement and no person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11(d), any person who controls a party to this Agreement
within the meaning of the Securities Act or the Exchange Act, and any officers, directors, partners, employees or agents of each Agent, will have the same rights to contribution as that party, and each officer and director of the Partnership who
signed the Registration Statement will have the same rights to contribution as the Partnership, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of commencement of any action against
such party in respect of which a claim for contribution may be made under this Section 11(d), will notify any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party or
parties from whom contribution may be sought from any other obligation it or they may have under this Section 11(d) except to the extent that the failure to so notify such other party materially prejudiced the substantive rights or
defenses of the party from whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of Section 11(c) hereof, no party will be liable for contribution with respect to any action or claim settled
without its written consent if such consent is required pursuant to Section 11(c) hereof.
12. Representations and
Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 11 of this Agreement and all representations and warranties of the Partnership herein or in certificates delivered pursuant hereto shall survive,
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as of their respective dates, regardless of (i) any investigation made by or on behalf of any Agent, any controlling persons, or the Partnership (or any of their respective officers,
directors or controlling persons), (ii) delivery and acceptance of the Placement Units and payment therefor or (iii) any termination of this Agreement.
13. Termination.
a.
The Agents may terminate this Agreement, by notice to the Partnership, as hereinafter specified at any time (1) if there has been, since the time of execution of this Agreement or since the date as of which information is given in the
Prospectus, any Material Adverse Effect, or any development that is reasonably likely to have a Material Adverse Effect or, in the sole judgment of the Agents, is material and adverse and makes it impractical or inadvisable to market the Placement
Units or to enforce contracts for the sale of the Placement Units, (2) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the
judgment of the Agents, impracticable or inadvisable to market the Placement Units or to enforce contracts for the sale of the Placement Units, (3) if trading in the Common Units has been suspended or limited by the Commission or the Exchange,
or if trading generally on the Exchange has been suspended or limited, or minimum prices for trading have been fixed on the Exchange, (4) if any suspension of trading of any securities of the Partnership on any exchange or in the
over-the-counter market shall have occurred and be continuing, (5) if a major disruption of securities settlements or clearance services in the United States shall have occurred and be continuing, or (6) if a banking moratorium has been
declared by either U.S. Federal or New York authorities. Any such termination shall be without liability of any party to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11
(Indemnification and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall
remain in full force and effect notwithstanding such termination. If the Agents elect to terminate this Agreement as provided in this Section 13(a), the Agents shall provide the required notice as specified in Section 14
(Notices).
b. (i) The Partnership shall have the right, by giving ten (10) days notice as hereinafter specified to terminate this
Agreement in its sole discretion at any time after the date of this Agreement. (ii) If any Agent declines any commercially reasonable placement notice pursuant to Section 2 of this Agreement, then the Partnership shall have the right to
terminate this Agreement by giving written notice of termination to the Agents. Any termination pursuant to this Section 13(b)(ii) shall be effective immediately upon a delivery of a termination notice by the Partnership to the Agents. Any
termination pursuant to this Section 13(b) shall be without liability of any party to any other party except that the provisions of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution),
Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect
notwithstanding such termination.
30
c. The Agents shall have the right, by giving ten (10) days notice as hereinafter specified
to terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that the provisions of Section 9 (Payment of
Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19
(Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
d. Unless earlier terminated
pursuant to this Section 13, this Agreement shall automatically terminate upon the issuance and sale of all of the Placement Units through the Agents on the terms and subject to the conditions set forth herein except that the provisions
of Section 9 (Payment of Expenses), Section 11 (Indemnification and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury
Trial) and Section 19 (Consent to Jurisdiction) hereof shall remain in full force and effect notwithstanding such termination.
e. This Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), (c), or
(d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases be deemed to provide that Section 9 (Payment of Expenses),
Section 11 (Indemnification and Contribution), Section 12 (Representations and Agreements to Survive Delivery), Section 18 (Governing Law and Time; Waiver of Jury Trial) and Section 19 (Consent to
Jurisdiction) shall remain in full force and effect. Upon termination of this Agreement, the Partnership shall not have any liability to the Agents for any discount, commission or other compensation with respect to any Placement Units not otherwise
sold by the Agents under this Agreement.
f. Any termination of this Agreement shall be effective on the date specified in such notice of
termination; provided, however, that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agents or the Partnership, as the case may be. If such termination shall occur prior to the
Settlement Date for any sale of Placement Units, such Placement Units shall settle in accordance with the provisions of this Agreement.
14. Notices. All notices or other communications required or permitted to be given by any party to any other party pursuant to the
terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the applicable, shall be delivered to:
MLV & Co. LLC
1301
Avenue of the Americas, 43rd Floor
New York, New York 10019
Attention: Legal Department
Telephone: (212) 542-5880
Email: mlvlegal@mlvco.com
31
FBR Capital Markets & Co.
Capital Markets Department
1300 North 17th Street
Suite
1400
Arlington, VA 22209
Attention: Kathy Innis
Telephone: (212) 542-5880
Email: ecm@fbr.com
Janney
Montgomery Scott LLC
1717 Arch Street
Philadelphia, PA 19103
Attention: Legal and Compliance Department
Telephone: (215) 972-5537
Email: capitalmarketscompliance@janney.com
with a copy to:
Andrews Kurth LLP
450 Lexington Avenue, 15th Floor
New York, NY 10017
Attention:
Richard Kronthal
Telephone: (212) 850-2833
Email: richardkronthal@andrewskurth.com
and if
to the Partnership, shall be delivered to:
StoneMor Parties L.P.
311 Veterans Highway, Suite B
Levittown, PA 19056
Attention:
Sean P. McGrath
Telephone: 215-826-2800
Email:
with a copy to:
Vinson & Elkins LLP
666 Fifth Avenue
26th Floor
New York, NY 10103-0040
Attention: Brenda Lenahan
Telephone: 212-237-0133
Email:
BLenahan@velaw.com
32
Each party to this Agreement may change such address for notices by sending to the parties to
this Agreement written notice of a new address for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally, by email, or by verifiable facsimile transmission (with an original to follow) on or
before 4:30 p.m., New York City time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and
(iii) on the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid). For purposes of this Agreement, Business Day shall mean any day on which the
Exchange and commercial banks in the City of New York are open for business.
An electronic communication (Electronic
Notice) shall be deemed written notice for purposes of this Section 14 if sent to the electronic mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the
party sending Electronic Notice receives confirmation of receipt by the receiving party. Any party receiving Electronic Notice may request and shall be entitled to receive the notice on paper, in a nonelectronic form (Nonelectronic
Notice) which shall be sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
15. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Partnership and each Agent and their
respective successors and the affiliates, controlling persons, officers and directors referred to in Section 11 hereof. References to any of the parties contained in this Agreement shall be deemed to include the successors and permitted
assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or
by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party.
16. Adjustments for Unit Splits. The parties acknowledge and agree that all unit-related numbers contained in this Agreement shall be
adjusted to take into account any unit consolidation, unit split, unit distribution or similar event effected with respect to the Placement Units.
17. Entire Agreement; Amendment; Severability. This Agreement (including all schedules and exhibits attached hereto and Placement
Notices issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this
Agreement nor any term hereof may be amended except pursuant to a written instrument executed by the Partnership and each Agent. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms
and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof shall
be in accordance with the intent of the parties as reflected in this Agreement.
33
18. GOVERNING LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19. CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY
HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN
EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW.
20. Use of Information. No Agent may not use any information gained in connection with this Agreement and
the transactions contemplated by this Agreement, including due diligence, to advise any party with respect to transactions not expressly approved by the Partnership.
21. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile transmission.
22. Effect of Headings. The section and Exhibit headings herein are for convenience only and shall not affect the construction hereof.
23. Permitted Free Writing Prospectuses.
The Partnership represents, warrants and agrees that, unless it obtains the prior consent of the Agents, and each Agent represents, warrants
and agrees that, unless it obtains
34
the prior consent of the Partnership, it has not made and will not make any offer relating to the Placement Units that would constitute an Issuer Free Writing Prospectus, or that would otherwise
constitute a free writing prospectus, as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Agents or by the Partnership, as the case may be, is hereinafter referred to as
a Permitted Free Writing Prospectus. The Partnership represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an issuer free writing prospectus, as defined in Rule
433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. For the purposes of clarity, the
parties hereto agree that all free writing prospectuses, if any, listed in Exhibit 23 hereto are Permitted Free Writing Prospectuses.
24. Absence of Fiduciary Relationship. The Partnership acknowledges and agrees that:
a. each Agent is acting solely as agent in connection with the public offering of the Placement Units and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Partnership or any of its respective affiliates, unitholders (or other equity holders), creditors or employees or any
other party, on the one hand, and any Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not an Agent has advised or is advising the Partnership on
other matters, and no Agent has any obligation to the Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
b. it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions
contemplated by this Agreement;
c. no Agent has provided any legal, accounting, regulatory or tax advice with respect to the
transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
d. it is aware that each Agent and its affiliates are engaged in a broad range of transactions which may involve interests that differ from
those of the Partnership and no Agent has any obligation to disclose such interests and transactions to the Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that each Agent hereby agrees not to
engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Partnership or that would cause a breach of its covenants and obligations hereunder; and
e. it waives, to the fullest extent permitted by law, any claims it may have against any Agent for breach of fiduciary duty or alleged breach
of fiduciary duty in connection with the sale of Placement Units under this Agreement and agrees that no Agent shall have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or
to any person asserting a fiduciary duty claim on its behalf or in right of it or the Partnership, employees or creditors of Partnership,
35
other than in respect of such Agents obligations under this Agreement and to keep information provided by the Partnership to such Agent and such Agents counsel confidential to the
extent not otherwise publicly-available.
25. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
Applicable Time means the time of each sale of any Placement Units pursuant to this Agreement.
Issuer Free Writing Prospectus means any issuer free writing prospectus, as defined in Rule 433, relating to
the Placement Units that (1) is required to be filed with the Commission by the Partnership, (2) is a road show that is a written communication within the meaning of Rule 433(d)(8)(i) whether or not required to be
filed with the Commission, or (3) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Units or of the offering that does not reflect the final terms, in each case in the form filed or required
to be filed with the Commission or, if not required to be filed, in the form retained in the Partnerships records pursuant to Rule 433(g) under the Securities Act.
Rule 172, Rule 405, Rule 415, Rule 424, Rule
424(b), Rule 430B, and Rule 433 refer to such rules under the Securities Act.
[Remainder
of the page intentionally left blank]
36
If the foregoing correctly sets forth the understanding between the Partnership and the Agents,
please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Partnership and the Agents.
|
|
|
Very truly yours, |
|
STONEMOR PARTNERS L.P. |
|
By: StoneMor GP LLC, its general partner |
|
|
By: |
|
/s/ Sean P. McGrath |
|
|
Sean P. McGrath |
|
|
Chief Financial Officer and Secretary |
|
STONEMOR GP LLC |
|
|
By: |
|
/s/ Sean P. McGrath |
|
|
Sean P. McGrath |
|
|
Chief Financial Officer and Secretary |
|
STONEMOR OPERATING LLC |
|
|
By: |
|
/s/ Sean P. McGrath |
|
|
Sean P. McGrath |
|
|
Chief Financial Officer and Secretary |
37
|
|
|
|
|
|
|
CONFIRMED AND ACCEPTED as
of the date first-above written: |
|
|
|
|
MLV & CO. LLC |
|
|
|
|
|
By: |
|
/s/ Patrice McNicoll |
|
|
|
|
Name: |
|
Patrice McNicoll |
|
|
|
|
Title: |
|
Chief Executive Officer |
|
|
|
|
FBR CAPITAL MARKETS & CO. |
|
|
|
|
|
By: |
|
/s/ Tim Neuhauser |
|
|
|
|
Name: |
|
Tim Neuhauser |
|
|
|
|
Title: |
|
Executive Vice President |
|
|
|
|
JANNEY MONTGOMERY SCOTT LLC |
|
|
|
|
|
By: |
|
/s/ David Lau |
|
|
|
|
Name: |
|
David Lau |
|
|
|
|
Title: |
|
Managing Director |
38
SCHEDULE 1
FORM OF PLACEMENT NOTICE
|
|
|
From: |
|
StoneMor Partners L.P. |
|
|
To: |
|
[
] |
|
|
Attention: |
|
[
] |
|
|
Subject: |
|
At-the-Market IssuancePlacement Notice |
[Ladies and] Gentlemen:
Pursuant to the terms and subject to the conditions contained in the At-the-Market Issuance Sales Agreement between StoneMor Partners L.P., a
Delaware limited partnership (the Partnership), StoneMor GP LLC, a Delaware limited liability company, StoneMor Operating LLC, a Delaware limited liability company and FBR Capital Markets & Co. (FBR),
MLV & Co. LLC (MLV) and Janney Montgomery Scott LLC (Janney), dated November 19, 2015, the Partnership hereby requests that
[ ] sell up to
[ ] of the Partnerships Common Units, at a minimum market price of $[ ] per
Common Unit, during the time period beginning [month, day, time] and ending [month, day, time].
SCHEDULE 2
Compensation
The Partnership
shall pay to each Agent in cash, upon each sale of Placement Units pursuant to this Agreement, an amount of up to 3.0% of the gross proceeds from each sale of Placement Units, as agreed to by such Agent and the Partnership from time to time.
SCHEDULE 3
Notice Parties
The Partnership
|
|
|
Lawrence Miller |
|
|
|
|
Sean P. McGrath |
|
|
FBR Capital Markets & Co.
Janey Montgomery Scott LLC
|
|
|
Joseph Reichert |
|
|
|
|
Brian Van der Waag |
|
|
|
|
David Lau |
|
|
MLV & Co. LLC
|
|
|
Seth Appel |
|
|
|
|
Matthew Feinberg |
|
|
|
|
Ryan Loforte |
|
|
|
|
Patrice McNicoll |
|
|
|
|
Keith Pompliano |
|
|
With a copy to
SCHEDULE 4
|
|
|
|
|
Operating Subsidiary |
|
Entity Type |
|
Jurisdictions of Foreign
Qualification |
Alleghany Memorial Park LLC |
|
LLC |
|
None |
Alleghany Memorial Park Subsidiary, Inc. |
|
Corporation |
|
None |
Altavista Memorial Park LLC |
|
LLC |
|
None |
Altavista Memorial Park Subsidiary, Inc. |
|
Corporation |
|
None |
Arlington Development Company |
|
Corporation |
|
None |
Augusta Memorial Park Perpetual Care Company |
|
Corporation |
|
None |
Birchlawn Burial Park LLC |
|
LLC |
|
None |
Birchlawn Burial Park Subsidiary, Inc. |
|
Corporation |
|
None |
Bronswood Cemetery, Inc. |
|
Corporation |
|
None |
Cedar Hill Funeral Home, Inc. |
|
Corporation |
|
None |
Cemetery Investments LLC |
|
LLC |
|
None |
Cemetery Investments Subsidiary, Inc. |
|
Corporation |
|
None |
Cemetery Management Services, L.L.C. |
|
LLC |
|
None |
Cornerstone Trust Management Services LLC (formerly Cemetery Management Services of Mid Atlantic States, L.L.C.) |
|
LLC |
|
None |
Cemetery Management Services of Ohio, L.L.C. |
|
LLC |
|
Ohio |
Chapel Hill Associates, Inc. |
|
Corporation |
|
None |
Chapel Hill Funeral Home, Inc. |
|
Corporation |
|
None |
CMS West LLC |
|
LLC |
|
None |
CMS West Subsidiary LLC |
|
LLC |
|
None |
Columbia Memorial Park LLC |
|
LLC |
|
None |
Columbia Memorial Park Subsidiary, Inc. |
|
Corporation |
|
None |
Cornerstone Family Insurance Services, Inc. |
|
Corporation |
|
Alabama, Arkansas, California, Idaho, Indiana, Kentucky, Maryland, Montana, New York, North Carolina, Pennsylvania, South Carolina, Virginia |
Cornerstone Family Services of New Jersey, Inc. |
|
Corporation |
|
None |
Cornerstone Family Services of West Virginia LLC |
|
LLC |
|
None |
Cornerstone Family Services of West Virginia Subsidiary, Inc. |
|
Corporation |
|
None |
Cornerstone Funeral and Cremation Services LLC |
|
LLC |
|
Ohio |
Covenant Acquisition LLC |
|
LLC |
|
None |
Covenant Acquisition Subsidiary, Inc. |
|
Corporation |
|
None |
|
|
|
|
|
Covington Memorial Funeral Home, Inc. |
|
Corporation |
|
None |
Covington Memorial Gardens, Inc. |
|
Corporation |
|
None |
Eloise B. Kyper Funeral Home, Inc. |
|
Corporation |
|
None |
Forest Lawn Gardens, Inc. |
|
Corporation |
|
None |
Forest Lawn Memorial Chapel, Inc. |
|
Corporation |
|
None |
Forest Lawn Memory Gardens, Inc. |
|
Corporation |
|
None |
Glen Haven Memorial Park LLC |
|
LLC |
|
Maryland |
Glen Haven Memorial Park Subsidiary, Inc. |
|
Corporation |
|
None |
Henlopen Memorial Park LLC |
|
LLC |
|
None |
Henlopen Memorial Park Subsidiary LLC |
|
LLC |
|
None |
Henry Memorial Park LLC |
|
LLC |
|
None |
Henry Memorial Park Subsidiary, Inc. |
|
Corporation |
|
None |
Juniata Memorial Park LLC |
|
LLC |
|
None |
Kirk & Nice, Inc. |
|
Corporation |
|
None |
Kirk & Nice Suburban Chapel, Inc. |
|
Corporation |
|
None |
KIRIS LLC |
|
LLC |
|
None |
KIRIS Subsidiary, Inc. |
|
Corporation |
|
None |
Lakewood/Hamilton Cemetery LLC |
|
LLC |
|
None |
Lakewood/Hamilton Cemetery Subsidiary, Inc. |
|
Corporation |
|
None |
Lakewood Memory Gardens South LLC |
|
LLC |
|
None |
Lakewood Memory Gardens South Subsidiary, Inc. |
|
Corporation |
|
None |
Laurel Hill Memorial Park LLC |
|
LLC |
|
None |
Laurel Hill Memorial Park Subsidiary, Inc. |
|
Corporation |
|
None |
Laurelwood Holding Company |
|
Corporation |
|
None |
Legacy Estates, Inc. |
|
Corporation |
|
None |
Loewen [Virginia] LLC |
|
LLC |
|
None |
Loewen [Virginia] Subsidiary, Inc. |
|
Corporation |
|
None |
Lorraine Park Cemetery LLC |
|
LLC |
|
Maryland |
Lorraine Park Cemetery Subsidiary, Inc. |
|
Corporation |
|
None |
Modern Park Development LLC |
|
LLC |
|
None |
Modern Park Development Subsidiary, Inc. |
|
Corporation |
|
None |
Oak Hill Cemetery LLC |
|
LLC |
|
None |
Oak Hill Cemetery Subsidiary, Inc. |
|
Corporation |
|
None |
Osiris Holding Finance Company |
|
Corporation |
|
Pennsylvania |
Osiris Holding of Maryland LLC |
|
LLC |
|
Maryland |
Osiris Holding of Maryland Subsidiary, Inc. |
|
Corporation |
|
None |
Osiris Holding of Pennsylvania LLC |
|
LLC |
|
None |
Osiris Holding of Rhode Island LLC |
|
LLC |
|
None |
Osiris Holding of Rhode Island Subsidiary, Inc. |
|
Corporation |
|
None |
Osiris Management, Inc. |
|
Corporation |
|
None |
Osiris Telemarketing Corp. |
|
Corporation |
|
None |
Perpetual Gardens.Com, Inc. |
|
Corporation |
|
None |
Plymouth Warehouse Facilities LLC |
|
LLC |
|
Michigan |
|
|
|
|
|
Prince George Cemetery Corporation |
|
Corporation |
|
None |
PVD Acquisitions LLC |
|
LLC |
|
None |
PVD Acquisitions Subsidiary, Inc. |
|
Corporation |
|
None |
Rockbridge Memorial Gardens LLC |
|
LLC |
|
None |
Rockbridge Memorial Gardens Subsidiary Company |
|
Corporation |
|
None |
Rolling Green Memorial Park LLC |
|
LLC |
|
None |
Rose Lawn Cemeteries LLC |
|
LLC |
|
None |
Rose Lawn Cemeteries Subsidiary, Incorporated |
|
Corporation |
|
None |
Roselawn Development LLC |
|
LLC |
|
None |
Roselawn Development Subsidiary Corporation |
|
Corporation |
|
None |
Russell Memorial Cemetery LLC |
|
LLC |
|
None |
Russell Memorial Cemetery Subsidiary, Inc. |
|
Corporation |
|
None |
Shenandoah Memorial Park LLC |
|
LLC |
|
None |
Shenandoah Memorial Park Subsidiary, Inc. |
|
Corporation |
|
None |
Sierra View Memorial Park |
|
Corporation |
|
None |
Southern Memorial Sales LLC |
|
LLC |
|
None |
Southern Memorial Sales Subsidiary, Inc. |
|
Corporation |
|
None |
Springhill Memory Gardens LLC |
|
LLC |
|
None |
Springhill Memory Gardens Subsidiary, Inc. |
|
Corporation |
|
None |
Star City Memorial Sales LLC |
|
LLC |
|
None |
Star City Memorial Sales Subsidiary, Inc. |
|
Corporation |
|
None |
Stephen R. Haky Funeral Home, Inc. |
|
Corporation |
|
None |
Stitham LLC |
|
LLC |
|
None |
Stitham Subsidiary, Incorporated |
|
Corporation |
|
None |
StoneMor Alabama LLC |
|
LLC |
|
None |
StoneMor Alabama Subsidiary, Inc. |
|
Corporation |
|
None |
StoneMor Arkansas Subsidiary LLC |
|
LLC |
|
None |
StoneMor California, Inc. |
|
Corporation |
|
None |
StoneMor California Subsidiary, Inc. |
|
Corporation |
|
None |
StoneMor Cemetery Products LLC |
|
LLC |
|
Maryland, Ohio |
StoneMor Colorado LLC |
|
LLC |
|
None |
StoneMor Colorado Subsidiary LLC |
|
LLC |
|
None |
StoneMor Florida LLC |
|
LLC |
|
None |
StoneMor Florida Subsidiary LLC |
|
LLC |
|
None |
StoneMor Georgia LLC |
|
LLC |
|
None |
StoneMor Georgia Subsidiary, Inc. |
|
Corporation |
|
None |
StoneMor Hawaii LLC |
|
LLC |
|
None |
StoneMor Hawaiian Joint Venture Group LLC |
|
LLC |
|
None |
StoneMor Hawaii Subsidiary, Inc. |
|
Corporation |
|
None |
StoneMor Holding of Pennsylvania LLC |
|
LLC |
|
None |
StoneMor Illinois LLC |
|
LLC |
|
None |
StoneMor Illinois Subsidiary LLC |
|
LLC |
|
None |
|
|
|
|
|
StoneMor Indiana LLC |
|
LLC |
|
None |
StoneMor Indiana Subsidiary LLC |
|
LLC |
|
None |
StoneMor Iowa LLC |
|
LLC |
|
None |
StoneMor Iowa Subsidiary LLC |
|
LLC |
|
None |
StoneMor Kansas LLC |
|
LLC |
|
None |
StoneMor Kansas Subsidiary LLC |
|
LLC |
|
None |
StoneMor Kentucky LLC |
|
LLC |
|
None |
StoneMor Kentucky Subsidiary LLC |
|
LLC |
|
None |
StoneMor Michigan LLC |
|
LLC |
|
None |
StoneMor Michigan Subsidiary LLC |
|
LLC |
|
None |
StoneMor Mississippi LLC |
|
LLC |
|
None |
StoneMor Mississippi Subsidiary LLC |
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LLC |
|
None |
StoneMor Missouri LLC |
|
LLC |
|
None |
StoneMor Missouri Subsidiary LLC |
|
LLC |
|
None |
StoneMor North Carolina LLC |
|
LLC |
|
None |
StoneMor North Carolina Funeral Services, Inc. |
|
Corporation |
|
None |
StoneMor North Carolina Subsidiary LLC |
|
LLC |
|
None |
StoneMor Ohio LLC |
|
LLC |
|
None |
StoneMor Ohio Subsidiary, Inc. |
|
Corporation |
|
None |
StoneMor Oklahoma LLC |
|
LLC |
|
None |
StoneMor Oklahoma Subsidiary LLC |
|
LLC |
|
None |
StoneMor Oregon LLC |
|
LLC |
|
None |
StoneMor Oregon Subsidiary LLC |
|
LLC |
|
None |
StoneMor Pennsylvania LLC |
|
LLC |
|
None |
StoneMor Pennsylvania Subsidiary LLC |
|
LLC |
|
None |
StoneMor Puerto Rico LLC |
|
LLC |
|
None |
StoneMor Puerto Rico Cemetery And Funeral, Inc. |
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Corporation |
|
None |
StoneMor Puerto Rico Subsidiary LLC |
|
LLC |
|
None |
StoneMor South Carolina LLC |
|
LLC |
|
None |
StoneMor South Carolina Subsidiary LLC |
|
LLC |
|
None |
StoneMor Tennessee Subsidiary, Inc. |
|
Corporation |
|
None |
StoneMor Washington, Inc. |
|
Corporation |
|
None |
StoneMor Washington Subsidiary LLC |
|
LLC |
|
None |
Sunset Memorial Gardens LLC |
|
LLC |
|
None |
Sunset Memorial Gardens Subsidiary, Inc. |
|
Corporation |
|
None |
Sunset Memorial Park LLC |
|
LLC |
|
None |
Sunset Memorial Park Subsidiary, Inc. |
|
Corporation |
|
None |
Temple Hill LLC |
|
LLC |
|
None |
Temple Hill Subsidiary Corporation |
|
Corporation |
|
None |
The Valhalla Cemetery Company LLC |
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LLC |
|
None |
The Valhalla Cemetery Subsidiary Corporation |
|
Corporation |
|
None |
Tioga County Memorial Gardens LLC |
|
LLC |
|
None |
Virginia Memorial Service LLC |
|
LLC |
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None |
|
|
|
|
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Virginia Memorial Service Subsidiary Corporation |
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Corporation |
|
None |
WNCI LLC |
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LLC |
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Maryland |
W N C Subsidiary, Inc. |
|
Corporation |
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None |
Wicomico Memorial Parks LLC |
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LLC |
|
None |
Wicomico Memorial Parks Subsidiary, Inc. |
|
Corporation |
|
None |
Willowbrook Management Corp. |
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Corporation |
|
None |
Woodlawn Memorial Park Subsidiary LLC |
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LLC |
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None |
SCHEDULE 5
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Bethel Cemetery Association |
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Non-profit Corporation |
Beth Israel Cemetery Association of Woodbridge, New Jersey |
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Non-profit Corporation |
Clover Leaf Park Cemetery Association |
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Non-profit Corporation |
Crown Hill Cemetery Association |
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Non-profit Corporation |
Highland Memorial Park, Inc. |
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Non-profit Corporation |
Hillside Memorial Park Association, Inc. |
|
Non-profit Corporation |
Kingwood Memorial Park Association |
|
Non-profit Corporation |
Locustwood Cemetery Association |
|
Non-profit Corporation |
Northlawn Memorial Gardens |
|
Non-profit Corporation |
Ohio Cemetery Holdings, Inc. |
|
Non-profit Corporation |
EXHIBIT 7(1)
Form of Representation Date Certificate
This Representation Date Certificate (this Certificate) is executed and delivered in connection with Section 7(1) of the
At-the-Market Issuance Sales Agreement (the Agreement), between StoneMor Partners L.P., a Delaware limited partnership (the Partnership), StoneMor GP LLC, a Delaware limited liability company and the general
partner of the Partnership (the General Partner), StoneMor Operating LLC, a Delaware limited liability company, and FBR Capital Markets & Co. (FBR), MLV & Co. LLC (MLV) and
Janney Montgomery Scott LLC (Janney), dated November 19, 2015. All capitalized terms used but not defined herein shall have the meanings given to such terms in the Agreement.
Each of the undersigned hereby certifies, in his capacity as an officer of the General Partner, as follows:
1. As of the date of this Certificate (i) the Registration Statement does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (ii) neither the Registration Statement nor the Prospectus contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) no event has occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading for (i) and (ii) of this paragraph 1 to be true.
2. Each of the representations and warranties of the Partnership contained in the Agreement were, when originally made, and are, as of the
date of this Certificate, true and correct in all material respects, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date.
3. Except as waived by the Agents in writing, each of the covenants required to be performed by the Partnership in the Agreement on or prior
to the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement, has been duly, timely and fully performed in all material respects and each condition required to be complied
with by the Partnership on or prior to the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement has been duly, timely and fully complied with in all material respects.
4. Subsequent to the date of the most recent financial statements in the Prospectus, and except as described in the Prospectus, including
Incorporated Documents, there has been no Material Adverse Effect.
5. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued, and, to the Partnerships knowledge, no proceedings for that purpose have been instituted or are pending or threatened by any securities or other governmental authority (including, without
limitation, the Commission).
6. No order suspending the effectiveness of the Registration Statement or the qualification or registration
of the Placement Units under the securities or Blue Sky laws of any
jurisdiction are in effect and no proceeding for such purpose is pending before, or threatened, to the Partnerships knowledge or in writing by, any securities or other governmental
authority (including, without limitation, the Commission).
The undersigned has executed this Officers Certificate as of the date
first written above.
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StoneMor Partners L.P. |
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By: StoneMor GP LLC, its general partner |
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By: |
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Name: |
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Title: |
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EXHIBIT 7(m)(1)
Form of Legal Opinion Vinson & Elkins LLP
EXHIBIT 7(m)(2)
Form of Legal Opinion Blank Rome LLP
EXHIBIT 23
Permitted Issuer Free Writing Prospectuses
None
Exhibit 5.1
November 19, 2015
StoneMor Partners L.P.
311 Veterans Highway, Suite B
Levittown, Pennsylvania 19056
Ladies and Gentlemen:
We have acted as counsel to StoneMor Partners L.P., a Delaware limited partnership (the Partnership), in connection with
the registration by the Partnership with the Securities and Exchange Commission (the SEC) under the Securities Act of 1933, as amended (the Securities Act), of the offer and sale by the Partnership of common
units representing limited partner interests in the Partnership having an aggregate offering price of up to $100,000,000 (the Common Units). We have participated in the preparation of a Prospectus Supplement dated
November 19, 2015 (the Prospectus Supplement) and the Prospectus dated December 16, 2013 (the Prospectus) forming part of the Registration Statement on Form S-3 (No. 333-192670) (the
Registration Statement). The Prospectus Supplement has been filed pursuant to Rule 424(b) promulgated under the Securities Act.
In rendering the opinions set forth below, we have examined originals or copies, certified or otherwise identified to our satisfaction, of
(i) an At-the-Market Issuance Sales Agreement, dated November 19, 2015, relating to the offering and sale of the Common Units (the ATM Agreement), a copy of which is being filed with the SEC as an exhibit to the
Partnerships Current Report on Form 8-K on or about the date hereof, (ii) the Registration Statement, (iii) the Prospectus Supplement, (iv) the Prospectus, (v) the Partnerships Second Amended and Restated
Agreement of Limited Partnership dated as of September 9, 2008 (the Partnership Agreement), (vi) the Partnerships Certificate of Limited Partnership, (vii) the Second Amended and Restated Limited Liability
Company Agreement of StoneMor GP LLC, the general partner of the Partnership, dated as of May 21, 2014, as amended by Amendment No. 1, dated November 17, 2015, (viii) certain resolutions adopted on December 2, 2013 and
November 18, 2015 by the board of directors of StoneMor GP LLC approving and authorizing, among other things, the Registration Statement and other matters relating to the offering of the Common Units (the Resolutions), and
(ix) such other certificates, statutes and other instruments and documents as we considered appropriate for purposes of the opinions hereafter expressed.
In connection with rendering the opinions set forth below, we have assumed that (i) all information contained in all documents reviewed
by us is true and correct; (ii) all signatures on all documents examined by us are genuine; (iii) all documents submitted to us as originals are authentic and complete and all documents submitted to us as copies conform to the originals of
those documents; (iv) the certificates for the Common Units will conform to the specimens thereof examined by us and will have been duly countersigned by a transfer agent and duly registered by a registrar of the Common Units; and (v) the
ATM Agreement has been duly authorized and validly executed and delivered by the agents party thereto and constitutes a legal, valid and binding obligation of the agents, and that the agents have the requisite organizational and legal power and
authority to perform their obligations under the ATM Agreement.
Based on the foregoing and on such legal considerations as we deem
relevant, we are of the opinion that when the Common Units have been issued and delivered in accordance with the terms of the ATM Agreement, the Prospectus Supplement, the Prospectus and the Resolutions and upon payment of the consideration therefor
provided for therein, such Common Units will be validly issued, fully paid (to the extent required under the Partnership Agreement) and non-assessable (except as such non-assessability may be affected by Sections 17-303, 17-607 or 17-804 of the
Delaware Revised Uniform Limited Partnership Act (the DRULPA)).
The opinions expressed is limited in all respects to
the DRULPA and the Delaware Limited Liability Company Act (including, in each case, the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting these laws), the laws of the State of New York and the
federal laws of the United States of America, and we are expressing no opinion as to the effect of the laws of any other jurisdiction, domestic or foreign.
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Vinson & Elkins LLP Attorneys at Law
Abu Dhabi Austin Beijing Dallas Dubai Hong Kong Houston London
Moscow New York Palo Alto Riyadh San Francisco Tokyo Washington |
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666 Fifth Avenue, 26th Floor New York, NY
10103-0040 Tel +1.212.237.0000 Fax +1.212.237.0100 www.velaw.com |
We hereby consent to the filing of this opinion of counsel as Exhibit 5.1 to the Current Report on
Form 8-K of the Partnership dated on or about the date hereof, to the incorporation by reference of this opinion of counsel into the Registration Statement and to the reference to our firm under the heading Legal Matters in the
Prospectus Supplement and the Prospectus. In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC issued
thereunder.
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Very truly yours, |
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/s/ Vinson & Elkins L.L.P. |
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Vinson & Elkins L.L.P. |
2
Exhibit 8.1
November 19, 2015
StoneMor Partners L.P.
311 Veterans Highway, Suite B
Levittown, Pennsylvania 19056
Re: StoneMor Partners L.P.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to StoneMor Partners L.P. (the Partnership), a Delaware limited partnership, with respect
to certain legal matters in connection with the offer and sale of common units representing limited partner interests in the Partnership. We have also participated in the preparation of a Prospectus Supplement (the Prospectus
Supplement) dated on or about the date hereof, and the Prospectus dated December 16, 2013 (the Prospectus), forming part of the Registration Statement on Form S-3, No. 333-192670 (the
Registration Statement).
This opinion is based on various facts and assumptions, and is conditioned upon
certain representations made by the Partnership as to factual matters through a certificate of an officer of the Partnership (the Officers Certificate). In addition, this opinion is based upon the factual
representations of the Partnership concerning its business, properties and governing documents as set forth in the Registration Statement and any public filings with the Securities and Exchange Commission that are incorporated by reference.
In our capacity as counsel to the Partnership, we have made such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records and other instruments, as we have deemed necessary or appropriate for purposes of this opinion. In our examination, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of all signatures thereon, the legal capacity of natural persons executing such documents and the conformity to authentic original documents of all documents submitted to us
as copies. For the purpose of our opinion, we have not made an independent investigation or audit of the facts set forth in the above-referenced documents or in the Officers Certificate. In addition, in rendering this opinion we have assumed
the truth and accuracy of all representations and statements made to us which are qualified as to knowledge or belief, without regard to such qualification.
We hereby confirm that all statements of legal conclusions contained in the discussion in the Prospectus under the caption Material U.S.
Federal Income Tax Consequences, as updated by the discussion in the Prospectus Supplement under the caption U.S. Federal Income Tax Considerations (together, the Discussions), constitute the opinion of
Vinson & Elkins L.L.P. with respect to the matters set forth therein as of the effective date of the Registration Statement, subject to
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Vinson & Elkins LLP Attorneys at Law
Abu Dhabi Austin Beijing Dallas Dubai Hong Kong Houston London
Moscow New York Palo Alto Riyadh San Francisco Tokyo Washington |
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1001 Fannin Street, Suite 2500 Houston, TX
77002-6760 Tel +1.713.758.2222 Fax +1.713.758.2346 www.velaw.com |
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Page 2 |
the assumptions, qualifications, and limitations set forth therein. This opinion is based on various statutory provisions, regulations promulgated thereunder and interpretations thereof by the
Internal Revenue Service and the courts having jurisdiction over such matters, all of which are subject to change either prospectively or retroactively. Also, any variation or difference in the facts from those set forth in the representations
described above, including in the Registration Statement and the Officers Certificate, may affect the conclusions stated herein.
No
opinion is expressed as to any matter not discussed in the Discussions. We are opining herein only as to the federal income tax matters described above, and we express no opinion with respect to the applicability to, or the effect on, any
transaction of other federal laws, foreign laws, the laws of any state or any other jurisdiction or as to any matters of municipal law or the laws of any other local agencies within any state.
This opinion is rendered to you as of the effective date of the Registration Statement, and we undertake no obligation to update this opinion
subsequent to the date hereof. This opinion is furnished to you and may be relied on by you in connection with the transactions set forth in the Registration Statement. In addition, this opinion may be relied on by persons entitled to rely on it
pursuant to applicable provisions of federal securities law, including persons purchasing common units pursuant to the Registration Statement. However, this opinion may not be relied upon for any other purpose or furnished to, assigned to, quoted to
or relied upon by any other person, firm or other entity, for any purpose, without our prior written consent.
We hereby consent to the
filing of this opinion of counsel as Exhibit 8.1 to the Current Report on Form 8-K of the Partnership dated on or about the date hereof, to the incorporation by reference of this opinion of counsel into the Registration Statement and to the
reference to our firm in the Prospectus and the Prospectus Supplement. In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Vinson & Elkins L.L.P.
Vinson & Elkins L.L.P.
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