If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule
13d-1(f) or Rule 13d-1(g), check the following box.
ý
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing
information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or
otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
CUSIP No. 86183Q100
|
SCHEDULE 13D/A
|
Page
2
of 9 Pages
|
1
|
NAME OF REPORTING PERSON
Axar Capital Management, LP
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
¨
(b)
ý
|
3
|
SEC USE ONLY
|
4
|
SOURCE OF FUNDS
AF (see Item 3)
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
¨
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH:
|
7
|
SOLE VOTING POWER
-0-
|
8
|
SHARED VOTING POWER
7,384,970
|
9
|
SOLE DISPOSITIVE POWER
-0-
|
10
|
SHARED DISPOSITIVE POWER
7,384,970
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
7,384,970
|
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
See Item 4
|
ý
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.5%
|
14
|
TYPE OF REPORTING PERSON
IA
|
|
|
|
|
|
CUSIP No. 86183Q100
|
SCHEDULE 13D/A
|
Page
3
of 9 Pages
|
1
|
NAME OF REPORTING PERSON
Axar GP, LLC
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
¨
(b)
ý
|
3
|
SEC USE ONLY
|
4
|
SOURCE OF FUNDS
AF (see Item 3)
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
¨
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH:
|
7
|
SOLE VOTING POWER
-0-
|
8
|
SHARED VOTING POWER
7,384,970
|
9
|
SOLE DISPOSITIVE POWER
-0-
|
10
|
SHARED DISPOSITIVE POWER
7,384,970
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
7,384,970
|
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
See Item 4
|
ý
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.5%
|
14
|
TYPE OF REPORTING PERSON
OO, HC
|
|
|
|
|
|
CUSIP No. 86183Q100
|
SCHEDULE 13D/A
|
Page
4
of 9 Pages
|
1
|
NAME OF REPORTING PERSON
Andrew Axelrod
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
¨
(b)
ý
|
3
|
SEC USE ONLY
|
4
|
SOURCE OF FUNDS
AF (see Item 3)
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
¨
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH:
|
7
|
SOLE VOTING POWER
-0-
|
8
|
SHARED VOTING POWER
7,384,970
|
9
|
SOLE DISPOSITIVE POWER
-0-
|
10
|
SHARED DISPOSITIVE POWER
7,384,970
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
7,384,970
|
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
See Item 4
|
ý
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.5%
|
14
|
TYPE OF REPORTING PERSON
IN, HC
|
|
|
|
|
|
CUSIP No. 86183Q100
|
SCHEDULE 13D/A
|
Page
5
of 9 Pages
|
This Amendment No. 4 ("
Amendment
No. 4
") amends and supplements the statement on Schedule 13D filed with the Securities and Exchange Commission (the "
SEC
")
on March 9, 2018 (the "
Original Schedule 13D
"), as amended by Amendment No. 1 filed with the SEC on August 1,
2018 ("
Amendment No. 1
"), Amendment No. 2 filed with the SEC on September 28, 2018 ("
Amendment No. 2
"),
and Amendment No. 3 filed with the SEC on October 29, 2018 ("
Amendment No. 3
," and together with the Original
Schedule 13D, Amendment No. 1, Amendment No. 2 and this Amendment No. 4, the "
Schedule 13D
") with respect to the
Common Units Representing Limited Partnership Interests (the "
Common Units
"), of StoneMor Partners L.P., a Delaware
limited partnership (the "
Issuer
"). Capitalized terms used herein and not otherwise defined in this Amendment
No. 4 shall have the meanings set forth in the Schedule 13D. This Amendment No. 4 amends Items 3, 4, 5(a)-(c), 6 and 7 as set forth
below.
|
Item 3.
|
SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
|
|
|
|
Item 3 of the Schedule 13D is hereby amended and restated as follows:
|
|
|
|
Funds for the purchase of the Common Units reported herein were derived from general working capital of the Axar Vehicles. A total of approximately $50,146,433 was paid to acquire the Common Units reported herein.
|
Item 4.
|
PURPOSE OF TRANSACTION
|
|
|
|
Item 4 of the Schedule 13D is hereby amended and supplemented by the addition of the following:
|
|
|
|
On February 4, 2019, certain
funds affiliated with the Investment Manager (the "
Axar Lenders
") entered into an eighth amendment and waiver
(the "
Eighth Amendment and Waiver
") to the Issuer's pre-existing Credit Agreement, dated as of August 4, 2016,
and as further amended restated, supplemented or otherwise modified from time to time (the "
Credit Agreement
"),
with the Issuer’s principal operating company subsidiary, StoneMor Operating LLC (the "
StoneMor Operating
"),
Capital One, National Association, as administrative agent ("
Capital One
"), and certain other borrower and lender
parties thereto. Pursuant to the Eighth Amendment and Waiver, the Credit Agreement was amended (the "
Amended
Credit Agreement
") and the Axar Lenders became parties thereto as "Tranche B Revolving Lenders" thereunder.
|
|
|
CUSIP No. 86183Q100
|
SCHEDULE 13D/A
|
Page
6
of 9 Pages
|
|
As Tranche B
Lenders, under the terms of the Eighth Amendment and Waiver and the Amended Credit Agreement, the Axar Lenders have agreed
to provide to StoneMor Operating and each of its subsidiaries that are party to the Amended Credit Agreement from time
to time (the "
Borrowers
") a last-out financing credit facility in the maximum aggregate principal
amount of up to $35 million (the "
Tranche B Revolving Commitment
"), subject to certain terms,
conditions and adjustments, including, among other things, that the availability of borrowings in excess of $25
million principal amount in the aggregate are subject to delivery of a satisfactory fairness opinion. On
February 4, 2019, in connection with the closing of the Eight Amendment and Waiver, StoneMor Operating borrowed
$15 million of the Tranche B Revolving Commitment net of an original issue discount of $700,000
such that StoneMor Operating received cash proceeds of $14.3 million. Under the terms of the Amended Credit
Agreement, any loans outstanding under the Tranche B Revolving Commitment bear an interest
rate of 8.00% per annum, with interest paid quarterly. The Tranche B Revolving Commitment
will mature one business day following the earlier of (i) May 1, 2020 and (ii) the date
that is six months prior to the earliest scheduled maturity date of any unsecured
indebtedness incurred by the Issuer prior to June 12, 2018.
|
|
|
|
The Eighth Amendment and Waiver and Amended Credit Agreement provide for certain additional amendments to the Credit Agreement, including: (i) that the Issuer and StoneMor Operating shall use their reasonable best efforts to consummate a conversion of the Issuer into a Subchapter C-corporation by no later than May 15, 2019 in a manner previously determined by the Issuer, StoneMor Operating, Capital One, and the Investment Manager, and (ii) that StoneMor Operating shall (a) retain Carl Marks & Co. or another consultant of recognized national standing reasonably acceptable to Capital One (the "
Consultant
") to, among other things, assist StoneMor Operating in further developing its financial planning and analysis function, prepare a detailed analysis of general and administrative expenses and other overheard, and develop suggested cost reductions and cost savings initiatives, (b) cause the Consultant to be available, in a commercially reasonable manner, to Capital One and its advisors, and the Axar Lenders, and (c) cause the Consultant to present a monthly written update on progress achieved with respect to the Consultant's responsibilities to Capital One and the lenders under the Amended Credit Agreement (including the Axar Lenders) and to answer any questions from Capital One or any such lenders.
|
|
|
|
In addition, on February
4, 2019, in connection with entering into the Amended Credit Agreement, the Investment Manager, on behalf of the
Tranche B Revolving Lenders, entered into a letter agreement with the Borrowers (the "
Letter Agreement
"),
pursuant to which the Borrowers have agreed to pay the Axar Lenders as additional interest an amount equal to $700,000,
payable upon the occurrence of certain conditions, including (i) payment in full of the loans made under the Tranche B
Revolving Commitment, (ii) prepayment of Tranche B Revolving Commitment loans, (iii) a termination or reduction of the
Tranche B Revolving Commitments, if, after giving effect to such reduction or termination and any concurrent prepayment
of the loans under such commitments, the sum of the aggregate Tranche B Revolving Commitments and the credit exposure for
the Axar Lenders would equal $0, and (iv) the termination of the Amended Credit Agreement at any time, for any
reason.
|
|
|
CUSIP No. 86183Q100
|
SCHEDULE 13D/A
|
Page
7
of 9 Pages
|
|
In addition, on February 4, 2019, the Axar Entities entered into a First Amendment to the VSA (the "
VSA First Amendment
") with the ACII Entities, the General Partner, and the Issuer (the "
Amending Parties
"), pursuant to which certain standstill restrictions in the VSA were amended to allow the Axar Entities to acquire beneficial ownership of
any class or series of equity interest in the Issuer, including Common Units
(the "
Partnership Securities
") not in excess of 27.49% of any class of Partnership Securities then outstanding (the "
27.49% Limit
"). Also on February 4, 2019, the Amending Parties entered into a First Amendment to the Director Voting Agreement (the "
DVA First Amendment
"), pursuant to which certain standstill restrictions in the Director Voting Agreement were amended to allow the Axar Entities to acquire beneficial ownership of Partnership Securities not in excess of the 27.49% Limit.
|
|
|
|
The foregoing descriptions
are summaries of the Eighth Amendment and Waiver, the Amended Credit Agreement, the Letter Agreement, the VSA First Amendment and
the DVA First Amendment, and such summaries do not purport to be complete, and thus are qualified in their entireties by
reference to the full texts of such documents. The form of the Eighth Amendment and Waiver (which includes the relevant
amendments to the Amended Credit Agreement as an exhibit) is referenced as
Exhibit 5
to this Schedule 13D and is
incorporated herein by reference. The forms of each of the Letter Agreement, the VSA First Amendment, and the DVA First
Amendment, which are referenced as
Exhibit 6
,
Exhibit 7
, and
Exhibit 8
to this Schedule 13D,
respectively, are also incorporated herein by reference.
|
Item 5.
|
INTEREST IN SECURITIES OF THE ISSUER
|
|
|
|
Items 5(a), (b) and (c) of the Schedule 13D are hereby amended and restated as follows:
|
|
|
(a)
|
The percentages used in this Schedule 13D are calculated based upon 37,958,645 Common Units reported to be outstanding as of June 20, 2018 in the Issuer's Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Securities and Exchange Commission on July 17, 2018.
|
|
|
|
See rows (11) and (13) of the cover pages to this Schedule 13D for the aggregate number of Common Units and percentage of the Common Units beneficially owned by each of the Reporting Persons.
|
|
|
(b)
|
See rows (7) through (10) of the cover pages to this Schedule 13D for the number of Common Units as to which each Reporting Person has the sole or shared power to vote or direct the vote and sole or shared power to dispose or to direct the disposition.
|
|
|
(c)
|
No transactions in the Common Units effected were effected in the
past sixty days by the Reporting Persons.
|
CUSIP No. 86183Q100
|
SCHEDULE 13D/A
|
Page
8
of 9 Pages
|
|
|
|
Item 6.
|
CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER
|
|
|
|
|
|
The first paragraph of Item 6 of the Schedule 13D is hereby amended and restated, as follows:
|
|
|
|
|
|
The Reporting Persons may be deemed to have economic exposure to an additional 1,462,272 Common Units pursuant to certain cash-settled equity swaps each between an Axar Vehicle and a broker-dealer counterparty. The cash-settled equity swaps shall continue until terminated as elected by the parties, and currently have an initial reference termination date of June 20, 2022. The reference prices for such swaps range from $4.3358 to $7.5565. The Reporting Persons do not have voting power or dispositive power with respect to the Common Units referenced in such swaps and disclaim beneficial ownership of the shares underlying such swaps.
|
|
|
|
|
Item 7.
|
MATERIAL TO BE FILED AS EXHIBITS
|
|
|
|
Item 7 of the Schedule 13D is hereby amended and supplemented by the addition of the following:
|
|
|
Exhibit 5
|
Form of Eighth
Amendment and Waiver to Credit Agreement, dated February 4, 2019 (incorporated by reference to Exhibit 10.2 of the Form
8-K, filed by the Issuer on February 4, 2019).
|
|
|
Exhibit 6:
|
Form of Letter Agreement,
dated February 4, 2019.
|
|
|
Exhibit 7:
|
Form of First
Amendment to the Voting and Support Agreement, dated February 4, 2019.
|
|
|
Exhibit 8:
|
Form of First
Amendment to the Nomination and Director Voting Agreement, dated February 4, 2019.
|
CUSIP No. 86183Q100
|
SCHEDULE 13D/A
|
Page
9
of 9 Pages
|
SIGNATURES
After reasonable inquiry and to the best
of his or its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true,
complete and correct.
Date: February 5, 2019
AXAR CAPITAL Management, LP
|
|
|
By: Axar GP, LLC, its General Partner
|
|
|
By: /s/ Andrew Axelrod
|
|
|
Name: Andrew Axelrod
|
|
|
Title: Sole Member
|
|
|
|
|
|
AXAR GP, LLC
|
|
|
|
|
|
By: /s/ Andrew Axelrod
|
|
|
Name: Andrew Axelrod
|
|
|
Title: Sole Member
|
|
|
|
|
|
/s/ Andrew Axelrod
|
|
|
ANDREW AXELROD
|
|
|
|
|
|
EXHIBIT 6
Letter Agreement
STONEMOR PARTNERS L.P.
STONEMOR OPERATING LLC
3600 Horizon Blvd., Suite 100
Trevose, Pennsylvania 19053
dated as of February 4, 2019
CONFIDENTIAL
Each of the Tranche B Revolving
Lenders
listed on the signature pages hereto and each of their successors
and assigns
Re:
LETTER AGREEMENT
Ladies and Gentlemen:
Reference hereby is
made to that certain Credit Agreement, dated as of August 4, 2016 (as amended by First Amendment to Credit Agreement, dated as
of March 15, 2017, as further amended by Second Amendment and Limited Waiver to Credit Agreement, dated as of July 26, 2017, as
further amended by Third Amendment and Limited Waiver to Credit Agreement, dated as of August 16, 2017, as further amended by Fourth
Amendment to Credit Agreement, dated as of September 29, 2017, as further amended by Fifth Amendment to Credit Agreement, effective
as of September 29, 2017, as further amended by Sixth Amendment and Waiver to Credit Agreement, dated as of June 12, 2018, as further
amended by Seventh Amendment and Waiver to Credit Agreement, dated as of July 13, 2018, as further amended by Eighth Amendment
And Waiver To Credit Agreement, dated as of February 4, 2019, and as further amended, restated, supplemented or otherwise modified
from time to time, the "
Credit Agreement
"), by and among by and among StoneMor Operating LLC (the “
Administrative
Borrower
”), the other borrowers party thereto (collectively with the Administrative Borrower, the “
Borrowers
”),
the lenders party thereto from time to time, Capital One, National Association, as administrative agent, issuing bank and swingline
lender, Citizens Bank of Pennsylvania, as syndication agent, and TD Bank, N.A. and Raymond James Bank, N.A., as co-documentation
agents. Capitalized terms used herein but not specifically defined herein shall have the meanings ascribed to them in the Credit
Agreement.
In connection with
the Credit Agreement, the Borrowers hereby agree to pay to the Administrative Agent for the account of Tranche B Revolving Lenders
the Additional Amount (as set forth below).
In the event of (a)
a repayment in full of the Tranche B Revolving Loans pursuant to Section 2.09 of the Credit Agreement or otherwise, (b) a prepayment
in full of the Tranche B Revolving Loans pursuant to Section 2.10 of the Credit Agreement or otherwise, (c) a termination
or reduction of the Tranche B Revolving
Commitments pursuant to Section 2.08 of the Credit Agreement if, after giving effect to such reduction or termination and any
concurrent prepayment of the Tranche B Revolving Loans in accordance with Section 2.10 of the Credit Agreement, the sum of the
aggregate Tranche B Revolving Commitments and Tranche B Revolving Credit Exposures would equal $0, or (d) the termination of the
Credit Agreement at any time, for any reason, including (i) termination of the Credit Agreement or the Tranche B Revolving Commitments
upon the election of the Administrative Agent, or at the request of the Required Lenders, after the occurrence and during the
continuation of an Event of Default (or, in the case of the occurrence of any Event of Default described in clauses (h) or (i)
of Article VII of the Credit Agreement, automatically upon the occurrence thereof), (ii) foreclosure and sale of Collateral, (iii)
sale of Collateral in any proceeding under any Debtor Relief Law, or (iv) restructure, reorganization, or compromise of the Obligations
by the confirmation of a plan of reorganization or any other plan of compromise, restructure, or arrangement in any proceeding
under any Debtor Relief Law, then, in view of the impracticability and extreme difficulty of ascertaining the actual amount of
damages to the Tranche B Revolving Lenders or profits lost by the Tranche B Revolving Lenders as a result of such termination,
and by mutual agreement of the parties as to a reasonable estimation and calculation of the lost profits or damages of the Tranche
B Revolving Lenders, the Borrowers shall pay to the Administrative Agent for the account of the Tranche B Revolving Lenders ratably,
additional interest (the “
Additional Amount
”) in an amount equal to $700,000, provided that, notwithstanding
the above, the Additional Amount shall not be payable until after the Tranche A Revolving Credit Facility Termination Date.
The Borrowers shall
pay all amounts due and payable hereunder as set forth in Section 2.18 of the Credit Agreement. All payments hereunder shall be
made by the Borrowers without set-off or counterclaim and shall be subject to Section 2.17 of the Credit Agreement.
Each Borrower hereby
acknowledges and agrees that (i) the Additional Amount payable hereunder is non-refundable and fully earned on the date such amount
is due and payable as provided above, (ii) the Additional Amount payable hereunder constitutes Obligations and is in addition to
any other amounts payable by the Loan Parties under the Credit Agreement or any other Loan Document, and (iii) this letter agreement
shall constitute a "Loan Document".
This letter agreement
is the Tranche B Letter Agreement referred to in the Credit Agreement, shall be construed under and governed by the laws of the
State of New York applicable to contracts made and to be performed in the State of New York, and may be executed in any number
of counterparts and by different parties on separate counterparts. Each of such counterparts shall be deemed to be an original,
and all of such counterparts, taken together, shall constitute one and the same agreement. Delivery of an executed counterpart
of this letter agreement by facsimile or electronic mail shall be equally effective as delivery of a manually executed counterpart.
This letter agreement may not be amended or otherwise modified unless the same shall be in writing and signed by the parties hereto.
If this letter agreement becomes the subject of a dispute, each of the parties hereto hereby waives trial by jury.
[signature pages follow]
|
Very truly yours,
|
|
Administrative Borrower
:
|
|
|
|
STONEMOR OPERATING LLC
|
|
|
|
|
|
By: ____________________________________
|
|
Name:
|
|
Title:
|
|
|
|
|
|
Partnership
:
|
|
|
|
STONEMOR PARTNERS L.P.
|
|
By: STONEMOR GP LLC, as its General Partner
|
|
|
|
|
|
By: ____________________________________
|
|
Name:
|
|
Title:
|
|
ALLEGHANY MEMORIAL PARK SUBSIDIARY, INC.
ALTAVISTA MEMORIAL PARK SUBSIDIARY, INC.
ARLINGTON DEVELOPMENT COMPANY
AUGUSTA MEMORIAL PARK PERPETUAL CARE COMPANY
BIRCHLAWN BURIAL PARK SUBSIDIARY, INC.
BRONSWOOD CEMETERY, INC.
CEDAR HILL FUNERAL HOME, INC.
CEMETERY INVESTMENTS SUBSIDIARY, INC.
CHAPEL HILL ASSOCIATES, INC.
CHAPEL HILL FUNERAL HOME, INC.
COLUMBIA MEMORIAL PARK SUBSIDIARY, INC.
CORNERSTONE FAMILY INSURANCE SERVICES, INC.
CORNERSTONE FAMILY SERVICES OF NEW JERSEY, INC.
CORNERSTONE FAMILY SERVICES OF WEST VIRGINIA
SUBSIDIARY, INC.
COVENANT ACQUISITION SUBSIDIARY, INC.
COVINGTON MEMORIAL FUNERAL HOME, INC.
COVINGTON MEMORIAL GARDENS, INC.
ELOISE B. KYPER FUNERAL HOME, INC.
FOREST LAWN GARDENS, INC.
FOREST LAWN MEMORY GARDENS, INC.
FOREST LAWN MEMORIAL CHAPEL, INC.
GLEN HAVEN MEMORIAL PARK SUBSIDIARY, INC.
HENRY MEMORIAL PARK SUBSIDIARY, INC.
KIRIS SUBSIDIARY, INC.
KIRK & NICE, INC.
KIRK & NICE SUBURBAN CHAPEL, INC.
LAKEWOOD/HAMILTON CEMETERY SUBSIDIARY, INC.
LAKEWOOD MEMORY GARDENS SOUTH SUBSIDIARY, INC.
LAUREL HILL MEMORIAL PARK SUBSIDIARY, INC.
LAURELWOOD HOLDING COMPANY
LEGACY ESTATES, INC.
LOEWEN [VIRGINIA] SUBSIDIARY, INC.
LORRAINE PARK CEMETERY SUBSIDIARY, INC.
|
|
|
|
|
|
By: ___________________________________________________
|
|
Name:
|
|
Title:
|
|
MODERN PARK DEVELOPMENT SUBSIDIARY, INC.
OAK HILL CEMETERY SUBSIDIARY, INC.
OSIRIS HOLDING FINANCE COMPANY
OSIRIS HOLDING OF MARYLAND SUBSIDIARY, INC.
OSIRIS HOLDING OF RHODE ISLAND SUBSIDIARY, INC.
OSIRIS MANAGEMENT, INC.
OSIRIS TELEMARKETING CORP.
PERPETUAL GARDENS.COM, INC.
PRINCE GEORGE CEMETERY CORPORATION
PVD ACQUISITIONS SUBSIDIARY, INC.
ROCKBRIDGE MEMORIAL GARDENS SUBSIDIARY COMPANY
ROSE LAWN CEMETERIES SUBSIDIARY, INCORPORATED
ROSELAWN DEVELOPMENT SUBSIDIARY CORPORATION
RUSSELL MEMORIAL CEMETERY SUBSIDIARY, INC.
SHENANDOAH MEMORIAL PARK SUBSIDIARY, INC.
SIERRA VIEW MEMORIAL PARK
SOUTHERN MEMORIAL SALES SUBSIDIARY, INC.
SPRINGHILL MEMORY GARDENS SUBSIDIARY, INC.
STEPHEN R. HAKY FUNERAL HOME, INC.
STAR CITY MEMORIAL SALES SUBSIDIARY, INC.
STITHAM SUBSIDIARY, INCORPORATED
STONEMOR ALABAMA SUBSIDIARY, INC.
STONEMOR CALIFORNIA, INC.
STONEMOR CALIFORNIA SUBSIDIARY, INC.
STONEMOR GEORGIA SUBSIDIARY, INC.
STONEMOR HAWAII SUBSIDIARY, INC.
STONEMOR NORTH CAROLINA FUNERAL SERVICES, INC.
STONEMOR OHIO SUBSIDIARY, INC.
STONEMOR PUERTO RICO CEMETERY AND FUNERAL, INC.
STONEMOR TENNESSEE SUBSIDIARY, INC.
STONEMOR WASHINGTON, INC.
SUNSET MEMORIAL GARDENS SUBSIDIARY, INC.
SUNSET MEMORIAL PARK SUBSIDIARY, INC.
TEMPLE HILL SUBSIDIARY CORPORATION
THE VALHALLA CEMETERY SUBSIDIARY CORPORATION
VIRGINIA MEMORIAL SERVICE SUBSIDIARY CORPORATION
W N C SUBSIDIARY, INC.
WICOMICO MEMORIAL PARKS SUBSIDIARY, INC.
WILLOWBROOK MANAGEMENT CORP.
|
|
|
|
|
|
By: ___________________________________________________
|
|
Name:
|
|
Title:
|
|
ALLEGHANY MEMORIAL PARK LLC
ALTAVISTA MEMORIAL PARK LLC
BIRCHLAWN BURIAL PARK LLC
CMS WEST LLC
CMS WEST SUBSIDIARY LLC
CEMETERY INVESTMENTS LLC
CEMETERY MANAGEMENT SERVICES, L.L.C.
CEMETERY MANAGEMENT SERVICES OF OHIO, L.L.C.
COLUMBIA MEMORIAL PARK LLC
CORNERSTONE FAMILY SERVICES OF WEST VIRGINIA LLC
CORNERSTONE FUNERAL AND CREMATION SERVICES LLC
COVENANT ACQUISITION LLC
GLEN HAVEN MEMORIAL PARK LLC
HENLOPEN MEMORIAL PARK LLC
HENLOPEN MEMORIAL PARK SUBSIDIARY LLC
HENRY MEMORIAL PARK LLC
JUNIATA MEMORIAL PARK LLC
KIRIS LLC
LAKEWOOD/HAMILTON CEMETERY LLC
LAKEWOOD MEMORY GARDENS SOUTH LLC
LAUREL HILL MEMORIAL PARK LLC
LOEWEN [VIRGINIA] LLC
LORRAINE PARK CEMETERY LLC
MODERN PARK DEVELOPMENT LLC
OAK HILL CEMETERY LLC
OSIRIS HOLDING OF MARYLAND LLC
OSIRIS HOLDING OF PENNSYLVANIA LLC
OSIRIS HOLDING OF RHODE ISLAND LLC
PLYMOUTH WAREHOUSE FACILITIES LLC
PVD ACQUISITIONS LLC
ROLLING GREEN MEMORIAL PARK LLC
ROCKBRIDGE MEMORIAL GARDENS LLC
ROSE LAWN CEMETERIES LLC
ROSELAWN DEVELOPMENT LLC
RUSSELL MEMORIAL CEMETERY LLC
SHENANDOAH MEMORIAL PARK LLC
SOUTHERN MEMORIAL SALES LLC
SPRINGHILL MEMORY GARDENS LLC
STAR CITY MEMORIAL SALES LLC
STITHAM LLC
|
|
|
|
|
|
By: ___________________________________________________
|
|
Name:
|
|
Title:
|
|
STONEMOR ALABAMA LLC
STONEMOR ARKANSAS SUBSIDIARY LLC
STONEMOR CEMETERY PRODUCTS LLC
STONEMOR COLORADO LLC
STONEMOR COLORADO SUBSIDIARY LLC
STONEMOR GEORGIA LLC
STONEMOR HAWAIIAN JOINT VENTURE GROUP LLC
STONEMOR HAWAII LLC
STONEMOR HOLDING OF PENNSYLVANIA LLC
STONEMOR ILLINOIS LLC
STONEMOR ILLINOIS SUBSIDIARY LLC
STONEMOR INDIANA LLC
STONEMOR INDIANA SUBSIDIARY LLC
STONEMOR IOWA LLC
STONEMOR IOWA SUBSIDIARY LLC
STONEMOR KANSAS LLC
STONEMOR KANSAS SUBSIDIARY LLC
STONEMOR KENTUCKY LLC
STONEMOR KENTUCKY SUBSIDIARY LLC
STONEMOR MICHIGAN LLC
STONEMOR MICHIGAN SUBSIDIARY LLC
STONEMOR MISSISSIPPI LLC
STONEMOR MISSISSIPPI SUBSIDIARY LLC
STONEMOR MISSOURI LLC
STONEMOR MISSOURI SUBSIDIARY LLC
STONEMOR NORTH CAROLINA LLC
STONEMOR NORTH CAROLINA SUBSIDIARY LLC
STONEMOR OHIO LLC
STONEMOR OKLAHOMA LLC
STONEMOR OKLAHOMA SUBSIDIARY LLC
STONEMOR OREGON LLC
STONEMOR OREGON SUBSIDIARY LLC
STONEMOR PENNSYLVANIA LLC
STONEMOR PENNSYLVANIA SUBSIDIARY LLC
STONEMOR PUERTO RICO LLC
STONEMOR PUERTO RICO SUBSIDIARY LLC
STONEMOR SOUTH CAROLINA LLC
STONEMOR SOUTH CAROLINA SUBSIDIARY LLC
STONEMOR WASHINGTON SUBSIDIARY LLC
STONEMOR WISCONSIN LLC
STONEMOR WISCONSIN SUBSIDIARY LLC
|
|
|
|
|
|
By: ___________________________________________________
|
|
Name:
|
|
Title:
|
|
SUNSET MEMORIAL GARDENS LLC
SUNSET MEMORIAL PARK LLC
TEMPLE HILL LLC
THE VALHALLA CEMETERY COMPANY LLC
TIOGA COUNTY MEMORIAL GARDENS LLC
VIRGINIA MEMORIAL SERVICE LLC
WNCI LLC
WICOMICO MEMORIAL PARKS LLC
WOODLAWN MEMORIAL PARK SUBSIDIARY LLC
|
|
|
|
|
|
By: ___________________________________________________
|
|
Name:
|
|
Title:
|
|
STONEMOR FLORIDA LLC
STONEMOR FLORIDA SUBSIDIARY LLC
|
|
|
|
|
|
By: ___________________________________________________
|
|
Name:
|
|
Title:
|
|
CORNERSTONE TRUST MANAGEMENT SERVICES LLC
|
|
|
|
|
|
By: ___________________________________________________
|
|
Name:
|
|
Title:
|
EXECUTION VERSION
Accepted and agreed to
|
|
as of the date first above written:
|
|
|
|
STAR V PARTNERS LLC,
|
|
as a Tranche B Revolving Lender
|
|
|
|
By: Axar Capital Management LP,
|
|
its investment manager
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
Andrew Axelrod
|
|
|
Title:
|
Authorized Signatory
|
|
BLACKWELL PARTNERS LLC – SERIES E
|
|
solely with respect to the assets for which
|
|
Axar Capital Management LP acts as its investment manager,
|
as a Tranche B Revolving Lender
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
Andrew Axelrod
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
Axar Capital Management LP,
|
|
|
|
its investment manager
|
|
AXAR MASTER FUND, LTD.,
|
|
as a Tranche B Revolving Lender
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
Andrew Axelrod
|
|
|
Title:
|
Authorized Signatory
|
|
|
|
Axar Capital Management LP,
|
|
|
|
its investment manager
|
|
EXHIBIT 7
Form of First Amendment to the
Voting and Support Agreement
This FIRST AMENDMENT
TO
VOTING AND SUPPORT
AGREEMENT (this “
Amendment
”
)
is entered into on February 4, 2019 (the “
Execution Date
”), by and among Axar Capital Management, LP,
a Delaware limited partnership (“
Axar
”), Axar GP, LLC, a Delaware limited liability company (“
Axar
GP
”), Axar Master Fund, Ltd., a Cayman Islands exempted limited partnership (the “
Axar Funds
,”
and together with Axar and Axar GP, the “
Axar Entities
”), Robert B. Hellman, Jr., in his capacity as
trustee under the Voting and Investment Trust Agreement for the benefit of American Cemeteries Infrastructure Investors, LLC (“
ACII
”),
and StoneMor GP Holdings LLC, a Delaware limited liability company (“
GP Holdings
” and together with ACII,
the “
ACII Entities
”) and StoneMor GP LLC, a Delaware limited liability company (the “
Company
”)
and StoneMor Partners L.P., a Delaware limited partnership (the “
Partnership
”). The Axar Entities, the
ACII Entities, the Company, the Partnership and each Permitted Transferee (as hereinafter defined) are sometimes referred to herein
collectively as the “
Parties
,” and individually as a “
Party
.”
RECITALS
|
1.
|
The Parties entered into that certain Voting and Support Agreement on September 27, 2018 (the “
Agreement
”).
|
|
2.
|
Pursuant to Section 5.2 of the Agreement, the Agreement may be amended in writing by the Parties.
|
|
3.
|
The Parties desire to make certain amendments to the Agreement as set forth herein.
|
NOW, THEREFORE,
in consideration of the mutual promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereby agree as follows:
Article
I
AMENDMENTS
1.1
Restrictions
on Transfers and Other Actions
. Section 1.3(a) of the Agreement is hereby amended and restated in its entirety as follows:
“Each of the ACII Entities
and the Axar Entities hereby agrees that, from the date hereof until the Expiration Date, it shall not, and shall cause its Affiliates
not to, directly or indirectly, except in connection with the consummation of the Reorganization or as expressly contemplated by
the Merger Agreement, (i) Transfer any Securities Beneficially Owned or owned of record by such Party or such Party’s Affiliates;
provided, however, that the foregoing restriction shall not apply to Transfers between or among a Party and its Affiliates (each,
a “Permitted Transferee”) provided that, in the case of a Transfer from a Party to one or more of such Party's Affiliates,
such transferee executes and delivers to the
Company a joinder agreement in the
form of Exhibit B hereto, (ii) deposit any Securities into a voting trust or enter into a voting agreement or arrangement or grant
any proxy, consent or power of attorney with respect thereto that is inconsistent with this Agreement, (iii) initiate, participate
in, or knowingly encourage or facilitate any litigation or other proceeding challenging or seeking to enjoin or prevent the Reorganization
or the Merger Agreement or any Merger Proposal, or (iv) acquire additional Securities in the Partnership if such acquisition could
cause such Party, together with its Affiliates (other than the Company and its Affiliates), to own beneficially in excess of 19.99%,
with respect to the ACII Entities, or 27.49%, with respect to the Axar Entities, of any Partnership Securities (as defined in the
Partnership Agreement) of any class then outstanding; provided, however, that Axar, ACII and their respective Affiliates shall
have the right to participate pro rata, based on their respective ownership percentage of the issued and outstanding equity interests
of the Partnership, in any equity capital raise of the Partnership or its Affiliates (unless such participation could cause such
Party, together with its Affiliates (other than the Company and its Affiliates), to own beneficially in excess of 19.99%, with
respect to the ACII Entities, or 27.49%, with respect to the Axar Entities, of any Partnership Securities of any class then outstanding).
In addition, each of the Axar Entities hereby agrees that, from the date hereof until the Expiration Date, it shall not, and shall
cause its Affiliates not to, directly or indirectly, except in connection with the consummation of the Reorganization or as expressly
contemplated by the Merger Agreement and the Nomination and Director Voting Agreement by and among the Company, the Axar Entities
and the ACII Entities (the "Director Voting Agreement") and provided that the Company is not in breach of the Merger
Agreement and the Company and the ACII Entities are not in breach of the Director Voting Agreement, in each case which breach is
not cured within ten (10) days following receipt by the breaching party of written notice of such breach, (v) participate in solicitations
of proxies with respect to any Securities of the Partnership, (w) except with the prior consent of the Company, make public announcements
regarding the Reorganization or other extraordinary transactions involving the Partnership or its Affiliates, (x) seek representation
on the board of directors of the Company (the “Company Board”) or take any actions to control or influence management
of the Company or the Company Board, (y) participate in, create or join any “group” within the meaning of Section 13(d)(3)
of the Exchange Act, with respect to any Securities, or (z) agree to take or publicly propose any of the foregoing actions. For
purposes of this Agreement, “Transfer” means directly or indirectly, to sell, transfer (by gift or otherwise), assign,
pledge, encumber or similarly dispose of (by merger (including by conversion into securities or other consideration), by tendering
into any tender or exchange offer, by testamentary disposition, by operation of law or otherwise), either voluntarily or involuntarily,
or to enter into any contract, option or other arrangement or understanding with respect to the voting of or sale, transfer (by
gift or otherwise), assignment, pledge, encumbrance or similar disposition of (by merger, by tendering into any tender or exchange
offer, by testamentary disposition, by operation of law or otherwise). Any Transfer in violation of this Section 1.3 shall be null
and void.”
Article
II
MISCELLANEOUS PROVISIONS
2.1
Certain
Defined Terms.
Capitalized terms used in this Amendment that are not defined in the text of the body of this Amendment
shall have the meanings given such terms in the Agreement.
2.2
No
Other Amendments
. All provisions of the Agreement, unless amended by this Amendment, shall remain unchanged.
2.3
Counterparts.
This Amendment may be executed simultaneously in any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
2.4
Miscellaneous
.
Sections 5.1 through 5.13 of the Agreement shall apply to this Amendment
mutatis mutandis
.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF,
the Parties have caused this Amendment to be duly executed as of the day and year first above written.
|
AXAR CAPITAL MANAGEMENT, LP
|
|
|
|
By: Axar GP, LLC, its general partner
|
|
|
|
|
|
By: ____________________________________
|
|
Name: Andrew Axelrod
|
|
Title: Sole Member
|
|
AXAR GP, LLC
|
|
|
|
|
|
By: ____________________________________
|
|
Name: Andrew Axelrod
|
|
Title: Sole Member
|
|
AXAR MASTER FUND, LTD.
|
|
|
|
|
|
By: ____________________________________
|
|
Name: Andrew Axelrod
|
|
Title: Authorized Person
|
|
ROBERT B. HELLMAN, JR., AS TRUSTEE UNDER THE VOTING AND INVESTMENT TRUST AGREEMENT FOR THE BENEFIT OF AMERICAN CEMETERIES INFRASTRUCTURE INVESTORS, LLC
|
|
|
|
|
|
By: ____________________________________
|
|
Name: Robert B. Hellman, Jr.
|
|
Title: Trustee
|
|
STONEMOR GP HOLDINGS LLC
|
|
|
|
|
|
|
|
|
By: ____________________________________
|
|
Name: Robert B. Hellman, Jr.
|
|
|
Title: Authorized Person
|
|
|
|
|
|
|
|
|
STONEMOR PARTNERS L.P.
|
|
|
|
|
|
By: StoneMor GP LLC, its general partner
|
|
|
|
|
|
|
|
|
By: ____________________________________
|
|
Name: Joseph M. Redling
|
|
|
Title: President and Chief Executive Officer
|
|
|
|
|
EXHIBIT 8
Form of First Amendment to the Director
Voting Agreement
THIS FIRST AMENDMENT TO
NOMINATION
AND DIRECTOR VOTING AGREEMENT
(this “
Amendment
”) is entered into on February 4, 2019 (the “
Execution
Date
”), by and among StoneMor GP LLC, a Delaware limited liability company and the general partner of the Partnership
(“
GP
”), Axar Capital Management, LP, a Delaware limited partnership (“
Axar
”), Axar GP LLC,
a Delaware limited liability company (“
Axar GP
”), Axar Master Fund, Ltd., a Cayman Islands exempted limited
partnership (together with Axar and Axar GP, the “
Axar Entities
”), StoneMor GP Holdings, LLC, a Delaware limited
liability company (“
GP Holdings
”), and Robert B. Hellman, Jr., as trustee under the Voting and Investment Trust
Agreement for the benefit of American Cemeteries Infrastructure Investors LLC (“
ACII
,” and, together with GP
Holdings, the “
ACII Entities
” and, collectively with the Axar Entities, the “
Principal Stockholders
”).
The Principal Stockholders and GP are referred to herein as the “
Parties
” and each as a “
Party
.”
RECITALS
|
1.
|
The Parties entered into that certain Nomination and Director Voting Agreement on September 27, 2018 (the “
Agreement
”).
|
|
2.
|
Pursuant to Section 5(e)(ii) of the Agreement, the Agreement may be amended in writing by the Parties.
|
|
3.
|
The Parties desire to make certain amendments to the Agreement as set forth herein.
|
NOW, THEREFORE, in consideration of the
mutual promises hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
Article
III
AMENDMENTS
3.1
Standstill
.
Section 3(a)(ii) of the Agreement is hereby amended and restated in its entirety as follows:
“acquire or propose to acquire additional Common
Stock or other securities of the Company or any securities of its subsidiaries;
provided, however
, that the foregoing shall
not prohibit the acquisition or proposal to acquire additional Common Stock or other Company securities that in the aggregate,
together with such Party’s and its Affiliates’ beneficial ownership of any other Common Stock or other securities of
the Company, does not cause such Party’s and its Affiliates’ aggregate beneficial ownership to exceed nineteen and
ninety-nine hundredths percent (19.99%) with respect to the ACII Entities, or twenty-seven and forty-nine hundredths percent (27.49%)
with respect to the Axar Entities of either the outstanding Common Stock or the voting power of the outstanding securities of the
Company;
provided, further
, that the foregoing shall not prohibit and the
Principal Stockholders shall have the right to participate
pro rata, based on their respective beneficial ownership percentage of the outstanding Common Stock, in any equity capital raise
by the Company or any of its subsidiaries;”
Article
IV
MISCELLANEOUS PROVISIONS
4.1
Certain
Defined Terms.
Capitalized terms used in this Amendment that are not defined in the text of the body of this Amendment
shall have the meanings given such terms in the Agreement.
4.2
No
Other Amendments.
All provisions of the Agreement, unless amended by this Amendment, shall remain unchanged.
4.3
Counterparts.
This Amendment may be executed simultaneously in any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
2.4
Miscellaneous
.
Section 5 of the Agreement shall apply to this Amendment
mutatis mutandis
.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have caused
this Amendment to be duly executed as of the day and year first above written.
|
STONEMOR GP LLC
|
|
|
|
|
|
By: ___________________________________
|
|
Name: Joseph M. Redling
|
|
Title: President and Chief Executive Officer
|
|
|
|
|
|
STONEMOR GP HOLDINGS, LLC
|
|
|
|
|
|
By: ___________________________________
|
|
Name: Robert B. Hellman, Jr.
|
|
Title: Authorized Person
|
|
|
|
|
|
AXAR CAPITAL MANAGEMENT, LP
|
|
|
|
By: Axar GP, LLC, its general partner
|
|
|
|
|
|
By: ___________________________________
|
|
Name: Andrew Axelrod
|
|
Title: Sole Member
|
|
|
|
|
|
AXAR GP LLC
|
|
|
|
|
|
By: ___________________________________
|
|
Name: Andrew Axelrod
|
|
Title: Sole Member
|
|
|
|
|
|
AXAR MASTER FUND, LTD.
|
|
|
|
|
|
By: ___________________________________
|
|
Name: Andrew Axelrod
|
|
Title: Authorized Person
|
|
|
|
ROBERT B. HELLMAN, JR., AS TRUSTEE UNDER THE VOTING AND INVESTMENT TRUST AGREEMENT FOR THE BENEFIT OF AMERICAN CEMETERIES INFRASTRUCTURE INVESTORS, LLC
|
|
|
|
|
|
By: ___________________________________
|
|
Name: Robert B. Hellman, Jr.
|
|
Title: Trustee
|