Exhibit 10.1
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
FORTMORE LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT, dated as of July 20, 2022 (this “Agreement”), of FORTMORE LLC, a Delaware limited liability company (the “Company”), is made and entered into by and among each of the members of the Company (together, the “Members” and each individually, a “Member”).
RECITALS
WHEREAS, the Members have formed the Company as a limited liability company under the laws of the State of Delaware under the name “Fortmore LLC” pursuant to the terms of a limited liability company agreement dated as of June 16, 2022 (the “Original Agreement”), and in accordance with the provisions of the Delaware Limited Liability Company Act and any successor statute, as amended from time to time (the “Act”), governing the affairs of the Company and the conduct of its business;
WHEREAS, StoneMor Inc., a Delaware corporation (“StoneMor”), is the issuer of those certain 8.500% Senior Secured Notes due 2029 (the “StoneMor Notes”) issued pursuant to an Indenture, dated as of May 11, 2021 (the “Indenture”), by and among StoneMor, the Guarantors (as defined in the Indenture) and Wilmington Trust, National Association, as trustee;
WHEREAS, StoneMor, the Company and certain affiliates of Fortress Credit Advisors LLC will enter into a Note Purchase Agreement and Release (the “Purchase Agreement”) with the noteholders named therein, pursuant to which the Company will purchase StoneMor Notes in an aggregate principal amount of $35.0 million (the “Escrowed Notes”) and such affiliates will purchase StoneMor Notes in an aggregate principal amount of $65.0 million;
WHEREAS, StoneMor desires to enter into this Agreement and the Purchase Agreement to resolve certain issues raised by the selling noteholders named therein in order to avoid costs, disruption and any distraction as a result of further discussion of those issues, and without admitting the validity of any of the issues raised by such noteholders, or any liability with respect thereto;
WHEREAS, “Fortress Notes” refers to the aggregate amount of StoneMor Notes (other than the Escrowed Notes), as of any date of determination, owned directly or indirectly by one or more funds and/or accounts managed by Fortress Credit Advisors LLC or any of its affiliates;
WHEREAS, the Company will enter into an Option and Repurchase Agreement (the “Option Agreement”) with certain holders, or affiliates thereof, of Fortress Notes in an aggregate principal amount of no less than $20,000,000 (such holders, the “Option Bondholders”) providing that the Company shall have the right (subject to the terms and conditions included therein), at its sole and exclusive option, to (a) purchase from the Option Bondholders up to an aggregate principal amount of $20,000,000 of StoneMor Notes (the “Option”), which may be exercised by delivery of written notice of such exercise specifying the principal amount of
Fortress Notes to be purchased pursuant to the Option (the “Option Bonds”) and the closing date of the purchase of such Option Bonds (the “Option Closing Date”) by the Company to the Option Bondholders (the “Option Notice”), at a purchase price equal to the sum of (i) the greater of (x) the par value of the Option Bonds and (y) the daily volume weighted average of actual trading price of the StoneMor Notes during the ten consecutive trading days immediately prior to the date of the delivery of the Option Notice and (ii) any accrued and unpaid interest on the Option Bonds as of the Option Closing Date (the “Option Price”) and (b) purchase all outstanding Fortress Notes at any time when the Notes Repurchase Condition (as hereinafter defined) is satisfied (the “Notes Repurchase Right”) at the Notes Repurchase Price (as defined hereinafter).
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements contained herein, the parties hereto hereby agree as follows:
GENERAL PROVISIONS
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MANAGEMENT AND OPERATION
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CAPITAL ACCOUNTS; ADDITIONAL MEMBERS; TRANSFERS
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ALLOCATIONS AND DISTRIBUTIONS
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RECORDS, REPORTS AND BANK ACCOUNTS
TAX MATTERS
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TERMINATION; DISSOLUTION; LIQUIDATION
Dissolution of the Company shall be effective on the day on which the event occurs giving rise to the dissolution, but the Company shall not terminate until its affairs have been wound up and a certificate of cancellation has been filed as provided herein. Notwithstanding the dissolution of the Company, prior to the termination of the Company the rights and obligations of the Members, as such, shall continue to be governed by this Agreement.
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MISCELLANEOUS
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[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first above written.
MEMBERS:
STONEMOR INC.
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| FC BSL HOLDINGS X LIMITED | ||
By: | /s/ Jeffrey DiGiovanni |
| By: | /s/ David N. Brooks |
| Name: Jeffrey DiGiovanni Title: Chief Financial Officer |
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| Name: David N. Brooks Title: |
FC BSL HOLDINGS XI LIMITED
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| FC BSL HOLDINGS XII LIMITED | ||
By: | /s/ David N. Brooks |
| By: | /s/ David N. Brooks |
| Name: David N. Brooks Title: |
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| Name: David N. Brooks Title: Director |
FC BSL HOLDINGS XIII LIMITED
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| FC BSL HOLDINGS XIV LIMITED | ||
By: | /s/ David N. Brooks |
| By: | /s/ David N. Brooks |
| Name: David N. Brooks Title: Director |
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| Name: David N. Brooks Title: Director |
FC BSL HOLDINGS XVII LIMITED
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| FDF HOLDINGS III LIMITED | ||
By: | /s/ David N. Brooks |
| By: | / s/ David N. Brooks |
| Name: David N. Brooks Title: Director |
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| Name: David N. Brooks Title: Director |
FDF HOLDINGS IV LIMITED
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| FDF HOLDINGS V LIMITED | ||
By: | /s/ David N. Brooks |
| By: | /s/ David N. Brooks |
| Name: David N. Brooks Title: Director |
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| Name: David N. Brooks Title: Director |
[Signature Page to Amended and Restated Limited Liability Company Agreement]
FORTRESS LENDING III HOLDINGS L.P. |
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By: Fortress Lending Advisors III LLC, its investment manager |
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By: | /s/ Avraham Dreyfuss |
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| Name: Avraham Dreyfuss Title: Chief Financial Officer |
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| Name: Title: |
MANAGER:
CF FORTMORE HOLDINGS LLC |
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By: | /s/ Avraham Dreyfuss |
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| Name: Avraham Dreyfuss Title: Chief Financial Officer |
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[Signature Page to Amended and Restated Limited Liability Company Agreement]
Fortmore LLC – Membership Register
Name and Address of Member1 | Class A Interests | Class A Contribution | Class B Interests | Class B Contribution |
FC BSL Holdings X Limited | 3.08% | $307.69 | — | — |
FC BSL Holdings XI Limited | 1.54% | $153.85 | — | — |
FC BSL Holdings XII Limited | 3.46% | $346.15 | — | — |
FC BSL Holdings XIII Limited | 2.69% | $269.23 | — | — |
FC BSL Holdings XIV Limited | 3.46% | $346.15 | — | — |
FC BSL Holdings XVII Limited | 5.38% | $538.46 | — | — |
FDF Holdings III Limited | 10.77% | $1,076.92 | — | — |
FDF Holdings IV Limited | 24.62% | $2,461.54 | — | — |
FDF Holdings V Limited | 9.23% | $923.08 | — | — |
Fortress Lending III Holdings L.P. | 35.77% | $3,576.92 | — | — |
StoneMor Inc. | — | — | 100% | $42,687,152.782 |
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1 Unless otherwise noted, the address of each of those listed in the table above is c/o Fortress Investment Group LLC, 1345 Avenue of the Americas, 46th Floor, New York, NY 10105.
2 Amount assumes closing on July 21, 2022 and to be increased by $8,263.89 for each day closing is extended past July 21, 2022.