STEWART ENTERPRISES, INC.
Exhibit 4.1
XXXXXXX ENTERPRISES, INC.
AND
THE GUARANTORS NAMED HEREIN,
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
Dated as of April 15, 2011
to
Indenture
Dated as of February 11, 2005
6.25% Senior Notes due 2013
to
Indenture
Dated as of February 11, 2005
6.25% Senior Notes due 2013
THIS SIXTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated April 15, 2011,
is by and among Xxxxxxx Enterprises, Inc., a Louisiana corporation (the “Company”), the Guarantors
listed on the signature pages hereof, and U.S. Bank National Association, a national banking
association, (the “Trustee”).
WHEREAS, the Trustee, the Company and the Guarantors have heretofore executed and delivered
that certain Indenture dated as of February 11, 2005 (the “Original Indenture”), providing for the
issuance of the Company’s 6.25% Senior Notes due 2013 (the “Notes”), as amended and supplemented by
(i) the First Supplemental Indenture (the “First Supplemental Indenture”), dated as of February 28,
2005, where The Lincoln Memorial Park Cemetery Association, a Nebraska corporation became a
Guarantor and unconditionally guaranteed all of the Company’s obligations under the Notes and the
Original Indenture, (ii) the Second Supplemental Indenture (the “Second Supplemental Indenture”),
dated as of April 17, 2006, where Heaven’s Pets at Lakelawn Metairie, LLC, a Louisiana limited
liability company, became a Guarantor and unconditionally guaranteed all of the Company’s
obligations under the Notes and the Original Indenture, (iii) the Third Supplemental Indenture (the
“Third Supplemental Indenture”), dated as of October 5, 2006, where Enduring Memories, Inc., a
Louisiana corporation, became a Guarantor and unconditionally guaranteed all of the Company’s
obligations under the Notes and the Original Indenture; (iv) the Fourth Supplemental Indenture (the
“Fourth Supplemental Indenture”) dated as of July 12, 2010, where XxxxxxxxXxxx.xxx, L.L.C., a
Louisiana limited liability company, became a Guarantor and unconditionally guaranteed all of the
Company’s obligations under the Notes and the Original Indenture; and (v) the Fifth Supplemental
Indenture (the “Fifth Supplemental Indenture”), dated as of February 28, 2011, where Nailknot, LLC,
a Maryland limited liability company, became a Guarantor and unconditionally guaranteed all of the
Company’s obligations under the Notes and the Original Indenture (the “Fifth Supplemental
Indenture” and together with the Original Indenture, the First Supplemental Indenture, the Second
Supplemental Indenture, the Third Supplemental Indenture and the Fourth Supplemental Indenture and
this Supplemental Indenture, the “Indenture”);
WHEREAS, Section 9.02 of the Indenture provides that, with the consent of Holders of at least
a majority aggregate principal amount of the Notes then outstanding, the Company, the Guarantors,
and the Trustee may enter into an indenture supplemental to the Indenture for the purpose of
amending or supplementing the Indenture or the Notes (subject to certain exceptions);
WHEREAS, the Company desires and has requested the Trustee to join with it and the Guarantors
in entering into this Supplemental Indenture for the purpose of amending the Indenture and the
Notes in certain respects as permitted by Section 9.02 of the Indenture;
WHEREAS, the Company has been soliciting consents to this Supplemental Indenture upon the
terms and subject to the conditions set forth in its Offer to Purchase and Consent Solicitation
Statement dated April 4, 2011 and the related letter of transmittal (which together, including any
amendments, modifications or supplements thereto, constitute the “Tender Offer”); and
WHEREAS, (1) the Company has received the consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Notes (excluding any Notes owned by us or by any
Person directly or indirectly controlling or controlled by or under direct or indirect common
control with us), all as certified by an Officers’ Certificate delivered to the Trustee
simultaneously with the execution and delivery of this Supplemental Indenture, (2) the Company has
delivered to the Trustee simultaneously with the execution and delivery of this Supplemental
Indenture an Opinion of Counsel relating to this Supplemental Indenture as contemplated by Section
9.06 of the Indenture and (3) the Company and the Guarantors have satisfied all other conditions
required under Article 9 of the Indenture to enable the Company, the Guarantors and the Trustee to
enter into this Supplemental Indenture.
NOW, THEREFORE, in consideration of the above premises, each party hereby agrees, for the
benefit of the others and for the equal and ratable benefit of the Holders of the Notes, as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Deletion of Definitions and Related References. Section 1.01 of Article 1 of the
Indenture is hereby amended to delete in their entirety all terms and their respective definitions
for which all references are eliminated in the Indenture as a result of the amendments set forth in
Article II of this Supplemental Indenture.
ARTICLE II
AMENDMENTS TO INDENTURE AND NOTES
Section 2.1 Amendments to Articles 4 and 6. The Indenture is hereby amended by deleting the
following provisions of the Indenture and all references thereto in their entirety:
| Section 4.03 (Reports to Holders); Section 4.05 (Taxes); Section 4.06 (Stay, Extension and Usury Laws); Section 4.07 (Limitation on Liens); Section 4.10 (Limitation on Sale and Leaseback Transactions); Section 4.11 (Guarantees); and Section 6.01 (5) and (6) (Defaults and Remedies). |
Section 2.2 Amendments to Notes. The Notes are hereby deemed to be amended to delete all
provisions inconsistent with the amendments to the Indenture effected by this Supplemental
Indenture.
ARTICLE III
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
Section 3.1 Defined Terms. For all purposes of this Supplemental Indenture, except as otherwise
defined or unless the context requires, terms used in capitalized form in this Supplemental
Indenture and defined in the Indenture have the meanings specified in the Indenture.
Section 3.2 Indenture. Except as amended hereby, the Indenture and the Notes are in all respects
ratified and confirmed, and all the terms shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore
or hereafter authenticated and delivered under the Indenture shall be bound hereby, and all terms
and conditions of both shall be read together as though they constitute a single instrument, except
that in the case of conflict, the provisions of this Supplemental Indenture shall control.
Section 3.3 NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
Section 3.4 Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
Section 3.5 Effect of Headings. The Section headings herein are for convenience only and shall
not affect the construction hereof.
Section 3.6 Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Company.
Section 3.7 Effectiveness. The provisions of this Supplemental Indenture shall be effective only
upon execution and delivery of this instrument by the parties hereto. Notwithstanding the
foregoing sentence, the provisions of this Supplemental Indenture shall become operative only upon
the acceptance for purchase by the Company of at least a majority in principal amount of the
outstanding Notes (excluding any Notes owned by us or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with us) pursuant to the
Tender Offer, with the result that the amendments to the Indenture effected by this Supplemental
Indenture shall be deemed to be revoked retroactive to the date hereof if such purchase shall not
occur. The Company shall notify the Trustee promptly after the occurrence of such purchase or
promptly after the Company shall determine that such purchase will not occur.
Section 3.8 Endorsement and Change of Form of Notes. Any Notes authenticated and delivered after
the close of business on the date that this Supplemental Indenture becomes operative in
substitution for Notes then outstanding and all Notes presented or delivered to the Trustee on and
after that date for such purpose shall be stamped, imprinted or otherwise legended by the Company,
with a notation as follows:
“Effective as of April 15, 2011, certain restrictive covenants of the Company and certain Events of
Default have been eliminated or limited, as provided in the Sixth Supplemental Indenture, dated as
of April 15, 2011. Reference is hereby made to said Sixth Supplemental Indenture, copies of which
are on file with the Trustee, for a description of the amendments made therein.”
Section 3.9 Effects of Headings. The Section headings herein are for convenience only and shall
not affect the construction thereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed
as of the day and year written above.
| XXXXXXX ENTERPRISES, INC. |
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| By: | /s/ Xxxxx X. Xxxxxx, Xx. | ||||
| Name: | Xxxxx X. Xxxxxx, Xx. | ||||
| Title: | Senior Vice President and Chief Financial Officer | ||||
| GUARANTORS: FOREST HILLS CEMETERY, INC. XXXXXXX-XXXXXXX INSURANCE AGENCY, INC. GROSS FUNERAL HOME, INC. S. E. FUNERAL HOMES OF ARKANSAS, INC. ALL SOULS MORTUARY, INC. BARSTOW FUNERAL HOMES, INC. XXXXXXXX FAMILY, INC. CALVARY MORTUARY OF LOS ANGELES, CALIFORNIA, INC. CATHOLIC MORTUARY SERVICES, INC. XxXXXXX MEMORIAL CHAPEL, INC. HOLY CROSS MORTUARY OF CULVER CITY, CALIFORNIA, INC. LOMBARD & CO. N.D. XXXXX & ASSOCIATES, INC. QUEEN OF HEAVEN MORTUARY, INC. S.E. ACQUISITION OF GLENDALE, CALIFORNIA, INC. S.E. ACQUISITION OF LANCASTER, CALIFORNIA, INC. S.E. ACQUISITION OF LOS OSOS MORTUARY AND MEMORIAL PARK, INC. S.E. ACQUISITION OF OAKHURST, CALIFORNIA, INC. SAN XXXXXXXX MISSION MORTUARY, INC. SANTA XXXXX MORTUARY, INC. SDCA HOLDINGS, INC. SIMPLICITY PLAN OF CALIFORNIA, INC. XXXXXXX PRE-NEED SERVICES, INC. XXXXXXXXX/XXXXXXX MORTUARY SENTINEL CREMATION SOCIETIES, INC. CREMATION SOCIETY NORTHWEST, INC. X.X. XXXXXXXXXXX & SONS SAN DIEGO CEMETERY ASSOCIATION XXXXXXXX XXXX MEMORIAL PARK, INC. THE SIMPLICITY PLAN, INC. XXXXXXX-XXXXX FUNERAL HOME, INC. S.E. CEMETERIES OF ALABAMA, INC. S.E. COMBINED SERVICES OF ALABAMA, INC. S.E. FUNERAL HOMES OF ALABAMA, INC. ROSE HAVEN FUNERAL HOME AND CEMETERY, INC. S.E. FUNERAL HOMES OF ILLINOIS, INC. XXXXXXX FUNERAL HOMES, INC. XXXXXX FUNERAL HOME, INC. X.X. XXXXXXXX’X SONS, INC. DWN PROPERTIES, INC. THE LINCOLN MEMORIAL PARK CEMETERY ASSOCIATION S.E. FUNERAL HOMES OF TENNESSEE, INC. PASADENA FUNERAL HOME, INC. S.E. FUNERAL HOMES OF TEXAS, INC. S.E. CEMETERIES OF TEXAS, INC. S.E. CEMETERIES OF WISCONSIN, INC. FUNERAL SECURITY PLANS, INC. XXXXXXX FUNERAL HOME OF XXXXX COUNTY, INC. BOUNDS FUNERAL HOME, INC. CEDAR HILL CEMETERY COMPANY, INC. CREST LAWN MEMORIAL GARDENS, INC. FORT LINCOLN CEMETERY, INC. FORT LINCOLN FUNERAL HOME, INC. HILLCREST MEMORIAL CEMETERY, INC. XXXXX-XXXXXXX FUNERAL HOME, INC. XXXX X. XXXXXX FUNERAL HOME, INC. LOUDON PARK CEMETERY COMPANY LOUDON PARK FUNERAL HOME, INC. NATIONAL HARMONY MEMORIAL PARK, INC. PARKLAWN, INC. SIMPLE TRIBUTE OF MARYLAND, INC. THE PARKWOOD CEMETERY COMPANY XXXXXXX X. XXXXXXXX, INC. CATAWBA MEMORIAL PARK, INC. XXXXXXX — HILLCREST, INC. XxXXXXXX’X FUNERAL HOME, INC. S.E. CEMETERIES OF NORTH CAROLINA, INC. S.E. FUNERAL HOMES OF NORTH CAROLINA, INC. XXXXXX XXXXXXXXXX MEMORIAL PARK, INC. XXXX & NICE SUBURBAN CHAPEL, INC. XXXX & NICE, INC. S.E. ACQUISITION OF PENNSYLVANIA, INC. SUNSET MEMORIAL PARK COMPANY XXXXXX FUNERAL HOME S.E. CEMETERIES OF SOUTH CAROLINA, INC. S.E. COMBINED SERVICES OF SOUTH CAROLINA, INC. S.E. FUNERAL HOMES OF SOUTH CAROLINA, INC. MONTE VISTA BURIAL PARK, INC. S.E. COMBINED SERVICES OF TENNESSEE, INC. CLINCH VALLEY MEMORIAL CEMETERY, INC. XXXXXX PFP, INC. XXXXXXXX-XXXXXXXX-XXX FUNERAL HOME, INC. XXXXXXXX & XXXXX FUNERAL HOME, INC. EASTERN CEMETERY ASSOCIATES, INC. XXXXXXX-XXXXXXXXX MORTUARY, INC. LOI CHARLESTON, INC. NATIONAL EXCHANGE TRUST, LTD NATIONAL FUNERAL SERVICES, INCORPORATED S.E. ACQUISITION OF MALDEN, WEST VIRGINIA, INC. S.E. CEMETERIES OF WEST VIRGINIA, INC. S.E. FUNERAL HOMES OF WEST VIRGINIA, INC. XXXXXX FUNERAL HOME, INC. DRUID RIDGE CEMETERY COMPANY PARKWOOD MANAGEMENT COMPANY CHAPEL OF THE ROSES, INC. CHAPEL OF THE VALLEY FUNERAL HOME, INC. X.X. XXXXXX AND SON MORTUARY, INC. SUNSET HILLS MEMORIAL PARK ABBY PLAN OF TEXAS, INC. EMERALD HILLS FUNERAL CORPORATION GUARDIAN CREMATION SOCIETY, INC. SIMPLICITY PLAN OF TEXAS, INC. S.E. COMBINED SERVICES OF TEXAS, INC. S.E. FUNERAL HOME OF COPPELL, TEXAS, INC. XXXXXXX-XXXXXXX, INC. DBM-HUNTINGTON, INC. XXXXXXX FUNERAL CHAPELS, INC. S.E. ACQUISITION OF CALIFORNIA, INC. XXXXXX X. XXXXXXXXX, INC. CEMETERY MANAGEMENT, INC. EASTLAWN CORPORATION XXXXX HILL MEMORIAL PARK, INC. BALLYHOO INNOVATIONS, INC. XXXXXXX ENTERPRISES (EUROPE), INC. S.E. MID-ATLANTIC, INC. LAKEWOOD MEMORIAL PARK, INC. MONTLAWN MEMORIAL PARK, INC. S.E. ACQUISITION OF OREGON, INC. THE NASHVILLE HISTORIC CEMETERY ASSOCIATION, INC. LAKE LAWN METAIRIE FUNERAL HOME S.E. FUNERAL HOMES OF FLORIDA, LLC S.E. CEMETERIES OF FLORIDA, LLC S.E. COMBINED SERVICES OF FLORIDA, LLC EMPRESAS XXXXXXX-FUNERARIAS, INC. ENDURING MEMORIES, INC. HAWTHORNE & XXXX, INC. NAILKNOT, LLC S.E. CEMETERIES OF VIRGINIA, LLC S.E. FUNERAL HOMES OF VIRGINIA, LLC XXXXXXX RESOURCE CENTER, LLC ACME MAUSOLEUM, LLC S.E. CEMETERIES OF LOUISIANA, LLC S.E. FUNERAL HOMES OF LOUISIANA, LLC XXXXXXX SERVICES, LLC XXXXXXXXXXXX.XXX, L.L.C. S.E. SOUTH-CENTRAL, LLC KANAWHA PLAZA PARTNERSHIP |
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| By: | /s/ Xxxxx X. Xxxxxx, Xx. | ||||
| Name: | Xxxxx X. Xxxxxx, Xx. | ||||
| Title: | Authorized Signatory | ||||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
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| By: | ||||
| Name: | ||||
| Title: | ||||
