Release and Settlement Agreement (22K)
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RELEASE AND SETTLEMENT AGREEMENT
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This Release and Settlement Agreement (the "Agreement") is entered
into by and among Childs & Childs Granite Co., Inc. and Mize Acquisition, Inc.
(collectively referred to herein as "Borrower" or "Childs"), Rock of Ages
Corporation ("Lender") and Rock of Ages Memorials, Inc. ("ROAM") (collectively
Borrower, Lender and ROAM are referred to herein as the "Parties") as of
January 26, 2005 (the "Effective Date").
WHEREAS, Borrower and Lender entered into that certain Purchase and
Sale Agreement with an effective date of October 22, 2001, whereby, inter alia,
Borrower agreed to purchase certain real property, equipment and business of
Lender (the "Purchase Agreement");
WHEREAS, on or about October 26, 2001, Lender, ROAM and Borrower
entered into a Supply Agreement whereby, inter alia, Borrower agreed to supply
ROAM with its requirements for monuments that it purchases in Elberton, Georgia
for a term of five (5) years at the prices set forth therein;
WHEREAS, in connection with the Purchase Agreement, Borrower executed
that certain Note to Lender dated October 26, 2001 in the original principal
amount of $800,000.00 (the "Note");
WHEREAS, the Note is secured by that certain Deed to Secure Debt with
Power of Sale dated October 26, 2001 executed by Borrower, conveying a security
interest to Lender in certain real property more particularly described therein
(the "Property"), recorded at Deed Book 361, Page 539, et seq. public records
of Elbert County, Georgia (the "Security Deed");
WHEREAS, the Note is further secured by that Security Agreement dated
October 26, 2001 encumbering Borrower's, inter alia, inventory, equipment and
general intangibles and all proceeds thereof (the "Collateral");
WHEREAS, the Note is further secured by those certain UCC Financing
Statements Nos. 4123 and 052-2004-300 as continued, modified and amended (the
"UCCs");
WHEREAS, the Note, Security Deed, Security Agreement, UCCs all other
written loan documents executed in connection therewith, together with any
written renewals, modifications and/or extensions thereof are collectively
referred to as the "Loan Documents" and the Loan Documents, Purchase Agreement
and Supply Agreement and all other written documents executed in connection
therewith are collectively referred to herein as the "Sale Documents";
WHEREAS, the Note referenced above is in default by virtue of
non-payment when due, is fully accelerated and due and payable and remains
unpaid as of this date;
WHEREAS, due to Borrower's default on the Note, Lender is advertising
for a foreclosure sale of the Property scheduled to occur on February 1, 2005;
WHEREAS, Borrower has threatened to file a Petition for Injunctive
Relief and to Compel Arbitration which, inter alia, contests Lender's right to
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foreclose under the Security Deed and asserts that certain disputes exist
between the Parties under the Supply Agreement. Lender and ROAM deny that there
is any dispute related to Lender's right to foreclose on the Property and deny
all of Borrower's allegations related to the Supply Agreement;
WHEREAS, the Parties intend to settle and compromise all disputed
claims between them relating to the foregoing; and
NOW, THEREFORE, for and in consideration of the promises, obligations
and agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree
as follows:
1. TERMS
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1.1. On or before January 31, 2005, Borrower agrees to pay Lender
in good funds via certified check or wire transfer the total
sum of THREE HUNDRED THOUSAND AND NO/100 DOLLARS
($300,000.00) (the "Note Payment").
1.2. On the Effective Date, as further payment on the Note,
Borrower shall issue a product credit to Lender and/or ROAM
for any product manufactured or sold by Borrower (the
"Product") worth up to $100,000 (the "Credit") against
Borrower's ordinary and standard list prices, which may be
used by Lender and/or ROAM to purchase Product from time to
time and at any time during a period of four (4) years from
the date of execution of this Agreement (the "Credit Term")
by receipt of a 15% discount on Borrower's ordinary and
standard list prices on up to $666,667 of Product purchased
by Lender and/or ROAM during the Credit Term (the
"Discount"). Borrower agrees that its prices on Product
during the Credit Term shall be comparable to prevailing
prices by other manufacturers of similar product in the
Elberton, Georgia area. The Note Payment, Credit and Discount
are collectively referred to herein as the "Settlement
Obligations". Borrower agrees to provide Lender with any and
all documents necessary to acknowledge the Credit and
Discount in Borrower's ordering, invoicing or other business
records.
1.3. Upon timely payment of the Note Payment, Lender agrees to
cancel the Note and return the original Note to Borrower
marked "Paid in Full," and to release the Security Deed and
any other security interests held by Lender in connection
with the Note.
2. RELEASES; LIMITATIONS THERETO
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2.1. Upon the Effective Date of this Agreement, Borrower and its
past, present and future predecessors, successors, assigns,
officers, managers, directors, officers, shareholders,
employees, agents, attorneys, legal representatives,
servants, insurers, parent corporations, subsidiaries and
affiliates hereby RELEASE Lender and ROAM, their
predecessors, successors, assigns, officers, managers,
directors, shareholders, employees, agents, attorneys,
legal representatives, representatives,
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parent corporations, subsidiaries, and affiliates
(collectively referred to as "Affiliates"), jointly and
severally, from any and all claims, counterclaims, demands,
damages, debts, agreements, covenants, suits, contracts,
obligations, liabilities, accounts, offsets, rights, actions
and causes of action of any nature whatsoever, including
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