Exhibit 10.1
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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,
2
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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
without limitation, all claims, demands and causes of action
for contribution and indemnity, whether arising at law or in
equity (including without limitation, claims of fraud, breach
of contract, tort, duress, mistake, tortious interference,
usury, or control), whether presently possessed or possessed
in the future, whether known or unknown, whether liability be
direct or indirect, liquidated or unliquidated, whether
presently accrued or to accrue hereafter, whether absolute or
contingent, foreseen or unforeseen, and whether or not
heretofore asserted, for or because of or as a result of any
act, omission, communication, transaction, occurrence,
representation, promise, damage, breach of contract, fraud,
violation of any statute or law, commission of any tort, or
any other matter whatsoever or thing done, omitted or
suffered to be done by the Lender, ROAM, or any of their
respective Affi
