Promissory Note - Rock of Ages Corp. and Keystone Memorials Inc.
PROMISSORY NOTE
$250,000.00
January 11, 2002
Barre, Vermont
For value received, the undersigned Borrower promises to pay to Rock of Ages Corporation, a Delaware corporation ("Lender"), or order, the principal sum of Two Hundred Fifty Thousand Dollars ($250,000.00) U.S., together with interest on the outstanding principal balance at a fixed rate of Six and 75/100 Percent (6.75 %) per annum, calculated on the basis of the actual number of days elapsed in a 365 or 366 day year.
Principal and interest shall be paid as follows:
a. A single payment of interest only in the sum of Nine Hundred Twenty-Four and 66/100 Dollars ($924.66) shall be due and payable on February 1, 2002.
b. A monthly installment of principal and interest in the sum of One Thousand Nine Hundred One and 7/100 Dollars ($1,901.01) shall be due and payable on March 1, 2002, and on the first day of each month thereafter until the entire principal amount has been paid in full.
c. The entire outstanding principal balance, together with all accrued interest and any other charges due hereunder, shall be due and payable in full on February 1, 2022.
Borrower shall pay to the Note holder the late charge of five (5%) percent of any payment not received by the Note holder within five days after the payment is due.
This Note may be prepaid in whole or in part at any time without prepayment premium or penalty. Any partial prepayment shall be applied against the outstanding principal balance and shall not postpone the due date of any subsequent installments or change the amount of such installment, unless the Note holder shall otherwise agree in writing.
Presentment for payment, protest, notice of protest, demand, and notice of non-payment are hereby waived by all makers, sureties, guarantors and endorsers. This Note shall be the joint and several obligations of all makers, sureties, guarantors and endorsers.
Installment payments of principal and interest shall be applied first to pay interest and then to pay principal. If any installment under this Note is not paid when due and remains unpaid after a date specified by a notice to Borrower, the entire outstanding principal balance and accrued interest thereon shall at once become due and payable in full at the option of the Note holder. The date specified shall not be less than thirty days from the date such notice is mailed. The Note holder may exercise this option to accelerate during any default by Borrower regardless of any prior forbearance.
Failure by the Note holder to exercise any rights or remedies hereunder shall not constitute a waiver of such right in the event of a subsequent default. Upon the occurrence of a default or event of default, Borrower promises to pay all costs of collection, including reasonable attorney's fees.
Any notice to Borrower provided for in this Note shall be given by mailing such notice by certified mail, return receipt requested, addressed to Borrower at 58 Pittman Road, Barre, Vermont 05641, or to such other address as Borrower may designate by notice to the Note holder. Payments shall be made to the Note holder, and any notice to the Note holder shall be given, by personally delivering such payment or notice, or by mailing such payment notice by certified mail, return receipt requested, to the Note holder at 772 Graniteville Road, Graniteville, Vermont 05654, Attn: Kurt M. Swenson, Chairman/CEO, or to such other person and address as may have been designated by notice to Borrower.
If any provision of this Note should conflict with applicable law, such conflict shall not affect any other provision that can be given effect without the conflicting provision, and the provisions of this Note shall be severable. All rights and obligations under this Note shall be governed by and construed in accordance with the laws of the State of Vermont.
This Note is secured by Junior Mortgages and security interests granted by Borrower on even date with respect to granite monument manufacturing facilities having addresses of 58 and 90 Pitman Road, Barre, Vermont. This Note evidences indebtedness incurred to finance an income producing business. Borrower's principal shareholder has executed this Note as co-signer, to induce Lender to make the loan.
IN WITNESS WHEREOF, the undersigned Borrower and Co-signer have executed this Note as of the date set forth above.
In the Presence of: Borrower
Adams Granite Co., Inc.
Witness By: __________________________________
Kerry F. Zorzi, President
NOTICE TO CO-SIGNER: YOUR SIGNATURE ON THIS NOTE MEANS THAT YOU ARE EQUALLY LIABLE FOR REPAYMENT OF THIS LOAN. IF THE BORROWER DOES NOT PAY, THE LENDER HAS A LEGAL RIGHT TO COLLECT FROM YOU.
Co-signer
Witness __________________________________
Kerry F. Zorzi, Individually
EXHIBIT 10.18
PROMISSORY NOTE
$800,000.00
October 26, 2001
FOR VALUE RECEIVED, the undersigned MIZE ACQUISITION, INC. (Maker) promises to pay to ROCK OF AGES CORPORATION (Payee) the sum of Eight Hundred Thousand Dollars ($800,000.00) together with interest per annum theeon at the New York Prime Rate, as the same may be published in the Wall Street Journal, Eastern Edition, from time to time, payable as follows:
This Note has been executed and delivered pursuant to and in accordance with the terms and conditions of the Purchase and Sale Agreement, dated October 26, 2001 by and between Maker, Payee and Childs & Childs Granite Company, Inc. (the "Agreement"), and is subject to the terms and conditions of the Agreement, which are, by this reference, incorporated herein and made a part hereof. Capitalized terms used in this Note without definition shall have the respective meanings set forth in the Agreement.
1. PAYMENT.
1.1 PRINCIPAL AND INTEREST.
The principal amount of this Note shall be due and payable in six (6) installments of Eighty Five Thousand Dollars ($85,000.00) commencing on December 31, 2002 and on December 31 of each year thereafter, followed by a balloon payment of Two Hundred Ninety Thousand Dollars ($290,000.00) (together with any accrued unpaid interest) on October 26, 2008. Interest on the unpaid balance of this Note shall be due and payable quarterly, beginning on December 31, 2001 and on the last day of each calendar quarter thereafter.
1.2 MANNER OF PAYMENT.
All payments of principal and interest on this Note shall be made by certified or bank cashier's check at Payee's principal office or at such other place in the Unted States of America as Payee shall designate to Maker in writing, or by wire transfer of immediately avaiable funds to an account designated by Payee in writing. If any payment of principal or interest on this Note is due on a day that is not a Business Day, such payment shall be due ont he next succeeding Business Day, and such extension of time shall be taken into account in calculating the amount of interest payable under this Note. "Business Day" means any day other than a Saturday, Sunday or legal holiday in the State of Georgia.
1.3 PREPAYMENT.
Maker may, without premium or penalty, at any time and from time to time, prepay all or any portion of the outstanding principal balance due under this Note, provided that each such prepayment is accompanied by accrued interest on the amount of principal prepaid calculated to the date of such prepayment. Any partial prepayments shall be applied to installments of principal in inverse order of their maturity.
1.4 RIGHT OF SET-OFF.
If there is an Event of Default under this Note, Payee shall have the right to set-off against any amount due hereunder any amount due from Maker under the Supply Agreement, as provided in Section 7.b thereof.
2. DEFAULTS.
2.1 EVENTS OF DEFAULT.
The occurrence of any one or more of the following events with respect to Maker shall constitute and event of default hereunder ("Event of Default"):
(a) If Maker shall fail to pay when due any payment of principal or interest on this Note and such failure continues for fifteen (15) days after Payee notified Maker therein writing.
(b) If, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (a "Bankruptcy Law"), Maker shall (i) commence a voluntary case or proceeding; (ii) consent to the entry of an order for relief against it in an involuntary case; (iii) consent to the appointment of a trustee, receiver, assignee, liquidator or similar official; (iv) make an assignment for the benefit of its creditors; or (v) admit in writing its inability to pay its debts as they become due.
(c) If a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against Maker in an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar official for Maker or substantially all of Maker's properties, or (iii) orders the liquidation of Maker, and in each case the order or decree is not dismissed within ninety (90) days.
(d) If Maker shall breach any of its obligations to Payee under the Purchase and Sale Agreement or the Supply Agreement or the Mortgage.
2.2 NOTICE BY MAKER.
Maker shall notify Payee in writing within five (5) days after the occurrence of any Event of Default of which Maker acquires knowledge.
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2.3 REMEDIES.
Upon the occurrence of an Event of Default hereunder (unless all Events of Default have been cured or waived by Payee), Payee may, at its option, (i) by written notice to Maker, declare the entire unpaid principal balance of this Note, together with all accrued interest thereon, immediately due and payable regardless of any prior forbearance, (ii) exercise its setoff rights as provided in section 1.4 above, and (iii) exercise any and all rights and remedies available to it under applicable law, including, without limitation, the right to collect from Maker all sumes due under this Note. Maker shall pay all reasonable costs and expenses incurred by or on behalf of Payee in connection with Payee's exercise of any or all of its rights and remedies under this Note, including, without limitation, reasonable attorneys' fees.
3. MISCELLANEOUS.
3.1 WAIVER.
The rights and remedies of Payee under this Note shall be cumulative and not alternative. No waiver by Payee of any right or remedy under this Note shall be effective unless in a writing signed by Payee. Neither the failure nor any delay in exercising any right, power or privilege under this Note will operate as a waiver of such right, power or privilege and no single or partial exercise of any such right, power or privilege by Payee will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right of Payee arising out of this Note can be dicharged by Payee, in whole or in part, by a waiver or renunciation of the claim or right unless in a writing, signed by Payee; (b) no waiver that may be given by Payee will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on Maker will be deemed to be a waiver of any obligation of Maker or of the right of Payee to take further action without notice or demand as provided in this Note. Maker hereby waives presentment, protest and notice of dishonor and protest.
3.2 NOTICES.
Any notice required or permitted to be given hereunder shall be given in accordance with Section 16.i of the Agreement.
3.3 SEVERABILITY.
If any provision in this Note is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Note will remain in full force and effect. Any provision of this Note held invalid or unenforceable only in part or degree will remain in full and effect to the extent not held invalid or unenforceable.
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3.4 GOVERNING LAW;DISPUTE RESOLUTION.
This Note will be governed by the substantive and procedural laws of the State of Georgia without regard to conflicts of laws principles. Any disputes, controvery or claim arising out of this Note shall be settled by arbitration as provided in Section 19.e of this Agreement.
3.5 PARTIES IN INTEREST.
This Note shall bind Maker and its successors and assigns. This Note shall not be assigned or transferred by Payee without the express prior written consent of Maker, except by will or, in default thereof, by operation of law.
3.5 PARTIES IN INTEREST.
The headings of Sections in this Note are provided for convenience only and will not affect its construction or interpretation. All references to "Section" or "Sections" refer to the corresponding Section or Sections of this Note unless otherwise specified.
All words used in this Note will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the words "hereof" and "hereunder" and similar references refer to this Note in its entirety and not to any specific section or subsection hereof.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of the date first stated above.
MIZE ACQUISITION, INC.
Witness By: __________________________________
Robert W. Mize, III, President
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EXHIBIT 10.19
PROMISSORY NOTE
$840,000
August 20, 2001
FOR VALUE RECEIVED, KEYSTONE MEMORIALS, INC., a Georgia corporation ("KMI"), promises to pay to ROCK OF AGES CORPORATION, a Delaware corporation ("Rock"), in accordance with the terms of a certain Supply Agreement among KMI, Rock and IMEX INTERNATIONAL, INC. ("Supply Agreement"), the principal sum of Eight Hundred Forty Thousand Dollars ($840,000), together with interest on the unpaid principal balance at an annual rate equal to 8%, in the manner provided in the Supply Agreement.
This Note has been executed and delivered pursuant to and in accordance with the terms and conditions of the Purchase and Sale Agreement, dated August 20, 2001, by and between KMI, Rock and Childs & Childs Granite Co., Inc., (the "Purchase and Sale Agreement"), and is subject to the terms and conditions of the Purchase and Sale Agreement and the Supply Agreement, which are, by this reference, incorporated herein and made a part hereof.
1. PAYMENTS.
a. This Note shall be paid over a thirty-five (35) month period in consecutive quarterly installments of principal and interest, payable in arrears as shown on the amortization schedule attached as Exhibit A, commencing on August 20, 2001, until paid in full, within such 35 month period.
b. All payments of principal and interest on this Note shall be made in accordance with the terms of the Supply Agreement.
2. DEFAULTS.
a. The occurrence of any one or more of the following events with respect to KMI shall constitute an event of default hereunder ("Event of Default"):
(1) If KMI shall fail to pay when due any payment of principal or interest on this Note (whether such payment is to be made is cash or in kind under the terms of the Supply Agreement).
(2) If, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (a "Bankruptcy Law"), KMI shall (i) commence a voluntary case or proceeding; (ii) consent to the entry of an order for relief against it in an involuntary case; (iii) consent to the appointment of a trustee, receiver, assignee, liquidator or similar official; (iv) make an assignment for the benefit of its creditors; or (v) admit in writing its inability to pay its debts as they become due.
(3) If a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against KMI in an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar official for KMI or substantially all of KMI's properties, or (iii) orders the liquidation of KMI, and in each case the order or decree is not dismissed within 90 days.
(4) If either KMI or IMEX otherwise defaults in their respective obligations under the Supply Agreement.
b. Upon the occurrence of an Event of Default hereunder (unless all Events of Default have been cured or waived), Rock may, at its option, (i) by written notice to KMI, declare the entire unpaid principal balance of this Note, together with all accrued interest thereon, immediately due and payable in lawful money of the United States, regardless of any prior forbearance, and (ii) exercise any and all rights and remedies available to it under applicable law, including, without limitation, the right to collect from KMI all sums due under this Note and the right to foreclose any security interest taken by Rock to secure KMI's obligations hereunder. KMI shall pay all reasonable costs and expenses incurred by or on behalf of Rock in connection with Rock's exercise of any or all of its rights and remedies under this Note, including, without limitation, reasonable attorneys' fees.
3. PREPAYMENT.
a. This Note may be prepaid in cash at any time without penalty.
b. This Note may not be prepaid in kind, except as provided in the Supply Agreement.
4. MISCELLANEOUS.
a. The rights and remedies of Rock under this Note shall be cumulative and not alternative. No waiver by Rock of any right or remedy under this Note shall be effective unless in writing signed by Rock. Neither the failure nor any delay in exercising any right, power or privilege under this Note will operate as a waiver of such right, power or privilege and no single or partial exercise of any such right, power or privilege by Rock will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable law, (a) no claim or right of Rock arising out of this Note can be discharged by Rock, in whole or in part, by a waiver or renunciation of the claim or right unless in a writing, signed by Rock; (b) no waiver that may be given by Rock will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on KMI will be deemed to be a waiver of any obligation of KMI or of the right of Rock to take further action without notice or demand as provided in this Note. KMI hereby waives presentment, demand, protest and notice of dishonor and protest.
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b. Any notice required or permitted to be given hereunder shall be given in accordance with Section 14.f of the Purchase and Sale Agreement.
c. If any provision in this Note is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Note will remain in full force and effect. Any provision of this Note held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
d. This Note will be governed by the laws of the State of Georgia without regard to conflicts of laws principles.
e. This Note shall bind KMI and its successors and assigns. This Note shall not be assigned or transferred by Rock without the express prior written consent of KMI, except by operation of law.
f. The headings of Sections in this Note are provided for convenience only and will not affect its construction or interpretation. All references to "Section" or "Sections" refer to the corresponding Section or Sections of this Note unless otherwise specified.
g. All words used in this Note will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the words "hereof" and "hereunder" and similar references refer to this Note in its entirety and not to any specific section or subsection hereof.
THIS NOTE IS SECURED BY A FIRST PRIORITY SECURITY DEED DATED OF EVEN DATE.
IN WITNESS WHEREOF, KMI has executed and delivered this Note as of the date first stated above.
KEYSTONE MEMORIALS, INC.
Witness By: __________________________________
George T. Oglesby, III, Duly Authorized