Supply Agreement - Keystone Memorials Inc. and Rock of Ages Corp.
ROCK OF AGES CORPORATION
AMERICAN BLACK GRANITE
SUPPLY AGREEMENT made as of September 7, 2000, effective as of June 1, 2000 by and between KEYSTONE MEMORIALS, INC., a Georgia corporation, with its principal office located at 1595 Washington Highway, Elberton, Georgia 30635 ("KMI") and ROCK OF AGES CORPORATION, a Delaware corporation, with its principal office located at 772 Graniteville Road, Graniteville, Vermont 05654 ("ROAC").
KMI and ROAC desire to enter into a supply agreement for the supply of American Black Granite blocks and slabs ("ABG") quarried by ROAC and its subsidiaries and affiliates (ROAC and its subsidiaries and affiliates are sometimes referred to as "ROAC") all upon the terms and conditions set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Supply of ABG.
ROAC agrees to supply KMI primarily slabs, but some blocks (limited to 10% of the total purchase cubic feet during the year of the Term) of ABG, but not in excess of the following amounts for each year of the term and not in excess of the amount allowed as of May 31, 2003, if the contract is extended beyond that time:
June 1, 2000 to May 31, 2001 50,000 cubic feet
June 1, 2001 to May 31, 2002 60,000 cubic feet
June 1, 2002 to May 31, 2003 60,000 cubic feet
The annual cubic feet limitation (the "Annual Limitation") on ABG sales by ROAC to KMI applies during each year of the Term. Any portion of the Annual Limitation not purchased in any year during the Term may not be carried over to the next year of the Term so that if in one year during the term KMI purchases only twenty-five thousand (25,000) cubic feet of ABG the twenty-five to thirty-five thousand (25,000 to 35,000) cubic feet not purchased may not be purchased in the next year of the Term.
2. Term and Termination.
This Agreement shall be for a term of three (3) yeas, commencing June 1, 2000. Unless ROAC shall give written notice of non-renewal to KMI at least ninety (90) days prior to
the anniversary of the Term or any renewal thereof, this Agreement shall automatically renew for three additional one (1) year terms.
Notwithstanding the foregoing, effective June 1, 2003, either party shall have the right to terminate this Agreement by giving at least one-hundred eighty (180) days prior written notice to the other of such termination.
3. Prices for ABG.
For the first three years of the Term of the Agreement, the price to be charged by ROAC for ABG slabs supplied to KMI under this agreement will be twenty percent (20%) below its published price list at the time the order is placed by KMI, plus a cash discount of two percent (2%) net 30 days. The price to be charged by ROAC for ABG blocks under this agreement for the initial three years of the Agreement will be ten percent (10%) below its published price list for ABG blocks at the time the order is placed by KMI, plus a cash discount of 2%, net 30 days.
Effective June 1, 2003, the price to be charged by ROAC for ABG slabs supplied to KMI under this agreement will be ten percent (10%) below its published price list at the time the order is placed by KMI, plus a cash discount of two percent (2%) net 30 days. The price to be charged by ROAC for ABG blocks under this agreement will be five percent (5%) below its published price list for ABG blocks at the time the order is placed by KMI, plus a cash discount of 2%, net 30 days.
ROAC's current price list for ABG is attached as Exhibit 2. ROAC shall, have the right to raise its ABG slab and block prices by an amount not to exceed five percent (5%) during each year of the Term commencing with the year beginning on June 1, 2000 and ending on May 31, 2003. Beginning June 1, 2003 ROAC shall, have the right to raise its ABG slab and block prices by an amount not to exceed 10 percent (10%) during each year of the term.
4. KMI Minimum Purchase Obligation
Effective June 1, 2003, in order for this Agreement to remain in full force and effect, KMI shall purchase a minimum of 40,000 cubic feet of ABG during each year of the Term. Subject to the terms of section 4 below, in the event that KMI fails to meet its purchase obligation, this Agreement may be terminated by ROAC upon written notice to KMI.
5. Reasonable Efforts.
KMI acknowledges that ABG is a natural product subject to fluctuation in quality and supply as the quarry formation is worked. Accordingly, ROAC is unable to predict future supply and quality of ABG with certainty. Accordingly, while ROAC will use commercially reasonable efforts to supply ABG in the amounts set forth in section 2, ROAC shall have no liability to KMI in the event that conditions of the quarry or otherwise make it commercially impracticable to supply such amounts.
6. Quality and Size Allowance.
ROAC will provide monumental grade ABG to KMI as specified by ROAC. KMI will receive normal adjustments for defects for cracks and quality provided to its customers in the ordinary course of business and subject to slab and block size allowances granted to ROAC's customers in the ordinary course of business.
7. Overdue Invoices.
ROAC will have no obligation to supply KMI at anytime KMI has a balance due ROAC beyond sixty (60) days of any invoice date. ROAC may thereafter refuse shipment for credit reasons or require cash in advance or C.O.D. payment terms to assure payment for ABG blocks and slabs sold to KMI.
8. No Resale by KMI of ABG.
KMI agrees not to resell, transfer or otherwise distribute (herein collectively a "Resell") ABG blocks or slabs purchased under this agreement to any third party, whether a subsidiary or affiliate of KMI or not; and agrees that in the event of a Resell, ROAC may immediately terminate this agreement.
9. Assignment Successors and Assigns.
This agreement is binding upon and shall inure to the benefit of the parties hereto, provided, however, that ROAC may not assign any of its right, duties and obligations under this agreement without the prior written consent of KMI, except to a successor by merger or reorganization to ROAC.
Any notice or other communication required or permitted under this agreement shall be in writing and shall be deemed to have been duly given (i) upon hand delivery, or (ii) on the third day following delivery to U.S. Postal Service as certified or registered mail, return receipt requested and postage prepaid, or (iii) on the first day following delivery to a nationally recognized United States overnight courier services, fee prepaid, return receipt or other confirmation of delivery requested or (iv) when telecopied or sent by facsimile transmission if an additional notice is also given under (i), (ii) or (iii) above within three (3) days thereafter. Any such notice or communication shall be directed to a party at its address set forth below or at such other address as may be designated by a party in a notice given to all other parties hereto in accordance with the provisions of this section.
If to KMI: Mr. George T. Oglesby Jr., President
Keystone Memorials, Inc.
PO Box 6077
Elberton, GA 30635
Telephone: (706) 283-5402
Telecopy: (706) 283-4758
with copy to:
If to ROAC: Jon M. Gregory, President
Rock of Ages Corporation
772 Graniteville Road
Graniteville, VT 05654
Telephone: 800 476-3121
Teletax: 802 476 3110
with a copy to: Michael Tule, Vice President and General Counsel
Rock of Ages Corporation
369 North State Street
Concord, NH 03301
Telephone: (603) 225-8397
Telecopy: (603) 225-4801
11. Section Headings.
Section headings are employed in this agreement for reference purposes only and shall not affect the interpretation or meaning of this agreement.
12. Complete Agreement.
Neither this agreement nor any provision hereof may be changed, waived, modified, discharged, amended or terminated orally but only by an instrument in writing signed by all parties hereto. The waiver by any party hereto of a breach of any provisions of this agreement shall not operate or be construed as a waiver of any other party or subsequent breach. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. This agreement, together with the Exhibits attached hereto or incorporated herein pursuant to Section 13 hereof, constitutes the only agreement among the parties hereto concerning the subject matter hereof and supersedes all prior agreements, whether written or oral, relating thereto.
13. Governing Law, Jurisdiction and Venue.
This agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire; and any actions brought pertaining to the same shall lie only in the Merrimack County New Hampshire Superior Court, in the United States District Court for the District of New Hampshire, the Elbert County Superior Court, Georgia, or the United States District Court for the Middle District of Georgia, all of which courts are the sole and exclusive forums for any actions or claims by the parties to this agreement; and each party hereto consents to the jurisdiction of, and venue in, said courts in any action brought by another party hereto and agrees that no claims or action brought by another party hereto and agrees that no claims or actions relating to any matter hereunder will be brought by them in any other courts of said States, any other state or any other country.
14. Counterparts. This agreement may be executed in counterparts and by different parties on different counterparts with the same effect as if the signatures were on the same instrument. This agreement shall be effective and binding upon all parties hereto as of the time when all parties have executed a counterpart of this agreement.
Each Exhibit or Schedule delivered pursuant to the terms of this agreement shall be in writing and shall constitute a part of this agreement. The parties may agree with respect to any Schedule or Exhibit required to be attached to this agreement, that such Schedule or Exhibit, if mutually satisfactory, may be attached to this agreement after the date of execution hereof and after mutual approval thereof, such subsequently attached Schedule or Exhibit shall be treated as if it were attached to this agreement as of the date of execution of this agreement. All Exhibits and Schedules attached hereto are specifically incorporated herein by reference and made a part hereof. The words "agreement," "herein" and "hereof" as used herein shall in all respects include the entirety of this agreement together with all Exhibits and Schedules attached hereto and all documents required or permitted to be delivered hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this agreement all as of the date first above written.
ROCK OF AGES CORPORATION
By:Jon M. Gregory, President - Quarry
KEYSTONE MEMORIALS, INC.
By: George T. Oglesby Jr., President