Asset Purchase Agreement - Rock of Ages Kentucky Cemeteries LLC and Saber Management LLC
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("Agreement"), dated as of the 28th day of July, 2003, is entered into by and between ROCK OF AGES KENTUCKY CEMETERIES, LLC, a Kentucky limited liability company ("Seller") and SABER MANAGEMENT, LLC, an Indiana limited liability company ("Buyer").
WHEREAS, Seller owns and operates the fourteen cemeteries located in the Commonwealth of Kentucky listed on Schedule 1.0 (the "Cemeteries" and each a "Cemetery"); and
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase from Seller substantially all of the assets of Seller used or useful in the operation of the Cemeteries on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and warranties herein contained, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 Sale of Assets. Subject to the terms and conditions set forth in this Agreement, on the Closing Date (as hereinafter defined) Seller shall sell, convey, transfer, assign and deliver to Buyer, and Buyer shall purchase from Seller, all of the assets of Seller of every kind, character and description used in the operation of the Cemeteries, except for the Excluded Assets described in Schedule 2.15 (the "Assets").
1.2 Consideration for Assets. As consideration for the purchase of the Assets and for the other covenants and agreements of Seller, on the Closing Date, Buyer shall pay to Seller the sum of $6,750,000.00 in cash and shall assume the liabilities set forth on Schedule 1.2 (the "Purchase Price"). Buyer shall not be liable for the payment or performance of any liability or obligation of Seller, or for any liability relating to the Business or the Assets, except for those liabilities specifically assumed by Buyer and listed on Schedule 1.2 (such liabilities shall be referred to as the "Assumed Liabilities"). As used in this Agreement, "Business" means the business of owning and operating the Cemeteries and all activities necessary or incidental thereto, including the offer and sale of burial rights, merchandise and services and complying with applicable trust laws.
1.3 Excluded Liabilities. Except for the Assumed Liabilities, Buyer shall not assume, and Seller shall remain liable for, all of Seller's liabilities and obligations including, without limitation: (a) any liability or obligation for taxes, including, without limitation, taxes incurred in connection with this proposed transaction; (b) any liability or claim arising out of or in connection with any employment agreement, consulting agreement or employee benefit plan sponsored, maintained or contributed to or by Seller; and (c) any liability related to the deferred purchase price payment of approximately $330,000 due to the entities from which Seller acquired the Assets, including any obligation under any promissory notes or due on sale clauses.
1.4 Allocation. The Purchase Price shall be allocated, by mutual agreement, among the Assets pursuant to the allocation set forth on Schedule 1.4.The parties hereto shall be bound by such allocation of the Purchase Price for all purposes, including calculations of any and all state and federal income taxes and requirements to file any tax returns.
1.5 Proration of Real Estate Taxes. All taxes or assessments on the Real Property (as hereinafter defined) payable for the tax year which includes the Closing Date shall be prorated between Buyer and Seller as of the Closing Date. All taxes or assessments on the Real Property for any prior period shall be paid by Seller.
ARTICLE II
DESCRIPTION OF THE ASSETS
Seller shall prepare and attach to this Agreement schedules which describe all assets of Seller that are used in the Business. Such Schedules are identified and described below.
2.1 Real Property. Schedule 2.1 will contain a list and legal description of the real property owned by Seller comprising the Cemeteries and any other real property owned by Seller (the "Real Property").
2.2 Equipment, Furniture and Furnishings. Schedule 2.2 will contain a list of all office equipment, computers, computer equipment, servers (including the server for Seller's wide area network, but excluding the communications equipment associated therewith), software, software licenses, furniture and furnishings used in the Business which Schedule will include with respect to each such item:(i) where such item is located;(ii) whether such item is owned or leased; and, (iii) if leased, the name of the lessor and a copy of any lease agreement pursuant to which such item is leased and whether such lease is assignable.
2.3 Rolling Stock.Schedule 2.3 will contain a list of all automobiles, trucks, earth moving equipment and all other rolling stock used in the Business which Schedule will include with respect to each such item:(i) make, year, model and mileage; (ii) where such item is located or garaged; (iii) whether such item is owned or leased;(iv) if the item is owned, a copy of the title to, or bill of sale for, such item; and (v) if the item is leased, the name of the lessor and a copy of any lease agreement pursuant to which such item is leased and whether such lease is assignable.
2.4 Inventory. Schedule 2.4 will contain a listing by location of the descriptions and quantities of all inventory items held at such location (including, but not limited to, mausoleum crypts, lawn crypts, burial lots, cremation niches, vaults and all unsold cemetery merchandise) and, separately stated and identified as such, any inventory or other items of personal property that are not owned solely by Seller, but are held under any form of consignment, bailment, or other arrangement. Schedule 2.4 shall include the date the inventory listing was completed.
2.5 Receivables. Schedule 2.5 will contain a listing of all of Seller's accounts receivable, including appropriate aging of such accounts.
2.6 Perpetual Care and Maintenance Trusts.Schedule 2.6 will contain a listing of each Perpetual Care and Maintenance Trust ("Perpetual Care Trust") established for the care of the Cemeteries or any part thereof containing for each Perpetual Care Trust:(i) true and correct copies of all trust agreements; (ii) the fair market value of the assets held; and (iii) the most recent annual filings made by Seller with the Commonwealth of Kentucky. As used in this Agreement, "Perpetual Care Trust" means any trust required to be established by Kentucky law or by any customer contract for the care, maintenance, administration and embellishment of the Cemeteries or any part thereof.
2.7 Pre-Need Cemetery Merchandise Trusts.Schedule 2.7 will contain a listing of each Pre-need Cemetery Merchandise Trust ("Merchandise Trust") containing for each Merchandise Trust (i) true and correct copies of all trust agreements; (ii) the fair market value of the assets held; and (iii) the most recent filings made by Seller with the Commonwealth of Kentucky. As used in this Agreement, "Merchandise Trust" means any trust required to be established by Kentucky law or by any customer contract to receive payments for pre-need sales of cemetery merchandise (as defined by the applicable Kentucky statute) that is not delivered by attachment to the realty and permanently installed within six months of the date of the pre-need contract or which is not in a bonded warehouse.
2.8 Pre-Paid Funeral Trusts.Schedule 2.8 will contain a listing of each Pre-Paid Funeral Trust containing for each Pre-Paid Funeral Trust: (i) true and correct copies of all trust agreements; (ii) the fair market value of the assets held; and (iii) the most recent annual filings made by Seller with the Commonwealth of Kentucky. As used in this Agreement, "Pre-Paid Funeral Trust" means any trust required to be established by Kentucky law or by any customer contract which has for a purpose the future furnishing or performance of funeral services, or the furnishing or delivery of personal property, merchandise, or service of any nature (other than the furnishing of a burial lot or mausoleum crypt).
2.9 Preconstruction Mausoleum Trusts. Schedule 2.9 will contain a listing of each Preconstruction Mausoleum Trust containing for each Preconstruction Mausoleum Trust: (i) true and correct copies of all trust agreements; (ii) the fair market value of the assets held; and (iii) the most recent annual filings made by Seller with the Commonwealth of Kentucky. As used in this Agreement, "Preconstruction Mausoleum Trust" means any trust required to be established by Kentucky law or by any customer contract upon the sale of a space in a mausoleum, a crypt in a bank of underground crypts or a niche in a columbaria prior to its construction.
2.10 Licenses and Permits. Schedule 2.10 will contain a description of all licenses, permits, franchises and rights relating to the Business or the Assets and whether they are transferable.
2.11 Trade names, Trademarks, etc. Schedule 2.11 will contain a description of all trade names, trademarks, service marks, copyrights, assumed names, logos and all other forms of intellectual property (other than those listed in Schedule 2.2 or 2.10) used in or relating to the Business or the Assets. The Assets shall not include any trademarks, service marks, trade names (other than the Cemeteries' names), copyrights or other intellectual property used by Seller's parent, Rock of Ages Corporation ("ROAC") or any of ROAC's other subsidiaries, whether or not the same may be used by Seller in the Business.
2.12 Contracts. Schedule 2.12 will contain a description of all contracts, including consumer contracts, real and personal property leases, prepaid expenses and any telephone directory listings.
2.13 Records. Schedule 2.13 will contain a brief description of the books and records relating to the Business or the Assets, including lot owner lists and other cemetery records.
2.14 Miscellaneous Assets. Schedule 2.14 will contain a description of all other assets used in the Business and not otherwise described in Schedules 2.1 through 2.13 or Schedule 2.15, including but not limited to customer lists and prospective customer lists, but excluding cash, cash equivalents and the Excluded Assets.
2.15 Excluded Assets. Schedule 2.15 will contain a list of assets to be retained by Seller (the "Excluded Assets").
2.16 Trust Fund Payment. Within six (6) months of the Closing Date, Seller shall prepare and deliver to Buyer a statement (a "Trust Statement") setting forth, as of the Closing Date, any of (i) the market value of the assets in any trusts that relate to pre-need contracts performed prior to Closing, (ii) any investment income earned on assets in any trusts prior to the Closing, and (iii) any other amounts that Seller was legally entitled to withdraw from any trusts at or prior to, or as a result of circumstances occurring at or prior to, the Closing (including any amounts held solely because regulatory approval for withdrawal is required but has not been obtained or because such amount was not timely theretofore withdrawn) (collectively, the "Earned Amount"). If Buyer objects to the Seller's calculation of the amounts set forth in a Trust Statement, Buyer may, within thirty (30) days of delivery of the Trust Statement deliver a notice to Seller disputing the calculation and setting its calculations in respect thereof. If Buyer does not deliver such a notice within such time period, then Buyer shall be deemed to agree with Seller's calculations in all respects. The parties shall attempt to resolve any such dispute in good faith. If the parties are unable to resolve the dispute within thirty (30) days of the delivery of Buyer's objection, then the parties shall be free to pursue all rights and remedies available to them under applicable law. Buyer shall pay Seller the Earned Amount within five (5) days following the expiration of the above objection period or resolution of the dispute, as the case may be.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization. Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the Commonwealth of Kentucky and has all necessary company power and authority to own, lease and operate its properties and to carry on its business as now owned, leased and operated by it.
3.2 Authority and Consent. Seller has the right, power, legal capacity and limited liability company and other authority to enter into and perform its obligations under this Agreement; except for the approval of Seller's lender, no approvals or consents of any other persons are necessary in connection therewith. This Agreement and all other agreements, documents and instruments executed in connection herewith constitute valid and binding obligations of Seller and are enforceable against Seller in accordance with their terms.
3.3 Defaults. Seller's execution of this Agreement and the performance of its obligations hereunder will not violate or constitute a default under any of the terms or provisions of any organizational document of Seller or any lease, instrument, license, permit or other agreement to which Seller is a party or by which it or any of the Assets are bound.
3.4 All Assets Included. Except for the Excluded Assets set forth in Schedule 2.15 and the Assets that are listed in Schedules 2.1 through 2.14 to be sold to Buyer pursuant to this Agreement, there are no assets owned, leased, or held by Seller relating to the Business and no other assets have been used in the Business since December 31, 2002, other than inventory items or supplies sold or consumed in the ordinary course of the Business.
3.5 Title to and Quiet Possession of Assets.
(a) On the Closing Date, Seller will have good and marketable title to all the Assets, except for inventory or supply items sold or consumed in the ordinary course of the Business. All Assets, as of the Closing Date, shall be free and clear of restrictions on, or conditions to, transfer or assignment and shall be free and clear of mortgages, liens, pledges, security interests, liabilities, encumbrances, or other adverse claims, except for the encumbrances listed on Schedule 3.5 and those encumbrances to which Buyer has consented in writing (the "Permitted Encumbrances").
(b) On the Closing Date, Buyer will acquire full, free and exclusive use and quiet enjoyment of the Assets and all rights pertaining thereto. Except as disclosed on Schedule 3.5(b), there are no parties in possession of any of the Assets other than Seller. To the best of Seller's knowledge, there are no condemnations or other takings planned or proposed by any governmental agency or private party which will affect the Assets.
(c) Seller enjoys quiet and undisturbed possession under all leases under which it is the lessee of assets used in or relating to the Business. All leases and third party agreements pursuant to which Seller leases or possesses any real or personal property used in or relating to the Business are valid, in full force and effect and are binding in accordance with their respective terms. There is not any existing default or breach under any of the leases or third party agreements.
3.6 Condition of Equipment, etc.Except as set forth on Schedule 3.6, all material items of equipment, furniture, furnishings and rolling stock listed in Schedules 2.2 and 2.3 are in good operating condition and repair, subject only to ordinary wear and tear.
3.7 Condition of Real Property.
(a) The maintenance, operation, use, or occupancy by Seller of the Real Property does not violate any existing zoning, building, health, environmental, fire, safety or similar law, ordinance, order or regulation or the certificate or certificates of occupancy issued for such Real Property.
(b) Except as disclosed in the Phase I environmental site assessments prepared for Purchaser in connection with this Agreement and attached as Schedule 3.7(b), and except for substances used in connection with the embalming of human remains, which substances may be present in and around the graves, lawn crypts and mausoleums at each of the Cemeteries: (i) No Hazardous Materials (as hereinafter defined) are contained in, exist on, under or about the Real Property or have been transported to or from the Real Property or used, generated, manufactured, stored or disposed of on, under or about the Real Property; (ii) no portion of the Real Property is in violation of any federal, state or local law, ordinance, regulation, rule, permit, order or similar item relating to industrial hygiene or the environmental conditions on, under or about the Real Property (collectively, the "Environmental Requirements"), including, without limitation, soil and groundwater conditions; (iii) there is no existing, pending or, to the best of Seller's knowledge, threatened litigation (judicial or administrative) or governmental inquiry or investigation regarding environmental conditions on, under or about the Real Property; and (iv) there are no underground storage tanks on, under or about the Real Property. The term "Hazardous Materials" as used herein shall include any pollutant, contaminant, chemical, or industrial, toxic or hazardous substance or waste, as any of those terms is defined in the Environmental Requirements, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. 9601, et seq.).
3.8 Compliance with Law. Except as set forth on Schedule 3.8, Seller is not in material default or violation, or, to the best of Seller's knowledge, alleged default or violation, (i) under any material contract, agreement, lease, consent order, or other commitment to which it is a party in connection with the Business or to which any of the Assets or the Business is subject or bound, or (ii) under any law, ordinance, rule, regulation, writ, injunction, order or decree of any court or any foreign, federal, state, local, or other governmental department, commission, board, bureau, agency, or instrumentality.
3.9 Litigation. Except as set forth on Schedule 3.9, there is no lawsuit, action, arbitration, administrative or other proceeding, or governmental investigation pending or threatened against Seller, or materially affecting the Assets, the Business, the financial condition of Seller or the transactions contemplated by this Agreement. Seller is not subject to any court orders, writs, injunctions, court decrees, settlement agreements, or judgments.
3.10 Insurance. Seller has maintained, and will continue to maintain through the Closing Date, (i) liability insurance in at least the amounts currently in effect, with respect to all aspects of the Business, and (ii) insurance on any building, equipment or other property used in or related to the Business which are of a character usually insured against loss or damage.
3.11 Employment Matters. There are no organizational efforts presently being made or threatened by or on behalf of any labor union with respect to any employees of Seller.
3.12 Compliance with Licensing Requirements. Seller has all approvals, authorizations, consents, permits, licenses and orders of all governmental agencies, whether federal, state or local, required by the nature of the Business to permit the continued operation of the Business as presently conducted (the "Permits"). Seller has fulfilled and performed its obligations under each of the Permits.
3.13 Accounts Receivable. All of the accounts receivable of Seller reflected in the Financial Statements represent or will represent valid and enforceable obligations arising from sales actually made or services actually performed by Seller in the ordinary course of business. Except to the extent paid prior to the Closing Date, such accounts receivable are or will be as of the Closing current and collectible, net of the reserves shown on the Financial Statements. Subject to such reserves, and except as disclosed on the Financial Statements, the accounts receivable have been collected or will be current and collectible within 120 days of the date such accounts are due.
3.14 Inventories. All inventories of Seller reflected in Schedule 2.4 consist of items of a quality and quantity usable and, with respect to finished goods, saleable in the ordinary course of the Business, except for obsolete items and items of below-standard quality, all of which have been written off or written down to net realizable value in the Financial Statements or on the accounting records of Seller as of the Closing Date, as the case may be, and are consistent with the normal inventory levels and practices of Seller with respect to the Business.
3.15 Financial Information. Seller has provided to Buyer Seller's unaudited balance sheet and income statement at and for the year ended December 31, 2002 and at and for the period ended April 30, 2003 (the "Interim Financial Statement Date") (collectively, the "Financial Statements"). The Financial Statements (i) have been prepared from and are in accordance with the accounting records of Seller, (ii) have been prepared in accordance with generally accepted accounting principles ("GAAP") consistently applied in all material respects, (iii) fairly present the assets and liabilities of Seller as of the dates stated, and (iv) accurately reflect the results of operations of Seller for the periods covered by the statements.
3.16 Personnel and Employee Benefits.
(a) Set forth in Schedule 3.16(a) is a listing of the name, current salary or wage rate, last raise date and amount, current bonus arrangements, last bonus date and amount and any other compensation arrangements (including employee insurance and benefit plans) for each employee of Seller. Except for cost of living increases (estimated at approximately 2%) effective August 1, 2003, the compensation and benefits of such employees will not be changed prior to the Closing Date and no action will be taken by Seller prior to the Closing Date that would after the Closing Date affect the employment and compensation arrangements reflected in Schedule 3.16(a). Seller has paid and will pay in full (in arrears and otherwise consistent with the past practices of the Business) to all its employees all due and owing wages, salaries, commissions, bonuses, fringe benefit payments and all other direct and indirect compensation of any kind for all services performed by them and each of them to the Closing Date.
(b) Set forth on Schedule 3.16(b) is a complete list of all employee benefit plans, whether formal or informal, whether or not set forth in writing, and whether covering one person or more than one person, sponsored or maintained by Seller for the benefit of its employees.
3.17 Records. The original copies of all books and records pertaining to the Business including, without limitation, all contracts evidencing pre-need sales will be delivered to Buyer at the Closing. Seller has properly maintained and at the Closing will deliver to Buyer (i) detailed records describing each burial, entombment or inurnment in the Cemeteries, showing the date of the burial, entombment or inurnment, the name of the person buried, the exact location of such burial, entombment or inurnment and all of the merchandise sold and delivered therewith; (ii) sale maps for all pre-need mausoleum crypts, niches and burial gardens, indicating thereon the quantity still available for sale; (iii) detailed records of all pre-need cemetery merchandise attached to realty and permanently installed or stored in a bonded warehouse; and (iv) detailed records of any pre-need sales funded or to be funded through insurance policies.
3.18 Operation of the Cemeteries.
(a) Each Cemetery is a perpetual care cemetery. Except as set forth in Schedule 3.8, Seller and the Cemeteries will be in material compliance with all provisions of federal, Kentucky and local law regarding the regulation of cemeteries applicable to Seller or the Cemeteries at Closing. Seller has operated only in the ordinary course of business since December 31, 2002 and has not sold or otherwise disposed of or encumbered any material assets used in the Business since that date, except for sales of inventory in the ordinary course of business.
(b) Except as set forth on Schedule 3.8, Seller is, and at all times since December 31, 2001 has been, in material compliance with the terms and conditions of the consumer contracts listed on Schedule 2.12 hereof and is not aware of any defaults by Seller to such contracts.
(c) All Perpetual Care Trusts required to be established by Kentucky law with respect to the Cemeteries have been established in accordance with such laws and at Closing will have been funded, invested, administered, maintained and operated in compliance with all applicable provisions of such laws. On the Closing Date, Seller will have fully deposited in the Perpetual Care Trusts all amounts required to be deposited therein with respect to funds collected from sales prior to the Closing Date.
(d) All Merchandise Trusts required to be established by Kentucky law with respect to the Cemeteries have been established in accordance with such laws and at Closing will have been funded, invested, administered, maintained and operated in compliance with all applicable provisions of such laws. On the Closing Date, Seller will have fully deposited in the Merchandise Trusts all amounts required to be deposited therein with respect to funds collected from sales prior to the Closing Date.
(e) All Pre-Paid Funeral Trusts required to be established by Kentucky law with respect to the Cemeteries have been established in accordance with such laws and at Closing will have been funded, invested, administered, maintained and operated in compliance with all applicable provisions of such laws. On the Closing Date, Seller will have fully deposited in the Pre-Paid Funeral Trusts all amounts required to be deposited therein with respect to funds collected from sales prior to the Closing Date.
(f) All Preconstruction Mausoleum Trusts required to be established by Kentucky law with respect to the Cemeteries have been established in accordance with such laws and at Closing will have been funded, invested, administered, maintained and operated in compliance with all applicable provisions of such laws. On the Closing Date, Seller will have fully deposited in the Preconstruction Mausoleum Trusts all amounts required to be deposited therein with respect to funds collected from sales prior to the Closing Date.
(g) After the Closing Date, and except as provided in Section 2.16 hereof, Seller shall have no rights whatsoever with respect to the Perpetual Care Trusts, the Merchandise Trusts, the Pre-Paid Funeral Trusts or the Preconstruction Mausoleum Trusts; Buyer shall have the sole right, power and responsibility to amend those trust agreements and to change the trustees, depositories and investment advisors, subject only to compliance with applicable Kentucky laws as to the nature of the institution which may serve as trustee, depository or investment advisor, and Buyer shall hold Seller harmless for administration of and liability under the Perpetual Care Trusts, the Merchandise Trusts, the Pre-Paid Funeral Trusts and the Preconstruction Mausoleum Trusts after the Closing Date.
3.19 Brokers. Neither Seller nor any of its officers, managers, employees or agents have employed any broker, agent or finder, or incurred any liability for any brokerage fees, agent's fees, commissions or finder's fees in connection with the transactions contemplated herein.
3.20 Disclosure. To the best of Seller's knowledge, this Agreement, the Schedules hereto, the Financial Statements and all other documents and information furnished by Seller or its representatives to Buyer or its representatives pursuant hereto do not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements made herein and therein not misleading. Copies of all documents furnished to Buyer in connection with this Agreement or pursuant hereto are true and complete in all material respects.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization. Buyer is a limited liability company duly organized and validly existing under the laws of the State of Indiana and has all necessary company power and authority to own, lease and operate its properties and to carry on its business as now owned, leased and operated by it.
4.2 Authority and Consent. Buyer has the right, power, legal capacity and limited liability company and other authority to enter into and perform its obligations under this Agreement; no approvals or consents of any other persons are necessary in connection therewith. This Agreement and all other agreements, documents and instruments executed in connection herewith constitute valid and binding obligations of Buyer and are enforceable against Buyer in accordance with their terms.
4.3 Defaults. Buyer's execution of this Agreement and the performance of its obligations hereunder will not violate or constitute a default under any of the terms or provisions of any organizational document of Buyer or any lease, instrument, license, permit or other agreement to which Buyer is a party or by which it or any of its assets are bound.
4.4 Brokers. Neither Buyer nor any of its officers, managers, employees or agents have employed any broker, agent or finder, or incurred any liability for any brokerage fees, agent's fees, commissions or finder's fees in connection with the transactions contemplated herein.
ARTICLE V
SELLER'S COVENANTS
Seller hereby agrees and covenants that between the date hereof and the Closing:
5.1 Business in the Ordinary Course. Unless Buyer otherwise furnishes its written consent, Seller shall:
(a) operate the Business only in the usual, regular and ordinary course and will not change its collection procedures or sales methods to accelerate the payment of revenues;
(b) preserve intact the present business organization and material and beneficial relationships with employees, customers, suppliers and other persons having business dealings with Seller and conserve the goodwill and going business of Seller;
(c) maintain all of its structures, equipment, vehicles and other tangible personal property in its present condition, except for ordinary wear and tear or damage by unavoidable casualty; and
(d) not enter into or assume any contract or commitment for more than $25,000 or more than twelve (12) months, except for the purchase and sale of inventory in the ordinary course of business.
5.2 No Amendments; Corporate Existence. Prior to Closing, Seller shall not amend its organizational documents and shall maintain its limited liability company existence and limited liability company powers.
5.3 No Disposition or Encumbrance. Seller shall not sell, lease, transfer, dispose of, subject to any lien or encumber any of the Assets, whether real or personal, tangible or intangible, other than sales of inventory in the ordinary course of business.
5.4 Advice of Change. Seller shall promptly advise Buyer in writing of any material change in the Assets, Business, or prospects of Seller or any other condition or event which would adversely affect or otherwise render untrue the representations and warranties set forth in Article III or the covenants set forth in this Article V.
5.5 Representations and Warranties. The Business shall be conducted so as to fulfill each of the representations and warranties set forth in Article III and Seller shall not take any actions which will affect the ability of Seller to truthfully and accurately make such representations and warranties as though made at and as of the Closing Date.
5.6 Due Diligence Access. Upon reasonable advance notice received from Buyer, Seller shall grant Buyer and its officers, employees, accountants, attorneys and other authorized representatives the right, during normal business hours, to inspect the Assets and the books and records of the Cemeteries, to obtain copies of any and all documents pertaining or relating to the Assets, the Business and the liabilities and obligations of Seller, and to consult with and make inquiries of Seller's officers, directors, managers, employees, attorneys, accountants, agents and other persons having business relationships with Seller related to the ownership and operation of the Cemeteries. Such right of access shall be exercised in a manner that does not unreasonably interfere with Seller's operations. Seller shall complete and return the questionnaires submitted to it by Buyer relating to the Assets or the Business. Such inspection shall reasonably include, but is not limited to, review of Seller's books and records, tax records, corporate proceedings, contracts, trademarks, burial records, records of undelivered merchandise, service and burial rights, trust accounts and other business activities related to the Assets, the Seller, the Business and other matters pertaining to the Business in which Buyer may have an interest.
5.7 Standstill. Neither Seller, ROAC, Rock of Ages Monuments, LLC ("ROAM") or any of their respective directors, officers or employees shall solicit any other offer from any other party regarding the sale of the Assets or the Business while the June 6, 2003 letter of intent or this Agreement is in force.
5.8 Information for Post‑Closing Regulatory Filings. Seller shall accumulate and shall provide to Buyer at the Closing such information and data as may be necessary in Buyer's reasonable opinion to enable Buyer, without unreasonable effort or expense, to accurately complete and timely file (without seeking filing date extensions) any reports, filings, or other returns that are required to be filed with regard to the Business or the Assets with federal, state, or local governmental authorities within the sixty day period following the Closing, including, without limitation, the reports due to the Commonwealth of Kentucky with respect to the Perpetual Care Trusts, the Merchandise Trusts, the Pre-Paid Funeral Trusts and the Preconstruction Mausoleum Trusts.
5.9 Hiring Employees. Seller shall cooperate with all reasonable requests made by Buyer for the purpose of allowing Buyer to hire those employees of Seller that are designated by Buyer.
5.10 Financial Information. Seller shall provide to Buyer Seller's unaudited balance sheet and income statement (collectively, "Closing Financial Statements") at and for the period ended not more than thirty (30) days prior to Closing (the "Closing Interim Financial Statements"). The Closing Financial Statements shall (i) have been prepared from and be in accordance with the books and records of Seller, (ii) have been prepared in accordance with GAAP in all material respects, (iii) fairly present the assets and liabilities of Seller as of the date stated, and (iv) accurately reflect the results of operations of Seller for the period covered by the statements.
ARTICLE VI
BUYER'S COVENANTS
Buyer hereby agrees and covenants that:
6.1 Funeral Home Construction. Buyer shall not construct any funeral homes on any of the Cemeteries for a period of five years after the Closing Date without the prior written consent of Seller or its parent company, Rock of Ages Memorials, Inc.; provided, however that such consent shall not be unreasonably withheld, delayed or conditioned; provided, further, that the withholding of consent shall not be deemed unreasonable if Rock of Ages Memorials, Inc. demonstrates that the construction of the proposed funeral home would result in a material loss of monument sales for Rock of Ages Memorials, Inc. or its subsidiaries and affiliates.
6.2 Monument Sections. Buyer shall permanently designate and maintain upright monument sections in each of the Cemeteries, except Louisville West, as set forth on Schedule 6.2. These permanent upright movement sections shall be specifically delineated on the plan for each Cemetery and shall be attached to Schedule 6.2.
ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING
7.1 Buyer's Conditions. All obligations of Buyer that are to be discharged under this Agreement at the Closing are subject to the following conditions:
(a) Representations and Warranties. The representations and warranties of Seller contained in this Agreement shall be true and correct at the Closing with the same force and effect as if made at the Closing.
(b) Compliance. Seller shall have performed, complied with and fulfilled all the covenants, agreements, obligations and conditions required by this Agreement to be performed, complied with or fulfilled by Seller at or prior to the Closing.
(c) No Proceedings. No action or proceedings shall have been instituted against and no order, decree or judgment of any court, agency, commission or governmental authority shall exist or be threatened against Buyer or Seller which seeks to restrain or will render it unlawful as of the Closing Date to effect the transactions contemplated hereby.
(d) Consents, Approvals. All approvals or consents of third parties, including federal, state and local authorities and creditors of the Seller (if applicable), the granting of which are necessary to consummate the transactions contemplated hereby and to permit Buyer to use and enjoy the Assets for the purposes for which they have previously been used by Seller, shall have been obtained by the parties. Such consents and approvals shall include, without limiting the generality of the foregoing, the granting to Buyer of licenses or permits to operate the perpetual care Cemeteries and to sell pre-need cemetery merchandise, pre-paid funeral services and spaces, crypts and niches in a mausoleum, underground crypt or columbarium prior to its construction by the Commonwealth of Kentucky and any other approval required by the Commonwealth of Kentucky or any local authorities.
(e) No Material Adverse Change. There shall have been no material adverse changes in the Assets or the Business.
(f) Due Diligence Complete. Buyer shall have completed, to its satisfaction, its due diligence review of Seller, the Assets and the Business.
(g) Survey; Title Commitment; Environmental. Buyer shall have obtained the following items pertaining to the Real Property in form and substance reasonably satisfactory to Buyer and its counsel:
(i) At Buyer's expense, surveys of the Real Property prepared in accordance with the Minimum Standard Detail Requirements of a Land Title Survey as jointly established by the American Land Title Association and the American Congress on Surveys and Mapping, duly certified to Buyer, Seller and the title company, and otherwise satisfactory in form and substance to Buyer and its counsel;
(ii) At Buyer's expense, ALTA Extended Owner's Form B policies of title insurance covering the Real Property, with a 3.1 zoning, access, contiguity and environmental endorsements, if available, and such other endorsements as Buyer may require, and otherwise satisfactory in form and substance to Buyer and its counsel; and
(iii) At Buyer's expense, Phase I and, if necessary, a Phase II environmental audits of the Real Property.
(h) Closing Delivery. Buyer shall have received from Seller all of the instruments, documents and certificates described in Section 9.2, and the form and substance of all such deliveries shall be reasonably satisfactory in all respects to Buyer and its counsel.
(i) Completion of Schedules. The Schedules attached hereto shall have been completed to Buyer's satisfaction.
7.2 Seller's Conditions. All obligations of Seller that are to be discharged under this Agreement at the Closing are subject to the following conditions:
(a) Representations and Warranties. The representations and warranties of Buyer contained in this Agreement shall be true and correct at the Closing with the same force and effect as if made at the Closing.
(b) Compliance. Buyer shall have performed, complied with and fulfilled all the covenants, agreements, obligations and conditions required by this Agreement to be performed, complied with or fulfilled by Buyer at or prior to the Closing.
(c) No Proceedings. No action or proceedings shall have been instituted against and no order, decree or judgment of any court, agency, commission or governmental authority shall exist or be threatened against Buyer or Seller which seeks to restrain or will render it unlawful as of the Closing Date to effect the transactions contemplated hereby.
(d) Consents, Approvals. All approvals or consents of third parties, including federal, state and local authorities and creditors of the Seller (if applicable), the granting of which are necessary to consummate the transactions contemplated hereby and to permit Buyer to use and enjoy the Assets for the purposes for which they have previously been used by Seller, shall have been obtained by the parties. Such consents and approvals shall include, without limiting the generality of the foregoing, the granting to Buyer of licenses or permits to operate the perpetual care Cemeteries and to sell pre-need cemetery merchandise, pre-paid funeral services and spaces, crypts and niches in a mausoleum, underground crypt or columbarium prior to its construction by the Commonwealth of Kentucky and any other approval required by the Commonwealth of Kentucky or any local authorities.
(e) Closing Delivery. Seller shall have received from Buyer all of the instruments, documents and certificates described in Section 9.3, and the form and substance of all such deliveries shall be reasonably satisfactory in all respects to Buyer and its counsel.
(f) Completion of Schedules. The Schedules attached hereto shall have been completed to Seller's satisfaction.
ARTICLE VIII
TERMINATION AND REMEDIES
8.1 Termination. Anything in this Agreement to the contrary notwithstanding, this Agreement may be terminated at any time prior to the Closing:
(a) by mutual written consent of Seller and Buyer;
(b) by Buyer (i) if any condition precedent to Buyer's obligations as set forth in Article VII has not been satisfied prior to September 30, 2003 or waived by Buyer, or (ii) if Seller shall fail to consummate the purchase of the Assets other than by reason of Buyer's breach of this Agreement; or
(c) By Seller (i) if any condition precedent to Seller's obligations as set forth in Article VII has not been satisfied prior to September 30, 2003 or waived by Seller, or (ii) if Buyer shall fail to consummate the purchase of the Assets other than by reason of Seller's breach of this Agreement.
(d) By any party pursuant to written notice, if (i) any governmental entity, the consent of which is a condition to the obligations of the parties to consummate the transactions contemplated hereby, shall have determined not to grant its consent and all appeals of such determination shall have been taken and have been unsuccessful, or (ii) any court of competent jurisdiction in the United States or any state shall have issued an order, judgment or decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the transaction provided for in this agreement and such order, judgment or decree shall have become final and nonappealable.
8.2 Method of Termination. If either Seller or Buyer elects to terminate this Agreement, they shall do so by written notice to that effect to the other party, stating the basis for such termination.
8.3 Consequences of Termination. In the event of termination of this Agreement, it shall forthwith become void and there shall be no liability on the part of the parties (except as set forth below in this Section 8.3) and each party hereto shall return to the others all documents and materials obtained from it or them in connection with the transactions contemplated by this Agreement. In the event of termination under Section 8.1(a) or (d), the parties shall be deemed to have released each other from any liability arising from the termination of this agreement. In the event of termination under Section 8.1(b) or (c), after satisfaction or waiver of all conditions precedent in Article VII, the parties shall retain all rights and remedies, if any, pertaining to any claim for breach of this agreement.
8.4 Specific Performance. Each of the parties hereby acknowledges that the Assets to be sold and purchased by this Agreement are unique and that Buyer shall have, in addition to any other legal or equitable remedies available to it, the right to enforce this Agreement by decree of specific performance.
ARTICLE IX
THE CLOSING
9.1 Time and Place. Consummation of the transactions contemplated by this agreement (the "Closing") shall take place at the offices of Seller's attorney, not later than September 30, 2003, unless the parties hereto otherwise agree to extend the time for Closing in writing. The date of the Closing shall be referred to herein as the "Closing Date."
9.2 Deliveries to Buyer. At the Closing, Seller shall deliver or cause to be delivered to Buyer the following:
(a) all instruments of transfer, bills of sale, general warranty deeds and other documents necessary to transfer the Assets to Buyer;
(b) written evidence that all Assets are free and clear of restrictions on, or conditions to, transfer or assignment, and are free and clear of mortgages, liens, security interests, encumbrances, or other adverse claims, including UCC financing statements and other appropriate lien searches;
(c) certificates of Seller as to the accuracy of its representations and warranties contained in this Agreement and as to its compliance with and fulfillment of all covenants, agreements, obligations and conditions required by this Agreement;
(d) copies of all resolutions adopted by the managers or members of Seller authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, together with a certificate, duly executed by the Secretary of Seller, stating that such copies are true, complete and correct, and that the resolutions have been duly adopted by the managers or members and remain in full force and effect;
(e) executed copies of the agreements listed and described on Schedule 9.2(e); and
(f) all other items required to be delivered hereunder or as may be requested by Buyer to facilitate the Closing of the transactions contemplated hereby.
9.3 Deliveries to Seller. At the Closing, Buyer shall deliver or cause to be delivered to Seller the following:
(a) cashier's check, certified check or wire transfer of funds in the amount of $6,750,000.00;
(b) executed copies of the agreements listed and described on Schedule 9.2(e); and
(c) certificates of Buyer as to the accuracy of its representations and warranties contained in this Agreement and as to its compliance with and fulfillment of all covenants, agreements, obligations and conditions required by this Agreement;
(d) copies of all resolutions adopted by the managers or members of Buyer authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, together with a certificate, duly executed by the Secretary of Buyer, stating that such copies are true, complete and correct, and that the resolutions have been duly adopted by the managers or members and remain in full force and effect;
(e) all other items required to be delivered hereunder or as may be requested by Seller to facilitate the Closing of the transactions contemplated hereby.
9.4 Public Statements. At the Closing, Buyer and Seller shall jointly issue the press release attached or to be attached as Schedule 9.4 and such other public statements agreed upon by the parties. Neither party shall issue any public statements about the transactions contemplated herein other than those required by federal or state securities laws without the written consent of the other party.
ARTICLE X
INDEMNIFICATION
10.1 Seller's General Indemnification Covenants. Subject to the provisions of Section 10.2, Seller shall save and keep Buyer harmless against and from all liability, demands, claims, actions or causes of action, assessments, losses, fines, penalties, costs, damages and expenses, including reasonable attorneys' fees, disbursements and expenses (collectively, "Damages"), asserted against, sustained or incurred by the Buyer as a result of, arising out of or by virtue of (i) any misrepresentation, breach of any warranty or representation, or non-fulfillment or breach of any agreement or covenant contained herein on the part of Seller; (ii) any claim, lawsuit, obligation, tax deficiency, or other liability or expense which was not an Assumed Liability; (iii) the conduct of the Business prior to the Closing Date, but limited to the time during which Seller owned the Business; (iv) any and all broker's, finder's or similar fees payable by Seller in connection with the transactions contemplated hereunder;
10.2 Limitations on Indemnification. The obligations of Seller pursuant to Section 10.1 are subject to the following limitations:
(a) In no event shall the obligation of Seller to indemnify the Buyer pursuant to Section 10.1 exceed Three Million, Three Hundred Seventy Five Thousand Dollars ($3,375,000) in the aggregate.
(b) Seller shall not have any indemnification obligation with respect to the first Fifty Thousand Dollars ($50,000) of total liabilities incurred under Section 10.1(i), unless the total aggregate liabilities of Seller under Section 10.1(i) equal or exceed such amount, in which case the indemnification obligations of Seller will include only liabilities in excess of Fifty Thousand Dollars ($50,000) incurred under Section 10.1(i) (subject to the maximum aggregate amount set forth in Section 10.2(a) above).
10.3 Conditions of Indemnification Pursuant to Section 10.1.
(a) Promptly following the occurrence of an event giving rise to Damages or upon the receipt by the Buyer of notice of a demand, claim, action, assessment or proceeding made or brought by a third party, (a "Third Party Claim") which is subject to indemnification pursuant to Section 10.1, the Buyer (i) shall notify Seller of its existence, setting forth the facts and circumstances of which the Buyer has received notice, specifying the basis hereunder upon which the Buyer's claim for indemnification is asserted.
(b) The Buyer shall, upon reasonable notice by Seller, tender the defense of a Third Party Claim to Seller. If Seller accepts responsibility for the defense of a Third Party Claim, then it shall have the exclusive right to contest, defend and litigate the Third Party Claim and shall have the exclusive right, in its discretion exercised in good faith and upon the advice of counsel, to settle any such matter, either before or after the initiation of litigation, at such time and upon such terms as it deems fair and reasonable, provided that at least ten (10) days prior to any such settlement, Seller shall give written notice of its intentions to settle to the Buyer. The Buyer shall have the right to be represented by counsel at its own expense in any defense conducted by Seller.
(c) If, in accordance with the foregoing provisions of this Section 10.3, the Buyer shall be entitled to indemnification against a Third Party Claim, and if Seller shall fail to accept the defense of a Third Party Claim which has been tendered in accordance with this Section 10.3, the Buyer shall have the right, without prejudice to its right of indemnification hereunder, in its discretion exercised in good faith and upon the advice of counsel, to contest, defend and litigate such Third Party Claim, and may settle such Third Party Claim, either before or after the initiation of litigation, at such time and upon such terms as the Buyer deems fair and reasonable, provided that at least ten (10) days prior to any such settlement, written notice of Buyer's intention to settle is given to Seller. If, pursuant to this Section 10.3, the Buyer so defends or settles a Third Party Claim for which it is entitled to indemnification hereunder, as hereinabove provided, the Buyer shall be reimbursed by Seller for the reasonable attorneys' fees and other expenses of defending the Third Party Claim (including, without limitation, payment of any judgment or settlement) which are incurred by Buyer from time to time. Such payment shall be made within thirty (30) days following the presentation to Seller of itemized bills for said attorneys' fees and other expenses.
10.4 Buyer's Indemnification Covenants. Buyer shall save and keep Seller harmless against and from all liability, demands, claims, actions or causes of action, assessments, losses, fines, penalties, costs, damages and expenses, including reasonable attorneys' fees, disbursements and expenses (collectively, "Damages"), sustained or incurred by the Seller as a result of, arising out of or by virtue of (i) any misrepresentation, breach of any warranty or representation, or non-fulfillment or breach of any agreement or covenant contained herein on the part of Buyer; (ii) any claim, lawsuit, obligation, tax deficiency, or other liability or expense which is an Assumed Liability; (iii) the conduct of the Business after the Closing Date; (iv) any and all broker's, finder's or similar fees payable by Buyer in connection with the transactions contemplated hereunder.
ARTICLE XI
MISCELLANEOUS
11.1 Survival.
(a) Except as otherwise specifically provided herein, all representations, warranties, covenants and agreements of the parties contained herein and in the Schedules and the Exhibits hereto and in any closing certificates delivered pursuant hereto shall survive the execution and delivery of this agreement and the Closing; provided, however, that, notwithstanding the foregoing, the representations and warranties set forth herein shall survive the execution and delivery hereof and the Closing for a period of eighteen (18) months after the Closing Date.
(b) Notwithstanding the provisions of Section 11.1(a) above, the covenants and agreements contained in Article VI shall survive the Closing Date for the period of performance set forth therein.
11.2 Good Faith. Each party hereto shall act in good faith in an attempt to cause all the conditions precedent to its obligations under this Agreement to be satisfied. Each party hereto will act in good faith and take all reasonable actions within its capability necessary to render accurate as of the Closing Date its representations and warranties required to be true as of such time and set forth in this Agreement.
11.3 Payment of Expenses. Except as otherwise provided herein, and whether or not the transactions provided for herein shall be consummated, each party hereto shall pay his or its own expenses incident to preparing for, entering into and carrying out this Agreement and the transactions contemplated hereby.
11.4 Assignment, Successors and Assigns. No party may assign or transfer any of its rights or obligations hereunder without the prior written consent of all other parties hereto, given or withheld in their sole discretion. This Agreement shall be binding upon and inure to the benefit of each party hereto and their respective heirs, personal representatives, successors and permitted assigns. Notwithstanding any other provision of this Agreement, Buyer shall be entitled to assign its rights under this Agreement to an affiliated entity, provided that Buyer shall not be released from its obligations hereunder.
11.5 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been duly given (a) upon delivery in person if the party to whom notice is given issues a receipt therefore; (b) three days after deposit if mailed by registered or certified mail, return receipt requested; or (c) the next business day after delivery to an overnight delivery service to the party to whom notice is to be given, addressed as follows:
If to Seller:
Rock of Ages Kentucky Cemeteries, LLC
c/o Rock of Ages Corporation
369 North State Street
Concord, New Hampshire
Attention: Michael B. Tule
If to Buyer:
Saber Management, LLC
612 North Webster Street
Kokomo, Indiana 46901
Attention: David A. Sullivan
With copy to:
Harry F. Todd
Bose McKinney & Evans LLP
2700 First Indiana Plaza
135 North Pennsylvania Street
Indianapolis, Indiana 46204
11.6 Amendments. This Agreement may be amended, modified, or superseded only by written instrument executed by all parties hereto.
11.7 Time of Essence. Time is of the essence in the performance of this Agreement.
11.8 Headings and Captions. The headings and captions contained in this Agreement are included for purposes of convenience only, and shall not affect the construction or interpretation of any of its provisions.
11.9 Entire Agreement. This Agreement, including all Schedules and all documents delivered hereby, constitutes the entire agreement between the parties pertaining to the subject matter contained in it, and supersedes all prior and contemporaneous agreements and understandings of the parties.
11.10 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Kentucky and of the United States applicable in Kentucky. Each party hereby acknowledges and agrees that it has consulted legal counsel in connection with the negotiation of this Agreement and that it has bargaining power equal to that of the other parties hereto in connection with the negotiation and execution of this Agreement. Accordingly, the parties hereto agree that the rule of contract construction that an agreement shall be construed against the draftsman shall have no application in the construction or interpretation of this Agreement.
11.11 Severability. If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants and restrictions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the parties that they would have executed this Agreement had the terms, provisions, covenants and restrictions which may be hereafter declared invalid, void, or unenforceable not initially been included herein.
11.12 Further Assurances. The parties hereto, on behalf of themselves and their respective successors and assigns, covenant and agree to take or cause to be taken all such further acts, including the execution and delivery of documents, instruments, conveyances, and powers of attorney, as may be requested to consummate the transactions contemplated hereby. Without limiting the generality of the foregoing, Seller covenants and agrees to (a) take any and all actions, and to execute, acknowledge and deliver any and all documents and assurances as Buyer may require for transferring and assigning the Assets to Buyer, and to protect the right, title and interest of Buyer in and to, and its enjoyment of, the Assets, and (b) cooperate with Buyer, lend reasonable assistance and provide additional information to Buyer as may be necessary for Buyer to respond to inquiries from or to comply with reporting obligations to federal, state, or local governmental authorities with regard to the Business or the Assets (including the Perpetual Care Trusts, Merchandise Trusts, Pre-Paid Funeral Trusts and Preconstruction Mausoleum Trusts) for periods prior to the Closing Date.
11.13 Rights of Non‑Parties. Except as otherwise provided in Article VI hereof, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties to it and their respective successors and assigns, nor shall any provision give any third persons any right of subrogation or action against any party to this Agreement. Without limiting the generality of the foregoing, it is expressly understood that this Agreement is not intended to convey to any other third party with any pre‑existing contractual or legal relationship with Seller any rights as third‑party beneficiary or create any obligation to any such party in privity with Buyer.
11.14 Tax Consequences. Each party represents and warrants that it has made an independent evaluation of the tax consequences to such party of this Agreement and the transactions contemplated thereby. No party shall have any recourse against any other party to this Agreement nor shall this Agreement be affected in any way if the consummation of this Agreement and the transactions contemplated thereby do not have the tax consequences anticipated by such party; provided that the foregoing shall not limit a party's liability for breach of any representation, warranty, covenant or agreement set forth herein.
11.15 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.
11.16 Exhibits. Each Exhibit (herein an "Exhibit") or Schedule (herein a "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 hereto that such Schedule or Exhibit, if mutually satisfactory, may be attached hereto after the date of execution hereof and prior to the Closing and, after mutual approval thereof, such subsequently attached Schedule or Exhibit shall be treated as if it were attached hereto as of the date of execution hereof. 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 to this Agreement have duly executed this Agreement on and effective as of the date first above written.
SELLER
ROCK OF AGES KENTUCKY CEMETERIES, LLC
By: /s/ Kurt M. Swenson
Kurt M. Swenson
Chairman and Chief Executive Officer
BUYER
SABER MANAGEMENT, LLC
By: /s/ David A. Sullivan
David A. Sullivan
President
List of Schedules*
|
1.0 |
|
List of Cemeteries |
|
1.2 |
|
Assumed Liabilities |
|
1.4 |
|
Allocation of Purchase Price |
|
2.1 |
|
Real Property |
|
2.2 |
|
Equipment, Furniture and Furnishings |
|
2.3 |
|
Rolling Stock |
|
2.4 |
|
Inventory |
|
2.5 |
|
Receivables |
|
2.6 |
|
Perpetual Care Trust Information |
|
2.7 |
|
Pre-Need Cemetery Merchandise Trust Information |
|
2.8 |
|
Pre-Paid Funeral Trust Information |
|
2.9 |
|
Preconstruction Mausoleum Trust Information |
|
2.10 |
|
Licenses and Permits |
|
2.11 |
|
Description of Tradenames, Trademarks, etc. |
|
2.12 |
|
Contracts |
|
2.13 |
|
Business Records |
|
2.14 |
|
Miscellaneous Assets |
|
2.15 |
|
Excluded Assets |
|
3.5 |
|
Encumbrances to Real Estate |
|
3.5(b) |
|
Parties in Possession of Assets |
|
3.6 |
|
Condition of Equipment |
|
3.7(b) |
|
Environmental Reports |
|
3.8 |
|
Compliance with Law |
|
3.9 |
|
Litigation |
|
3.16(a) |
|
Personnel |
|
3.16(b) |
|
Employee Benefit Plans |
|
6.2 |
|
Monument Sections |
|
9.2(e) |
|
Concurrent Agreements |
|
9.4 |
|
Press Release |
* The Schedules identified above have been omitted pursuant to S-K Item 601(b)(2). Registrant agrees to furnish supplementally a copy of any of the above schedules to the Commission upon request.