Exhibit 10.6











 

 

EXCLUSIVE
SUPPLY AGREEMENT




            This Exclusive Supply
Agreement (this "Agreement"), is entered into as of March 29, 2005, by
and between Cornerstone Building and Remodeling, Inc., a Florida corporation ("Customer")
and Cornerstone Granite & Marble Wholesale, Inc., a Florida corporation ("Supplier").




WITNESSETH:




            WHEREAS, Supplier is
a wholesaler of granite and marble slabs and related products, with first-right
relationships with stone quarries around the world;




WHEREAS,
Customer is a producer of granite and marble countertops;




WHEREAS,
Supplier is currently the exclusive supplier of certain products to Customer,
pursuant to that certain Exclusive Supply Agreement between Customer and
Supplier, as amended February 14, 2005 (the "Existing Agreement");




WHEREAS,
Customer and Supplier desire to amend and restate the Existing Agreement with
this Agreement, which shall supersede the Existing Agreement in its entirety,
and clarify the terms under which Supplier shall provide Customer with the
products set forth herein.




            NOW THEREFORE, in
consideration of the foregoing premises and the mutual covenants and
undertakings contained herein, and of other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties to this
Agreement hereby agree as follows:




ARTICLE I




SUPPLY OF PRODUCTS




1.01     Retention
and Appointment.  Customer hereby retains and appoints Supplier as its
exclusive supplier of all raw granite and marble slabs, sinks, tiles, and
hardware, cabinet refaced products, and fabrication supplies used in the
installation of granite and marble countertops (collectively, the "Products"),
and Supplier hereby accepts such retention and appointment and assumes all
obligations associated herein.




            1.02     Order
Procedure; Delivery Timeframe.  Customer shall submit orders to purchase
Products to Supplier on Customer's standard purchase order form, which must
first be approved in writing and initialed by an authorized officer of
Customer, a list of which shall be provided to Supplier and updated as
necessary by Customer.  Supplier shall supply the ordered Products to Customer
within the time specified in the applicable purchase order, but Customer shall
give Supplier at least seven business days to deliver the Products.  Customer
shall have the right to accumulate supplies of Products as needed in order to
have sufficient quantities for manufacturing.

 

 


























            1.03     Shipping. 
Supplier shall suitably package and ship the Products to Customer's Fort Myers,
Florida location, or such other location as directed by Customer, and the risk
of loss during transit shall be borne solely by Supplier until Products are
unloaded at Customer's facility and accepted by Customer.  Supplier agrees,
from time to time, to open additional warehouses as requested by Customer to
support the geographical growth of Customer.




1.04     Quality
Audits.  Customer shall have the right, upon three days prior notice
to Supplier, to inspect any of Supplier's facilities and operations to
determine whether Supplier is producing or supplying the Products in accordance
with this Agreement.


1.05     Right
to Purchase Products from Other Sources.  In the event that, for any
reason, Supplier cannot supply Customer with Products ordered by Customer
within the timeframes requested by Customer, Customer may obtain such Products
from another source; provided, however, that once Supplier can demonstrate that
Supplier is again able to supply the Products to Customer on a timely basis,
Customer shall return to purchasing the Products exclusively from Supplier
under the terms of this Agreement.




ARTICLE II




PRICING AND
QUANTITIES




            2.01      Product
Pricing.  The Products shall be priced to Customer at Supplier's necessary,
documented out-of-pocket costs of obtaining (direct costs of purchases and
shipping only, including foreign currency conversion, excluding any overhead
costs of Supplier) and shipping the Products to Customer, plus a 20.0% mark-up;
provided however Supplier assures Customer of its lowest pricing.  In the event
Supplier offers a lower price to any customer, it shall immediately notify
Customer and extend such price to Customer so long as any other customer of
Supplier has such lower pricing.  Supplier shall notify Customer at time of
Purchase Order of any factor that Supplier expects to cause an increase or
decrease of at least 15% in the cost of any Products or delivery thereof.




            2.02    Terms of
Payment.  Customer shall pay Supplier within 45 days of receiving
Supplier's invoice for Products delivered to and accepted by Customer. Customer
shall have 150 days from the Effective Date to bring all amounts currently owed
to Supplier that exceed 45 days to within the 45 days required by this Section
2.02.  All amounts invoiced by Supplier, and amounts paid by Customer, shall be
in U.S. currency.

 

 






	
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            2.03      Minimum
Quantities Purchased.  Customer hereby agrees to purchase at least $325,000
per month of Products from Supplier during the Term.  Customer will not be
obligated to pay Supplier for any shortfall of this minimum purchase
requirement, but Customer will make Supplier whole by purchasing the aggregate
shortfall of product from Supplier every 2 months.  Customer shall notify
Supplier as soon as possible of any factor that Supplier expects to cause an
increase or decrease of at least 10% in the historical quantities of Products
purchased.








            2.04      Record
Keeping.


(a) Monthly
Accounting.  Supplier shall maintain complete and correct records
containing all data required for Customer to verify the costs of Products for
purposes of calculating and verifying the prices for Products as set forth in
Section 2.01.  




(b) Audit. 
Customer shall have the right, during normal business hours and upon 10 days'
prior notice, to audit the records described in Section 2.04(a) hereof to
verify Supplier's compliance with this Agreement.  Any such audit shall be
conducted at Customer's expense unless the results of such audit establish
inaccuracies that have resulted in any overpayment by Customer to Supplier.  If
Customer establishes any such overpayment, Supplier shall pay all costs of the
audit and shall pay all amounts determined by Customer to have been overpaid to
Supplier, plus 2% interest on any such overpaid amounts, and such interest
shall accrue from the date such amounts were paid by Customer through the date
of Supplier's repayment to Customer.  Supplier shall pay all such amounts
overpaid by Customer, including the interest thereon, and Customer's costs of
the audit, no later than 45 days following written notice by Customer setting
forth the calculation of such amounts.  In the event that Supplier does not pay
such amounts to Customer within such 45-day timeframe, Customer shall have the
right to offset future amounts owed to Supplier by such amounts.


 


ARTICLE III




TERM AND
TERMINATION




            3.01      Expiration;
Renewal.  This Agreement shall have an initial term of 20 years commencing
on the date hereof and expiring on the 20th anniversary thereof (the "Initial
Term").  On or before the expiration of the Initial Term, Customer and
Supplier shall negotiate in good faith to renew this Agreement, and any such
renewal period that is agreed to shall constitute the "Renewal Term". 
For the purposes of this Agreement, the term "Expiration Date" shall
refer to (a) the last day of the Initial Term if the term of this Agreement is
not timely renewed, or (b) the last day of the Renewal Term in the event that
the parties hereto renew the Initial Term of this Agreement.






	
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3.02      Termination. 
This Agreement may be terminated prior to the Expiration Date (a) by both
parties hereto at any time upon the mutual written agreement of both parties
hereto; (b) by the non-breaching party to this Agreement upon a material breach
of any term or provision of this Agreement by the other party hereto, that is
not cured by the breaching party within 90 days of written notice by the
non-breaching party specifically describing such breach; or (c) by either party
at any time in the event (i) all or a substantial portion of the other party's
assets have been transferred or are subject to transfer for the benefit of
creditors; (ii) a proceeding has been commenced by or against the other party
for relief under bankruptcy, insolvency, or similar laws; (iii) any court of
competent jurisdiction adjudicates or otherwise determines that the other party
is insolvent or bankrupt; (iv) the other party ceases to do business in the
ordinary course; or (v) any court of competent jurisdiction or appropriate
government agency makes a non-appealable and legally binding determination that
the transactions contemplated hereby are unlawful.  The date upon which any
such termination becomes effective in accordance with this Section 3.02 shall
be set forth in any notice required hereunder and is referred to herein as the
"Termination Date."


3.03      Effect
of Expiration or Termination.  Upon the earlier of the Termination Date or
the Expiration Date, all rights and obligations of the parties to this
Agreement granted hereby shall cease; provided, however, that all payment and
record keeping obligations accrued and unpaid and/or unsatisfied through the
Termination Date or Expiration Date, as appropriate, and all rights and
obligations set forth in Articles IV and V and Section 3.04 below shall survive
the termination of this Agreement indefinitely, subject to any time limit
otherwise specified in such provisions or until fully satisfied in accordance
with the terms hereof.




3.04      Option
to Purchase Inventory.  In the event that this Agreement is terminated
pursuant to Section 3.02(c), due to the events described therein that pertain to
Supplier, Customer shall, upon written notice to Supplier, have the option to
purchase up to a 60 day supply, based upon a historical six month purchase
rate, of Supplier's remaining inventory at the agreed markup and subject to any
required consent or approval of a bankruptcy court or court appointed trustee. 





ARTICLE IV




REPRESENTATIONS,
WARRANTIES, AND COVENANTS




            4.01     Customer's
Representations, Warranties, and Covenants.  As an inducement to Supplier
to enter into this Agreement, Customer hereby represents, warrants, and
covenants the following to Supplier:




                        (a)        Organization
and Good Standing.  Customer is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Florida.




                        (b)        Authority. 
Customer has all requisite corporate power and authority to execute and deliver
this Agreement and any instruments and agreements contemplated herein and
required to be executed and delivered pursuant to this Agreement.  The person
signing this Agreement on behalf of Customer has been duly and properly
authorized to execute this Agreement.  This Agreement represents a valid and
binding obligation of Customer, enforceable against Customer in accordance with
its terms except as otherwise limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws affecting the enforcement of
creditors' rights generally, and to the application of general principles of
equity and judicial discretion.




	
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                        (c)        No
Violation.  Neither the execution of this Agreement nor the performance of
the transactions contemplated herein will conflict with, breach, or cause a
default under any agreement to which Customer is a party.




                        (d)         No
Exporting.  Customer will use reasonable commercial efforts to ensure that
the Products are not processed for ultimate export outside of North America,
since Supplier has the exclusive right to distribute the Products outside of
North America.




            4.02     Supplier's
Representations and Warranties.  As an inducement to Customer to enter into
this Agreement, Supplier hereby represents and warrants the following to
Customer:




                        (a)         Organization
and Good Standing.  Supplier is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Florida.




                        (b)        Authority.
 Supplier has all requisite corporate power and authority to execute and
deliver this Agreement and any instruments and agreements contemplated herein
and required to be executed and delivered pursuant to this Agreement.  The
person signing this Agreement on behalf of Supplier has been duly and properly
authorized to execute this Agreement.  This Agreement represents a valid and
binding obligation of Supplier, enforceable against Supplier in accordance with
its terms except as otherwise limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws affecting the enforcement of
creditors' rights generally, and to the application of general principles of
equity and judicial discretion.




                        (c)        No
Violation.  Neither the execution of this Agreement nor the performance of
the transactions contemplated herein will conflict with, breach, or cause a
default under any agreement to which Supplier is a party.




                        (d)         Quality
of Products Delivered.  Supplier represents and warrants that all Products
delivered to Customer will meet or exceed all industry quality standards for
such products, and if any Products have a manufacturer's warranty, such
warranty shall be assigned to Customer upon delivery of such Products to
Customer.


ARTICLE V




CONFIDENTIALITY

            
5.01     Confidentiality. 
Any party hereto receiving Confidential Information (as such term is
defined in this Section 5.01) in the negotiation of or performance of its
obligations under this Agreement shall keep such Confidential Information in strictest
confidence and shall not use for its own benefit (except as expressly permitted
under this Agreement) or disclose such Confidential Information to any person
except to persons retained or employed by such receiving party whose assistance
is necessary to perform the obligations contained in this Agreement, without
the prior written consent of the disclosing party.  The term "Confidential
Information" shall, for the purposes of this Agreement, mean all information
relating to the customers and projects undertaken by Customer, and all other
proprietary information owned by Customer or Supplier; provided, however, that
such term shall not include (a) information in the public domain, (b)
information generally available to the public, (c) information rightfully
received from a third party without a breach of an agreement restricting the
use or disclosure of such information, (d) information independently developed
by such receiving party without breach of this Agreement, or (e) information
approved for disclosure in writing by the disclosing party.

 






	
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            5.02     Return of
Confidential Information.  Each party hereto agrees to return to the other
party all documents or other materials constituting or containing Confidential
Information no later than 90 days following the earlier of the Termination Date
or the Expiration Date.




ARTICLE VI




MISCELLANEOUS




            6.01      Further
Assurances.  Each party hereto agrees to perform any further acts and to
execute and deliver any further documents reasonably necessary to carry out the
terms and intent of this Agreement.




            6.02      Severability. 
In the event any provision, or any portion of any provision, of this Agreement
is held to be illegal, unenforceable, or invalid by any court of competent
jurisdiction, the legality, enforceability, and validity of the remaining
provisions, or portions thereof, shall not be affected thereby, and, in lieu of
the illegal, unenforceable, or invalid provision, or portion thereof, there
shall be added a new legal, enforceable, and valid provision as similar in
scope and effect as is necessary to effectuate the results intended by such
deleted provision or portion.




            6.03      Governing
Law; Venue.  THIS AGREEMENT HAS BEEN EXECUTED IN AND SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF FLORIDA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
RULES THEREOF OR OF ANY STATE.  VENUE FOR ANY ACTION BROUGHT HEREUNDER SHALL BE
PROPER EXCLUSIVELY IN LEE COUNTY, FLORIDA.




            6.04      Arbitration. 
Upon the mutual agreement of Customer and Supplier, and dispute arising
hereunder shall be submitted to arbitration under the AAA rules in Fort Myers,
Florida, and such arbitration shall be conducted in English. 






	
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            6.05      Legal
Remedies; Specific Performance.  Any damages that may accrue to either
party hereto as a result of a failure of either such party to perform its
obligations under this Agreement will not be readily subject to financial
measure.  As such, each party hereto shall be subject to the remedy of specific
performance as to any provision of this Agreement if such party is found to
have violated such provision by any court of competent jurisdiction.  The
parties hereto waive any claim or defense in any such action that the party
bringing such action has an adequate remedy at law.




            6.06      Court
Costs; Attorneys' Fees.  In the event an action is brought to enforce or
interpret the provisions of this Agreement by either party hereto, the
prevailing party in such action shall be entitled to recover all court costs
and reasonable attorneys' fees from the non-prevailing party to such action in
addition to any other relief awarded by the court in such action.




            6.07      Inurement;
Assignment.  Neither party shall have the right to assign or delegate any
of its rights and obligations under this Agreement for any purpose except with
the express written consent of the other party, which may be unreasonably
withheld; provided, however, that (a) Supplier hereby consents to the proposed
merger of Customer into a wholly-owned subsidiary of Home Solutions of America,
Inc., and acknowledges that this Agreement shall remain in full force and
effect following such merger, and (b) Customer hereby consents to the proposed
Reverse-Take-Over by Supplier into a wholly-owned subsidiary of BBC Capital
Management Corporation, and acknowledges that this Agreement shall remain in
full force and effect following such merger.




            6.08      Waivers. 
No waiver of any provision or condition of this Agreement shall be valid unless
executed in writing and signed by the party to be bound thereby.  No waiver of
any provision or condition of this Agreement shall be construed as a waiver of
any other provision or condition of this Agreement, and no present waiver of
any provision or condition of this Agreement shall be construed as a future
waiver of such provision or condition.




            6.09       Amendment. 
This Agreement may be amended solely upon the unanimous written consent of the
parties hereto.




            6.10     Entire
Agreement.  This Agreement contains the entire understanding between the
parties hereto concerning the subject matter herein.  No representations,
agreements, arrangements, or understandings, oral or written, exist between or
among the parties hereto that relate to the subject matter of this Agreement. 
This Agreement replaces and supersedes the Existing Agreement in its entirety.




            6.11       Mutual
Drafting.  Each party hereto and their counsel have participated fully in
the drafting, review, and revision of this Agreement.




            6.12     Notices. 
Any notice, consent, waiver, demand, payment, or other communication required
or permitted to be given by any provision of this Agreement shall be deemed to
have been given for all purposes if (i) delivered personally to the relevant
party, or (ii) sent by overnight delivery service, or registered or certified
mail, postage and charges prepaid, to the relevant address set forth below:






	
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If to Customer:             Cornerstone Building and Remodeling, Inc.

5642
Enterprise Parkway

Fort Myers,
FL 33905




If to Supplier:                Cornerstone Granite & Marble
Wholesale, Inc.

5642
Enterprise Parkway

Fort Myers, FL 33905




Any such notice shall be deemed
to have been given as of the date delivered, if delivered personally, or as of
the date on which the notice was deposited in the U.S. mail or with an
overnight delivery service, properly addressed and sent in accordance with this
Section 6.12 (whether or not actually received).




            6.13     Multiple
Counterparts.  This Agreement may be executed in multiple counterparts,
including by facsimile signature, each of which shall be deemed to be an
original but all of which together shall constitute one and the same
instrument.




[Remainder of page
intentionally left blank.]

 

 

 

 

 

 

 






	
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            IN WITNESS WHEREOF,
the parties to this Agreement have set their respective hands hereto as of the
date first above written.






CUSTOMER:


CORNERSTONE BUILDING AND
REMODELING, INC.








By:                                                                  


Name:                                                             


Title:                                                                 








 

SUPPLIER:


CORNERSTONE GRANITE &
MARBLE WHOLESALE, INC.








By:                                                                  


Name:                                                             


Title: