ROAC Exhibit 10.1







Exhibit 10.1




 


 



CONSENT
AND ASSUMPTION AGREEMENT






This Consent and Assumption Agreement ("Agreement")
is made as of December 7, 2009 by and among ROCK OF AGES CORPORATION, a
Delaware corporation ("Existing Company"), ROCK OF AGES CORPORATION
(VERMONT) ("New Company"), CAROLINA QUARRIES, INC. ("Carolina")
and PENNSYLVANIA GRANITE CORP. ("Pennsylvania"; and together with
Existing Company, New Company and Carolina, each individually, a "Company"
and collectively the "Companies")
the financial institutions party to the Financing Agreement (as defined below)
as lenders ("Lenders"), and THE CIT GROUP/BUSINESS CREDIT, INC.,
as agent for Lenders ("Agent"). 


BACKGROUND


A.        Existing Company, Carolina and
Pennsylvania, as the "Companies" thereunder, together with Lenders and Agent, are
parties to a certain Amended and Restated Financing Agreement dated as of
October 24, 2007 (including all annexes, exhibits and schedules thereto, and as may heretofore otherwise have been
and may hereafter be amended, modified, restated and replaced from time to
time, the, the "Financing Agreement"), pursuant to which Existing
Company, Carolina and Pennsylvania established certain financing facilities and
arrangements with Lenders and Agent.  All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Financing
Agreement.  Carolina and Pennsylvania are sometimes referred to herein
collectively as the "Other Companies".


B.        Existing Company has requested that
it be permitted to merge into New Company, with New Company being the surviving
corporation (the "Merger"), pursuant to that Agreement and Plan of
Merger attached as Appendix A to that certain Proxy Statement mailed to its
stockholders on or about September 17, 2009 (the "Proxy Statement"), a
copy of which Existing Company has previously provided to the Agent, and
which is substantially in the form of Exhibit "A" attached hereto
(collectively, the "Plan of Merger").  Pursuant to the Plan of Merger,
New Company has agreed to, inter alia, assume and perform all obligations
of Existing Company under all of its existing agreements, including without
limitation, the Financing Documents.  After giving effect to the Merger, the
name of New Company, as the survivor of the Merger, will be Rock of Ages
Corporation.


C.        Lenders and Agent have agreed to (i)
consent to the Plan of Merger, (ii) permit New Company to assume all of the
rights and obligations of Existing Company under the Financing Agreement and
the other Financing Documents and (iii) amend the Financing Agreement, as
necessary, to conform with the agreements and undertakings above, in each and
every case only on the terms and conditions, and according to the provisions of
this Agreement.


NOW, THEREFORE, with the foregoing recitals
incorporated by reference and made a part hereof, and in consideration of the
foregoing and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound, the parties agree as follows:




 




 
























1.   
Consent.  Upon the effectiveness of this Agreement and subject to
the terms and conditions hereof, and notwithstanding anything to the contrary
contained in Section 7(10)(e) of the Financing Agreement, Agent and Lenders
hereby consent to the Merger pursuant to the Plan of Merger.


2.   
Agreement.



a.    Upon the effectiveness of this Agreement, and subject to the terms and
conditions hereof, New Company assumes and adopts all of the duties,
obligations, indebtedness, liabilities, covenants and undertakings of, and
becomes, a Company under the Financing Documents (specifically including any
Term Loan Promissory Note or other promissory note(s) evidencing any of the
Revolving Loans, Term Loans or other Obligations issued by Existing Company and
the Other Companies to Lender, and any amendments and restatements or
replacements thereof, delivered by Companies in connection with this Agreement)
and with respect to all Revolving Loans, Term Loans and other Obligations
(whether such Revolving Loans, Term Loans and/or Obligations are outstanding as
of the date hereof or arise or are incurred or created in the future), and
agrees to be bound by, and comply with, all the terms and conditions of the
Financing Documents, in each and every case all as if New Company was an
original and direct signatory to the Financing Agreement and the other
Financing Documents (and in each case all as if New Company was the entity
referred to as "ROA" in the Financing Agreement and the other Financing
Documents).  Without limiting the generality of the provisions of this paragraph,
New Company hereby agrees that it is, and will be, jointly and severally liable
(with the other Companies) for all existing Revolving Loans, Term Loans, and
other Obligations incurred prior to the date hereby by Existing Company and the
Other Companies under the Financing Documents, including without limitation,
all interest on all Revolving Loans and Term Loans and all fees, costs and
expenses to be paid by the Companies under the Financing Agreement and the
other Financing Documents.


b.    
In furtherance of and to effectuate the foregoing, Companies, Lenders,
and Agent hereby agree that, upon the effectiveness of this Agreement, and
subject to the terms and conditions hereof, except as otherwise specifically
provided herein, (i) all references to "Companies" contained in the
Financing Documents (specifically including, without limitation, all such
references to "Companies" contained in the definition of
"Obligations" contained in the Financing Agreement) are hereby deemed
for all purposes to refer to New Company as a Company, and that all covenants
or undertakings applicable to a "Company" under the Financing
Documents shall be deemed to refer and apply to New Company and (ii) all
references to "ROA" contained in the Financing Documents are hereby
deemed for all purposes to refer to New Company, and that all covenants or
undertakings applicable and/or making reference to "ROA" under the
Financing Documents shall be deemed to refer and apply to New Company.























3.   
Grant and Reconfirmation of Security Interests and Liens.  As
collateral security for the prompt and complete payment in full when due
(whether at the stated maturity, by acceleration or otherwise) of all loans and
advances made and to be made to, or for the benefit of, the Companies and/or
any one or more of them, from time to time (whether heretofore or hereafter) by
the Lenders, acting through the Agent, pursuant hereto, as well as to secure
the payment and performance of all of the other Obligations of every Company,
New Company hereby (i) pledges and grants to the Agent, for the ratable benefit
of the Lenders and the benefit of Agent, a security interest in and continuing
lien on, all of New Company's right, title and interest in, to and under all
personal property of New Company including, but not limited to the Collateral
(as defined in the Financing Agreement), including more particularly all of the
following, in each case now or at any time hereafter acquired by New Company or
in which New Company now has or at any time in the future may acquire any right,
title or interest, wherever located:


 




	
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•        
all Goods, including all Equipment and Inventory;


•        
all Accounts;


•        
all Documents of Title;


•        
all General Intangibles;


•        
all Chattel Paper;


•        
all Instruments;


•        
all Insurance;


•        
all Investment Related Property;


•        
all Letter of Credit Rights;


•        
all Deposit Accounts;


•        
all Commercial Tort Claims;


•        
all Collateral Documents, Collateral Support and Supporting
Obligations relating to any of the foregoing and all other books and records of
such Company;


•        
the Real Estate; and 


•        
all Proceeds, products, accessions, rents and profits of or in
respect of any of the foregoing;




 




and (ii) also pledges and grants to the Agent, for
the ratable benefit of the Lenders and the benefit of Agent, a security
interest in and continuing lien on any and all other collateral in which a lien
has been created by Existing Company under the Financing Agreement and the
other Financing Documents (specifically including capital stock or other equity
interests (and any related collateral and property) in which Existing Company has
as of the date hereof acquired any right, title or interest that is either (i)
described in any pledge agreements included in the Financing Documents to which
Existing Company is a party and/or (ii) evidenced by any certificates heretofore
delivered by Existing Company to Agent).  Without limiting the generality
of Section 1 of this Agreement above, New Company shall comply with all of the
provisions of Section 6 of the Financing Agreement and in addition without
limiting the provisions of such Section 6, New Company (x) represents and
warrants to Agent that as of the date hereof, to the best of its knowledge after
due inquiry, New Company holds no interest in any Commercial Tort Claim and (y)
agrees that if New Company at any time holds or acquires a Commercial Tort
Claim, New Company agrees to promptly notify Agent in writing of the details
thereof, and in such writing New Company shall grant to Agent a security
interest in such Commercial Tort Claim and in the proceeds thereof, all upon the
terms of the Financing Agreement.  




 




 






	
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New Company hereby authorizes the
filing of any financing statements or continuation statements, and amendments to
financing statements or any similar document in any applicable jurisdictions and
with any filing offices as Agent may reasonably determine are necessary or
advisable to perfect the security interest granted to the Agent herein and in
the other Financing Documents.  Such financing statements may describe the
Collateral owned by New Company in the same manner as described herein or may
contain an indication or a description of collateral that describes such
property in any other manner as Agent may reasonably determine is necessary,
advisable or prudent to ensure the perfection of the security interest in the
Collateral granted to Agent herein, including, without limitation, describing
such property as "all assets" or "all personal property, whether now owned or
hereafter acquired."  


(a)    Without limiting
the generality of any of the foregoing, New Company hereby assumes and adopts
al of the duties, obligations, indebtedness, liabilities, covenants and
undertakings of Existing Company under any mortgage, deed of trust or similar
security agreement pertaining to real property included in the Financing
Documents to which Existing Company is a party as the mortgagor or grantor with
respect to Real Estate owned or leased by Existing Company (collectively, the "Existing
Company Mortgages"), and New Company hereby reconfirms and restates the
grants of security interests, liens and encumbrances provided for in each such
Existing Company Mortgage with respect to the Real Property, and all other real
and personal property of Existing Company and/or New Company, described
therein.  New Company further agrees, without limiting the generality of any
other provision of this Agreement or the Financing Agreement or other Financing
Documents, that New Company shall execute and deliver to Agent, promptly upon
request, any mortgage modification or amendment instruments or agreements with
respect to the Existing Company Mortgages that Agent may deem necessary or
prudent to effectuate the provisions of this paragraph and this Agreement.


4.    Amendments.  Without limiting the generality and specific
provisions of Sections 2 and 3 above, Agent and each Lender hereby agree to
amend the provisions of the Financing Agreement consistent with the agreements
of the New Company in Section 2 and with the grants of liens in Section 3, and
any provision of the Financing Agreement that is inconsistent with or contrary
to such assumption shall be deemed amended to conform with the intentions of
the parties hereto.


5.   
Representations and Warranties.  Each Company, specifically
including New Company, represents and warrants to the Agent and the Lenders
that:


a.   
All warranties and representations made to Agent and Lenders under the
Financing Agreement and the other Financing Documents (as such warranties and
representations may have been amended pursuant to the provisions hereof (and
any prior amendments)), are true and correct as of the date hereof, and all
such representations and warranties, as so amended are deemed to be remade and
restated by New Company as of the date hereof as a "Company" described therein
(except to the extent any such representation is clearly intended by the terms
thereof to apply only to matters relating to Existing Company prior to the
consummation of the Merger);


b.    Each Company has full power, authority and legal right to execute and
deliver this Agreement and the other notes, instruments, agreements, documents
and transactions contemplated hereby to which each is a party and to perform
all of the obligations hereunder and thereunder;


c.    The execution, delivery and performance of this Agreement and any other
notes, instruments, agreements, documents and transactions contemplated hereby
to which each Company is a party are within each Company's corporate power and
have been duly authorized by all necessary corporate action;


 




	
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d.    No consent of any Person, other than Agent and the Lenders, and no
consent, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is
required in connection with the execution, delivery and performance by each
Company, or the validity or enforceability against each Company, of this
Agreement and the other notes, instruments, agreements, documents, and
transactions contemplated hereby to which it is a party;


e.    This Agreement has been duly executed and delivered by each Company, and
constitutes the legal, valid, and binding obligation of each Company,
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium or similar laws
affecting the rights of creditors generally; 


f.    No Company is in default under any indenture, mortgage, deed of trust,
material agreement or other material instrument to which either is a party, or
by which either may be bound.  Neither the execution and delivery of this
Agreement and the other notes, instruments, agreements, documents, and
transactions contemplated hereby to which either is a party, nor the
consummation of the transactions herein or therein contemplated, nor compliance
with the provisions hereof or thereof by any Company will (i) violate any law or
regulation, or (ii) result in or cause a violation by such Company of any
order or decree of any court or government instrumentality, or
(iii) conflict with, or result in the breach of, or constitute a default
under, any indenture, mortgage, deed of trust, material agreement or other
material instrument to which such Company is a party, or by which either may be
bound, or (iv) result in the creation or imposition of any lien, charge,
or encumbrance upon any of the property of such Company, except in favor of
Agent for its own benefit, and for the ratable benefit of the Lenders, to
secure the Obligations, or (v) violate any provision of the articles or
certificate of incorporation or By-Laws or any shareholders agreement or other
entity governance document or any capital stock or similar equity instrument of
such Company; and


g.    No Default or Event of Default has occurred and is continuing on the
date hereof. 



























6.   
Effectiveness Conditions.  This Agreement shall be effective, and
the New Company shall be deemed to be a Company under the Financing Agreement
and Financing Documents upon satisfaction of the following conditions precedent
(all documents to be in form and substance reasonably satisfactory to the Agent
and the Lenders and their counsel):


a.    Execution and delivery of this Agreement by all parties hereto;


b.    Filing of UCC-1 financing statements naming New Company as the debtor in
all jurisdictions which Agent may deem appropriate;


c.    Delivery of a Certificate of the Secretary each of Existing Company and
New Company (i) relating to the adoption of resolutions by the Board of
Directors approving the execution by each of this Agreement, (ii) certifying as
accurate and complete, the copies of its Articles of Incorporation and By-Laws
attached thereto as in effect immediately prior to the Merger, and, in the case
of New Company, as in effect immediately after giving effect to the Merger,
(iii) certifying as accurate and complete a copy of the Agreement and Plan of
Merger duly executed by each of Existing Company and New Company, (iv) and, in
the case of New Company, certifying as accurate and complete each of the
following documents, duly executed by the parties thereto, file-stamped and
duly acknowledged by the Secretary of State of the State of Vermont: (A)
Articles of Merger and (B) Certificate of Merger, and (v) further certifying
the names and incumbency of officers authorized to sign this Agreement, and all
other documents and instruments executed or delivered in connection therewith
and the names and validity of signatures of such officers;




	
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d.    Consummation of the Plan of Merger;


e.    Written opinion of New Company's counsel, in form and substance
reasonably satisfactory to Agent, concerning (i) the existence and authority of
New Company, (ii) consummation of the Plan of Merger; (iii) the authorization
of New Company to execute this Agreement, (iv) the enforceability of this
Agreement as to New Company, (v) the validity and perfection of the security
interest granted by New Company hereunder, and (vi) such other matters as Agent
and the Lenders may reasonably require;


f.    Uniform Commercial Code, judgment, pending litigation, federal and state
tax lien searches against New Company showing that the Collateral owned by New
Company is not subject to any Lien other than Permitted Encumbrances;


g.    An amended or updated insurance certificate reflecting insurance
coverage for New Company as required under Section 7(6) of the Financing
Agreement, together with loss payable endorsements on Agent's standard form
naming Agent as loss payee;


h.    All other agreements, instruments and documents requested by Lender to
effectuate and implement the terms hereof and the Financing Documents; and


i.    Payment of all fees and expenses incurred in relation to the preparation
and execution of this Agreement.























7.   
Ratification of Financing Documents.  Except as expressly set
forth herein, all of the terms and conditions of the Financing Agreement and
Financing Documents are hereby ratified and confirmed and continue unchanged
and in full force and effect.  All references to the "Financing
Agreement" shall mean the Financing Agreement as modified by this
Agreement.


8.   
Remedies. This Agreement shall constitute a Financing Document. 
The breach by any Company of any representation, warranty, covenant or
agreement in this Agreement shall constitute an immediate Event of Default
hereunder and under the other Financing Documents.


9.   
Further Assurances.  Without limiting the generality of other
provision of this Agreement or the Financing Agreement or other Financing
Documents, each Company specifically including New Company shall, promptly upon
request of Agent, execute or cause to be executed and shall deliver to Agent
any and all documents, instruments and agreements deemed necessary or prudent
by Agent to give effect to or carry out the terms and intent of this Agreement,
the Financing Agreement and the Other Documents, including without limitation,
the execution and delivery by New Company and Other Companies of promissory
notes representing the existing Term Loans and Revolving Loans.


10.   
Governing Law.  THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


 


 


 




	
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11.   
Severability.  If any provision hereof or of any other agreement
made in connection herewith is held to be illegal or unenforceable, such
provision shall be fully severable, and the remaining provisions of the
applicable agreement shall remain in full force and effect and shall not be
affected by such provision's severance. Furthermore, in lieu of any such
provision, there shall be added automatically as a part of the applicable
agreement a legal and enforceable provision as similar in terms to the severed
provision as may be possible


12.    Consents and Waivers.  Without limiting the generality of the
other provisions of this Agreement, New Company hereby explicitly agrees to be
bound by the consents to jurisdiction, waivers regarding service of process,
waivers of jury trial and all other waivers contained in Section 15 of the
Financing Agreement.  New Company hereby particularly and expressly
acknowledges and agrees to the provisions of paragraph 11 of Section 15 of the
Financing Agreement.


13.   
Counterparts.  This Agreement may be executed in any number of
counterparts (which may include facsimile signatures or PDF copies of
signatures delivered by email), each of which when so executed shall be deemed
to be an original, and such counterparts together shall constitute one and the
same respective agreement.






 






 






 






 






 






 






 






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IN WITNESS WHEREOF, the parties have executed
this Assumption Agreement the day and year first above written.


 


 


NEW COMPANY:


 


ROCK OF AGES CORPORATION
(VERMONT), 


a Vermont corporation


 


 


By:                              /s
Donald Labonte                              


Name:
Donald Labonte  


Title:  
President and CEO


 


EXISTING COMPANY:




 




ROCK OF AGES CORPORATION, a
Delaware corporation


 


 


By:                              /s
Donald Labonte                              


Name:
Donald Labonte  


Title:  
President and CEO




 




OTHER COMPANIES:




 




CAROLINA QUARRIES, INC.


PENNSYLVANIA GRANITE CORP.


 


 


By:                              /s
Donald Labonte                              


Name:
Donald Labonte  


Title:  
President and CEO






 


 




Signature Page to
Assumption Agreement




 




 




 




 




 


























 




AGENT AND LENDER:




 






THE CIT GROUP/BUSINESS CREDIT,
INC., as Agent  and Lender






 






By:                              /s 
Dan Bueno                                     


            Name:  Dan Bueno

            Title:    Authorized Signatory


 


 


 


 


LENDER:




 




PEOPLE'S UNITED BANK,
successor in interest by merger to Chittenden Trust Company d/b/a Chittenden
Bank,


as a Lender






 






By:                              /s 
Matthews Plasse                             


Name:  Matthew           
Plasse


Title:    Vice President


 


 




 




 




 




 




 




Signature Page to
Assumption Agreement




 




 




 




 




 


























 




Exhibit A -
Plan of Merger 


Signature Page to Assumption Agreement