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EXHIBIT 4.8
THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY IS SUBORDINATED TO
CERTAIN INDEBTEDNESS (INCLUDING INTEREST AND FEES) OWED BY THE MAKER HEREOF, IN
THE MANNER AND TO THE EXTENT SET FORTH IN A SUBORDINATION AGREEMENT DATED AS OF
NOVEMBER 15, 1996 IN FAVOR OF LASALLE NATIONAL BANK, ITS SUCCESSORS AND ASSIGNS
("LENDER"). THE HOLDERS OF THIS NOTE, BY THEIR ACCEPTANCE HEREOF, SHALL BE
BOUND BY OF ALL OF THE TERMS AND CONDITIONS OF SUCH SUBORDINATION AGREEMENT.
FURTHERMORE, THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY SHALL BE
SUBORDINATED TO (I) ANY REPLACEMENT, SUBSTITUTION, REFINANCING OR EXTENSION OF,
OR ADDITION TO, ANY OR ALL OF THE DEBT TO LENDER, AND (II) ANY DEBT FROM ANY
SOURCE TO FINANCE STRATEGIC ACQUISITIONS BY MAKER. PAYEES, BY THEIR ACCEPTANCE
HEREOF, SHALL SIGN SUCH DOCUMENTS AS ARE NECESSARY OR APPROPRIATE TO DOCUMENT
SUCH FURTHER SUBORDINATION, AND ALL PAYMENTS TO BE MADE HEREUNDER SHALL BE
SUSPENDED UNTIL SUCH APPROPRIATE DOCUMENTATION HAS BEEN EXECUTED AND DELIVERED
BY PAYEES.
BY PAYEES' ACCEPTANCE HEREOF, PAYEES ACKNOWLEDGE THAT MAKER IS A NEWLY
FORMED DELAWARE CORPORATION AND FURTHER ACKNOWLEDGES THAT THERE SHALL BE NO
ACTUAL OR ALLEGED LIABILITY ON THE PART OF ANY OFFICER, DIRECTOR, STOCKHOLDER,
AGENT OR REPRESENTATIVE OF MAKER SHOULD MAKER FAIL TO PAY ANY AMOUNTS
HEREUNDER.
BY PAYEES' ACCEPTANCE HEREOF, PAYEES ACKNOWLEDGE AND AGREE THAT,
SUBJECT TO MAKER PROCURING THE NECESSARY CONSENTS FROM LENDER, MAKER MAY PREPAY
ANY OR ALL OF THE PRINCIPAL (AND INTEREST THEREON) UNDER THIS NOTE WITHOUT
PREMIUM OR PENALTY.
8% SUBORDINATED NON-NEGOTIABLE PROMISSORY NOTE
DUE DECEMBER 31, 2003
$219,593.00 As of November 15, 1996
Paducah, Kentucky
PAYMENTS OF PRINCIPAL AND INTEREST
FOR VALUE RECEIVED, XXXXXX'X FARM, INC., a Delaware corporation
("MAKER"), hereby promises to pay XXXXXXXXX XXXXX and XXXXX XXXXX, jointly
(together, "PAYEES"), the principal sum of Two Hundred Nineteen Thousand Five
Hundred Ninety-three and 00/100 Dollars ($219,593.00), in lawful money of the
United States of America, together with interest on the balance of principal
from time to time outstanding and unpaid hereon commencing on March 31, 1997
until the maturity hereof
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(whether by lapse of time, acceleration or otherwise) at the rate per annum
equal to eight percent (8%) per annum ("INTEREST RATE").
Interest only at the Interest Rate shall be paid quarterly in arrears
commencing on March 31, 1997 and on each June 30, September 30, December 31 and
March 31 thereafter through and including September 30, 2003. A final payment
of all accrued, unpaid interest and the remaining principal balance of the
indebtedness evidenced hereby, due and payable on December 31, 2003 (the
"MATURITY DATE").
After an Event of Default (defined below) hereunder, any principal
sums remaining unpaid hereunder shall bear interest at the "Default Rate" until
such Event of Default is cured unless the Payees have commenced any of the
remedies of Payees described herein, in which case the Interest Rate shall
remain in effect. The "DEFAULT RATE" shall mean two percent (2%) per annum in
excess of the Interest Rate.
Interest shall be computed on the basis of a three hundred sixty-five
(365) day year for actual days elapsed. All payments on account of the
indebtedness evidencing this Note shall first be applied to late charges and
costs and fees incurred by Payees in enforcing their rights hereunder, second
to interest due on the unpaid principal balance hereunder and third to reduce
the unpaid principal of the hereunder.
Payment of all amounts due under this Note shall be made at the home
of Payees, or such other place as Payees may from time to time designate in
writing.
Notwithstanding any provisions of this Note or any instrument securing
payment of the indebtedness evidenced by this Note to the contrary, it is the
intent of Maker and Payees that Payees shall never be entitled to receive,
collect or apply, as interest on principal of the indebtedness, any amount in
excess of the maximum rate of interest permitted to be charged by applicable
law; and if under any circumstance whatsoever, fulfillment of any provision of
this Note, at the time performance of such provision shall be due, shall
involve transcending the limit of validity prescribed by applicable law, then,
ipso facto, the obligation to be fulfilled shall be reduced to the limit of
such validity; and in the event Payees ever receives, collects or applies as
interest any such excess, such amount which would be excess interest shall be
deemed a permitted partial prepayment of principal without penalty or premium
and treated hereunder as such; and if the principal of the indebtedness secured
hereby is paid in full, any remaining excess funds shall forthwith be paid to
Makers.
If payment hereunder becomes due and payable on a Saturday, Sunday or
legal holiday, the due date thereof shall be extended to the next succeeding
business day and interest shall be payable thereon at the rate specified during
such extension.
PREPAYMENT. This Note may be prepaid in whole or in part at any time
without premium or penalty.
DEFAULT AND REMEDIES
(a) In the event of
(i) default is made in a payment of principal or interest
due hereunder;
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(ii) the filing by Maker of a voluntary petition in
bankruptcy or for arrangement, reorganization or other relief under a chapter
of the Bankruptcy Code of 1978, as amended (the "BANKRUPTCY CODE") or any
similar law, state or federal, now or hereafter in effect;
(iii) the filing by Maker of an answer or other pleading in
any proceeding admitting insolvency, bankruptcy, or the inability to pay its
debts as they mature;
(iv) the non-dismissal, within sixty (60) days after the
filing against Maker, of any involuntary proceeding under the Bankruptcy Code
or similar law, state or federal, now or hereafter in effect;
(v) the adjudication of Maker as a bankrupt or the entry
of an order for relief in respect of Maker by any bankruptcy court;
(vi) an assignment by Maker for the benefit of creditors
or the admission by Maker in writing of its inability to pay its debts
generally as they become due or the consent of either to the appointment of a
custodian, receiver, trustee or liquidator of all or the major part of its
property; or
(vii) the entry of an order appointing a custodian,
receiver, trustee or liquidator of all or a major part of Maker's property
which is not vacated within sixty (60) days following the entry hereof;
and such event shall continue for ten (10) days after written notice thereof,
then in the case of the events set forth above (collectively "EVENTS OF
DEFAULT"), Payees shall have the option, subject to Lender's rights under the
Subordination Agreement described above, without demand or notice, to declare
the unpaid principal hereof, together with all accrued interest, and all other
sums due hereunder, at once due and payable to the extent permitted by law, and
to exercise any and all other rights and remedies available at law or in equity
to Payees.
(b) Subject to Lender's rights under the Subordination Agreement
described above, the remedies of Payees, as provided herein shall be cumulative
and concurrent, and may be pursued singularly, successively or together, at the
sole discretion of Payees, and may be exercised as often as occasion therefor
shall arise. No act of omission or commission of Payees, including
specifically any failure to exercise any right, remedy or recourse, shall be
deemed to be a waiver or release of the same, such waiver or release to be
effected only through a written document executed by Payees and then only to
the extent specifically recited therein. A waiver or release with reference to
any one event shall not be construed as continuing, as a bar to, or as a waiver
or release of, any subsequent right, remedy or recourse as to a subsequent
event. Payees acknowledge that Maker is a third party beneficiary of Payees',
and Payees' beneficiaries, duties, obligations and covenants under the
Subordination Agreement.
(c) If any Event of Default hereunder shall occur or if suit is
filed herein or if proceedings are held in bankruptcy, receivership,
reorganization or other legal or judicial proceedings for the collection
hereof, Maker shall pay all costs of collection of every kind, including but
not limited to all appraisal costs, reasonable attorneys' fees, court costs,
and expenses of every kind, incurred by Payees in connection with such
collection or the protection or enforcement of any or all of the security for
this Note, whether or not any lawsuit is filed with respect thereto.
WAIVER
Except as otherwise expressly provided herein, Maker hereby waives
grace, notice, notice of intent to accelerate, notice of default, protest,
demand, presentment for payment and diligence in the collection of this Note,
and in the filing of suit hereon, and agrees that its liability and the
liability of its successors and assigns for the payment hereof shall not be
affected or impaired by any increase, modification, renewal or extension of the
indebtedness or mode and time of payment. It is specifically agreed by the
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undersigned that except as provided below, Payees shall have the right at all
times to decline to make any such increase, modification, renewal or extension
of the indebtedness or its mode and time of payment.
MISCELLANEOUS
The headings of the paragraphs of this Note are inserted for
convenience only and shall not be deemed to constitute a part hereof.
All payments under this Note shall be payable in lawful money of the
United States which shall be legal tender for public and private debts at the
time of payment; provided that a check will be deemed sufficient payment so
long as it clears when presented for payment. Except as otherwise provided
herein, all payments (whether of principal, interest or other amounts) which
are applied at any time by Payees to indebtedness evidenced by this Note may be
allocated by Payees to principal, interest or other amounts as Payees may
determine in Payees' sole discretion.
This Note shall be governed by and construed under the laws of the
State of Delaware.
If any provision of this Note or any payments pursuant to the terms
hereof shall be invalid or unenforceable to any extent, the remainder of this
Note and any other payments hereunder shall not be affected thereby and shall
be enforceable to the greatest extent permitted by law.
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SET-OFF
THIS NOTE IS DELIVERED PURSUANT TO SECTION 2 OF THE ASSET PURCHASE
AGREEMENT ("APA") DATED AS OF NOVEMBER 12, 1996 AMONG MAKER, PAYEES AND
ATLANTIC BEVERAGE COMPANY, INC., AND IS SUBJECT TO ALL OF THE PROVISIONS
THEREOF, INCLUDING MAKER'S RIGHTS OF SET-OFF AS CONTAINED IN SECTION 13
THEREOF, AS WELL AS MAKER'S RIGHTS OF SET-OFF IN ALL OTHER DOCUMENTS BETWEEN
MAKER AND PAYEES.
MUTUAL DRAFTING
THIS NOTE IS THE JOINT PRODUCT OF MAKER AND PAYEES AND THEIR
RESPECTIVE COUNSEL, AND EACH PROVISION HEREOF HAS BEEN SUBJECT TO THE MUTUAL
CONSULTATION, NEGOTIATION AND AGREEMENT OF SUCH PARTIES AND COUNSEL, AND SHALL
NOT BE CONSTRUED FOR OR AGAINST ANY PARTY HERETO.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of
the date and year first above written.
XXXXXX'X FARM, INC.
By /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, Chairma
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