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EXHIBIT 10-10
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INDEMNIFICATION AGREEMENT
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This INDEMNIFICATION AGREEMENT is made as of this 15th day of December,
2000 by HIGH FALLS BREWING COMPANY, LLC a New York limited liability company
("HIGH FALLS"), and THE GENESEE BREWING COMPANY, INC., a New York corporation
("GENESEE").
R E C I T A L S :
WHEREAS, Genesee and High Falls have entered into an Asset Purchase
Agreement dated as of August 29, 2000, as amended by Amendment No. 1 dated as of
December 15, 2000, (collectively, the "PURCHASE AGREEMENT"), pursuant to which
Genesee has agreed to sell to High Falls, and High Falls has agreed to purchase
from Genesee, substantially all of its assets necessary to operate Genesee's
brewing business.
WHEREAS, one of the assets to be transferred under the Purchase
Agreement pursuant an Assignment and Assumption Agreement (the "ASSIGNMENT")
includes all of Genesee's right, title and interest in and to an Amended and
Restated Agreement dated as of April 30, 1997 (the "PRODUCTION AGREEMENT")
between Genesee and Boston Brewing Company, Inc., d/b/a The Boston Beer Company,
a Massachusetts corporation, for itself and as the sole general partner of
Boston Beer Company Limited Partnership, a Massachusetts limited partnership
(collectively, "BOSTON BREWING"), pursuant to which Genesee agreed to supply
Boston Brewing, and Boston Brewing agreed to purchase from Genesee, on an
as-ordered basis, ▇▇▇▇▇▇ ▇▇▇▇▇ Boston Lager and certain other Boston Brewing
products;
WHEREAS, at Genesee's request, Boston Brewing has consented to the
transfer of the Production Agreement from Genesee to High Falls pursuant to a
certain Consent dated December 15, 2000, which conditions the effectiveness of
consent on Genesee's execution and delivery to Boston Brewing of a guaranty in
favor of Boston Brewing substantially in the form of Exhibit B attached to the
Consent (as such guaranty may be amended or modified from time to time, the
"GUARANTY") and High Falls' agreement that a breach by Genesee of its
obligations under the Guaranty, including the Required Net Worth covenant, shall
constitute a breach of the Production Agreement by High Falls; and
WHEREAS, Genesee and High Falls have agreed to enter into this
Indemnification Agreement to set forth their respective rights and obligations
upon the occurrence of certain events;
P R O V I S I O N S :
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
1. HIGH FALLS' INDEMNIFICATION OF GENESEE. Subject to the terms and
conditions herein, as of and after the closing of the transactions contemplated
under the Purchase Agreement, High Falls will defend, indemnify and hold Genesee
and its parent corporation and Genesee's successors and assigns harmless from
and against any and all
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losses, liabilities, suits, proceedings, demands, settlements, judgments, fines,
assessments, damages, expenses and costs which any of them may suffer or incur
at any time (including reasonable attorneys' fees and litigation expenses)
arising from or related to Genesee's liability, obligations and duties under the
Guaranty, and any other costs, expenses, and obligations actually paid or
incurred by Genesee in connection with investigating, litigating, being a
witness in, defending, or participating in, or preparing to litigate, defend, be
a witness in, or participate in any matter that is the subject of a proceeding
involving the Production Agreement whatsoever, whether Genesee is a party
thereto or not, including, without limitation, any attorney, accountant and
expert fees and court costs.
2. PROCEDURE FOR HIGH FALLS' INDEMNIFICATION.
(a) If Boston Brewing makes a claim on Genesee for payments
under the Guaranty ("BOSTON BREWING CLAIM"), then before Genesee shall make such
payment, it shall first give High Falls an opportunity to challenge and contest
Boston Brewing's right to receive such payment pursuant to the terms of the
Production Agreement, provided that High Falls shall satisfy Genesee on a
continuing basis, in Genesee's sole discretion, that High Falls shall be able to
promptly satisfy its obligations under Section 1 to pay any and all additional
expenses, costs and interest which Genesee expects to incur under the Guaranty
if High Falls is unsuccessful in any such challenge or contest.
(b) Promptly after receipt by Genesee of a Boston Brewing
Claim, or the commencement of a legal action to pursue any such claim, Genesee
shall give written notice to High Falls of the commencement of such claim;
provided, however, that the failure of Genesee to give notice as provided herein
shall not relieve High Falls of its obligations under Section 1, except to the
extent that High Falls is actually and materially prejudiced by such failure to
give notice.
(c) High Falls shall be entitled to participate in any legal
claim brought against Genesee for which High Falls has indemnification and hold
harmless obligations hereunder, and, to the extent that it may wish, to assume
the defense thereof, with counsel reasonably satisfactory to Genesee; provided,
however, that Genesee may, at its own expense, retain separate counsel to
participate in such defense. Notwithstanding the foregoing, in any action or
proceeding in which both High Falls and Genesee is, or is reasonably likely to
become, a party, Genesee shall have the right to employ separate counsel at High
Falls' expense and to control its own defense of such action or proceeding if,
in the reasonable opinion of counsel to Genesee, (i) there are or may be legal
defenses available to Genesee that are different from or additional to those
available to High Falls or (ii) any conflict or potential conflict exists
between High Falls and Genesee that would make such separate representation
advisable; provided, however, that in no event shall High Falls be required to
pay fees and expenses hereunder for more than one firm of attorneys representing
Genesee (together, if appropriate, with one firm of local counsel per
jurisdiction) in any one legal action or group of related legal actions. High
Falls shall not be liable for any payment to Boston Brewing or for any
settlement of any action or proceeding effected without its written consent,
which consent shall not be unreasonably withheld. High Falls shall not, without
the consent of Genesee, which consent shall not be unreasonably
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withheld, consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by Boston Brewing
to Genesee of a release from all liability in respect to such claim or
litigation, or which requires action other than the payment of money by High
Falls.
3. HIGH FALLS' PAYMENT TERMS.
(a) The indemnification and other payments due by Genesee
hereunder (other than any such payment due as a result of a refund payment made
by Genesee under Section 9(c) of the Production Agreement with respect to monies
or amounts funded, paid or provided by Boston Brewing for any change parts,
modifications or new equipment for Genesee's production facilities, including,
without limitation, Genesee's No. 2 line (a "REFUNDING OBLIGATION Payment"))
shall be made by periodic payments of the amount thereof as and when bills are
delivered by Genesee to High Falls for amounts paid by Genesee to Boston Brewing
or when liabilities or indemnifiable losses are incurred, and written notice
thereof is given to High Falls. Interest shall accrue on all unpaid amounts
hereunder at 12% per annum.
(b) If Genesee makes a Refunding Obligation Payment, then the
indemnity payment from High Falls to Genesee (the "REFUNDING OBLIGATION
INDEMNITY PAYMENT") shall be due on the third (3rd) anniversary of the closing
of the transactions contemplated under the Purchase Agreement (the "CLOSING
DATE"), unless during the three (3) year period following the Closing Date
Genesee's "contract production" from all "Contracting Parties" is less than 2.5
million barrels. In such case, the specified amount of the indemnification
payment due from High Falls to Genesee for the Refunding Obligation Payment
shall be one-third on the third (3rd) anniversary of the Closing Date, one-third
on the fourth (4th) anniversary of the Closing Date and one-third on the fifth
(5th) anniversary of the Closing Date. The Refunding Obligation Indemnity
Payment shall be evidenced by a Promissory Note in the form of EXHIBIT A annexed
hereto (the "NOTE"), with the blanks properly completed, signed by High Falls
and delivered to Genesee. Notwithstanding the foregoing, in the event that
Genesee makes a Refunding Obligation Payment and one of the Events of Default
specified in the Note occurs, then the Refunding Obligation Indemnity Payment
from High Falls to Genesee shall become due and payable immediately. The Note
shall constitute an "Obligation" under a certain Security Agreement dated
December 15, 2000 and pursuant thereto Genesee shall hold a first priority
purchase money perfected security interest in all bottling lines, equipment and
capital assets of any kind, title to which are transferred to High Falls (or a
subsidiary or affiliate of High Falls) pursuant to the Production Agreement to
the extent paid for by Genesee, and all additions, accessions thereof and
replacements therefor together with all proceeds The Note shall be further
secured by a security interest in all other personal property of Maker.
As used herein, "CONTRACT PRODUCTION" means all beverages of
any kind produced by High Falls at any facilities and sold to third parties
("CONTRACTING PARTIES") for resale by and under such third party's labels, as
measured by barrels shipped.
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(d) Not more than thirty (30) days after each of the first two
anniversaries of the Closing Date, High Falls shall cause to be prepared and
delivered to Genesee a certificate executed by an officer of High Falls setting
forth the names of all Contracting Parties and the contract production for each
of the Contracting Parties during the previous full twelve (12) month period,
and the cumulative amount since the Closing Date. Not more than thirty (30) days
after the end of each full nine (9), ten (10) and eleven (11) calendar month
period following the second (2nd) anniversary of the Closing Date, High Falls
shall cause to be prepared and delivered to Genesee a similar certificate
setting forth the contract production for each such full nine (9), ten (10) and
eleven (11) calendar month period and the cumulative amount since the Closing
Date. If requested by Genesee, High Falls shall make available copies of each of
the contracts between High Falls and each of the Contracting Parties and all
records necessary for Genesee to verify the contents of the officer's
certificate.
4. GENESEE'S INDEMNIFICATION OF HIGH FALLS.
(a) In the event that High Falls becomes liable to Boston
Brewing under the Production Agreement for any damages, losses, liabilities or
expenses due to Genesee's breach of its obligations under the Guaranty,
including, but not limited to, the Required Net Worth covenant thereunder, then
Genesee shall indemnify, defend and hold harmless High Falls from all such
obligations, liabilities and expenses, solely to the extent that they arise from
and against all losses, liabilities, suits, proceedings, demands, settlements,
judgments, fines, assessments, damages, expenses and costs which it may incur
solely to the extent of Genesee's breach thereof. In the event that Boston
Brewing makes a claim for any damages, losses, liabilities or expenses due to
Genesee's breach of the Guaranty, High Falls shall give prompt written notice
thereof to Genesee, provided, however, that the failure of High Falls to give
notice as provided herein shall not relieve Genesee of its obligations under
this Section 4, except to the extent that Genesee is actually and materially
required thereby.
(b) Genesee shall be entitled to participate in any legal
claim brought against High Falls for which Genesee has indemnification and hold
harmless obligations hereunder, and, to the extent that it may wish, to assume
the defense thereof, with counsel reasonably satisfactory to High Falls;
provided, however, that High Falls may, at its own expense, retain separate
counsel to participate in such defense. Notwithstanding the foregoing, in any
action or proceeding in which both High Falls and Genesee is, or is reasonably
likely to become, a party, High Falls shall have the right to employ separate
counsel at Genesee's expense and to control its own defense of such action or
proceeding if, in the reasonable opinion of counsel to High Falls, (i) there are
or may be legal defenses available to High Falls that are different from or
additional to those available to Genesee or (ii) any conflict or potential
conflict exists between High Falls and Genesee that would make such separate
representation advisable; provided, however, that in no event shall Genesee be
required to pay fees and expenses hereunder for more than one firm of attorneys
representing High Falls in any one legal action or group of related legal
actions. Genesee shall not be liable for any payment to Boston Brewing or for
any settlement of any action or proceeding effected without its written consent,
which consent shall not be unreasonably withheld. Genesee shall not, without the
consent of High Falls, which consent shall not be
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unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
Boston Brewing to High Falls of a release from all liability in respect to such
claim or litigation, or which requires action other than the payment of money by
Genesee.
5. REPRESENTATIONS AND WARRANTIES.
(a) High Falls represents and warrants to, and agrees with,
Genesee as follows:
(i) High Falls has the limited liability company
power and authority and legal right to execute and deliver this Agreement,
perform its obligations hereunder and consummate the transactions therein
contemplated. The execution and delivery by High Falls of this Agreement, the
performance of its obligations and consummation of the transactions contemplated
hereunder have been duly authorized by proper limited liability company
proceedings, and this Agreement constitutes the legal, valid and binding
obligation of High Falls enforceable against High Falls in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws of general applicability and by the effect
of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(ii) The execution, delivery and performance by High
Falls of this Agreement are within its corporate powers, have been duly
authorized by all necessary corporate action, do not contravene or violate (i)
its Articles of Organization or Operating Agreement, (ii) any law, rule or
regulation applicable to it, the contravention or violation of which would or
could reasonably be expected to have a material adverse effect on High Falls'
financial condition, (iii) any restrictions under any material agreement,
contract or instrument to which it is a party or by which it or any of its
property is bound, the contravention or violation of which would or could
reasonably be expected to have a material adverse effect on High Falls'
financial condition or (iv) any material order, writ, judgment, award,
injunction or decree binding on or affecting it or its property, the
contravention or violation of which would or could reasonably be expected to
have a material adverse effect on High Falls' financial condition, and do not
result in the creation or imposition of any adverse claim on assets of High
Falls.
(b) Genesee represents and warrants to, and agrees with, High
Falls as follows:
(i) Genesee has the corporate power and authority and
legal right to execute and deliver this Agreement, perform its obligations
hereunder and consummate the transactions herein contemplated. The execution and
delivery by Genesee of this Agreement, the performance of its obligations and
consummation of the transactions contemplated hereunder have been duly
authorized by proper corporate proceedings, and this Agreement constitutes the
legal, valid and binding obligation of Genesee enforceable against Genesee in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws of general
applicability and by
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the effect of general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law).
(ii) The execution, delivery and performance by
Genesee of this Agreement are within its corporate powers, have been duly
authorized by all necessary corporate action, do not contravene or violate (i)
its Certificate of Incorporation or By-Laws, (ii) any law, rule or regulation
applicable to it, the contravention or violation of which would or could
reasonably be expected to have a material adverse effect on Genesee's financial
condition, (iii) any restrictions under any material agreement, contract or
instrument to which it is a party or by which it or any of its property is
bound, the contravention or violation of which would or could reasonably be
expected to have a material adverse effect on Genesee's financial condition or
(iv) any material order, writ, judgment, award, injunction or decree binding on
or affecting it or its property, the contravention or violation of which would
or could reasonably be expected to have a material adverse effect on Genesee's
financial condition, and do not result in the creation or imposition of any
adverse claim on assets of Genesee's.
6. RIGHTS CUMULATIVE. The indemnification obligation contained in this
Agreement shall be in addition to, and shall not apply to, limit or otherwise
affect or detract in any way from the rights of Genesee or High Falls contained
in the Purchase Agreement or the Assignment.
7. TERMINATION. All obligations of High Falls under this Agreement
shall terminate only at such time as all liability of Genesee under the Guaranty
is absolutely extinguished, and High Falls shall have fully paid and discharged
any obligation to Genesee then accrued hereunder and under the Note. All
representations, warranties and payments previously made under this Agreement
shall survive the termination hereof.
8. NOTICES. All notices, demands and other communications provided for
or permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, courier service or
personal delivery:
(a) If to High Falls: High Falls Brewing Company, LLC, ▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., or at
such other address as High Falls shall have furnished to Genesee in the manner
set forth herein;
(b) If to Genesee: Genesee Corporation, ▇.▇. ▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇, Chief Administrative Officer,
or at such other address as Genesee shall have furnished to High Falls in the
manner set forth herein.
9. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon the
parties and their respective successors and assigns and shall inure to the
benefit of such parties and their respective successors and permitted assigns.
No party shall assign any of its rights or delegate any of its duties under this
Agreement (by operation of law or otherwise) without the prior written consent
of the other party. Any assignment of rights or delegation of duties
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under this Agreement by any party without the prior written consent of the other
party shall be void.
10. COUNTERPARTS. This Indemnification Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes
constitute an agreement, binding on both of the parties, notwithstanding that
both of the parties hereto are not signatories to the same counterpart. All
references herein to this Indemnification Agreement are deemed to refer to all
such counterparts.
11. SEVERABILITY. In the event any term, provision, sentence or
paragraph of this Indemnification Agreement is declared by a court of competent
jurisdiction to be void, such provision, sentence or paragraph shall be deemed
severed from the remainder of the Indemnification Agreement and the balance of
the Indemnification Agreement shall remain in effect.
12. MISCELLANEOUS. This Agreement is governed by New York law and may
not be amended or terminated orally. Any litigation involving this Agreement
shall be adjudicated in a court located in Monroe County, New York, to the
jurisdiction and venue of which the parties consent. This is the entire
agreement between the parties with respect to its subject matter. Any
amendments, modifications or changes to this Agreement must be in a writing
signed by all parties hereto.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
HIGH FALLS BREWING COMPANY, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President and Manager
THE GENESEE BREWING COMPANY,INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A TO INDEMNIFICATION AGREEMENT
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THIS NOTE IS SUBJECT TO A CERTAIN INTERCREDITOR AGREEMENT DATED
DECEMBER 15, 2000 AMONG HIGH FALLS BREWING COMPANY, LLC AND
MANUFACTURERS AND TRADERS TRUST COMPANY, ▇▇▇▇▇▇ CAPITAL PARTNERS, LLP.
AND THE GENESEE BREWING COMPANY, INC. AND INDEMNIFICATION AGREEMENT
BETWEEN HIGH FALLS BREWING COMPANY, LLC AND THE GENESEE BREWING
COMPANY, INC. DATED DECEMBER 15, 2000.
PROMISSORY NOTE
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$_______________ December 15, 2003
FOR VALUE RECEIVED, HIGH FALLS BREWING COMPANY, LLC, a New York limited
liability company with an address at ▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ("MAKER"), promises to pay to THE GENESEE BREWING COMPANY, INC., a New
York Corporation ("PAYEE"), at its office at ▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ or at such other address as may hereafter be specified by Payee, in
lawful money of the United States of America, the principal sum of
___________($__________), together with interest thereon at the rate, in the
installments and at the times hereinafter provided.
This Note is executed pursuant to Section 3 of a certain
Indemnification Agreement dated December 15, 2000 ("Indemnification Agreement")
(between Maker and Payee relating to an Amended and Restated Agreement dated
April 30, 1997 between Payee and Boston Brewing Company, Inc. d/b/a The Boston
Beer Company, a Massachusetts corporation, for itself and as the sole general
partner of Boston Beer Company Limited Partnership, a Massachusetts limited
partnership. This Note constitutes an "OBLIGATION" under a certain Security
Agreement dated December 15, 2000 (the "SECURITY AGREEMENT") and pursuant
thereto this Note is secured by a first priority perfected purchase money
security interest in all bottling lines, equipment and capital assets of any
kind, title to which are transferred to High Falls (or a subsidiary or affiliate
of High Falls) pursuant to the Production Agreement (as defined in the
Indemnification Agreement) to the extent paid for by funds furnished by Payee,
and all additions, accessions thereof and replacements therefor and proceeds
thereof. This Note is further secured by a security interest in all other
personal property of Maker. The foregoing security interest are referred to
herein as the "COLLATERAl".
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1. MATURITY DATE; PRINCIPAL AND INTEREST PAYMENTS; PREPAYMENTS.
1.1 Maturity Date. The outstanding principal balance of this
Note plus all accrued and unpaid interest thereon and all other sums due
hereunder shall be due and payable in full on or before midnight on December 15,
2003 (the "ORIGINAL MATURITY DATE"), unless payment is extended in accordance
with Section 1.3(b) of this Note, in which case, all such sums shall become due
and payable on December 15, 2005 (the "EXTENDED MATURITY DATE").
1.2 Interest Rate. Prior to Acceleration (as defined
hereafter), the principal sum outstanding from time to time hereunder shall bear
interest at a rate (the "INTEREST RATE") equal to twelve percent (12%) per
annum. Upon the occurrence and during the continuance of an Event of Default,
Payee may, at its option, increase the Interest Rate by two percent (2%) over
the rate which would otherwise apply.
1.3 Payments of Principal and Interest.
(a) Maker shall pay accrued interest on a quarterly
basis on each January 31, April 30, July 31 and October 31, commencing the first
such date that occurs after the date hereof and on each day that principal is
paid hereunder.
(b) Notwithstanding Section 1.1 and provided no Event
of Default has occurred and is continuing hereunder, if as of the Original
Maturity Date, the conditions relating to "contract production" set forth in
Section 3(b) of the Indemnification Agreement exist such that under the terms
thereof the principal amount due on the Original Maturity Date is reduced to
one-third (1/3) of what would have been due but for those conditions, then the
Original Maturity Date of this Note shall be extended to the Extended Maturity
Date, and the outstanding principal hereunder shall be paid in three (3) equal
installments, with the first payment due on the Original Maturity Date, the
second payment due on December 15, 2004 and the third payment shall be due on
the Extended Maturity Date.
1.4 Time and Manner of Payments.
(a) All payments (including prepayments) to be made
in respect of principal, interest or other amounts due from Maker hereunder
shall be made to Payee in United States dollars in funds immediately available
at Payee's office set forth in the caption of this Note or as otherwise
specified by Payee, without set-off, counterclaim or other deduction of any
nature., except as hereafter set forth. Maker shall have a right to offset
against any installments of principal of, or interest due under, this Note, to
the extent and in the manner (including payments into escrow and final
judgments) provided in the Asset Purchase Agreement dated August 29, 2000, as
amended by Amendment No. 1 dated December 15, 2000, with respect to
indemnification payments due under the Indemnification Agreement. Maker
acknowledges that it shall have no other right of offset of any kind under this
Note.
(b) All payments hereunder shall be applied in the
following order of priority: costs, expenses, accrued interest and thereafter to
the reduction of principal. After payment of the foregoing, all prepayments of
any kind shall be applied to the extent of
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available proceeds to the principal installments payable hereunder in the
inverse order of maturity. All prepayments of any kind shall be accompanied by
all accrued interest due on the prepaid principal at the time of prepayment.
(c) All interest shall be payable in arrears.
Interest hereon shall be calculated on the basis of a three hundred sixty (360)
day year applied to the actual number of days elapsed. All payments of interest
and principal shall be payable in lawful currency of the United States of
America.
1.5 Prepayments. Subject to the terms of the Intercreditor
Agreement referred to below, this Note may be prepaid in whole or in part at any
time prior to the Maturity Date without prior notice to Payee, without penalty
or premium. Any partial prepayments shall be applied to installments of
principal last falling due. No partial prepayment shall postpone or interrupt
payments of interest or the payment of the remaining principal balance, all of
which shall continue to be due and payable at the time and in the manner set
forth above.
2. REPRESENTATIONS AND WARRANTIES. Maker represents and warrants to
Payee that:
(a) Maker's execution and delivery of this Note and the
enforceability against Maker of the transactions hereby contemplated have been
duly authorized by all requisite limited liability company action;
(b) this Note has been duly and validly executed and delivered
by Maker and constitutes Maker's legal, valid and binding obligation; and
(c) the execution and delivery of this Note by Maker does not,
and the performance by it of the transactions hereby contemplated will not
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under its Articles of Organization or Operating
Agreement or any terms, conditions or provisions of any note, debenture,
security agreement, lien, mortgage or other agreement, instrument or obligation,
oral or written, to which Maker is a party (whether as an original party or as
an assignee or successor) or by which it or any of its properties is or will be
bound.
3. INTERCREDITOR AGREEMENT. This Note and the rights of Payee hereunder
are subject to an Intercreditor Agreement by and among Payee, Manufacturers and
Traders Trust Company ("M&T BANK") and ▇▇▇▇▇▇ Capital Partners, L.P. ("▇▇▇▇▇▇")
(the "INTERCREDITOR AGREEMENT") and such other creditors of Maker as the three
named creditors may determine to make a party to such Intercreditor Agreement.
4. EVENTS OF DEFAULT. Each of the following shall constitute an event
of default (each, an "EVENT OF DEFAULT") hereunder:
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4.1 Payment Failure. If Maker fails to make any payment of any
installment of interest and/or principal hereunder or any other sum due
hereunder within ten (10) days after such payment is due.
4.2 Failure to Perform, Etc. Any representation or warranty
made or deemed made by Maker herein or in the Intercreditor Agreement shall
prove to have been incorrect, incomplete or misleading in any material respect
on or as of the date made or deemed made.
4.3 Bankruptcy. If any proceeding under the Bankruptcy Code or
any law of the United States or of any state relating to insolvency,
receivership, or debt adjustment is instituted by Maker or any guarantor of this
Note (a "Guarantor"), or if any such proceeding is instituted against Maker or
any Guarantor and is consented to by the respondent or an order for relief shall
be entered in such proceeding or such proceeding shall remain undismissed for
sixty (60) days, or if a trustee or receiver is appointed for any substantial
part of Maker's or any Guarantor's property and such appointment remains
undismissed for sixty (60) days, or if Maker or any Guarantor makes an
assignment for the benefit of creditors, admits in writing its inability to pay
debts generally as they become due or becomes insolvent.
4.4 Cross-Default. Maker shall (i) fail to pay any debt for
borrowed money of Maker (including but not limited to Manufacturers and Traders
Trust Company, ▇▇▇▇▇▇ Capital, L.P., financing provided by Maker pursuant to the
Asset Purchase Agreement by and between Payee and Maker dated August 29, 2000,
as amended by Amendment No 1 thereto, and certain investor notes issued by Maker
pursuant to the Maker's Offering Summary dated September 20, 2000 and Recission
Offer dated December 8, 2000 (the "INVESTOR NOTES")), or any interest or premium
thereon, when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise); (ii) fail to perform or observe any term,
covenant, or condition on its part to be performed or observed under any
agreement or instrument relating to any such debt when required to be performed
or observed, if the effect of such failure to perform or observe is to
accelerate, or to permit the acceleration after the giving of notice or passage
of time, or both, of the maturity of such debt, whether or not such failure to
perform or observe shall be waived by the holder of such debt, or any such debt
shall be declared to be due and payable, or required to be prepaid (other than
by a regularly scheduled required prepayment), prior to the stated maturity
thereof; (iii) materially breach the Asset Purchase Agreement; or (iv) fail to
perform or observe any material term, covenant or agreement set forth in any
agreement or instrument executed by Maker with or in favor of Payee other than
in the Asset Purchase Agreement and other than those items referred to above in
this Section 4.4, which failure is not cured within thirty (30) days after
receipt of notice from Payee.
4.5 Judgment. A final judgment or order for the payment of
money in excess of $100,000 shall be rendered against the Maker or any Guarantor
and such judgment or order shall continue unsatisfied, in effect and unstayed
for a period of thirty (30) consecutive days.
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4.6 Discontinuance of Business. Maker's failure to conduct
business in the ordinary course, dissolution or termination of existence.
4.7 Change of Control. The occurrence of a Change of Control.
As used herein a "CHANGE OF CONTROL" means a change of control of the Maker of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act,
whether or not the Maker is then subject to such reporting requirement;
provided, that, without limitation, such a Change of Control shall be deemed to
have occurred if:
(i) any "person" (as defined in Sections 13(d) and
14(d) of the Exchange Act) or "group" (as defined in Section 13(d) of the
Exchange Act) other than the Management Group is or becomes the "beneficial
owner" (as defined in Rule 13(d)(3) of the Exchange Act), directly or
indirectly, of securities of Maker representing 30% or more of the combined
voting power of Maker's then outstanding securities in the election of Managers
or with respect to the sale or disposition by Maker of its assets or the
dissolution of Maker ("VOTING power");
(ii) the members of the Maker approve a merger or
consolidation of the Maker with any other limited liability company or
corporation, other than a merger or consolidation which would result in the
voting securities of the Maker outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 70% of the combined voting power of
the voting securities of the Maker or such surviving entity outstanding
immediately after such merger or consolidation;
(iii) if any recapitalization event occurs as a
result of which the holders of voting securities of the Maker outstanding
immediately prior thereto do not continue to hold at least 70% of the combined
voting power of the voting securities of the Maker immediately after such
recapitalization event;
(iv) the members of the Maker approve a plan of
complete liquidation of the Maker or an agreement for the sale or disposition by
the Maker of all or substantially all of the Maker's assets.
As used herein, "MANAGEMENT GROUP" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
4.8 Guarantees. Any guaranty shall at any time after its
executed and delivery for any reason cease to be in full force and effect or
shall be declared null and voice, or the validity or enforceability thereof
shall be contested by any Guarantor, or any Guarantor shall deny it has any
further liability or obligation under, or shall fail to perform its obligations
under the Security Agreement.
4.9 Security Agreement. The Security Agreement shall at any
time after its execution and delivery and for any reason cease (a) to create a
valid and perfected
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security interest in and to the property purported to be subject to such
Security Agreement, except as provided in the Intercreditor Agreement; or (b) to
be in full force and effect or shall be declared null and void, or the validity
or enforceability thereof shall be contested by Maker or Maker shall deny it has
any further liability or obligation under the Security Agreement, or Maker shall
fail to perform in any material respect any of its obligations under the
Security Agreement.
5. REMEDIES. Upon the occurrence of any Event of Default hereunder, the
entire unpaid principal balance of this Note, together with all accrued and
unpaid interest thereon and all other sums owing hereunder shall, at the option
of the holder hereof, become immediately due and payable (an "ACCELERATION"),
without presentation, demand or further action of any kind, and Payee may
forthwith exercise, singly, concurrently, successively or otherwise, any and all
rights and remedies available to Payee hereunder. The failure of the holder
hereof to accelerate the outstanding principal balance of this Note upon the
occurrence of an Event of Default hereunder shall not constitute a waiver of
such default or of the right to accelerate this Note at any time thereafter so
long as the Event of Default remains uncured. If Payee retains the services of
counsel in order to enforce any remedy available to Payee hereunder, all
reasonable attorneys' fees which are actually incurred by Payee shall be payable
upon demand. Upon the occurrence and continuation of any one or more Events of
Default, and whether or not the Payee shall have accelerated the maturity of
this Note, the Payee may proceed to protect and enforce its rights by suit in
equity, action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Note or any
instrument pursuant to which the obligations to the Payee are evidenced,
including as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of the Payee. No remedy herein conferred upon the Payee
or the holder of this Note is intended to be exclusive of any other remedy and
each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or any other provision of law.
6. INVESTOR NOTES. Maker shall not agree to any amendment to its
subordinated Investor Notes.
7. RESTRICTED PAYMENTS. Maker shall not declare or pay any dividends,
other than reasonable "tax distributions" sufficient to cover the members' tax
liabilities associated with their membership interests in Maker to fund actual
tax obligations; or pay more than $200,000 per year to, purchase, redeem,
retire, or otherwise acquire for value any of its equity interests now or
hereafter outstanding, or make any distribution of assets to its members or
other holders of equity securities issued by Maker; or allocate or otherwise set
apart any sum for the payment of any dividend or distribution on, or for the
purchase, redemption, or retirement of any membership interest, whether in
income, distributions, capital or otherwise; or make any other distribution by
reduction of capital or otherwise in respect of any membership interest.
8. FINANCIAL STATEMENTS. Maker will furnish to Payee:
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(i) As soon as available and in any event within one hundred
twenty (120) days after the end of Maker's fiscal year ending on or after
December 31, 2001, consolidated and consolidating balance sheets of Maker and
its subsidiaries as of the end of such Fiscal Year, consolidated and
consolidating statements of income and retained earnings of Maker and its
Subsidiaries for such Fiscal Year, and consolidated and consolidating statements
of changes in financial position of Maker and its subsidiaries for such Fiscal
Year, all in reasonable detail and stating in comparative form the respective
figures for the corresponding dates and period in the prior fiscal year or in
the Pro Forma Financial Statements, as the case may be, all prepared in
accordance with GAAP consistently applied and as to the consolidated statements
accompanied by an opinion thereon acceptable to the Payee by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
Co. or other independent accountants acceptable to the Payee;
(ii) As soon as available and in any event within one hundred
twenty (120) days after the end of Fiscal Year 2000, internally prepared and
certified consolidated and consolidating balance sheets of Maker and its
subsidiaries as of the end of such fiscal year, consolidated and consolidating
statements of income and retained earnings of Maker and its subsidiaries for
such fiscal year, and consolidated and consolidating statements of changes in
financial position of Maker and its subsidiaries for such fiscal year, all in
reasonable detail and stating in comparative form the respective figures for the
corresponding dates and period in the prior fiscal year or in the Pro Forma
Financial Statements, as the case may be, all prepared in accordance with GAAP
consistently applied.
(iii) As soon as available and in any event within twenty-five
(25) days after the end of March 31, June 30, September 30 and December 31 of
each Fiscal Years , consolidated and individual balance sheets of Maker and its
Subsidiaries as of the end of the three month period then ended and the period
to date then ended of the then current fiscal year, consolidated and individual
statements of income and retained earnings of Maker and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending with the end
of such month, and consolidated and individual statements of changes in
financial position of Maker and its Subsidiaries for the portion of the fiscal
year ended with the last day of such month, all in reasonable detail and stating
in comparative form the respective figures for the corresponding date and period
in the previous fiscal year and with the Pro Forma Financial Statements and all
prepared in accordance with GAAP consistently applied and certified, to the best
of his knowledge, by the chief financial officer of Maker (subject to year-end
adjustments);
9. INTEREST LIMITATIONS. Nothing herein contained nor any transaction
related hereto shall be construed or shall operate either presently or
prospectively to require Maker to pay interest at a rate greater than is now
lawful in such case to contract for, but shall require payment of interest only
to the interest paid in excess of the lawful rate shall be refunded to Maker.
10. SEVERABILITY. In the event that for any reason one or more of the
provisions of this Note or their application to any person or circumstance shall
be held to be invalid, illegal or unenforceable in any respect or to any extent,
such provisions shall, to such extent, be held for naught as though not herein
contained but shall nevertheless remain valid, legal
Page 209 of 272
and enforceable in all such other respects and to such extent as may be
permissible. In addition, any such invalidity, illegality or unenforceability
shall not affect any other provisions of this Note, but this Note shall be
construed as if such invalid, illegal or unenforceable provisions had never been
contained herein.
11. SUCCESSORS AND ASSIGNS. This Note inures to the benefit of Payee,
its successors and assigns, and is binding upon Maker, its successors and
assigns, provided that any successor or assign of the Payee of this Note first
executes a written undertaking agreeing to be bound by all of the provisions of
the Intercreditor Agreement. The words "Payee" and "Maker" whenever used herein
shall be deemed and construed to include such respective successors and assigns.
12. NOTICES. All notices required to be given to any of the parties
hereunder shall be in writing and shall be deemed to have been sufficiently
given for all purposes when given in accordance with the terms and conditions of
the Purchase Agreement.
13. CAPTIONS. The captions or headings of the sections in this Note are
for convenience only and shall not control or affect the meaning or construction
of any of the terms or provisions of this Note.
14. GOVERNING LAW; AMENDMENT. This Note shall be governed by and
construed in accordance with the laws of the State of New York. This Note may
only be amended by an instrument in writing signed by both Maker and Payee.
IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has
duly executed this Note, under seal, on the date and year first above written.
MAKER: HIGH FALLS BREWING COMPANY, LLC
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President and Manager
