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EXHIBIT 10-7
THIS AMENDED AND RESTATED NOTE IS SUBJECT TO A
CERTAIN INTERCREDITOR AGREEMENT DATED DECEMBER 15, 2000
AMONG HIGH FALLS BREWING COMPANY, LLC AND MANUFACTURERS
AND TRADERS TRUST COMPANY, XXXXXX CAPITAL PARTNERS, LP.
AND THE GENESEE BREWING COMPANY, INC.
AMENDED AND RESTATED
SUBORDINATED PROMISSORY NOTE
$4,000,000.00 May 25,2004
FOR VALUE RECEIVED, HIGH FALLS BREWING COMPANY, LLC, a New York limited
liability company with an address at 000 Xx. Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx
00000 ("MAKER"), promises to pay to GBC LIQUIDATING CORP., a New York
Corporation ("PAYEE"), at its office at c/o Ashley Management Corp., 00 Xxxx
Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, 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 FOUR MILLION AND 00/100 DOLLARS ($4,000,000.00),
together with interest thereon at the rate, in the installments and at the times
hereinafter provided.
This Note amends, restates and replaces the Subordinated Promissory
Note dated as of December 15, 2000 in the original principal amount of
$4,500,000 executed by Maker and payable to the order of GBC Liquidating Corp.,
formerly known as The Genesee Brewing Company, Inc. (the "ORIGINAL NOTE"). The
principal balance of the Original Note on the date hereof is $4,000,000 and
accrued interest on the date hereof is $308,824; the accrued interest amount is
hereby reduced to $100,000 (the "AMENDED ACCRUED INTEREST AMOUNT") and shall be
payable only as provided in Section 1.3(b) below.
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 January 31,
2009 (the "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, but only during such periods in which
Payee is actively pursuing its rights and remedies under Section 6 below to
enforce its right to payment upon "Acceleration".
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1.3 Payments of Principal and Interest.
(a) Except as provided in subparagraph (b)
below, Maker shall pay accrued interest on a quarterly basis on each March 15,
June 15, September 15 and December 15, commencing June 15, 2004, and shall make
thirty six (36) equal monthly payments of principal of $111,111.11 each,
commencing February 1, 2006 and shall pay the entire remaining principal
balance, plus all accrued and unpaid interest thereon, on the Maturity Date.
(b) The Amended Accrued Interest Amount shall
not be an obligation payable under this Note but shall be an independent
unsecured obligation of Maker to Payee payable only pursuant to a separate
written agreement of even date between Maker and Payee.
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 permitted pursuant to the terms of the Purchase Agreement.
(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 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 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. [RESERVED]
3. SECURITY. As security for the payment when due of the
principal of and interest on this Note, the Maker has, under a "Security
Agreement" dated as of December 15, 2000 herewith and financing statements filed
pursuant thereto, granted to Payee a continuing perfected security interest in
all of the personal property of Maker, and all proceeds and products of such
property, including insurance payable by reason of loss or damage (collectively,
the "Collateral"). Maker shall cause each subsidiary of Maker created or
acquired after the date hereof to execute and deliver to the Payee a guaranty of
payment of this Note and all other Debt of Maker to Payee of any kind, whereby
such subsidiary shall guaranty payment of all such Debt. In addition, Maker
shall notify the Payee of the acquisition or creation of any new subsidiary.
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4. SUBORDINATION. The priority or subordination of 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 Xxxxxx
Capital Partners, L.P. ("Xxxxxx") (the "Intercreditor Agreement") and such other
creditors of Maker as the three named creditors may determine to make a party to
such Intercreditor Agreement. This Note constitutes "Seller Junior Indebtedness"
as defined in the Intercreditor Agreement.
5. EVENTS OF DEFAULT. Each of the following shall constitute an
event of default (each, an "EVENT OF DEFAULT") hereunder:
5.1 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. 5.2 Failure to
Perform, Etc. Any representation or warranty made or deemed made by Maker herein
shall prove to have been incorrect, incomplete or misleading in any material
respect.
5.3 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.
5.4 Cross-Default. Maker shall (i) fail to pay any debt
for borrowed money of Maker (including but not limited to M&T Bank, Xxxxxx, and
certain investor notes issued by Maker pursuant to the Offering Summary dated
September 20, 2000 and Recission Offer dated December 8, 2000), or any interest
or premium thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise); and (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 (provided, that
any failure to perform or observe under financing documents between Maker and
M&T Bank shall not become an Event of Default unless and until M&T Bank gives
written notice to Maker of such failure and declares its intentions to pursue
its rights and/or remedies under such documents) 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.
5.5 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.
5.6 Discontinuance of Business. Maker's failure to
conduct business in the ordinary course, dissolution or termination of
existence.
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5.7 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 Xxxxxx X. Xxxxxxx, Xx. and
Xxxx X. Xxxxxxxxx.
5.8 [Reserved]
5.9 Guarantees. Any guaranty of this Note shall at any
time after its execution and delivery for any reason cease to be in full force
and effect or shall be declared null and void, 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 any Security Agreement.
5.10 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 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.
6. 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,
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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.
7. AMENDMENTS AND MODIFICATIONS TO INVESTOR NOTES. Maker shall
not agree to any amendment to its subordinated Investor Notes issued by Maker
pursuant to the Offering Summary Statement dated September 5, 2000 and the
Recission Offer dated December 8, 2000 made by Maker with respect to payment
terms, maturity date, interest rate and subordination without the Payee's prior
written consent.
8. 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; 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.
9. FINANCIAL STATEMENTS. Maker will furnish to Payee:
(a) 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, 2003, 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 Insero, Kasperski,
Xxxxxxx & Co. PC or other independent accountants acceptable to the Payee;
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(b) [Reserved]
(c) 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 Year, 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).
10. 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.
11. 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 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.
12. 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.
13. NOTICES. All notices and other communications 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 delivered personally or by
facsimile or four days after being mailed by registered mail, return receipt
requested, or by documented overnight delivery, to a party at the following
address (or to such other address as such party may have specified by notice
given to the other party pursuant to this provision):
If to Payee, to: GBC Liquidating Corp.
c/o Ashley Management Corp.
00 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
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With a copy to: Xxxxx Xxxxxx Xxxxxx LLP
000 Xxxxxxxxxx Xxxxxxxx
0 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention:
If to the Maker, to: High Falls Brewing Company, LLC
000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: President
With a copy to: Xxxxxxx X. Xxxxxxxxx
Xxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
14. 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.
15. 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: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President and Chief Operating
Officer
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The amendments to the Original Note evidenced by the foregoing Amended
and Restated Subordinated Promissory Note are accepted and agreed to as of the
date of such Note.
GBC LIQUIDATING CORP.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President & CFO
