EXHIBIT 4.11
THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY IS SUBORDINATED TO CERTAIN
INDEBTEDNESS (INCLUDING INTEREST AND FEES) OWED BY THE MAKERS HEREOF, IN THE
MANNER AND TO THE EXTENT SET FORTH IN A SUBORDINATION AGREEMENT DATED AS OF
NOVEMBER 15, 2002 IN FAVOR OF XXXXXXX XXXXX CAPITAL, A DIVISION OF XXXXXXX XXXXX
BUSINESS FINANCIAL SERVICES, INC., AS AGENT, ITS SUCCESSORS AND ASSIGNS, AND
BOCP ABR MEZZ, LLC, ITS SUCCESSORS AND ASSIGNS (COLLECTIVELY, "LENDER"). THE
HOLDER OF THIS NOTE, BY HIS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE TERMS AND
CONDITIONS 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 OR REFINANCING OF ANY OR ALL
OF THE DEBT TO LENDER, AND (II) ANY DEBT (OTHER THAN OTHER SUBORDINATED SELLER
DEBT) FROM ANY SOURCE TO FINANCE STRATEGIC ACQUISITIONS BY MAKERS. PAYEE, BY HIS
ACCEPTANCE HEREOF, SHALL SIGN SUCH DOCUMENTS AS ARE NECESSARY OR APPROPRIATE TO
DOCUMENT SUCH FURTHER SUBORDINATION, AND ALL PAYMENTS HEREUNDER SHALL BE
SUSPENDED UNTIL ALL OF SUCH DOCUMENTS HAVE BEEN EXECUTED AND DELIVERED, AS
APPROPRIATE.
BY PAYEE'S ACCEPTANCE HEREOF, PAYEE ACKNOWLEDGES THAT THERE SHALL BE NO
ACTUAL OR ALLEGED LIABILITY ON THE PART OF ANY OFFICER, DIRECTOR, AGENT OR
REPRESENTATIVE OF PREFCO CORP. OR ATLANTIC PREMIUM BRANDS, LTD. SHOULD MAKERS
FAIL TO PAY ANY AMOUNTS HEREUNDER.
BY PAYEE'S ACCEPTANCE HEREOF, PAYEE ACKNOWLEDGES AND AGREES THAT, SUBJECT
TO MAKERS PROCURING THE NECESSARY CONSENTS FROM LENDER, MAKERS MAY PREPAY ANY OR
ALL OF THE PRINCIPAL (AND INTEREST THEREON) UNDER THIS NOTE WITHOUT PREMIUM OR
PENALTY.
11% SUBORDINATED NON-NEGOTIABLE PROMISSORY NOTE
DUE FEBRUARY 15, 2008
$450,000.00, subject to adjustment December 20, 0000
Xxxxxxxxxx, Xxxxxxxx
PAYMENTS OF PRINCIPAL AND INTEREST
FOR VALUE RECEIVED, PREFCO CORP. formerly known as ABEV ACQUISITION CORP.,
a Delaware corporation, and ATLANTIC PREMIUM BRANDS, LTD., formerly known as
ATLANTIC BEVERAGE COMPANY, INC, a Delaware corporation (together, "MAKERS"),
hereby jointly and severally promise to pay XXXXXXX X. XXXXXX, in his capacity
as agent ("AGENT") for himself and for the individuals listed on Schedule A
attached hereto (collectively, the "PAYEE"), the principal sum of Four Hundred
Fifty Thousand and 00/100 Dollars ($450,000.00), 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 December 20, 2002 until the
maturity hereof (whether by lapse of time, acceleration or otherwise) at the
rate per annum equal to eleven per cent (11%) per annum ("INTEREST RATE").
ALL AMOUNTS DUE HEREUNDER SHALL BECOME IMMEDIATELY DUE AND PAYABLE IF ANY
OF MAKERS (OR ITS SUCCESSOR) SELLS ALL OR SUBSTANTIALLY ALL OF ITS ASSETS, OR A
CONTROLLING INTEREST IN THE STOCK THEREOF IS SOLD.
Interest only at the Interest Rate shall be paid quarterly in arrears
commencing on December 31, 2002 and on each March 31, June 30, September 30 and
December 31 thereafter through and including December 31, 2007. A final payment
of all accrued, unpaid interest and the remaining principal balance of the
indebtedness evidenced hereby shall be due and payable on February 15, 2008 (the
"MATURITY DATE").
After an Event of Default hereunder, any principal sums remaining
unpaid hereunder shall bear interest at the "Default Rate" until such Event of
Default is cured unless the Payee has commenced any of the remedies of Payee
described herein, in which case the Interest Rate shall remain in effect. The
"DEFAULT RATE" shall mean seven percent (7%) 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 Payee in enforcing its rights hereunder, second to
interest due on the unpaid principal balance hereunder and third to reduce the
unpaid principal of the hereunder. To the extent that interest is not paid when
due, and such unpaid interest (at the Default Rate) shall accrue and be
compounded monthly until paid.
Payment of all amounts due under this Note shall be made at the office
of Payee, or such other place as Payee may from time to time designate in
writing.
Notwithstanding any provisions of this Note, it is the intent of Makers
and Payee that Payee 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 Payee
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. Makers will use their best efforts to prepay the principal
of this Note, subject however, in all instances to the consent of the Lender.
DEFAULT AND REMEDIES
(a) In the event that:
(i) default is made in a payment of principal or interest due
hereunder;
(ii) default is made with respect to any indebtedness of Maker
which is senior in priority to the indebtedness evidenced hereby ("Senior
Debt");
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(iii) the filing by Makers 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;
(iv) the filing by Makers of an answer or other pleading in
any proceeding admitting insolvency, bankruptcy, or the inability to pay their
debts as they mature;
(v) the non-dismissal, within sixty (60) days after the filing
against Makers, of any involuntary proceeding under the Bankruptcy Code or
similar law, state or federal, now or hereafter in effect;
(vi) the adjudication of Makers as bankrupt or the entry of an
order for relief in respect of Makers by any bankruptcy court;
(vii) an assignment by Makers for the benefit of creditors or
the admission by Makers in writing of their inability to pay their debts
generally as they become due or the consent of Makers to the appointment of a
custodian, receiver, trustee or liquidator of all or the major part of their
property; and
(viii) the entry of an order appointing a custodian, receiver,
trustee or liquidator of all or a major part of Makers' property which is not
vacated within sixty (60) days following the entry hereof,
and such default shall continue for ten (10) days after written notice thereof,
then in the case of the defaults set forth above (collectively "Events of
Default"), Payee shall have the option, subject to Lender's rights under the
Subordination Agreement, without demand or notice, to declare the accrual of the
Default Rate, and declare the unpaid principal hereof, together with all accrued
interest, prepayment premium, if any, 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 Payee. Within three
(3) days after receiving a default notice with respect to any Senior Debt, Maker
shall forward such notice to the attention of Payee.
(b) The remedies of Payee, as provided herein shall be cumulative and
concurrent, and may be pursued singularly, successively or together, at the sole
discretion of Payee, and may be exercised as often as occasion therefor shall
arise. No act of omission or commission of Payee, 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 Payee 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.
Payee acknowledges that Makers are third party beneficiaries of Payee's 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, Makers 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 Payee 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.
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WAIVER
Except as otherwise expressly provided herein, Makers hereby waive 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 their liability and the liability of
their 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 undersigned that
except as provided below, the Payee 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 Payee to indebtedness evidenced by this Note may be allocated by
Payee to principal, interest or other amounts as Payee may determine in Payee's
sole discretion.
This Note shall be governed by and construed under the laws of the State of
Illinois.
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.
MUTUAL DRAFTING
THIS NOTE IS THE JOINT PRODUCT OF MAKERS AND PAYEE 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.
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IN WITNESS WHEREOF, Makers have executed and delivered this Note as of
the date and year first above written.
PREFCO CORP.
By /s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx, Chairman
ATLANTIC PREMIUM BRANDS, LTD.
By /s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx, Chairman
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SCHEDULE A
INDIVIDUAL PAYEES
Name Amount
--------------- -----------
Xxxx Xxxxxx $139,200.00
Xxxxxx Xxxxxxx $ 60,000.00
Xxxx Xxxxxx $ 60,000.00
Trust** $ 1,800.00
Xxxx Xxxxxx $ 30,000.00
Xxxx Xxxxxx $ 30,000.00
Xxx Xxxxxx $ 30,000.00
Xxxx Xxxxxxxx $ 18,000.00
Xxxxx Xxxxxxxx $ 30,000.00
Xxxx Xxxxxx $ 21,000.00
Xxxxx Xxxxxxx $ 30,000.00
-----------
$450,000.00
===========
* Or any entity to be Designated by the Appropriate Person
** Trust to be designated by Xxxx X. Xxxxxx
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