EXHIBIT 99.5
Xxxx Sub Note 111402
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, 2002 IN FAVOR OF XXXXXXX XXXXX CAPITAL, A DIVISION OF XXXXXXX XXXXX
BUSINESS FINANCIAL SERVICES, INC., ITS SUCCESSORS AND ASSIGNS, AS AGENT, AND
BOCP ABR MEZZ, LLC, ITS SUCCESSORS AND ASSIGNS (COLLECTIVELY, "LENDER"). THE
HOLDER OF THIS NOTE, BY HIS 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 OR REFINANCING OF ANY OR ALL OF THE DEBT TO LENDER, AND (II) ANY
DEBT FROM ANY SOURCE TO FINANCE STRATEGIC ACQUISITIONS BY MAKER, IF MAKER CAN
PROVIDE REASONABLE ASSURANCE ON A PRO FORMA BASIS TO PAYEE THAT MAKER WILL HAVE
A 1.25:1 DEBT SERVICE COVERAGE AFTER SUCH STRATEGIC ACQUISITION. PAYEE, BY ITS
ACCEPTANCE HEREOF, SHALL SIGN SUCH DOCUMENTS AS ARE NECESSARY OR APPROPRIATE TO
DOCUMENT SUCH FURTHER SUBORDINATION.
BY PAYEE'S ACCEPTANCE HEREOF, PAYEE ACKNOWLEDGES THAT THERE SHALL BE NO
ACTUAL OR ALLEGED LIABILITY ON THE PART OF ANY OFFICER, DIRECTOR, STOCKHOLDER,
AGENT OR REPRESENTATIVE OF EITHER MAKER SHOULD EITHER FAIL TO PAY ANY AMOUNTS
HEREUNDER.
BY PAYEE'S ACCEPTANCE HEREOF, PAYEE ACKNOWLEDGES AND AGREES 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.
AMENDED AND RESTATED
11% SUBORDINATED NON-NEGOTIABLE PROMISSORY NOTE
DUE FEBRUARY 15, 2008
$700,000.00, subject to adjustment As of November 15, 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, "MAKER"),
hereby jointly and severally promise to pay XXXXXXXX XXXX ("PAYEE"), the
principal sum of Seven Hundred Thousand and 00/100 Dollars ($700,000.00), 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 November 15, 2002 until the maturity hereof (whether by lapse of time,
acceleration or otherwise) at the rate per annum equal to eleven percent (11%)
("INTEREST RATE").
THE PRINCIPAL BALANCE HEREUNDER IS SUBJECT TO ADJUSTMENT PURSUANT TO
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SCHEDULES B AND C TO THE STOCK PURCHASE AGREEMENT ("SPA") DATED AS OF JANUARY
23, 1996 AMONG MAKER, PAYEE, AND XXXXX XXXXX.
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").
ALL AMOUNTS DUE HEREUNDER SHALL BECOME IMMEDIATELY DUE AND PAYABLE IN THE
EVENT THAT PREFCO CORP. (OR ITS SUCCESSOR) SELLS ALL OR SUBSTANTIALLY ALL OF ITS
ASSETS, OR OTHERWISE SELLS A CONTROLLING INTEREST IN THE STOCK THEREOF.
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 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 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 Payee in enforcing his 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 office of
Payee, or such other place as Payee 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 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, including from the proceeds of sale by Prefco Corp. of less than
substantially all of its assets. Maker will use its best efforts to prepay the
principal of this Note. However, any prepayment of this Note will be subject, in
all instances, to the consent of the Lender.
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DEFAULT AND REMEDIES
(a) In the event of
(i) default is made in a payment of principal or interest due
hereunder,
(ii) the filing by either 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 either 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 either Maker, of any involuntary proceeding under the
Bankruptcy Code or similar law, state or federal, now or
hereafter in effect;
(v) the adjudication of either Maker as a bankrupt or the entry of
an order for relief in respect of either Maker by any
bankruptcy court;
(vi) an assignment by either Maker for the benefit of creditors or
the admission by either 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 either 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"), Payee 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 Payee.
(b) Subject to Lender's rights under the Subordination Agreement
described above, 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 Maker is a third party beneficiary of Payee's, and
Payee's beneficiaries, duties, obligations and covenants under the Subordination
Agreement.
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(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 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.
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 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 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 3 OF THE STOCK PURCHASE
AGREEMENT DATED AS OF JANUARY 23, 1996 AMONG MAKER, PAYEE, AND XXXXX XXXXX, AND
IS SUBJECT TO ALL OF THE PROVISIONS THEREOF, INCLUDING MAKER'S RIGHTS OF SET-OFF
AS CONTAINED IN SECTION 13 THEREOF.
EFFECTIVENESS
THIS NOTE IS AN AMENDMENT AND RESTATEMENT OF A 9% SUBORDINATED
NON-NEGOTIABLE PROMISSORY NOTE, DUE MARCH 31, 2001, IN THE ORIGINAL PRINCIPAL
AMOUNT OF $700,000.00, SUBJECT TO ADJUSTMENT ("OLD NOTE"). THIS NOTE WILL BE
DEEMED EFFECTIVE NOTWITHSTANDING THAT THE OLD NOTE HAS NOT BEEN CANCELED. PAYEE
WILL USE HIS BEST EFFORTS TO CANCEL AND SURRENDER THE OLD NOTE IN A TIMELY
FASHION AND WILL INDEMNIFY AND HOLD HARMLESS THE MAKER FROM AND AGAINST ANY AND
ALL DAMAGES, LOSSES, OBLIGATIONS, LIABILITIES, CLAIMS, CAUSES OF ACTION, SUITS,
PROCEEDINGS, JUDGMENTS, ENCUMBRANCES AND COSTS AND EXPENSES (INCLUDING
ATTORNEYS' FEES) SUFFERED, SUSTAINED, INCURRED OR PAID BY MAKER OR EITHER OF
THEM, ARISING OUT OF OR BASED UPON THE FAILURE OF PAYEE OR HIS AGENTS TO TIMELY
CANCEL AND SURRENDER THE OLD NOTE.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of the
date and year first above written as Makers' joint and several obligation.
PREFCO CORP.
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx, Chairman
ATLANTIC PREMIUM BRANDS, LTD.
By /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Vice Chairman
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