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EXHIBIT 4.6
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 AUGUST 1, 1996 IN FAVOR OF LASALLE NATIONAL BANK, ITS SUCCESSORS AND ASSIGNS
("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 XXXXXXXX CAJUN
FOODS CORP. IS A NEWLY FORMED DELAWARE CORPORATION FORMED FOR THE PURPOSE OF
ACQUIRING CERTAIN OF PAYEE'S ASSETS, AND FURTHER ACKNOWLEDGES THAT THERE SHALL
BE NO ACTUAL OR ALLEGED LIABILITY ON THE PART OF ANY OFFICER, DIRECTOR, AGENT
OR REPRESENTATIVE OF XXXXXXXX CAJUN FOODS CORP. OR ATLANTIC BEVERAGE COMPANY,
INC. 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.
6.35% SUBORDINATED NON-NEGOTIABLE PROMISSORY NOTE
DUE JULY 31, 2001
$850,000.00, subject to adjustment August 1, 0000
Xxxxxxxxx, Xxxxxxxx
PAYMENTS OF PRINCIPAL AND INTEREST
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FOR VALUE RECEIVED, XXXXXXXX CAJUN FOODS CORP., a Delaware corporation
and ATLANTIC BEVERAGE COMPANY, INC, a Delaware corporation (together,
"MAKERS"), hereby jointly and severally promise to pay X.X. XXXXXXX ("PAYEE"),
the principal sum of Eight Hundred Fifty Thousand and 00/100 Dollars
($850,000.00), 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 from the date of disbursement hereof until the maturity hereof (whether
by lapse of time, acceleration or otherwise) at the rate per annum equal to six
and 35/100ths per cent (6.35%) per annum ("INTEREST RATE").
THE PRINCIPAL BALANCE HEREUNDER IS SUBJECT TO ADJUSTMENT PURSUANT TO
SCHEDULE D TO THE ASSET PURCHASE AGREEMENT DATED AS OF AUGUST 1, 1996 AMONG
MAKERS AND PAYEE.
Interest only at the Interest Rate shall be paid quarterly in arrears
commencing on September 30, 1996 and on each December 31, March 31, June 30 and
September 30 thereafter through and including March 31, 2001. A final payment
of all accrued, unpaid interest and the remaining principal balance of the
indebtedness evidenced hereby shall be due and payable on July 31, 2001 (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 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 its 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, 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
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such; and if the principal of the indebtedness secured hereby is paid in full,
any remaining excess funds shall forthwith be paid to Makers.
If payment hereunder becomes due and payable on a Saturday, Sunday or
legal holiday, the due date thereof shall be extended to the next succeeding
business day and interest shall be payable thereon at the rate specified during
such extension.
PREPAYMENT
This Note may be prepaid in whole or in part at any time without
premium or penalty.
DEFAULT AND REMEDIES
(a) In the event 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");
(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
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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.
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 Louisiana.
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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.
SET-OFF, ETC.
THIS NOTE IS DELIVERED PURSUANT TO SECTION 3 OF THE ASSET PURCHASE
AGREEMENT DATED AS OF AUGUST 1, 1996 AMONG MAKERS AND PAYEE, AND IS SUBJECT TO
ALL OF THE PROVISIONS THEREOF, INCLUDING MAKER'S RIGHTS OF SET-OFF AS CONTAINED
IN SECTION 13 THEREOF.
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.
XXXXXXXX CAJUN FOODS CORP.
By /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, Chairman
ATLANTIC BEVERAGE COMPANY, INC.
By /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, Vice Chairman
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ACKNOWLEDGMENT
THE UNDERSIGNED ACKNOWLEDGES THAT THE PRINCIPAL AMOUNT OUTSTANDING
UNDER AND PURSUANT TO THE CERTAIN 6.35% SUBORDINATED NON-NEGOTIABLE PROMISSORY
NOTE DUE JULY 31, 2001 IN THE ORIGINAL PRINCIPAL AMOUNT OF $850,000.00, SUBJECT
TO ADJUSTMENT, IS EIGHT HUNDRED SEVENTY FOUR THOUSAND ONE HUNDRED EIGHTY-SIX
AND 31/100THS DOLLARS ($874,186.31).
THIS ACKNOWLEDGMENT WILL NOT BE EFFECTIVE UNLESS AND UNTIL THIS IS
ATTACHED TO AND MADE A PART OF THE ORIGINAL NOTE DESCRIBED ABOVE, AND
INCORPORATES ALL OF THE TERMS AND CONDITIONS CONTAINED THEREIN.
ATLANTIC BEVERAGE COMPANY, INC.
By /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, Chairman
XXXXXXXX CAJUN FOODS CORP.
By /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, Chairman
