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EXHIBIT 10-1
AGREEMENT
This Agreement dated as of May 25, 2004 by and among High Falls Brewing
Company, LLC, a New York limited liability company with an address at ▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("HFBC") and GBC Liquidating Corp.,
formerly known as The Genesee Brewing Company, Inc., a New York corporation with
offices at GBC Liquidating Corp., c/o Ashley Management Corp., ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("GBC"). -
RECITALS
R1. HFBC has executed, as Maker, a Subordinated Promissory Note
dated December 15, 2000 in the original principal amount of $4,500,000 in favor
of GBC, as Payee (the "ORIGINAL NOTE").
R2. Provided that (a) HFBC and GBC execute this Agreement and (b)
HFBC and GBC execute and deliver an Amended and Restated Subordinated Promissory
Note of even date in the principal amount of $4,000,000, in the form of EXHIBIT
R2 to this Agreement (the "NEW NOTE"), which, when so executed and delivered,
will by its terms amend, restate and replace the Original Note, St. ▇▇▇▇
Associates, LLC has agreed to purchase the New Note pursuant to a Note Purchase
Agreement of even date with GBC (the "NOTE PURCHASE AGREEMENT")..
R3. The New Note provides for forgiveness of a portion of the
interest accrued but unpaid under the Original Note and payment of the $100,000
balance of such interest pursuant to a separate agreement between HFBC and GBC.
R4. The parties wish to approve the execution and delivery of the
New Note and the purchase by St. ▇▇▇▇ Associates, LLC of the New Note, on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants hereinafter set forth, the parties agree as follows:
1. Amendment and Restatement of Original Note. Each of the
parties hereby agrees to amend, restate and replace the Original Note by
execution and delivery of the New Note. In connection therewith, each agrees to
all of the amendments and waivers of the provisions of the Original Note
evidenced by the terms and conditions set forth in the New Note.
2. Amended Accrued Interest Amount. GBC agrees that the accrued
but unpaid interest under the Original Note as of the date hereof is waived and
released except to the extent of the $100,000 Amended Accrued Interest Amount,
as reflected in the New Note. GBC further agrees that the Amended Accrued
Interest Amount shall no longer be an obligation of the Original Note and shall
not be an obligation payable under the New Note. However, HFBC agrees to pay the
$100,000 Amended Accrued Interest Amount to GBC prior to HFBC's first
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payment of any interest or principal after the date hereof on the Investor Notes
issued by HFBC pursuant to the Offering Summary Statement dated September 5,
2000 and the Rescission Offer dated December 8, 2000; provided, however, that
HFBC's obligation to make such payment to GBC shall terminate if the payment is
not made on or before April 30, 2006 and that both the payment to GBC and any
contemporaneous payment with respect to the Investor Notes must be approved by
all of HFBC's secured creditors that then hold debt to which the New Note is
subordinate ("SENIOR DEBT"), including without limitation the specific written
approval of each of Manufacturers and Traders Trust Company ("M&T BANK") and
▇▇▇▇▇▇ Capital Partners, LP ("▇▇▇▇▇▇"), respectively, as long as it holds Senior
Debt. Among others, M&T Bank and/or ▇▇▇▇▇▇ may withhold approval of any such
payment during any period within which payments may not be made with respect to
the "Seller Junior Indebtedness" under the Intercreditor Agreement described
below (a "NON-PAYMENT PERIOD"). HFBC and GBC agree that the provisions of this
paragraph 2 are for the benefit of M&T Bank and ▇▇▇▇▇▇, as well as of HFBC and
GBC, and that such provision cannot be amended without the consent of each of
M&T Bank and ▇▇▇▇▇▇, respectively, as long as it holds Senior Debt..
3. Mutual Releases and Indemnification. At the time of execution
of this Agreement, each of HFBC and GBC agrees to execute the mutual releases
attached hereto as EXHIBIT 3. By execution of this Agreement, HFBC hereby agrees
that if GBC pays (whether voluntarily or involuntarily) to M&T Bank or ▇▇▇▇▇▇
the amount of any interest payment made by HFBC and received by GBC on the
Original Note allegedly in violation of the terms of the Intercreditor Agreement
among HFBC, M&T, ▇▇▇▇▇▇ and The Genesee Brewing Company, Inc. dated as of
December 15, 2000 (the "INTERCREDITOR AGREEMENT"), HFBC shall reimburse GBC for
the amount of such payment. HFBC hereby authorizes GBC to pay on its behalf the
$120,000 interest payment to ▇▇▇▇▇▇, which is a condition to the ▇▇▇▇▇▇' release
of GBC provided for in the Note Purchase Agreement. No such reimbursement
payment provided for under this Section 3 shall be made during any Non-Payment
Period. The suspension of reimbursement payments during any Non-Payment Period
does not relieve HFBC of its reimbursement obligations hereunder and any
reimbursement payment(s) due GBC shall be made immediately upon the expiration
of any Non-Payment Period. HFBC agrees to notify GBC at the time of each
interest payment made by HFBC to ▇▇▇▇▇▇ between the date hereof and July 31,
2004.
4. General Terms.
(a) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their successors and assigns.
(b) Entire Agreement. This Agreement contains the entire
understanding between the parties and supersedes any prior understanding,
memoranda or other written or oral agreements between or among any of them
respecting the within subject matter. There are no representations, agreements,
arrangements or understandings, oral or written, between or among the parties
relating to the subject matter of this Agreement which are not fully expressed
herein.
(c) Modifications: Waiver. No modification or waiver of this
Agreement or any part hereof shall be effective unless in writing and signed by
the party sought to be charged therewith. No waiver of any breach or condition
of this Agreement shall be deemed to be a waiver of any
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other or subsequent breach or condition, whether of like or different nature. No
waiver of any breach or condition of this Agreement by or with respect to either
party shall be deemed to be a waiver of the same breach or condition with
respect to the other party. No course of dealing between the parties will be
deemed effective to modify, amend or discharge any part of this Agreement or the
rights or obligations of either party.
(d) No Third Party Beneficiary. None of the provisions of this
Agreement shall be for the benefit of, or enforceable by, any person or entity
not a party hereto, except for M&T and ▇▇▇▇▇▇, each of whom shall be a third
party beneficiary of this Agreement.
(e) Partial Invalidity. If any provision of this Agreement shall
be held invalid or unenforceable by competent authority, such provision shall be
construed so as to be limited or reduced to be enforceable to the maximum extent
compatible with the law as it shall then appear. The total invalidity or
unenforceability of any particular provision of this Agreement shall not affect
the other provisions hereof and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
(f) Notices. Any notice or other communication required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given (i) upon hand delivery, or (ii) on the third day following
delivery to the U.S. Postal Service as certified or registered mail, return
receipt requested and postage prepaid, or (iii) on the first day following
delivery to a nationally recognized United States overnight courier service, fee
prepaid, return receipt or other confirmation of delivery requested, or (iv)
when telecopied or sent by facsimile transmission or electronic mail if an
additional notice is also given under clause (i), (ii) or (iii) above within
three days thereafter. Any such notice or communication shall be delivered or
directed to a party at its address set forth below or at such other address as
may be designated by a party in a notice given to all other parties hereto in
accordance with the provisions of this paragraph.
Notice to HFBC shall be sent to: High Falls Brewing Company, LLC
▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Operating Officer
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Damon & ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice to GBC shall be sent to: GBC Liquidating Corp.
c/o Ashley Management Corp.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Forth, Esq.
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(g) Governing Law. This Agreement and all rights of the parties
shall be governed by, and construed in accordance with, the laws of the State of
New York pertaining to contracts made and to be wholly performed within such
state, without taking into account conflicts of laws principles.
(h) Jurisdiction and Venue. In the event that any legal
proceedings are commenced in any court with respect to any matter arising under
this Agreement, the parties hereto specifically consent and agree that:
(i) the courts of the State of New York and/or the United
States Federal Courts located in the State of New York shall have
exclusive jurisdiction over each of the parties and over the subject
matter of any such proceedings; and
(ii) the venue of any such action shall be in Monroe
County, New York.
(i) Expenses of Parties.
(i) All expenses involved in the preparation,
authorization, execution and delivery of this Agreement, including,
without limitation, all fees and expenses of agents, representatives,
counsel and accountants, shall be borne solely by the party that shall
have incurred the same.
(ii) In the event of a breach of this Agreement, however,
the prevailing party(ies) in any resulting litigation shall be
reimbursed its reasonable attorneys' fees and expenses incurred in such
litigation by the party against whom judgment is rendered.
(k) Headings. The headings contained in this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
(l) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of said
counterparts together shall constitute but one and the same instrument.
HIGH FALLS BREWING COMPANY, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President & COO
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GBC LIQUIDATING CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & CFO
