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EXHIBIT 10-6
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THIS 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, LLP.
AND THE GENESEE BREWING COMPANY, INC., AND AN ASSET PURCHASE AGREEMENT
DATED AUGUST 29, 2000 BETWEEN THE GENESEE BREWING COMPANY, INC. AND
HIGH FALLS BREWING COMPANY, LLC, AS AMENDED BY AMENDMENT NO. 1 DATED
DECEMBER 15, 2000.
SUBORDINATED PROMISSORY NOTE
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$4,500,000.00 December 15, 2000
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 THE GENESEE BREWING COMPANY, INC., a New
York Corporation ("PAYEE"), at its office at 000 Xx. 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
FIVE HUNDRED THOUSAND AND 00/100 DOLLARS ($4,500,000.00), together with interest
thereon at the rate, in the installments and at the times hereinafter provided.
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 December 15,
2003 (the "ORIGINAL MATURITY DATE"), unless payment is extended in accordance
with Section 1.3(b) of this Note, in which case the all such sums shall become
due and payable December 15, 2005 (the "EXTENDED 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.
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1.3 Payments of Principal and Interest.
(a) Maker shall pay accrued interest on a quarterly basis on
each March 15, June 15, September 15 and December 15, commencing March 15, 2001,
and shall pay the amount of $500,000 principal on the first anniversary of the
date of this Note, the amount of $1,000,000 principal on the second anniversary
of the date of this Note, and (subject to Section 1.3(b) of this Note) shall pay
the entire remaining principal balance, plus all accrued and unpaid interest
thereon, on the Original Maturity Date .
(b) Notwithstanding the foregoing and provided that no Event
of Default has occurred and is continuing hereunder, if as of the Original
Maturity Date the conditions relating to "contract production" under Section 7
of Amendment No. 1 to the Asset Purchase Agreement by and between Payee and
Maker dated August 29, 2000 (together the "PURCHASE AGREEMENT") exist such that
under the terms thereof the principal amount due on the Original Maturity Date
is to be reduced from $3,000,000 to $1,000,000, then the Original Maturity Date
shall be extended to the Extended Maturity Date and the principal outstanding
hereunder as of the Original Maturity Date shall be paid as follows:
$1,000,000 (plus such additional principal and interest as may be
necessary to reduce the Note balance to $2,000,000) on
December 15, 2003 $1,000,000 on December 15, 2004 $1,000,000
on the Extended Maturity Date
Notwithstanding the foregoing, Maker shall have a credit of up
to $100,000 against the principal payments due under this Note upon the terms
set forth in Section 4 of a certain Settlement and Release Agreement between
Maker and Payee dated this date (and described as EXHIBIT E in the Purchase
Agreement).
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. Maker shall have the
right to offset against any installments of principal of, or interest on, this
Note in the manner and to the extent provided in 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
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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. REPRESENTATIONS AND WARRANTIES. Maker represents and warrants to
Payee that:
2.1 Pro Forma Financial Statements. (a) Maker's Pro Forma
Financial Statements dated December 7, 2000 ("Pro Forma Financial Statements")
delivered by Maker to Payee and their underlying assumptions are reasonable and
have been prepared by Maker in good faith; and (b) except as set forth in the
Recisssion Offer dated December 8, 2000 nothing has come to the Maker's
attention since the preparation thereof that would lead it to believe that the
Pro Forma Financial Statements are inaccurate, incomplete or misleading in any
material respect.
2.2 Debt, Etc. Except for indebtedness and obligations to
Payee and third parties contemplated by the Asset Purchase Agreement between
Maker and Payee of even date herewith, set forth on EXHIBIT A annexed hereto is
a complete and correct list of all credit agreements, indentures, guaranties,
capital leases, and other investments, agreements, and arrangements presently in
effect for or related to borrowed money; and the maximum principal or face
amounts of the credits in questions, outstanding or to be outstanding, are
correctly stated, and all security interests, liens or encumbrances of any
nature given or agreed to be given as security therefor are correctly described
or indicated in such Schedule.
2.3 Capitalization. (a) Maker has provided Payee with a true
and complete copy of its Articles of Organization and Operating Agreement and
all subscription agreements and there are no obligations for the repurchase or
acquisition of any membership or other equity interest in Maker, except for
certain repurchase obligations with respect to warrants issued to Xxxxxx Capital
Partners, L.P. on even date herewith, (b) the capitalization of Maker is as set
forth on EXHIBIT B annexed hereto; and (c) all issued and outstanding
membership, capital distribution or interests in Maker are fully paid and
non-assessable.
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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 of
even date 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"). This Note
is also guaranteed by Genesee Brewing Equipment, LLC pursuant to a secured
Guaranty of even date herewith. 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.
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.
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, Xxxxxx Capital, L.P.,
financing provided by Maker pursuant to the Asset Purchase Agreement 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
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(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise); (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 shall not become an
Event of Default unless and until M&T 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; (iii) materially breach the
Purchase Agreement; or (iv) fail to perform or observe any material term,
covenant or agreement set forth in any agreement or instrument executed by Maker
with or in favor of Payee other than in the Asset Purchase Agreement and other
than those items referred to above in this Section 5.4, which failure is not
cured within thirty (30) days after receipt of notice from Payee.
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.
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
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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., Xxxx
X. Xxxxxxxxx, Xxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx.
5.8 Boston Beer. The occurrence of any event which would
entitle Boston Beer Company to receive payment from Payee on its Guaranty of
even date herewith made in favor of Boston Beer Company by Payee for the benefit
of the Maker in respect of a certain Amended and Restated Agreement dated April
30, 1997, other than (i) pursuant to a Refunding Obligation Payment (as defined
in an Indemnification Agreement of even date herewith between Maker and Payee),
or (ii) a breach by Payee of its "Net Worth" covenant under its Guaranty in
favor of Boston Beer Company.
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, 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
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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,
2001, 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 Xxxxxx Xxxxxxxx & Co. or other
independent accountants acceptable to the Payee;
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(b) As soon as available and in any event within one hundred twenty
(120) days after the end of Fiscal Year 2000, internally prepared and certified
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.
(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
Years , 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.
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13. NOTICES. All notices 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 given in accordance with the terms and conditions of
the Purchase Agreement.
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/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President
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Exhibit A
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1. All obligations to Manufacturers and Traders Trust Company pursuant to
a Revolving Loan and Term Agreement of even date herewith and all
agreements and instruments executed in connection therewith, Xxxxxx
Capital Partners, L.P. pursuant to a Note and Warrant Purchase
Agreement of even date herewith and all agreements and instruments
executed in connection therewith and Maker's investors as described in
the Offering Summary dated September 5, 2000 and the Recission Offer
dated December 8, 2000.
2. UDV North America, Inc. ("UDV") advance of up to One Million Dollars
($1,000,000) to the Maker for the purchase and/or renovation of
equipment used to produce the UDV product "Smirnoff Ice" pursuant to a
letter agreement dated September 25, 2000. The advance is to be secured
by a security interest in the equipment purchased.
3. Boston Brewing Company, d/b/a The Boston Beer Company ("Boston Beer")
maintains a first priority lien on certain equipment to secure its
investment made in the Maker's Number 2 bottling line pursuant to an
Amended and Restated Agreement signed between Seller and Boston Beer,
dated as of April 30, 1997
4. All obligations to Boston Beer arising out of its consent to assignment
of its Production Agreement with Payee dated April 30, 1997.
5. Obligation to lease twenty (20) vehicles from PHH Vehicle Management
Services pursuant to Car Requisitions by Seller dated June 5, 2000.
