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EXHIBIT 10-6
NOTE PURCHASE AGREEMENT
-between-
GBC Liquidating Corp.
as Seller
- and -
St. ▇▇▇▇ Associates, LLC
as Buyer
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NOTE PURCHASE AGREEMENT
THIS AGREEMENT is made between GBC Liquidating Corp., a New York
corporation, with an address at c/o Ashley Management Corp., ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("SELLER") and St. ▇▇▇▇ Associates, LLC, a New
York limited liability company, with an address at ▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("BUYER").
RECITALS:
I. Seller is in the process of liquidating its business; and
II. Seller desires to sell a certain Subordinated Promissory Note
dated December 15, 2000 executed by High Falls Brewing Company, LLC ("HFBC") in
the original principal amount of $4,500,000 and payable to the order of The
Genesee Brewing Company, Inc., now known as GBC Liquidating Corp. (the "ORIGINAL
NOTE"); and
III. Buyer is unwilling to purchase the Original Note but, provided
that the Original Note is amended, restated and replaced by HFBC's and Seller's
execution and delivery of an Amended and Restated Promissory Note in the form of
SCHEDULE RIII to this Agreement (the "NEW NOTE"), Buyer is willing to purchase
the "New Note" upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants hereinafter contained, the Parties hereto agree as follows:
ARTICLE I.
PURCHASE AND SALE
1.01 Purchase of New Note.
Subject to the terms and conditions of this Agreement, on the Closing
Date set forth in Article IV, Seller agrees to sell and Buyer agrees to
purchase, the New Note and all documents securing the New Note which are
described in Schedule 1.01 to this Agreement (the "Security Documents").
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1.02 PURCHASE PRICE.
The aggregate purchase price to be paid by Buyer to Seller for the New
Note and the Security Documents (the "PURCHASE PRICE") shall be $ 1,000,000.
1.03 PAYMENT OF PURCHASE PRICE.
The Purchase Price shall be paid by the delivery at the Closing to
Seller of the sum of $1,000,000 by wire transfer, or by certified or cashier's
check payable to the order of Seller.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
2.01 AUTHORITY.
Seller is a corporation, duly organized, validly existing and in good
standing under the franchise tax and corporation laws of the State of New York.
Seller has full power and authority to own the Original Note and the Security
Documents, to enter into this Agreement, to amend and restate the Original Note
as required herein and to sell, transfer and deliver the New Note and the
Security Documents as provided herein. Seller has taken all such actions as may
be necessary or advisable and proper to authorize this Agreement, the execution
and delivery thereof, the consummation of the transactions contemplated hereby
and the execution and delivery of each of the documents required to be delivered
hereunder.
2.02 ABSENCE OF RESTRICTIONS.
Seller has made no other agreement with any other party to sell or
encumber the Original Note, the New Note or the Security Documents. The
execution and delivery of this Agreement, and the consummation of the
transactions provided hereunder, do not require any third party consent that is
not provided for in this Agreement and do not violate, conflict with, result in
the breach of, or cause the acceleration of or default under any provision of
any obligation,
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mortgage, lien, lease, agreement, instrument, law, order, arbitration award,
judgment, decree or any other restriction to which Seller is a party or by which
Seller is subject or bound.
2.03 TITLE TO ASSETS.
Seller has, and will have at Closing, good, marketable and indefeasible
title to the Original Note, the New Note and the Security Documents, free and
clear of all liabilities, security interests, liens, pledges, encumbrances,
restrictions, claims or imperfections of title whatsoever.
2.04 LITIGATION AND CLAIMS
There is no litigation, proceeding, suit, action, controversy or claim
in law or in equity (including proceedings by or before any governmental board
or agency) existing or pending against Seller which might adversely affect the
amendment and restatement of the Original Note, and transfer of the New Note and
the Security Documents, pursuant to this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Seller as follows:
3.01 LEGAL STANDING.
Buyer is a limited liability company duly organized, validly existing
and in good standing under the limited liability company laws of the State of
New York. Buyer has full power and authority to own and perform its obligations
under this Agreement.
3.02 AUTHORITY
Buyer has full power and authority to enter into this Agreement and to
purchase the New Note and the Security Documents. Buyer has taken all such
action as may be necessary or advisable and proper to authorize this Agreement,
the execution and delivery thereof, the consummation of the transactions
contemplated hereby and the execution and delivery of each of
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the documents required to be delivered hereunder, so that Buyer will have full
right, power and authority to perform all of its obligations under this
Agreement at the Closing.
3.03 CONSENTS.
Neither the execution of this Agreement nor the consummation of the
transactions contemplated hereby on the part of Buyer requires the consent of
any third party that is not provided for in this Agreement.
ARTICLE IV.
CLOSING
Closing hereunder shall take place at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇ at 3:00 P.M. on May 21, 2004, or at such other date and time and other
place as Seller and Buyer may subsequently agree in writing.
ARTICLE V.
CONDITIONS OF CLOSING BY BUYER
The obligation of Buyer to consummate the transactions contemplated by
this Agreement shall be subject, at Buyer's sole discretion, to the satisfaction
of the following conditions precedent:
5.01 REPRESENTATIONS.
All of the representations and warranties of Seller herein contained
shall be true and correct as of the date of this Agreement, and as of the
Closing Date as if expressly made on and as of the Closing Date.
5.02 PERFORMANCE OF COVENANTS.
All of the covenants to be performed and all of the conditions to be
satisfied by Seller prior to the Closing Date shall have been performed or
satisfied on or before the Closing.
5.03 ADDITIONAL DOCUMENTS.
A. Seller and HFBC shall have executed an Agreement in the form of
Schedule 5.03(A) to this Agreement and shall have executed and exchanged all
such instruments and documents as may be required pursuant to such Agreement.
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B. Seller and HFBC shall have executed and delivered the New Note.
C. Buyer shall have received the consent, in the form of Schedule
6.03(D), executed by Manufacturers and Traders Trust Company ("M&T") and by
▇▇▇▇▇▇ Capital Partners, L.P. ("▇▇▇▇▇▇"), as required (i) pursuant to Section 16
of the Intercreditor Agreement dated as of December 15, 2000 among HFBC, M&T,
▇▇▇▇▇▇ and Seller (the "Intercreditor Agreement") and (ii) pursuant to the
"Senior Credit Agreement", as defined in the Intercreditor Agreement.
5.04 DELIVERY OF DOCUMENTS.
Buyer shall have received all such documents, certificates and papers
required of Seller pursuant to the terms of this Agreement in form and substance
as approved prior to the Closing by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, attorneys for
Buyer, including but not limited to the following:
A. A duly executed ▇▇▇▇ of Sale, in the form of Schedule 5.04A to this
Agreement, transferring the New Note and the Security Documents to Buyer,
without recourse.
B. A duly executed Agreement between Seller and HFBC and the additional
documents provided for therein, as required under Section 5.03A above.
C. The duly executed originals of the New Note, endorsed to Buyer
without recourse, and of each of the Security Documents.
D. A duly executed consent by ▇▇▇▇▇▇, as required under Section 5.03C
above.
E. A duly executed consent by M&T, as required under Section 5.03C
above.
F. The original of the Original Note shall have been delivered to HFBC.
G. Uniform commercial code searches dated or redated as of the Closing
Date stating that as of said date there are no liens, or encumbrances of record
against Seller, the Original Note, the New Note or the Security Documents filed
in the office of the Department of State of the State of New York.
H. A certificate from Seller dated as of the Closing Date, to the
effect that, as of the Closing Date, all of the representations and warranties
of Seller contained in this Agreement are
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true and correct and that all of the covenants and conditions contained in this
Agreement to be performed or satisfied by Seller prior to the Closing have been
performed or satisfied.
ARTICLE VI.
CONDITIONS OF CLOSING BY SELLER
The obligation of Seller to consummate the transactions contemplated by
this Agreement shall be subject, at Seller's sole option, to the satisfaction of
the following conditions precedent:
6.01 REPRESENTATIONS.
All of the representations and warranties of Buyer herein contained
shall be true and correct as of the date of this Agreement, and as of the
Closing Date as if made on and as of the Closing Date.
6.02 COVENANTS AND CONDITIONS.
All of the covenants to be performed and all of the conditions to be
satisfied by Buyer prior to the Closing Date shall have been performed or
satisfied on or before the Closing.
6.03 DELIVERIES.
Seller shall have received all such documents and papers required of
Buyer pursuant to the terms of this Agreement, in form and substance as approved
prior to the Closing by Buyer's Attorney, including expressly, but not limited
to, the following:
A. Payment of the Purchase Price to the extent and in the manner
set forth in Section 1.03 hereof.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
7.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties of the parties contained in this
Agreement shall survive the execution and delivery of this Agreement, the
consummation of the transactions
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contemplated hereby and the transfer and conveyance of the New Note and the
Security Documents.
7.02 BINDING EFFECT; ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective personal representatives, successors and
assigns.
7.03 ENTIRE AGREEMENT.
This Agreement contains the entire understanding and agreement among
the Parties hereto and supersedes any prior understandings, 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 any of the Parties relating to
the subject matter of this Agreement which are not fully expressed herein.
7.04 MODIFICATIONS; WAIVER.
No modification or waiver of this Agreement or any part hereof shall be
valid or 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 other subsequent breach or condition, whether of
like or different nature. No course of dealing between or among any of the
Parties hereto will be deemed effective to modify, amend or discharge any part
of this Agreement or the rights or obligations of any Party hereunder.
7.05 PARTIAL INVALIDITY.
If any provision of this Agreement shall be held by a court of
competent jurisdiction to be invalid or unenforceable, 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.
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7.06 NO THIRD PARTY BENEFICIARY.
None of the provisions of this Agreement shall be for the benefit of,
or enforceable by, any person or entity which is not a Party hereto.
7.07 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 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 Seller shall be sent to: GBC Liquidating Corp.
C/o Ashley Management Corp.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ Forth, Esq.
Notice to Buyer shall be sent to: St. ▇▇▇▇ Associates, LLC
▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Manager
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7.08 GOVERNING LAW.
This Agreement 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.
7.09 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:
A. 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 such proceedings; and
B. the venue of any such action shall be in Monroe County, New
York.
7.10 HEADINGS.
The headings contained in this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.
7.11 COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original, and all of said counterparts shall together
constitute but one and the same instrument which may be sufficiently evidenced
by one counterpart.
7.12 EXPENSES OF PARTIES.
All expenses involved in the preparation, authorization and
consummation of this Agreement, including, without limitation, all fees and
expenses of agents, representatives, counsel and accountants, shall be borne
solely by the Party which shall have incurred the same, and the other Parties
shall have no liability with respect thereto.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereunto have duly executed this
Agreement on May 25, 2004
SELLER: GBC LIQUIDATING CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & CFO
BUYER: ST. ▇▇▇▇ ASSOCIATES, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
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SCHEDULE 1.01
SECURITY DOCUMENTS
1. Security Agreement dated as of December 15, 2000 between HFBC
and The Genesee Brewery, Inc.
2. Contingent Trademark Assignment dated as of December 15, 2000
between HFBC and The Genesee Brewing Company, Inc.
3. Security Agreement Amendment No. 1 between The Genesee Brewing
Company, Inc. and HFBC dated as of July 30, 2002.
4. All financing statements filed by GBC against HFBC.
