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EXHIBIT 10-7
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SECURITY AGREEMENT
This SECURITY AGREEMENT (this "AGREEMENT"), dated as of December 15,
2000, is executed by HIGH FALLS BREWING COMPANY, LLC, a limited liability
company organized under the laws of New York ("HIGH FALLS"), in favor of THE
GENESEE BREWERY, INC., a New York corporation ("GENESEE").
R E C I T A L S :
A. Pursuant to an Asset Purchase Agreement, dated as of August 29,
2000, as amended by Amendment No. 1 dated December 15, 2000 (the "PURCHASE
AGREEMENT"), by and between Genesee, as seller, and High Falls, as purchaser,
Genesee has agreed to sell to High Falls, and High Falls has agreed to purchase,
substantially all of the assets of Genesee's brewing operations on the terms and
conditions contained therein.
B. Genesee has agreed to accept as partial payment for the Purchase
Price (as defined in the Purchase Agreement) promissory notes from High Falls
totaling $11,000,000 in original principal amount (including High Falls'
$3,500,000 First Senior Bridge Note, $3,000,000 Second Senior Bridge Note and
$4,500,000 Subordinated Promissory Note, collectively, the "NOTES"), and to
provide certain accommodations in connection with a certain production agreement
with Boston Brewing, etc., for which High Falls has indemnified Lender pursuant
to an Indemnification Agreement of even date herewith (the "INDEMNIFICATION
AGREEMENT") subject, among other conditions, to receipt by Genesee of this
Security Agreement, duly executed by High Falls, and the perfection of the
security interest granted herein to secure any and all obligations and
indebtedness to Genesee, whenever arising or with respect to any financial
accommodation loans.
A G R E E M E N T :
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, High Falls hereby agrees with Genesee as follows:
1. DEFINITIONS AND INTERPRETATION. When used in this Security
Agreement, the following terms shall have the following respective meanings:
"ACCOUNT DEBTOR" shall have the meaning given to that term in
Section 3(g).
"BOSTON BEER INDEMNIFICATION AGREEMENT" shall mean the
Indemnification Agreement between Genesee and High Falls pursuant to which the
parties
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have agreed to certain indemnification terms in connection with obligations and
liabilities under an Amended and Restated Agreement dated as of April 30, 1997
(the "BOSTON BEER AGREEMENT") between Genesee and Boston Brewing Company, Inc.,
d/b/a The Boston Beer Company, a Massachusetts corporation, for itself and as
the sole general partner of Boston Beer Company Limited Partnership, a
Massachusetts limited partnership
"BOSTON BEER NOTE" shall mean a certain Promissory Note that
after the date hereof may be executed and delivered by High Falls to Genesee
pursuant to the Boston Beer Indemnification Agreement.
"▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇ Capital Partners, L.P. and it
successors and assigns.
"COLLATERAL" shall mean any and all assets of any kind of High
Falls excepting real property, but including the Equipment, the Inventory, the
Receivables, the Related Contracts and the General Intangibles and all other
property not otherwise heretofore described (including, without limitation, all
money, certificated securities, uncertificated securities, documents and goods),
in which High Falls has an interest now or in the future, and which are now
exiting or hereafter created or acquired (including but not limited to any and
all bottling lines, equipment or other assets of any kind or interest therein
hereafter acquired under the Boston Beer Agreement), together with all proceeds
of the foregoing (including, without limitation, whatever is receivable or
received when Collateral or proceeds is sold, collected, exchanged, returned,
substituted or otherwise disposed of, whether such disposition is voluntary or
involuntary, including rights to payment and return premiums and insurance
proceeds under insurance with respect to any Collateral, and all rights to
payment with respect to any cause of action affecting or relating to the
Collateral).
"EQUIPMENT" shall mean equipment and fixtures (including,
without limitation, fermenting/conditioning tanks, brew kettles, bottling line,
kegs, furniture, vehicles and other machinery, brewing and office equipment),
together with all additions and accessions thereto and replacements therefor;
"FIRST SENIOR BRIDGE NOTE" shall mean High Falls' $3,500,000
First Senior Bridge Note issued to Genesee in partial payment of the purchase
price due under the Purchase Agreement.
"GENERAL INTANGIBLES" shall mean all general intangibles and
contract rights of High Falls of any kind or nature whatsoever not otherwise
described in any of the other Collateral (including, without limitation, (i)
customer and supplier lists and contracts, books and records, insurance
policies, tax refunds, contracts for the purchase of real or personal property;
(ii) all patents, copyrights, trademarks, trade names, service marks and trade
dress, including, but not limited to, those described on EXHIBIT A attached
hereto, (iii) all licenses to use, applications for, and other rights to, such
patents, copyrights, trademarks, trade names and service marks, and (iv) all
goodwill of High Falls, including, but not limited to, related to the marks
described in (ii) above, and the formulae, know-how, label
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and bottle designs and other packaging, and research and development related
thereto, including, but not limited to, any and all names, insignias, labels,
logos, commercial symbols, slogans and other identification schemes, patents,
patent applications, copyrights, trademarks, service marks, trade names, trade
dress, trade secrets, customer or supplier lists, manuals, operating
instructions, permits and franchises and/or applications that may be controlled
from time to time by High Falls for use in association with the Marks and/or the
products manufactured, marketed and sold by High Falls under its own labels.
"GENESEE" shall have the meaning given to that term in the
preamble to this Agreement.
"HIGH FALLS" shall have the meaning given to that term in the
preamble to this Agreement.
"INVENTORY" shall mean all inventory (including, without
limitation, (i) all ales, finished products, packaging materials, and all other
raw materials, work in process and finished goods and (ii) all such goods which
are returned to or repossessed by High Falls), together with all additions and
accessions thereto, replacements therefor, products thereof and documents
therefor.
"M&T" shall mean Manufacturers and Traders Trust Company, and
it successor and assigns.
"▇▇▇▇ ▇▇▇▇▇▇▇ CELLARS AGREEMENT" shall mean that certain
agreement by and between Genesee, as the original party, and ▇▇▇▇ ▇▇▇▇▇▇▇
Cellars.
"OBLIGATIONS" shall mean any and all obligations, indebtedness
or liabilities of Genesee, by or arising under the First Senior Bridge Note, the
Second Senior Bridge Note, the Seller Junior Subordinated Note, the Boston Beer
Indemnification Agreement and the Boston Beer Note (including all amendments
thereto and replacements thereof), and all sums expended by Genesee for
protection of its interest such as payments made for taxes, insurance and
expenses of collection.
"PURCHASE AGREEMENT" shall have the meaning given to that term
in Recital A.
"RECEIVABLES" shall mean all accounts, chattel paper,
instruments, deposit accounts and other rights to the payment of money
(including, without limitation, general intangibles and contract rights)
(collectively, the "RECEIVABLES") and all contracts, security agreements,
leases, guaranties and other agreements evidencing, securing or otherwise
relating to the Receivables (including, without limitation, the Related
Contracts).
"RELATED CONTRACTS" means any and all production contracts for
beverages of any kind now existing or hereafter entered into, including, but not
limited to, the Boston Beer Agreement, the ▇▇▇▇ ▇▇▇▇▇▇▇ Cellars Agreement and
the letter agreement dated
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September 25, 2000 between UDV North America, Inc. and Genesee, as an original
party, and all amendments and modifications thereof.
"SECOND SENIOR BRIDGE NOTE" shall mean High Falls' $3,000,000
Second Senior Bridge Note issued to Genesee in partial payment of the purchase
price due under the Purchase Agreement.
"SELLER JUNIOR SUBORDINATED NOTE" shall mean High Falls'
$4,500,000 Subordinated Promissory Note issued to Genesee in partial payment of
the purchase price due under the Purchase Agreement.
"UCC" shall mean the Uniform Commercial Code as in effect in
the State of New York from time to time.
Unless otherwise defined herein, all terms defined in the UCC shall
have the respective meanings given to those terms in the UCC.
2. GRANT OF SECURITY INTEREST. As security for the payment and
performance of the Obligations, High Falls hereby pledges and assigns to Genesee
and grants to Genesee a security interest in all right, title and interest of
High Falls in and to the Collateral. This security interest is specifically
intended to be a continuing interest and shall cover the Collateral in which
High Falls acquires and interest after the date of this Agreement as well as
Collateral in which High Falls now has an interest. This security interest shall
continue until terminated as described in this Agreement even if all Obligations
are paid in full from time to time. Genesee shall have the right to apply the
Collateral and any proceeds therefrom to all or any part of the Obligations as
and in the order Genesee may elect, whether or not such Obligations are
otherwise secured.
3. PARTIAL RELEASE OF LIEN. Notwithstanding anything to the contrary
contained herein, Genesee agrees to release or assign the security interest
granted hereunder with respect to certain ▇▇▇▇▇▇ equipment and cooperage,
together with all related parts, accessories, drawings, plans and related items
(whether now existing or hereafter acquired) to Genesee in conjunction with the
Closing of High Falls' presently contemplated HUD 108 term loan financing;
provided that such equipment to be released and the form and substance of the
release or assignment documentation shall be satisfactory to Genesee in its sole
discretion.
4. REPRESENTATIONS AND WARRANTIES. High Falls represents and warrants
to Genesee as follows:
(a) High Falls is the legal and beneficial owner of the
Collateral (or, in the case of after-acquired Collateral, at the time High Falls
acquires rights in the Collateral, will be the legal and beneficial owner
thereof). No other Person has (or, in the case of after-acquired Collateral, at
the time High Falls acquires rights therein, will have) any right, title, claim
or interest (by way of Lien, purchase option or otherwise) in, against or to the
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Collateral, other than with respect to the Liens permitted under the First
Senior Bridge Note and the Second Senior Bridge Note (the "PERMITTED LIENS").
(b) Genesee has (or in the case of after-acquired Collateral,
at the time High Falls acquires rights therein, will have) a perfected security
interest in the Collateral subject only to the Permitted Liens in favor of M&T,
▇▇▇▇▇▇ and the Investors according to the priority therefor set forth in the
Intercreditor Agreement.
(c) All Equipment and Inventory are (i) located at the
locations indicated on EXHIBIT B annexed hereto, (ii) in transit to such
locations or (iii) in transit to a third party purchaser which will become
obligated on a Receivable to High Falls upon receipt. High Falls has exclusive
possession and control of the Inventory and Equipment.
(d) All Inventory has been (or, in the case of hereafter
produced Inventory, will be) produced in compliance with all applicable
Governmental Rules, including the Fair Labor Standards Act (if applicable).
(e) High Falls keeps all records concerning the Receivables
and the originals of all Related Contracts at its chief executive office located
at the address set forth on EXHIBIT B.
(f) High Falls has delivered to Genesee, together with all
necessary stock powers, endorsements, assignments and other necessary
instruments of transfer, the originals of all Receivables consisting of
instruments and chattel paper.
(g) To the best of High Falls' knowledge, each Receivable is
genuine and enforceable against the party obligated to pay the same (an "ACCOUNT
DEBTOR"), free from any right of rescission, defense, setoff or discount, other
than the rights of distributors to setoff deposits given to High Falls against
Receivables.
(h) Each insurance policy maintained by High Falls is validly
existing and is in full force and effect. High Falls is not in default in any
material respect under the provisions of any insurance policy, and there are no
facts which, with the giving of notice or passage of time (or both), would
result in such a default under any provision of any such insurance policy.
5. COVENANTS. High Falls hereby agrees as follows:
(a) High Falls, at High Falls' expense, shall promptly
procure, execute and deliver to Genesee all documents, instruments and
agreements and perform all acts which are necessary or desirable, or which
Genesee may reasonably request, to establish, maintain, preserve, protect and
perfect the Collateral, the Lien granted to Genesee therein and the priority of
such Lien or to enable Genesee to exercise and enforce its rights and remedies
hereunder with respect to any Collateral. Without limiting the generality of the
preceding sentence, High Falls shall (i) procure, execute and deliver to Genesee
all stock powers, endorsements, assignments, financing statements and other
instruments of transfer
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reasonably requested by Genesee, (ii) deliver to Genesee promptly upon receipt
all originals of Collateral consisting of instruments, documents and chattel
paper and certificated securities and (iii) take such action as may be necessary
and requested by Genesee to perfect the lien of Genesee in any Collateral
consisting of investment property (including in those jurisdictions where
appropriate or where Genesee may otherwise request), causing such liens to be
recorded or registered in the books of any financial intermediary or clearing
corporation requested by Genesee.
(b) High Falls shall not use or permit any Collateral to be
used in violation of (i) any material provision of this Agreement, (ii) any
applicable Governmental Rule, or (iii) any policy of insurance covering the
Collateral.
(c) High Falls shall pay promptly when due all taxes and other
governmental charges, all Liens (other than Permitted Liens) and all other
charges now or hereafter imposed upon, relating to or affecting any Collateral.
(d) Without thirty (30) days' prior written notice to Genesee,
High Falls shall not (i) change High Falls' name or place of business (or, if
High Falls has more than one place of business, its chief executive office), or
the office in which High Falls' records relating to Receivables or the originals
of Related Contracts are kept, (ii) keep Collateral consisting of chattel paper
and documents at any location other than its chief executive office set forth on
EXHIBIT B; or (iii) keep Collateral consisting of Equipment, Inventory or other
goods at any location other than the locations set forth on EXHIBIT B.
(e) High Falls shall appear in and defend any action or
proceeding which may affect its title to or Genesee's interest in the
Collateral.
(f) If Genesee gives value to enable High Falls to acquire
rights in or the use of any Collateral, High Falls shall use such value for such
purpose.
(g) High Falls shall keep separate, accurate and complete
records of the Collateral, and shall provide Genesee with such records and such
other reports and information relating to the Collateral as Genesee may
reasonably request from time to time.
(h) High Falls shall not surrender or lose possession of
(other than to Genesee), sell, encumber, lease, rent, option, or otherwise
dispose of or transfer any Collateral or right or interest therein (other than
(i) Inventory sold in the ordinary course of High Falls' business and (ii)
purchase money security interests in Equipment, provided that any such purchase
money security interests only cover Equipment the acquisition of which was
financed by indebtedness which does not exceed the purchase price of the
Equipment so financed), and, notwithstanding any provision of the Credit
Agreement, High Falls shall keep the Collateral free of all Liens, other than
Permitted Liens.
(i) High Falls shall type, print or stamp conspicuously on the
face of all original copies of all Collateral consisting of chattel paper and
documents not in the
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possession of Genesee a legend satisfactory to Genesee indicating that such
chattel paper is subject to the security interest granted hereby.
(l) High Falls shall collect, enforce and receive delivery of
the Receivables in accordance with past practice until otherwise notified by
Genesee.
(m) High Falls shall comply with all material laws, rules and
regulations promulgated by Governmental Authorities applicable to High Falls
which relate to the production, possession, operation, maintenance and control
of the Collateral (including, without limitation, the Fair Labor Standards Act).
(n) High Falls shall (i) maintain and keep in force insurance
of the types and in amounts customarily carried from time to time during the
term of this Agreement in its lines of business, including fire, public
liability, property damage and worker's compensation, such insurance to be
carried with companies and in amounts satisfactory to Genesee, (ii) deliver to
Genesee from time to time, as Genesee may request, schedules setting forth all
insurance then in effect, and (iii) deliver to Genesee copies of each policy of
insurance which replaces, or evidences the renewal of, each existing policy of
insurance at least fifteen (15) days prior to the expiration of such policy.
Genesee shall be named as additional insured or additional loss payee, as
appropriate, on all liability and property insurance of High Falls and such
policies shall contain such additional endorsements as shall reasonably be
required by Genesee. Prior to the occurrence and the continuance of an Event of
Default, all proceeds of any property insurance paid as a result of any event or
occurrence shall be paid to High Falls. All proceeds of any property insurance
paid after the occurrence and during the continuance of an Event of Default
shall be paid to Genesee to be held as Collateral and applied as provided in the
Purchase Agreement or, at the election of Genesee, returned to High Falls.
(o) Without the prior written consent of Genesee, High Falls
shall not create, incur, assume or permit to exist any indebtedness or
liabilities resulting from borrowings, loans or advances, whether secured or
unsecured, matured or unmatured, liquidated or unliquidated, joint or several.
6. AUTHORIZED ACTION BY GENESEE. High Falls hereby irrevocably appoints
Genesee as its attorney-in-fact and agrees that Genesee may perform (but Genesee
shall not be obligated to, and shall incur no liability to High Falls or any
third party for failure to do so) any act which High Falls is obligated by this
Agreement to perform, and to exercise such rights and powers as High Falls might
exercise with respect to the Collateral, including, without limitation, the
right to (a) collect by legal proceedings or otherwise and endorse, receive and
receipt for all dividends, interest, payments, proceeds and other sums and
property now or hereafter payable on or on account of the Collateral; (b) enter
into any extension, reorganization, deposit, merger, consolidation or other
agreement pertaining to, or deposit, surrender, accept, hold or apply other
property in exchange for the Collateral; (c) insure, process, preserve and
enforce the Collateral; (d) make any compromise or settlement, and take any
action it deems advisable, with respect to the Collateral; (e) pay any
Indebtedness of High Falls relating to the Collateral; and (f) execute UCC
financing statements and other documents, instruments and agreements required
hereunder;
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PROVIDED, HOWEVER, that Genesee may exercise such powers only after the
occurrence and during the continuance of an Event of Default. High Falls agrees
to reimburse Genesee upon demand for all reasonable costs and expenses,
including attorneys' fees, Genesee may incur while acting as High Falls'
attorney-in-fact hereunder, all of which costs and expenses are included in the
Obligations. High Falls agrees that such care as Genesee gives to the
safekeeping of its own property of like kind shall constitute reasonable care of
the Collateral when in Genesee's possession; PROVIDED, HOWEVER, that Genesee
shall not be required to make any presentment, demand or protest, or give any
notice and need not take any action to preserve any rights against any prior
party or any other Person in connection with the Obligations or with respect to
the Collateral.
7. DEFAULT AND REMEDIES. High Falls shall be deemed in default under
this Agreement upon the occurrence and during the continuance of an Event of
Default under any promissory note evidencing any of the Obligations. In addition
to all other rights and remedies granted to Genesee by this Agreement, a
Mortgage of even date herewith or any note, the UCC and other applicable
Governmental Rules, Genesee may, upon the occurrence and during the continuance
of any Event of Default, exercise any one or more of the following rights and
remedies: (a) collect, receive, appropriate or realize upon the Collateral or
otherwise foreclose or enforce Genesee's security interests in any or all
Collateral in any manner permitted by applicable Governmental Rules or in this
Agreement; (b) notify any or all Account Debtors to make payments on Receivables
directly to Genesee; (c) direct any depository bank or intermediary to liquidate
the account(s) maintained by it, pay all amounts payable in connection therewith
to Genesee and/or deliver any proceeds thereof to Genesee; (d) sell or otherwise
dispose of any or all Collateral at one or more public or private sales, whether
or not such Collateral is present at the place of sale, for cash or credit or
future delivery, on such terms and in such manner as Genesee may determine; (e)
require High Falls to assemble the Collateral and make it available to Genesee
at a place to be designated by Genesee; (f) enter onto any property where any
Collateral is located and take possession thereof with or without judicial
process; and (g) prior to the disposition of the Collateral, store, process,
repair or recondition any Collateral consisting of goods, perform any
obligations and enforce any rights of High Falls under any Related Contracts or
otherwise prepare and preserve Collateral for disposition in any commercially
reasonable manner and to the extent Genesee reasonably deems appropriate. In
furtherance of Genesee's rights hereunder, High Falls hereby grants to Genesee
an irrevocable, non-exclusive license (exercisable without royalty or other
payment by Genesee) to use, license or sublicense any patent, trademark,
tradename, copyright or other intellectual property in which High Falls now or
hereafter has any right, title or interest, together with the right of access to
all media in which any of the foregoing may be recorded or stored (but only to
the extent High Falls is not prohibited from granting such irrevocable,
non-exclusive license under applicable law or any material agreement to which it
is a party). In any case where notice of any sale or disposition of any
Collateral is required, High Falls hereby agrees that seven (7) days notice of
such sale or disposition is reasonable.
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8. AUTHORIZATIONS, WAIVERS, ETC.
(a) Authorizations. High Falls authorizes Genesee, in its
reasonable discretion, without notice to High Falls except as required by
applicable law, irrespective of any change in the financial condition of High
Falls or any other guarantor of the Obligations since the date hereof, and
without affecting or impairing in any way the liability of High Falls hereunder,
from time to time to:
(i) Exercise any right or remedy Genesee may have
against High Falls or any guarantor of the Obligations or any security,
including, without limitation, the right to foreclose upon any such security by
judicial or nonjudicial sale;
(ii) Settle, compromise with, release or substitute
any one or more makers, endorsers or guarantors of the Obligations; and
(iii) To, assign the Obligations, this Agreement or
any other credit document in whole or in part.
(b) Waivers. High Falls hereby waives:
(i) Any right to require Genesee to (A) proceed
against High Falls or any other guarantor of the Obligations, (B) proceed
against or exhaust any security received from High Falls or any other guarantor
of the Obligations or otherwise ▇▇▇▇▇▇▇▇ the assets of High Falls or (C) pursue
any other remedy in Genesee's power whatsoever;
(ii) Any defense arising by reason of the application
by High Falls of the proceeds of any borrowing;
(iii) Any defense resulting from the absence,
impairment or loss of any right of reimbursement, subrogation, contribution or
other right or remedy of Genesee against High Falls, any other guarantor of the
Obligations or any security, whether resulting from an election by Genesee to
foreclose upon security by non-judicial sale, or otherwise;
(iv) Any benefit arising from any setoff or
counterclaim of High Falls or any defense which results from any disability or
other defense of High Falls or the cessation or stay of enforcement from any
cause whatsoever of the liability of Monroe Brewing (including, without
limitation, the lack of validity or enforceability of any note evidencing any of
the Obligations, but excluding any set-off asserted by High Falls against the
Seller Junior Subordinated Note to the extent permitted therein);
(v) Until all Obligations have been fully, finally
and indefeasibly paid, any right of subrogation, reimbursement, indemnification
or contribution and other similar right to enforce any remedy which Genesee or
any other Person now has or may hereafter have against High Falls on account of
the Obligations, and any benefit of, and any right to participate in, any
security now or hereafter received by Genesee or any other Person account of the
Obligations;
(vi) All presentments, demands for performance,
notices of non-performance, protests, notice of dishonor, and notices of
acceptance of this Agreement
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and of the existence, creation or incurring of new or additional Obligations and
notices of any public or private foreclosure sale;
(viii) Any appraisement, valuation, stay, extension,
moratorium redemption or similar law or similar rights for marshalling;
(ix) Any defense arising from an election for the
application of Section 1111(b)(2) of the United States Bankruptcy Code which
applies to the Obligations; and
(x) Any defense based upon any borrowing or grant of
a security interest under Section 364 of the United States Bankruptcy Code.
Without limiting the scope of any of the foregoing provisions of this ▇▇▇▇▇▇▇ ▇,
▇▇▇▇ ▇▇▇▇▇ hereby further waives all rights and defenses arising out of an
election of remedies by Genesee, even though that election of remedies has
destroyed Genesee's rights of subrogation and reimbursement against High Falls
9. MISCELLANEOUS.
(a) Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon
High Falls or Genesee under this Agreement shall be in writing and mailed or
delivered at his or its respective address first set forth above (or to such
other address for each party as indicated in any notice given by that party to
the other party). All such notices and communications shall be effective (i)
when sent by Federal Express or other overnight service of recognized standing,
on the second day following the deposit with such service; (ii) when mailed,
first class postage prepaid and addressed as aforesaid through the United States
Postal Service, upon receipt; and (iii) when delivered by hand, upon delivery.
(b) Expenses. High Falls shall pay on demand all reasonable
fees and expenses, including reasonable attorneys' fees and expenses, incurred
by Genesee in the enforcement or attempted enforcement of this Agreement or in
preserving any of Genesee's rights and remedies (including, without limitation,
all such fees and expenses incurred in connection with any "workout" or
restructuring affecting this Agreement or any bankruptcy or similar proceeding
involving High Falls). The obligations of High Falls under this Section 8(b)
shall survive the payment and performance of the Obligations and the termination
of this Agreement.
(c) Waivers; Amendments. This Agreement may not be amended or
modified, nor may any of its terms be waived, except by written instruments
signed by High Falls and Genesee. Each waiver or consent under any provision
hereof shall be effective only in the specific instances for the purpose for
which given. No failure or delay on Genesee's part in exercising any right
hereunder shall operate as a waiver thereof or of any other right nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right.
(d) Assignments. This Agreement shall be binding upon and
inure to the benefit of Genesee, High Falls and their respective successors and
assigns, except that High
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Falls may not assign or transfer any of its rights and obligations under this
Agreement without the prior written consent of Genesee.
(e) Partial Invalidity. If at any time any provision of this
Agreement is or becomes illegal, invalid or unenforceable in any respect under
the law of any jurisdiction, neither the legality, validity or enforceability of
the remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
(f) Cumulative Rights, Etc.. The rights, powers and remedies
of Genesee under this Agreement shall be in addition to all rights, powers and
remedies given to Genesee by virtue of any applicable law, rule or regulation of
any governmental authority, the Purchase Agreement or any note or other
agreement, all of which rights, powers, and remedies shall be cumulative and may
be exercised successively or concurrently without impairing Genesee's rights
hereunder. High Falls waives any right to require Genesee to proceed against any
Person or to exhaust any Collateral or to pursue any remedy in Genesee's power.
(g) Payments Free of Taxes, Etc. All payments made by High
Falls under this Agreement shall be made by High Falls free and clear of and
without deduction for any and all present and future taxes, levies, charges,
deductions and withholdings. In addition, High Falls shall pay upon demand any
stamp or other taxes, levies or charges of any jurisdiction with respect to the
execution, delivery, registration, performance and enforcement of this
Agreement. Upon request by Genesee, High Falls shall furnish evidence
satisfactory to Genesee that all requisite authorizations and approvals by, and
notices to and filings with, Governmental Authorities and regulatory bodies have
been obtained and made and that all requisite taxes, levies and charges have
been paid.
(h) High Falls's Continuing Liability. Prior to a foreclosure
of Genesee's security interest in the Collateral or the payment in full of the
Obligations, notwithstanding any provision of this Agreement or any other credit
document or any exercise by Genesee of any of its rights hereunder or thereunder
(including, without limitation, any right to collect or enforce any Collateral),
(i) High Falls shall remain liable to perform its obligations and duties in
connection with the Collateral (including, without limitation, the Related
Contracts and all other agreements relating to the Collateral) and (ii) Genesee
shall not assume any liability to perform such obligations and duties or to
enforce any of High Falls's rights in connection with the Collateral (including,
without limitation, the Related Contracts and all other agreements relating to
the Collateral).
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without reference
to conflicts of law rules (except to the extent otherwise provided in the UCC).
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IN WITNESS WHEREOF, High Falls has caused this Agreement to be executed
as of the day and year first above written.
HIGH FALLS BREWING COMPANY, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President and Manager
Page 162 of 272
EXHIBIT A TO
SECURITY AGREEMENT
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List of Trademarks, Etc.
Page 163 of 272
EXHIBIT B TO
SECURITY AGREEMENT
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LOCATIONS OF COLLATERAL AND CHIEF EXECUTIVE OFFICE See Attachment.