-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UAi4CsE6Ey+ZiLMdVG281qqbgoJWIuOcLvLfjdgYlg3p5SD6/xjDMoJuae7m8HzT 4Z92Z+Z0PjylmvywbU7RgQ== 0000950152-04-004470.txt : 20040604 0000950152-04-004470.hdr.sgml : 20040604 20040604161031 ACCESSION NUMBER: 0000950152-04-004470 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 14 CONFORMED PERIOD OF REPORT: 20040525 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20040604 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENESEE CORP CENTRAL INDEX KEY: 0000040934 STANDARD INDUSTRIAL CLASSIFICATION: MALT BEVERAGES [2082] IRS NUMBER: 160445920 STATE OF INCORPORATION: NY FISCAL YEAR END: 0503 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-01653 FILM NUMBER: 04850010 BUSINESS ADDRESS: STREET 1: 600 POWERS BUILDING STREET 2: 16 WEST MAIN STREET CITY: ROCHESTER STATE: NY ZIP: 14614 BUSINESS PHONE: 7164541250 MAIL ADDRESS: STREET 1: 600 POWERS BUILDING STREET 2: 16 WEST MAIN STREET CITY: ROCHESTER STATE: NY ZIP: 146141601 FORMER COMPANY: FORMER CONFORMED NAME: GENESEE BREWING CO INC DATE OF NAME CHANGE: 19880322 8-K 1 l07937ae8vk.txt GENESEE CORPORATION Page 1 of 55 Exhibit Index at page 5 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): May 25, 2004 GENESEE CORPORATION - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in Charter) NEW YORK 0-1653 16-0445920 - ---------------------------- ------------ -------------------------- (State or other Jurisdiction (Commission (IRS Employer of Incorporation) File Number) Identification No.) 600 Powers Building, 16 West Main Street, Rochester, New York 14614 - --------------------------------------------------------------- ------------- (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: (585) 454-1250 Page 2 of 55 Item 2. Acquisition or Disposition of Assets SALE OF SUBORDINATED NOTE RECEIVABLE On May 25, 2004 GBC Liquidating Corp. (formerly The Genesee Brewing Co., Inc.) a wholly-owned subsidiary of Genesee Corporation, sold its subordinated note receivable (the "Note") from High Falls Brewing Company, LLC ("High Falls") to a third party for $1,000,000. In accordance with liquidation based accounting the Note was last valued, based on the fair market value of publicly-traded debt instruments of similar quality, at $1,100,000 in the Corporation's Form 10-Q for the fiscal quarter ended January 31, 2004. The Note had been in default since December 2002, when High Falls missed a $1,000,000 principal payment, and continued to be in default as the December 2003 $3,000,000 principal payment, and March 2004 interest payment were missed as well. As of the date of the Note sale, approximately $300,000 of interest had accrued on the Note, which has been written off by the Corporation. However, High Falls agreed to pay the Corporation $100,000 if, prior to April 30, 2006, certain conditions are satisfied and High Falls' senior creditors consent to the payment. A party to the December 2000 brewery sale claims that the Corporation has received approximately $120,000 in interest payments from High Falls, which should have been paid to it, as a creditor of High Falls that is senior to the Corporation. High Falls' senior creditors have imposed a number of conditions which, if satisfied by July 31, 2004, would result in this claim being resolved by High Falls paying the $120,000 claimed by the creditor that is senior to the Corporation, and High Falls has agreed to reimburse the Corporation in the event the Corporation makes this payment. The sale of the Note, with the exception of the possible receipt of $100,000 and the possible payment of $120,000 mentioned above, completes the sale of the Corporation's brewing business, which was effected in December 2000. See Item 7(c) that refers to an Index of Exhibits related to this transaction that are filed with this Current Report. Item 5. Other Events. PARTIAL LIQUIDATING DISTRIBUTION The Corporation's Board of Directors has declared a partial liquidating distribution in the amount of $1.50 per outstanding share of the Corporation's Class A and Class B common stock. Shareholders of record on June 11, 2004 are entitled to receive this distribution, which is payable on June 18, 2004. This is the eighth partial liquidating distribution paid to shareholders under the Corporation's Plan of Liquidation and Dissolution and brings the Corporation's total liquidating distributions to $65,289,000, or $39.00 per share. GENESEE CORPORATION GOVERNANCE The Corporation no longer has any employees. Effective May 31, 2004, all Genesee Corporation and subsidiaries Directors, with the exception of Stephen B. Ashley, will resign. Also effective May 31, 2004, all Genesee Corporation officers, with the exception of Steven M. Morse, will resign. Going forward Mr. Ashley and Mr. Morse will continue to lead the Corporation towards the conclusion of its Plan of Liquidation and Dissolution. Page 3 of 55 Item 7(c). Exhibits The Exhibit Index attached hereto is incorporated in this Item 7(c) as if fully set forth herein. Page 4 of 55 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Genesee Corporation Date: June 2, 2004 By /s/ Steven M. Morse ---------------------------- Steven M. Morse, Vice President and Chief Financial Officer Page 5 of 55 EXHIBIT INDEX
EXHIBIT NUMBER DOCUMENT DESCRIPTION PAGE - -------------- -------------------- ---- EXHIBIT 10-1 AGREEMENT DATED MAY 25, 2004 BETWEEN HIGH FALLS BREWING COMPANY, LLC AND GBC LIQUIDATING CORP. 6 EXHIBIT 10-2 BILL OF SALE DATED MAY 25, 2004 BETWEEN GBC LIQUIDATING CORP. AND ST. PAUL ASSOCIATES, LLC 11 EXHIBIT 10-3 GENERAL RELEASE DATED MAY 25, 2004 FROM GBC LIQUIDATING CORP. TO HIGH FALLS BREWING COMPANY, LLC 15 EXHIBIT 10-4 LETTER AGREEMENT DATED MAY 25, 2004 BETWEEN ST. PAUL ASSOCIATES, LLC AND HIGH FALLS BREWING COMPANY, LLC 19 EXHIBIT 10-5 GENERAL RELEASE DATED MAY 25, 2004 FROM HIGH FALLS BREWING COMPANY, LLC TO GBC LIQUIDATING CORP. 22 EXHIBIT 10-6 NOTE PURCHASE AGREEMENT DATED MAY 25, 2004 BETWEEN GBC LIQUIDATING CORP. AND ST. PAUL ASSOCIATES, LLC 25 EXHIBIT 10-7 AMENDED AND RESTATED SUBORDINATED PROMISSORY NOTE DATED MAY 25, 2004 FROM HIGH FALLS BREWING COMPANY, LLC TO GBC LIQUIDATING CORP. 37 EXHIBIT 10-8 BUYER'S CERTIFICATE DATED MAY 25, 2004 FROM ST. PAUL ASSOCIATES, LLC 45 EXHIBIT 10-9 ASSUMPTION OF INTERCREDITOR AGREEMENT DATED MAY 25, 2004 AMONG HIGH FALLS BREWING COMPANY, LLC, MANUFACTURERS & TRADERS TRUST COMPANY, CEPHAS CAPITAL PARTNERS, LP AND GBC LIQUIDATING CORP. 47 EXHIBIT 10-10 GENERAL RELEASE DATED MAY 21, 2004 FROM MANUFACTURERS AND TRADERS TRUST COMPANY TO GBC LIQUIDATING CORP. 50 EXHIBIT 10-11 GENERAL RELEASE DATED MAY 21, 2004 FROM CEPHAS CAPITAL PARTNERS, LP TO GBC LIQUIDATING CORP. 52 EXHIBIT 10-12 LETTER DATED MAY 11, 2004 FROM MANUFACTURERS AND TRADERS TRUST COMPANY TO HIGH FALLS BREWING COMPANY, LLC 54 EXHIBIT 10-13 CLOSING CERTIFICATE DATED MAY 24, 2004 FROM GBC LIQUIDATING CORP. 55
EX-10.1 2 l07937aexv10w1.txt EX-10.1 AGREEMENT BETWEEN GBC AND ST PAUL ASSOC Page 6 of 55 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 445 St. Paul Street, Rochester, New York 14605 ("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., 16 West Main Street, Rochester, New York 14614 ("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. Paul 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. Paul 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 Page 7 of 55 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 Cephas Capital Partners, LP ("CEPHAS"), respectively, as long as it holds Senior Debt. Among others, M&T Bank and/or Cephas 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 Cephas, as well as of HFBC and GBC, and that such provision cannot be amended without the consent of each of M&T Bank and Cephas, 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 Cephas 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, Cephas 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 Cephas, which is a condition to the Cephas' 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 Cephas 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 Page 8 of 55 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 Cephas, 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 445 St. Paul Street Rochester, New York 14604 Attention: Chief Operating Officer with a copy to: Gregory C. Yungbluth, Esq. Damon & Morey, LLP 298 Main Street, Buffalo, NY 14202 Notice to GBC shall be sent to: GBC Liquidating Corp. c/o Ashley Management Corp. 16 West Main Street Rochester, New York 14614 with a copy to: Woods Oviatt Gilman LLP 700 Crossroads Building 2 State Street Rochester, New York 14614 Attention: Gordon Forth, Esq. Page 9 of 55 (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/ John B. Henderson ----------------------------------- Name: John B. Henderson Title: President & COO Page 10 of 55 GBC LIQUIDATING CORP. By: /s/ Steven M. Morse ----------------------------------- Name: Steven M. Morse Title: Vice President & CFO EX-10.2 3 l07937aexv10w2.txt EX-10.2 BILL OF SALE Page 11 of 55 EXHIBIT 10-2 BILL OF SALE THIS BILL OF SALE made as of the 25th day of May, 2004, by and between GBC Liquidating Corp., a New York corporation (the "Seller"), and St. Paul Associates, LLC, a New York limited liability company (the "Buyer"). WITNESSETH: That Seller, pursuant to the Note Purchase Agreement, dated as of May 25, 2004, between Seller and Buyer (the "Agreement"), for and in consideration of the purchase price and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, does hereby (a) grant, bargain, sell, assign, convey, transfer and deliver, without recourse, unto Buyer, its successors and assigns, all right, title and interest of Seller in, to, under and by virtue of the properties and assets, all as the same exist on the date hereof (the "Assets"), described on Schedule A attached; and (b) authorize Buyer to file amendments to all financing statements filed in New York State showing High Falls Brewing Company, LLC as debtor and Seller as secured party of record, which amendments shall assign to Buyer all of Seller's rights under such financing statements: TO HAVE AND TO HOLD the Assets hereby sold and transferred to the Buyer and its successors and assigns FOREVER. [Signature Page Follows] Page 12 of 55 IN WITNESS WHEREOF, the parties hereto have caused this Bill of Sale to be duly executed and attested, all as of the day and year first above written. Attest: SELLER: GBC Liquidating Corp. __________________________ By: /s/ Steven M. Morse Name: Steven M. Morse Title: Vice President & CFO Attest: BUYER: St. Paul Associates, LLC __________________________ By: /s/ Samuel T. Hubbard, Jr. Name: Samuel T. Hubbard, Jr. Title: President State of ) County of ) ss: On the _____ day of ___________________ in the year 20___, before me, the undersigned, a Notary Public in and for said State, personally appeared __________________________________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. ________________________________ Notary Public State of ) County of ) ss: On the _____ day of ___________________ in the year 20___, before me, the undersigned, a Notary Public in and for said State, personally appeared __________________________________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the Page 13 of 55 within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. ________________________________ Notary Public Page 14 of 55 SCHEDULE A 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. 5. Amended and Restated Subordinated Promissory Note of even date with this Bill of Sale in the principal amount of $4,000,000, executed by High Falls Brewing Company, LLC, as Maker, and payable to GBC Liquidating Corp., as Payee. EX-10.3 4 l07937aexv10w3.txt EX-10.3 GENERAL RELEASE Page 15 of 55 EXHIBIT 10-3 GENERAL RELEASE TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT GBC Liquidating Corp., a corporation organized under the laws of the State of New York, as RELEASOR, in consideration of the sum of ONE DOLLAR ($1.00) and other good and valuable consideration received from High Falls Brewing Company, LLC, as RELEASEE, receipt whereof is hereby acknowledged, releases and discharges the RELEASEE and RELEASEE'S heirs, executors, administrators, successors and assigns from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or equity (collectively, the "LIABILITIES") which against the RELEASEE, the RELEASOR or RELEASOR'S successors and assigns ever had, now have or hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this RELEASE, including, without limiting the generality of the foregoing, 1. All liabilities of Releasee to Releasor under or pursuant to the Asset Purchase Agreement between Releasee and Releasor dated as of August 29, 2000, as the same has been amended from time to time (the "ASSET PURCHASE AGREEMENT"); except for Releasee's obligations set forth in Sections 10.1, 10.2 and 10.5 of the Asset Purchase Agreement; and 2. The Subordinated Promissory Note dated December 15, 2000 in the original principal amount of $4,500,000 executed by Releasee, as Maker, in favor of Releasor, as Payee (the "ORIGINAL NOTE") provided, that Releasee shall not be released from the Liabilities under the Original Note to the extent of the Liabilities set forth in an Amended and Restated Subordinated Promissory Note of even date herewith in the principal amount of $4,000,000, executed by Releasee, as Maker, in favor of Releasor, as Payee (the "NEW NOTE") which amends, restates and replaces the Original Note and has been transferred on the date hereof to St. Paul Associates, LLC. The parties hereto acknowledge and agree that this Release does not in any way release or alter the Releasee's obligations to the Releasor under an Agreement of even date herewith between Releasor and Releasee which provides for, among other things, the reimbursement of past interest payments under the Original Note and the payment of the "Amended Accrued Interest Page 16 of 55 Amount" referred to therein, and all obligations in such Agreement shall continue in full force and effect and not be considered or included in the releases "Liabilities." 3. The mutual obligations between Releasee and Releasor set forth in the Intercreditor Agreement dated as of December 15, 2000 among Releasee, Releasor, Manufacturers & Traders Trust Company and Cephas Capital Partners, L.P, provided, however, that the Release with respect to these obligations shall be conditioned upon the effectiveness of both (i) the General Release of even date herewith made by Releasor and Manufacturers and Traders Trust Company and (ii)the General Release of even date herewith between Releasor and Cephas Capital Partners, L.P. This RELEASE may not be changed orally. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Page 17 of 55 IN WITNESS WHEREOF, RELEASOR has caused this RELEASE to be executed on the 25th day of May 2004. RELEASOR: GBC Liquidating Corp. By: /s/ Steven M. Morse Name: Steven M. Morse Title: Vice President & CFO RELEASEE: High Falls Brewing Company, LLC By: /s/ John B. Henderson Name: John B. Henderson Title: President & COO STATE OF _________ ) COUNTY OF __________ ) ss: On the _____ day of __________________ in the year 2004, before me, the undersigned, a Notary Public in and for said State, personally appeared _____________________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. ________________________________ Notary Public Page 18 of 55 STATE OF _________ ) COUNTY OF __________ ) ss: On the _____ day of __________________ in the year 2004, before me, the undersigned, a Notary Public in and for said State, personally appeared _____________________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. ________________________________ Notary Public EX-10.4 5 l07937aexv10w4.txt EX-10.4 LETTER AGREEMENT Page 19 of 55 EXHIBIT 10-4 May 25, 2004 High Falls Brewing Company, LLC 445 St. Paul Street Rochester, New York 14605 Gentlemen: Reference is made to the following documents: 1. Subordinated Promissory Note dated December 15, 2000 in the original principal amount of $4,500,000 executed by High Falls Brewing Company, LLC ("HFBC"), as maker, and payable to The Genesee Brewing Company, Inc. Such Note is hereinafter referred to as the "ORIGINAL NOTE". 2. Amended and Restated Promissory Note of even date herewith in the principal amount of $4,000,000 with HFBC as Maker and GBC Liquidating Corp. ("GBC"), formerly known as The Genesee Brewing Company, Inc., as Payee (the "NEW NOTE"). 3. Intercreditor Agreement dated as of December 15, 2000 among HFBC, Manufacturers and Traders Trust Company ("M&T BANK"), Cephas Capital Partners, L.P. and The Genesee Brewing Company, Inc. (the "INTERCREDITOR AGREEMENT"). As used herein, terms defined in the Intercreditor Agreement are used as so defined. St. Paul Associates, LLC ("ST. PAUL") is today executing certain documents pursuant to which St. Paul has agreed to purchase from GBC the New Note. (St. Paul's purchase of the New Note is hereinafter referred to as the "NOTE PURCHASE TRANSACTION".) In order to consummate the Note Purchase Transaction, St. Paul has requested HFBC to amend and restate the Original Note by executing and delivering the New Note and to otherwise cooperate by consenting to the transaction, taking certain additional actions, and executing certain documents. HFBC believes it to be in HFBC's best interest that the Note Purchase Transaction be completed and that HFBC comply with the requests made by St Paul. In response to St. Paul's request, HFBC affirms to St. Paul that (i) the Original Note and all documents securing the Original Note (the "SECURITY DOCUMENTS") are in full force and effect in accordance with their respective terms, (ii) on execution and delivery of the New Note, the Security Documents will secure the New Note to the same extent that they secure the Original Note and (iii) the obligations set forth in the New Note are due and owing in accordance with the terms of the New Note, without setoff, defense or counterclaim. Page 20 of 55 As consideration for HFBC's execution and delivery of the New Note, for the above affirmation and for the other cooperation referred to above, and in order to induce HFBC to do so, St. Paul agrees with HFBC that, after completion of the Note Purchase Transaction, 1. St. Paul will not give any notice pursuant to Section 11 (a) of the lntercreditor Agreement to the Senior Creditor and the Subordinated Creditor that an Event of Default has occurred with respect to the Seller Junior Indebtedness, (and affirms that no such notice is in effect on the date hereof) prior to the earlier of (a) commencement of a Subordinated Creditor Standstill Period pursuant to Section 11(c) of the lntercreditor Agreement, (b) notification by Subordinated Creditor to Senior Creditor and St Paul under Section 11 (b) of the lntercreditor Agreement that an Event of Default has occurred with respect to the Subordinated Indebtedness, coupled with the Subordinated Creditor taking collection action (such as commencing legal proceedings or exercising its rights against collateral) to enforce the Subordinated Indebtedness, (c) the termination of the lntercreditor Agreement, or (d) August 31, 2005. 2. If at any time, St. Paul determines to transfer the New Note for value, St. Paul agrees to negotiate in good faith with HFBC for the transfer for value of the New Note to HFBC, prior to transferring the New Note to any third party for value. Such negotiations shall continue until the earlier of the expiration of 90 days or the agreement by HFBC and St. Paul that such good faith negotiations are terminated. After the expiration of such 90-day period or such termination of negotiations, St. Paul shall be free for a period of 180 days to transfer the New Note for value to such transferee as St. Paul may determine, provided that the purchase price and other terms of such transfer are no less favorable to St. Paul than the purchase price and other terms last offered by HFBC in the course of the foregoing negotiations. Please signify HFBC's agreement that the foregoing correctly sets forth the above affirmations made by HFBC to St. Paul by executing a copy of this letter in the blank provided at the close hereof and delivering it to St. Paul. ST. PAUL ASSOCIATES, LLC By: /s/ Samuel T. Hubbard, Jr. -------------------------- Name: Samuel T. Hubbard, Jr. Title: President Page 21 of 55 The foregoing is hereby agreed as of the date of the above letter. High Falls Brewing Company, LLC By: /s/ John B. Henderson -------------------------- Name: John B. Henderson Title: President and COO EX-10.5 6 l07937aexv10w5.txt EX-10.5 GENERAL RELEASE Page 22 of 55 EXHIBIT 10-5 GENERAL RELEASE TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT High Falls Brewing Company, LLC, a limited liability company organized under the laws of the State of New York, as RELEASOR, in consideration of the sum of ONE DOLLAR ($1.00) and other good and valuable consideration received from GBC Liquidating Corp., as RELEASEE, receipt whereof is hereby acknowledged, releases and discharges the RELEASEE and RELEASEE'S heirs, executors, administrators, successors and assigns from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or equity (collectively "LIABILITIES") which against the RELEASEE, the RELEASOR or RELEASOR'S successors and assigns ever had, now have or hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this RELEASE, including, without limiting the generality of the foregoing, 1. All liabilities of Releasee to Releasor under or pursuant to the Asset Purchase Agreement between Releasee and Releasor dated as of August 29, 2000, as the same has been amended from time to time (the "ASSET PURCHASE AGREEMENT"); except for releasee's obligations set forth in Sections 10.1, 10.2 and 10.5 of the Asset Purchase Agreement. 2. The mutual obligations between Releasor and Releasee set forth in the Intercreditor Agreement dated as of December 15, 2000 among Releasor, Releasee, Manufacturers & Traders Trust Company and Cephas Capital Partners, L.P. provided, however, that the Release with respect to these obligations shall be conditioned upon the effectiveness of both (i) the General Release of even date herewith made by Releasee and Manufacturers and Traders Trust Company and (ii) the General Release of even date herewith between Releasee and Cephas Capital Partners, L.P. Provided, however, that the term Liabilities shall not include the agreement between Releasee and Releasor of even date regarding, among other things, the "Amended Accrued Interest Amount" referred to therein. This RELEASE may not be changed orally. IN WITNESS WHEREOF, RELEASOR has caused this RELEASE to be executed on the 25th day of May, 2004. Page 23 of 55 RELEASOR: High Falls Brewing Company, LLC By: /s/ John B. Henderson Name: John B. Henderson Title: President & COO RELEASEE: GBC Liquidating Corp. By: /s/ Steven M. Morse Name: Steven M. Morse Title: Vice President & CFO STATE OF _________ ) COUNTY OF __________ ) ss: On the _____ day of __________________ in the year 2004, before me, the undersigned, a Notary Public in and for said State, personally appeared _____________________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. ________________________________ Notary Public Page 24 of 55 STATE OF _________ ) COUNTY OF __________ ) ss: On the _____ day of __________________ in the year 2004, before me, the undersigned, a Notary Public in and for said State, personally appeared _____________________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. ________________________________ Notary Public EX-10.6 7 l07937aexv10w6.txt EX-10.6 NOTE PURCHASE AGREEMENT Page 25 of 55 EXHIBIT 10-6 NOTE PURCHASE AGREEMENT -between- GBC Liquidating Corp. as Seller - and - St. Paul Associates, LLC as Buyer Page 26 of 55 NOTE PURCHASE AGREEMENT THIS AGREEMENT is made between GBC Liquidating Corp., a New York corporation, with an address at c/o Ashley Management Corp., 16 West Main Street, Rochester, New York 14614 ("SELLER") and St. Paul Associates, LLC, a New York limited liability company, with an address at 445 St. Paul Street, Rochester, New York 14605 ("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"). Page 27 of 55 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, Page 28 of 55 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 Page 29 of 55 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 Harter, Secrest & Emery 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. Page 30 of 55 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 Cephas Capital Partners, L.P. ("Cephas"), as required (i) pursuant to Section 16 of the Intercreditor Agreement dated as of December 15, 2000 among HFBC, M&T, Cephas 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 Harter, Secrest & Emery LLP, attorneys for Buyer, including but not limited to the following: A. A duly executed Bill 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 Cephas, 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 Page 31 of 55 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 Page 32 of 55 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. Page 33 of 55 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. 16 West Main Street Rochester, New York 14614 with a copy to: Woods Oviatt Gilman LLP 700 Crossroads Building 2 State Street Rochester, New York 14614 Attn: Gordon Forth, Esq. Notice to Buyer shall be sent to: St. Paul Associates, LLC 445 St. Paul Street Rochester, New York 14605 Attn: Manager Page 34 of 55 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] Page 35 of 55 IN WITNESS WHEREOF, the Parties hereunto have duly executed this Agreement on May 25, 2004 SELLER: GBC LIQUIDATING CORP. By: /s/ Steven M. Morse Name: Steven M. Morse Title: Vice President & CFO BUYER: ST. PAUL ASSOCIATES, LLC By: /s/ Samuel T. Hubbard, Jr. Name: Samuel T. Hubbard, Jr. Title: President Page 36 of 55 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. EX-10.7 8 l07937aexv10w7.txt EX-10.7 AMENDED AND RESTATED SUBORDINATED PROMISSY Page 37 of 55 EXHIBIT 10-7 THIS AMENDED AND RESTATED NOTE IS SUBJECT TO A CERTAIN INTERCREDITOR AGREEMENT DATED DECEMBER 15, 2000 AMONG HIGH FALLS BREWING COMPANY, LLC AND MANUFACTURERS AND TRADERS TRUST COMPANY, CEPHAS CAPITAL PARTNERS, LP. AND THE GENESEE BREWING COMPANY, INC. AMENDED AND RESTATED SUBORDINATED PROMISSORY NOTE $4,000,000.00 May 25,2004 FOR VALUE RECEIVED, HIGH FALLS BREWING COMPANY, LLC, a New York limited liability company with an address at 445 St. Paul Street, Rochester, New York 14605 ("MAKER"), promises to pay to GBC LIQUIDATING CORP., a New York Corporation ("PAYEE"), at its office at c/o Ashley Management Corp., 16 West Main Street, Rochester, New York 14614, 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 AND 00/100 DOLLARS ($4,000,000.00), together with interest thereon at the rate, in the installments and at the times hereinafter provided. This Note amends, restates and replaces the Subordinated Promissory Note dated as of December 15, 2000 in the original principal amount of $4,500,000 executed by Maker and payable to the order of GBC Liquidating Corp., formerly known as The Genesee Brewing Company, Inc. (the "ORIGINAL NOTE"). The principal balance of the Original Note on the date hereof is $4,000,000 and accrued interest on the date hereof is $308,824; the accrued interest amount is hereby reduced to $100,000 (the "AMENDED ACCRUED INTEREST AMOUNT") and shall be payable only as provided in Section 1.3(b) below. 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 January 31, 2009 (the "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, but only during such periods in which Payee is actively pursuing its rights and remedies under Section 6 below to enforce its right to payment upon "Acceleration". Page 38 of 55 1.3 Payments of Principal and Interest. (a) Except as provided in subparagraph (b) below, Maker shall pay accrued interest on a quarterly basis on each March 15, June 15, September 15 and December 15, commencing June 15, 2004, and shall make thirty six (36) equal monthly payments of principal of $111,111.11 each, commencing February 1, 2006 and shall pay the entire remaining principal balance, plus all accrued and unpaid interest thereon, on the Maturity Date. (b) The Amended Accrued Interest Amount shall not be an obligation payable under this Note but shall be an independent unsecured obligation of Maker to Payee payable only pursuant to a separate written agreement of even date between Maker and Payee. 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. (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 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. [RESERVED] 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 as of December 15, 2000 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"). 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. Page 39 of 55 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 Cephas Capital Partners, L.P. ("Cephas") (the "Intercreditor Agreement") and such other creditors of Maker as the three named creditors may determine to make a party to such Intercreditor Agreement. This Note constitutes "Seller Junior Indebtedness" as defined in the 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 Bank, Cephas, 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 (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise); and (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 Bank shall not become an Event of Default unless and until M&T Bank 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. 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. Page 40 of 55 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 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 Samuel T. Hubbard, Jr. and John B. Henderson. 5.8 [Reserved] 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, Page 41 of 55 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 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, 2003, 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 Insero, Kasperski, Ciaccia & Co. PC or other independent accountants acceptable to the Payee; Page 42 of 55 (b) [Reserved] (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 Year, 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. 13. NOTICES. All notices and other communications 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 delivered personally or by facsimile or four days after being mailed by registered mail, return receipt requested, or by documented overnight delivery, to a party at the following address (or to such other address as such party may have specified by notice given to the other party pursuant to this provision): If to Payee, to: GBC Liquidating Corp. c/o Ashley Management Corp. 16 West Main Street Rochester, New York 14614 Page 43 of 55 With a copy to: Woods Oviatt Gilman LLP 700 Crossroads Building 2 State Street Rochester, New York 14614 Attention: If to the Maker, to: High Falls Brewing Company, LLC 445 St. Paul Street Rochester, New York 14605 Attention: President With a copy to: Gregory C. Yungbluth Damon & Morey LLP 298 Main Street Buffalo, New York 14202 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/ John B. Henderson Name: John B. Henderson Title: President and Chief Operating Officer Page 44 of 55 The amendments to the Original Note evidenced by the foregoing Amended and Restated Subordinated Promissory Note are accepted and agreed to as of the date of such Note. GBC LIQUIDATING CORP. By: /s/ Steven M. Morse Name: Steven M. Morse Title: Vice President & CFO EX-10.8 9 l07937aexv10w8.txt EX-10.8 BUYER'S CERTIFICATE Page 45 of 55 EXHIBIT 10-8 BUYER'S CERTIFICATE The undersigned, being the Sole Manager and President of St. Paul Associates, LLC. ("ST. PAUL"), a New York limited liability company, hereby certifies that: l. Attached hereto as Exhibit A is a true and correct copy of resolutions adopted by the members of St. Paul by unanimous written consent dated as of April 30, 2004 and that said resolutions have not been amended, changed or rescinded and are still in full force and effect. 2. All of the representations and warranties of Buyer contained in the Note Purchase Agreement between GBC Liquidating Corp. and St. Paul Associates, LLC of even date (the "AGREEMENT") are true and correct and all of the covenants and conditions contained in such Agreement to be performed or met by Buyer prior to Closing have been performed or met. IN WITNESS WHEREOF, the undersigned has executed this Certificate this 25th day of May, 2004. /s/ Samuel T. Hubbard, Jr. ------------------------------- Samuel T. Hubbard, Jr. Sole Manager and President Page 46 of 55 EXHIBIT A 1. Election of Manager. Samuel T. Hubbard, Jr. is hereby elected as the sole Manager and the President of the Company, to serve at the pleasure of the Members. In addition, Michael Riordan is hereby elected Secretary and Treasurer of the Company, to serve at the pleasure of the Members. 2. Purchase of GBC Liquidating Note. The Company is hereby authorized to purchase for $1,000,000 cash the Subordinated Promissory Note dated as of December 15, 2000 in the original principal amount of $4,500,000 executed by High Falls Brewing Company, LLC ("HFBC"), as Maker, and payable to the order of GBC Liquidating Corp. (formerly known as The Genesee Brewing Company, Inc.), provided, that such note is amended and restated to (i) reflect the items set forth in paragraphs (a) through (c) below, and (ii) to contain such other provisions as the officer executing same may deem necessary, appropriate or in the best interests of the Company: (a) the principal amortization provisions shall be restructured to provide that the entire $4,000,000 principal balance of the amended and restated note shall be paid in 36 equal monthly payments commencing February 1, 2006. (b) accrued but unpaid interest as of the date of the purchase shall be forgiven, except for the amount of $100,000, which shall no longer be payable under such Note but shall be payable by HFBC to GBC Liquidating Corp. pursuant to a separate agreement at such time as HFBC has the right to make principal and/or interest payments under the Investor Notes. (c) all references to the Asset Purchase Agreement between The Genesee Brewing Company, Inc. and HFBC dated August 29, 2000, as amended, and all setoff and other rights related to such Agreement, shall be deleted from the amended and restated note. 3. Conditional Forbearance. In connection with the note purchase described above, the Company shall be authorized to execute an agreement with HFBC pursuant to which the Company will agree that, after purchase of such note, the Company will not exercise default rights thereunder prior to August 31, 2005 unless prior to that date, (i) a Subordinated Creditor Standstill under the Intercreditor Agreement is commenced with respect to the Cephas debt, (ii) Cephas takes action to enforce its debt against HFBC or (iii) the Intercreditor Agreement is terminated. 4. The President and the Treasurer of the Company, and each of them, is hereby authorized to take such action and execute such documents as he may deem necessary, desirable or in the best interests of the Company in order to effectuate the note purchase transaction referred to above and his taking of any such action and his execution of any such documents shall be deemed conclusive evidence of his authority to do so. EX-10.9 10 l07937aexv10w9.txt EX-10.9 ASSUMPTION OF INTERCREDITOR AGREEMENT Page 47 of 55 EXHIBIT 10-9 May 25, 2004 ASSUMPTION OF INTERCREDITOR AGREEMENT High Falls Brewing Company LLC 445 St. Paul Street Rochester, New York 14605 Manufacturers & Traders Trust Company 255 East Avenue Rochester, New York 14604 Cephas Capital Partners, L.P. 57 Monroe Avenue Suite D Pittsford, New York 14534 GBC Liquidating Corp. (Formerly known as The Genesee Brewing Company, Inc.) c/o Ashley Management Corp. 16 West Main Street Rochester, New York 14614 Gentlemen: Reference is made to the following: 1. Intercreditor Agreement dated as of December 15, 2000 among the four of you (the "Intercreditor Agreement"). Unless otherwise set forth herein, terms defined in the Intercreditor Agreement are used herein as so defined. 2. Subordinated Promissory Note dated as of December 15, 2000 in the original principal amount of $4,500,000 executed by Borrower, as Maker, in favor of The Genesee Brewing Company, Inc. (now known as GBC Liquidating Corp.), as Payee (the "Original Note"). 3. Amended and Restated Subordinated Promissory Note of even date in the principal amount of $4,000,000 executed by Borrower, as Maker, in favor of GBC Liquidating Corp., as Payee (the "New Note"). 4. Revolving Credit and Term Loan Agreement dated as of December 15, 2000 between Senior Creditor and Borrower, as amended to date (the "Senior Credit Agreement"). The Original Note represented "Seller Junior Indebtedness" pursuant to the Intercreditor Agreement and, pursuant to the New Note, Seller and Borrower have modified the terms related to repayment of principal set forth in the Original Note. Section 16 of the Intercreditor Page 48 of 55 Agreement requires that Seller and Borrower obtain the prior written consent of the Senior Creditor and the Subordinated Creditor in order to modify the terms of the repayment of principal with respect to the Seller Junior Indebtedness. Seller and St. Paul Associates, LLC have today executed a Note Purchase Agreement that provides for the purchase by St. Paul Associates, LLC of the New Note on certain conditions, including the condition that each of the Senior Creditor and the Subordinated Creditor consent to the modifications of principal payments represented by the New Note. Each of the undersigned hereby requests that Senior Creditor and the Subordinated Creditor signify such consent by executing a copy of this letter in the blank provided after the close hereof. In addition, Section 6.15 of the Senior Credit Agreement requires the Senior Creditor's consent to any modifications of the Seller Junior Indebtedness and each of the undersigned further requests that Senior Creditor consent to the modifications represented by the New Note. In addition, pursuant to Paragraph 9 of the Intercreditor Agreement, the Seller has agreed not to sell or otherwise transfer the Seller Junior Indebtedness except subject to all of the. terms and conditions of the Intercreditor Agreement. In order to satisfy the conditions set forth in such Paragraph 9, by its execution of this letter, St. Paul Associates, LLC hereby (i) agrees that it will, as the holder of the New Note representing the Seller Junior Indebtedness, hold such Note and be subject to and assume all of the terms and conditions of the Intercreditor Agreement relating to the Seller Junior Indebtedness; and (ii) acknowledges to the Senior Creditor and to the Subordinated Creditor that Events of Default exist under the Senior Credit Agreements and Subordinated Credit Agreements, respectively, and that pursuant to paragraph 6 of the Intercreditor Agreement, no payments under the New Note shall be made unless such Events of Default are cured or waived. Upon execution of the Releases provided for in Section 6.03(G) and (H) of the above-described Note Purchase Agreement and subject to the conditions contained therein each of Senior Creditor and Subordinated Creditor will release Seller from any further obligations under the Intercreditor Agreement, and will, upon the satisfaction of any conditions set forth in such Releases, waive any claim against Borrower under the Intercreditor Agreement for interest payments heretofore made by Borrower to Seller under the Original Note. By execution of this Agreement, Borrower hereby agrees that Seller will be released from all of its obligations under the Intercreditor Agreement. High Falls Brewing Company, LLC By: /s/ John B. Henderson ---------------------------------- Name: John B. Henderson Title: President and COO St. Paul Associates, LLC By: /s/ Samuel T. Hubbard, Jr. ---------------------------------- Name: Samuel T. Hubbard, Jr. Title: President Page 49 of 55 The undersigned, Senior Creditor and Subordinated Creditor respectively, hereby consent, pursuant to Section 16 of the Intercreditor Agreement, to the modification of the terms of the repayment of principal with respect to the Seller Junior Indebtedness as reflected in the New Note and to the terms of this Assumption of Intercreditor Agreement including, but without limitation, the final paragraph thereof. This consent is subject to and conditioned upon the agreements in Section I of the letter dated May 21, 2004 from St. Paul Associates, LLC to High Falls Brewing Company, LLC, a copy of which is attached hereto. Senior Creditor further consents to the modifications of the Seller Junior Indebtedness represented by the New Note. Manufacturers & Traders Trust Company By: /s/ John C. Morsch ---------------------------------- Name: John C. Morsch Title: Vice President Cephas Capital Partners, L.P. By: Chephas LLC, Its General Partner By: /s/ Jeffery S. Holmes ---------------------------------- Name: Jeffery S. Holmes Title: Managing Member EX-10.10 11 l07937aexv10w10.txt EX-10.10 GENERAL RELEASE Page 50 of 55 EXHIBIT 10-10 GENERAL RELEASE MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation with an office at One M&T Plaza, Buffalo, New York 14202, as RELEASOR, in consideration of the sum of ONE DOLLAR ($1.00) and other good and valuable consideration received from GBC LIQUIDATING CORP., as successor to Genesee Corp., formerly known as The Genesee Brewing Company, Inc., a New York Corporation with an office at 16 West Main Street, Rochester, New York 14614, as RELEASEE, receipt whereof is hereby acknowledged, releases and discharges the RELEASEE, RELEASEE'S shareholders, directors, officers, employees, representatives, agents, successors and assigns from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or equity which against the RELEASEE, the RELEASOR, RELEASOR'S successors and assigns ever had, now have or hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this RELEASE relating to, arising from or involving the obligations of Releasee to Releasor set forth in the Intercreditor Agreement dated as of December 15, 2000 among Releasee, Releasor, High Falls Brewing Company, LLC and Cephas Capital Partners, L.P. This Release is expressly conditioned upon and shall not effective unless and until a General Release of even date herewith given by Cephas Capital Partners L.P. to Releasee is effective. This RELEASE may not be changed orally. IN WITNESS WHEREOF, RELEASOR has caused this RELEASE to be executed on the 21st day of May, 2004. RELEASOR: MANUFACTURERS AND TRADERS TRUST COMPANY By: /s/ John C. Morsch --------------------------------- Name: John C. Morsch Title: Vice President Page 51 of 55 STATE OF NEW YORK ) COUNTY OF MONROE ) ss: On the ___ day of May in the year 2004, before me, the undersigned, a Notary Public in and for said State, personally appeared _______________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name{s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/ber/their capacity((ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. ________________________________ Notary Public EX-10.11 12 l07937aexv10w11.txt EX-10.11 GENERAL RELEASE Page 52 of 55 EXHIBIT 10-11 GENERAL RELEASE CEPHAS CAPITAL PARTNERS, L.P., a New York limited partnership with an office at 57 Monroe Avenue, Pittsford, New York 14534, as RELEASOR, in consideration of the sum of ONE DOLLAR ($1.00) and other good and valuable consideration received from GBC LIQUIDATING CORP., as successor to Genesee Corp., formerly known as The Genesee Brewing Company, Inc., a New York Corporation with an office at 16 West Main Street, Rochester, New York 14614, as RELEASEE, receipt whereof is hereby acknowledged, releases and discharges the RELEASES, RELEASEE'S shareholders, directors, officers, employees, representatives, agents, successors and assigns from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or equity which against the RELEASES, the RELEASOR, RELEASOR'S successors and assigns ever had, now have or hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this RELEASE, including, without limiting the generality of the foregoing, the obligations of Releasee to Releasor set forth in the Intercreditor Agreement dated as of December 15, 2000 among Releasee, Releasor, High Falls Brewing Company, LLC and Manufacturers and Traders Trust Company. This Release is expressly conditioned upon and shall not become effective unless after the date hereof and on or before July 31, 2004 Releasor receives payment of at least $120,000 (the "DEFAULTED INTEREST PAYMENT") under the Subordinated Promissory Note dated December 15; 2000 made by High Falls Brewing Company, LLC. Releasor shall promptly and accurately respond to any inquiry made by Releasee as the whether the Defaulted Interest Payment has been received by Releasor and the time of receipt, and upon the written request of Releasee will confirm such response in writing (including, if applicable in such confirmation that the Defaulted Interest Payment was made on or prior to July 31, 2004, and if so made that this Release is in full force and effect). This RELEASE may not be changed orally. IN WITNESS WHEREOF, RELEASOR has caused this RELEASE to be executed on the 21st day of May, 2004. CEPHAS CAPITAL PARTNERS, L.P. By: Chephas LLC, Its General Partner By: /s/ Jeffery S. Holmes -------------------------------- Jeffery S. Holmes Managing Member Page 53 of 55 STATE OF NEW YORK ) COUNTY OF MONROE ) ss: On the ___ day of May in the year 2004, before me, the undersigned, a Notary Public in and for said State, personally appeared __________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument. ________________________________ Notary Public EX-10.12 13 l07937aexv10w12.txt EX-10.12 MANUFACTURERS AND TRADERS TRUST COMPANY Page 54 of 55 EXHIBIT 10-12 MANUFACTURERS AND TRADERS TRUST COMPANY 255 EAST AVENUE, P.0, BOX 22900 ROCHESTER, NY 14604 May 11, 2004 Samuel T. Hubbard President and CEO High Falls Brewing Company 445 St Paul St. Rochester, NY 14605 Dear Tom, The following are conditions which must be met prior to High Falls Brewing Company making the $120,000 payment to Cephas, in connection with the proposed Genesee Note buyout: 1. Minimum pretax profit for High Falls Brewing Company of $1.1 million for the months of April, May and June, 2004. 2. No overline situation on June 30, 2004. i.e. the company is within the borrowing base (excluding the personal guarantees). 3. Payment is not made until after the final UDV termination payment is received (on or about July 15th) and paid to M&T Bank. 4. Lease (printers) totaling $108,194 as of 4/2/04, will become due and paid off in full concurrently with the Cephas payment being made or, if GBC pays $120M 5. In the event that Cephas receives $120,000 payment from HFBC after satisfaction of the above conditions or from GBC, Cephas may keep the payment. Nothing in this letter shall modify the rights or remedies of this Bank except as specifically set forth above. If you have any questions, please feel free to contact me directly at 258-8424. Sincerely yours, MANUFACTURERS AND /TRADERS TRUST COMPANY /s/ Kevin Wilmot Kevin Wilmot Assistant Vice President ACKNOWLEDGED AND ACCEPTED: By: /s/ John B. Henderson Date: May 21, 2004 ------------------------------ John B. Henderson, President, High Falls Brewing Company By: /s/ Jeffery S. Holmes Date: ------------------------------ --------------------------- Cephas Capital Partners EX-10.13 14 l07937aexv10w13.txt EX-10.13 CLOSING CERTIFICATE Page 55 of 55 EXHIBIT 10-13 CLOSING CERTIFICATE Pursuant to Section 5.04H. of that certain Note Purchase Agreement, dated as of May 24, 2004 (the "PURCHASE AGREEMENT"), by and among GBC Liquidating Corp., a New York corporation (the "SELLER"), and St. Paul Associates, LLC, a New York limited liability company (the "BUYER"), the undersigned does hereby certify, for and on behalf of Seller and in its name, as follows: 1. Each of the representations and warranties of Seller contained in the Purchase Agreement are true and correct in all material respects as of the date hereof with the same effect as though such representations and warranties had been made on and as of the date hereof (other than any representation or warranty that is expressly made as of a specified date, which was true and correct in all material respects as of such specified date), except for such misrepresentations and inaccurate warranties as will not singly, or in the aggregate, be reasonably expected to have a material adverse effect on the Seller. 2. Seller has performed in all material respects all the obligations to be performed by it prior to the date hereof. IN WITNESS WHEREOF, Seller has caused this Certificate to be executed, for and on its behalf and in its name, by the undersigned on and as of this 24th day of May, 2004. GBC LIQUIDATING CORP. By: /s/ Steven M. Morse Name: Steven M. Morse Title: Vice President & CFO -----END PRIVACY-ENHANCED MESSAGE-----