EXHIBIT 99.2
PAYMENT OF THIS NOTE IS SUBORDINATED SUBJECT TO THE TERMS AND CONDITIONS OF THAT
CERTAIN SUBORDINATION AGREEMENT DATED OF EVEN DATE HEREWITH (AS THE SAME MAY BE
AMENDED FROM TIME TO TIME, THE "SUBORDINATION AGREEMENT") BY AND AMONG THE
PAYEE, MERRILL LYNCH CAPITAL, A DIVISION OF MERRILL LYNCH BUSINESS FINANCIAL
SERVICES, INC., AS AGENT ("SENIOR LENDER"), AND THE MAKERS.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
AMENDED AND SUBSTITUTED SENIOR SUBORDINATED NOTE
DUE DECEMBER 31, 2007
Makers: Atlantic Premium Brands, Ltd.;
Prefco Corp.;
Carlton Foods Corp.;
Richards Cajun Foods Corp.; and
Potter Sausage Co.
Payee: BOCP ABR Mezz, LLC, formerly known as
Sterling BOCP, LLC
Principal Amount: $709,048.89
Stated Interest Rate: 18% per annum
Default Interest Rate 20% per annum
Date of Note: November 20, 2002
Made At: Chicago, Illinois
Maturity Date: December 31, 2007
Payment Dates: Interest: Each March 31, June 30,
September 30 and December
31 of each calendar year
Principal: Maturity Date
This Amended and Substituted Senior Subordinated Note (this "Note") amends
and restates, in its entirety, without constituting a novation thereof, that
certain Senior Subordinated Note in the original principal amount of $650,000.00
made by Makers to Payee due March 31, 2005 ("Original Note").
FOR VALUE RECEIVED, the Makers hereby promise to pay to the order of the
Payee (or its successors and permitted assigns) the principal amount of SEVEN
HUNDRED NINE THOUSAND FORTY-EIGHT AND 89/100THS DOLLARS ($709,048.89), together
with Interest (as defined herein), upon the terms and subject to the conditions
set forth in this Note.
SECTION 1. DEFINITIONS AND MISCELLANEOUS PROVISIONS.
(a) The terms "Makers", "Payee", "Principal Amount", "Stated Interest
Rate", "Default Interest Rate", "Date of Note", "Made At", "Maturity Date",
"Payment Dates", "Senior Lender" and "Subordination Agreement" have the
definitions set forth above.
(b) "Accelerated" (and correlative terms such as "Acceleration",
"Accelerating" and "Accelerated") means with respect to this Note that the
entire unpaid Principal Amount, together with all accrued but unpaid Interest,
becomes immediately due and payable prior to the Maturity Date, without, except
as expressly provided for in this Note, notice of intent to accelerate, notice
of acceleration of maturity, presentment, demand, protest, notice of protest or
other notice of default or dishonor of any type whatsoever.
(c) "Applicable Law" means, with respect to any Person, any and all
federal, national, state, regional, local, municipal or foreign laws, statutes,
rules, regulations, guidelines, ordinances, licenses, permits, judicial or
administrative decisions of any country, or any political subdivision, agency,
commission, official or court thereof having jurisdiction over such Person or
its business.
(d) "Business Day" means any day other than a Saturday, Sunday or day upon
which banking institutions are authorized or required by law or executive order
to be closed in the City of Chicago, Illinois.
(e) "Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock
(including each class of common stock and preferred stock) or partnership or
membership interests of such Person.
(f) "Indebtedness" means with respect to any Person, as of any date of
determination, the sum (without duplication) at such date of (i) all liability
for borrowed money or for the deferred purchase price of property or services,
(ii) all liabilities evidenced by a note, bond, debenture, or similar
instrument, (iii) all obligations under any conditional sale, lease (intended
primarily as a financing device) or other title retention or security agreement
with respect to property acquired, (iv) all obligations in respect of letters of
credit acceptances, swaps of interest and currency exchange rates or similar
obligations issued or created for the account of the Person, (v) all direct or
indirect guaranty obligations, (vi) all liabilities or obligations secured by
any Lien on any property owned by the Person, whether or not the Person has
assumed or
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otherwise become liable for the payment thereof; and (vii) any amendment,
renewal, extension, revision, or refunding of such liability or obligation.
(g) "Insolvency Law" means Title 11 of the United States Code (or any
successor law) or any similar Applicable Law providing for bankruptcy,
insolvency, conservatorship, receivership or other similar debtor's relief.
(h) "Insolvency Order" means any order, judgment or decree entered in any
Insolvency Proceeding granting any Insolvency Relief.
(i) "Insolvency Proceeding" means a proceeding before a court of competent
jurisdiction or other duly authorized authority under any Insolvency Law seeking
Insolvency Relief.
(j) "Insolvency Relief" means discharge of indebtedness, liquidation,
reorganization, or arrangement, appointment of a receiver, trustee, conservator,
custodian or liquidator or the granting of any stay or restraining order against
creditors under any Insolvency Law or other similar debtor's relief under any
Insolvency Law.
(k) "Lien" means any mortgage, assessment, security interest, easement,
claims, trusts, charge, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or otherwise, including judgment and mechanics'
liens), or preference, priority or other security agreement or similar
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the uniform
commercial code or comparable law of any jurisdiction in respect of any of the
foregoing).
(l) "Litigation" means any litigation based upon or arising out of this
Note, or any related instrument or agreement, or any of the transactions
contemplated by this Note.
(m) "Pay Off Date" means the date upon which the Principal Amount and all
accrued but unpaid Interest shall be paid or discharged in full.
(n) "Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, governmental authority or any other form of entity.
(o) "Securities Exchange Act" means the Securities Exchange Act of 1934,
or any similar federal statute, and the rules and regulations of the Securities
and Exchange Commission thereunder, all as the same shall be in effect at the
time. Reference to a particular section of the Securities Exchange Act of 1934
shall include a reference to the comparable section, if any, of any such similar
federal statute.
(p) "Senior Indebtedness" means the obligations of Makers to Senior Lender
and the other lenders thereunder (the "Lenders") pursuant to that certain Credit
Agreement of even date
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herewith ("the Senior Loan Agreement") and other Indebtedness incurred pursuant
to the terms of any agreement (other than the Senior Loan Agreement) among any
Maker, Senior Lender and the other Lenders, together with all obligations and
Indebtedness of Makers to each other Person that provides a credit facility to
Makers in order to refinance or replace the Senior Loan Agreement (each such
other Person shall be deemed to be "Senior Lender" hereunder and each agreement
evidencing such obligations and Indebtedness shall be deemed to be a "Senior
Loan Agreement" hereunder).
SECTION 2. MATURITY AND PAY OFF.
The unpaid Principal Amount of this Note, together with all accrued but
unpaid Interest, shall be due and payable in full on the Maturity Date. Payment
of the Principal Amount and all accrued but unpaid Interest may be Accelerated
upon the occurrence of an Event of Default as provided for in this Note.
Upon request of the Makers, the Payee will furnish a letter setting forth
the amount of the payment of Principal Amount and Interest required to pay this
Note in full as of a specified Pay Off Date.
SECTION 3. INTEREST.
Interest shall accrue on the unpaid Principal Amount from the Date of Note
through and including the Pay Off Date at the applicable interest rate
("Interest").
At all times that the Default Interest Rate is not in effect, the
applicable interest rate on this Note shall be a fixed rate per annum equal to
the Stated Interest Rate. From the Date of Note to and including the Maturity
Date, interest at the Stated Interest Rate shall accrue and be paid as follows:
(i) interest shall accrue at the rate of 10% per annum ("Current Interest") and
all accrued Current Interest shall be paid quarterly in cash in arrears on each
Payment Date specified above; plus (ii) interest shall accrue at the rate of 8%
per annum ("Deferred Interest") and all accrued Deferred Interest shall be paid
in full in cash on the Maturity Date.
Upon the occurrence of an Event of Default, the Payee may elect, in the
sole exercise of its discretion, to impose the Default Interest Rate by giving
written notice of such election to Makers ("Default Rate Election"). In the
event of a Default Rate Election, the interest rate on this Note shall be a
fixed rate per annum equal to the Default Interest Rate. All accrued but unpaid
Interest at the Default Interest Rate shall accrue and be paid as follows: (A)
interest shall accrue at the rate of 10% per annum ("Current Default Interest")
and all accrued Current Default Interest shall be paid quarterly in cash in
arrears on each Payment Date specified above; plus (B) interest shall accrue at
the rate of 10% per annum ("Deferred Default Interest") and all accrued Deferred
Default Interest shall be paid in full in cash on the Maturity Date. In the case
of a Default Rate Election based upon a Payment Default (as defined in Section
7), the Default Interest Rate shall be given retroactive effect back to the date
of such Payment Default (or such later date specified in such notice); provided,
however, that if such notice is given more than 30 days after such Payment
Default, the Default Interest Rate shall take effect on the date of such notice.
Otherwise, the Default Interest Rate becomes effective as of the date of such
notice. In either case, the Default Interest Rate shall continue to be the
interest rate on this Note until the
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date on which such Event of Default has been remedied or waived and no other
Default or Event of Default is continuing unremedied or unwaived with respect to
which a Default Rate Election has been given, provided that this Note has not
been Accelerated.
Notwithstanding any provision of this Note to the contrary: (i) in no
event shall the interest rate on this Note be a rate per annum in excess of the
maximum interest rate permissible under Applicable Law, and (ii) to the extent
that Interest (or other amounts paid with respect to this Note that are deemed
to be interest under Applicable Law) result in interest payments in excess of
those permitted under Applicable Law, such excess payments shall be applied to
the payment of the unpaid Principal Amount or, if the Principal Amount has been
paid in full, shall be refunded to the Makers.
Interest shall be calculated based upon: (i) the actual number of days
elapsed over each calendar month, including any additional days elapsed because
the scheduled Payment Date fell on a non-Business Day; (ii) calendar months
consisting of 30 days each; (iii) calendar quarters consisting of three 30 day
calendar months, (iv) monthly compounding of any Deferred Interest or Deferred
Default Interest and (v) quarterly compounding of any Current Interest or
Current Default Interest accrued but unpaid as of each Payment Date or within
the grace period provided for in Section 5.
Unless otherwise indicated in writing by the Makers to the Payee, the
"accrual periods" for this Note, as that term is defined in Section 1272(a)(5)
of the Internal Revenue Code of 1986, as amended (the "Code") and the Treasury
Regulations promulgated thereunder, shall be the quarterly periods (or portions
thereof) ending on the Interest Payment Dates set forth in this Note.
This Note has been issued with original issue discount ("OID"). The holder
of this Note can obtain information regarding the issue price of this note, the
amount of OID, and the yield to maturity of this Note by contacting Thomas M.
Dalton at the address for the Makers set forth on the signature page hereto, or
at such other address provided for notices pursuant to Section 19. This
information is being furnished pursuant to Treasury Regulation Section
1.1275-3(b).
SECTION 4. PREPAYMENTS.
The Makers may prepay the Principal Amount in whole at any time or in part
from time to time. All prepayments of Principal Amount shall be accompanied by
the payment of (i) all Current Interest accrued but unpaid through the date of
prepayment with respect to the Principal Amount prepaid and (ii) with respect to
any prepayment of the entire outstanding Principal Amount only, all Deferred
Interest and Deferred Default Interest accrued but unpaid through the date of
prepayment.
SECTION 5. LATE PAYMENTS.
A payment of Principal Amount or Interest shall be deemed to be in default
if such payment is not made in the manner provided for in this Note prior to
2:00 p.m., Chicago, Illinois, time on the fifth day after such payment is due.
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SECTION 6. PAYMENTS.
Unless otherwise agreed by the Payee, all payments of Principal Amount and
Interest due and payable shall be made by wire transfer of immediately available
funds to the account of the Payee at or before 2:00 p.m., Chicago, Illinois,
time on each Payment Date. Any wire transfer received by the Payee after 2:00
p.m., Chicago, Illinois, time shall be deemed to have been received by the Payee
prior to such time on the next Business Day.
Unless otherwise specified in writing by the Payee to the Makers, all such
payments shall be wired as follows:
Bank One
Chicago, IL
ABA #071000013
Acct #1110021477730
Sterling Advisors, LP
In the event that any scheduled Payment Date falls on a non-Business Day,
such Payment Date shall be deemed to be the next Business Day following such
scheduled Payment Date, and such additional days shall be deemed to have elapsed
for purposes of computing accrued Interest payable on such Payment Date.
SECTION 7. EVENTS OF DEFAULT.
Each of the following events shall be an "Event of Default" for the
purposes of this Note. An Event of Default shall be deemed to continue until
waived by notice by the Payee to the Makers or remedied by action of the Makers.
(a) Payment Default. The Makers default in the payment when due of
Principal Amount or Interest, and such default is not remedied in the manner and
within the grace period provided for in Section 5 of this Note ("Payment
Default"). A Payment Default shall be deemed to have occurred notwithstanding
the fact that the default in payment resulted from compliance with or
enforcement of the Subordination Agreement subject to the terms thereof.
(b) Acceleration Default. The holder of the Senior Indebtedness
accelerates the payment of such Indebtedness for any reason.
(c) Subordination Default. Any document with respect to the Senior
Indebtedness is amended or modified in violation of the Subordination Agreement,
or any amounts previously paid with respect to this Note must be repaid or held
in trust by the Payee due to compliance with or enforcement of the Subordination
Agreement.
(d) Insolvency Default. Any Maker: (i) discontinues the conduct of its
business; (ii) applies for or consents to the imposition of any Insolvency
Relief; (iii) voluntarily commences or consents to the commencement of an
Insolvency Proceeding; (iv) files an answer admitting the material allegations
of any involuntary commencement of an Insolvency Proceeding; (v) makes a general
assignment for the benefit of its creditors; (vi) is unable or admits in writing
its inability to pay its debts as they become due; or (vii) any Insolvency Order
is entered against such Maker
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and such Insolvency Order is not dismissed within 60 days of its entry
("Insolvency Default").
(e) Fraudulent Conveyance Default. Any Maker: (i) conceals, removes or
permits to be concealed or removed all or any part of its property with the
intent to hinder, delay or defraud any of its creditors; or (ii) makes or
permits any conveyance of its material properties that would be deemed
fraudulent to creditors under any Insolvency Law or other Applicable Law.
(f) Dissolution. Any order, judgment or decree is entered against any
Maker decreeing the dissolution or split up of any Maker and such order remains
undischarged or unstayed for a period in excess of 60 days.
(g) Injunction. Any Maker is enjoined, restrained or in any way prevented
by the order of any court or any administrative or regulatory agency from
conducting all or any material part of its business for more than 60 days and
such limitation has a material adverse effect on the financial condition or
results of operations of the Makers on a consolidated basis.
(h) Invalidity of this Note. This Note for any reason, other than in
accordance with the terms hereof, ceases to be in full force and effect or is
declared to be null and void, or any Maker denies that it has any further
liability under this Note or gives notice to such effect.
SECTION 8. REMEDIES AND ACCELERATION.
(a) Remedies. Upon the occurrence of an Event of Default, the Payee shall
have (i) all rights and remedies granted to it under this Note and (ii) all
rights of a creditor under Applicable Law (including the uniform commercial
code). All such rights and remedies and the exercise thereof shall be
cumulative. No exercise of any such rights and remedies shall be deemed to be
exclusive or constitute an election of remedies.
(b) Acceleration of Payment. Upon the occurrence of an Insolvency Default,
payment of this Note shall be Accelerated automatically and without notice. Upon
the occurrence and during the continuation of any other Event of Default, the
Payee may, in the sole exercise of its discretion, elect to cause payment of
this Note to be Accelerated by giving notice of such election to the Makers.
Once payment of this Note has been Accelerated, such Acceleration may be revoked
only by the Payee, in the sole exercise of its discretion, by giving notice of
revocation to the Makers.
(c) Waiver of Default. No Default or Event of Default may be waived or
shall be deemed to have been waived except by an express notice by the Payee to
the Makers, and any such waiver shall be applicable only to the specific
Defaults or Events of Default expressly identified in such notice and shall not
be deemed to apply to any other or subsequent Default or Event of Default. The
Payee may grant or withhold any such waiver in the sole exercise of its
discretion, and may condition such waiver upon the payment by the Maker of a
premium or the acceptance of other terms and conditions under this Note. No
course of dealing by the Payee, or the failure, forbearance or delay by the
Payee in exercising any of its rights or remedies under this Note shall operate
as a waiver of any Default or Event of Default or of any right of the Payee
under this Note.
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SECTION 9. WAIVERS BY MAKER.
To the full extent permitted by Applicable Law, Makers waive with respect
to this Note: presentment; protest and demand; notice of protest, demand and
dishonor; and diligence in collection. Makers agree that the Payee may release
any guarantor or surety with respect to this Note or any other Maker from its
obligation with respect to this Note all without notice to Makers and without
affecting in any way the obligation of Makers under this Note.
SECTION 10. SECURITY FOR PAYMENT.
Payment of this Note is secured under the terms and subject to the
conditions of that certain Amended and Restated Security Agreement dated as of
the Date of Note among the Makers and Payee ("Amended Security Agreement").
Nothing in this Note shall be deemed to preclude the Payee from obtaining other
or additional security for the payment of this Note, to require the Payee to
elect remedies or proceed against any collateral or guarantee before
Accelerating payment of this Note or to take any legal or other action to
collect payment of this Note.
SECTION 11. ASSIGNMENT.
(a) The Makers shall not, and shall not attempt or purport, to assign or
transfer to any Person or permit any other Person to assume or undertake any of
its rights, duties or obligations under this Note without the prior written
consent of the Payee, which consent may be granted in its sole discretion.
(b) The Payee may, with the consent of the Makers, which consent shall not
be unreasonably withheld, assign or sell a participation in (all with or without
recourse) all of its rights, duties and obligations under this Note to any
Person.
Notwithstanding the foregoing, the Payee may not sell, transfer or assign this
Note (i) to more than three Persons unless the Payee agrees to act as, and is
appointed by these Persons as, their agent pursuant to documentation reasonably
satisfactory to Makers for purposes of giving and receiving notices, granting
consents and waivers and all other correspondence, covenants and matters between
the Makers and these Persons as holders of this Note; or (ii) to any person who
is engaged in, or who beneficially owns (as defined in Section 13d-3 of the
Securities Exchange Act) or has the right to acquire in the future 10% or more
of the outstanding shares of any class or series of Capital Stock of any Person
(other than any Maker) that is engaged in the food and beverage manufacturing,
processing or distribution business.
SECTION 12. SUBORDINATION AGREEMENT.
Payee has agreed, in connection with the issuance of this Note, to be
bound by the Subordination Agreement pursuant to which certain of the Payee's
rights under this Note are subordinated to the rights of Senior Lender. Nothing
in this Note or the Subordination Agreement shall grant to any Maker any rights
as a beneficiary under the Subordination Agreement nor any right to enforce
against the Payee any provision of the Subordination Agreement.
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SECTION 13. COLLECTION AND ASSESSMENT FOR COSTS.
The Makers shall reimburse the Payee for all reasonable costs and expenses
(including legal fees and disbursements) incurred by the Payee in connection
with the collection or attempted collection of the payment of this Note through
legal proceedings or otherwise after the occurrence of an Event of Default.
SECTION 14. AMENDMENT.
This Note may not be amended, restated, supplemented or otherwise modified
except by an express written agreement executed and delivered by the Makers and
the Payee. Compliance with the covenants and other provisions of this Note may
not be waived except by an express written waiver signed and delivered by the
Party against whom enforcement is sought.
SECTION 15. GOVERNING LAW.
This Note and the rights and obligations of the Payee and Makers under
this Note shall be governed by and construed under the laws of the State of
Illinois, without regard to conflicts of laws principles.
SECTION 16. WAIVER OF JURY TRIAL.
The Payee and the Maker, after consulting or having had the opportunity to
consult with legal counsel, knowingly, voluntarily and intentionally waive any
right any of them may have to a trial by jury in any Litigation. Neither the
Payee nor the Makers shall seek to consolidate, by counterclaim or otherwise,
any Litigation in which a jury trial has been waived with any other Litigation
in which a jury trial cannot be or has not been waived. These provisions shall
not be deemed to have been modified in any respect or relinquished by either the
Payee or the Makers except by written instrument executed by the Party against
whom enforcement is sought.
SECTION 17. NO NOVATION. This Note, among other things, is given in
substitution for, and not in repayment of, the Original Note and shall not
constitute a novation of the Indebtedness evidenced by the Original Note or any
of the obligations related thereto. Payee hereby represents and warrants to the
Makers that, except for the Indebtedness and other obligations of the Makers
under this Note, no other Indebtedness, interest, fees, costs, assessments,
liabilities, obligations or other amounts are owing to Payee by any Maker as of
the date hereof.
SECTION 18. GOVERNING INSTRUMENTS. Each Maker and Payee acknowledge that
as of the date hereof, and giving effect to the termination of the agreements
set forth in Section 1 of that certain Acknowledgement and Termination Agreement
dated as of the date hereof among the Makers, Banc One Capital Partners, LLC and
Payee, the only agreements and instruments relating to the senior subordinated
debt owed by Makers to Payee are (1) this Note, and (2) the Amended Security
Agreement and any uniform commercial code financing statements that may be filed
on the date hereof relating to the security interest provided for therein.
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SECTION 19. NOTICES.
Except as otherwise hereinabove provided, any notice that the Payee or the
Makers may desire or be required to give to the other shall be in writing and
shall be mailed or delivered to the intended recipient thereof at its address
set forth under its signature hereto or at such other address as such intended
recipient may, from time to time, by notice in writing, designate to the sender
pursuant hereto. All notices sent pursuant to the terms of this Note or
otherwise may be personally served, telecopied, sent by overnight courier
service or U.S. mail and shall be deemed to have been given: (a) if delivered in
person, when delivered; (b) if delivered by telecopy, on the date of
transmission if transmitted on a Business Day before 3:00 p.m. Chicago time; (c)
if delivered by overnight courier, one (1) Business Day after delivery to the
courier properly addressed; or (d) if delivered by U.S. mail, four (4) Business
Days after deposit with postage prepaid and properly addressed.
SECTION 20. CONSENT TO JURISDICTION, VENUE AND SERVICE OF PROCESS.
The Payee and the Makers, each after having consulted or having had the
opportunity to consult with legal counsel, hereby knowingly, voluntarily and
intentionally, and irrevocably: (i) consent to the jurisdiction of the courts of
Cook County, Illinois and the federal court sitting in the city of Chicago,
Illinois with respect to any Litigation; (ii) waive any objections to the venue
of any Litigation in either such court; (iii) agree not to commence any
Litigation except in one of such courts and agree not to contest the removal of
any Litigation commenced in any other court to one of such courts; (iv) agree
not to seek to remove, by consolidation or otherwise, any Litigation commenced
in any of such courts to any other court; and (v) waives personal service of
process in connection with any Litigation and consents to service of process by
registered or certified mail, postage prepaid and properly addressed as provided
herein. These provisions shall not be deemed to have been modified in any
respect or relinquished by either the Payee or the Makers except by written
instrument executed by all of them.
SECTION 21. CONSTRUCTION; INTERPRETATION.
The Payee and the Makers acknowledge that each of them has had the benefit
of legal counsel of its own choice and has been afforded an opportunity to
review the terms of this Note with its legal counsel, and that this Note shall
be construed as if jointly drafted by the Payee and the Makers. The headings of
sections and paragraphs in this Note are for convenience of reference only and
shall not be construed to limit or define the content, scope, or intent of the
provisions hereof. As used in this Note, the singular shall include the plural,
and masculine, feminine, and neuter pronouns shall be fully interchangeable,
where the context so requires. If any provision of this Note, or any paragraph,
sentence, clause, phrase, or word, or the application thereof, in any
circumstances, is adjudicated to be invalid, the validity of the remainder of
this Note shall be construed as if such invalid part were never included herein.
Time is of the essence of this Note.
SECTION 22. SUCCESSORS AND ASSIGNS.
The provisions of this Note shall be binding upon and inure to the benefit
of the Makers and the Payee, and (to the extent permitted by the terms hereof)
their respective successors and
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assigns.
SECTION 23. SUBSEQUENT OBLIGORS.
This Note and all provisions hereof shall be binding on all Persons
claiming under or through the Makers. The term "Maker" or "Makers", as used
herein, shall include the respective successors, assigns, legal and personal
representatives, executors, administrators, devisees, legatees, and heirs of the
Makers; provided, however, that the Makers shall not assign, pledge or otherwise
transfer all or any of this Note or its obligations hereunder to any other
Person without the prior written consent of the Payee.
SECTION 24. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Payee to exercise, nor any partial
exercise of, any power, right or privilege hereunder, shall impair such power,
right, or privilege or be construed to be a waiver of any Event of Default. All
rights and remedies existing hereunder are cumulative to and not exclusive of
any rights or remedies otherwise available.
SECTION 25. ENTIRE AGREEMENT.
Except as otherwise provided herein, this Note embodies the entire
agreement among the parties hereto and supersedes all prior commitments,
agreements, representations and understandings, whether oral or written,
relating to the subject matter hereof, and may not be contradicted or varied by
evidence of prior, contemporaneous, or subsequent oral agreements or discussions
of the parties hereto.
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IN WITNESS WHEREOF, this Note has been duly executed and delivered by and
on behalf of the Makers and the Payee, effective as of the Date of Note set
forth above.
MAKERS:
ATLANTIC PREMIUM BRANDS, LTD.;
PREFCO CORP.;
CARLTON FOODS CORP.;
RICHARDS CAJUN FOODS CORP.; AND
POTTER SAUSAGE CO.
By: /s/ Thomas M. Dalton
--------------------------------------
Name: Thomas M. Dalton
Title: Chief Financial Officer for each Maker
Address for Notices:
650 Dundee Road, Suite 370
Northbrook, IL 60062
PAYEE:
BOCP ABR MEZZ, LLC, FORMERLY KNOWN AS
STERLING BOCP, LLC
By: /s/ Merrick M. Elfman
----------------------------------------
Name: Merrick M. Elfman
Title: Manager
Address for Notices:
650 Dundee Road, Suite 370
Northbrook, IL 60062