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EXHIBIT 4.9
CJM/11-26-97/01-26-98 MELF #95-9-242
NOTE
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Dated: January 29, 1998
At: Philadelphia, Pennsylvania
$500,000
FOR VALUE RECEIVED, the undersigned RED BELL BREWING CO., a
corporation organized and existing under and by virtue of the laws of the
Commonwealth of Pennsylvania with an address at 3100 Jefferson Street,
Philadelphia 19121 (the "Maker"), does hereby irrevocably promise to pay,
without defalcation, to the order of the COMMONWEALTH OF PENNSYLVANIA acting
through the Department of Community and Economic Development (the "Department"),
at the latter's principal office in Harrisburg, Pennsylvania or at such other
places as the Department may designate, the principal sum of Five Hundred
Thousand Dollars ($500,000), or so much thereof as shall be disbursed to the
Maker hereunder (the "Loan"), together with interest as provided below, in
lawful money of the United States of America, payable as directed by the
Department in monthly installments, a portion of which will be interest at the
rate of three percent (3%) per annum on the outstanding principal balance
calculated on the basis of a 360 day year, and a portion of which will be a
payment of principal. The monthly payments will commence on March 1, 1998, and
the entire unpaid balance due will be paid on or before February 1, 2005.
Failure to draw down the full amount of the Loan or pre-payment of the Loan may
cause a change in the amortization of the Loan either by a reduction in the
amount of each monthly installment or by a reduction in the term over which the
Loan shall be repaid. Any amount remaining in the Escrow Account shall be repaid
to the Department. All payments made hereunder shall be paid into the Machinery
and Equipment Loan Fund.
Interest on the outstanding principal balance will accrue from and
including the date of this Note and such interest as accrues through January 31,
1998 shall be due and payable on the first day of March, 1998, in addition to
the first monthly installment of principal and interest. The monthly
installments shall be applied first to interest on the unpaid principal, and the
balance of said monthly installments shall be applied to principal. In addition,
in the event any monthly installment provided for herein shall not be paid when
due, the Maker agrees to pay a late charge of twelve and one-half percent
(12-1/2%) per annum of any such overdue monthly installment to compensate the
Department for damages suffered because of Maker's failure to make prompt
payments.
Failure to create the number of jobs specified in Maker's Loan
Application which is incorporated herein by reference thereto and made a part
hereof, shall give the Department the right to increase the interest rate on the
Loan to a fixed interest rate equal to two percentage points greater than the
prime interest rate as defined in the Machinery and Equipment Loan Fund ("MELF")
Statement of Policy of Section 5.10(a) (relating to "Penalty"), unless such an
increase is waived by the Department because the failure to meet the job
projects is deemed to be the result of circumstances beyond the control of the
Maker.
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This Note is executed and delivered pursuant to the Loan Agreement
between the Maker and the Department, dated of even date herewith, (the "Loan
Agreement"), and is subject to all the terms and conditions thereof, including
provisions for prepayment and the acceleration of the maturity hereof under
certain circumstances.
THE MAKER HEREBY COVENANTS AND AGREES AS FOLLOWS:
1. All the terms, covenants, conditions and provisions of the Loan
Agreement are incorporated herein by reference and are made a part hereof, and
any breach or violation thereof shall constitute a breach or violation of this
Note.
2. If the Maker shall fail to pay any sum required to be paid by the
Maker under this Note or the Loan Agreement within thirty (30) days after the
same becomes due and payable, or if the Maker shall fail to perform any other
provision hereof to be performed by the Maker or if there is an event of
default under the Loan Agreement, then in any such event, at the option of the
Department, the whole unpaid balance of the principal indebtedness, together
with all interest thereon and all other sums due hereunder or secured by the
Mortgage or required to be paid to the Department thereunder, shall become due
and payable immediately without notice to the Maker.
3. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY FOR AN
ATTORNEY TO CONFESS JUDGMENT AGAINST THE MAKER. IN GRANTING THIS WARRANT OF
ATTORNEY TO CONFESS JUDGMENT AGAINST THE MAKER, THE MAKER HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF THE SEPARATE COUNSEL OF THE
MAKER, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE MAKER HAS OR MAY HAVE TO
PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS
AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA.
If the Maker is in default under the terms of this Note at the
expiration of thirty (30) days after written notice thereof to the Maker (of
which an affidavit on behalf of the Department shall be sufficient evidence),
then the Maker hereby irrevocably authorizes and empowers any attorney of any
court of record in the Commonwealth of Pennsylvania, or elsewhere, to appear for
and to enter and confess judgment against the Maker, at any time or times and as
of any term, for the principal sum above mentioned, with or without declaration,
with interest and costs of suit, without stay of execution, and with reasonable
attorney's fees. The Maker agrees that any of its property may be levied upon to
collect said judgment and may be sold upon a writ of execution, and hereby
waives and releases all laws, now or hereafter in force, relating to exemption,
appraisement or stay of execution. The authority hereby granted to confess
judgment shall not be exhausted by any exercise thereof, but shall continue from
time to time and at all times until the Maker has paid all sums required to be
paid by the Maker under this Note, the Loan Agreement and the Mortgage and has
performed all of the other provisions hereof or thereof to be performed by the
Maker.
4. Prepayments of the principal indebtedness may be made at any time,
without premium.
5. All of the covenants herein contained shall accrue to the benefit of
the successors and assigns, voluntary or involuntary, of the Department.
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6. Demand, grace, presentment for payment, protest, notice of dishonor
or nonpayment and notice of the exercise of any option hereunder are hereby
waived by the Maker and all guarantors and endorsers hereof.
7. The remedies provided in this Note and the Loan Agreement or
otherwise available to the Department for the enforcement of the payment of the
principal sum together with interest and performance of the covenants,
conditions, and agreements, matters and things herein and therein contained are
cumulative and concurrent and may be pursued singly or successively or
together at the sole discretion of the Department, and may be exercised from
time to time as often as occasion therefor shall occur until the Department has
been paid all sums due in full.
8. The terms and provisions of this Note are severable. In the event of
the unenforceability or invalidity of any one or more of the terms, covenants,
conditions or provisions of this Note under federal, state or other applicable
law, such unenforceability or invalidity shall not render any other term,
covenant, condition or provision hereunder unenforceable or invalid. In the
event any waiver by the Maker hereunder is prohibited by law, including but not
limited to the waiver of exemption from execution, such waiver shall be and be
deemed to be deleted herefrom.
IN WITNESS WHEREOF, intending to be legally bound hereby, the Maker has
caused this Note to be duly executed, the day and year first above written.
ATTEST: RED BELL BREWING CO.
/s/ James R. Bell By /s/ James R. Bell
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Secretary President
(CORPORATE SEAL)
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