Exhibit 10.24
GUARANTY AGREEMENT
IN CONSIDERATION of the sum of $1.00, and other good and valuable
consideration, the receipt of which is hereby acknowledged, and to induce
NEXCOMM INTERNATIONAL BEVERAGE, LLC, a Connecticut limited liability company,
having a place of business at 00 Xxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000
(hereinafter called "Holder") to enter into a certain Secured Convertible Note
and Agreement (the "Note"), providing for the loan and advance to Maxmillian
Partners LLC, (the "Borrower"), of financing payable six (6) months thereafter
in the maximum amount of $200,000.00, the undersigned DRINKS AMERICAS, INC., a
Delaware, a Delaware Corporation, having a principal place of business at 000
Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred to as
"Guarantor"), hereby absolutely and unconditionally guarantees to Holder and to
its successors and assigns, the prompt payment and performance by Borrower of
the Note and the related security agreement delivered to Holder, and the payment
and performance by MAXMILLIANS MIXERS LLC, a Delaware limited liability company,
of its similar guaranty and security agreement issued in connection with the
Note (collectively, the "Obligations"), and does hereby agree that if the
Obligations is not paid in accordance with the terms thereof, the Guarantor will
immediately pay to Holder the same, together with all costs and expenses,
including attorney's fees, incurred by Holder and arising in any manner out of
or in any way connected with the enforcement of this Guaranty. This Guaranty is
secured by Guarantor pursuant to the terms of a Security Agreement delivered by
Guarantor, and by a similar guaranty and security agreement delivered by
Maxmillians Mixers LLC and the security agreement of Borrower, all of even date.
1. Payment and Performance. Guarantor does hereby fully guarantee to Holder
that Borrower and/or Maxmillians Mixers LLC shall make due and punctual
payment of their respective Obligations, when due and payable, together
with all other sums and charges which may at any time be due and
payable under the Note or respective Guaranty Documents, and any and
all indebtedness, advances, debts, obligations, and liabilities of
Borrower or Drinks America, Inc., heretofore, now, or hereafter made,
incurred, or created and resulting from the provisions therein, whether
voluntary or involuntary and however arising, absolute or contingent,
liquidated or unliquidated, determined or undetermined, whether or not
such indebtedness is from time to time reduced or extinguished and
thereafter increased or incurred or whether Borrower may be liable
individually or jointly with others.
If Borrower or Maxmillians Mixers LLC shall at any time fail to make
any such payments, then without requiring any notice from Holder and
without requiring Holder to take any action against Borrower therefor,
Guarantor shall make such payment or payments to Holder, this Guaranty
being a guaranty of payment, and not of collection, and Guarantor
shall, at Guarantor's sole cost and expense, promptly, diligently and
continuously perform all such obligations, covenants and conditions.
2. Indemnification. Guarantor shall, without requiring any notice from Holder
and without requiring Holder to take any proceedings against Borrower
or Drinks America, Inc, at Guarantor's sole cost and expense for all
direct and indirect costs, fully indemnify, save and hold harmless
Holder from all cost and damage which Holder may suffer by reason of
any failure by Borrower or Maxmillians Mixers LLC to fully reimburse
and repay to Holder any and all costs and expenses which Holder may
incur arising from any such failure of payment, and from any and all
loss, liability, expense, including legal fees and cost of litigation,
and damage, suffered or incurred by Holder in enforcing and procuring
the performance of this Guaranty and the Obligations guaranteed hereby.
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3. Interest. All amounts due hereunder from Guarantor to Holder shall bear
interest from the date such amount first becomes due until paid at the
at the lower of (a) the highest rate allowed by applicable law, or (b)
one and one-half (1.5%) percent per month.
4. No Impairment of Guaranty. Holder, without notice to or the consent of
Guarantor, at any time and from time to time, may:
a. agree to any amendment or modification of the Note, including any
change in the amount of the Note or any terms thereof, or the time
or manner of payment;
x. xxxxx or fail to exercise any rights of Holder hereunder or under
the Note or the Security Instruments";
c. surrender to any other guarantor, or deal with or modify the
form of, any provision of the Security Instruments, or at any
time hold property from any other party to secure the
performance of any obligation guaranteed under this Guaranty; and
5. Waiver of Proceedings. Guarantor hereby waives all legal requirements
that Holder institute any actions or proceedings at law or in equity
against Borrower or Maxmillians Mixers LLC and any other party with
respect to any security held by Holder pursuant to the Security
Agreement generally, as a condition precedent to bringing an action
against Guarantor upon this Guaranty, and Guarantor waives any right to
compel Holder to resort first to any security which Holder may hold for
performance of any of the Obligations guaranteed under this Guaranty.
All rights and remedies afforded to Holder by reason of this Guaranty
are separate and cumulative rights and remedies, and none of such
rights or remedies, whether exercised by Holder or not, shall be deemed
to be in exclusion of any of the other rights or remedies available to
Holder. Guarantor hereby waives all suretyship defenses and does hereby
acknowledge that Guarantor is not acting as an accommodation party
under this Guaranty.
6. Release of Guarantor. Until all of the Obligations guaranteed under
this Guaranty are performed, and until all of the terms, covenants and
conditions of this Guaranty are fully performed, Guarantor shall not be
released by any act or thing which might, but for this provision of
this Guaranty, be deemed a legal or equitable discharge of a guarantor
or surety.
7. Waiver of Notice. Guarantor hereby waives notice of acceptance hereof,
notices of default and all other notices now or hereafter provided for
by law, including any right to notice or hearing, and authorizes the
attorney of holder to issue a writ for a prejudgment remedy without
court order or prior hearing.
8. No Subrogation. If Guarantor shall make any payments or perform any
acts under this Guaranty, Guarantor shall not thereby be subrogated to
any rights or remedies of Holder against Borrower or drinks Americas,
Inc., or thereby acquire any interest in Holder's rights and liens
under the Note, or any guaranty or security agreement relating thereto
unless and until all principal indebtedness, interest and other sums to
be paid to Holder pursuant to such instruments have been fully paid.
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9. Set-off. Guarantor hereby gives Holder a lien and right of setoff for
all of Guarantor's liabilities hereunder upon and against all deposits,
credits and property of Guarantor and any other collateral of Guarantor
now or hereafter in the possession or control of Holder or in transit
to it. Holder may at any time apply the same, or any part thereof, to
any liability of Guarantor even though unmatured, in the event
Guarantor is in default hereunder or of any of the other Obligations,
or at any time Holder, acting in a commercially reasonable manner,
determines that such action is necessary to preserve its rights
hereunder with respect to such deposits, credits, property or other
collateral.
10. Unconditional Guarantee. All of the obligations of Guarantor hereunder
are unconditional and irrevocable and cannot be changed or terminated
orally. Guarantor agrees that Guarantor's obligations hereunder shall
not be impaired, modified or released in any manner whatsoever by any
impairment, modification or release of the liability of Borrower or
Maxmillians Mixers LLC or either of such parties' estate in bankruptcy
or reorganization, or by any stay or other legal impediment in or
arising from any bankruptcy or reorganization proceeding of Borrower,
resulting from the operations of any present or future provision of the
Bankruptcy Code of 1978 as amended, or other similar State or Federal
statute, or from the decision of any court.
11. Representations and Warranties of Guarantor. Guarantor hereby represents
and warrants that, as of the date hereof:
a. That Guarantor is desirous that Holder make the loan to Borrower,
will benefit directly from such loan and is willing to enter into
this Guaranty in order to enhance the qualifications of Borrower
for the loan and as an inducement to and to fulfill the
requirements of Holder for making the loan.
b. That there has been no material adverse change in the financial or
other condition of Guarantor since the date of the Note, and that
there is presently outstanding no litigation or contingent
liabilities which could adversely affect the financial or other
condition of Guarantor, and that no bankruptcy or insolvency
proceedings of any kind have been filed, threatened or are
outstanding by or against Guarantor, and Guarantor is not in
default with regard to payment and performance of all loans,
contracts and other agreements and obligations affecting
Guarantor.
c. Guarantor agrees that it will maintain Guarantor and its financial
affairs in such a manner so that it is able to make truthfully the
representations herein contained at all times during the term of
this Guaranty.
12. Notices. Any notice or demand to any party hereto shall be delivered by
personal service, registered or certified mail return-receipt
requested, or by national overnight delivery carrier, addressed to each
party at the addresses set forth above or such other address as any
party may hereafter designate in writing in the manner provided herein
and such service shall be deemed complete on receipt or refusal to
accept.
13. Binding Effect. The provisions of this Guaranty shall be construed in
accordance with the laws of the State of Connecticut and shall bind and
inure to the benefit of the parties hereto and their heirs, successors
and assigns.
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14. Invalidity. If any provision of this Guaranty shall be declared invalid
or unenforceable by a court of competent jurisdiction, such invalidity
or unenforceability shall have no effect upon the enforceability and
validity of the remaining provisions and conditions of this Guaranty
and such invalid provision shall be replaced by a legally permissible
provision which comes nearest to the intended purpose of the invalid
provision.
15. Amendment. No change or modification of this Guaranty shall be effective
unless such change or modification is in writing and signed by both of
the parties hereto.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed and delivered as of the 8th day of April, 2003.
GUARANTOR
DRINKS AMERICAS, INC.
By: /s/
---------------------------------
J. Xxxxxxx Xxxxx, Manager, duly
authorized
HOLDER
NEXCOMM INTERNATIONAL BEVERAGE, LLC
By:
---------------------------------
Xxxxxxx X. Close, Member duly
authorized
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