PERSONAL GUARANTEE
1. The undersigned, X. Xxxxxxx Xxxxx, (the
“Guarantor”), for good and valuable consideration and to induce St. Xxxxxx Investments, LLC, an
Illinois limited liability
company, (the “Creditor”) to extend financial accommodations to
Drinks Americas Holdings, Ltd., a Delaware corporation (the “Debtor”) pursuant to the Drinks Debenture issued by the Debtor to the Creditor of even
date herewith (as such
debenture may be amended from time to time, shall
hereinafter be referred to as the “Drinks
Debenture”), hereby
(a) irrevocably and unconditionally
guarantees to the Creditor
the faithful and timely payment when due under the Drinks Debenture of
the lesser of: (i) $375,000; or (ii) the amount due under the Drinks
Debenture (collectively,
the “Guaranteed
Obligations”). If Debtor
fails at any time to
promptly and fully to
pay any amount under the
Drinks Debenture, the
Guarantor shall satisfy the unpaid obligation subject to the
limitations provided
therein and
herein. The Creditor may at
any time require the Guarantor to pay such amount by giving notice to such effect to the
Guarantor in any manner prescribed for the giving of notices to
Debtor under the Drinks
Debenture, addressed to the
Guarantor at the address
indicated below.
The obligations of the Guarantor
hereunder are primary and direct, and are in addition to, and independent of,
the obligations, covenants and conditions required to be performed or satisfied
by Debtor under the
Drinks Debenture or any
other document executed between the Debtor and the Creditor on the date hereof (
the “Transaction Documents”). The Guarantor hereby waives all rights
that such Guarantor might otherwise have to require the Creditor to commence any
proceeding against Debtor
or the Collateral Shares
(as defined in the
Transaction Documents) or to exhaust the Creditor’s remedies against Debtor before seeking
to enforce this Guarantee.
The validity of this Guarantee and the
obligations of the Guarantor hereunder shall in no manner be terminated,
impaired or in any way modified or affected by reason
of:
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(a)
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the enforcement by the Creditor
against Debtor of any of the Creditor’s rights or remedies under the
Drinks
Debenture;
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(b)
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the granting to the Creditor,
under the Transaction Documents or otherwise, of any collateral security for the
performance or satisfaction of Debtor’s obligations, covenants or
conditions under the
Drinks
Debenture, any action
of the Creditor to proceed against or realize upon such collateral
security, or an impairment or release of any such collateral
security;
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(c)
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commencement by or against Debtor
of any bankruptcy or other insolvency proceeding or any stay, discharge
or other relief granted or issued
thereunder;
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(d)
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any extension of time or other
indulgence or forbearance by the Creditor, or an amendment, modification, renewal
or extension of any Transaction Document or waiver of any of the
obligations,
covenants or conditions of Debtor under the Drinks Debenture;
or
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(e)
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any other defense, set-off,
counterclaim or discharge that might otherwise be available to Debtor or any
Guarantor.
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2. Notwithstanding the foregoing, the
liability of the Guarantor hereunder is further limited to the lesser of the following amounts minus,
in either case, one dollar ($1):
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(a)
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The lowest amount which would
render this Guarantee a fraudulent conveyance under the Uniform Fraudulent
Transfer Act, or other similar or analogous law or statute of the
appropriate
jurisdiction;
and
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(b)
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The lowest amount which would
render this Guarantee a fraudulent transfer under Section 548 of the
Bankruptcy Code of 1978, as
amended.
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It is presumed that the liability of the
Guarantor hereunder is equal to the amount of the Guaranteed Obligations.
Therefore, in the event that any Guarantor, or successor-in-interest thereof
(“Guaranty Opponent”), shall claim that the amount of its liability hereunder is
less than the amount of the obligations guaranteed hereunder, the burden of
proof with respect to the amount of such liability shall rest with such Guaranty
Opponent, in light of the fact that the information concerning and circumstances
of the financial condition of such Guarantor is more readily available to and
under the control of such Guaranty Opponent.
The Guarantor hereby represents and
warrants to the Creditor that:
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(a)
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Such Guarantor has full power and
authority to make this Guarantee and to assume and perform its or his/her
obligations hereunder. This Guarantee has been duly executed and delivered by the Guarantor,
and is a legally valid and binding obligation of the Guarantor,
enforceable against
the Guarantor in accordance with its terms, except to the extent such
enforceability may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in
effect relating to creditors’ rights generally and equitable principles limiting the
availability of certain remedies.
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(b)
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There are no actions, suits,
proceedings, claims, or disputes pending, or, to the best knowledge of such Guarantor,
threatened or contemplated, at law, in equity, in arbitration,
or before any
governmental authority, against such Guarantor or any of such Guarantor’s
properties which purport to affect or pertain to this Guarantee or any of
the transactions contemplated hereby or
thereby.
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4. The Guarantor
waives:
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(a)
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ANY AND ALL SURETYSHIP DEFENSES,
WHETHER ARISING BY CONTRACT, STATUTE OR BY OPERATION OF
LAW.
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(b)
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Notice of: (i) any adverse change
in the financial condition of the Debtor; (ii) any default in the performance of the
Guaranteed Obligations; and (iii) any other notice to which such Guarantor might be
entitled.
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(c)
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Any defense or claim arising out
of (i) the release of any collateral securing the Guaranteed Obligations,
or (ii) any fact that may increase such Guarantor’s risk
hereunder.
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(d)
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Any claim of
usury.
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(e)
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Any other defense arising by
reason of any disability or other defense (other than the defense that the
Guaranteed Obligations have been fully paid) of Debtor including any
defense arising from any statute of limitations or laches.
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(f)
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Any defense based on the
invalidity, irregularity, or unenforceability of all or any part of the Guaranteed Obligations
or any other circumstance which might constitute a defense of such
Guarantor.
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(g)
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Any claim or defense based on (i)
the validity, legality or enforceability in whole or in part of the Guaranteed
Obligations, (ii) any assignment, amendment, transfer, modification,
renewal, waiver, compromise, addition or supplement relating to Guaranteed
Obligations, (c) any setoff, counterclaim or any
circumstances which might constitute a defense or discharge of such
Guarantor.
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(h)
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Any lack of power or authority of
the Debtor.
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(i)
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Any defense to payment hereunder
resulting from Creditor’s releasing Debtor or any other obligor owing the
Guaranteed Obligations from their obligation to pay the Guaranteed
Obligations, as well
as Creditor’s failure to give such Guarantor notice
thereof.
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5. The Guarantor waives any right to revoke
the Guarantee.
6. Without notice to the Guarantor and
without affecting or impairing the obligations of such Guarantor hereunder,
Creditor may, compromise or settle, extend the period of duration or the time
for the payment, or discharge the performance of, or may refuse to, or otherwise
not enforce, or may, release any obligor of the Guaranteed Obligations or may
grant other indulgences to Debtor in respect thereof, or may amend the
Transaction Documents, or may enforce, exchange, release, or waive any
security for the Guaranteed Obligations or any guaranty of the Guaranteed
Obligations.
7. If the Creditor prevails in any action,
suit or other proceeding against any Guarantor to enforce this Guarantee, the
Guarantor jointly and severally shall pay to the Creditor and indemnify the
Creditor for the Creditor’s reasonable attorneys’ fees and disbursements so
incurred. All rights of the Creditor hereunder
shall inure to the benefit of the Creditor and its successors and assigns, and
shall be binding upon the Guarantor and such Guarantor’s heirs, distributees,
legal representatives, successors and assigns. This Guarantee shall be governed
by, and interpreted and enforced in accordance with, the laws of the State of
Illinois without regard to principles of choice
of law or conflicts of laws. The Guarantor hereby irrevocably consents and
submits to the same provisions relating to arbitration and remedies, and the
jurisdiction of the same courts, the same venue and the same manner of service
of process, to which Debtor consents to and submits in the Transaction
Documents. The
Guarantor hereby waives protest, notice of protest, presentment, dishonor, and
demand.
[REMAINDER OF PAGE LEFT
BLANK]
[SIGNATURE PAGE TO PERSONAL
GUARANTEE]
IN WITNESS WHEREOF, the undersigned have
duly executed this Guarantee on June 18, 2009.
| Name: |
X.
Xxxxxxx Xxxxx,
individually
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| Address: | ||||
| 000 Xxxxxxx Xxxx, Xxxxx 000 | ||||
| Wilton, Connecticut 06897 | ||||
| Phone: (000) 000-0000 | ||||
| Facsimile: (0000 000-0000 | ||||
