Exhibit 10.29
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
XXXXXXX X. CLOSE, an individual 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 dated July 28, 2003 (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.
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.
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 28th day of July, 2003.
GUARANTOR
MAXMILLIANS MIXERS LLC
By: /s/_______________________
J. Xxxxxxx Xxxxx, Manager,
duly authorized
HOLDER
/s/__________________________
Xxxxxxx X. Close
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