FIRST AMENDMENT TO $4,000,000 DEBENTURE DATED JUNE 18, 2009 ISSUED BY DRINKS AMERICAS HOLDINGS, INC.
FIRST
AMENDMENT TO
$4,000,000
DEBENTURE DATED JUNE 18, 2009
ISSUED
BY
DRINKS
AMERICAS HOLDINGS, INC.
This First Amendment (this “Amendment”) to that
certain Debenture dated June 18, 2009 in the principal amount of $4,000,000 and
issued by Drinks Americas Holdings LTD., a Delaware corporation (the “Borrower”) in favor
of St. Xxxxxx Investments, LLC (the “Lender”), is made and
entered into between Borrower and Lender this 28th day of August,
2009.
WHEREAS, Xxxxxxxx and Xxxxxx entered
into that certain Default Waiver to Debenture Dated June 18, 2009 (the “Default Waiver”) on
July 30, 2009 to remove Xxxxxxxx’s default under certain provisions of the
Debenture and to modify the agreement among the parties according to the terms
of the Default Waiver; and
WHEREAS, Borrower desires that Lender
prepay a $200,000 portion (the “Prepayment”) of that certain St. Xxxxxx 7 Month
Secured Purchase Note dated June 18, 2009 in the principle amount of $250,000
and issued by Xxxxxx in favor of Borrower (the “Purchase Note”);
and
WHEREAS, Borrower certifies that the
representations and warranties in the Debenture and associated final documents
(including, without limitation, that certain Securities Purchase Agreement of
even date therewith) remain true and accurate in all material respects as of the
date hereof, and that other than the events of default described in the Default
Waiver, Borrower has not breached any covenant, promise or obligation in the
Debenture, the Securities Purchase Agreement or associated final documents or
the Default Waiver.
NOW
THEREFORE, the parties agree and the Debenture is hereby amended as
follows:
1. Definitions and
Recitals. Capitalized terms used in this Amendment but not
otherwise defined have the respective meanings set forth in the
Debenture. The recitals set forth above are incorporated in this
Amendment by reference and made contractual in nature.
2. Prepayment. Borrower
acknowledges the current outstanding balance of the Purchase Note is hereby
reduced by $200,000 upon receipt by Borrower of the Prepayment.
3. Debenture
Balance. The outstanding balance under the Debenture shall be
increased from $3,817,667.14 as of August 26, 2009 to
$4,217,667.14.
4. Interest
Rate. Beginning August 26, 2009 and through the Maturity Date
(as defined in the debenture), the Debenture shall carry an interest rate on the
full outstanding balance equal to one percent (1.0%) per month, compounded
daily, which interest shall accrue until satisfied under the terms of the
Transaction Documents (for the avoidance of doubt, the interest rate is in
addition to the original issue discount set forth in the
Debenture).
5. No Additional Default
Interest. In the event of an occurrence of a Trigger Event
after the date of this Amendment, Lenders rights and remedies in Section 7(i)
(increase of 110% of the Debenture balance) and Section 7(ii) (12% default
interest) shall not apply; provided, however, that all of Lender’s other rights
and remedies shall remain unchanged.
6. Other Terms
Unchanged. The Debenture, as amended by this Amendment,
remains and continues in full force and effect, constitutes a legal, valid, and
binding obligation of the Company, and is in all respects agreed to, ratified,
and confirmed. Any reference to the Debenture after the date of this Amendment
is deemed to be a reference to the Debenture as amended by this
Amendment. If there is a conflict between the terms of this Amendment
and the Debenture, the terms of this Amendment shall control.
7. Headings. The
headings contained in this Amendment are for reference purposes only and do not
affect in any way the meaning or interpretation of this Amendment.
8. Governing
Law. This Agreement shall be governed and construed under the
laws of the State of Illinois, without regard to conflicts of laws
principles. The Company hereby consents to the jurisdiction of any
competent court within the State of Illinois and consents to service of process
by any means authorized by Illinois law in any action brought under or arising
out of this Amendment.
9. Counterparts. This
Amendment may be executed in any number of counterparts with the same effect as
if all signing parties had signed the same document. All counterparts
shall be construed together and constitute the same instrument. The
exchange of copies of this Amendment and of signature pages by facsimile
transmission or other electronic transmission (including email) shall constitute
effective execution and delivery of this Amendment as to the parties and may be
used in lieu of the original Amendment for all purposes. Signatures
of the parties transmitted by facsimile transmission or other electronic
transmission (including email) shall be deemed to be their original signatures
for all purposes.
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IN
WITNESS WHEREOF, the undersigned have executed and delivered this First
Amendment to the Debenture made by Drinks Americas Holdings, Ltd. effective as
of the day first set forth above.
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By: ________________________________
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Its: ________________________________
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ACKNOWLEDGED
AND AGREED:
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ST.
XXXXXX INVESTMENTS, LLC
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By: _____________________________
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Its: _____________________________
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