EXHIBIT 10.52
SUBSIDIARY GUARANTY
Tulsa, Oklahoma January 31, 2007
REFERENCE IS MADE to that certain Agreement and Plan of Merger, dated
of even date hereof (the "Merger Agreement"), between XStream Beverage Network,
Inc., a Nevada corporation ("XStream"), Global Beverage Solutions, Inc., a
Nevada corporation (the "Parent"), Global Merger Corp., a Nevada corporation
("Acquisition Sub"), and Beverage Network of Maryland, Inc., a Florida
corporation ("Beverage Network"). Acquisition Sub and Beverage Network both are
sometimes referred herein as "Guarantors" or "the undersigned". The Guarantors
and the Parent are sometimes referred herein as a "Company" or collectively the
"Companies".
FOR VALUE RECEIVED, and in consideration of XStream accepting a Secured
Promissory Note, dated as of even date hereof (the "Note"), from the Parent,
Acquisition Sub and Beverage Network (with Beverage Network intending to be the
surviving company in the merger with Acquisition Sub and becoming a wholly owned
subsidiary of Parent) jointly and severally and unconditionally guaranties to
XStream, its successors, endorsees and assigns the prompt payment when due
(whether by acceleration or otherwise) of all present and future obligations and
liabilities of any and all kinds of each Company to XStream and of all
instruments of any nature evidencing or relating to any such obligations and
liabilities upon which such Company or one or more parties and such Company is
or may become liable to XStream, whether incurred by such Company as maker,
endorser, drawer, acceptor, guarantors, accommodation party or otherwise, and
whether due or to become due, secured or unsecured, absolute or contingent,
joint or several, and however or whenever acquired by XStream, whether arising
under, out of, or in connection with (i) the Note, (ii) Merger Agreement and
(iii) the Master Security Agreement between XStream and the Companies, dated as
of even date hereof (the "Security Agreement") (the Note, Merger Agreement,
Security Agreement and each related agreement thereto, as each may be amended,
modified, restated and/or supplemented from time to time, are collectively
referred to herein as the "Documents"), or any documents, instruments or
agreements relating to or executed in connection with the Documents or any
documents, instruments or agreements referred to therein or otherwise, or any
other obligations or liabilities of such Company to XStream, whether now
existing or hereafter arising, direct or indirect, liquidated or unliquidated,
absolute or contingent, due or not due and whether under, pursuant to or
evidenced by a note, agreement, guaranty, instrument or otherwise (all of which
are herein collectively referred to as the "Obligations"), and irrespective of
the genuineness, validity, regularity or enforceability of such Obligations, or
of any instrument evidencing any of the Obligations or of any collateral
therefor or of the existence or extent of such collateral, and irrespective of
the allowability, allowance or disallowance of any or all of the Obligations in
any case commenced by or against any Company under Xxxxx 00, Xxxxxx Xxxxxx Code,
including, without limitation, obligations or indebtedness of any Company for
post-petition interest, fees, costs and charges that would have accrued or been
added to the Obligations but for the commencement of such case. Terms not
otherwise defined herein shall have the meaning assigned such terms in the Note
or Merger Agreement, as applicable.
In furtherance of the foregoing, the undersigned hereby agrees as
follows:
1. No Impairment. XStream may at any time and from time to time, either
before or after the maturity thereof, without notice to or further consent of
the undersigned, extend the time of payment of, exchange or surrender any
collateral for, renew or extend any of the Obligations or increase or decrease
the interest rate thereon, or any other agreement with any Company or with any
other party to or person liable on any of the Obligations, or interested
therein, for the extension, renewal, payment, compromise, discharge or release
thereof, in whole or in part, or for any modification of the terms thereof or of
any agreement between XStream and any Company or any such other party or person,
or make any election of rights XStream may deem desirable under the United
States Bankruptcy Code, as amended, or any other federal or state bankruptcy,
reorganization, moratorium or insolvency law relating to or affecting the
enforcement of creditors' rights generally (any of the foregoing, an "Insolvency
Law") without in any way impairing or affecting this Guaranty. This Guaranty
shall be effective regardless of the subsequent incorporation, merger or
consolidation of any Company, or any change in the composition, nature,
personnel or location of any Company and shall extend to any successor entity to
each Company, including a debtor in possession or the like under any Insolvency
Law.
2. Guaranty Absolute. Subject to Section 5(c) hereof, each of the
undersigned jointly and severally guarantees that the Obligations will be paid
strictly in accordance with the terms of the Documents and/or any other
document, instrument or agreement creating or evidencing the Obligations,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any Company with
respect thereto. Guarantors hereby knowingly accept the full range of risk
encompassed within a contract of "continuing guaranty" which risk includes the
possibility that a Company will contract additional obligations and liabilities
for which Guarantors may be liable hereunder after such Company's financial
condition or ability to pay its lawful debts when they fall due has
deteriorated, whether or not such Company has properly authorized incurring such
additional obligations and liabilities. The undersigned acknowledge that (i) no
oral representations, including any representations to extend credit or provide
other financial accommodations to any Company, have been made by XStream to
induce the undersigned to enter into this Guaranty and (ii) any extension of
credit to any Company shall be governed solely by the provisions of the
Documents. The liability of each of the undersigned under this Guaranty shall be
absolute and unconditional, in accordance with its terms, and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or supplement to or
deletion from or any other action or inaction under or in respect of the
Documents or any other instruments or agreements relating to the Obligations or
any assignment or transfer of any thereof, (b) any lack of validity or
enforceability of any Document or other documents, instruments or agreements
relating to the Obligations or any assignment or transfer of any thereof, (c)
any furnishing of any additional security to XStream or its assignees or any
acceptance thereof or any release of any security by XStream or its assignees,
(d) any limitation on any party's liability or obligation under the Documents or
any other documents, instruments or agreements relating to the Obligations or
any assignment or transfer of any thereof or any invalidity or unenforceability,
in whole or in part, of any such document, instrument or agreement or any term
thereof, (e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to any
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Company, or any action taken with respect to this Guaranty by any trustee or
receiver, or by any court, in any such proceeding, whether or not the
undersigned shall have notice or knowledge of any of the foregoing, (f) any
exchange, release or nonperfection of any collateral, or any release, or
amendment or waiver of or consent to departure from any guaranty or security,
for all or any of the Obligations or (g) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, the undersigned.
Any amounts due from the undersigned to XStream shall bear interest until such
amounts are paid in full at the highest rate then applicable to the Obligations.
Obligations include post-petition interest whether or not allowed or allowable.
3. Waivers.
(a) This Guaranty is a guaranty of payment and not of
collection. XStream shall be under no obligation to institute suit, exercise
rights or remedies or take any other action against any Company or any other
person or entity liable with respect to any of the Obligations or resort to any
collateral security held by it to secure any of the Obligations as a condition
precedent to the undersigned being obligated to perform as agreed herein and
each of the Guarantors hereby waives any and all rights which it may have by
statute or otherwise which would require XStream to do any of the foregoing.
Each of the Guarantors further consents and agrees that XStream shall be under
no obligation to marshal any assets in favor of Guarantors, or against or in
payment of any or all of the Obligations. Each of the undersigned hereby waives
all suretyship defenses and any rights to interpose any defense, counterclaim or
offset of any nature and description which the undersigned may have or which may
exist between and among XStream, any Company and/or the undersigned with respect
to the undersigned's obligations under this Guaranty, or which any Company may
assert on the underlying debt, including but not limited to failure of
consideration, breach of warranty, fraud, payment (other than cash payment in
full of the Obligations), statute of frauds, bankruptcy, infancy, statute of
limitations, accord and satisfaction, and usury.
(b) Each of the undersigned further waives (i) notice of the
acceptance of this Guaranty, of the extensions of credit, and of all notices and
demands of any kind to which the undersigned may be entitled, including, without
limitation, notice of adverse change in any Company's financial condition or of
any other fact which might materially increase the risk of the undersigned and
(ii) presentment to or demand of payment from anyone whomsoever liable upon any
of the Obligations, protest, notices of presentment, non-payment or protest and
notice of any sale of collateral security or any default of any sort.
(c) Notwithstanding any payment or payments made by the
undersigned hereunder, or any setoff or application of funds of the undersigned
by XStream, the undersigned shall not be entitled to be subrogated to any of the
rights of XStream against any Company or against any collateral or guarantee or
right of offset held by XStream for the payment of the Obligations, nor shall
the undersigned seek or be entitled to seek any contribution or reimbursement
from any Company in respect of payments made by the undersigned hereunder, until
all amounts owing to XStream by each Company on account of the Obligations are
indefeasibly paid in full and XStream' obligation to extend credit pursuant to
the Documents has been irrevocably terminated. If, notwithstanding the
foregoing, any amount shall be paid to the undersigned on account of such
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subrogation rights at any time when all of the Obligations shall not have been
paid in full and XStream' obligation to extend credit pursuant to the Documents
shall not have been terminated, such amount shall be held by the undersigned in
trust for XStream, segregated from other funds of the undersigned, and shall
forthwith upon, and in any event within two (2) business days of, receipt by the
undersigned, be turned over to XStream in the exact form received by the
undersigned (duly endorsed by the undersigned to XStream, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
XStream may determine, subject to the provisions of the Documents. Any and all
present and future obligations and liabilities of each Company to any of the
undersigned are hereby waived and postponed in favor of, and subordinated to the
full payment and performance of, all Obligations of each Company to XStream.
4. Security. All sums at any time to the credit of the undersigned and
any property of the undersigned in XStream' possession or in the possession of
any bank, financial institution or other entity that directly or indirectly,
through one or more intermediaries, controls or is controlled by, or is under
common control with, XStream (each such entity, an "Affiliate") shall be deemed
held by XStream or such Affiliate, as the case may be, as security for any and
all of the undersigned's obligations and liabilities to XStream and to any
Affiliate of XStream, no matter how or when arising and whether under this or
any other instrument, agreement or otherwise.
5. Representations and Warranties. Each of the undersigned hereby
jointly and severally represents and warrants (all of which representations and
warranties shall survive until all Obligations are indefeasibly satisfied in
full and the Documents have been irrevocably terminated), that:
(a) Corporate Status. It is a corporation, partnership or limited
liability company, as the case may be, duly formed, validly existing and in good
standing under the laws of its jurisdiction of formation indicated on the
signature page hereof and has full power, authority and legal right to own its
property and assets and to transact the business in which it is engaged.
(b) Authority and Execution. It has full power, authority and legal
right to execute and deliver, and to perform its obligations under, this
Guaranty and has taken all necessary corporate, partnership or limited liability
company, as the case may be, action to authorize the execution, delivery and
performance of this Guaranty.
(c) Legal, Valid and Binding Character. This Guaranty constitutes
its legal, valid and binding obligation enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting the enforcement of creditor's rights and general principles of equity
that restrict the availability of equitable or legal remedies.
(d) Violations. The execution, delivery and performance of this
Guaranty will not violate any requirement of law applicable to it or any
contract, agreement or instrument to which it is a party or by which it or any
of its property is bound or result in the creation or imposition of any
mortgage, lien or other encumbrance other than in favor of XStream on any of its
property or assets pursuant to the provisions of any of the foregoing, which, in
any of the foregoing cases, could reasonably be expected to have, either
individually or in the aggregate, a material adverse effect.
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(e) Consents or Approvals. No consent of any other person or entity
(including, without limitation, any creditor of the undersigned) and no consent,
license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is
required in connection with the execution, delivery, performance, validity or
enforceability of this Guaranty by it, except to the extent that the failure to
obtain any of the foregoing could not reasonably be expected to have, either
individually or in the aggregate, a material adverse effect.
(f) Litigation. No litigation, arbitration, investigation or
administrative proceeding of or before any court, arbitrator or governmental
authority, bureau or agency is currently pending or, to the best of its
knowledge, threatened (i) with respect to this Guaranty or any of the
transactions contemplated by this Guaranty or (ii) against or affecting it, or
any of its property or assets, which, in each of the foregoing cases, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect.
(g) Financial Benefit. It has derived or expects to derive a
financial or other advantage from each and every loan, advance or extension of
credit made under the Documents or other Obligation incurred by the Companies to
XStream.
(h) Solvency. As of the date of this Guaranty, (a) the fair saleable
value of its assets exceeds its liabilities and (b) it is meeting its current
liabilities as they mature.
6. Acceleration.
(a) If any breach of any covenant or condition or other event of
default shall occur and be continuing under any agreement made by any Company or
any of the undersigned to XStream, or either any Company or any of the
undersigned should at any time become insolvent, or make a general assignment,
or if a proceeding in or under any Insolvency Law shall be filed or commenced
by, or in respect of, any of the undersigned, or if a notice of any lien, levy,
or assessment is filed of record with respect to any assets of any of the
undersigned by the United States of America or any department, agency, or
instrumentality thereof, or if any taxes or debts owing at any time or times
hereafter to any one of them becomes a lien or encumbrance upon any assets of
the undersigned in XStream' possession, or otherwise, any and all Obligations
shall for purposes hereof, at XStream' option, be deemed due and payable without
notice notwithstanding that any such Obligation is not then due and payable by
the Companies.
(b) Each of the undersigned will promptly notify XStream of any
default by such undersigned in its respective performance or observance of any
term or condition of any agreement to which the undersigned is a party if the
effect of such default is to cause, or permit the holder of any obligation under
such agreement to cause, such obligation to become due prior to its stated
maturity and, if such an event occurs, XStream shall have the right to
accelerate such undersigned's obligations hereunder.
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7. Payments from Guarantors. XStream, in its sole and absolute
discretion, with or without notice to the undersigned, may apply on account of
the Obligations any payment from the undersigned or any other guarantors, or
amounts realized from any security for the Obligations, or may deposit any and
all such amounts realized in a non-interest bearing cash collateral deposit
account to be maintained as security for the Obligations.
8. Costs. The undersigned shall pay on demand, all costs, fees and
expenses (including expenses for legal services of every kind) relating or
incidental to the enforcement or protection of the rights of XStream hereunder
or under any of the Obligations.
9. No Termination. This is a continuing irrevocable guaranty and shall
remain in full force and effect and be binding upon the undersigned, and each of
the undersigned's successors and assigns, until all of the Obligations have been
indefeasibly paid in full and XStream' obligation to extend credit pursuant to
the Documents has been irrevocably terminated. If any of the present or future
Obligations are guarantied by persons, partnerships, corporations or other
entities in addition to the undersigned, the death, release or discharge in
whole or in part or the bankruptcy, merger, consolidation, incorporation,
liquidation or dissolution of one or more of them shall not discharge or affect
the liabilities of any undersigned under this Guaranty.
10. Recapture. Anything in this Guaranty to the contrary
notwithstanding, if XStream receives any payment or payments on account of the
liabilities guaranteed hereby, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other party under
any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by XStream, the undersigned's obligations to XStream
shall be reinstated and this Guaranty shall remain in full force and effect (or
be reinstated) until payment shall have been made to XStream, which payment
shall be due on demand.
11. Books and Records. The books and records of XStream showing the
account between XStream and each Company shall be admissible in evidence in any
action or proceeding, shall be binding upon the undersigned for the purpose of
establishing the items therein set forth and shall constitute prima facie proof
thereof.
12. No Waiver. No failure on the part of XStream to exercise, and no
delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by XStream of any
right, remedy or power hereunder preclude any other or future exercise of any
other legal right, remedy or power. Each and every right, remedy and power
hereby granted to XStream or allowed it by law or other agreement shall be
cumulative and not exclusive of any other, and may be exercised by XStream at
any time and from time to time.
13. Waiver of Jury Trial. EACH OF THE UNDERSIGNED DESIRES THAT ITS
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, EACH OF THE UNDERSIGNED HERETO WAIVES ALL RIGHTS TO TRIAL BY JURY
IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
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XXXXXXX XX XXXXXXXX, XXXX, XX OTHERWISE BETWEEN XSTREAM, AND/OR ANY OF THE
UNDERSIGNED ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS GUARANTY, ANY
DOCUMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.
14. Governing Law; Jurisdiction. THIS GUARANTY CANNOT BE CHANGED OR
TERMINATED ORALLY, AND SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
EACH OF THE UNDERSIGNED HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN THE COUNTY OF BROWARD, STATE OF FLORIDA SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY OF THE
UNDERSIGNED, ON THE ONE HAND, AND XSTREAM, ON THE OTHER HAND, PERTAINING TO THIS
GUARANTY OR ANY OF THE DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO
THIS GUARANTY OR ANY OF THE DOCUMENTS; PROVIDED, THAT EACH OF THE UNDERSIGNED
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF THE COUNTY OF BROWARD, STATE OF FLORIDA AND FURTHER PROVIDED
, THAT NOTHING IN THIS GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE XSTREAM
FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO
COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR
THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
XSTREAM. EACH OF THE UNDERSIGNED EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
UNDERSIGNED HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS . EACH OF THE
UNDERSIGNED HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH UNDERSIGNED IN ACCORDANCE WITH SECTION 18 AND THAT SERVICE SO
MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH UNDERSIGNED'S ACTUAL
RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID.
15. Understanding With Respect to Waivers and Consents. Each Guarantor
warrants and agrees that each of the waivers and consents set forth in this
Guaranty is made voluntarily and unconditionally after consultation with outside
legal counsel and with full knowledge of its significance and consequences, with
the understanding that events giving rise to any defense or right waived may
diminish, destroy or otherwise adversely affect rights which such Guarantor
otherwise may have against any Company, XStream or any other person or entity or
against any collateral. If, notwithstanding the intent of the parties that the
terms of this Guaranty shall control in any and all circumstances, any such
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waivers or consents are determined to be unenforceable under applicable law,
such waivers and consents shall be effective to the maximum extent permitted by
law.
16. Severability. To the extent permitted by applicable law, any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. Amendments, Waivers. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by the undersigned therefrom shall in
any event be effective unless the same shall be in writing executed by each of
the undersigned directly affected by such amendment and/or waiver and XStream.
18. Notice. All notices, requests and demands to or upon the
undersigned, shall be in writing and shall be deemed to have been duly given or
made (a) when delivered, if by hand, (b) three (3) days after being sent,
postage prepaid, if by registered or certified mail, (c) when confirmed
electronically, if by facsimile, or (d) when delivered, if by a recognized
overnight delivery service in each event, to the numbers and/or address set
forth beneath the signature of the undersigned.
19. Successors. XStream may, from time to time, without notice to the
undersigned, sell, assign, transfer or otherwise dispose of all or any part of
the Obligations and/or rights under this Guaranty. Without limiting the
generality of the foregoing, XStream may assign, or grant participations to, one
or more banks, financial institutions or other entities all or any part of any
of the Obligations. In each such event, XStream, its Affiliates and each and
every immediate and successive purchaser, assignee, transferee or holder of all
or any part of the Obligations shall have the right to enforce this Guaranty, by
legal action or otherwise, for its own benefit as fully as if such purchaser,
assignee, transferee or holder were herein by name specifically given such
right. XStream shall have an unimpaired right to enforce this Guaranty for its
benefit with respect to that portion of the Obligations which XStream has not
disposed of, sold, assigned, or otherwise transferred.
20. Joinder. It is understood and agreed that any person or entity that
desires to become a Guarantor hereunder, or is required to execute a counterpart
of this Guaranty after the date hereof pursuant to the requirements of any
Document, shall become a Guarantor hereunder by (x) executing a joinder
agreement in form and substance satisfactory to XStream, (y) delivering
supplements to such exhibits and annexes to such Documents as XStream shall
reasonably request and/or as may be required by such joinder agreement and (z)
taking all actions as specified in this Guaranty as would have been taken by
such such Guarantor had it been an original party to this Guaranty, in each case
with all documents required above to be delivered to XStream and with all
documents and actions required above to be taken to the reasonable satisfaction
of XStream.
21. Release. Nothing except indefeasible payment in full of the
Obligations shall release any of the undersigned from liability under this
Guaranty.
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22 Remedies Not Exclusive. The remedies conferred upon XStream in this
Guaranty are intended to be in addition to, and not in limitation of any other
remedy or remedies available to XStream under applicable law or otherwise.
23. Limitation of Obligations under this Guaranty. Each Guarantor and
XStream (by its acceptance of the benefits of this Guaranty) hereby confirms
that it is its intention that this Guaranty not constitute a fraudulent transfer
or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent
Conveyance Act of any similar Federal or state law. To effectuate the foregoing
intention, each Guarantor and XStream (by its acceptance of the benefits of this
Guaranty) hereby irrevocably agrees that the Obligations guaranteed by such
Guarantor shall be limited to such amount as will, after giving effect to such
maximum amount and all other (contingent or otherwise) liabilities of such
Guarantor that are relevant under such laws and after giving effect to any
rights to contribution pursuant to any agreement providing for an equitable
contribution among such Guarantor and the other Guarantors (including this
Guaranty), result in the Obligations of such Guarantor under this Guaranty in
respect of such maximum amount not constituting a fraudulent transfer or
conveyance.
[SIGNATURES TO FOLLOW]
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IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned
as of the date and year here above written.
GLOBAL MERGER CORP.
By:
--------------------------------
Name:
Title: Chief Executive Officer
BEVERAGE NETWORK OF MARYLAND, INC.
By:
--------------------------------
Name:
Title:
