FORM OF GUARANTY
FORM
OF GUARANTY
1. Identification.
This
Guaranty (the "Guaranty"), dated as of October 23, 2007, is entered into
by
Attitude Drink Company, Inc., a Delaware corporation (“Guarantor”), for the
benefit of the Collateral Agent identified below and the parties identified
on
Schedule A hereto (each a “Lender” and collectively, the
"Lenders").
2. Recitals.
2.1 Guarantor
is a direct or indirect subsidiary of Attitude Drinks Inc., a Delaware
corporation (“Parent”). The Lenders have made and/or are making loans to Parent
(the "Loans"). Guarantor will obtain substantial benefit from the proceeds
of
the Loans.
2.2 The
Loans
are and will be evidenced by certain secured promissory Notes (collectively,
“Note” or “Notes") issued by Parent on, about and after the date of this
Guaranty pursuant to subscription agreements dated at or about the date hereof
(“Subscription Agreements”). The Notes are further identified on Schedule A
hereto and were and will be executed by Parent as “Borrower” or “Debtor” for the
benefit of each Lender as the “Holder” or “Lender” thereof.
2.3 In
consideration of the Loans made and to be made by Lenders to Parent and for
other good and valuable consideration, and as security for the performance
by
Parent of its obligations under the Notes and as security for the repayment
of
the Loans and all other sums due from Debtor to Lenders arising under the
Notes
(collectively, the "Obligations"), Guarantor, for good and valuable
consideration, receipt of which is acknowledged, has agreed to enter into
this
Guaranty. Obligations include all future advances by Lenders to Parent made
by
Lenders pursuant to the Subscription Agreement.
2.4 The
Lenders have appointed Xxxxxxx X. Xxxxxxx as Collateral Agent pursuant to
that
certain Collateral Agent Agreement dated at or about the date of this Agreement
(“Collateral Agent Agreement”), among the Lenders and Collateral
Agent.
3. Guaranty.
3.1 Guaranty.
Guarantor hereby unconditionally and irrevocably guarantees, jointly and
severally with any other Guarantor, the punctual payment, performance and
observance when due, whether at stated maturity, by acceleration or otherwise,
of all of the Obligations now or hereafter existing, whether for principal,
interest (including, without limitation, all interest that accrues after
the
commencement of any insolvency, bankruptcy or reorganization of Parent, whether
or not constituting an allowed claim in such proceeding), fees, commissions,
expense reimbursements, liquidated damages, indemnifications or otherwise
(such
obligations, to the extent not paid by Parent being the “Guaranteed
Obligations”), and agrees to pay any and all reasonable costs, fees and expenses
(including reasonable counsel fees and expenses) incurred by Collateral Agent
and the Lenders in enforcing any rights under the guaranty set forth herein.
Without limiting the generality of the foregoing, Guarantor’s liability shall
extend to all amounts that constitute part of the Guaranteed Obligations
and
would be owed by Parent to Collateral Agent and the Lenders, but for the
fact
that they are unenforceable or not allowable due to the existence of an
insolvency, bankruptcy or reorganization involving Parent.
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3.2 Guaranty
Absolute.
Guarantor guarantees that the Guaranteed Obligations will be paid strictly
in
accordance with the terms of the Notes, regardless of any law, regulation
or
order now or hereafter in effect in any jurisdiction affecting any of such
terms
or the rights of Collateral Agent or the Lenders with respect thereto. The
obligations of Guarantor under this Guaranty are independent of the Guaranteed
Obligations, and a separate action or actions may be brought and prosecuted
against Guarantor to enforce such obligations, irrespective of whether any
action is brought against Parent or any other Guarantor or whether Parent
or any
other Guarantor is joined in any such action or actions. The liability of
Guarantor under this Guaranty constitutes a primary obligation, and not a
contract of surety, and to the extent permitted by law, shall be irrevocable,
absolute and unconditional irrespective of, and Guarantor hereby irrevocably
waives any defenses it may now or hereafter have in any way relating to,
any or
all of the following:
(a)
any
lack of validity of the Notes or any agreement or instrument relating
thereto;
(b)
any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Guaranteed Obligations, or any other amendment or waiver of
or any
consent to departure from the Notes, including, without limitation, any increase
in the Guaranteed Obligations resulting from the extension of additional
credit
to Parent or otherwise;
(c)
any
taking, exchange, release, subordination or non-perfection of any Collateral,
or
any taking, release or amendment or waiver of or consent to departure from
any
other guaranty, for all or any of the Guaranteed Obligations;
(d)
any
change, restructuring or termination of the corporate, limited liability
company
or partnership structure or existence of Parent; or
(e) any
other
circumstance (including, without limitation, any statute of limitations)
or any
existence of or reliance on any representation by Collateral Agent or the
Lenders that might otherwise constitute a defense available to, or a discharge
of, Parent or any other guarantor or surety.
This
Guaranty shall continue to be effective or be reinstated, as the case may
be, if
at any time any payment of any of the Guaranteed Obligations is rescinded
or
must otherwise be returned by Collateral Agent, the Lenders or any other
entity
upon the insolvency, bankruptcy or reorganization of the Parent or otherwise
(and whether as a result of any demand, settlement, litigation or otherwise),
all as though such payment had not been made.
3.3 Waiver.
Guarantor hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this Guaranty
and any requirement that Collateral Agent or the Lenders or exhaust any right
or
take any action against any Borrower or any other person or entity or any
Collateral. Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated herein and that the
waiver
set forth in this Section 3.3 is knowingly made in contemplation of such
benefits. Guarantor hereby waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
3.4
Continuing
Guaranty; Assignments.
This
Guaranty is a continuing guaranty and shall (a) remain in full force and
effect
until the later of the indefeasible cash payment in full of the Guaranteed
Obligations and all other amounts payable under this Guaranty, the Subscription
Agreements and the Notes, (b) be binding upon Guarantor, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Lenders
and
their successors, pledgees, transferees and assigns. Without limiting the
generality of the foregoing clause (c), any Lender may pledge, assign or
otherwise transfer all or any portion of its rights and obligations under
this
Guaranty (including, without limitation, all or any portion of its Notes
owing
to it) to any other Person, and such other Person shall thereupon become
vested
with all the benefits in respect thereof granted such Collateral Agent or
Lender
herein or otherwise.
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3.5
Subrogation.
No
Guarantor will exercise any rights that it may now or hereafter acquire against
the Collateral Agent or any Lender or other Guarantor (if any) that arise
from
the existence, payment, performance or enforcement of such Guarantor’s
obligations under this Guaranty, including, without limitation, any right
of
subrogation, reimbursement, exoneration, contribution or indemnification,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Collateral Agent or any Lender or other Guarantor (if any),
directly or indirectly, in cash or other property or by set-off or in any
other
manner, payment or security solely on account of such claim, remedy or right,
unless and until all of the Guaranteed Obligations and all other amounts
payable
under this Guaranty shall have been indefeasibly paid in full.
3.6
Maximum
Obligations.
Notwithstanding any provision herein contained to the contrary, Guarantor’s
liability with respect to the Obligations shall be limited to an amount not
to
exceed, as of any date of determination, the amount that could be claimed
by
Lenders from Guarantor without rendering such claim voidable or avoidable
under
Section 548 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute
or
common law.
4. Miscellaneous.
4.1 Expenses.
Guarantor shall pay to the Lenders, on demand, the amount of any and all
reasonable expenses, including, without limitation, attorneys' fees, legal
expenses and brokers' fees, which the Lenders may incur in connection with
exercise or enforcement of any the rights, remedies or powers of the Lenders
hereunder or with respect to any or all of the Obligations.
4.2 Waivers,
Amendment and Remedies.
No
course of dealing by the Lenders and no failure by the Lenders to exercise,
or
delay by the Lender in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof, and no single or partial exercise thereof shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy or power of the Lenders. No amendment, modification or waiver
of
any provision of this Guaranty and no consent to any departure by Guarantor
therefrom, shall, in any event, be effective unless contained in a writing
signed by the Majority in Interest (as such term is defined in the Collateral
Agent Agreement) or the Lender or Lenders against whom such amendment,
modification or waiver is sought, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which
given. The rights, remedies and powers of the Lenders, not only hereunder,
but
also under any instruments and agreements evidencing or securing the Obligations
and under applicable law are cumulative, and may be exercised by the Lenders
from time to time in such order as the Lenders may elect.
4.3 Notices.
All
notices or other communications given or made hereunder shall be given in
the
same manner as set forth in Section 13(b) of the Subscription Agreement to
the
party to receive the same at its address set forth below or to such other
address as either party shall hereafter give to the other by notice duly
made
under this Section:
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To
Guarantor, to:
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00000
X.X. Xxxxxxx 0, Xxxxx 000
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Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
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Attn:
Xxx Xxxxxx, CEO and President
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Fax:
(000) 000-0000
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With
a copy by telecopier only to:
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Weed
& Co., LLP
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0000
XxxXxxxxx Xxxxx, Xxxxx 0000
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Xxxxxxx
Xxxxx, XX 00000
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Attn:
Xxxx Xxxx, Esq.
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Fax:
(000) 000-0000
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3
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To
Lenders:
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To
the addresses and telecopier numbers set
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Forth
on Schedule A
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To
the Collateral Agent:
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Xxxxxxx
X. Xxxxxxx
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000
Xxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, Xxx Xxxx 00000
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Fax:
(000) 000-0000
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If
to Guarantor, Lender or
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Collateral
Agent, with a copy by telecopier only to:
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Grushko
& Xxxxxxx, P.C.
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000
Xxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, Xxx Xxxx 00000
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Fax:
(000) 000-0000
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Any
party
may change its address by written notice in accordance with this
paragraph.
4.4 Term;
Binding Effect.
This
Guaranty shall (a) remain in full force and effect until payment and
satisfaction in full of all of the Obligations; (b) be binding upon Guarantor
and its successors and permitted assigns; and (c) inure to the benefit of
the
Lenders and their respective successors and assigns. All
the
rights and benefits granted by Guarantor to the Collateral Agent and Lenders
hereunder and other agreements and documents delivered in connection therewith
are deemed granted to both the Collateral Agent and Lenders. Upon the payment
in
full of the Obligations, (i) this Guaranty shall terminate and (ii) the Lenders
will, upon Guarantor's request and at Guarantor's expense, execute and deliver
to Guarantor such documents as Guarantor shall reasonably request to evidence
such termination, all without any representation, warranty or recourse
whatsoever.
4.5 Captions.
The
captions of Paragraphs, Articles and Sections in this Guaranty have been
included for convenience of reference only, and shall not define or limit
the
provisions hereof and have no legal or other significance
whatsoever.
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4.6 Governing
Law; Venue; Severability.
This
Guaranty shall be governed by and construed in accordance with the laws of
the
State of New York without regard to principles of conflicts or choice of
law.
Any legal action or proceeding against Guarantor with respect to this Guaranty
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of
this
Guaranty, Guarantor hereby irrevocably accepts for itself and in respect
of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Guarantor hereby irrevocably waives any objection which they may
now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty brought in
the
aforesaid courts and hereby further irrevocably waives and agrees not to
plead
or claim in any such court that any such action or proceeding brought in
any
such court has been brought in an inconvenient forum. If any provision of
this
Guaranty, or the application thereof to any person or circumstance, is held
invalid, such invalidity shall not affect any other provisions which can
be
given effect without the invalid provision or application, and to this end
the
provisions hereof shall be severable and the remaining, valid provisions
shall
remain of full force and effect. This
Guaranty shall be deemed an unconditional obligation of Guarantor for the
payment of money and, without limitation to any other remedies of Lenders,
may
be enforced against Guarantor by summary proceeding pursuant to New York
Civil
Procedure Law and Rules Section 3213 or any similar rule or statute in the
jurisdiction where enforcement is sought. For purposes of such rule or statute,
any other document or agreement to which Lenders and Guarantor are parties
or
which Guarantor delivered to Lenders, which may be convenient or necessary
to
determine Lenders’ rights hereunder or Guarantor’s obligations to Lenders are
deemed a part of this Guaranty, whether or not such other document or agreement
was delivered together herewith or was executed apart from this
Guaranty.
Each
party hereby irrevocably waives personal service of process and consents
to
process being served in any suit, action or proceeding in connection with
this
Agreement or any other Transaction Document by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service
of
process and notice thereof. Nothing contained herein shall be deemed to limit
in
any way any right to serve process in any other manner permitted by law.
Each
Guarantor irrevocably appoints Parent its true and lawful agent for service
of
process upon whom all processes of law and notices may be served and given
in
the manner described above; and such service and notice shall be deemed valid
personal service and notice upon each such Guarantor with the same force
and
validity as if served upon such Guarantor.
4.7 Satisfaction
of Obligations.
For all
purposes of this Guaranty, the payment in full of the Obligations shall be
conclusively deemed to have occurred when either the Obligations have been
indefeasibly paid or all outstanding Notes have been converted to common
stock
pursuant to the terms of the Notes and the Subscription Agreements.
4.8 Counterparts/Execution.
This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but
one
and the same instrument. This Agreement may be executed by facsimile signature
and delivered by facsimile transmission.
[THE
BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the
undersigned have executed and delivered this Guaranty, as of the date first
written above.
“GUARANTOR”
Attitude
Drink Company, Inc.
a
Delaware corporation
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Its:
President
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This
Guaranty Agreement may be signed by facsimile signature
and
delivered
by confirmed facsimile transmission.
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SCHEDULE
A TO GUARANTY
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LENDER
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INITIAL CLOSING
DATE ESCROWED
PAYMENT
(PURCHASE PRICE)
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SECOND CLOSING
DATE ESCROWED
PAYMENT
(PURCHASE PRICE)
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XXX
XXXXXX
00000
X.X. Xxxxxxx
0, Xxxxx 000
Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Fax:
(000) 000-0000
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$
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50,000.00
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$
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50,000.00
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ALPHA
CAPITAL ANSTALT
Pradafant
7
9490
Furstentums
Vaduz,
Lichtenstein
Fax:
000-00-00000000
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$
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300,000.00
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$
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300,000.00
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WHALEHAVEN
CAPITAL FUND LIMITED
3rd
Fl., 00 Xxx-Xx-Xxxxx Xx.
Xxxxxxxx,
Xxxxxxx XX00
Fax:
(000) 000-0000
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$
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150,000.00
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$
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150,000.00
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MONARCH
CAPITAL FUND LTD.
Xxxxxxx
Xxxxx, 0xx
Xxxxx
Xxxxxxxxxx
Xxxxx, Xxxx Xxxx
Xxxxxxx,
BVI
Fax
(000) 000-0000
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$
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100,000.00
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$
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100,000.00
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TOTALS
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$
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600,000.00
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$
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600,000.00
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