|
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 Title 11, United
States 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.
<PAGE>
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
2
<PAGE>
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
3
<PAGE>
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
unde
|
