GUARANTY
THIS GUARANTY, dated as of January 30, 1997, from UB International
Ltd., a corporation organized under the laws of the United Kingdom
("Guarantor"), to each of Nor'Wester Brewing Company, Inc., an Oregon
corporation ("Nor'Wester"), North Country Joint Venture, LLC, an Oregon limited
liability corporation ("North Country"), Willamette Valley, Inc. Microbreweries
Across America, an Oregon corporation ("WVI"), Aviator Ales, Inc., a Delaware
corporation ("AAI"), Bayhawk Ales, Inc., a Delaware corporation ("BAI"), Mile
High Brewing Company, Delaware corporation ("MHBC," and together with
Nor'Wester, North Country, WVI, AAI, and BAI, the "Constituent Corporations"),
is made in connection with the Investment Agreement dated as of the date hereof
between United Breweries of America, Inc. ("UB"), the Constituent Corporations
and James W. Bernau (the "Investment Agreement").
W I T N E S S E T H
WHEREAS, UB, the Constituent Corporations and James W. Bernau have
entered into the Investment Agreement for the purchase by UB of shares of Common
Stock in an entity resulting from the Consolidation of the Constituent
Corporations;
WHEREAS, UB has agreed to provide the Constituent Corporations with
certain interim financing as more fully set forth in the Investment Agreement;
and
WHEREAS, Guarantor will guaranty certain payment obligations of UB to
the Constituent Corporations under the Investment Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the adequacy and receipt of which hereby is
acknowledged, Guarantor hereby agrees to and does the following:
1. Guarantor does hereby absolutely and unconditionally guarantee to
the Constituent Corporations all payment obligations of UB under the Investment
Agreement (the "Guaranteed Obligations").
2. The obligations of Guarantor hereunder are independent of the
obligations of UB, and a separate action or actions may be brought and
prosecuted against Guarantor whether or not action is brought against UB and
whether or not UB is joined in any such action or actions. Any circumstance
which operates to toll any statute of limitations as to UB shall operate to toll
the statute of limitations as to Guarantor.
3. Guarantor makes the following representations and warranties to
each of the Constituent Corporations:
a. Guarantor is a corporation organized under the laws of the
United Kingdom, and has the power and adequate authority, rights and franchises
to execute and deliver, and to perform all of its obligations under, this
Guaranty.
b. The execution, delivery and performance of this Guaranty by
Guarantor have been duly authorized by all necessary action and do not and will
not violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to it, or of its [Charter documents].
c. This Guaranty constitutes the legal, valid and binding
obligation of Guarantor, enforceable against Guarantor in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect generally affecting
creditors' rights.
d. No actions, suits or proceedings are pending, or to the
knowledge of Guarantor, threatened against or affecting it, or any of its
assets, properties or rights, at law or in equity, by or before any court,
arbitrator or administrative or governmental body which, if determined adversely
to Guarantor, would have a material adverse effect on its ability to perform its
obligations hereunder.
4. Guarantor hereby waives:
a. Any right to require the Constituent Corporations to
(i) proceed against UB or any other guarantor of the Guaranteed Obligations,
(ii) proceed against or exhaust any security received from UB, Guarantor or any
other guarantor of the Guaranteed Obligations or otherwise marshall the assets
of UB or (iii) pursue any other remedy in the Constituent Corporation's power
whatsoever;
b. Any defense arising by reason of the application by UB of
the proceeds of any borrowing;
c. Any defense resulting from the absence, impairment or loss
of any right of reimbursement, subrogation, contribution or other right or
remedy of Guarantor against UB, any other guarantor of the Guaranteed
Obligations or any security, whether resulting from an election by the
Constituent Corporations to foreclose upon security by nonjudicial sale, or
otherwise;
d. Any benefit arising from any setoff or counterclaim of UB or
any defense which results from any disability or other defense of UB or the
cessation or stay of enforcement from any cause whatsoever of the liability of
UB (including, without limitation, the lack of validity or enforceability of the
Investment Agreement, but excluding any set-off or counterclaim asserted by UB
based upon the Constituent Corporation's failure to perform its obligations
under the Investment Agreement);
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e. Any defense based upon any law, rule or regulation which
provides that the obligation of a surety must not be greater or more burdensome
than the obligation of the principal;
f. Until all of the Guaranteed Obligations have been fully,
finally and indefeasibly paid, any right of subrogation, reimbursement,
indemnification or contribution and other similar right to enforce any remedy
which the Constituent Corporations or any other Person now has or may hereafter
have against UB on account of the Guaranteed Obligations, and any benefit of,
and any right to participate in, any security now or hereafter received by the
Constituent Corporations or any other Person on account of the Guaranteed
Obligations;
g. All presentments, demands for performance, notices of
non-performance, notices delivered under the Investment Agreement, protests,
notice of dishonor, and notices of acceptance of this Guaranty and of the
existence, creation or incurring of new or additional Guaranteed Obligations and
notices of any public or private foreclosure sale;
h. Any appraisement, valuation, stay, extension, moratorium
redemption or similar law or similar rights for marshalling;
i. Any right to be informed by the Constituent Corporations of
the financial condition of UB or any other guarantor of the Guaranteed
Obligations or any change therein or any other circumstances bearing upon the
risk of nonpayment or nonperformance of the Guaranteed Obligations;
j. Until all of the Guaranteed Obligations have been fully,
finally and indefeasibly paid or released, any right to revoke this Guaranty;
k. Any defense arising from an election for the application of
Section 1111(b)(2) of the United States Bankruptcy Code which applies to the
Guaranteed Obligations; and
l. Any defense based upon any borrowing or grant of a security
interest under Section 364 of the United States Bankruptcy Code.
Without limiting the scope of any of the foregoing provisions of this
PARAGRAPH 4, Guarantor hereby further waives (A) all rights and defenses arising
out of an election of remedies by the Constituent Corporations, even though that
election of remedies, such as a nonjudicial foreclosure with respect to security
for a Guaranteed Obligation, has destroyed Guarantor's rights of subrogation and
reimbursement against UB by the operation of Section 580d of the Code of Civil
Procedure or otherwise, (B) all rights and defenses Guarantor may have by reason
of protection afforded to UB with respect to the Guaranteed Obligations pursuant
to the antideficiency or other laws of California limiting or discharging the
Guaranteed Obligations, including, without limitation, Section 580a, 580b, 580d,
or 726 of the California Code of Civil Procedure, and (C) all other rights and
defenses available to
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Guarantor by reason of Sections 2787 to 2855, inclusive, Section 2899 or Section
3433 of the California Civil Code or Section 3605 of the California Commercial
Code.
5. The validity, interpretation, enforceability and performance of
this Guaranty shall be governed by, and construed in accordance with, the laws
of the State of California, without regard to the principles thereof regarding
conflict of laws, and the terms and provisions hereby may not be waived,
altered, modified or amended except in writing duly signed by Nor'Wester and
Guarantor. The Guarantor and the Constituent Corporations hereby consent to
service of process in the County of San Francisco, California and hereby agree
that all disputes relating to or arising under this Guaranty shall be the
jurisdiction of the state and federal courts located in the County of San
Francisco, California.
6. This Guaranty shall not be deemed to create any right in any
Person except as provided herein, nor be construed in any respect to be a
contract in whole or in part for the benefit of any other Person, and shall be
deemed to be extinguished upon the irrevocable discharge by UB of all of its
obligations under the Investment Agreement. This Guaranty is an irrevocable
continuing guaranty of the Guaranteed Obligations which shall continue in effect
until all of the Guaranteed Obligations have been fully, finally and
indefeasibly paid. If any payment on any Guaranteed Obligation is set aside,
avoided or rescinded or otherwise recovered from the Constituent Corporations,
such recovered payment shall constitute a Guaranteed Obligation hereunder and,
if this Guaranty was previously released or terminated, it automatically shall
be fully reinstated, as if such payment was never made.
7. Guarantor shall pay on demand all reasonable fees and expenses,
including reasonable attorneys' fees and expenses, incurred by the Constituent
Corporations in the enforcement or attempted enforcement of this Guaranty or in
preserving any of the Constituent Corporations' rights and remedies (including,
without limitation, all such fees and expenses incurred in connection with any
"workout" or restructuring affecting this Guaranty or any bankruptcy or similar
proceeding involving Guarantor). The obligations of Guarantor under this
PARAGRAPH 7 shall survive the payment and performance of the Guaranteed
Obligations and the termination of this Guaranty.
8. This Guaranty shall be binding upon and inure to the benefit of
the Constituent Corporations and Guarantor and their respective successors and
assigns; PROVIDED, HOWEVER, that neither the Constituent Corporations nor
Guarantor may assign or transfer any of their respective rights and obligations
under this Guaranty without the prior written consent of the other parties
hereto. All references in this Personal Guaranty to any Person shall be deemed
to include all permitted successors and assigns of such Person.
9. Guarantor authorizes the Constituent Corporations and UB, in
their discretion, without notice to Guarantor and without affecting or impairing
in any way the liability of Guarantor hereunder, from time to time to create new
Guaranteed Obligations and renew, compromise, extend, accelerate or otherwise
change the time for payment or performance of, or otherwise amend or modify the
Investment Agreement or change the terms of the Guaranteed Obligations or any
part thereof.
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10. Terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms by the Investment Agreement.
IN WITNESS WHEREOF, Guarantor, pursuant to due corporate authority,
has caused these presents to be signed in its name by a duly authorized officer
as of the date first above written.
UB INTERNATIONAL LTD.
By: /s/ VIJAY MALLYA
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Title: Chairman and Chief Executive Officer
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